HIGH COURT OF JUDICATURE AT ALLAHABAD
First Appeal No.451 of 2012
Smita Tripathi …….. Appellant
Vikram Singh ……. Respondents
First Appeal No.452 of 2012
Smita Tripathi …….. Appellant
Vikram Singh ……. Respondents
Hon’ble Tarun Agarwala,J.
Hon’ble Surya Prakash Kesarwani, J.
(Per:- Tarun Agarwala, J.) (Delivered on 8th October, 2015)
This is an unusual case where a marriage has gone sour. The appellant and the opposite party fell in love, ran away from their parental home and got married secretly in an Arya Samaj Mandir on 2nd December, 2005. Subsequently, the marriage was registered on 1st March, 2006. The couple stayed together as husband and wife till 24th March, 2006. It is alleged that an incident occurred on 24th March, 2006, which changed the destiny of the couple. It is alleged that during Holi festival, the appellant went to her parents place and, at that stage, the husband and his family members made a demand of Rs.3 lacs as dowry, which the appellant and her family members refused. It is alleged that when the appellant came back to her husband’s place she was beaten up and was made to sign an application, which was addressed to Police Station Nazibabad and, thereafter, was given a poison. She was subsequently taken to the hospital by her father-in-law and brother-in-law indicating it as a case of attempt to commit suicide and, after getting the appellant admitted, left the hospital. The appellant alleged that she somehow intimated her parents, who took her to Hamirpur on 26th March, 2006 where the husband and his family members threatened them. The appellant also asserted that during her stay with her husband, she was physically and mentally tortured and at times was beaten up. It was contended that a first information report dated 28th March, 2015 was lodged against the opposite party and her family members under Section 498A, 307 I.P.C. and other allied sections as well as under Section 3/4 of The Dowry Prohibition Act, 1961. On these facts, a suit for divorce on the ground of cruelty was filed by the appellant.
The opposite party filed the written statement denying the allegations contending that after getting married they lived separately and did not live with his parents. The allegation of demand of dowry was denied and the incident dated 24th March, 2006 was also denied in the manner in which the appellant had alleged. According to the opposite party, the appellant went to her parents place during Holi festival where she was pressurized not to go back to her husband’s place and when pressure was exerted, she consumed poison. The opposite party contended that when he was informed, he rushed and took the appellant to the hospital and got her admitted and took steps for her treatment but after two days the parents of the appellant took her away from the hospital while the opposite party had gone out to purchase medicines. In this regard, the opposite party sent a telegram to the S.S.P. It was also stated that during the course of mediation, the appellant’s parents, in connivance with the police, forced the opposite party to consume poison at the police station, as a result of which, he was hospitalised and that the police lodged a first information report against him. It was also contended that the opposite party made efforts to bring the appellant back to his house and when all efforts failed, he filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. As a counterblast, the appellant filed the suit for divorce under Section 13 of the Act.
The trial court after sifting through the evidence allowed the application for restitution of conjugal rights and directed the appellant to live with her husband and perform her marital obligations. By another order, the trial court dismissed the suit for divorce. The appellant, being aggrieved by the aforesaid two orders, has filed two separate appeals, which have been clubbed together and are being decided.
The trial court held that the parties had a love marriage and that they got married after running away from their parental home and that the parents were not involved and, therefore, the question of demand of dowry from the side of the husband’s parents did not arise. The court below disbelieved the theory of dowry as raised by the appellant contending that if the opposite party had raised a demand of dowry immediately after the marriage, in which case, the marriage would not have been registered. The trial court further found that after marriage, the couple were living separately and that the appellant was not living with her in-laws, inasmuch as the appellant could not remember the size of the room or the effects inside the room where she was staying nor could she remember or recognize her sister-in-law and other members of her husband’s family. The trial court held that the appellant could not prove that she was living with her in-laws. The trial court also held that the divorce suit was filed after the application filed under Section 9 of the Act for restitution of conjugal rights. The trial court further found that there was no evidence of cruelty being imposed upon her either physically or mentally, inasmuch as no evidence was filed nor any injury was reported by the appellant.
Before this Court, the same allegations were reiterated and, on the basis of the evidence filed before the trial court, it was urged that the decree of divorce should be granted and the order for restitution of conjugal rights should be set aside.
In this backdrop, we have heard Sri Apurv Hajela, the learned counsel for the appellant and Sri Nisar Uddin, the learned counsel for the opposite party.
After hearing the learned counsel for the parties and, after perusing the record and, after considering the statements of the parties given before us during the course of mediation, we find that the appellant has failed to prove the incident of 24th March, 2006, namely, that poison was given to her at the instance of her husband or his family members. We also find that the appellant has failed to prove that she was beaten up by her husband or by her in-laws. We find that there is not a shred of evidence on this aspect. We also find that the appellant has also failed to prove the demand of dowry.
In the light of the aforesaid, we find that on the basis of the material which was brought on record before the trial court, we are of the opinion that the order of the trial court does not suffer from any manifest error of law. However, subsequent events need to be taken note of which will have a bearing to the ultimate result of the appeal.
During the proceedings before the trial court, the appellant’s statement was recorded contending that under no circumstances, she would stay with her husband even if he withdraws his claim for dowry. The trial court while dealing with this statement concluded that no specific reason was given by the appellant and, therefore, disbelieved her statement.
Before we started hearing the matter, we found that the previous Bench of this Court, by an order dated 21st February, 2014 had called both the parties for a possible settlement. On 11th March, 2014, the Court has passed the following order:
“These are two appeals filed by the wife Smt. Smita Tripathi. In order to explore possibility of amicable settlement vide order dated 21-02-2014 , we required presence of both the parties in person today.
In pursuance of the aforesaid order, the appellant Smt. Smita Tripathi and the respondent Sri Vikram Singh have appeared before us. They have been identified by their respective counsel. We have interacted with them individually and in presence of each other along with their counsel. After going through the record, we find that a large number of criminal cases filed by them against each other are pending. Both the parties are ready for divorce with consent and amicable settlement. However, pending criminal proceedings are standing in the way of amicable settlement. Both the parties have agreed before us that all the criminal case filed by them against each other may be disposed of in accordance with the terms of the settlement arrived at between them.
Let an affidavit be filed by both the parties bringing on record the terms settled so that the same become part of the record. Learned counsel for the parties prays for and is allowed two weeks time for the purpose.
List the matter on 27th March, 2014 by which time both the parties may file their affidavits. The parties need not appear on the said date. ”
A perusal of the aforesaid order indicates that the opposite party, namely, the husband agreed to give a divorce but failed to file an affidavit indicating the terms of settlement. Considering the aforesaid order, we also directed the parties to appear in person before the Court. Both the parties appeared. The appellant was adamant and contended that under no circumstances she would go back to her husband’s place. The opposite party however, contended that he is willing to keep the appellant as his wife and as a guarantee, he would keep a sum of Rs.3 lacs in a fixed deposit in her name. The opposite party further contended that the statement, which he had given to the Court earlier was being withdrawn and that he wants the appeal to be decided on merits.
On our query as to why he was so eager to continue with the marriage, the opposite party contended that if a divorce is granted, he would be ostracised and would be put to shame by his family members and friends. He also pointed out a strange fact contending that the appellant became pregnant and that she aborted the foetus when she started living with her parents. This startling fact was never alleged in the written statement nor argued before the trial but the opposite party contended that this fact can be borne out from the medical records of the hospital when the appellant was admitted in the hospital on 24th March, 2006. The appellant, when accosted with this fact, has denied it vehemently. In effect, the opposite party contended that he is a victim of cruelty rather than the appellant being a victim of cruelty. We also find that during the pendency of the proceedings number of cases have been filed by both the sides. The criminal cases that has been filed by the appellant are Complaint Case No. 7967 of 2011, under Sections 498A, 307, 323, 504, 506 I.P.C. and 3/4 of Dowry Prohibition Act and Case No.1076 of 2014, under Section 506 I.P.C. and the cases filed by the opposite party are Complaint Case No.2816 of 2010, 323, 504, 506, 324 I.P.C. and Case No.1405 of 2011, under Sections 324, 323, 504, 506 I.P.C.
One startling fact, which comes to our notice which also have a bearing is the first information report dated 19th December, 2014 lodged by the appellant against the opposite party in which it is alleged that after the order of this Court dated 11th March, 2014 the opposite party started sending messages on the appellant’s mobile and also called her. It is alleged by the appellant that the opposite party made a demand of Rs.5 lacs for granting divorce and for filing an affidavit to that extent before the High Court. The matter was investigated wherein it was found that calls and messages was sent by the opposite party to the appellant and a charge sheet has been filed in January, 2015.
In the light of the aforesaid, the question is whether the allegations made by the appellant and the subsequent events constitute cruelty or not. Section 13(1)(ia) of the Hindu Marriage Act specifies cruelty. For facility, Section 13(1)(ia) of the Act is extracted hereunder:-
“Section 13: Divorce.
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (ia) has after the solemnisation of the marriage treated the petitioner with cruelty.”
Cruelty contemplated under Section 13(1)(ia) of the Act is both physical and mental. Prior to 1976, cruelty was not a ground for claiming divorce under the Act and was only a ground for claiming judicial separation. After the amendment, considering the changing mores of the society, cruelty became a ground for claiming divorce. In Dastane Vs. Dastane, AIR 1975 SC 1534, the Supreme Court held:
“….. that where an allegation of cruelty is made, the inquiry has to be “whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent…..”
In V. Bhagat Vs. S.D. Bhagat, 1993 Law Suit (SC) 983, the Supreme Court explained mental cruelty as under:
“Mental cruelty in S. 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other works, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, education level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living part and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
In Ramesh Chander Vs. Savitri, AIR 1995 SC 851, the Supreme Court held:-
“…. Yet the marriage being dead, the continuance of it would be cruelty, specially when the child born out of the wedlock of the appellant and the respondent as far back as 1968 having now grown and being in service…..”
In A. Jayachandra Vs. Aneel Kaur, 2005 (2) SCC 22, the Supreme Court held:-
“The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.”
In Ravi Kumar Vs. Julmi Devi, 2010 (4) SCC 476, the Supreme Court held:
“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety – it may subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon Vs. Sheldon, (1966) 2 WLR 993 held that categories of cruelty in matrimonial cases are never closed.”
On the issue of break down of marriage the Supreme Court in Chandrakala Trivedi (Smt.) Vs. Dr. S.P. Trivedi, 1993 (4) SCC 232 held that when allegations are made by husband and wife, even though the said allegations are not proved, it is obvious that the marriage between the two cannot, under any circumstances, continue any further. The Supreme Court held that in such a situation the marriage becomes practically dead.
In V. Bhagat (supra) the Supreme Court held that when the circumstances are such that there is an irretrievable breakdown of marriage, the marriage between the parties has to be dissolved.
In G.V.N. Kameswara Rao Vs. G. Jabilli, 2002 (2) SCC 296, the facts were that the wife alleged that the husband was not interested in living with her and was all the time attending parties, watching T.V. and playing cards and that the husband completely neglected the appellant. The allegations was not satisfactorily substantiated before the Family Court. The Supreme Court, after considering various incidents that was brought out in the evidence, held that the relationship between the parties indicated complete breakdown of marriage because of the non co-operation and hostile attitude of the husband which led to traumatic experience by the wife, which was termed as “cruelty” within the purview of Section 13(1)(i-a). The Supreme Court held:
“We do not think that this is a case, where the appellant could be denied relief by invoking Section 23(1)(a) of the Hindu Marriage Act. On the other hand, various incidents brought out in the evidence would show that the relationship between the parties was irretrievably broken, and because of the non-cooperation and the hostile attitude of the respondent, the appellant was subjected to serious traumatic experience which can safely be termed as “cruelty” coming within the purview of Section 13(1)(i-a) of the Hindu Marriage Act. Therefore, we hold that the appellant is entitled to the decree for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act. However, we make it clear that any order of maintenance passed in favour of the respondent will stand unaffected by this decree for dissolution of the marriage. We also make it clear that if any rights have been accrued to the respondent in the joint assets of both, she would be at liberty to take appropriate action to enforce such rights. The appeal is allowed. Parties to bear their respective costs.”
Smililarly, in Parveen Mehta Vs. Injerjit Mehta, 2002 (5) SCC 706, the Supreme Court noted that where the parties stayed together for a short period of four months and many years had elapsed since they parted company, as such, it could be safely inferred that the marriage between the parties had broken down irretrievably. The Supreme Court held :-
“As noted earlier, the parties were married on 6.12.1985. They stayed together for a short period till 28.4.1986 when they parted company. Despite several attempts by relatives and well-wishers no conciliation between them was possible. The petitioner for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the respondent. Further, the respondent has remarried in the year 2000. On this ground also the decision of the High Court in favour of the respondent’s prayer for dissolution of the marriage should not be disturbed. Accordingly this appeal fails and is dismissed. There will, however, be no order for costs.”
In the light of the aforesaid, the plaintiff, namely, appellant is required to prove that the respondent had treated her with cruelty within the meaning of Section 10(1)(ib) of the Act but does the law require that the appellant must prove her case beyond a reasonable doubt? Even though, the burden lies upon the appellant to establish the charge of cruelty, the question is as to what is the standard of proof to be applied in order to judge whether the burden has been discharged or not. In our view, the rule which will govern in matrimonial petitions is, that a fact could be established, if it is proved by a preponderance of probabilities. Proof beyond a reasonable doubt is a proof of a higher standard, which generally governs criminal trials or trials involving inquiry into issues of a quasi criminal nature. Such proof beyond a reasonable doubt could not be imported in matters of pure civil nature especially matrimonial matters.
The inquiry, therefore, which has to be conducted is, whether the charge of cruelty is of such a character which can cause a reasonable apprehension in the mind of the appellant that it would be harmful or injurious for her to live with the opposite party. It is not necessary that cruelty must be of such a character so as to cause danger to her life or health but if it gives rise to a reasonable apprehension of such danger it would come under the category of cruelty.
In the light of the aforesaid, we find that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Taking out faults is expected and is bearable to a certain extent but petty differences should not be exaggerated or magnified to such an extent to destroy the fabric of marriage of what is supposedly made in heaven. Such differences eventually leads to absence of mutual respect. Such absence of mutual respect, in matrimonial matters would amount to cruelty.
Cruelty in matrimonial matters cannot be judged by any predetermined rigid formula. There can be any types of cruelty in matrimonial matters. It may be subtle or brutal. It can be by gestures or by words. The categories of cruelty can never be defined and can never be closed.
Considering the subsequent events, we find that the parties cohabited for a short duration of four months. For the last nine years, they are living separately. The relationship has embittered as both parties have filed criminal cases, which are pending. They are still hurling accusation against each other. The appellant contends that the opposite party is now demanding Rs.5 lacs in order to grant divorce. On the other hand, the opposite party, now levels a charge that the appellant aborted the foetus. Such accusation indicates in no uncertain terms that the spark of love, affection or for that matter, infatuation, has gone out. There is absence of mutual respect. The outburst of behaviour by both the parties indicate the embittered relationship. Both are still undergoing traumatic experience. The appellant still feels strongly about the episode of her being poisoned and contends that she would be poisoned to death, if she ever goes back to her husband. Such apprehension, even if it is a reasonable apprehension, is of such nature that it cannot allow a party to live together. Such apprehension, in our minds would constitute mental cruelty. We are of the opinion that if the apprehension is of such a character that parties cannot live together, an inference can be drawn by such conduct of the parties that the treatment of either spouse is such that it causes an apprehension in the mind of the other spouse about his/her mental welfare. In our opinion, such conduct would amount to mental cruelty.
Marriage is a delicate human relationship. Proof beyond a reasonable doubt in matters of matrimonial dispute cannot be applied. On the other hand, matter has to be adjudicated on the basis of preponderance of probabilities especially in matters relating to mental cruelty. In such situation, the Court has to probe into the mental process and mental effects of various incidents that has taken place.
In the instant case, there is now lack of mutual respect. Both the parties are still levelling accusations against each other. Such accusation constitutes mental cruelty. The apprehension in the mind of the appellant that she will be administered poison cannot be ruled out. Such apprehension, even if it is assumed to be a reasonable apprehension would, in our view, constitute mental cruelty. Further, the parties are living separately for the last nine years. They only cohabited for a short period of four months. The spark between them have gone out. In our view, for all practical purpose, the marriage has broken down. It has become a dead marriage. In such a situation, the agony of continuing the marriage should not be prolonged. We find that the couple are still young. The appellant and the opposite party would be in their late twenties or early thirties. A whole life is ahead of them. They can start and build their lives afresh. It would be a travesty of justice, if in such a situation, the parties are directed to live together. Such direction would only bring more misery in their lives. The contention of the opposite party that he would be socially ostracised if the divorce is granted is misconceived. Such apprehension is an afterthought. The opposite party is living separately for the last nine years and nothing has been stated by him that during this period he was laughed at or secluded by his family and friends. In our view, people’s memory are short and one tends to forget the past. The opposite party is still young. He can still make a fresh start and raise a family.
We also find that the appellant had made a statement before the trial court that she would not demand alimony, in the event, a divorce was granted. Similar statement was also made by her before us.
In view of the aforesaid, we are of the opinion that in the facts and peculiar circumstances of this case, continuance of marriage would constitute cruelty. Consequently, the marriage cannot continue any further and is dissolved. No alimony is to be paid by the opposite party. The orders of the trial court are set aside. Both the appeals are allowed. In the circumstances of the case, parties shall bear their own cost.
(Surya Prakash Kesarwani, J.) (Tarun Agarwala, J.)