Mahila Ramjanki Vs. Pavan Sharma - Court Judgment

1. 'Institution of marriage occupies an important role to play in the society in general', observed Their Lordships of Hon. Supreme Court in the case of Chetan Das v. Kamla Devi, reported in 2001(3) Supreme 403, 'matrimonial matters are matter of delicate human and emotional relationship which demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well'.

2. Parties in the present case were married according to Hindu rituals on 24th June, 1988 and after a year of marriage, appellant/wife went second time in gauna to her husband/respondent's house. It is alleged by respondent/husband who had filed a divorce petition against her that even on2nd day of gauna, appellant/wife insisted to return to her parents' house and consequently, she was allowed to go and then even after great persuasion, she did not come back with the result; husband was left with no chance but to apply for annulment of marriage.

3. Reply of appellant was that she was tortured and harassed by husband for not properly bringing sufficient dowry in the marriage and the petition for divorce had been filed by appellant only to enter into the second marriage.

4. Learned Trial Court, i.e., 1st. Addl. Judge to Distt. Judge, Shiv-puri by the impugned judgment dated 25th January, 2001, passed in HMC 17-A/00, although found no cruelty proved but granted decree of divorce, on the ground of desertion of husband by appellant wife against which, present appeal has been filed. Contention of learned Counsel for appellant is that wife was always willing and had lived with husband, in the circumstances, when no cruelty was found by Trial Court on her part and also because, no desertion found proved, the learned Trial Court erred in granting decree of divorce.

5. Learned Counsel for respondent on the other hand has submitted that evidence on record, is enough to prove desertion on the part of appellant which is a sufficient ground to pass decree of dissolution of marriage and particularly, when it is found proved that there was no chance for reuniting the parties, it adds as an additional ground to grant divorce on the ground of irretrievable broken marriage.

6. I have considered the rival submissions of learned Counsel for the parties and have carefully perused the record.

7. Applicant/husband Pavan Sharma (A.W. 1), has stated that soon after the second return (gauna), of the wife, she left his house and then never returned. Thus, he was kept apart from her company for the last 10 years. It is also alleged that his wife did not like him. He and his father tried their best to persuade her to come back but of no avail. Surprisingly, respondent has also been cross-examined with the suggestion that he is keeping illicit connection with his Bhabhi (sister-in-law), although no such pleadings are raised in the written statement of the appellant. Although appellant Ramjanki (N.W. 1) has denied to have any suspicion on the character of her husband, however, her father Ratiram Sharma (N.W. 2) in Para 5 of his cross-examination has admitted that his daughter had suspicion about illicit connection of her husband with his Bhabhi and this was the root cause of dispute between them. This witness has also admitted that nothing has been settled as dowry in the marriage of spouse nor he has levelled any allegation regarding demand of dowry against respondent. In the circumstances, question of maltreating appellant on account of demand of any dowry does not arise. Thus, it is clearly a case of making false allegation against character of husband.

8. Unfortunately, appellant in this case when found charged with the desertion of husband for the last 10 years on her part, moved an amendment in her written statement to the effect that by giving an application to Superintendent of Police that she had gone to reside with husband, however, she has contradicted her own affidavit in this respect and learned Trial Court also on this point after appreciating evidence of the parties has found this amended plea as an afterthought and palpably false. According to appellant, she constantly remained with the husband after her marriage and was only turned out two years before filing divorce petition, however, this cannot appears to be a correct position, otherwise, husband would not have moved the Court to grant divorce as the allegations of victimization on account of demand of dowry, were found to be totally false.

9. Witness Laxman Prasad (A.W. 2) and Ramesh Kumar Sharma (A.W. 3), father of respondent had tried to persuade appellant to come back to her husband but she refused. Thus, desertion of husband by wife for about 10 years has rightly been found proved by the Trial Court.

10. Learned Counsel of appellant has submitted that where, cruelty on the part of appellant has not been found proved by learned Trial Court, no decree of divorce could be passed merely because, the spouse had lived separately for sometime. Reliance is placed on the decision of Apex Court in the case of Chetan Das (supra), and case of Pushpavathi v. Manickasamy, reported in 2001 (4) Supreme 581, however, it is to be noticed that in case of Chetan Das (supra), husband was found guilty for adulterous conduct while in case of Pushpavati (supra), the High Court had granted divorce in second appeal on the ground of unfounded allegations by wife in written statement constituting cruelty. Of course, each and every allegation made against husband by wife in written statement defending a petition for divorce filed against her cannot constitute mental cruelty and it has also been held that what is cruelty in one case, may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. In a case of accusations and allegations, regard must also be had to the context in which they were made.

11. Learned Counsel for respondent has strenuously argued that despite repeated attempts being made by husband to persuade appellant for peacefully residing with him, and appellant not willing to return in a period of about 10 years, indicates that it was permanent breakdown of marriage between the parties and therefore, served as an additional justification for granting divorce. Reliance is placed on a decision of Apex Court in the caseof Smt. Saroj Rani v. Sudarshan Kumar Chaddha, reported in (1984) 4 SCC 90. This Court also in a case of Bhawana Advani v. Mahesh Advani, reported in 1992 JLJ 269, has observed that after addition of the explanation to Section 13(1), even if the wife is guilty of willful neglect of the husband, she would be guilty of desertion to constitute a ground of divorce and the 'reasonable cause' as contemplated by explanation below Section 13(1) should be a cause, which should be sufficiently grave and weighty, so as to justify the living of the wife away from the husband. Only because, during a brief stay of wife at her husband's home, there were some taunts of demands of dowry, it cannot be said that they furnished a reasonable cause to the wife to leave the home of the husband and never to return. So also in the present case, no reasonable cause has been proved justifying the wife/appellant living separate from the husband for about last 10 years.

12. In the case of Usha v. Laxminarayan, reported in 1993 (1) MPWN 119, even the desertion of husband for two years without any reasonable cause, was found to be a valid ground for passing a decree of divorce.

13. In the case of Chanderkala Trivedi v. Dr. S.P. Trivedi, reported in (1993) 4 SCC 232, divorce petition of husband was brought after about 9 years of marriage on the ground of cruelty, while husband alleging wife's association with young boys and wife alleging husband intimacy with another lady, it was held that marriage became dead and therefore, divorce was granted on the condition of husband to provide one bedroom flat and deposit Rs. 2 lacs for welfare of wife.

14. In the case of B. Bhagat v. D. Bhagat, reported in (1994) 1 SCC 337, in defence, averments made by wife in written statement alleging the husband and his family members were lunatics or suffering from mental imbalance, it was pointed out that the allegations made in the pleadings and cross- examination of husband constituted mental cruelty on the husband and therefore, divorce was granted holding that the allegations and counter allegations made by the parties, delay in disposal of the proceedings and the fact that marriage had irretrievably broken down. It is also to be noticed that while granting decree of divorce, Hon. Apex Court has further made it clear that the relief was granted in peculiar features of the case.

15. Hon. Supreme Court in the case of Romesh Chander v. Smt. Savitri, reported in 1995 (1) MPLJ 140, while considering the impact of decision rendered in the case of V. Bhagat (supra), has observed that the continuance of martial alliance for name sake is prolonging the agony and affliction. It cannot be disputed that the husband has not been dutiful and conscious of his responsibilities either towards his wife or his son. He did notcontribute anything towards upbringing of the child. Yet the marriage being dead, continuance of it would be cruelty, specially when the child born out of the wedlock of the appellant and the respondent as far back as 1968 and having now grown up and being in service. The appellant has expressed remorse for his conduct and willing to compensate for his past mistakes by transferring the only house in his name in favour of his wife. Considering these facts and circumstances of the case and exercising powers under Article 142 of the Constitution of India, it was directed that the marriage between appellant and the respondent shall stand dissolved subject to the appellant transferring the house in the name of his wife. Thus, this power cannot be exercised by the Trial Court or even by the High Court, unless one of the grounds specified under the provisions of Hindu Marriage Act, is proved.

16. In the case of R, Balasubramanian v. Smt. Vijayalakshmi Balasubramanian, reported in AIR 1999 SC 3070, where husband alleging that wife all through out suspected that he had extra martial affairs and husband's allegation are that wife had sexual intercourse with other person. It was held that such a false allegations amount to cruelty. In the present case also, it has been found proved from the evidence on record, that the wife was suspecting illicit connection of husband with his Bhabhi. Admittedly, allegations were not raised as specific plea in the written statement nor the allegations were proved by any evidence, therefore, the allegations are certainly false to the knowledge of wife and therefore, very well amounts to cruelty also on their part.

17. Taking into consideration the facts and circumstances and evidence as brought on record, together with the implications arising under the various decisions, of the Apex Court and this Court referred to hereinabove, the husband is entitled for decree of divorce and therefore, learned Trial Court has committed no error in granting the same.

18. Consequently, this appeal fails and is dismissed.