HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
(HON. SHRI JUSTICE S.K. GANGELE AND
HON. SHRI JUSTICE S.K. PALO
First Appeal No.25/2010
Manoj Kumar Soni
Smt. Deepti Soni @ Rinki
Appellant by Shri Rajnish Sharma, Advocate.
None for respondent.
(17.09.2014) Per Justice S.K. Palo Aggrieved by the judgment pronounced on 23rd November, 2009, by the Third Additional District Judge, Vidisha, in case No.69-A/2008 (H.M.A), the applicant/ husband has filed this appeal under Section 28 of the Hindu Marriage Act, 1955.
2. It is not disputed that the marriage between the applicant/husband and the non-applicant/wife was solemnized on 7th March, 2006 at Agrawal Dharmshala, Vidisha, by observing Hindu customs.
3. Brief facts transpired before the learned trial Court is as under:-
The applicant/husband filed an application under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (herein after referred as the Act, 1955) for brevity on the ground of cruelty against the non-applicant wife. It is contended in the application that after their marriage it was normal for few days but later the behaviour of the non-applicant/ wife became ‘cruel’ towards the applicant/husband and his family members. Non-applicant/wife did not want to cohabit with the applicant/husband. She never wanted to conceive and was pressurizing the applicant/husband not to insist for children. She refused to wear the mangalsutra given by the in laws demanded for a mangalsutra worth Rs.60,000/-. The applicant being a poor man could not afford the same. These facts were communicated to the family members of non-applicant/ wife. She also used to say that he is not eligible for her, he is less educated whereas she has passed M.A. This, always made the applicant/husband mental tension. She also threatened to commit suicide. She was treating the 70 years old mother of the applicant with cruelty. She was also not co-operating in discharge of the domestic works such as washing utensils and preparing food etc. She was compelling the applicant to keep a maid servant. The applicant’s mother is an old lady and is a heart patient. Whenever she found her mother-in-law alone, the non- applicant/wife always used to abuse her and used to give kicks and fists. When the applicant was hospitalized, the non-applicant did not come to see him. The applicant is unable to fulfill the demands of the non-applicant/wife as he is a person of low income.
The non-applicant/wife has always been quarreling with the applicant and she has been threatening to leave the house now and then. This behaviour of the non-applicant/wife caused mental torture to the applicant/husband and now they have come to such a stage that their living together is next to impossible. It is also claimed that non-applicant/wife left the matrimonial home on 23.06.2008 and did not return since then. The applicant claiming ‘cruelty’ has sought decree of divorce.
4. The non-applicant/wife, at the other hand, denied all the averments and claimed that she has never refused to conceive. For making it a ground of divorce, such an allegation has been levelled. The applicant/husband and the non-applicant/wife voluntarily agreed for the marriage. The allegations have been levelled by the applicant with intent to spoil the life of the non-applicant. The father of the non- applicant is working as auto driver at Delhi and is supporting his family. The non-applicant/wife is living at village Silvani with his maternal uncle who performed the marriage and spend the marriage expenses of the non-applicant.
5. It is contended that immediately after the marriage, the appellant/husband started harassing the non-applicant/wife for bringing less dowry and pressurized her for bringing more. She was tortured mentally and physically. The non-applicant/wife claimed that she is an educated and morally sound lady. She has respect for her husband, therefore, she tolerated all the cruelty with the believe that some day things will be normal. But, the applicant/husband did not obliged to perform marital duties. He used to beat the non-applicant/wife now and then for small matters. In this regard, a report was lodged by the non- applicant/wife on 3rd July, 2007. To avoid any action against him, the applicant/husband has filed this application on basis of imaginary grounds. The learned trial Court after framing issues and adducing evidence pronounced the impugned judgment on 23.11.2009. The learned trial Court did not find it a suitable case for grant of a decree of divorce.
6. The appellant/husband has assailed the impugned judgment on several grounds. It is contended that the order of the trial Court is illegal, arbitrary and against the well settled principles of law. It is averred that the learned trial Court decided the matter over looking the entire evidence and without going into the citations placed by the applicant/husband. It is alleged that the learned Court below did not even discuss the case laws which are relevant to the applicant’s case. The preposition of law is very trite in the matter. A case law which is going to be relied upon has to be discussed after taking into consideration the factual scenario than the learned trial Court may place reliance thereon. But, in the present case, no case laws has been cited.
7. The learned trial Court has taken the conduct of the non-applicant as “Ordinary wear and tear of married life” but it is the mental cruelty caused to the appellant/husband which is the parameter to determine the case.
8. We have heard the learned counsel for the appellant/husband in detail and gone through the record.
9. The learned trial Court in the impugned judgment has not considered the fact that the counter allegations of the respondent/wife that applicant/husband of harassing her for demand of dowry has not been proved. The learned trial Court even disbelieved the respondent/wife’s version the reasons assigned by her. But, at the same time, the learned trial Court did not believe the appellant/husband for not producing independent witness. It is true that independent witnesses are seldom available in such cases. The evidence in matrimonial case, must preponderate in favour of the petitioner and must be clear and satisfactory because the allegations levelled must be established on the principle of “preponderance of probability”.
10. When disruption takes place, leading to matrimonial litigation, especially on the ground of cruelty, the Court has to delve into facts and tried to ascertain not only in fact but also has to record the effect on the mind of complaining spouse. The concept of proof beyond a shadow of doubt can only be applied to penal trials and not in cases of delicate relationships such as marriage. In this regard reference can be made to “Maya Devi Vs. Jagdish Prasad AIR 2007 SC 1426.”
11. Reverting back to the evidence part, we infer that the non-applicant/wife has made the statements according to her convenience. She has admitted that the marriage was solemnized without any interference and her husband was treating her normally. She also submits that her husband is knowing about her family income. But she alleges that her husband was demanding money from her family. How much money he was demanding, the non-applicant/wife has not mentioned and not even disclosed when she was asked to say so in her cross examination. She went to the extent of saying that as regarding the demand of money she has not disclosed to her family members. As regarding the report Exhibit D-1 lodged by her she has not made clear that her husband was demanding money or dowry. That being so, the conduct of the non-applicant/wife can be inferred.
12. Regarding “cruelty”, applicant Manoj has alleged that the non-applicant/wife was not discharging her duties as wife and not cooperative in doing the domestic work. This statement is corroborated by two cousins of the applicant and Smt. Kanduribai, a relative of both the parties.
13. Besides, it is also to be noted that non-applicant Dipti Soni has further admitted that she was taken to the Doctor several times for treatment by her husband during the period from 2006 to 2008. She denied knowing Dr. Indu Jain’s Maternity Hospital. But she accepted that her husband used to take her to Dr. Indu Jain for treatment and several tests were also performed there. This indicates that the applicant/husband was caring and was having no ill intention towards the non-applicant/wife. She also admits that there had been several quarrels at their home and people of the neighbours used to gather outside their house. This happened once or twice in a month. All these goes to show that the non-applicant/ wife has been pretending to avoid the allegation brought against her.
14. The applicant/husband has clearly indicated that the non-applicant/wife deserted him on 23rd June, 2008 and started living with her mousi.
15. The non-applicant/wife in her cross examination stated that it is the applicant/husband who took her to her mousi’s house and left her there. She admits that Kanduribai used to visit her matrimonial home several times. That being so, the statement of Tanduribai inspires confidence.
16. The learned counsel for the appellant relied on Praveen Mehta Vs. Inderjit Mehta, (2002) 5 SCC 796 and Jhonson M. Joseph alias Shajoo Vs. Smt. Aneeta Jhonson, 2004 (5) MPHT 410 which are not attracted in the present case for the facts of those cases are different.
17. Reliance has been placed by the counsel for the appellant in Smt. Kavita Vs. Harish Raisen, 2006(2)MPHT 515 (DB) in which it has been held that, The Hindu Marriage Act (15 of 1955), Section 13(1)(ia)–Cruelty–Institution of a false criminal case under Section 498-A and 50B, IPC against the husband and his family members leading to their arrest at the instance of the wife, amounts to ‘cruelty’ as a ground of divorce, under Section 13(1)(ia)- So also wild unsubstantiated allegations that the husband was having illicit relationship with another woman is also cruelty
–Decree of divorce obtained by the husband upheld in appeal– Wife’s appeal dismissed”
18. Another case relied by the learned counsel for the appellant is Smt. Vandhana Gupta Vs. Rajesh Gupta, 2009 (1) MPHT 72 (DB), in which this High Court has ruled that, “Hindu Marriage Act(25 of 1955), Sections 13 (1) (ia) and 13(1)(ib)–Family Court allowed respondent’s petition for divorce and dismissed appellant/wife’s petition for restitution of conjugal rights– Against it, this appeal–No evidence about demand of dowry, harassment and torture by respondent/husband– Appellant/wife levelled false allegations of demand of dowry which could not be established in evidence–Making such false allegations amounts to cruelty–It was also proved that appellant/wife used to call respondent/husband impotent in the form of abuse–Her behaviour was not proper–She used to threaten him to involve in criminal case and was not doing any household work–All these acts amounts to cruelty–Thus, ground under Section 13 (1)(ia) was made out–It was proved that appellant/wife treated respondent/husband with cruelty– Further held–She was responsible for living separately without any just and proper cause– She deserted him–Hence, respondent was entitled for decree of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Act, 1955–Appeal dismissed”
19. The law has been explained in Dinesh Vs. Shantibai, 2011 (4) M.P.L.J, 710, in which a Division Bench of this ruled that, “The cruelty has not been defined under the Hindu Marriage Act, but by way of several judicial pronouncements the concept and scope of physical and mental cruelty has been elaborated. It is the settled position in law that the word cruelty has been used in section 13(1) (i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial differences of obligations. It is a course of conduct of one which is adversely affecting the other. If the cruelty is physical, it is a question of fact and degree and if it is mental, the enquiry should begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Mental cruelty 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. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case taken cumulatively.”
20. The respondent/wife left the matrimonial home in the year 2008. In our opinion the ill-treatment to the mother of the applicant and the acts of the respondents towards the petitioner and the circumstances and the conduct of the respondents amounts to “cruelty”. It is abundantly clear that the non-applicant/respondent has committed ‘cruelty’ towards the applicant/ husband as contemplated in the provisions of Section 13 (1)(ia) of the Hindu Marriage Act, 1955.
21. For the reasons discussed above, we allow the appeal and set-aside the judgment dated 23.11.2009, we grant a decree of divorce in favour of the appellant under Section 13 (1)(ia) of the Hindu Marriage Act, 1955.
22. Keeping in view the peculiar circumstances of this case, we do not order as to costs.
(S.K. Gangele) (S.K.Palo)