x HIGH COURT OP CHHATTISGARH AT BILASPUR F.A.M. No. 28 OF 2006 APPELLANT RESPONDBNT Sanjay Bihari Agrawal Versus Smt. Sandhya Agrawal fc PostforU-02-2010 Sd/- N.K. Agrawal Judge HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLNT RESPONDENT F.A.M. No. 28 OF 2006 Sanjay Bihari Agrawal Versus Smt. Sandhya Agrawal &y SINGLE BENCH:- Hon. Shri N.K. Agarwal, J PRESENT:- Shri H.B. Agrawal, Sr. Adv. with Smt. Meera Jaiswal, Adv. for the appellant. Smt. Indira Tripathi, Advocate for the respondent. O R D ER (I b-2-2010) 1. Instant appeal is directed against the judgment and decree dated 9-11-2005 passed by the Addition.al District Judge, in Civil Suit No. 17-A/2005 whereby and whereunder application for divorce preferred by the appellant under Section 13(l)((ia) and 13(l)(ib) of the Hindu Marriage Act, 1955 (briefly, 'Acf) has been dismissed. It is not in dispute that parties to the proceedings were married as per Hindu rites on 23-4-2000. They lived together for a period of sbc months. During this period, the respondent conceived pregnancy and gave birth to a female child Ku. Anjali on 28- 2-2001. After October, 2000, the respondent is residing in her patemal home. 2. According to the plaintiff, when respondent was pregnant, as per the wishes of her mother and father, she resided in her paternal home at New Shanti Nagar for delivery, but two months after birth of Ku. Anjali, when he went to bring his wife/ respondent, her mother and father refused to send her to his house at Bhatapara and insisted him to perform his duties at Bhatapara by residing at Raipur. When fhe appellant refused to reside at Raipur, the respondent refused to go to Bhatapara. The appellant made repeated efforts to bring fhe respondent back to Bhatapara, but she did not come and thus since October, 2000, she has failed to perform. her niatrimonial obligations depriving him to lead matrinionial life. To put pressure on the appellant to resijde at Raipur, she also made complaint in IV^ihila Thana, Raipur on 16-5-2005. On 20-5-2005, the respondent lodged a written complaint to police against the appellant, his mother, father, sister and sister-in-law regarding offence of demand of dowry and threatening to kill her. 3. The respondent filed her written statement and denied the allegation and pleaded that in fact, when the respondent was pregnant, the respondent and his family members, on coming to know through Sonography that she has conceived a female child, sent her to her paternal home against her wishes and pressurized her for abortion. She also made allegations regarding demand of 50 Tola gold as dowry and she has also lodged a report in Mahila Thana, Raipur in this regard. On the basis of the report, fhey were called for counseling thrice but the appellant did not take her with him. She is still ready to live with the appellant, if the appellant and his family members do not torture her for dowry. She has also alleged that the appellant is a drunkard and womanizer. 4. Isues were framed by the trial Court and parties led evidence thereupon. 5. Learned Court below on a close scrutiny of the evidence led, material placed and submissions made, recorded a finding that the appellant failed to prove the ground taken in the petition, and dismissed the suit. 6. Shri H.B. Agrawal, Sr. Adv. for the appellant would submit that trial Court had decided issue No. 1 and 3 in appeUant's favour and the same were not challenged and had attajned finality. Only on recording a Gnding that the appellant himself does not want the respondent to live with him as husband and wife, dismissed the petition. He would contend that the finding recorded is not based on evidence and material brought on record by the parties. He would further contend that false complaint regarding harassment and beating in lieu of demand of dowry has been lodged by the 6 respondent; false allegations were pleaded in her written statement showing the appellant as drunkard and womanizer; all these allegations were .n^gatived by the trial Court. All these false allegations amount to cruelty and the appellant is also entitled for a decree on the ground of cruelty i.e. by Sec. 13(l)(ia) ofthe Act. Reliance is placed by Shri Agrawal upon the judgment of the Supreme Court in the case of Lachinan Uttainchand Kirplani -v- Meena @ Mota reported in AIR 1964 SC 40. He would further contend that the respondent is living separately since October, 2000, is not ready to come back and join appellant's company in the matrimonial home at Bhatapara. All efforts for reconciliation failed, for all practical purposes marriage is long dead and over and the appellant is also entitled for decree of divorce on the ground of irretrievable breakdown of marriage. 7. Per contra, Smt. Indira Tripathi, learned counsel for the respondent would contend that it is the appellant and his family who compelled the respondent to leave matrimonial home; the respondent was and is ready to live with the appellant in the matrimonial home and to lead happy married life. It is not correct that the respondent ever pressurized the appellant to live at Raipur. There is a finding in the proceeding before the criniinal court in MJC No. 291/2005 that the appellant's behaviour with the respondent is cruel and he ignored her maintenance. On this finding, the criminal court held that the respondent is entitled to live separately and granted maintenance. The aforesaid Ending had attained Enality and, therefore, it cannot be said that she left matrimonial home at her own with intention to bring the matrimonial relations permanently to an end. She would further submit that the allegations of drunkard and womanizer are due to emotional outbursts and the same should not be considered as deliberate allegations with intention to harm prestige and reputation of the respondent so as to constitute "cruelty" under the Act. Appeal preferred is deserve to be dismissed. \^) Reliance has been placed by Smt. Indira Tripathi on the ^ g? following judgments- ', i. Sushma Subhas Koshe v. Subhash Dattatraya Koshe (2005 (12) SCC 204). ii. Shyam Sunder Kohli v. Sushma Kohli alias Satya Devi (2004 (7) SCC 747). iii. Broja Kishore Ghosh v. Smt. Krishna Ghosh (AIR 1989 Caleutta 327). iv. Dr. N. G. Dastane v. Mrs. S. Dastane (1975 (2) SCC 326). 8. I have heard leamed counsel for fhe parties and perused the impugned judgment and decree as also the record of the court below. 9. The question fall for consideration of fhis Court is whether the appellant has made out a case for dissolution of marriage under Section 13(l)(ia) and 13(l)(ib) ofthe Act ? 10. In order to appreciate rival contentions of the parties, I have examined the pleadings of the parties and evidence oral and documentary available on record. Therefrom foUowing factual position would emerge :- i. The respondent does not want to live in her matrimonial home at Bhatapara. The respondent wanted the appellant either to live and perform his job at Raipur or to live at Raipur and continue with hisjob at Bhatapara. ii. The fact that when the appellant after birth of child Ku. Anjali went Raipur to bring his wife, she refused to come to Bhatapara, on the contrary, insisted appellant to live at Raipur. In this regard, allegations contained in para 3 of the petition were not specifically denied by the respondent. iii. No efforts were made by the respondent to join the company of the appellant and to lead married Ufe with him. iv. After a lapse of about 4 to 5 years, all of a sudden, a complaint was lodged with Mahila Thana, Raipur and ^ ^:.' Police Station, Bhatapara charging the appellant with harassment and beating in lieu of deimand of dowry. v. Before Mahila Thana, the respondent^refused to live with appellant in the matrimonial home at Bhatapara and again insisted the appellant to live at Raipur. vi. Upon refusal by the appellant to live at Raipur, application under Section 125 of the Cr.P.C. has been filed in which the respondent has stated fhat she does not want to live with the appellant as her and her daughter's life is in danger in living with the appellant. Her mother Rohini also stated in her statement before the Court in MJC No. 291/2005 i.e. the appUcation for grant of maintenance under Section 125 ofthe Cr.P.C. that she does not want her daughter i.e. the respondent, to live with the appellant. vii. As per Ex. A-6, report of Police Station, Bhatapara, the respondent wants appellant to live with him at Raipur and she does not want to go to Bhatapara to live wifh her husband and for this purpose, she has charged the appellant with harassment and beaten in lieu of demand of dowry. viii. In her reply to the divorce petition, she had said that she is still ready to live with appellant if the appellant and his family members do not torture her for dowry, also charged fhe appellant as drunkard and womanizer. bs. On a question asked to her in her cross examination that earlier she refused to live with appellant on the ground that in living with appellant, her life would be in danger, then what are the changed circumstances under which now she is ready to live with the appellant, she has stated that since she has lodged report with the police station, therefore, now danger is over. x. The appellant has stated that in the light of serious allegations of drunkard and womanizer and demand of dowry, now he cannot live with respondent and only divorce is the solution. ^1 xi. The appellant has deposed in his statement in para 5 that the respondent at the time of marriage was Lecturer at Daga College, Raipur and useA;.to go there from Bhatapara, for that, objection has never been made by the appellant or his family members. This fact has not been controverted by the respondent by asking any question to rebut the same nor respondent in her statement had stated anything suggesting that she is not working as Lecturer in Daga College, Raipur. 11. Section 13(l)(ia) and 13(l)(ib) ofthe Act read thus:- "13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— ; l[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-fc) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] 12. In Lachman Vttainchand Kirplani -v- Meena @ Mota reported in AIR 1964 SC40, the supreme Court has observed that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and wifhout reasonable cause. The essence of desertion is a total repudiation of the obligation of marriage or an abandonment of the deserted spbuse wifh an intention to bring the cohabitation permanently to an end. Mere physical separation between the spouses or mere intention of one to separate from. the other without any overt act would not by itself amount to desertion. Under the matrimonial law, -z- •••^ desertion is not only a physical ,act but also involves essentially a mental act. To prove the-ground of desertion, ~i> the appellant has to establish 4 ess&itial conditions (i) factum of separation, (ii) animus deserendi, (iii) absence of his or her consent and (iv) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home (Lachman Uttamchand Kirplani -v- Meena @Mota (supra}. 13. By applying the law as settled by the Supreme Court in the case referred above in the facts and circumstances of the case, it is crystal clear that the respondent does not want to live with the appellant in the matrimonial home at Bhatapara. The respondent is Uving separately at Raipur with her parents without there being reasonable and probably cause. Desertion is a matter of inference to be drawn in the facts and circumstances 'of each case. In the present case, it is not in dispute that both the spouses are living separately from October, 2000 and since then, there is no cohabitation between them. The respondent refused to coine back the matrimonial home even after giving birth to Ku. Anjali. The appeUant was charged with baseless allegation of harassment of beating in lieu of demand of dowry and also described him as a person of bad character i.e. drunkard and womanizer. She denied to live with her husband at the time of her statement recorded in MJC No. 291/2005. From above, the picture that emerges is that the respondent herself does not want to join the company of the appellant at Bhatapara, and thus charge of desertion stands proved. The leanred court below thus clearly committed an error in holding that appellant himself does not want respondent to live with him. 14. The other ground raised is ground of cruelty. 15. The existence of cruelty depends not on the magnitude but rather on the consequences of matrimonial offence of cruelty actual or apprehended. Personalities of the parties is an important element for the decision as to whether the status between the two spouses had been cruel. Cruelty as \- envisaged under fhe Act is not restricted to acts of physical violence and may extend to behaviour?iwhich may cause pain ^\ and injury to the mind as well as to rerider the continuance in matrimonial home an ordeal where it becomes iinpossible for them to live together without mental agony, torture or distress. The expression "cruelty" as envisaged under Section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes his/her being treated with cruelty whether physical, mental, social or otherwise but the acts complained of must be more serious than the ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underiying requirement of the provision. 16. The intention to be cruel is not an essential element of cruelty as envisaged under Section 13(l)(i-a) of the Act. If bitter waters are flowing it is not necessary to enquire from which source they spring. The intention or motive behind the cruelty has lost signigcance in the changed society and the social atmosphere of the present day. It is sufficient that if the cruelty is of the type which indicates that the relations between fhe spouses had deteriorated to such an extent due to the conduct of one or the other that it has become impossible for them to live together without mental agony. In marital matters, the feelings and attitudes of minds are material. 17. Test of cruelty to be inferred by any conduct of spoyse in its ordinary and natural meaning. Cruelty is not defined specifically. It is Courts responsibility to interpret analysis and define it. The allegations of ill-treatment, abusing indulgence in undesired activities, neglect of matrimonial obligations and driving out the wife out of her matrimonial home by her husband is mental cruelty. Mental cruelty causes grievous injury and creates reasonable apprehension ofunsafe. n 18. The Supreme Court in cas^ of Dr. N.G. Dastane ^ ^ (Supra) observed in para 24 to 26 as under : ^'^\. 24. The normal rule which goverhs ciyil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilides. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may fhus be founded on a balance of probabilities. A prudent man faced with conSicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second, Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilides lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issuei"; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear". But whether the_issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. 25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involvmg inquiry into issues of a quasi-criminal nature. A criminal to-ial involves the liberty of the subject which may not be taken away on a mere preponderance ofprobabilities. If the probabilities are so nicely balanced that a reasonable, not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to iinport such considerations in trials of a purely civil nature. 26. Neither Section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is "satisfied" on matters mentioned in clauses (a) to (e) of the section^Considering that proceedings under the Act are essentially of a civil nature, the word "satisfied" must meat]t''satisfied on a preponderance of probabilities" and not "satisHed beyond a reasonable doubt". Section 23 does not alter the standard of proof in civil cases." 10 f1 ^ 19. The High Court of Calcutta in case of Broja Kishore Ghosh (Supra) observed in para 10 as under : 10. What acts would constita-ite mental cruelty depend upon the circumstances ofeach case e.g. environment, status in society, education, cultural development, local customs, social condition, physical and mental conditions of the parties. Each case depends upon a variety of facts and circumstances. Reference may be made aniong a host of decisions to one of our court reported in AIR 1978 Cal 87, Bijoli Chowdhuiy v. Sukomal Chowdhury. In fact, there is unanimity of judicial opinion that to constitute cruelty the conduct complained of should be "grave and weighty" so as to make cohabitation virtually unendurable. It must be something more serious than "ordinary wear and tear of the married life" as Lord Asquith observed in Buchler v. Buchler, (1947) 1 All ER 319. Again the conduct complained of "must" be such that no reasonable person would tolerate it or consider that the complainant shall be called upon to endure it. Before conduct can be called cruel, it must touch a certain pitch of severity." 20. A Division Bench of Kerala High Court in case of Gangadharan v. T.K. Thankam, reported in AIR 1988 Kerala 244, has held in para 19 as under : "19. In the statement of objects and reasons of the Amending Act of 1976, the object was stated to be liberalise the provisions relating to divorce (vide Gazette of India Extraordinary Part II Jan-April 1976 page 780), and therefore, it is difficult to agree with the view that the arhendment was intended to restore the law as to cruelty as interpreted by English Courts. Therefore, the intention in brining the amendment could not have been to reintroduce the concept of danger of life or limb. According to the araended provision, the cdurts have to interpret and analyse and define what would constitute cruelty depending upon many factors such asocial staft^s of parties, their education, physical and mental conditions, customs, and traditions and come to its own conclusion that acts proved would amount to cruelty in a given case. It is difficult to lay down a precise definidon or to give an exhausdve description of the circuinstances which would consdtute cruelty. The amendment was brought on the basis of the 59th report of Law Commission which was prior to Dastane's case to the. /»^\ 11 effect that it is sufiicient to prove cruelty as a ground for divorce and leave it to the couri bn the facts ofeach case to decide whether the condiuct amounts to cruelty. In our view the cruelty Shd!(.ild be of such a nature as to satisfy the conscience of'the court that the relationship between the parties had deteriorated to such an extent that it would be impossible for them to live together without mental agony, torture or distress to entitle the party to secure divorce. Physical violence is not absolutely assential to constitute cruelty and a consistent course of conduce inflicting inimeasurable inental agony and torture may well constitute cruelty within the meaning of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party." 21. The High Court of Delhi in case of Smt. Savitri Balchandani v. Mulchand Balchandani, reported in AIR 1987 Delhi 52, has held in para 39 and 42 as under: "39. Both the abovesaid reasons are good reasons for permitting any party to n'latrimonial proceedings to rely upon the averments contained in the pleadings, to establish whether one party is guilty of cruelty towards the other of them. For this reason I am of the view that assertions made in para 8 of the written statement can also be looked into for the purposes of determining whether the appellant wife has been guilty of cruelty to the respondent husband. The appellant respondent wife, it is clear from Ex. P-1, is used to hurling abuses 6n the respondent husband, using foul and filthy language and has persistently been abusing the respondent husband of having committed adultery with persons known or unknown. The only named person with whom the respondent is alleged to have committed adultery is Naina Wazirani on 29th Sept. 1975. The wife stated in her examination in court : "On 29<h Oct. 1975 (should be 29th Sept. 1975) the petitioner canie to the house in the evening. He was accompanied by a girl, named Naina Wazirani." From the above deposition, if it is to be believed, it would follow that the wife had seen the husband bring a girl named Naina Wazirani into the house. This necessarily means that the two of them had walked in together, into the house. In view of the allegadons in para 8 of the written statement, it is extremely unlikely that the wife would have permitted the husband to bring "Naina Wazirani" into the