Naveen Kohli vs Neelu Kohli

The appellant and the respondent are husband and wife. The appellant has filed a petition under the Hindu Marriage Act, 1955 for divorce. The Family Court after comprehensively dealing with the matter ordered cancellation of marriage between the parties under Section 13 of the Hindu Marriage Act which was solemnized on 20.11.1975 and directed the appellant to pay Rs.5 lacs as her livelihood allowance. The appellant deposited the amount as directed.

The respondent aggrieved by the said judgment preferred First Appeal before the Division Bench of the Allahabad High Court. After hearing the parties the appeal was allowed and the decree passed by the Family Court, Kanpur City seeking divorce and annulment of the marriage was dismissed.

Brief facts which are necessary to dispose of this appeal are recapitulated.

The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties. The appellant constructed three factories with the intention of providing a separate factory for his three sons. He also constructed bungalow no.7/36 A for their residence. The parties got all their three sons admitted and educated in a public school in Nanital. According to the appellant, the respondent is bad tempered and a woman of rude behaviour. After marriage, she started quarrelling and misbehaving with the appellant and his parents and ultimately, the appellant was compelled to leave the parental residence and started to reside in a rented premises from May 1994. According to the version of the appellant, the respondent in collusion with her parents got sufficient business and property transferred in her name.

The appellant alleged that in the month of May 1994, when he along with the respondent and their children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he noticed that the respondent was indulging in an indecent manner and found her in a compromising position with one Biswas Rout. Immediately thereafter, the appellant started living separately from the respondent since May 1994. The appellant suffered intense physical and mental torture.

According to the appellant, the respondent had withdrawn Rs.9,50,000/- from the Bank Account of the appellant and deposited the same in her account.

The appellant alleged that the respondent got a false first information report registered against him under Sections 420/467/468 and 471 IPC which was registered as Case No.156 of 1995. According to him, the respondent again got a case under Sections 323/324 I.P.C. registered in the police station Panki, Kanpur City and efforts were made to get the appellant arrested.

The appellant filed a Civil Suit No. 1158/1996 against the respondent. It was also reported that the appellant was manhandled at the behest of the respondent and an FIR No.156 of 1996 was filed by the eldest son at the behest of the respondent against the appellant in police station, Panki complaining that the appellant had physically beaten her son, Nitin Kohli.

The respondent in her statement before the Trial Court had mentioned that she had filed an FIR against the appellant under Section 420/468 IPC at the Police Station, Kotwali and the respondent had gone to the extent of filing a caveat in the High Court in respect of the said criminal case so that the appellant may not obtain an order from the High Court against her filing the said FIR.

In the same statement, the respondent had admitted that she had filed an FIR No.100/96 at the Police Station, Kohna under Section 379/323 IPC against the appellant.

The respondent had also filed a complaint against the appellant and his mother under Sections 498A/323/504/506 IPC at Police Station, Kohna.

The respondent in her statement had admitted that she had opposed the bail of the appellant in the criminal case filed at the Police Station, Kotwali on the basis of legal advice. In that very statement she further admitted that after the police had filed final report in both the criminal cases relating to Police Station, Kotwali and Police Station, Kohna, she had filed protest petition in those cases.

This clearly demonstrates the respondent's deep and intense feeling of revenge. The respondent in her statement had also admitted that she had filed a complaint in the Women Cell, Delhi in September 1997. According to the appellant, the respondent had filed a complaint no.125 of 1998 against the appellant's lawyer and friend alleging criminal intimidation which was found to be false.

According to the appellant, the respondent filed a forged complaint under sections 397/398 of the Companies Act before the Company Law Board, New Delhi and in the affidavit of the respondent she stated that the appellant was immoral, alcoholic, and was having affairs with numerous girls since marriage. She also called him a criminal, infidel, forger and her manager to denigrate his position from the proprietor to an employee of her company.

On 8.7.1999, the respondent filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to ensure the appellant's arrest with the object of sending him to jail. The appellant was called to the police station repeatedly and was interrogated by the police and only after he gave a written reply and the matter on scrutiny was found to be false, the appellant with great difficulty was able to save himself from imprisonment.

On 31.3.1999 the respondent had sent notice for breaking the Nucleus of the HUF, expressly stating that the Family Nucleus had been broken with immediate effect and asking for partition of all the properties and assets of the HUF and stating that her share should be given to her within 15 days. According to the appellant, this act of the respondent clearly broke all relations between the appellant and the respondent on 31.3.1999.

The respondent had filed a complaint against the appellant under Section 24 of the Hindu Marriage Act directing payment of maintenance during the pendency of the case. This was rejected by the Trial Court and she later filed an appeal in the High Court.

The appellant had deposited Rs.5 lacs on Court's directions but that amount was not withdrawn by the respondent. On 22.1.2001 the respondent gave an affidavit before the High Court and got non-bailable warrants issued against the appellant. Consequently, the appellant was harassed by the police and ultimately he got the arrest order stayed by the High Court. The respondent admitted in her statement that she got the advertisement published in the English National Newspaper 'Pioneer'. The advertisement reads as under :

Issues number 1 & 2 relate to the term 'Cruelty' and Issue no. 3 is regarding impact of false allegations levelled by the respondent against the appellant. All these three issues were decided in favour of the appellant and against the respondent. The learned Trial Court came to a definite conclusion that the respondent had filed a very large number of cases against the appellant and got him harassed and tortured by the police. It also declared him an employee of the factory of which the respondent is a proprietor by getting an advertisement issued in the newspaper. According to findings of the Trial Court, the appellant was mentally, physically and financially harassed and tortured by the respondent.

The Trial Court stated that many a times efforts have been made for an amicable settlement, but on the basis of allegations which have been levelled by both the parties against each other, there is no cordiality left between the parties and there is no possibility of their living together. According to the Trial court, there was no possibility to reconnect the chain of marital life between the parties. Hence, the Trial Court found that there is no alternative but to dissolve the marriage between the parties. The Trial Court also stated that the respondent had not filed any application for allowing permanent maintenance and Stridhan but, in the interest of justice, the Trial Court directed the appellant to deposit Rs.5,00,000/- toward permanent maintenance of the respondent. The Trial Court also ordered that a decree of dissolution of marriage shall be effective after depositing the payment of Rs.5,00,000/- by the appellant. Admittedly, the appellant had immediately deposited the said amount.

The respondent, aggrieved by the judgment of the Principal Judge, Family Court, Kanpur City, preferred the first appeal before the High Court, which was disposed of by a Division Bench of the Allahabad High Court.

According to the High Court, the Trial Court had not properly appreciated and evaluated the evidence on record. According to the High Court, the appellant had been living with one Shivangi. As per the High Court, the fact that on Trial Court's directions the appellant deposited the sum of Rs.5,00,000/- within two days after the judgment which demonstrated that the appellant was financially well off. The Division Bench of the High Court held that actions of the appellant amounted to misconduct, un-condonable for the purpose of Section 13(1)(a) of the Hindu Marriage Act. The appeal was allowed and the Trial Court judgment has been set aside. The suit filed by the appellant seeking a decree of divorce was also dismissed.

Both the parties have levelled allegations against each other for not maintaining the sanctity of marriage and involvement with another person. According to the respondent, the appellant is separately living with another woman, 'Shivanagi'. According to the appellant, the respondent was seen indulging in an indecent manner and was found in compromising position with one Biswas Rout. According to the findings of the Trial Court both the parties failed to prove the allegations against each other. The High Court has of course reached the conclusion that the appellant was living with one 'Shivanagi' for a considerable number of years. The fact of the matter is that both the parties have been living separately for more than 10 years. Number of cases including criminal complaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him and even to put the appellant behind the bars by the respondent. The appellant has also filed cases against the respondent.

We would like to examine the facts of the case in the light of the settled position of law which has been crystallized by a series of judgments.

We deem it appropriate to examine the concept of 'Cruelty' both in English and Indian Law, in order to evaluate whether the appellant's petition based on the ground of cruelty deserves to be allowed or not.

In Durga P.Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353, this Court further observed that Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce.

It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, then it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.

The findings of the High Court that the respondent wife's cautioning the entire world not to deal with the appellant (her husband) would not lead to mental cruelty is also wholly unsustainable.

1. The respondent filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC

2. The respondent got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City.

4. The respondent filed FIR under Section 420/468 IPC at the Police Station, Kotwali.

5. The respondent got a case registered under Section under Sections 420/467/468 and 471 IPC.

6. The respondent filed a complaint against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna.

7. The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the police station, Kotwali

8. When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the respondent filed protest petition in these cases.

9. The respondent filed complaint no.125 of 1998 in the Women Cell, Delhi in September 1997 against the appellant's lawyer and friend alleging criminal intimidation.

10. The respondent filed a complaint under sections 397/398 before the Company Law Board, New Delhi.

12. Again on 8.7.1999, the respondent filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to get the appellant arrested.

15. The respondent had withdrawn Rs.9,50,000/- from the bank account of the appellant in a clandestine manner.

17. The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant.

The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable.

In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.

Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra-ordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- (Rupees Twenty five lacs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five lacs with interest) deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs.20,00,000/- (Rupees Twenty lacs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant.

The appeal is accordingly disposed of. In the facts and circumstances of the case we direct the parties to bear their own costs.