JUDGMENT
Hari Shankar Prasad, J.
1. This appeal at the instance of appellant-plaintiff is directed against the judgment and decree dated 15th February 2000 and 24th February 2000 respectively passed in Title (Matrimonial) Suit No. 2 of 1994 whereby the learned 1st Additional District Judge, Bokaro at Chas dismissed the suit. The aforesaid Title (Matrimonial) Suit was filed for dissolution as well as nullity of marriage under Sections 12(A) and 13(i)(a)(ii) of the Hindu Marriage Act, 1955.
2. The case of the appellant who is the plaintiff at the trial stage is that marriage between appellant-plaintiff and respondent No. 1 was solemnized on 1.3.1993 at Nawada according to the Hindu rites and customs. After the marriage on 2.3.1993 the respondent No. 1 was brought to her matrimonial house and during her stay in her sasural, she did not talk to anybody even with the appellant-plaintiff and whenever the appellant-plaintiff wanted to talk to respondent No. 1, she looked at him with anger is if she is ready to assault him and even sometime scolded him and did not allow the appellant-plaintiff to touch her body and when any indulgence for sex by the appellant-plaintiff was made, she bluntly refused by saying that she has no interest in such matter. When the plaintiff-appellant wanted to consummate his marriage with respondent No. 1 she slapped him, on this the appellant-plaintiff became very agitated. Thereafter all sorts of attempt to bring her to normal state of affairs were made but all went in vain. On 12.3.1993 respondent No. 1 went back to her naihar and at the time of her departure, defects of which respondent No. 1 was suffering were brought to the knowledge to her father, who assured the appellant-plaintiff to get her properly treated. But condition did not change. On 26.3.1993 he went to bring her back but he was not allowed to bring her back on the ground that occasion was not auspicious one. On 14.4.1993 he again went to naihar of respondent No. 1 and brought her to his matrimonial house, but even after her return to her matrimonial house, her attitude towards her husband and his family members did not change and she continued to abuse her sasural people and even her mother-in-laws and father-in-law and, therefore being compelled by the circumstances, he has filed this case for dissolution and nullity of marriage.
3. On the other hand, defendants-respondents appeared in the suit and filed W.S. and denied allegation of ill-treatment and desertion. The specific case of the defendant-respondent No. 1 is that when she came to her matrimortial house at Bokaro after her marriage with appellant-plaintiff where she started her marital life with her husband and her marriage with the plaintiff-appellant was consummated in all respects. The father of defendant-respondent No. 1 had met all the demands of dowry made by the plaintiff and had given cash amount of Rs. 46,000/- through Bank Draft as well as 20 tolas of gold ornament, etc, and in all, dowry of about rupees two lakh was given to her father-in-law but he was not satisfied and he was demanding a Maruti Car and other articles which father of defendant-respondent No. 1 was unable to meet and consequently she was driven out of the matrimonial house. She was assaulted by her sasural people and food was not provided to her. She has claimed herself to be a lady of sound mind and she has denied allegation that she had ever misbehaved with her sasural people and demonstrated mental unsoundness or she had refused to have sexual intercourse with her husband. When on 12.3.1993 she was sent to her naihar, at that time she was warned to come only with Maruti Car and ultimately she was brought to her matrimonial house on 12.4.1993 where she remained till 30.6.1993. A panchayati was also held and in that panchayati, her husband admitted to have meted out torture to respondent No. 1 and promised to keep her in proper condition, but the demand of a Maruti Car continued. Ultimately she was driven out of the house. Being compelled by the circumstances, she had to file a case under Section 498(A) IPC against her husband and other.
4. On the pleadings of the parties, following issues were framed for their determination in the suit.
1. Whether the suit as framed is maintainable?
2. Whether the plaintiff has any cause of action for the suit.
3. Whether the suit is barred under the principles of estoppel, waiver and acquiescence/
4. Whether the marriage between the plaintiff and defendant No. 1 was consummated?
5. Whether defendant No. 1 is suffering from any incurable unsoundness of mind or is impotent?
6. Whether defendant No. 1 had caused any mental torture and cruelty to the plaintiff on account of any misbehaviour on her part.
5. On the basis of issues framed, prayer for dissolution of marriage was not allowed and the suit was dismissed.
6. Learned trial Court recorded the evidence of witnesses and also documentary evidence and came to a finding that no case is made out for grant of relief as prayed for by the plaintiff-appellant in Title (Matrimonial) Suit No. 2 of 1993 and dismissed the suit.
7. The case, of the appellant-plaintiff is that marriage was solemnized on 1.3.1993 between the appellant-plaintiff and respondent No. 1 according to the Hindu rites and customs, Thereafter respondent No. 1 was brought to her matrimonial house on 2.3.1993 and after her arrival, she was always found to be in tense mental state of affairs and she behaved abnormally with her husband and even her sasural people and when this fact was brought to the knowledge of her parents, then they assured them to get her treated but every time she came to her sasural, she behaved abnormally and there was no change in her behaviour and she misbehaved with her husband and in-laws. Ultimately, compelled by the circumstances that he had no opportunity to sexual intercourse with her and she always behaved in very agitated manner when appellant-plaintiff tried to have his marriage consummated with her, he filed this title (Matrimonial) Suit for divorce as well as for nullity of marriage.
8. On the other hand, case of the defendant-respondent No. 1 is that she lived sometime with her husband and the marriage was consummated and pressure was put upon her to ask her father to give a Maruti Car and for that she was pressurized and assaulted and even she was not provided with food and ultimately, she was driven out of her matrimonial house. Now question that arise for determination are, whether plaintiff-appellant is entitled to the relief by dissolution and nullity of marriage.
9. Learned trial Court after careful scrutinizing the evidence-both oral and documentary brought on record-came to a finding that respondent No. 1 is not suffering from any mental abnormality and no case for grant of relief, as prayed for, is made out and, therefore, dismissed the suit.
10. Learned counsel appearing for the plaintiff-appellant submitted that witnesses examined on behalf of the plaintiff-appellant have stated about abnormal condition of mind of respondent No. 1, aggressive and abnormal behaviour, cruelty directed against the appellant and his parents, total denial of conjugal right are circumstances special in nature, necessitating consideration of annulment of marriage by decree of divorce. It was further submitted that these are such circumstances which compelled the plaintiff-appellant to file a suit for dissolution, annulment of marriage because it had became quite impossible for plaintiff-appellant to carry on day to day life with respondent No. 1 due to her abnormal state of mind, aggressive nature, cruelty meted out to the plaintiff-‘appellant, total denial of conjugal right. It was further pointed out that inspite of assurance given by the parents of respondent No. 1, they did nothing and there was no change even slightest in the mental condition of the respondent No. 1 and these facts were concealed from the plaintiff and his parents about the abnormal condition of mind from which, the respondent No. 1 was passing and after 2-1/2 years of negotiation, the marriage was settled and performed. It was further pointed out that when Title (Matrimonial) Suit was filed and the respondent No. 1 came to know about the filing of Matrimonial Suit, then she pressurized the appellant-plaintiff to withdraw the suit and when plaintiff-appellant refused to withdraw the suit, then a false case under Section 498(A) IPC was filed against the plaintiff-appellant and others. Learned counsel further submitted that filing of such a case is nothing but a cruelty towards the plaintiff-appellant.
11. Plaintiff has examined as many as four witnesses. Plaintiff has appeared as PW 1 and he has made out a case as stated in the plaint. PW 1 in Para-5 has stated that he inquired about the behaviour of respondent No. 1, then he was told that for sometime her mental condition deteriorates like that and she has been even examined by Ojha and Tantrik and when they examined, she gets alright and after sometime she starts behaviour like that. In Para-6, he has stated that when he brought her back on 14.4.1993 and in between 12.4.1993 and 14.4.1993 he did not have physical relationship with the respondent No. 1 and when she came to her matrimonial house, her mental condition was not the same. In Para-39 he has stated that on 1.6.1993 she again went to naihar and thereafter never come back to her matrimonial house. He has further stated that she came to know that a petition for divorce has been filed, then she implicated all her in-laws including this PW 1 in the case filed under Section 498(A) IPC. He has further stated that there is every likelihood his father-in-law will get him murdered. He admits that he has not written about character of the respondent No. 1, He has further admitted that marriage was solemnized with the consent of both the parties. He says in Para-28 that when she extended threat that she may commit suicide and implicate all the in-laws including the plaintiff-appellant in a false case, but this piece of information was not given at the P.S. in Para-I he says that on the occasion of Holi, he did not go to his friends with his wife. In Para-13 he says that when he tried to sleep with his wife, he was abused and he had to leave the place. He says that he slept in one room with his wife but he slept on the ground.
12. PW 2 is Dinesh Kumar Gupta. He is cousin of the plaintiff-appellant. He has come to say that on 3.3.1993 on the occasion of Bahubhat and on 4.3.1993 he came to know that behaviour of respondent No. 1 was not proper. He further says in Para-4 that he stayed there for 15 days and he tried to persuade her during this period but respondent No. 1 expressed her desire to return back to her naihar and in the meantime, her father came and she went back with her father. He further says in Para-10 that appellant-plaintiff disclosed to him that he has got no physical relationship with respondent No. 1 and he tried to have such relationship but respondent No. 1 was not ready for that. He has also stated that father of respondent No. 1 extended threat to the appellant-plaintiff and his family members.
13. PW 3 is Bashishtha Narayan Choudhary. He has attended the reception organized by the appellant-plaintiff. He has deposed that appellant-plaintiff disclosed to him that he has not been able to establish physical relationship with his wife nor she expressed such desire. He also told him that he tried to establish physical relationship with his wife but he has not been able to do so.
14. PW 4 is Rajendra Bishwakarma. He came to know about the alleged tense relationship in July 1994.
15. On behalf of the respondents, four witnesses were examined in the suit.
16. OPW 1 is Rajendra Vishwakarma. He says that he knows both sides and he came to know about the dispute existing between both of them in July 1994 when father of the respondent No. 1 came with him from Nawada to Bokaro. The respondent No. 1 Jyoti Gupta was married with the appellant-petitioner Naresh Kumar Gupta. He had come along with the father of the respondent No. 1 to the shop of Naresh Kumar Gupta where Naresh Gupta (Appellant), his father and elder brother were present. The father of the respondent wanted to meet his daughter but they were not allowing him to meet his daughter. He further says that from there he went to the PS and from there he came to the shop of the appellant-petitioner along with the police. His shop and residence are in one building. Thereafter they met respondent No. 1. The respondent No. 1 disclosed to them that she is being tortured by her husband, father-in-law and mother-in-law. She also requested her father to fulfill the demand which they are making and he learned that her sasural people were demanding a Maruti Car. He has denied that his profession is to depose in case in the Court.
17. OPW 2 is Mohan Prasad Burnawall. He had attended the marriage as barati. He further says that a reception party was organized by the respondents in which he has also participated, According to this witness, after two months he came to know that relationship between the respondent No. 1 and appellant-plaintiff and his family members is not good because on the occasion of marriage, father of respondent No. 1 had promised to give one Maruti Car which he could not give. According to this witness, a panchayati was held on the dispute existing between the two on 25.1.1994 and this panchayati was held in the house of appellant-plaintiff at Bokaro and he had also attended the panchayati. It was decided in between the two that two of them would stay for a six day at the residence of this witness and if relationship between the two is improved, then they will live separate from the house of this witness. According to the decision of the panchayati both of them came to his residence on 26.1.1994 and on 7th day, both left their house and both of them went to the residence of appellant-plaintiff. He found both of them passing their time in normal circumstances. In Para-6 in cross-examination he admits that there was a proceeding under Section 107 CrPC between both of them in which he was also party.
18. OPW 3 is Jai Krishna Prasad Burnawall. He says that marital relationship between both of them was good. He admits that in October 1993, the father of respondent No. 1 had lodged a complaint with Burnawall Samaj and Lakshmi Prasad was Secretary of the committee. He says that for non-fulfillment of the demand of dowry, dispute has arisen and on persuasion of the members of the committee to keep the respondent No. 1 properly and give up the demand of a Maruti Car, father of appellant-plaintiff agreed for the same. Father of the respondent No. 1 again made a complaint that sasural people of his daughter are not allowing her to meet him and they went to sasural of respondent No. 1 where they remained for long time and there respondent No. 1 was allowed to meet her father and here she disclosed to them that she is tortured for non-fulfilling the demand of a car. The sasural people again persuaded and they agreed to give up the demand. He further says in Para-4 that on 24.1.1994 and 1,3.1994 a Panchayati was held and according to the terms of compromise, respondent No. 1 was kept in the house of her sasural in the lower portion but she had lodged a complaint that sasural people do not provide her food properly. He asserts that on 25.1.1994 there was a written agreement and a panchayati was held in connection with the demand of a Maruti Car.
19. OPW 4 is respondent No. 1 herself. She has stated in her deposition that she was married with the appellant-petitioner Naresh Kumar Gupta on 1.3.1993 according to the Hindu rites and customs at Nawada. She disclosed that her father had paid Rs. 46,000/- in cash, 20 bhars of gold jewellery and articles worth Rs. 2.00 lakh and after marriage she went to her matrimonial house on 2.3.1993 with all the articles and cash etc. On the occasion of marriage, a reception was organized in her sasural. She further says that she stayed in her sasural till 12.3.1993 and during this period, her sasural people were demanding a Maruti Car. When she went on 2.3.1993 to her naihar along with her father who had come to take her on Vidagari along with her husband and at that time, she was given instruction by her sasural people to come with Maruti Car. Her husband stayed in her naihar for a week and during this period, her husband took her to two places i.e. Bodhgaya and Vishnupad, etc and the marriage was consummated between both of us and during this period, relationship between both of us was very cordial. She further says that she returned to her sasural after marriage, but she had not gone to her sasural in any car whereupon her sasural people did not treat her properly and after some days when her father came to meet her, then she told him that due to non-fulfillment of demand of a Maruti Car, her sasural people were not treating her properly, but her father made it clear that he is unable to fulfill the demand of a car and he persuaded them and after some days of peaceful atmosphere, she was again tortured by them. She further says that a panchayati was also held on 25.1.1994 in her matrimonial house where a decision was taken that sasural people will not press the demand for Maruti Car. But soon thereafter, the demand of a Maruti Car was revived. On the point of Maruti Car a Panchayati was again held after two months in the house of her husband where a decision was taken that both of them will reside in the house of Madan Prasad Burnawall (OPW 2) in Sector-5 for six months and she went along with her husband to the house of OPW 2 and stayed there for a week only and during this period, physical relationship between both of them was established. Thereafter she along with her husband came to her sasural where her mother-ion-law did not provide her food, oil and soap etc. and on every matter, she used to point out her mistake and sometime even assaulted her, She was even locked-in the room in the lower portion of the house and she communicated about torture meted out to her through a neighbourer to her father and her father came to her sasural where she gave information to him, although her father was not allowed to meet her. But when her father came with police, then he was allowed to meet her. She further says that her father lodged a case at Nawada Court against her sasural people and thereafter police rescued her from her sasural and took her to her naihar. Till then, she was in her sasural and during that period, relationship between both of them as husband and wife continued. She has denied that no physical relationship was established between her and her husband. She has also denied that she is under the influence of evil spirit like ghost etc. she has said that she had done graduation in sociology and she is still willing to reside with her husband. She says that she was rescued by Nawada police in the case lodged at Nawada on 6.1.1995. She has denied that she requested her father to lodge a case at Nawada. She has stated that in the paper prepared in the panchayati, in writing she had put his signature and in the paper, there was no mention of Maruti Car and she did not protest, although there was discussion on the point of Maruti Car but she wanted to establish her house and therefore, she did not make any protest. She has asserted that she is mentally fit. She has denied that she ever gave threat to commit suicide.
20. On a careful scrutiny of evidence of both the sides, it is clear that petitioner-appellant tried to make out a case for grant of decree of divorce, but the witnesses who have been examined on behalf of the petitioner-appellant, have not been able to establish the point or ground under which divorce has been sought for, but neither mother and father of the petitioner nor his near relative has been examined in the case to prove the point, but only such persons have been examined on behalf of the petitioner-appellant who casually see anything. But here relationship between husband and wife is involved, inmates of the house will be the most competent witnesses to say about relationship between the husband and wife and not such persons who casually see anything and most of the witnesses have stated that they learnt from the petitioner-appellant and that is not enough to prove. Further, against alleged abnormal behaviour of the respondent No. 1, she was not subjected to any medical test and no such evidence has been brought on record to show that she is actually suffering from mental disorder or like that. On the other hand, from perusal of the evidence which has been brought on record by way of cross-examination of the witnesses appearing on behalf of the petitioner and also evidence led on behalf of defendants-respondents, it appears that cause of tense relationship between husband and wife and other sasural people was as a result of demand for Maruti Car and its non-fulfillment. The witnesses appearing on behalf of the defendants-respondents have clearly stated that there was demand of Maruti Car, although there was no mention in the paper of Panchayati that demand of Maruti Car led to tense relationship between the husband and the wife and other sasural people. Further, whether marriage was consummated or not, this is purely based on the evidence of petitioner-appellant examined as witnesses, but there is complete denial on the part of the defendants-respondents and she asserted in her evidence that marriage was consummated and even physical relationship was established. But other witnesses produced on behalf of the petitioner-appellant were not such who could have said anything on this point and inmates of the house could have brought this fact on record. On the basis of evidence that has been brought on record on behalf of the petitioner-appellant, no case for grant of divorce or nullity of marriage is made out because from the evidence on record, it has not been brought on record that wife is solely responsible for separate living and from the evidence, no such case is made out.
21. Further, at the end of argument, learned counsel for the petitioner-appellant submitted that since both the sides are living separate from each other for the last 11-12 years and there is no chance of their living together, therefore, in such a situation it is better that prayer for divorce is allowed. In this connection, reliance was placed upon AIR 1988 Delhi 222. In the instant case, wife was held guilty of desertion as the wife was living separate from her husband for the last 8 years, although marriage was solemnized in the year 1966 and since then, both of them were living separate from each other and divorce was allowed. Here in the instant case, marriage was solemnized in the year 1993 and a Title (Matrimonial) Suit was filed in 1994 or about one year after the marriage and since then, they are living separate from each other. After the marriage, the husband and the wife are living separate from each other at such age when they should have spent their time together and should have built strong basis, but unfortunately, they are living separate from each other and passing their days separately. In such a situation, learned counsel for the petitioner-appellant submitted that divorce should be allowed so that both of them may enter into wedlock with persons of their respective choice and pass their days happily. Reliance was further placed upon AIR 1970 Madras 237. In the instant case, due to wife’s mental disease, the husband could not at the time of marriage and on the date he instituted suit, have sexual intercourse with the wife, the reasons being the latters hysteria or mental depression and it was held that the disability could justifiably be brought under the head of impotency in law and a decree declaring the marriage as null and void, could be granted. This ruling does not apply in the present case because from the evidence on record, it has not been found that defendants respondents wife was suffering from any mental disorder, but the fact is that the petitioner- appellant and defendants-respondent No. 1 are living separate from each other for the last 12-13 years due to difference on the point of demand of dowry as alleged on behalf of the defendants-respondents. But on the other hand, petitioner-appellant has made out a case that due to mental set-up of wife, it has become impossible for him to continue conjugal life with his wife and, therefore, he has filed Title (Matrimonial) Suit for divorce and nullity of the marriage.
22. Considering the fact that although the petitioner-appellant has failed to prove his case, but one thing is quite clear that both of them are living separate from each other for the last 12-13 years and there is no chance of their living together in future and in such a situation, best course for both of them will be that this appeal be allowed and decree on divorce be passed, so that the both of them may live their life in their own way when there is no chance of their reunion. Considering this aspect of the matter, this appeal is allowed and decree of divorce under Section 13 of the Hindu Marriage Act, 1955 is granted but petitioner-appellant will make payment of rupees one lakh and fifty thousand as permanent alimony to the defendant-respondent No. 1 within three months.