Mat.App. 1/2008 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B.K. SHARMA B. K. Sharma, J These two appeals, one by the wife and the other by the husband have ari sen out of the same judgement passed by the learned Principal Judge, Family Cour t, Kamrup, Guwahati. While MAT Appeal No. 1/2008 has been filed by the husband, the other appeal i.e. MAT Appeal No. 19/2007 has been filed by the wife. Both th e appeals have been heard together and are being disposed of by this common judg ement and order. 2. The appellant husband had instituted case FC(Civil) No. 23/2005 seeking a decree of divorce on the ground of cruelty and adultery on the part of the app ellant wife. The brief facts which may be required to be stated to adjudicate th e present appeals are indicated below. 3. The appellants husband and wife got married on 26.9.1995 as per the Hind u rights and rituals and thereafter started living together. Out of the said wed lock, a male child was born. As per the allegation made by the husband, the appe llant wife who is a permanent employee (LDA) of the Directorate of Sericulture, Govt. of Assam at Guwahati, started misbehaving with him. She also humiliated hi m by taking money from two of his business partners on 18.11.1995 in his absence . The business partners had informed the appellant husband that the appellant wi fe had again made request to give her Rs. 1,20,000/- (Rs. 60,000/- each). 4. According to the allegation made in the application seeking divorce, the aforesaid fact was never informed to the appellant husband by his wife. Further allegation made was that she made attempt to damage the gift items, such as, TV , CD player, given by the said two business partners at the time of marriage. Ac cording to the appellant husband, the brother of his wife at times came to his r esidence (rented house) and assaulted and abused him for making enquiries about the whereabouts of the aforesaid items given by the said two business partners. 5. According to the appellant husband, his life was made miserable by his w ife but he bore everything with the hope that things would improve. After the ma le child was born, it was the expectation of the appellant husband that he would be able to live a normal life with his wife. However, the appellant wife instea d of coming back to him lodged an FIR on 8.1.1997 purportedly in collusion with the members of her family against him. The allegation made in the FIR was the pu rported demand of Rs. 7 (seven) lakhs for construction of a house at Beltola, Gu wahati. On the basis of the FIR, a case was registered under Section 498(A) IPC, which forced the appellant husband to seek pre-arrest bail from this court. Acc ording to the appellant husband, he was also physically assaulted by his brother -in-law and snatched away Rs. 10,000/- from him. Situated thus, he had also lodg ed an FIR with the Basistha Police Station and on the basis of the same another case was registered. Relating to the same incident, the appellant wife and her b rother also lodged an FIR. It appears that the appellant husband also initiated proceeding under Section 107 Cr.P.C. 6. Another allegation made in the application was that on one occasion, the appellant husband had seen his wife in a compromising position with another per son, as a consequence of which he lost faith on his wife and started living sepa rately since then. After the said incident, the appellant wife also lodged an FI R with the Police on 10.12.2004 with the allegation of attempt to rape on their maid servant by her husband. 7. Detailing the aforesaid facts in the application, it was stated that in view of such incidents and virtual severance of any relationship of husband and wife, there was no possibility of leading a peaceful marital life and accordingl y a decree of divorce was prayed for. 8. The appellant wife resisted the prayer of the appellant husband. Admitt ing her marriage on 26.9.95 and birth of their son on 3.1.1997, she denied tha t she had made the life of her husband miserable. She also denied that she had t aken money from the two business partners of her husband etc. According to her, she had never shown any cruel behaviour to her husband nor forced him to live se parately. However, she admitted that she had lodged an FIR on 8.1.1997 against h er husband for demanding Rs. 7 lakhs. She also admitted the fact of lodging of a n FIR by her maidservant relating to the incident of attempting to rape her. She denied her relationship with any other person. According to her, she was falsel y implicated by her husband. 9. On the basis of the aforesaid pleadings and upon hearing the parties, th e learned Family Court framed the following issues :- 1. Whether there is any cause of action for the suit ? 2. Whether the respondent treated the petitioner with cruelty soon after th eir marriage by her behaviour and also by filling criminal cases against him? 3. Whether the respondent compelled the petitioner to live separately ? 4. Whether the petitioner is entitled to get a decree of divorce ? 5. To what relief / reliefs, the parties are entitled? 10. From the proceedings of the Family Court, it appears that attempts had b een made for reconciliation in terms of Section 23(2) of the Family Court Act bu t the same failed despite the court’s utmost persuasion. Thus the case had to be decided on the basis of the evidence adduced by both the parties. 11. The appellant husband examined three witnesses including himself and als o produced certain documents in order to establish his case. The appellant wife also examined four witnesses including herself. 12. On perusal of the evidence on record and upon hearing the parties, the l earned Family Court has allowed the prayer of the appellant husband decreeing th e suit filed by him and thereby dissolving the marriage solemnised on 26.9.1995 between the two appellants. However, while deciding the issue No.5, the learned Family Court has held that the appellant wife and her son should not be disturbe d from the possession of the house of the appellant husband in which they have b een living. Such a finding has been arrived at on the ground that a part of the house was constructed with the earnings of the appellant wife. Such a provision has been made under Section 23 of the Protection of Women from Domestic Violence Act, 2005. The direction issued is to the effect that the appellant wife and he r son should not be disturbed from their possession, occupation and enjoyment of the said premises. 13. While the appellant wife is aggrieved by the decree of divorce granted i n favour of her husband, the husband is aggrieved by the aforesaid direction reg arding occupation of his house by the appellant wife. Hence, they have preferred the respective appeals. 14. We have heard Mr. P.K. Roy Choudhury, learned counsel for the appellant husband as well as Mr. S. Medhi, learned counsel representing the appellant wife . We have also gone through the entire materials on record. 15. The above description of the facts leading to filling of the application for divorce would go to show that both the appellants all along had a strained relationship. There were cases and cross cases filed by both the parties against each other. While the appellant wife made the allegation of attempt to rape aga inst her husband, her husband also alleged adultery on her part. Thus, there was no mutual respect for each other, rather it was distrust, which was prevalent. 16. The learned Family Court while deciding the issue No. 2 & 3 has dealt wi th the allegation and counter allegation made by the parties and their conduct a nd behaviour towards each other. Posing the question as to whether their marriag e has irretrievably broken down, the learned Family Court upon a reference to th e factual aspect of the matter and the evidence on record has found that both th e parties had all along been quarrelling on maintenance of their respective fami lies, payment of School fees of their son, etc. They had even gone to the extent of lodging aforesaid FIRs including the FIR against the appellant husband under Section 498(A) IPC. The learned Family Court has taken due note of the fact tha t there was allegation and counter allegation of adultery. It is also on record that the appellant wife has instituted civil suit against the appellant husband for restoration of electricity connection into their house. 17. Neither party made any attempt to withdraw the serious allegation of adu ltery, rather insisted to prove the same by adducing evidence. From the evidence on record, it appears that so far as the allegation of attempt to rape is conce rned, no materials could be found by the police and a final report was submitted absolving the appellant husband from the said allegation. It has rightly been h eld by the learned Family Court that had there been any intention on the part of the appellant wife to live a peaceful life with the appellant husband, such fal se allegation would have been withdrawn. 18. Apart from the above, it is in the evidence that both the parties have been living separately for the last several years and there has been no attempt to reconcile the difference between them. It is in such circumstances, the learn ed Family Court has held that it is a case of break down of the marriage between the parties irretrievably and accordingly has granted the decree of divorce. 19. Cruelty as a ground of divorce is to be taken as a behaviour by one spou se towards the other, which causes reasonable apprehension in the mind of the la tter that it is not safe for him or her to continue the matrimonial relationship with the other. As has been held by the apex Court in the case Parveen Mehta Vs . Inderjit Mehta reported in (2002) 5 SCC 706, mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be d rawn from the facts and circumstances of the case. The approach should be to tak e the cumulative effect of the facts and circumstances emerging from the evidenc e on record and then draw an inference. 20. In the instant case, there has been mutual distrust between the parties even to the extent of alleging adultery. Coupled with this the appellant wife ha d also lodged FIR against her husband under Section 498(A) IPC. It is a case whe re the conduct itself is bad enough and par se unlawful or illegal. In such circ umstances, the injurious effect on the other spouse need not be enquired into or considered. 21. Learned counsel for the appellant husband has placed reliance on the dec ision of the Apex Court in the case of Suman Kapur Vs. Sudhir Kapur reported in (2009) 1 SCC 422, to emphasis on the element of mental cruelty, which was one of the grounds of divorce. Dealing with the concept of cruelty, it has been held t hat it is a course of conduct of one spouse which adversely affect the other spo use. 22. In Sujata Uday Patil Vs. Uday Madhukar Patil reported in (2006) 13 SCC 2 72, the Apex Court emphasising the need that matrimonial dispute should be decid ed in a pragmatic manner keeping in view the ground realities, observed that one of the factors most important being whether the marriage can be saved and the c ouple could live together happily and maintain proper atmosphere for rearing the child. In the said case as in the instant case, the learned District Judge made efforts for reconciliation and amicable solution but failed. It was held that n o useful purpose will be served even by setting aside the decree of divorce. 23. In the instant case as has been found by the learned Family Court and ha s been noticed by us, there is no possibility of any reconciliation by and betwe en the parties. Ever since their marriage, they have been leading a life of mist rust and distrust and even living separately, barring a few occasions during whi ch also there was no peaceful atmosphere with allegation and counter allegation made by each other. In such a situation, no useful purpose will be served by mai ntaining the marriage, which if maintained, would be only in the form but not wi th the real contents of marriage. 24. In view of the above, we are inclined to affirm the impugned judgement a nd decree dated 12.2.2007 passed by the learned Family Court and consequently th e MAT Appeal No. 19/2007 stands dismissed. 25. This now leads us to the other appeal i.e. MAT Appeal No. 1/2008, which has been filed by the appellant husband challenging the legality and validity of the direction of the learned Family Court. While answering the issue No.5, the learned Family Court has held that the appellant wife and her son are entitled t o keep the house of her husband and accordingly direction has been issued not to disturb them from their possession, occupation and enjoyment of the same. Such a direction has been issued admittedly on the basis of the provisions of Section 23 of the Protection of Women against Domestic Violence Act, 2005. The said Act has been promulgated to provide more effective protection of the rights of wome n guaranteed under the Constitution, who are victims of violence of any kind occ urring within the family and for matters connected therewith or incidental there to. 26. Aggrieved persons as defined in Section 2(a) of the Act means any women who is, or has been, in a domestic relationship with the respondent and who alle ges to have been subjected to any Act of domestic violence by the respondent. Th e act is applicable only in respect of domestic violence and the magistrate as d efined in Section 2(i) of the Act, is empowered to pass protection orders under Section 18 of the Act and as may be deemed fit and necessary. Such Magistrate is also empowered to pass interim order in a proceeding before him under the Act. It is this provision which has been invoked by the learned Family Court towards issuing the aforesaid direction, which in our considered view, is totally mispla ced. After severance of the marital tie between the parties, no such direction c ould have been issued by the family Court and that too under the provisions of t he aforesaid Act of 2005. 27. During the course of hearing of the appeals, it was submitted by the lea rned counsel for the parties that petitions for alimony, maintenance and custody of the child are pending adjudication before the Family Court. It is on the bas is of those applications, the questions of alimony maintenance etc. will have to be gone into but the learned Family Court issued the impugned direction falling back on the provisions of the aforesaid Act of 2005, which is not sustainable i n law. In that view of the matter, the particular direction issued under Issue N o.5 stands set aside and quashed. Consequently, the MAT Appeal No. 1/08 is allow ed. 28. Both the appeals are answered in the above manner. Registry shall send d own the LCR immediately alongwith the copies of this judgement and order.