Judgment:
B.V. Nagarathna, J.
1. This appeal is filed by the wife challenging the Judgment and Decree dated 15.4.2008 passed in M.C. No. 699/2005 by the III Addl. Judge, Family Court, Bangalore by which the marriage solemnized between the parties on 4.8.2003 at Bangalore is dissolved by a decree of divorce and a sum of Rs. 20,000/-p.m has been ordered towards interim maintenance from the date of petition till the date of decree along with litigation expenses of Rs. 10,000/-.
2. After condoning the delay in filing the appeal, though this matter was posted for orders on I.A No. II/2008, both the parties were directed to appear before the court to explore the possibility of a settlement. However, on 5.1.2009 the counsel for the respondent filed a photo copy of the certificate of registration of marriage of the respondent with one Smt. Vyshali M. Ashok which was registered on 27.6.2008. On the subsequent dates when the parties appeared, this Court directed the parties to settle the dispute amicably by the respondent offering a reasonable permanent alimony to the appellant considering the fact that the respondent had entered into another marriage alliance and under the circumstances practically it would have been difficult for the appellant to get the benefit of any order that would have been made in her favour in the event of the appeal being allowed. The appellant however, did not accept the offer made by the respondent to pay a permanent alimony of a sum of Rs. 30,00,000/- including a sum of Rs. 7,20,000/- paid towards arrears of maintenance. Thereafter the matter was posted on subsequent dates and sufficient time was also granted to the appellant to think over about giving up her right to agitate this appeal by accepting the permanent alimony from the respondent, in view of the respondent having married again. The appellant, though a qualified dentist could not persuade herself to accept any kind of settlement in the matter but on the other hand insisted upon a judgment on merits. Under the circumstances, with the consent of parties on both sides, we have heard the appeal at the stage of admission itself. We have also secured the lower court records and perused the same.
3. For the sake of convenience the parties shall be referred to in terms of their status before the trial court.
4. The petitioner before the trial court who is the respondent herein filed the petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 seeking dissolution of his marriage with the respondent by a decree of divorce. According to the petitioner he was married to the respondent as per Hindu rites and custom on 4.8.2003 at Saraswathl Convention Centre, Magadi Road, Bangalore. The petitioner is an Engineer by profession. He had studied at Ramakrishna Ashram and that the respondent is a qualified dentist and has obtained Masters Degree in Dental Science (MDS). After marriage the parties left for Hyderabad where the petitioner was working, but the petitioner found that the respondent was very rude and egoistic and adamant in her behaviour while she was always projecting that she was MDS. According to the petitioner, he was put to severe mental agony and cruelty on account of the following factors narrated in the petition:
a) The respondent never respected the petitioner, his parents and elders and always using foul and abusive language by making much of herself and her parents howsoever she be wrongfuln
b)The respondent never performed the household works and never used to do the cooking and always expecting the petitioner to do such works and expected him to take her out to costly restaurants as and when she liked.
c) The respondent always used to be in the dark room not coming out and conversing with the petitioner even after he came back from the office and sending messages after messages in her mobile sitting there in the room being locked inside.
d) The respondent was impossibly careless towards household articles and to say towards the very life itself.
e) The respondent always threatened that she would commit suicide.
f) The respondent always used to have altercations and quarrels with the petitioner even on trivial matters and tried always engage him in such things without allowing him to look after his work, wherever he be either at home or at his office, either personally or telephonically.
g) The respondent never liked the things, which the petitioner liked and she intentionally used to dislike them so as to be dominant over him.
h) She used to hurt at him with all possible bad words and then she used to use all imaginary language as though she was sorry for that and requesting for a chance to mend it.
i) She used to pack her bag and baggage and used to go off to her parents place at Hassan without the permission of the petitioner and without even informing him.
5. According to the petitioner, the respondent was always suspicious of the fidelity and character of the petitioner and she used to frequently access website called www.amma.com and by seeking advice therein she used to call upon the parents and friends of the petitioner and asked them whether the petitioner had an extra marital relationship as he was never Interested in her. Within a few weeks after marriage, the respondent declared that she would never be able to live with him and one day she took out her managalasutra and threw it on the face of the petitioner stating that she would not accept him as her husband and went to her parents house. But her father intervened and persuaded her and advised her, but on account of her adamant and arrogant attitude, within a few days she returned to Hassan, despite the petitioner's father advising her not to return back as it would create difference between the newly wed couple. On hearing this she fell down as if she was unconscious thereby putting his parents to disgrace and ridicule before several neighbours, after which the parents of the respondent took her to Hassan and persuaded her to attend Yoga and Pranayama classes. After a month she returned to Bangalore with her parents and then left for Hyderabad, but the petitioner found that there was no change in her attitude. After three days stay at Hyderabad she returned Hassan along with her mother without informing the petitioner. After she returned to Hassan she wrote letters and sent E-mails to petitioner admitting her mistakes but also defending herself in the following words:
I have been a rule maker both at work place and at home. Nobody has pointed out my mistakes earlier because of that I will try to defend myself.
6. On another occasion she went to the extent of saying that if the petitioner was unhappy with the marriage, he was free to walk out of the marriage to which the petitioner stated that it would be better to live separately for the next three months and that to stay together after things settle down between them, but she replied that she would never agree for divorce and that she wanted him to be alone for the rest of his life. The parents of the petitioner tried to find a solution by visiting the parents of the respondent at Hassan, but without any avail. On 25.7.2004 when the petitioner along with his father went to the respondent's house, they found that there were other strangers in the house of the respondent and they demanded a sum of Rs. 50,00,000/- if the petitioner wanted that he should not be troubled, otherwise the respondent would file dowry harassment case against the petitioner, his parents and sister. The conduct of the respondent and her attitude put the petitioner in severe mental cruelty and he apprehended physical and mental danger by living with the respondent. He therefore, sought for dissolution of the marriage.
7. After service of notice from the Family Court, the respondent appeared and denied the allegations made in the petition by contending that it was a fact that she had completed her MDS course in the year 2001 and her marriage was celebrated In the year 2003. She was working in a Dental College as a lecturer. Petitioner had advertised in a newspaper for matrimonial alliance and, accordingly her father had responded and after the parents of the petitioner Interviewed her at a hostel at Mysore, where she was staying and on being satisfied gave their approval and consent for the marriage of his son. When the petitioner along with his parents visited Mysore, she found that the parents of the petitioner were interacting with her more than the petitioner and the father of the petitioner never Involved the petitioner in any conversation. According to her, the reason was on account of the petitioner being fully blind in one eye. The parents of the petitioner insisted that the marriage be performed in a grand manner and accordingly Saraswathi Convention Centre was booked for two days on 3.8.2003 and 4.8.2003 for the marriage and reception and a sum of Rs. 5,00,000/- was spent towards the marriage apart from expenditure on jewelry, clothes and transportation. Next day petitioner and his parents hosted a lunch (Beegara Outana) for the invitees at Prakash Cafe, Bangalore, but the parents and the relatives of the respondent were not invited. Thereafter the parties spent a week in Bangalore and went to Kerala for honeymoon for about four days, during which period the petitioner kept himself aloof and was not talking with the respondent. Thereafter they left for Hyderabad where the petitioner was working and again the petitioner's behaviour was uncaring and he was not communicating with her. During their stay at Hyderabad she did all the household chores as the petitioner's mother had instructed her not to employ a servant. The petitioner and the respondent once drove all the way from Hyderabad to Dandeli and then to Mumbai and back to Hyderabad by car, but during the long drive he hardly spoke to her. During Deepavali festival the petitioner refused to visit the respondent's parents on their invitation and sent the respondent alone in a night bus to Bangalore. During that period the petitioner's mother questioned the respondent's mother as to why she had not stayed at Hyderabad for a month and there were verbal altercations between them and thereafter the father of the petitioner directed the respondent to remain at Hassan to learn Yoga and Pranayama and for 11/2 months there was no response from the petitioner. Subsequently, the parents of the respondent took her to Hyderabad and after ten days, the mother of the respondent wanted to return along with the respondent for a cousin's marriage at Hassan, but the petitioner demanded that she stay for a couple of months at Hyderabad or take the respondent away to Hassan. When the respondent's mother insisted that the respondent should live with the petitioner, he said that he would not be responsible if anything untoward happened to the respondent, and he also stated that his parents were of the view that she should return to Hassan with her mother. Accordingly, the respondent and her mother hurriedly left Hyderabad and returned to Hassan. After ten days she called the petitioner to ask about her return to Hyderabad to which the petitioner replied that they were not made for each other and they should part ways. After five months the father of the petitioner along with some other persons visited Hassan and met the parents of the respondent and offered to settle the matter by separation of he parties by paying a sum of Rs. 15,00,000/- but the parents of the respondent rejected the offer and requested that the respondent be taken back to the matrimonial home. According to the respondent though she has been staying with her parents, she does not have any intention of separating from the petitioner as the petitioner is a good person but has been acting at the instigation of his parents. As a result the petitioner has been behaving in a strange manner. According to the respondent It is the intention of the petitioner to get more dowry and hence they were looking for another girl to get their son married. Hence she prayed for dismissal of the petition for divorce by way of counter claim sought for restitution of conjugal rights. No objections were filed by the petitioner with regard to the counter claim made by the respondent.
8. In support of his case, the petitioner examined himself as PW.1 and got marked Ex.Pl to P4 while the respondent examined herself as PW. 2.
9. On the basis of the material on record, the Family Court raised the following points for its consideration:
1. Whether the petitioner proves that after the solemnization of marriage, the respondent treated the petitioner with cruelty?
2. Whether the respondent proves that she is very keen to reside with the petitioner and perform all her marital obligations and therefore, the petitioner has to be directed to take her back to the matrimonial home?
3. Whether the respondent is entitled for interim maintenance and litigation expenses as claimed?
4. What order?
10. After considering the material on record, it answered point No. 1 in the affirmative and point No. 2 in the negative and awarded maintenance of Rs. 20,000/-p.m and litigation charges of Rs. 10,000/- and passed a judgment and decree dissolving the marriage between the parties on 4.8.2003 by granting a decree of divorce and allowing the petition on the ground of cruelty. Being aggrieved by the said judgment and decree, the respondent/wife has preferred this appeal.
11. We have heard the learned Counsel for the appellant and learned Counsel for the respondent.
12. It is submitted on behalf of he appellant that the Family Court was not justified in giving a finding against the appellant that her acts and emotions amounted to cruelty against the respondent herein. It is also submitted that the Family Court was not right in holding that the appellant had deserted the respondent herein. The observations made by the Family Court with regard to Ex.P3 and P4 are unsustainable and that the parties lived together for a very short period of 1 months only. Hence the Judgment and Decree of he Family Court ought to be reversed in this appeal.
13. Per contra, it is submitted on behalf of the respondent that on the basis of the material on record, the Family Court was justified in concluding that the petitioner was entitled to a decree of divorce on the ground of cruelty and the fact that the appellant's counter claim for restitution of conjugal rights was not granted clearly indicates that the respondent herein had made out a case for dissolution of the marriage and accordingly, the Family Court granted the relief sought by the respondent herein by its Judgment and Decree which does not call for any interference in this appeal.
14. Having regard to the above submission, the following
points would arise for our consideration:
1. Whether the petitioner has proved cruelty on the part of the respondent?
2. Whether the respondent is entitled to restitution of conjugal rights?
3. What order?
15.From the material on record it is not in dispute that the petitioner and respondent were married on 4.8.2003 and that the marriage was an arranged marriage. The petitioner is a qualified Engineer and the respondent is a Dentist who is teaching in a Dental College at the time of the marriage.
16. According to the petitioner who was examined as PW. 1 for a few days after marriage, they stayed together at Bangalore and then went for honey moon for four days and subsequently they resided at Hyderabad for 1 months as the petitioner was working in Hyderabad. During the said period, the respondent did not behave properly with the petitioner as she was always projecting that she is a MDS degree holder and used to have frequent quarrels and altercations with the petitioner and always had an adamant attitude. According to the petitioner on one occasion, the respondent declared that she would not be able to live with him and threw her mangalasutra on the petitioner's fact saying that she would never accept him. It is the further contention of the petitioner that the respondent suspected his fidelity and was suspicious about his character, and that he was having an affair with another lady. Therefore, the respondent was always doubtful about the character of the petitioner. The petitioner has also stated in his evidence that he is a non-vegetarian and the respondent did not like non-vegetarian food. He has in effect re-iterated the contents of his petition in his affidavit by way of examination-in-chief.
17. In his cross-examination, PW1 has stated that in the year 1999, he completed his Engineering Course and he denied that during his college days he had affairs with his classmates. He has also denied that he had agreed to marry one Kathyayini who was a student of Yoga under his mother. He has admitted that after negotiation of the marriage, there was one month period, during which he had talk with the respondent. He has also stated that during the said period, they went to restaurants and other places and spent time together and that both of them were happy with each other before marriage. He has also admitted that the marriage expenses were borne by respondent's father, but he denied that a sum of Rs. 50,000/- was given to him from the respondent's side for the marriage expenses for buying clothes etc. According to him, after the marriage on 5.8.2003, he went to the respondent's parents house at Hassan on 6.8.2003 where they spent two days and that they went on a honeymoon to Kerala and returned on 19.8.2003. He has also admitted that even during honeymoon, the parties did not have any grievance with each other and after they returned from honeymoon, the respondent went to her parents' house for Gowri Festival and since he was working at Hyderabad during that period of time, he went to the respondent's house at Hassan and then went to Hyderabad and the respondent returned to Hyderabad with her mother. PW.1 has stated that the respondent stayed with him at Hyderabad for one and a half months, during which period she used to prepare food and that there was no maid servant also nor did they have a washing machine. According to him, during their stay at Hyderabad, initially they did not have any grievance. Then from Hyderabad, respondent came to Bangalore and when she was at Hassan, she used to enquire about him regularly. That after she returned from Hassan, she stayed with his parents at Bangalore for about a week, where she did not do any household work. According to PW1, he is a non-vegetarian and though the respondent did not like non-vegetarian food, when they went to restaurants, she used to eat the same with him. He has also admitted that at Hyderabad, he stayed at a penthouse and used to leave the house for work at 6 a.m. and return home at 4 p.m. He has also admitted that he did not have any grievance against his wife in connection with washing clothes, cleaning the house and cooking at Hyderabad. He has also admitted that from Bangalore, respondent went to Hyderabad along with her parents and she stayed there for five days in February 2004 and he has denied that he forced her to return to her parents' house. But in October, 2003 from Hyderabad she went to her parents' house to attend to Deewali Festival. He has also admitted that she stayed for a day at Bangalore, his mother had an argument with the respondent and as a result she fell down, but he has denied that she fell down because his mother pushed her or his father told her to return to her parents' house to learn yoga and then returned to the matrimonial fold and then returned after a month. He has however, admitted that after she went to her parents' house, the petitioner contacted her over phone and she returned to his parents' house for a few days. He has stated that while the respondent was staying with him at Hyderabad, she used to disturb him in his work. But he has denied that he had stated that he would commit suicide. He has however, admitted that he had a satisfactory marital life with his wife and he does not have any grievance about her education. She was not respecting him because of the defect in vision in his left eye. He admits that he did not mention about the same before marriage to his wife. He has denied that in order to get married to another girl he filed the petition or to extract any dowry from respondent he had filed a case. To a categorical question whether he is willing to stay with the respondent, he has answered in the negative.
18. In support of his case the petitioner has produced two letters in order to prove the attitude of the respondent. In one of the letters the respondent has sought for forgiveness of the petitioner as she had hurt him knowingly or unknowingly. She has also said that she would like to change things between them in the following words:
Please, Please tell me when I am wrong. May be I will defend myself at that moment and argue with you. But deep down I want to change.
She has also accepted her mistakes and stated the following words:
That Is the problem with me when you point out my mistake, I might try to defend myself, may be because, my mind refuses to accept it But believe me, I want to mould myself to your wishes. May be, it takes little bit more time to accept because of the ego that I have nurtured over these years. Please give me sometime to change myself. But please criticize me when I am wrong, and point out my mistake, even if lam argumentative.
Regarding her personality this is the view she has all herself:
I am not trying to defend my mistakes. At this age, I have already formed my personality. I have been rule maker, both at work place and at home. Nobody has, pointed out my mistakes. May be because of that, I will try to defend myself, when mistakes are pointed out as I have already formed my views.
She has further stated as follows:
I know my short comings. I had even told you before marriage ~ my short temper and stubborn etc. I am trying my level best to control them.
She has further sought for forgiveness and apologized as follows:
I know I have hurt you unkind words. I tried to put myself in your place. May be even 1 would have reacted the way you have reacted. Please forgive me for those unkind words and give me one more chance. Believe me those words were not from my heart I am really sorry for whatever I hove done knowingly and unknowingly.
In an other letter she has stated as follows:
If you feel sorry for marrying me, if you are unhappy and repenting for marrying, you are free to walk out anytime. I want you to be happy always and no relationship can flourish if there is unhappiness. May be it will hurt me. But hurts and wounds are common in my life. I keep my finger crossed and I want you to be always with me. I will try my level best to keep my house happy and sweet.
It is just a piece of my mind. If you are hurt by the contents of this letter, I am sorry and please let me know if it hurts you.
In another letter the respondent has admitted about her feelings of the petitioner as follows:
May be in l months, we stayed together, there was misunderstanding between us, I may be because our wavelength was not matching. You expected me to understand your needs and I expected you to understand my needs, without communicating properly about each other needs. I tried to express my dissatisfaction by calling you selfish, egoistic, impossible and you resorted to being silent, distancing from me, hurting each other. Instead of telling me, you always complained to your parents.
She then states as follows:
Why don't you realise that my mind is like steel, whatever write on it, is un-erasable, and I don't have to re-enforce my mind by writing, when I am determined to look beautiful, communicate well and keep of health.
The respondent also admits that she had called the petitioner as being selfish, impossible, egoistic and blames the mobile phone to be the root cause of the problem in the following words:
If I had not had a cell, may be I would never been able to call you selfish, impossible, egoistic. I will throw that mobile which is the root cause of our problem. Why don't you realise that, when I say I had rejected many, and married you, why don't you see it as a compliment and it is true. I love you.
The above letter was written on 30.4.2004, few months after the marriage and when she was residing away from the petitioner.
19. It is also to be borne in mind that though according to the respondent she was sent back by the petitioner within a few months after marriage, no steps were initiated by her for seeking restitution of conjugal rights except by way of counter claim in the instant proceeding before the Family Court. The only material that we have on record is the oral evidence of the parties and the letters written prior to the filing of the petition.
20. As opposed to the petitioner's evidence, the respondent in her affidavit by way of examination-in-chief has also reiterated the contents of her statement objections and has stated that she was living happily with her husband petitioner, but due to interference of the parents of the petitioner differences arose between them. Both of them would be happy if the parents of the petitioner do not interfere and she has also stated that she was ready and willing to reside with the petitioner in the matrimonial home and she had no intention to separate from her husband at any point of time and therefore, she sought dismissal of the case and that her counter claim for restitution of conjugal rights be allowed.
21. In her cross-examination, she has stated that after completion of her post-graduation in Dental Surgery, she joined Hasanamba Dental College at Hassan, where she worked and then joined Farukia Dental College, Mysore, where she worked till the date of her marriage. That after her separation from the petitioner since February 2004 and in June 2004, she joined Oxford Dental College where she worked for 11 months and then she joined Rajarajeshwari Dental College as a Reader till September 2007. Thereafter she joined Bangalore Institute of Dental Sciences as a reader where she was working and her gross salary is Rs. 23,000/- p.m. That she was also working at Manasa Multispeciality Dental Care Centre in the year 2004. But at the time of filing her affidavit evidence, she was unemployed. She has stated that after the marriage talks were concluded, she had met the petitioner twice and that after understanding him thoroughly, she agreed to marry him and that till February 2004 they were living together. Till she was thrown out of the house at Hyderabad, there was no quarrel between them. Thereafter, the petitioner's parents asked her to attend the panchayat in Bangalore in which she told that she was ready to go with the petitioner, but they did not agree. After marriage she came to know from the petitioner that he had affairs with the classmates when he was studying and was told about Kathyayini. She said that the petitioner is a good person, but his parents are interfering in their life. That the petitioner is a mild and God fearing person.
22. In her further cross-examination RW. 1 has stated that at the instance and on the instructions of her father-in-law, she had addressed letters to her husband though she had no intention to do so and infact had objected to the same. She had stated this in respect of Ex,P3 and P4. She has also stated that since February 2004. they have been living separately and that in July 2004 re-conciliation meeting was held but nothing came out of it She has also denied all allegations of cruelty which have Been attributed by the petitioner against her. She has however categorically stated that three days after marriage, the petitioner informed her. about his having an affair with his classmate but she thought that the. matter was closed, and the same also did not come in the way of their marital life she has however, stated that she has no problem to reside along with the petitioner and that she has made a prayer to that effect by way of seeking restitution of conjugal rights.
23. In Black's Law Dictionary the term 'mental cruelty' as a ground of divorce has been defined as a course of conduct of a spouse that creates such anguish that it endangers the life, physical helath or mental health of the other spoue.
The Hon'ble Supreme Court in the case of N.G Dastane (Dr) v. S Dastane reported in : (1975) 2 SCC 326 has observed that enquiry by the court in case where cruelty is of such a character as to cause in the mind of the petitioner, a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.
25. In the case of V. Bhagat v. D. Bhagat reported in : (1994)1 SCC 337 it has been observed that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively.
26. In the case of Savithri Pandey v. Prem Chandra Pandey reported in : (2002) 2 SCC 73 the Hon'ble Supreme Court observed that cruelty must be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct, which would In general, be dangerous for a spouse to live with the other.
27. In the case of Parveen Mehta v. Indrajit Mehta reported in : (2002) 5 SCC 706 it has been observed that the approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.
28. In the case of A. Jayachandra v. Aneel Kaur reported in : (2005) 2 SCC 22 it has been observed that in physical cruelty there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
29. In the case of Vinitha Saxena v. Pankaj Pandit reported in : (2006) 3 SCC 778 it has been observed that as to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.
30. In the case of Samar Ghosh v. Jaya Ghosh reported in : (2007) 4 SCC 511 the Hon'ble Supreme Court after reviving the English, American, Canadian and Australian cases held that no uniform standard can ever be laid down for guidance with regard to mental cruelty. But however, has enunciated certain instances being illustrative but not exhaustive of what constitutes mental cruelty wherein it has been held that the married life should be reviewed as a whole and few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. But mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-today life would not be adequate for grant of divorce on the ground of mental cruelty.
31. While referring to an earlier decision in the case of Naveen Kohli v. Neelu Kohli reported in : (2006) 4 SCC 558 it has been observed that 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.
32. Keeping the above principles in mind the evidence would have to be appreciated in the instant case. From the material on record it is seen that the parties have lived together continuously for about one and half months at Hyderabad and their stay together has otherwise been intermitted as they were married on 4.8.2003 and have been living separately since February 2004. What is to be seen is as to whether in the brief period of their stay together, the petitioner has suffered cruelty at the hands of the respondent. Though the petitioner has made several allegations in the petition which are also extracted above and has repeated the same in his examination-in-chief. In his cross-examination however, he has admitted that both the parties were quite happy with each other before the marriage with regard to they getting married and both the parties were satisfied about each others' qualifications and career and he has further admitted that both of them did not have any grievance during honeymoon. He has also admitted that during their stay together for P/2 months at Hyderabad, the respondent used to prepare food and there was neither a cook nor maid servant and nor a washing machine and the respondent also did other household work. Subsequently, she stayed with her parents for about a week and though the respondent did not like the non-vegetarian food, she ate non-vegetarian food as he liked it. In Hyderabad he used to leave house at 6.a.m and return home at 4.p.m and he did not have any grievance about his wife with regard to house hold work. He has also denied that he asked the respondent to return to her parental house. Under these circumstances it is difficult to conclude that the respondent has caused any kind of cruelty mental or physical to the petitioner. When a specific question was put as to whether he was willing to reside with the respondent, he has answered that he is not willing to do so. On the other hand he has admitted that he had satisfactory marital life with the respondent. When the petitioner has failed to prove the allegations of cruelty made by him against the respondent and the respondent is interested in living with him, we fail to understand as to why the petitioner stated that he was not willing to reside with her.
33. Further a reading of all the letters and particularly the extracts also do not reveal that the respondent has caused any cruelty to the petitioner except making it apparent that she is a strong minded person. However, what becomes apparent from her letters are that she has realized that there may have been some mistakes on her part, but she is willing to change and that she is trying to control her short temper as well as her egoistic attitude. At any rate according to the respondent, the said letters were written at the instance of her father-in-law, despite objecting to the same and hence much cannot be read into the contents of the said documents. In the face of the explicit admission of the petitioner regarding a satisfactory marital life and the strong denial of the respondent regarding acts of cruelty on her part and considering the fact that the parties lived together continuously for only l months and the fact that respondent is interested in continuing her marital life with the petitioner, we cannot hold that the petitioner has proved the allegations of cruelty against the respondent. Hence the finding of the Family Court on this issue is reversed and point No. 1 is answered in favour of the appellant herein.
33. The respondent has also sought restitution of conjugal rights which aspect has not been adverted to by the Family Court in its judgment. According to the respondent, the parties have been separated since February, 2004 and though she did not seek for restitution immediately thereafter, however, by way of counter claim to this petition filed by the petitioner, she has sought for restitution of conjugal rights in the year 2005 along with her statement of objections.
34. Under Section 9 of the Hindu Marriage Act when either of the spouses without reasonable excuse withdraws from the society of the other, then a petition could be filed by the aggrieved party seeking restitution of conjugal rights and the court on being satisfied with the truth of the statements made in such petition and that, there is no legal ground why the application should not be granted can pass a decree of restitution of conjugal rights accordingly. The explanation pertains to the burden of proving reasonable excuse for withdrawal from, the society of the other spouse or the party who has withdrawn from lire society. The basis for enforcing restitution of conjugal rights is the right of a spouse to consortium of the other spouse and where the other spouse had abandoned or withdrawn from the society of the aggrieved spouse without reasonable excuse or just cause, the court should, grant a decree of restitution. This section must however be read with Section 23 of the Act, which imposes a duty on the court to enquire into and pass a decree for restitution of conjugal rights after satisfying itself about the petitioner who has approached the court having a bonafide intention to resume matrimonial co-habitation and to render his duties of matrimonial life. The party who resist the petition must however prove that there was a reasonable excuse or just, cause for the withdrawal from the society of the petitioner or that the petitioner by taking advantage of his/her own wrong or any disability is not entitled to the relief under Section 9. A husband has the right to require his wife to live with him wherever he may choose to reside and unless there are special circumstances, the court cannot absolve the wife from discharging her corresponding duty. The initial onus of proving that the respondent has without reasonable excuse withdrawn from the society of the petitioner obviously rests on the petitioner, but the burden of proving reasonable excuse is on the respondent. The reasons for the one spouse to withdraw fro in the other spouse must be grave and weighty.
35. In the ease of Revanna v. Susheelamma reported in AIR 1967 Mysore 165. it has been held that reasonable excuse contemplated in the Section must be one which would afford the ground either for judicial separation or for nullity of marriage or for divorce. Keeping the above principles in mind, the evidence on record would have to be appreciated.
36. Keeping in mind the above principles and the fact that the intention of the respondent to reside with the petitioner being apparent and that on account of breakdown of talks between the parties and their respective parents and due to the filing of the petition seeking divorce and the respondent has been residing with her parents, we are of the view that the trial court ought to have considered this aspect of the matter also. Hence we hold that the respondent has made out a case for restitution of conjugal rights and answer the point No. 2 in favour of the appellant.
37. What follows is the relief that we can grant to the parties herein as, the reality of the present case has now to be considered by us, Considering the fact that we are reversing the decree of divorce granted by the Family Court. At this stage we have to take note of the fact that after the decree of divorce was granted by the Family Court, the petitioner has married once again and whether the said circumstance has led to a situation of irretrievable breakdown of the marriage between the parties herein, even though the petitioner has failed to establish the ground of cruelty and desertion. No doubt the said ground of irretrievable breakdown of marriage is not an independent ground under the provisions of the Hindu Marriage Act, 1955 and hence not a ground for seeking divorce and neither does this Court have any powers to grant a decree of divorce on the said ground. But the peculiar facts and circumstances of the present case has in our view lead to such a situation.
38. Prior to the enactment of the Hindu Marriage Act, 1955, the concept of divorce under Hindu Law was absent except in the erstwhile states of Bombay, Madras and Saurashtra under certain circumstances. But in the said enactment Section 13 deals with the relief of divorce on certain grounds. The Act was later amended to add grounds on the basis of which the wife alone could seek a decree of divorce. Normally divorce postulates two things namely a guilty party i.e., party who has committed one of the specified matrimonial offences and an innocent party who has suffered, in which event the innocent party can on proving the guilt of the other party, seek the relief of decree of divorce. However, even in the absence of guilt on either of the parties to the marriage or on account of guilt of both the parties, there can be a breakdown of the marriage, in which event it would not be necessary for a party to prove the fault of the other party. According to a learned author, irretrievable breakdown of marriage is in the realm of the breakdown theory of marriage, when the marriage has broken down without any possibility of repair and therefore should be dissolved without looking to the fault of either party.
39. Justice Krishna Iyer has figuratively expressed such a situation In the following words:
Daily, trivial differences get dissolved in the course of time and may be treated as teething trouble of early matrimonial adjustment. While the stream of life lived in married mutuality, may wash away small pebbles, what is to happen if intransigent incompatibility of minds breaks up flow of the stream? In such a situation we have a break down of the marriage itself and the only course left open is for law to recognize what is a fact and accord a divorce.
40. It would be relevance to note that the Law Commission in England had submitted its report on the introduction of breakdown of marriage as a ground for divorce and in the year 1969 the Divorce Law Reform Act was passed laying down certain criteria for breakdown of marriage. In fact the Law Commission in India in its 71st report has touched upon irretrievable breakdown of marriage as a ground of divorce relying on the English Matrimonial law, but same has not yet resulted in any enactment.
41. Another aspect of this concept is the long separation of spouses. When there is such a separation there would obviously be no continuity in marriage and the law would not serve any purpose to continue such a marriage as there would be no reasonable probability of the spouses living together as husband and wife. Section 1 of Matrimonial Clauses Act, 1973 legislated in England lays down that after the commencement of the Act, breakdown of the marriage shall be the sole ground for divorce and Section 2 formulates certain criteria of breakdown which are as follows:
(a) Adultery of the respondent, but then the petitioner has also to establish that on this account he finds it impossible to live with the respondent;
(b) Cruelty of the respondent (i.e., the respondent has behaved in such a way, that the petitioner cannot reasonably be expected to live with the respondent);
(c) Two years desertion;
(d) Two years living apart of the spouses, provided the respondent agrees to divorce (this is the English version of divorce by mutual consent; and
(e) Five years' living apart of the spouses (in this consent or non-consent of the respondent is immaterial). This is the English law version of irretrievable breakdown of marriage.
42. There is also another aspect with regard to the dissolution on the basis of irretrievable breakdown and the same is also envisaged under the Hindu Marriage Act under Section 13. This is an aspect of dissolution on the basis of irretrievable breakdown of marriage wherein if a decree for restitution of conjugal rights is not complied within one or either party may seek divorce. Further even if there is no resumption of co-habitation between the parties for one year or upwards after passing of the decree for judicial separation, then it is a ground for dissolution of the marriage. Therefore, Section 13(i-a) of the Act recognizes to some extent irretrievable breakdown of marriage under the above two circumstances.
43. Under Section 13(2) of the Act a wife can also present a petition for dissolution of her marriage by a decree of divorce on the ground that the husband has married again i.e., he is guilty of bigamy. This is one aspect of irretrievable breakdown of marriage which has arisen on the facts of the present case. Considering the fact that in the instant case, the petitioner has married after the decree of divorce was granted by the Family Court and even in the event of reversal of the Judgment and Decree of the Family Court, no substantial relief can be given to the respondent who is the appellant, the only alternative for the respondent-wife is to seek appropriate reliefs against the petitioner as we cannot lose sight of the fact that the act of contracting the second marriage by the petitioner clearly implies that he is not interested in continuing his marital relationship with the respondent and even in the absence of his proving the allegations of cruelty against the respondent, we have to conclude that there is an irretrievable breakdown of marriage in the instant case. However, since there is no specific provision under the Hindu Marriage Act, 1955 by which we can dissolve the marriage between the parties on the said ground and in view of our reversing the decree of divorce granted by the Family Court our hands are tied in granting any relief to the parties, except stating that the parties can seek appropriate remedies available to them in law. By reversing the Judgment and decree of the Family Court, in law, the marital tie between the parties herein continue but in fact there is a breakdown of marriage, despite that fact that we have held point No. 2 in favour of the appellant/wife. We are also conscious of the fact that this order would be causing injustice to an innocent third party who is a stranger to this proceeding, namely, the second wife of the respondent herein. Under the circumstances we had suggested an amicable settlement between the parties.
44. At this juncture we would observe that in several cases, the Hon'ble Supreme Court has put an end to the marital tie on the ground of irretrievable breakdown of marriage by exercising powers under Article 142 of the Constitution of India so as to ensure complete justice between the parties. This Court is not conferred with such a power and hence we have no option but to allow the appeal filed by the appellant/wife and set aside the judgment and decree of the Family Court by dismissing the petition filed by the respondent herein, reserving liberty to the parties to seek whatever remedies are available them in law.
45. Before parting with this case we would like to observe that the Law Commission of India in its 71st report recommended amendment to the Hindu Marriage Act by adding irretrievable breakdown of marriage as an additional ground. In fact a bill was prepared providing three years of separation as a proof of breakdown of marriage and the said bill was envisaged that the spouse was entitled to seek relief on the ground of irretrievable breakdown irrespective of the fact that he or she was at fault or was taking advantage of his or her own wrong. Though the said bill was introduced in Parliament in the year 1987, it was not enacted. In fact the Hon'ble Supreme Court in certain decisions have relied upon this ground for dissolving a marriage even when the petitions were filed on the ground of matrimonial fault and was not substantiated enough to grant relief.
46. The observations In Neelu Kohli's case and also in V. Bhagat v. D. Bhagat reported in : AIR 1994 SC 710 referred to above where a decree of divorce in favour of husband was granted inspite of the finding that the allegations of cruelty, leveled by him against bis wife were not proved are relevant in this context. In fact Smt. Kusum In a Chapter entitled 'Matrimonial Adjudication under Hindu Law' in the book 'Fifty years of the Supreme Court of India-its grasp and reach' published by the Indian Law Institute has stated as follows;
While expediency demands that no marriage which has completely lost its sanctity and meaning should be kept in vegetative existence simply because under the letter of, the law there t$ no ground available for relief, caution and fairness demand that the ground should not become an agent of offence and be misused to the detriment of the innocent and the ignorant Though the existence of the ground on the statute book might facilitate the Judge who today seeks alibis under other provisions to grant relief in a really disastrous marriage, It is important that irretrievable breakdown of the marriage as a ground for divorce, if incorporated, should be applied with utmost discretion. In any case, each case needs to be viewed on its peculiar facts and merits
47. We find that the time has come to incorporate irretrievable breakdown of marriage as a ground for granting divorce particularly when viewed on the factual matrix of the present case. However, as observed above, this Court is not empowered to grant relief to the parties on that ground.
48. Accordingly, this appeal is allowed.