FIRST APPEAL No. 258 of 2007 Against the judgment and decree dated 29.11.2006 passed by Sri Shashi Kant Singh, Additional District Judge, Lakhisarai in Title Suit (Matrimonial) No. 56 of 2004. SANJAY SAO ………. Petitioner/Appellant Versus MANJU DEVI & ORS. ……… Opp. Party/Respondents ******** For the Appellant : Mr. Ashwani Kumar Singh, Sr. Advocate Mr. Jai Prakash Singh, Advocate For the Respondents : Mr. Ambika Bhagat, Advocate Dated: 16th day of November, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The petitioner’s husband, Sanjay Sao has filed this First Appeal against the judgment and decree dated 29.11.2006 passed by Sri Shashi Kant Singh, the learned Additional District Judge, Lakhisarai in Title Suit (Matrimonial) No. 56 of 2004 dismissing the appellant’s suit for divorce. (2) The appellant filed the aforesaid suit under Section 13 of the Hindu Marriage Act for divorce alleging that he was married with Manju Devi on 06.06.1996 according to the Hindu religion. After marriage, Manju Devi came to his house and lived with him as husband and wife for about six months. After six months, without informing him, Manju Devi went to Lucknow to her parent’s house where her father was in service. After 7-8 months, the appellant went to Lucknow to bring her but she refused to come with him. In the year 2000, when Mungeshwar Sahoo, J. 2 he went to her father’s house, he came to know that she is not living there rather she is living in the house of Shanker Sao in village Kiul Basti, District Lakhisarai who is Bahnoi(Jija) of Manju Devi. Thereafter, the appellant approached Shanker Sao several times and also he went to Kiul Basti to bring her but Shanker did not allow Manju Devi to go with the appellant. In the month of June, again the appellant went to the house of Shanker and stayed there for two days and then he came to know about the illicit relationship with Shanker Sao and Manju Devi, who were living in adultery since 3-4 years. The respondent, Manju Devi is not living with the appellant as husband and wife since January, 1997 and there was no co-habitation for 7 years prior to the institution of the suit. (3) The wife, Manju Devi appeared and filed a contesting written statement denying all the allegations made by the husband. Her case in short is that the marriage was not held in the temple of Lord Shiva at Ashok Dham, Lakhisarai rather it was held in the house of Manju Devi at Gopalpur. The respondent lived at Pali with the husband as his wife only for about 15 days and not six months. Thereafter, she went with him to New Delhi. She lived there for about 4 months. After Duragaman, she again went with her husband and stayed with husband till January, 2004. Thereafter, in the said month, she came with her husband to her father’s house at Lucknow. Thereafter, several times also, she went to Sasural i.e. Delhi from Lucknow where there was last co-habitation between them. She denied that she came to her Naihar without the consent of her husband on each and every opportunity. Whenever she visited her Naihar, she went with the consent of her husband and with the husband. (4) The respondent further denied that after 7-8 months, the husband came to Lucknow to bring back and she refused to go with him. According to her, whenever her husband came to her Naihar, she always returned back with the husband after staying for about 4 or 5 days at her Naihar. 3 It is also alleged that it is false to say that in the year 2000, he learnt that she was living with her brother-in-law at Kiul Basti, Lakhisarai. The other allegation about adultery is also denied. The wife, Manju Devi further alleged that her father retired from service and she with her husband went to Lucknow where Sanjay Sao demanded the total retrial amount from her father and he left the wife there at Lucknow threatening that if demand is not fulfilled, she will be forced to reside with her father. Thereafter, she went to Delhi with her father, brother-in-law, uncle and well wishers of the family members several times to live there but she was subjected to cruelty by his family members in connection with demand of dowry. Lastly, her husband forcibly took her to Gopalpur in the month of Sawan, 2003 and left there. Thereafter, the husband never came to her. She is still ready to live with him and she denied to have ever refused to live with the appellant. They lived together as husband and wife till Sawan, 2003 and not January, 1997. (5) On the basis of the above pleadings of the parties, the learned Court below framed the following issues: (i) Is the suit maintainable in its present form? (ii) Has the petitioner got valid cause of action? (iii) Is the suit barred by law of Limitation or any other provision of Hindu Marriage Act? (iv) Has this Court Jurisdiction to entertain this suit? (v) Has the allegation of unchastity levelled against the O.P. No. 1 is true and established in this case? (vi) Has this allegation that petitioner is having illicit relationship with his Bhabhi established in this case? (vii) Is the case fit for allowing or dismissing the divorce to the O.P. No. 1? 4 (6) After trial, the learned Court below after discussing the evidences available on record came to the conclusion that the appellant failed to prove the allegation of adultery and dismissed the suit. (7) The learned senior counsel, Mr. Ashwani Kumar Singh appearing on behalf of the appellant submitted that the learned Court below has not properly appreciated the evidences adduced on behalf of the appellant and wrongly discarded the evidences of the witnesses. The learned counsel further submitted that the marriage between the parties has irretrievably broken down with no possibility of parties living together and therefore, the learned Court below should have granted the decree for divorce. The learned counsel further submitted that according to the appellant they are living separately since 1997 whereas according to respondent, they are living separately since 2003 and there is no possibility to live together. Therefore, the best course is to dissolve the marriage by passing a decree for divorce, so that the parties, who have lost valuable part of life, can live peacefully in remaining part of their lives. (8) The learned counsel further submitted that the witnesses have stated that Manju Devi was living in adultery with her Jijaji at Kiul Basti and also that she refused to come with him saying him as Hijra. The learned counsel further submitted that the learned Court below has not considered these evidences and also the admission of Manju Devi in her evidence that she was not co-operating with her husband for co-habitation. All these evidences clearly prove the ground of cruelty but the learned Court below failed to consider this aspect of the matter. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the appellant’s suit for divorce be allowed. (9) The learned counsel appearing on behalf of the respondent submitted that there is no illegality in the impugned judgment and decree and 5 therefore, the First Appeal is liable to be dismissed. The learned counsel submitted that Manju Devi is still ready to live with her husband but her husband is not ready to keep her because he has got illicit relationship with his Bhabhi. The husband himself demanded dowry i.e. all the retiral amount from the father of the respondent and when her father refused to give the retiral amount, the husband, appellant left her at her parent’s house and she has filed a complaint case under section 498A I.P.C. and 3/4 Dowry Prohibition Act which is still pending. (10) In view of the above rival contentions of the parties, the points arise for consideration in this appeal is as to “whether the appellant is entitled for a decree of divorce as prayed for” and “whether the impugned judgment and decree are sustainable in the eye of law?” (11) Prior to final hearing of this appeal, I personally call the appellant and the respondent and heard them in conciliation matter in the chambers. From the order sheet dated 5.10.2010, it appears that the husband, appellant is not ready to keep Manju Devi whereas Manju Devi is still ready to live with the appellant and therefore, the conciliation failed in spite of my best effort. Thereafter, I heard the parties on merit. (12) According to the appellant’s case, after marriage on 6.6.1996, he brought his wife to his native village and lived there as husband and wife for about six months and since thereafter, she went to Lucknow without informing him. When he went to Lucknow to bring her, she refused to go with him to Delhi. In the year 2000, he again went to Lucknow and came to know that she is living at Lakhisarai with her brother-in-law, Shanker Sao in Kiul Basti. She again refused to come with him because she is living in adultery with Shanker Sao and she is not living with him since January, 1997. On the other hand, according to 6 the Opposite Party-respondent, Manju Devi, all the allegations made by the appellant are false. (13) From the pleadings of the parties, it appears that husband is seeking divorce on the ground of adultery, desertion and cruelty. The parties have adduced evidences in support of their cases. (14) P.W. 2, Sanjay Sao has stated that Manju Devi lived with him for six months. She was not preparing food and was abusing him. She was always taking name of her Jijaji and once she has also assaulted him. Thereafter, he took her to Delhi. She was telling him Hijra. Then, she went to Lucknow. After some months, he went to bring her but she did not come with him. Subsequently, he also went to Kiul Basti to bring her. He stayed there for 3 days but during that 3 days, she never slept with him. She was abusing him and calling him as Hijra. She was sleeping with his Jijaji which he had seen because the door was open. Since 1997, she is not living with him and since 2000, she is living with her Jijaji. (15) P.W. 1 is Reena Devi who is of Kiul Basti. She has also stated that 9 years ago, marriage was held at Ashok Dham. Manju Devi is Shali of Shanker Sao. Manju Dei was residing with Shanker Sao prior to marriage and after marriage also. She is seeing her since 4-5 years living in the house of Shanker Sao. P.W. 3, Pratibha Devi is also resident of Kiul Basti. She has stated that she is Gotia of Shanker Sao and they reside at one Kasba. 4-5 years ago, Sanjay Sao had come to Kiul Basti for taking Manju Devi with him but Manju Devi refused to go with him saying him as Hijra. In the cross-examination, she has stated that Manju Devi is the sister of her Gotni and Sanjay Sao is Devar of her sister and the name of his sister is also Manju Devi. Therefore, this witness is related with Sanjay Sao as well as Manju Devi. P.W. 4 is also of Kiul Basti. It is stated that he is seeing Manju Devi living in the house of Shanker Sao in Kiul 7 Basti for last 4-5 years. 5 years ago, Sanjay Sao had come to Kiul Basti for taking Manju Devi but she refused to go with him. In cross-examination, he has stated that Shanker Sao is uncle in Gotia relation. P.W. 5 is brother of Shanker Sao and he is also resident of Kiul Basti. He has also stated that Manju Devi always come to the house of Shanker Sao. 5 years ago, Sanjay Sao had come to take Manju Devi but Manju Devi refused to go with him. In the cross- examination at paragraph 7, he has stated that many times about 50-60 times, Manju Devi had come to the house of Shanker Sao and whenever she was coming, she was staying their for 4-5 months and was going to Lucknow. (16) P.W. 6 has stated that Manju Devi was not preparing food and was abusing. He is brother of Sanjay Sao. P.W. 7 is formal witness. (17) From the above evidences, it appears that all the witnesses have consistently stated that 4-5 years ago i.e. about in the year 2000, Sanjay Sao had gone to bring Manju Devi but she refused to come with him. All these witnesses were examined in Court in the month of March, 2006. It further appears that the close relation of both the parties and even brother of Shanker Sao have stated that Manju Devi was living in the house of Shanker Sao in Kiul Basti and when Sanjay Sao came to take her, she refused to go with him. The case of the appellant is that there has been no co-habitation between them since January, 1997. It may be mentioned here that the witnesses have stated that wife, Manju Devi was addressing Sanjay Sao as Hijra. (18) On the other hand, Manju Devi herself in her evidence as O.P.W. 2, no doubt, denied the allegations made by the husband but in cross- examination at paragraph 7, she has clearly stated that it is true that she was not allowing her husband to have sexual intercourse with her and she was kicking him because Sanjay Sao had illicit relationship with his Bhabhiji. From perusal of the evidence of this witness also, it appears that it is admitted fact that since 8 2003, they are living separately although, the case of the appellant is that they are living separately since 1997. It also appears that after filing of the divorce case, a criminal case has been filed by Manju Devi against the husband alleging that she is subjected to cruelty in relation to demand of dowry because her father did not fulfill the demand of Sanjay Sao who demanded the entire retiral benefit from her father. Therefore, from the above evidences, it appears that the case of Manju Devi is also that Sanjay Sao has illicit relationship with his Bhabhiji. They are living separately since 2003. According to the appellant, she abused her as saying Hijra. I personally attempted to reconcile the matter but the husband refused to compromise on the ground that she is still living with Shanker Sao. (19) The learned counsel for the appellant submitted that even if, the case of the wife is accepted about the separate living of the parties then also, the parties are living separately since 2003 and the wife never attempted to go to the husband’s house. The learned counsel for the appellant further submitted that in her evidence, the respondent herself admitted that she was not allowing the appellant to co-habit with her which itself amount to cruelty. From the above facts, animus deserendi on the part of the wife is clearly established. She has chosen to adapt a course of conduct which proves desertion on her part. Such course of conduct over a long period amounts to willful neglect of the husband by the wife. The dowry case filed by the husband is after the filing of this divorce case. (20) In similarly situated case, the Hon’ble Apex Court in the case of Geeta Jagdish Mangtani vs. Jagdish Mangtani 2005(4) P.L.J.R. 195 Supreme Court, granted divorce decree in favour of the husband. As stated above, in this case also, there is no chance of re-union between the parties and therefore, no useful purpose will be served in keeping the parties in the 9 matrimonial bond particularly when the said bond has factually ruptured and irreparable. (21) In 2007(1) P.L.J.R., 81 Supreme Court (Rishikesh Sharma vs. Saroj Sharma), the Hon’ble Apex Court has held at Paragraph 5 as follows: “5. In our opinion, it will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully in remaining part of their life.” (22) It appears that in the case of Rishikesh Sharma (supra), divorce case was dismissed by the trial court as well as by the High Court. The Supreme Court found that the parties are on litigating term and the marriage has irretrievably broken down with no possibility of parties living together and therefore, the Hon’ble Supreme Court granted decree of divorce. In the present case also, a criminal case has been filed by the wife in 2004 which is still pending. Both the parties are levelling allegations against each other about inchastity and living adulterous life. Although, the wife is ready to reside with the husband but the husband is not willing to keep her. In such circumstances, there is no chance of living together. (23) In the case of Navin Kohli vs. Neelu Kohli, (2006) 4 Supreme Court Cases 558, the Hon’ble Supreme Court at Paragraph 74 to 76 has held as follows: “74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The 10 marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. 75. Public interest demands not only that the married status should, as far as possible, as long possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. 76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.” (24) In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Hon’ble Supreme Court has enumerated some instances of human behaviour which may be relevant in dealing with the case of mental cruelty at Paragraph 101 which is re-produced here-in-below: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. 11 (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. 12 (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” (25) In view of the above mentioned factors along with the circumstances that the parties are living separately for more than 7 years admittedly and more than 13 years as alleged by the husband and are making criminal charges against each other and are in litigating term, the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the wife. The trial court in the impugned judgment has not considered the above factors and circumstances in the light of the law laid down by the Hon’ble Supreme Court. In the facts and circumstances of the case, as discussed above, I find that the appellant has been able to prove mental cruelty and therefore, the impugned judgment and decree are liable to be set aside and the appellant’s suit be decreed. (26) So far permanent alumni under Section 25 of the Hindu Marriage Act is concerned, there is no material or evidence available in this case regarding the status of the husband and the status of the family and the income and therefore, these matters can be well thrust in a separate proceeding under Section 25 of the Hindu Marriage Act. The wife, respondent, if so advised, may approach appropriate forum according to law and if such application under Section 25 of 13 the Hindu Marriage Act is filed by the wife, the same shall be disposed of by the