Appeal from the Original Decree No.147 OF 1998 ---------- Against the judgment and decree dated 24.1.1998, passed by Smt. Rekha Kumari, Principal Judge, Family Court, Patna in Matrimonial Case No. 166 of 1998. ----------- BINOD KUMAR—SON OF BASUDEO PRASAD, RESIDENT OF – MOHALLA STATE BANK COLONY DANAPUR, QR. NO. 6 P.S. DANAPUR DISTRICT PATNA -------------------(Appellant) Versus SMT.MADHAVI KUMARI-WIFE OF BINOD KUMAR AND DAUGHTER OF JOTISH PRASAD GUPTA, RESIDENT OF VILLAGE SAGUNA P.S. DANAPUR DISTYRICT PATNA -----------------(Respondent) ------- FOR THE APPELLANT: MR.HARENDRA PD.SINGH,ADVOCATE MR. SHASHI KANT SINGH,ADVOCATE FOR THE RESPONDENTS : MR. N.A. SHAMSI, ADVOCATE MR. S. EHTESHAMUDDIN,ADVOCATE MR. ARJUN PRASAD, ADVOCATE. P R E S E N T THE HON'BLE ACTING CHIEF JUSTICE THE HON’BLE JUSTICE DR. RAVI RANJAN ------- Dr. Ranjan, J Appellant-husband being aggrieved by the judgement and decree dated 24.1.1998, passed by Smt. Rekha Kumari, Principal Judge, Family Court, Patna in Matrimonial Case No. 166 of 1996 whereby his petition under section 13 of the Hindu Marriage Act ,1955 has been dismissed , has preferred this appeal. The appellant-husband filed Matrimonial Case No. 166 of 1996 under section 13 of the Hindu Marriage Act, 1955 for dissolution of his marriage with the sole respondent by grant of a decree of divorce. According to him his marriage with the respondent was solemnized on 18.5.1989 at Saguna P.S. Danapur, District Patna according to Hindu Rites and Customs. According to him after two days of marriage the respondent returned to her - 2 - father’s house after taking back all her belongings ,never to come back to her matrimonial house. Further case of the petitioner- appellant is that he went to his Sasural for ―Rukhsati‖ in 1989 but the respondent refused to come and he was assaulted and threatened by her father. Subsequently the respondent filed a Maintenance Case bearing No. 171(M)1990 against the appellant husband which was disposed of on 25.6.1995 by the concerned Court allowing monthly maintenance of Rs. 500/- per month to be paid by the husband to the wife. Thereafter appellant –husband filed Matrimonial Case No. 90 of 1990/18/1992 for grant of a decree of divorce. However, the same was dismissed by judgment dated 17.6.1992 by Shri N.C. Lala, Principal Judge, Family Court, Patna. Further case of the husband is that the respondent wife, being a daughter of Retired Assistant Chief Accounts Officer, Central Excise, Patna is very much proud of her parents and other relatives. Her behaviour was only to torture and disturb the mental peace of the petitioner-appellant and thus she has deserted him . As a result of which he and his family member had to suffer social humiliation at the hands of the respondent and his social status has been lost. Thus, the husband had to take recourse to filing of the instant case. The respondent wife filed written statement refuting all the allegations made by the husband and has stated that the petitioner-appellant had earlier filed Matrimonial Case No. 90 of 1990 on the ground of adultery and cruelty which was dismissed on contest hence according to her, the present case was barred by the Principle of res judicata. The respondent - wife admitted the marriage but has denied to have returned to her ―Naihar‖ with all her assets after two days only. She, in fact, stayed at her - 3 - matrimonial house for about three weeks and thereafter came to her father’s place. Thereafter the petitioner-appellant never came to take her back in spite of repeated persuations by the parents and other relatives of the respondent as a result of which finding no other option she had to file Maintenance Case No. 171(M) 1990 which was allowed. Thus, according to respondent in fact it the petitioner-appellant who has deserted the respondent. On consideration of the pleading of parties the trial court framed following issues: 1. Whether the case as framed maintainable? 2. Whether the petitioner has valid cause of action for the case? 3. Whether the respondent treated the petitioner with cruelty? 4. Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition? 5. Whether the petitioner is entitled to get a decree of divorce, as prayed for. 6. Whether the respondent is entitled to get permanent alimony? 7. To what other relief or relies the petitioner is entitled? It is apparent from the aforementioned facts that the petitioner has filed his case chiefly on two grounds, cruelty and desertion. The petitioner- appellant has examined altogether six witnesses. P.W.4 Binod Kumar is the petitioner himself, P.W.1 Basudeo Pd. is the father of the petitioner whereas petitioner no.2 is Rabindra Kumar Gupta, P.W.5 is Atul Kumar and P.W.6 is Subodh Kumar. Opposite Party- respondent has also examined althgether five witnesses among whom O.P.W.2 Madhavi Devi is the respondent herself and O.P.W. 1 is Jyotish Prasad Gupta is her father. Other witnesses are O.P.W.3 Lalmoni Singh, O.P.W. 5 Bankey Lal and O.P.W.5 Shyam Babu - 4 - Pal . The trial court, while dealing with the point of desertion as raised by the husband, on analysis of the pleadings and evidence led on behalf of the parties has come to the conclusion that the evidence adduced on behalf of the petitioner is contradictory. At one place it is stated that they made attempt was made for Rukhsati or Bidayee of the girl and the wife and her parents were not ready for that whereas it also comesout that the father of the respondent wanted to send his daughter forcibly in the house of the petitioner-appellant under threat and coercion . Thus, the trial court discarded the evidence of the petitioner-appellant and held that there is no question of desertion on the part of the respondent. On point of cruelty also the trial court has held that there is nothing to show that the respondent has treated the petitioner with cruelty. As a result, the trial court has held that the Matrimonial Case fails on both the grounds as the respondent neither treated the petitioner with cruelty nor has she deserted him and thus finally dismissed the suit on contest with costs. Heard Mr. Harendra Pd. Singh Advocate for the appellant and Mr. N.A. Shamsi Advocate for the respondent. Learned counsel for the appellant submits that the findings of the trial court on both issues, desertion as well as cruelty, are erroneous as it has not appreciated the evidence adduced on behalf of the petitioner-appellant in the right perspective. According to him the appellant himself while being examined as P.W.4 and other witnesses examined on his behalf have fully supported his case. P.W. 4 has categorically stated that after solemanisation - 5 - of marriage on 18.5.1989, the respondent went back to her parent’s house on the third day of marriage itself. He made efforts for Rukhsati but the same proved to be futile exercise. His further evidence is that he was receiving cruel treatment from the respondent who never accepted him as husband. According to him for the reasons aforesaid the matrimonial relationship could never be established between them resulting in his mental, physical and social suffering as the respondent and her family members have insulted, abused and threatened him. He also states that a Sanha was lodged in this regard on 2.1.1994 in Danapur Police Station which has been brought on record as Ext.1. He has stated that since there is danger on his life in living with the respondent, therefore, he has filed the present case. Other witnesses have also tried to support the aforesaid evidence led by P.W.4. Against the above, the respondent has also examined five witnesses. O.P.W.2 the respondent herself in her evidence has stated that in fact the husband had never come to her Naihar for Rukhsati or Bidayee and she had denied the other allegations and have shown her readiness to live with her husband. Learned counsel for the appellant contends that it is apparent from the evidence led on behalf of petitioner- appellant that whenever there was attempt of Rukhsati or Bidayee they were insulted and even gundas were sent by the respondent threatening to keep the girl failing which they would have to face with dire consequences. Learned counsel for the respondent, in reply asserts that there is nothing in the pleading as well as evidence of the appellant which supports his allegation of desertion as well as cruelty. He points out that since nobody took any step for Rukhsati or Bidayee from the - 6 - appellant’s side, the respondent had to resort for filing Maintenance Case no. 171(M) 1990 for grant of maintenance which was allowed by the court concerned. Thereafter the petitioner-appellant filed Matrimonial case No. 90 of 1990 on the ground of adultery as well as cruelty which was also dismissed on 17.6.1992 itself. Thus the ground of cruelty ( which was also taken in the earlier Matrimonial case no. 90 of 1990 ) has already failed and since thereafter admittedly they have not lived together, there is no question of cruelty inflicted by the respondent upon the appellant at all. His further contention is that the appellant miserably failed to prove aminus deserendi on behalf of the respondent as she had filed maintenance case and maintenance was allowed. She has always stated that she is willing to live in her matrimonial house and even today she is willing to live with him. From the earlier judgement dismissing matrimonial case no. 90 of 1990 and also from the pleading and the evidence led on behalf of the appellant it is apparent that the appellant could not prove that the respondent had abandoned him without reasonable cause and without his consent with the intention to bring cohabitation permanently to an end during the entire statutory period ie. two years prior to filing of the petition. At one hand appellant’s stand is that the parents of the girl were not allowing her to go back to matrimonial house and on the other hand his charge is that the parents of the girl were sending antisocial elements to presurrrise the petitioner-appellant to keep his wife along with him. That apart the petitioner could not establish also that he had real intention to resume cohabitation with his spouse. Coming to the point of cruelty, learned counsel for the respondent contends that mere expression in the pleading on - 7 - the point of cruelty without any specific allegation and without proving it by leading evidence cannot be accepted by any court. He further contends that the allegation that in June 1989 father of respondent abused and threatened him instead of sending the girl cannot be believed for the reasons that these facts were not alleged in the earlier matrimonial case no. 90 of 1990 and secondly this allegation itself is contrary in nature for the reason that if the husband was ready to keep his wife then there could be no reason for the father of the girl to threaten him by sending antisocial element for doing the same thing. That apart there is also no eye witness or any material in corroboration of stand of petitioner-appellant that the respondent ever misbehaved with him either in private or in public specially so because the case of appellant himself is that the wife remained only for two days in her matrimonial house. I find force in the submissions made on behalf of the respondent and hold that the petitioner-appellant failed to prove the allegation of desertion as well as cruelty by his spouse. Mr. Singh, learned counsel appearing on behalf of the appellant lastly contends that since the case for divorce was dismissed as back as on 24th day of January 1998 and the husband and wife are living separately, there is no escape from the conclusion that the marriage has irretrievably broken and hence this is a fit case wherein the marriage be dissolved by grant of a decree of divorce. According to him though section 13 of the Act does not include irretrievable break down of marriage as ground to sever the marital tie, the Supreme Court in its various decisions considering the cumulative effect of bundle of circumstances has made a distinct shift from - 8 - the conservative interpretation and adopted a liberal approach and has granted a decree of divorce on the finding of irretrievable break down of marriage. In support of his contentions learned counsel has relied upon certain authorities which as follows: Praveen Mehta Vs. Inderjit Mehta, reported in 2003 (1) BLJ 633; Samar Ghosh Vs. Jaya Ghosh, reported in (2007)4 SCC 511; Rishikesh Sharma V Suraj Sharma , reported in 2007(2) SCC 263; Satish Sitole Vs Smt. Ganga, reported in 2008 (5) Supreme 198. Learned counsel for the respondent submits in reply that the appellant wants to take advantage of the systemic delay, by counting those ten years period which has been taken in disposal of the present appeal, for raising a ground of irretrievable break down of marriage. The matrimonial case was dismissed as back as in the year 1998 but the husband made no attempt after dismissal of the matrimonial case to set the home in order. Had this appeal been heard in the year 1998 itself, this point of irretrievably break down of marriage would not have been available to the appellant. I find force in the submission of the learned counsel appearing on behalf of the respondent. Time period taken due to systemic delay in disposal of this appeal cannot be allowed to become a tool in the hands of the appellant. That apart it is not a case in which the wife had walked away from the matrimonial life. The wife is still fighting the legal battle and is willing to live at her matrimonial home. It is pertinent to point out here that if both the parties want to walk out of he matrimonial tie then the course of divorce by mutual consent under section 13 B of the Act is always available - 9 - to them. The Apex Court in the aforesaid decisions had granted decree of divorce on the point of irretrievable break down of marriage after reaching to conclusion in the aforesaid cases that there has been long years of separation between the parties and all the emotions between the parties had died and one of the spouse has simply walked away from the matrimonial life. Before granting a decree of divorce on the ground of break down theory one has to come to the conclusion that the matrimonial bond is beyond repair. Section 13 of the Hindu Marriage Act 1955 as it stands today does not include irretrievable breakdown of marriage as a ground to sever the marital tie. It is well known that in Hindu law marriage is considered nnecessarily the basis of Social Organization and the foundation of important legal rights and obligation. Marriage is treated as Samskara or a Sacrament, therefore, while dealing with the case of dissolution of marriage, that too on the break down theory which is not a ground for dissolution of marriage described Under Section 13 of Hindu Marriage Act, one has to be very careful. In the present case the appellant has failed twice in attempt of dissolution of marriage before the trial court. Firstly in the earlier matrimonial case no. 90 of 1990 on the ground of cruelty and adultery and secondly again in the present case on the ground of desertion and cruelty, I have already upheld the judgement and decree of the trial court. Thus, the point of desertion and cruelty raised by the respondent has already failed. In pursuance of the order of this Court the appellant and his wife were present before this Court and the wife was willing to go to her matrimonial house - 10 - and live together with the husband. However, the husband was not willing to keep her. Thus, I am of the opinion, it is not a fit case in which marriage could be ordered to be dissolved under the breakdown theory. In the result this appeal fails and is dismissed accordingly. However, there will be no order as to costs. (Dr. Ravi Ranjan,J) Chandramauli Kr. Prasad, ACJ. (Chandramauli Kr. Prasad,ACJ) Patna High Court The Feb. 2009 Rahman/ NAFR