FIRST APPEAL No. 140 OF 2001 Against the judgment and decree dated 17.01.2001 passed by Sri Pradeep Kumar, 2nd Additional District Judge, Vaishali at Hajipur in Original Suit No.5 of 1997. SANJAY KUMAR GUPTA ………. Petitioner-Appellant Versus SMT. SUNITA DEVI ……… Respondent-Respondent ******** For the Appellant : Mr. Ray Shivaji Nath, Sr. Advocate Mr. Shambhu Nath, Advocate with him For the Respondent : Mr. Rajesh Prasad Choudhary, Advocate Dated : 1st day of August, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The husband, Sanjay Kumar Gupta has filed this First Appeal against the judgment and decree dated 17.01.2001 passed by Sri Pradeep Kumar, the learned Additional District Judge, Vaishali at Hajipur in Original Suit No.5 of 1997 whereby the learned Court below dismissed the application for divorce filed by the appellant under Section 13 of the Hindu Marriage Act. (2) The appellant filed the application originally for judicial separation. However, it appears that the plaint was amended in the year 1999 and a decree for divorce and in the alternative for a Mungeshwar Sahoo, J. 2 decree for nullity of marriage was prayed for. The appellant’s case is that marriage took place between them on 26.02.1996. At the time of marriage, it was not disclosed to the appellant that the respondent was suffering from eye disease i.e. retina pigmentation which is incurable eye disease and affect children also. This fact was fraudulently concealed prior to marriage negotiation. Had the aforesaid fact been disclosed, the petitioner would not have married with the respondent. After marriage, the respondent lived in the house of petitioner from 27.02.1996 to 02.03.1996 and then her brother took her. She went with her brother taking all the ornaments and she never brought again the said ornaments. The petitioner brought her on 28.05.1996 and then for the first time, he came to know that the wife is suffering from the said eye disease. The petitioner obtained photocopy of prescription from the father-in- law and got her treated by eye specialist doctor at Lehariasarai and Dr. S.P.Sinha at Muzaffarpur. Then he took her to Delhi and treated her by Dr. Arun Shetty, famous eye specialist in Apollo Hospital and also by Dr. Ausafur Rahman who told the petitioner that the disease is incurable and also told that the children that may be born from the respondent may also be affected. At that time, the respondent was pregnant. Hearing that the child will be affected by the said disease, the respondent desired to abort the child to which the petitioner and his father was not agreeable but they succumbed to the desire of the respondent and the child was aborted on 07.09.1996 by lady doctor, Sushma Sinha at Hajipur. Thereafter, she went to her parent’s house on the day of Chhath on 17.11.1996 3 and thereafter, in spite of repeated request, the respondent never came back to the petitioner’s house. (3) The further case is that on 31.12.1996, the grandmother of the petitioner expired. When she was informed to come to the petitioner’s house, she did not come. On 14.01.1997, the petitioner went to bring her and requested to fix a date for Ruksadi but the respondent and her father abused and the petitioner was not even asked to sit. This uncalled for treatment of cruelty with the petitioner came as severe shock to the petitioner. When the petitioner asked directly to the respondent as to whether she will go with him, she said that anybody who will try to take her from her Naihar would be beaten with Chapals. The petitioner then returned. The petitioner was again sent by his father with Rabindra Prasad on 19.03.1997 but the respondent and her father repeated the same threatening. Then the petitioner suggested for divorce by consent whereupon the respondent stated that when she did not recognize the marriage at all, there is no question of signing any petition. She also told that if anybody will come to take her, his leg would be broken. Because of this unparliamentarily behaviour of the respondent and her father, it has become absolutely impossible to continue to remain married. On these grounds, the appellant prayed for decree for divorce. (4) It may be mentioned here that the respondent appeared in the Court below but neither she filed written statement nor contested the case. 4 (5) The appellant examined 5 witnesses and, thereafter the learned Court below after considering the materials and pleadings came to the conclusion that the petitioner prayed for a decree of divorce under Section 13 on the ground that she is suffering from eye disease but on that ground, no decree for divorce can be granted as it is not a ground specified in Section 13 of the Hindu Marriage Act. On this finding, the learned Court below dismissed the divorce suit. (6) Mr. Ray Shivaji Nath, the learned senior counsel appearing on behalf of the appellant submitted that the learned Court below has not appreciated properly the case of the appellant. The appellant’s case is that the fact of eye disease was not disclosed to the petitioner-appellant prior to marriage and had the same fact been disclosed to the petitioner, he would not have married her. Therefore, the case of the petitioner was that, consent of the petitioner was obtained by playing fraud and secondly, that the petitioner prayed for decree of divorce on the ground that the wife treated him with cruelty but the learned Court below has not at all considered the question of cruelty. The learned counsel relied upon various decisions which shall be considered one after other. The learned counsel further submitted that when the grandmother of petitioner died in December 1996, the respondent did not come which itself constitute cruelty. The learned Court below did not consider this fact also. The petitioner has categorically adduced evidences in support of cruelty that when he went to bring her, he was abused, misbehaved and even threatened to dire consequences twice which also constitute cruelty but the learned Court below has 5 not at all considered these evidences and wrongly dismissed the case of the petitioner-appellant. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside and the appellant’s suit for divorce be decreed. (7) On the other hand, the learned counsel appearing on behalf of the respondent submitted that the condition of the respondent is so pitiable that she is unable to come to the Court and defend her case properly. The learned counsel submitted that on humanitarian ground he himself helped her and persuaded her to come to the Court and then anyhow she came to the Court for conciliation purpose. The learned counsel submitted that no doubt, because of the said pitiable condition and paucity of fund, she could not file the written statement nor contested the suit in the Court below but it appears that the learned Court below has rightly dismissed the appellant’s case. Therefore, the same cannot be interfered with. The learned counsel submitted that an application for interim maintenance under Section 24 of the Hindu Marriage Act has been filed by the respondent being I.A. No.4469 of 2011 on 07.07.2011. Pressing this application, the learned counsel for the respondent submitted that from the date of filing the Matrimonial Case, the petitioner-appellant has not given a single farthing to her and she is living in her father’s house in a miserable condition. She has no source of her livelihood whereas the petitioner has well established kirana shop at Garaul Chowk from which he is earning more than Rs.50,000 per month. Further, the petitioner is only son and has got 10 bighas of agricultural land. The learned counsel further submitted that the appellant forced the respondent to live in 6 Naihar after taking all the belongings including the ornaments. In fact, written statement was filed which is available on record but the learned Court below wrongly stated that no written statement was filed. The suit proceeded at Hajipur, Vaishali and the respondent was living at Muzaffarpur in her Naihar, she could not contest the suit properly because of want of money as well as assistance of any person. On these grounds, she prayed for interim maintenance. It may be mentioned here that on 07.07.2011, hearing of both side was concluded and the judgment of this case was reserved. On the same very day, this application under Section 24 of the Hindu Marriage Act was filed. (8) From perusal of the record, it appears that earlier both the parties were directed to be present physically in my Chambers for conciliation and pursuant to that direction, on 27.06.2011, both the parties were present in the Chambers. In spite of my best effort, the appellant did not agree to keep the respondent whereas the respondent is ready to reside with the appellant in presence of the Advocates of both the sides. When conciliation proceeding failed, this case was heard on merit. (9) In view of facts and circumstances of the case and the submission of the parties, the points arise for consideration in this appeal is as to “whether the appellant has been able to prove cruelty as alleged by him” and “whether he is entitled for a decree for divorce on that ground” and “whether the impugned judgment and decrees are liable to be set aside?” 7 (10) As stated above, the petitioner-appellant has examined 5 witnesses. P.W.1 is formal witness. P.W. 2, Ashok Prasad has stated that at the time of marriage negotiation, it was told that the respondent is healthy. The eye disease was not disclosed. She lived in the house of appellant for four days and then went with her brother. She took her cloths and ornaments. When the petitioner went to call her, he came to know that the respondent is suffering from eye disease. Therefore, this witness is also not on the point of cruelty. (11) P.W. 3, Rabindra Prasad has stated that on 19.03.1997, he had gone to the house of respondent at the instance of the petitioner-appellant and his father. He met with the father of the respondent and the respondent, herself and asked for Ruksadi but they refused and said that anybody who will come again, his leg will be broken. It may be mentioned here that according to the case of the appellant, he along with this witness had gone second time whereas in the evidence, this witness clearly stated that he alone had gone to the house of the husband. This clearly falsifies the case of the appellant about the incident dated 19.03.1997. P.W.4 has only stated about the eye disease. He has stated that the respondent did not disclose about the eye disease at the time of negotiation of marriage. Therefore, this witness is not on the point of cruelty. P.W.5 is the petitioner-appellant himself. After narrating about the eye disease of the respondent, he has stated that the doctors disclosed that the eye disease is incurable. He has further stated that on 17.11.1996, she went to her Naihar and since then, she did not come. On 31.12.1996, mother-in-law died and she was 8 called but she did not come. Thereafter on 12.01.1997, he went to call her but he was not told to sit and refused to send her. The respondent’s father told that if you give pressure then criminal case will be filed and respondents will be married elsewhere. When he asked the wife, she also did not agree and told that she will assault with Chapal. He returned and told his father. On 19.03.1997, his father sent Rabindra Prasad and petitioner again. As stated above, so far this part of the evidence of this petitioner is falsified in view of the evidence of P.W.3, Rabindra Prasad. The evidence of P.W.3 and evidence of this witness regarding the occurrence dated 19.03.1997 is contradictory and cannot be relied upon. (12) From the above discussion, it appears that there is general allegation that at the time of marriage, the eye disease was not disclosed. The appellant came to know about the eye disease in May 1996. In support of the fact that the respondent is suffering from eye disease, the appellant has produced Exhibit-2 series, the medical prescriptions and the bills. From perusal of this Exhibit-2 series i.e. Exhibit-2 to Exhibit-2/3, it appears that all these medical prescriptions and/or the medical bills are from the month of May 1996 to October 1996. There is no evidence on record to show that in fact prior to marriage which took place on 26.02.1996, the respondent was suffering from any eye disease. Except the bald statement of the witnesses that this fact was not disclosed at the time of marriage negotiation, there is nothing on record to prove the said fact. On the contrary, from the evidence, it appears that after marriage she was attacked with the disease. Moreover, this is not a ground of divorce under Section 13 of the Hindu Marriage Act. 9 (13) The learned counsel for the appellant submitted that regarding cruelty, the learned Court below has not at all considered the evidences. According to the learned counsel, when the grandmother of the appellant died in December 1996, the respondent did not come. So far this fact is concerned, there is one line evidence of the appellant at paragraph 4 to the effect that on 31.12.1996, grandmother died and the respondent was called but she did not come. The witness has stated “bulawa gaya”. There is no specification as to who had gone to bring her. Whether any information was sent or any person was asked to bring her, there is nothing on record. None of the other witnesses have stated that in fact in December 1996, the grandmother of the appellant died. There is no evidence that the petitioner went to bring her. The only evidence is “bulawa gaya”. In my opinion, therefore, this is not sufficient and reliable evidence to come to a conclusion that in fact information was given or she after coming to know about the death, she refused to come with any person sent by the appellant to participate in shradh. (14) The learned counsel for the appellant next submitted that when the appellant went to call her on 14.01.1997, he was abused and was not even asked to sit and threatening was given that criminal case will be filed which constitute cruelty. So far this submission is concerned, this is the only evidence regarding alleged cruelty. The question is whether even if taking the statement of appellant to be gospel truth whether it will constitute cruelty? In my opinion, never, because the appellant is trying to make a case of cruelty and even giving false evidences to the effect that 10 subsequently, he again went with P.W.3 but this part of his evidence is not supported at all by P.W.3. According to P.W.3, he alone went to the appellant’s in-laws house. In such circumstances, it is not safe to rely upon the only evidence of the appellant. Moreover, there was only altercation between the father-in-law and the respondent to the effect that he will be implicated in criminal case and that she refused to come and that he was not asked to sit. (15) It is well settled principles of law that a decree in any matrimonial proceeding is to be made only upon strict proof of the ground relied upon by the petitioner and it makes no difference whether the proceeding is defended or not. Here it appears that the appellant gave evidence and said exactly following the terms of the act that he was treated with cruelty. It is not enough for one to come forward and say something exactly following the terms of the act. There is no clear explanation. The standard of proof in all proceedings under the act is that the Court must be satisfied on a preponderance of probability that the ground for relief is proved and normally the Court requires that the evidence of a spouse who charges the other spouse should be corroborated. It depends on the facts of each case. No doubt in all cases the Court should not insist for corroboration but in the present case, the facts and the evidences produced by the appellant is so shaky that it needs corroboration. One part of the evidence of appellant as P.W.5 is belied by the evidence of P.W.3. There is no reason as to why the other part of the evidence of P.W.5 be relied upon without there being any corroboration. Moreover, the nature of allegation does not constitute cruelty. Merely because the appellant stated that 11 because of this cruelty, he is unable to carry on the marriage status, it cannot be said that the said act constitutes cruelty. It may be remember always that proceeding under the Hindu Marriage Act are not of the character of ordinary suits and the standard of proof is that the Court must be satisfied. The Court must be vigilant to see that all the requirements of law are fulfilled. (16) The learned counsel for the appellant relied upon a decision reported in 2009(1) B.B.C.J. IV-235(Suman Kapur vs. Sudhir Kapur). From perusal of the said decision, it appears that in that case, it was admitted fact that the appellant aborted third time without consent of the husband. The facts are different. The status of the family in that case is very high whereas in the present case, the status of the family is of low standard. In my opinion, the said judgment is not applicable in the present case. (17) The learned counsel next relied upon 2001(1) P.L.J.R. 456(Rajkumar Jaiswal vs. Smt. Mamta Jaiswal). From perusal of the judgment, it appears that there was willful denial of cohabitation and sharing of common bed between the parties, therefore, this decision is also not applicable. (18) The learned counsel next relied upon 2007(1) P.L.J.R. 81 Supreme Court (Rishikesh Sharma vs. Saroj Sharma). In support of this judgment, the learned counsel for the appellant submitted that the marriage between the parties has irretrievably broken down with no possibility of parties living together, therefore, the divorce should be granted. It appears that in that case there were several criminal litigations between the parties and it was not 12 possible for her to prosecute criminal case against the husband and at the same time, continue to reside with her husband. In the present case, this is not the fact and moreover, we have seen that the marriage was held on 26.02.1996 and this divorce case has been filed just after completion of one year. This ground alleged by the appellant is not a ground for divorce. If on this ground, in the present case, divorce will be granted then whenever a divorce case is filed ultimately till final disposal of the said divorce case it would take more than 12 to 15 years then in that cases on this ground, divorce will be granted which cannot be considered to be intention of the legislature. The fact of the decision relied upon by the appellant is entirely different in the present case. Here, we have discussed the evidence and materials available on record and in my opinion, none of the grounds mentioned in Section 13 are applicable. It appears that the case was pending before the Court and it took time for the decision. Because of time taken by the Court to decide a matrimonial proceeding, the appellant cannot be granted a decree for divorce because the proceeding itself or the appeal itself took such a long period and the parties are living separately for this long period. In other words, a party cannot be granted a decree because of long pendency of the proceeding in the Court. Here, the wife is always ready to live with the husband. In the Conciliation proceeding, she expressed her willingness but the appellant flatly denied to keep her. This conduct of the appellant shows that in one hand, he is saying that the marriage has irretrievably broken down and on the other hand, he refused to keep her wife. The facts appearing from the pleading and the evidence is 13 required to be considered as to whether because of the said fact the parties were living separately and there is no possibility of their living together. Here, as stated above because of the conduct of the appellant, he is not keeping the wife. In such circumstances, only because the husband is saying that the marriage has irretrievably broken down it cannot be considered to be so. (19) The learned counsel next relief upon 2005(4) P.L.J.R. Supreme Court 195(Gita Jagdish Mangtani vs. Jagdish Mangtani) and submitted that the wife left the husband’s house and no attempt on her part was made to the house of the appellant. From perusal of the said decision, it appears that in that case, the wife was working as teacher and even during the holiday, she never admitted to come to her husband. The fact is admitted. Here, the case is otherwise. The wife is always ready but the husband is refusing to keep her. (20) In view of my above discussion, I find that the appellant has failed to prove the fact that eye disease was not disclosed prior to negotiation of marriage. I also find that the appellant failed to prove that prior to negotiation of marriage, the wife was suffering from any eye disease. I also find that the appellant failed to prove cruelty and the appellant is trying to avoid the wife by hook or crook and even to achieve his this aim, he is adducing evidences which are contradicted by his own witnesses as discussed above. So far I.A. No.4469 of 2011 filed by the respondent is concerned, the same has been filed on the last date of hearing on which date, the case was reserved for judgment, therefore, there is no material evidence and facts available on 14 record about the income and about the status of the appellant. Therefore, at this stage, this Court is handicapped in awarding any interim relief. However, if so advised, the respondent is at liberty to claim maintenance under appropriate provision before appropriate forum. With this observation, the Interlocutory Application is disposed of. (21) In view of my above discussion and finding, I find no reason to interfere with the impugned judgment and decree. Therefore, the finding of the learned Court below is hereby confirmed. (22) In the facts and circumstances of the case as discussed above, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed with cost of Rs.25,000 to be paid by the appellant to the respondent within one month otherwise the respondent will be entitled to realize the same through process of law. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 1st August, 2011 Saurabh/A.F.R.