G.S. Sarraf, J.
1. This appeal has been filed against the judgment dated 20.12.1999 passed by Judge, Family Court No. 2, Jaipur whereby the application filed under Section 13 of the Hindu Marriage Act; 1955 (hereinafter referred to as 'the Act') by the respondent has been allowed and the marriage solemnized between the respondent and the appellant has been dissolved by passing a decree of divorce.
2. Briefly stated the facts as narrated in the application filed by the respondent under Section 13 of the Act on 1.11.1996 are that his marriage was solemnized with the appellant on 7.5.1985. Two sons were born, namely, Saptsheel and Anant on 19.11.88 and 14.11.89 respectively from the wedlock of the parties. The appellant was not happy with the marriage and from the beginning the appellant was behaving in a manner derogatory to the respondent and his family members. Inspite of the best efforts made by the respondent behaviour of the appellant did not change. The respondent complained of the behaviour of the appellant to her mother but the mother blamed the respondent and encouraged the appellant and began interfering in the affairs of the family of the respondent. The appellant made allegations against the respondent of illicit relations with his Bhabhi Saroj, her daughter Aasha and another Bhabhi Kalpana. The respondent lodged written complaint against the appellant on 16.7.1996 at the Gandhi Nagar Police Station whereupon Sub Divisional Magistrate (East) bound down the appellant for keeping peace. The mother of the appellant lodged a false report with S.P. Jaipur Rural on 20.8.96 and in this case the respondent was released on anticipatory bail by the High Court. The appellant refused to live with the respondent inspite of letters written by the latter. The appellant thus treated the respondent with cruelty. The appellant was not having sexual relations with the respondent for the last two years and the appellant thus deserted the respondent.
3. The appellant in the reply filed by her denied the averments made in the application.
4. Learned Family Court after examining the application and the reply framed following issues:
1- vk;k izkFkhZ o mlds ifjokj ds yksxksa ds lkFk vizkfFkZ;k us izkFkZuk i= esa of.kZr rF;ksa ds ifjizs{; esa izkFkhZ o mlds ifjokj ds yksxks dks rax] ijs'kku o izrfM+r djds rFkk izkFkhZ ij mldh nksukas HkkHkh;ksa ,oa mudh yM+dh ds lkFk voS/k lEcU/kksa ds >wBs vkjksi yxkdj wjrk dk O;ogkj fd;k gSA
2- vk;k izkFkhZ ,oa vizkfFkZ;k ds e/; nks o'kZ ls vf/kd le; ls vizkfFkZ;k }kjk izkFkhZ ds lkFk lgokl ;k lEHkksx ugh fd;s tkus ds dkj.k vizkfFkZ;k us izkFkhZ dks tkucw>dj fcuk fdlh mfpr dkj.k ds ifjR;kx dj fn;k gS ,oa mldk vfHkR;tu dj fn;k gSA
3- vuqrks'k A
5. The respondent examined himself and six other witnesses and exhibited 46 documents while the appellant examined 10 witnesses including herself and exhibited 58 documents.
6. Learned Family Court after analying the pleadings and the entire evidence on record decided issue No. 2 regarding desertion in favour of the appellant and against the respondent but decided issue No. 1 regarding cruelty in favour of the respondent and dissolved the marriage of the parties by passing a decree of divorce. Aggrieved, the appellant has filed this appeal.
7. Heard learned Counsel for the appellant and the respondent personally.
8. Learned counsel appearing for the appellant has strenuously argued that far from treating the respondent with cruelty the appellant in fact suffered cruelty at the hands of the respondent and, therefore, to grant divorce to the respondent on ground of cruelty will be doing injustice to the appellant. He has further argued that in any case the cruelty has been forgiven by the respondent by living with the appellant subsequent to the alleged acts of cruelty and as such the decree of divorce cannot be granted on the ground of cruelty. He has also argued that irretrievable breakdown of the marriage is not a ground for granting divorce under Section 13 of the Act and, therefore, a decree on that ground is not sustainable. He has placed reliance on : 2009(6) SCC 379.
9. Let us examine the evidence available on the record to see whether the arguments put forward by learned Counsel for the appellant have got any force.
10. The respondent while deposing before the Family Court has given graphic details of the behaviour and conduct of the appellant which undoubtedly amount to cruelty. However, it will be interesting to go through the statement of the appellant herself. The appellant Anita Jain DW. 1 states:
---eq>s bl ckjs esa irk ugh fd ,l-Mh-,e- t;iqj ds U;k;ky; esa /kkjk 107 ds ekeys esa esjs odhy us tokc esa ;g fy[kdj fn;k gks fd jktsUnz xq.Mk fdLe d vkneh gS A---- eSaus i= izn'kZ 16 esa esjh ek dks ;g fy[kk Fkk fd vki ljkst HkkHkh ds ikl lksrs gS A---- ;g lgh gS fd 12-12-1998 dks eSus vkids f[kykQ pksjh dk eqdnek ntZ djok;k FkkA ftlesa vkius iqfyl ls feydj ,Q-vkj- yxok yh---- ;g lgh gS fd izn'kZ , 37 ls izn'kZ , 44 eSaus esjs llqjky okyksa ds f[kykQ dk;Zokgh pkgus ds fy, fy[ks Fks---- ;g lgh gS fd izn'kZ , 37 ls izn'kZ , 42 dh izfrfyfi eSaus nSfud HkkLdj o jktLFkku if=dk dks fHktokbZ Fkh---- ;g eq>s /;ku ugh gS fd eSaus vkids vkSj vkids HkkbZ vkSj HkkHkh;ksa ds f[kykQ djhc 15 dsl cuk;s gksa---- ;g lgh gS fd 1-6-1999 dks vkids f[kykQ rFkk vkids HkkbZ iznhi vkSj jfoUnz ds f[kykQ pksjh dk eqdnek ntZ djk;k FkkA ftlesa ,Q-vkj- yx xbZ gks] eq>s irk ugha A---- 23-2-1997 dks eSus vki vkSj vkids firkth ds f[kykQ bLrxklk fd;k gks] eq>s ;kn ugh gS---- ;g lgh gS fd 5-1-1998 dks eSaus vkids f[kykQ bLrxklk is'k fd;k Fkk---- ;g lgh gS fd 2-1-1998 dks eSus vkids] vkids firk] HkkbZ iznhi] v'kksd] jfoUnz mldh ifRu y{eh] v'kksd dh ifRu dYiuk ds f[kykQ bLrxklk fd;k gks A---- ;g lgh gS fd eSaus bUgh O;fDr;ksa ds f[kykQ egs'k uxj Fkkuk esa dsl fd;k Fkk---- ;g lgh gS fd fnukad 1-6-1999 dks eSus vkids o vkids HkkbZ iznhi vkSj jfoUnz ds fo:) rkyk rksM+dj pksjh djus dh fjiksZV iqfyl v/kh{kd] t;iqj xzkeh.k dks fHktokbZ Fkh A---- ;g lgh gS fd fnukad 2-11-1998 dks eSus vkids vkSj vkids ifjokj okyksa ds fo:) iqfyl lgk;rk ds fy, ,l-ih-] t;iqj xzkeh.k dks fjiksZV Hksth Fkh---- ;g lgh gS fd 5-1-1998 dks vkids o vkids HkkbZ jfoUnz o iznhi ds f[kykQ iqfyl lqj{kk iznku djus ds fy, Fkkuk pkSew dks fjiksZV is'k dh Fkh---- ;g lgh gS fd eSuas vkids o vkids HkkbZ iznhi v'kksd o jfoUnz ds f[kykQ 29-7-1999 dks 147] 323- 347 esa ,Q-vkbZ-vkj- ntZ djokbZ Fkh---- ;g lgh gS fd eSus vkids f[kykQ tkueky dh lqj{kk ds fy, Fkkuk egs'k uxj esa fjiksZV ntZ djokbZ Fkh---- ;g lgh gS fd eSaus vkids f[kykQ vkSj vkids HkkbZ f[kykQ ekjihV dh fjiksZV Fkkuk fo/kku lHkk esa ntZ djokbZ Fkh----
11. During the pendency of this appeal the respondent filed an application on 17.3.2007 under Order 41 Rule 27 read with Section 151 C.P.C. for taking subsequent events and additional documents on record. The respondent submitted therewith a copy of the FIR No. 32/2000 lodged by the appellant Anita Jain on 23.1.2000 at the police station Chomu, district Jaipur against the brothers of her husband, namely, Ravindra and Pradeep and their wives Laxmi and Chandra under Sections 452, 323, 341 and Section 376 read with Section 511 of the Indian Penal Code, a copy of the Final report submitted after necessary investigation and a copy of the order dated 6.11.2001 passed by Additional Chief Judicial Magistrate, Chomu accepting the Final Report.
12. The appellant admits to have written the letter Ex.1 in which she alleged against the respondent illicit relations with his Bhabhi Saroj, the niece Asha and also with one Kalpana Bhabhi.
13. Even if we do not consider the evidence led by the respondent in the Family Court the following facts emerge from the evidence of the appellant herself and the documents filed by the respondent during the pendency of this appeal.
1. In a proceeding before Sub Divisional Magistrate, the appellant has called her husband a Gunda.
2. The appellant has lodged several reports and has instituted several criminal proceedings against her husband and the family members of her husband.
3. The appellant sent for publication the material written against her husband and his family members to the newspapers Dainik Bhaskar and Rajasthan Patrika.
4. The appellant has alleged illicit relations against the respondent with his Bhabhi and niece which she herself admits to be untrue (Ex.1).
5. During the pendency of the appeal the appellant lodged a report against the brothers and Bhabhis of the respondent alleging several offences including attempt to commit rape in which a Final Report was submitted after investigation and the Final Report was accepted / by the competent court.
14. The word 'cruelty' has not been defined in the Act. It has been used in Section 13(1)(ia) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other.
15. The cruelty may be mental or physical. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. The situation must be such that the parties cannot reasonably be expected to live together. The Court must be satisfied that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress to entitle the complaining spouse to secure divorce.
16. Where there has been a long period of continuous separation it may fairly be concluded that the matrimonial bond is beyond repair. This Court has seriously made an endeavour to reconcile the parties but the breakdown appears to be irreparable. Even learned Counsel for the appellant has frankly admitted that the parties at this stage cannot reconcile and live together forgetting their past as a bad dream. The consequence of preserving an unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
17. In : (2005) 2 SCC 22 the Apex Court has observed:
The expression 'cruelty' has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse about his or her mental welfare then this conduct amounts to cruelty.
18. In this case, the appellant has not only instituted a number of cases against the respondent and his family members but she has also made allegations against the respondent regarding illicit relations with his Bhabhis and niece which are worst types of allegations and she has also admitted these allegations to be untrue. The conduct of the appellant clearly amounts to cruelty to the respondent.
19. In view of the above discussion, it is clear that the argument of learned Counsel for the appellant that the appellant has not treated the respondent with cruelty has no force. There is also no substance in the argument of learned Counsel for the appellant that the respondent has forgiven the appellant as no such evidence is available on the record.
20. From the analysis and evaluation of the entire evidence, it is clear that the appellant has resolved to live in agony only to make the life a miserable hell for the respondent as well. This type of adamant attitude leaves no manner of doubt that the appellant is bent upon treating the respondent with mental cruelty. It is thus clear that learned Family Court has not committed any error by deciding issue No. 1 against the appellant.
21. This case reminds me the words of a famous jurist that to live with a man (woman) you hate is a slavery but to be compelled to submit to his(her) embraces is a misfortune too great even for slavery itself.
22. In view of the fact that the parties have been living separately for a number of years and a large number of cases have been instituted by one party against the other party, it is clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together or living together again.
23. Though in : 2009(6) SCC 379 the Apex Court has taken the view that the ground of irretrievable breakdown of the marriage is not provided by the legislature in Section 13 of the Act for granting a decree of divorce and, therefore, the court cannot add such a ground as it would be amending the Act but in : 2005 (2) SCC 22 the Apex court has held:
It is true that irretrievable breaking of marriage is not one of the statutory grounds on which court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long-drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves, those were exceptional cases.
24. The Apex Court has again held in : 2006(4) SCC 558 as under:
Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
25. It is to be noted that each of the two judgments reported in : 2006 (4) SCC 558 and : 2005(2) SCC 22 has been delivered by a bench of three judges whereas the judgment reported in : 2009(6) SCC 379 has been delivered by a bench of two judges. As per : 2005 (2) SCC 673 a Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In view of this, the law laid down in : (2006) 4 SCC 558 and : (2005) 2 SCC 22 holds good.
26. In view of the above discussion we do not see any infirmity whatsoever in the impugned judgment passed by learned Family Court and as such the inevitable conclusion is that the respondent is entitled to a decree of divorce.
Consequently, the appeal stands dismissed with no order as to costs.