Patna High Court

Anita Devi vs Satish Kumar on 25 September, 2020

Equivalent citations: AIRONLINE 2020 PAT 565

Author:
Dinesh Kumar Singh

Bench:
Dinesh Kumar Singh
,
Prabhat Kumar Singh

IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.81 of 2014
======================================================
Anita Devi D/O Shri Ramprit Yadav Resident Of Village Rakri, P.S.
Nawadah, District Bhojpur At Ara, At Present Residing At Mohallah Kazipur,
Nayatoala, P.O. Bankipore, P.S. Kadamkuan, District Patna.

... ... Appellant/s
Versus
Satish Kumar S/O Shri Lakshman Prasad Resident Of Village Pakri, P.O. Ara,
P.S. Ara Nawadah, District Bhojpur.

... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Manoj Priyadarshi, Advocate
For the Respondent/s : Mr. Anil Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH)

Date : 25-09-2020

The present Miscellaneous Appeal is directed against

the judgment and decree dated 27.7.2013 and 12.8.2013

respectively, passed by the learned Additional Principal Judge,

Family Court, Patna in Matrimonial Case No. 763 of 2012,

whereby the marriage between the appellant and the respondent

has been dissolved and a decree of divorce has been passed on

the ground of cruelty.

The factual matrix of the case is that the marriage

between the appellant wife and the respondent husband was

admittedly performed on 13.2.2000 but the appellant wife

always treated the respondent husband with cruelty. As a result,
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the respondent preferred Matrimonial Case No. 763 of 2012

seeking dissolution of marriage on the ground of cruelty and

desertion, though it is also alleged that the appellant was in love

affair with some person. The respondent pleaded in the plaint of

the matrimonial case alleging that the appellant used to abuse

him and his parents. The appellant used to take William -10 or

Mandex and other drugs. On protest being made by the

respondent husband, the appellant wife threatened him that she

will commit suicide. The appellant did not allow the respondent

to have physical relationship. The appellant admitted that she

has relationship with some boy but on the pressure of the family

members, she has been married with the respondent. The

appellant left the matrimonial house on 7.3.2000 and since then

she is residing with her parents. The appellant has filed a

criminal case being Complaint Case No. 2231C of 2002 with

accusation under
Section 498A
of the IPC and
Sections 3
and
of the Dowry Prohibition Act on 23.10.2002 and in the said case

the respondent husband had to remain in custody for about three

weeks. The respondent husband initially filed a Judicial

Separation Case No. 20 of 2001 under
Section 10
of the Hindu

Marriage Act (hereinafter referred to as the Act) before the

learned District Judge, Bhojpur for grant of judicial separation.
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Later on the same was converted into Matrimonial Case No. 763

of 2012.

The appellant wife appeared in the matrimonial case,

filed her written statement claiming that the matrimonial case is

not maintainable and the same has been filed in retaliation to the

complaint lodged by the appellant. The appellant was tortured

for non-fulfillment of further dowry demand of a Hero Honda

motorcycle and Rupees Fifty Thousand for starting business by

the respondent. The appellant claimed neither to have

misbehaved or committed cruelty nor to have taken any drug

and there is no proof with regard to that. The appellant is still

ready to resume the conjugal life and she claims to have left the

matrimonial house on 1.10.2002. No effort was made to

reconcile the issue and the appellant never had any relationship

with any boy and has not made any admission to that effect

before the respondent and neither the name of the boy has been

disclosed nor he has been made party to the proceeding.

The learned Family Court framed the following issues:

"1.Is the suit as framed maintainable?

2.Has the petitioner got valid cause of action
for he suit?

3.Whether the respondent has committed
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cruelty with the petitioner and his family
members?

4.Whether the respondent has deserted the
petitioner?

5.Whether the petitioner is entitled for
dissolution of his marriage by a decree of divorce?

6.To what relief or reliefs, if any is the
petitioner entitled?"

The respondent husband examined four witnesses. P.

W. 1 Mahakant Prasad, neighbour of the respondent, P.W. 2

Hare Krishan Singh, another neighbour of the respondent, P.W.

3 Satish Kumar, the respondent husband himself and P.W. 4 Anil

Kumar, brother of the respondent husband. To prove the case of

cruelty, the respondent husband has got the certified copy of

Complaint Case No. 2232C of 2002 exhibited as Ext. 1 and the

copy of the order dated 19.8.2008 passed by the Patna High

Court in Cr. Revision No.551 of 2007 and other certified copies

of the petitions and affidavits have also been exhibited.

The appellant wife also examined seven witnesses. O.P.

Witness No. 1 Shakuntla Devi, own sister of the appellant, O.P.

Witness No 2 Kiran Devi and O.P. Witness No. 3 Ravindra

Kumar Sharma, neighbours of the appellant, O.P. Witness No. 4

Bindeshwar Prasad, maternal uncle of the appellant, O.P.
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Witness No. 5 Anita Devi, appellant herself, O.P. Witness No. 6

Tetri Devi, neighbour of the appellant and O.P. Witness No. 7

Vinay Kumar Yadav, the brother of the appellant wife.

The learned Additional Principal Judge, Family Court

found that on the ground of desertion the marriage could not be

dissolved as the marriage between the parties was admittedly

performed on 13.2.2000, initially the matrimonial case for

judicial separation was filed on 27.4.2001 and subsequently vide

order dated 5.11.2011 the case was converted into divorce case.

Hence, it was contrary to the provision under Section 13(1)(i-b)

of the Act which mandates that the marriage can be dissolved by

a decree of divorce on the ground that the other party has

deserted the petitioner for a continuous period of not less than

two years immediately preceding the presentation of the

petition. In the present case, admittedly, within one year the case

for judicial separation was filed which was ultimately converted

into a divorce case.

So far as the question of cruelty is concerned, it has been

decided by the learned Additional Principal Judge, Family

Court in favour of the respondent husband on the ground that

by filing criminal case by the appellant wife he was compelled

to remain in custody for twenty days and during the proceeding
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of the complaint case the complainant wife created nuisance in

the concerned court and above all, they are residing separately

since more than twelve years and hence, all these facts suggest

that the appellant wife has been cruel to the respondent husband.

The finding recorded in paragraph 19 of the impugned

judgment is as follows:

"In this case admittedly both the parties are
living separately for more than 12 years and
admittedly there is no any relationship of
husband and wife in between the parties for
the last one decade. As per statements of
respondent's witnesses, respondent bears
good behaviour and peace loving lady, then
the question arises why both the parties are
living separately for the last several years. In
this case the respondent filed a criminal case
under
Section 498(A)
of the IPC against the
petitioner for want of illegal demand of
money, but the respondent chased the
petitioner to the Hon'ble High Court Patna
where the privilege of bail was cancelled
because of non-compliance of the order by
the petitioner and the petitioner remained in
jail for more than 20 days and lastly got the
privilege of bail from the Supreme Court.
During the course of hearing of Complaint
Case No. 2231(C) of 2002 respondent
misbehaved with the petitioner and created
nuisance in the court as Ext.3 and 4 go to
show. Meaning thereby the relationship in
between the parties was not cordial and day
by day became strained more and more and
the respondent did not leave any stone
unturned to get the petitioner harassed. These
facts itself goes to show that the conduct of
the respondent was/is cruel against the
petitioner. These conduct of the respondent
corroborates the facts placed by the petitioner
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that the respondent abused them in filthy
languages and quarrel in family on petty
matter and did not allow the petitioner to
cohabit with her, whatever the reason may
be."

Learned counsel for the appellant submits that the

marriage has been dissolved contrary to the evidence on record.

No instance of cruelty has been given. The learned Court below

has failed to consider that there is no claim of physical torture,

rather it is a mental torture and all the instances which have

been considered for causing mental cruelty to the respondent

husband are subsequent to the filing of the matrimonial case.

The respondent did not take any effort to reconcile the issue.

Specific case of the appellant wife in written statement is that

she is ready to resume the conjugal life and the witnesses

adduced on her behalf, particularly, O.P. Witness No. 4, the

maternal uncle of the appellant wife and O.P. Witness No. 7, the

brother of the appellant have deposed that the appellant is still

ready to resume the conjugal life.

It is further submitted by the learned counsel for the

appellant that the irretrievable breakdown of marriage is not a

ground of dissolution of marriage under
Section 13
of the Act,

yet the marriage has been considered to be irretrievably broken
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down. The respondent was in jail since he failed to comply the

order of the Court of payment of maintenance amount and

litigation cost, which he undertook to pay, as a result his bail

was cancelled and ultimately, he was granted bail by the

Hon'ble Supreme Court on the condition that the respondent

husband will pay Rupees One Thousand to the appellant wife

per month.

Learned counsel for the respondent submits that the

respondent husband was tortured and there is specific instance

to that effect. The appellant wife misbehaved not only with the

respondent husband, but also with his parents. The appellant

used to consume drugs and she never allowed the respondent to

have physical relationship as she remained at her parents house.

Hence, the impugned judgment does not need any interference.

Having heard learned counsels for the parties, this much is

an admitted position that the marriage was performed between

the appellant and the respondent on 13.2.2000. The respondent

husband initially filed Judicial Separation Case No. 20 of 2001

for grant of judicial separation on 27.4.2001 i.e. within fourteen

months of the marriage. Subsequently, vide order dated

5.11.2011
the said case was converted into a Divorce case on

filing of the amendment by respondent husband.
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Section 10
of the Act deals with the option of judicial

separation which allows either party to a marriage to present a

petition praying for a decree for judicial separation on any of

the grounds specified in sub-section(1) of
Section 13
of the Act

or any one of the grounds specified under sub-section (2)

thereof. Section 13(1)(i-b) of the Act clearly suggests that on the

ground of desertion the dissolution of marriage can be claimed

if the other party has deserted the petitioner for a continuous

period of not less than two years immediately preceding the

presentation of the petition. Meaning thereby, the application for

judicial separation was not maintainable in the present case, in

view of the embargo under Section 13(1)(i-b) of the Act, hence,

the learned Court below has rightly rejected the claim of the

respondent husband for dissolution of marriage on the ground of

desertion.

So far as cruelty is concerned, the cruelty has not been

defined in the Act. The concept of cruelty and its effect vary

from individual to individual as has been held in the case of

Gananath Pattnaik Vs. State of Orissa, reported in (2002) 2 SCC

619. Paragraph 7 of the judgment reads as follows:

"7. The concept of cruelty and its effect varies
from individual to individual, also depending upon
the social and economic status to which such
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person belongs. "Cruelty" for the purposes of
constituting the offence under the aforesaid section
need not be physical. Even mental torture or
abnormal behaviour may amount to cruelty and
harassment in a given case."

Cruelty can be physical and mental both. It is difficult to

prove mental cruelty by direct evidence as the mental cruelty is

the state of mind and feeling caused to one side with the

behaviour and conduct of the other side.

In the present case, from perusal of the evidence adduced,

it appears that the respondent husband has not alleged any

physical cruelty but only a mental cruelty and to prove the same,

it is said that the behaviour of the appellant wife was not good

with the respondent and his parents, the appellant wife used to

consume certain drugs, but the time and date of such

misbehaviour has not been mentioned, nor any witness has

suggested like that. Out of four witnesses, P.Ws 1 and 2 are

neighbour of the respondent husband who are hear say

witnesses. In a matrimonial suit the best witnesses are family

members, but the only family member apart from the

respondent husband, is P.W. 4 Anil Kumar, the brother of the

respondent husband. P.W. 1 and P.W. 4 in their evidence have
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stated that the appellant wife remained in the matrimonial house

only for 22 days. No medical opinion has been brought on

record to prove that the appellant wife used to consume certain

drugs. So far the issue of cruelty by filing criminal case under

Section 498A
of the IPC is concerned, that may not be

considered as cruelty. Moreover, the criminal case was filed

subsequent to the filing of the matrimonial case for judicial

separation and the bail of the respondent husband was cancelled

due to default in complying the order of the Court.

It is well settled law that no party can be permitted to

carve out issues for destroying the institution of marriage on

frivolous ground. Day to day wear and tear cannot be treated as

cruelty. So far as mental cruelty is concerned, in the case of

Samar Ghosh Vs. Jaya Ghosh
, reported in (2007) 4 SCC 511,

the legislature has been carved out indicating the instances of

mental cruelty. Paragraph 101 of the judgment reads as follows:

"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
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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)***

(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)-(ix)***

(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
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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)-(xiii)***

(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."

There is nothing on record to suggest that it was

impossible for the respondent husband to live with the appellant.

The very limited period of stay of the appellant wife at the

matrimonial house suggests that it was too early to claim

judicial separation on the ground of cruelty and desertion. The

meticulous analysis of the materials on record suggests that the

present case does not come within the purview of the instances

enumerated in the case of
Samar Ghosh
(supra) with regard to

mental cruelty.

In the case of
K. Srinivas Rao Vs. D.A. Deepa
, reported
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in (2013) 5 SCC 226, certain more grounds have been added as

instances of mental cruelty, like, making unfounded indecent

defamatory allegation against the spouse or his or her relatives

in the pleadings, filing of complaints or issue notices or news

items which may have adverse impact on the business prospect

or the job of the spouse and filing repeated false complaints and

cases in the court against the spouse may amount to mental

cruelty. Paragraph 16 of the judgment reads as follows:

"16. Thus, to the instances illustrative of
mental cruelty noted in Samar Ghosh [(2007) 4
SCC 511] , we could add a few more. Making
unfounded indecent defamatory allegations against
the spouse or his or her relatives in the pleadings,
filing of complaints or issuing notices or news
items which may have adverse impact on the
business prospect or the job of the spouse and filing
repeated false complaints and cases in the court
against the spouse would, in the facts of a case,
amount to causing mental cruelty to the other
spouse."

The present case also does not come under any of the

instances of mental cruelty as enumerated in above quoted

judgments.

Hence, in view of this Court, the evidence with regard to
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the cruelty has not been appreciated in its true perspective and

hence the ground of cruelty has not been proved by the evidence

on record.

It is also apt to consider that in the present case,

matrimonial proceeding got initiated within a little over one

year of the marriage and delay in disposal of the matrimonial

case cannot give a rope for dissolving the marriage. However in

the case of
K. Srinivas
(supra), the Hon'ble Supreme Court

suggested that the idea of pre-litigation mediation and such

mediation can be had by resorting to the provision of
Section 9

of the Family Courts Act. Paragraph 46.1 of the judgment reads

as follows:

"46.1. In terms of
Section 9
of the Family
Courts Act, the Family Courts shall make all efforts
to settle the matrimonial disputes through
mediation. Even if the counsellors submit a failure
report, the Family Courts shall, with the consent of
the parties, refer the matter to the mediation centre.
In such a case, however, the Family Courts shall set
a reasonable time-limit for mediation centres to
complete the process of mediation because
otherwise the resolution of the disputes by the
Family Court may get delayed. In a given case, if
there is good chance of settlement, the Family
Court in its discretion, can always extend the time-
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limit."

Section 9
of the Family Courts Act, 1984 casts the duty

upon the Family Court to persuade the parties to arrive at a

settlement in respect of the matrimonial dispute.
Section 9
of the

Family Courts Act reads as follows:-

"In every suit or proceeding,
endeavour shall be made by the Family Court in
the first instance, where it is possible to do so
consistent with the nature and circumstances of
the case, to assist and persuade the parties in
arriving at a settlement in respect of the subject-
matter of the suit or proceeding and for this
purpose a Family Court may, subject to any rules
made by the High Court, follow such procedure
as it may deem fit. -(1) In every suit or
proceeding, endeavour shall be made by the
Family Court in the first instance, where it is
possible to do so consistent with the nature and
circumstances of the case, to assist and persuade
the parties in arriving at a settlement in respect
of the subject-matter of the suit or proceeding
and for this purpose a Family Court may, subject
to any rules made by the High Court, follow
such procedure as it may deem fit."

(2) If, in any suit or proceeding, at any
stage, it appears to the Family Court that there is
a reasonable possibility of a settlement between
the parties, the Family Court may adjourn the
proceedings for such period as it think fit to
enable attempts to be made to effect such a
settlement.

(3) The power conferred by sub-

section (2) shall be in addition to, and not in
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derogation of any other power of the Family
Court to adjourn the proceedings."

From the above provision, it is crystal clear that in

every suit or proceeding, the Family Court has to take effort at

the first instance where it is possible to do so consistent with the

nature and circumstances of the case, and to assist and persuade

the parties in arriving at a settlement in respect to the

matrimonial dispute.

Section 23(2)
of the Hindu Marriage Act, 1955 also

casts a duty upon the Court to bring about reconciliation.

Section 23(2)
of the Hindu Marriage Act, 1955 reads as

follows:-

"Before proceeding to grant any relief
under this Act, it shall be the duty of the Court in
the first instance, in every case where it is
possible so to do consistently with the nature
and circumstances of the case, to make every
endeavour to bring about a reconciliation
between the parties:

Provided that nothing contained in this
sub-section shall apply to any proceeding
wherein relief is sought on any of the grounds
specified in clause (ii), clause (iii), clause (iv),
clause(v), clause(vi) or clause (vii) of sub-
section (1) of
Section 13
."

There is nothing on record to suggest that any effort was

made by the learned Additional Principal Judge, Family Court to
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get the issue reconciled between the parties before deciding the

issue on merits.

In view of the discussions made above, we are of the

considered opinion that the marriage has been dissolved

contrary to the evidence on record. As a result, the impugned

judgment and decree dated 27.7.2013 and 12.8.2013 passed by

the learned Additional Principal Judge, Family Court, Patna in

Matrimonial Case No. 763 of 2012 is set aside.

Accordingly, this Miscellaneous Appeal is allowed. Let

the decree be prepared accordingly.

(Dinesh Kumar Singh, J)

( Prabhat Kumar Singh, J)

anil/-

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