FIRST APPEAL No. 324 OF 2004 Against the judgment and decree dated 11.11.2004 passed by Sri Kishori Ram, Additional District Judge, Fast Track Court No.1 Nalanda in Matrimonial (Divorce) Case No. 25 of 2000. SADANAND PRASAD @ BIRESH ……. Petitioner/Appellant Versus RUKMINI DEVI ……. Opp. Party/Respondent ******** For the appellant : Mr. Hare Krishna Kumar, Advocate For the Respondent : None Dated : 9th day of September, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. This first appeal has been filed under the provisions of Hindu Marriage Act by the husband-appellant against the judgment and decree dated 11.11.2004 passed by Sri Krishori Ram, the learned Additional District Judge, Fast Track Court No.1, Nalanda in Matrimonial Case No. 25 of 2000 dismissing the appellant’s case for divorce. 2. The petitioner-appellant filed the aforesaid Matrimonial Case No. 25 of 2000 praying for a decree of divorce against his wife, the opposite party-respondent on the ground of cruelty, desertion and mental disorder. 3. According to the appellant his case in short is that his marriage with O.P.-respondent was solemnized in the year 1990 in the Mungeshwar Sahoo, J. -2- village Rahui. Second marriage i.e. Ruksadi was performed in 1993. Thereafter his wife went to matrimonial home. She never lived in harmony with the appellant and started quarrelling with the family members and also with the petitioner, causing mental torture to the appellant-husband. Regularly she used to leave the matrimonial house without consent of the family members. In spite of the appellant’s persuasion to her to abstain from her conduct, she did not obey. Inspite of appellant’s request she did not perform her matrimonial duty and obligation. She disassociated and did not cooperate with the appellant, as a result of which the appellant has spent sleepless night. She even several times disagreed for sexual intercourse without any just reason as she was always suffering from mental tension and uncertainty and also incurable mental disabilities which is harmful and injuries to the appellant. 4. The further case of the appellant is that a concocted criminal case being Noorsarai P.S. Case No. 107 of 1998 was filed by her. The said case was compromised but after compromise also she did not live in harmony. In July 1998 she fled away with her all belongings without the consent of the appellant and other family members. The appellant came on annual leave and went to the house of his in-laws to take back his wife but wife and her parents misbehaved with the appellant. She refused to return matrimonial home and she deserted him without any reasonable cause for more than two years. She has been treating the appellant with cruelty by depriving the conjugal rights since soon after the marriage. On these grounds, the husband prayed for the decree for divorce. 5. The opposite party-respondent appeared and filed the contesting written statement denying all the allegations made by the appellant. Her case in short is that after second marriage the husband -3- and his family members subjected her to cruelty in relation to payment of Rs.5000/- as dowry. They assaulted her and drove her out from the matrimonial home. She is still ready to live with her husband. She never refused for sexual intercourse. She also denied that she is suffering from any mental disease or disorder. There was danger of her life so she informed Noorsarai police station and the case was instituted under Section 498 I.P.C. against her husband and others. The said criminal case was compromised and when she went to her matrimonial home the appellant and his family members again assaulted her and drove her out from the house. 6. On the basis of the above pleadings of the parties, the learned court below framed as many as five issues which are as follows : 1. Is the divorce petition filed by the applicant maintainable ? 2. Has the O.P. been suffering from incurable mental disabilities to such extent that the applicant cannot expect to live with O.P. ? 3. Has the O.P. deserted the applicant ? 4. Is the different allegation as set up by the O.P. in the written statement is valid, genuine and for consideration ? 5. To what other relief or reliefs to which the applicant is entitled ? 7. After trial the learned court below found that the petitioner has never been subjected to mental cruelty or desertion rather his wife mentally, physically and financial subjected to cruelty and desertion for the reason of her demand for her existence. The learned court below has also decided issue No.2 against the husband-appellant. -4- 8. Learned counsel for the appellant submitted that admittedly in this case since long more than 10 years the parties are living separately and the marriage between the parties have broken down which cannot be repaired and in fact the marriage has now ceased to exist. The learned counsel further submitted that in the criminal case instituted by the wife-respondent the husband and the in-laws were convicted and on appeal the appellate court set aside the conviction judgment and the appellant and his family members were acquitted because in fact the wife had filed false case of demand of dowry. The learned counsel further submitted that the parties are in litigating term for long and, therefore, now after such a long period the matrimonial bond is beyond repair. According to the learned counsel in such circumstances the best course is to dissolve the marriage by passing a decree of divorce so that the parties may live peacefully for the remaining part of their life. 9. As stated in spite of service of notice in the appeal as well as in the interlocutory applications the wife-respondent did not appear in this case. 10. In view of the above facts and circumstances, the question arises for consideration in this appeal is, as to whether the petitioner- appellant is entitled for a decree for divorce in the facts and circumstances of the present case on the ground of cruelty, desertion and mental disease and whether the impugned judgment and decree are sustainable in the eye of law. 11. From perusal of the lower court record, it appears that the parties have adduced oral evidence in support of their cases. The husband appellant has been examined as AW 1 in this case. He has fully supported his case as made out in the original application for divorce, he has stated that his wife never lived with harmony with him -5- and always she was refusing to sexual intercourse and without consent she was leaving the matrimonial house. Because of such conduct the husband was spending sleepless night because of mental tension and cruelty. A concocted criminal case was instituted which was compromised but after compromise also she did not live with appellant and fled away. The appellant went to persuade her and bring her to matrimonial home but she refused to come and misbehaved with the appellant. 12. O.P.W 4 Rukmani Devi in her term supported the case made out in her written statement. She denied to have ever refused for sexual intercourse and also misbehaving with the appellant. She has stated that the criminal case being Noorsarai P.S. Case No. 107 of 1998 is still pending against the husband and his relatives. 13. In view of the above facts, it appears that there are oral evidences versus oral evidences between the parties. In one hand the husband is making allegations against the wife whereas the wife is also making allegations i.e. criminal action against the husband and his relatives. Admittedly, in this case, the trial court convicted the husband and his relatives but on appeal they have been acquitted. The criminal case is of the year 1998. According to the appellant he tried to compromise the case and even it was compromised but in spite of that she fled away from the matrimonial house and it appears that the wife and her relatives contested the criminal case which ultimately resulted to conviction by trial court. Now therefore, since long i.e. at least from 1998 the parties are in litigating term. The appellate Court set aside the conviction and, therefore, the present position is that the case filed by the wife has not been found to be true. 14. In the case of Rajkishore Prasad Vs. Smt. Raj Kumari Devi and others AIR 1986 Patna 362 this Court has held that the -6- conduct of the respondent No.1 in launching a criminal prosecution against her husband with false allegations amount to mental cruelty as well. In the present case as stated above the appellant and his relatives were acquitted by the appellate Court from the allegation of torture and demand of dowry. 15. In the case of Rishikesh Sharma Vs. Saroj Sharma reported in 2007 (1) PLJR (SC) 81, the Hon’ble Supreme Court at paragraph 5 has held 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.” 16. From perusal of the said decision of the Apex Court the husband filed a petition for a decree of dissolution of marriage on the ground of mental cruelty and desertion. The petition was dismissed. The High Court also dismissed the appeal filed under Section 28 of the Hindu Marriage Act by the husband. In appeal the Hon’ble Supreme court has granted decree of divorce on the ground stated above. In the present case at our hand also the parties are separated since long and they are in litigating term since 1998 i.e. about 12 years or more. In spite of repeated notice by this Court, the wife-respondent did not appear. 17. In the case of Geeta Jagdish Mangtani Vs. Jagdish Mangtani reported in 2005 (4) PLJR (SC) 195 in similarly situated facts and circumstances of the case, the Hon’ble Supreme court held that there has been no attempt on the part of the wife to stay with the husband. At least during the holidays she could have visited the -7- husband and stayed with him. There is nothing on record to show that any such attempt was ever made by her to visit husband during this entire period. She has stated in her evidence that the husband used to come and stay with her during vacations. This has been denied by the husband. Therefore, the conclusion is inevitable that there was never any attempt on the part of the wife to go to the husband’s house i.e. matrimonial home of the parties after she left on 2nd June 1993. It appears that in that case also there were oral evidences and counter evidences by the parties. The High Court granted decree of divorce observing as follows:- “Both husband and wife have renounced the relationship as husband wife since June, 1993 and from the record of the case also presently the questions which I have asked in the Chamber. I am satisfied that both husband and wife had no intention to live together as husband and wife and decided to break-off from the relationship of marriage or withdraw that companionship of husband and wife. Desertion means rejection of the parties of all the obligations of marriage and permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other.” 18. In the present case, as has been stated above in spite of notice the respondent did not appear which impliedly means that she is not interested in maintaining the matrimonial relationship with the husband. She never admitted to live with her husband. The criminal case instituted by her terminated in acquittal. 19. In a decision reported in 2007 (4) S.C.C. 511 Samarghosh Vs. Jaya Ghosh, the Hon’ble Supreme Court at paragraph 101 has held as follows : 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to -8- 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. 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 -9- 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 and longer, may amount to mental cruelty. xi. If a husband submits himself for an operation of sterilization 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. 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. 20. Therefore, according to the Hon’ble Supreme Court although the term “cruelty” has not been defined in the Act and there cannot be any uniform formula for defining the said term, it can safely be -10- inferred that cruelty includes both the cases of physical as also the mental cruelty. In the present case at out hand according to the husband appellant there is no consummation of marriage since long i.e. at lease about last 12 years. As stated above the wife never attempted to come to the matrimonial home and is living separately from the husband. It is well known that unlike physical cruelty, the mental cruelty is difficult to be established by direct evidence. Cruelty is to be taken as behavior of one spouse towards the other which caused reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. As stated above in this case there has been a long period of continuous separation, therefore, it may be concluded that matrimonial bond is beyond repair. The marriage becomes a fiction though supported by tie. By refusing to severe that tie the law in such cases does not serve sanctity of marriage, on the contrary it shows scant regards for the feelings and emotion of the parties. In such like situation, it may lead to mental cruelty. In view of the above facts the case of Samarghosh (Supra) is fully applicable in the present case. 21. In the present case as stated above, the wife is not appearing therefore, there is no question of reconciliation arises. Therefore, since there is no acceptable way in which a spouse can be compelled to regime life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. 22. In view of the my above discussions, I find that in this case the appellant has been able to prove the ground of cruelty as pleaded by him and also that the marriage between the parties has broken down and it is irreparable and in fact the marriage has ceased to exist and, therefore, is entitled to for decree of divorce. So far other -11- questions are concerned regarding mental disorder the learned counsel did not address on that point. 23. So far Section 25 of the Hindu Marriage Act i.e. permanent alimony is concerned there is no evidence on record regarding the status of the family, the income of the husband, and the status of the respondent, I therefore, grant liberty to the wife-respondent to take appropriate steps for obtaining permanent alimony/maintenance before the Court of competent jurisdiction if so advised and if she desire so. If the wife-respondent files such application before the Court of competent jurisdiction, it goes without saying that such court will decide the matter in accordance with law. 24. In view of my above findings the instant first appeal is allowed. The impugned judgment and decree are set aside and the appellant’s suit for divorce is decreed. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 9th September, 2010 S.S./A.F.R.