Sanjay Agrawal. Vs. Smt. Renu Agrawal. - Court Judgment

Excerpt:
[altamas kabir ; cyriac joseph, jj.] - constitution of india - articles 32 - remedies for enforcement of rights conferred by this part -- in case of consortium, the partner developing the software application should have cmm level 3 certification and the bidder/lead partners of the consortium (in case of consortium, should have an active (valid at least till june, 2010) iso 9001:2000 certification at the time of submission of the bid. the documents to be submitted along with the bid remained the same. the criteria relating to the documents to be submitted as qualifying documents included a copy of the quality certificate/documentation of quality policy. the documents to be submitted along with the bid remained unchanged. mr. salve submitted that the said condition was duly satisfied by.....1. this first appeal has been preferred by the appellant against the judgment and decree dated 11/12/2001 passed in hindu marriage case no.19a/1998 by the second additional district judge, hoshangabad by which the application filed by the appellant under section 13 of the hindu marriage act, 1955 (hereinafter referred to as the 'act, 1955') was dismissed.2. it is admitted that the marriage of the appellant and the respondent took place on 16/2/1997 at itarsi. they lived at itarsi for two months after their marriage. thereafter the respondent visited to the appellant's house in the month of april, 1997 after her short stay of few days at her parents' house. in her second visit she lived upto july, 1997.3. the appellant has filed an application under section 13 of the act, 1955 before the.....

Judgment:
1. This first appeal has been preferred by the appellant against the judgment and decree dated 11/12/2001 passed in Hindu Marriage Case No.19A/1998 by the Second Additional District Judge, Hoshangabad by which the application filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act, 1955') was dismissed.

2. It is admitted that the marriage of the appellant and the respondent took place on 16/2/1997 at Itarsi. They lived at Itarsi for two months after their marriage. Thereafter the respondent visited to the appellant's house in the month of April, 1997 after her short stay of few days at her parents' house. In her second visit she lived upto July, 1997.

3. The appellant has filed an application under Section 13 of the Act, 1955 before the trial Court on the ground that, in July, 1997 the respondent left the house of the appellant to perform the ceremony of Raksha Bandhan and thereafter she did not come back. Her behaviour with the appellant and his family members was discourteous. She was in the habit to insult the appellant and his family members. She was quarrelsome. She insisted upon the appellant to live separately from the family, though she was fully aware of the fact that the appellant was a member of the joint Hindu family and he did not have any capital to start his own business. The appellant tried to convince her that it is not possible for him to live separately from the family, then the respondent threatened to lodge a case for dowry demand. In July 1997, the respondent left the house of the appellant with a declaration that she will return back to the appellant's house only when he will start living separately from his family. The appellant tried his level best to bring the respondent back. Even at Burhar the appellant and his father tried for conciliation with the help of some reputed persons of the society, but the efforts of the appellant remained fruitless. Ultimately, in the year 1998 the appellant filed an application under Section 13 of the Act, 1955 before the trial Court. Again in the year 2000, he amended his application to the effect that the respondent has lodged an FIR under Section 498-A of IPC against him and his family members, which amounts to be a cruelty against the appellant.

4. The respondent in her reply denied all the allegations made in the application. She has pleaded that it was impressed upon her parents that the appellant is an owner of "Sanjay Trading Company" which is a big shop of grocery and general stores, but the appellant did not have any stand in the family. The appellant had lost his mother in the past and at the time of his marriage stepmother was there whose behaviour was worst with the respondent. She used to torture her in every manner. Two younger brothers of the appellant were already married and the appellant was elder one. She never insisted for separation, on the contrary she was tortured for demand of dowry, and therefore, she was thrown out of the family. In reply to the amendment, she had pleaded that when she received a summon of the present case, she thought that no conciliation is possible at present, hence she lodged an FIR against the appellant and his family members on the basis of factual position, therefore, she had requested to dismiss the application.

5. After considering the evidence adduced by the parties and pleadings of the case, the learned 2nd Additional District Judge has found that the allegations of cruelty were not proved, and therefore, the appellant is not entitled to get divorce from the respondent, hence the application filed under Section 13 of the Act, 1955 by the appellant has been dismissed by the impugned judgment.

6. Before hearing the final arguments in the present matter, reconciliation proceedings were held by this Court, but they could not produce results, thereafter we have heard both the parties at length through their learned counsel.

7. Learned counsel for the appellant, in nutshell, has submitted that the behaviour of the respondent was worst. She was in habit to insult the appellant and his family members. Her father was informed in April, 1997 regarding her behaviour and activities, but it was an effect-less effort. When she came back in the appellant's family for the second time, she repeated similar activities. She was insisting upon the appellant to live separately from his family members. The appellant and his family members tried for reconciliation with the help of some reputed persons of the society at Burhar, but such efforts became fruitless. Learned counsel for the appellant has further submitted that the respondent had left her husband's house herself and she deserted the appellant unnecessarily. At present relations of the parties have come down to irretrievable breakdown of marriage, and therefore, the learned Court below has erred in dismissing the divorce application of the appellant.

8. On the contrary, learned counsel for the respondent has submitted that there was no cruelty proved from the side of the respondent. Actually the stepmother of the appellant was bitter with the respondent. The respondent in her statement before the learned trial Court has explained the cruelty of her mother-in-law in detail, and therefore, the learned 2nd Additional District Judge has rightly dismissed the divorce application of the appellant. Learned counsel for the respondent has further submitted that the appellant did not take any ground of desertion before the learned Court below, and therefore, no issue was framed on the ground of desertion, hence the appellant cannot raise such a new ground before this Court at this stage. He has further submitted that there is no ground mentioned in Section 13 of the Act, 1955 regarding "irretrievable breakdown of marriage". It is the prerogative of the Hon'ble Apex Court under Article 142 of the Constitution of India to provide such relief on such basis, but since there is no ground in Section 13 of the Act, 1955, no decree of divorce can be passed on the basis of that ground.

9. On perusal of the record of the Court below, it is clear that the appellant did not take any ground of desertion in his divorce application. Actually the marriage of the parties took place on 16/2/1997 and the appellant has filed the divorce application on 22/7/1998 i.e. within two years of their marriage, and therefore, ground of desertion under Section 13(1) (ib) of the Act, 1955 was not available to the appellant, hence no issue was framed in the trial. Learned counsel for the appellant has relied upon the judgment of this Court i.e. "Manju Rajak v. Parvinder Singh" [2010 (2) MPLJ 543], but since no ground for desertion is pleaded in the divorce application, the above cited case is of no help to the appellant at present. Under these circumstances, at this stage "desertion" cannot be considered to be a ground of divorce.

10. Regarding cruelty, if the evidence adduced is examined, then it would be clear that the appellant has failed to prove the cruelty of the respondent. Appellant examined only three witnesses in his favour including himself. There is a material contradiction in the statement of these three witnesses namely Sanjay (PW-1), Udit Narayan (PW-2) and Govind Prasad (PW-3). Also there is contradiction between the statements of these three witnesses with the pleading made by the appellant. Udit Narayan (PW-2) is the friend of the appellant, who quoted one incident that when the appellant directed the respondent to make tea for him, then she refused to make tea. But there is no such pleading in the appellant's application. It is true that every incident of cruelty cannot be pleaded, but even the appellant Sanjay (PW-1) did not say anything about this incident in his evidence, therefore, it is clear that the incident quoted by Udit Narayan (PW-2) is an after thought. However, it is clear from the evidence adduced by the parties that younger brothers of the appellant were already married, and therefore, it is possible that the kitchen was under the control of stepmother and two sister-in-law of the appellant, hence the respondent was unable to make tea for the friend of the appellant. It was for the appellant to observe the reason for such denial. It seems that he knew the reason, and therefore, he did not say anything in his evidence regarding this fact.

11. Similarly, Sanjay (PW-1) and Udit Narayan (PW-2) have stated before the trial Court that when they reached Burhar to bring the respondent, the respondent did not permit them to stay in her house. She had stated that her father is not at home and till then they have to manage their own stay. The conduct of the respondent seems to be reasonable, as she was under no moral obligation to accommodate her husband and his friend as to be a guest at her parent's house. Also with such strained relations, there was no possibility that the respondent could show her affection in permitting them to stay in the house in the absence of her father. It was for her to talk with the appellant and his friend and it was possible that they could assault her, therefore, the conduct of the respondent in such particular instance seems to be reasonable.

12. Sanjay (PW-1) and his father Govind Prasad (PW-3) have stated before the trial Court in a different manner. Sanjay says that the respondent was in the habit of adding too much chillies in the food, whereas his father alleges regarding addition of more salt in the food. He did not say anything regarding addition of chillies. Similarly, Sanjay (PW-1) did not complain regarding her behaviour for the first two months of the beginning, whereas his father Govind Prasad (PW-3) informed that in first two months, behaviour of the respondent was discourteous and quarrelsome, and therefore, the fathe of the respondent was called and he took his daughter to his house with the assurance that he would convince his daughter. The appellant did not say anything for first two months of his marriage. He admits that in that period she did not refuse for having cohabition. There is no pleading in the application of the appellant about the fact that the father of the respondent was called and the respondent was sent back with her father with some complaints. In such circumstances, the evidence of Govind Prasad (PW-3) prima facie cannot be accepted on the basis that his statement is contrary to the pleadings, but the respondent Renu Agrawal (DW-1) in her statement informed the trial Court that she was sent back with her father due to some dowry demand, therefore, it seems that evidence given by witness Govind Prasad is correct to the fact that the respondent was sent back after two months of her marriage after calling her father. But, if the reason was so, which is stated by Govind Prasad (PW-3), then what was the problem to the appellant that he has hidden this fact in his statement and in his pleadings, therefore, the act of the appellant indicates that it is possible that the respondent was sent back with her father to create pressure of dowry demand, hence being guilty conscious, the appellant has no cheek to say anything regarding that event.

13. Renu Agrawal (DW-1) in her statement stated so many things about her torture in the appellant's house. Learned counsel for the appellant submits that she alleged wildly without any basis and no such pleadings were made by the respondent in her reply to the application. He further submits that no such suggestions were given regarding such instances to appellant Sanjay (PW-1) and his father Govind Prasad (PW-3) in their cross examination. It is true that the respondent did not plead regarding such instances about the cruelty of her mother- in-law. It is also true that no such example was put forward in cross examination of Sanjay (PW-1) and his father Govind Prasad (PW-3), but the conduct of the respondent is clear that she has lodged an FIR for commission of offence under Section 498-A of IPC against the appellant and his family members after receiving summons of the divorce application, and therefore, she kept silence about the torture caused to her, hence the allegations made by the respondent cannot be thrown away in such a manner. It is clear from her conduct that some of the allegations made by her are correct. She has stated before the learned Court below that her mother-in- law prohibited her to make physical relation with the appellant in her second visit and therefore, she did not have such relation with the appellant in her second visit. The appellant admits that there was no problem in cohabitation with the respondent in her first visit, but in the second visit she was denying to have such relations.

14. The respondent lived with the appellant only for four months after the marriage in her two visits, and therefore, in such a small period, she could not do such alleged cruelty, which can be a ground for divorce. It is clear that she was thrown out from the family twice.

15. Both the parties are alleging the cruelty against each other, therefore, to know the actual controversy, there was a need to examine an independent witness before the Court below. It is admitted by the appellant that he and his father informed these facts to some reputed persons of the society at Burhar, and therefore, such reputed persons, who were not influenced by father of the respondent could be the independent witnesses to tell the actual controversy between the parties, but no such witness is examined before the Court below and even no explanation has been given for such non-examination.

16. Learned counsel for the appellant submits that it was the duty of the respondent to examine such witnesses, but such submission cannot be accepted, because cruelty of the respondent was alleged by the appellant in his application, hence it was for him to prove this fact against the respondent and if he has proved the same, then it would be the responsibility of the respondent to rebut it. Unfortunately, the allegations made by the various witnesses of the appellant are contradictory amongst each other and also contradictory to the pleadings. In such circumstances, it cannot be said that either the allegations made by the appellant are correct or the allegations made by the respondent are not correct, therefore, the learned Court below was correct in holding that the appellant could not prove the cruelty of the respondent.

17. Learned counsel for the appellant has placed reliance on the decisions rendered by the Hon'ble Apex Court in the case "Suman Kapur v. Sudhir Kapur", [(2009) 1 SCC 422] and "U. Swetha v. State", [(2009) 6 SCC 757], in which cruelty was considered by the Hon'ble Apex Court. But, it is clear from the above two judgments, that cruelty can be assessed only on the basis of bundle of facts in each case, and therefore, when the case of the appellant is not established on factual aspect, then the above dictum are of no help to the appellant.

18. Learned counsel for the appellant has further submitted the respondent lodged an FIR for commission of offence under Section 498-A of IPC after two years of the marriage against the appellant and his family members, and therefore, it amounts to be a cruelty. This contention of learned counsel for the appellant cannot be accepted. It is very much clear from the record that the respondent did not lodge any FIR till filing of divorce application by the appellant, and therefore, by her such conduct, no ground of cruelty was available at the time of filing of divorce application. She has every right to file an FIR to express her grievances against the appellant and his family members, and therefore, subsequent FIR after filing of the divorce application does not create any ground of cruelty.

19. Learned counsel for the appellant in the alternate submits that since July 1997 the respondent is not living with the appellant and so many reconciliation proceedings took place between them, but the same were fruitless. The appellant is deprived of the company of his wife since last 13 years, and therefore, it is a case of irretrievable breakdown of marriage, hence a decree of divorce be given on this count. In support of his contention, he has placed reliance on the following judgments of the Hon'ble Apex Court and this Court:- (i) "Sanghamitra Ghose v. Kajal Kumar Ghose", (2007) 2 SCC 220.

(ii) "Durga Prasanna Tripathy v. Arundhati Tripathy", (2005) 7 SCC 353.

(iii) "Naveen Kohli v. Neelu Kohli", (2006) 4 SCC 558. (iv) "Madhuri Aswani v. Arjundas Aswani", 2007(3) MPLJ 550.

Learned counsel for the appellant further submits that in all above judgments, decree of divorce was granted in such cases where it was found that the marriage of the parties is broken and it was not possible that they could live together with each other, then decree of divorce was given.

20. However, in the above cited judgments, the case of "Naveen Kohli" (supra) is most important, in which the Hon'ble Apex Court has held that no such ground regarding irretrievable breakdown of marriage is available in Section 13 of the Act, 1955, and therefore, it should be a statutory ground and without such amendment in the Act no decree of divorce can be passed. In the said judgment, the Hon'ble Apex Court has advised that legislature must consider the opinion of their Lordships and to make such provision in the Hindu Marriage Act, 1955.

21. In the case of "Sanghamitra Ghosh" (supra) the Hon'ble Apex Court has considered the judgment of "Naveen Kohli" (supra) and has expressed the opinion that though there is no ground mentioned in Section 13 of the Act, 1955, however the Apex Court can exercise the jurisdiction given under Article 142 of the Constitution of India, and therefore, in Sanghamitra' case the Hon'ble Apex Court has granted decree of divorce on the ground of irretrievable breakdown of marriage.

22. The dictum laid down by the Hon'ble Apex Court in the Sanghamitra's case (supra) and Naveen Kohli's case (supra), taken jointly, then it would be clear that since there is no ground available regarding "irretrievable breakdown of marriage" in Section 13 of the Act, 1955, no decree of divorce can be given in absence of such statutory provisions, but decree of divorce can be given with the jurisdiction of Article 142 of the Constitution of India. But no such jurisdiction is available to this Court under Article 142 of the Constitution of India, hence in absence of any provision in Section 13 of the Act, 1955, no decree of divorce can be passed by this Court on the ground of "irretrievable breakdown of marriage".

23. In the light of the above discussions, it is clear that no decree of divorce can be passed by this Court in favour of the appellant. The learned 2nd Additional District Judge has rightly dismissed the appellant's application, hence the appeal of the appellant deserves to be dismissed.

24. In the result, this appeal does not succeed and is hereby dismissed with costs. The appellant shall bear the cost of the respondent also.