HIGH COURT OF CHATTISGARH AT BILASPUR
FIRST APPEAL M 50 of 2008
Ram Bai
...Petitioners
Versus
Jagdish Prasad Yadav
...Respondents
! Shri Sanjay K Agrawal, Sudeep Agrawal
^ Shri S K Tiwari
CORAM : Honble Shri Satish K. Agnihotri AND Honble Shri Prashant Kumar Mishra JJ
Dated: 18/01/2010
: JUDGEMENT
FIRST APPEAL UNDER SECTION 19 OF THE FAMILY COURTS ACT, 1984
Per Satish K. Agnihotri, J.
1. By this appeal, the appellant seeks to challenge the
legality and validity of the order dated 22.2.2008 (Annexure
P/1) passed by the Judge, Family Court, Raigarh, in Civil Suit
No. 19-A/2006 whereby the application filed by the respondent
under section 13 of the Hindu Marriage Act, 1955 (for short
`the Act, 1955′) for grant of a decree of divorce has been
allowed.
2. The case of the respondent/plaintiff before the Trial
Court was that the marriage between the parties was solemnized
according to the Hindu rites on 6th May, 1992. After the
marriage, the appellant/defendant treated the
respondent/plaintiff and his family members with cruelty. The
wife-appellant even refused to have cohabitation with the
respondent/plaintiff. According to the respondent/plaintiff,
the appellant used to go to his paternal house without
informing her in-laws. On 25.03.1993, the wife left her
matrimonial home and went to her parental home and even after
repeated efforts and request to her, she did not return to her
matrimonial home. It was further the case of the
respondent/plaintiff before the Trial Court that the
appellant/defendant on her own has deserted him and has given
divorce in writing and thereafter, they had been living
separately for the last 13 years. Thus, the
respondent/plaintiff filed a civil suit, being C.S. No. 19-
A/2006, for a decree of divorce under provisions of section
13(1)(ia) of the Act, 1955.
3. The case of the appellant/defendant before the Trial Court
was that she was subjected to harsh and cruel treatment by her
husband and her in-laws. The respondent/plaintiff himself had
pressurized her to sign over the divorce document. She never
wanted to reside separately from the husband. Thus, she prayed
for dismissal of the application for grant of a decree of
divorce.
4. The learned Trial Court, after hearing the parties and
considering the materials on record, came to the conclusion
that the parties have been residing separately for the last 13
years and no efforts have been made by the appellant/defendant
for restitution of their conjugal rights. On the contrary, the
appellant/defendant has filed an application under section 125
of the Code of Criminal Procedure, 1973 (for short `the
Cr.P.C.’) for grant of maintenance. The Court has also
endeavoured for compromise and settlement of their dispute
under section 23(2) of the Act, 1955, section 9 of the Family
Courts Act,1984 and Order 32-A Rule 3 of the Code of Civil
Procedure, 1908, but no settlement could be arrived between the
parties. The appellant/defendant has treated the
respondent/plaintiff with cruelty, and thus, he was held to be
entitled to a decree of divorce. Accordingly, the application
of the respondent/plaintiff for grant of a decree of divorce
was decreed.
5. On perusal of the records, it appears that the marital
life of the parties was not healthy and in turbulence. They
were living separately since March/April 1994. The
respondent/plaintiff is employed in the Railway Department and
the appellant/defendant is also an Angan Badi worker earning a
sum of Rs. 939/- p.m. Under the provisions of section 125 of
the Cr.P.C. the appellant/defendant is getting a sum of Rs.
600/- p.m. The said amount was later on enhanced to Rs. 1000/-.
The allegation of both the parties are that they were subjected
to cruel treatment.
6. Jagdish Prasad Yadav, (PW/1), the respondent/plaintiff, in
his deposition stated that since the marriage dated 6th May,
1992, the appellant/defendant lived with her only for six
months. She was having a continuous fight with brothers,
sisters and parents of the respondent/plaintiff. Thereafter,
the appellant/defendant left him for her parental home. Despite
their efforts and the members of the society, she did not come
back to her matrimonial home. In cross examination, it was
stated that she further threatened him with dire consequences.
7. Shri Dubraj Rathia, (PW/2), in his deposition stated that
the parents of the appellant/defendant took the appellant-wife
to their parental home. The members of the society tried for
their settlement, but nothing could be done and she remained
away from her matrimonial home for about 13 years. Her parents
were paid Rs. 5000/- as compensation also.
8. The appellant/defendant (DW/1) in her deposition stated
that she was deprived food and the members of the society were
prejudicial to her. She wanted to live with her husband but no
amicable situation was created wherein she could live
comfortably with her husband. Accordingly, she left her
matrimonial home and started living in her parental home.
9. Smt. Ahilya Yadav (DW/2) in her deposition stated that she
was informed by the appellant that she wanted to go to her
matrimonial home but her husband i.e. the respondent/plaintiff
was not agreeable.
10. One more witness namely Sukhmet Bai Sidar (DW/3) deposed
that she was informed by the appellant wife that the
respondent/plaintiff was harassing the appellant/defendant for
food and clothings that’s why she decided not to live with the
respondent/plaintiff for the last 13 years.
11. On perusal of the judgment and decree, we have found that
the Court below has appreciated the evidence properly and have
come to the right conclusion. Accordingly, a decree of divorce
was granted on 22nd February, 2008.
12. It is informed at the bar that the respondent/plaintiff
has solemnized second marriage. The respondent-husband is at
present earning Rs. 6000/- per month and the appellant-wife is
earning Rs. 2000/- per month. The appellant-wife is getting a
sum of Rs. 1000/- under the provisions of section 125 Cr.P.C.
However, no amount was granted as permanent alimony under
section 25 of the Act, 1955.
13. In Vinita Saxena v. Pankaj Pandit1, wherein the Court
below declined to grant a decree of divorce which was confirmed
by the High Court, the Supreme Court, while considering the
dead relationship between the parties for over 13 years,
observed as under:
“52. In our view, the orders of the
courts below have resulted in grave
miscarriage of justice to the
appellant who has been constrained
into living with a dead relationship
for over 13 years. The resultant agony
and injustice that has been caused to
the appellant, it is a fit case for
interference under Article 136 of the
Constitution and reversal of findings
of the courts below which have
resulted in grave miscarriage of
justice.”
14. The Supreme Court, in Naveen Kohli v. Neelu Kohli2, while
dealing with the identical issue involved in this case,
observed as under:
“91.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.”
15. In Gananath Pattnaik v. State of Orissa3, the Supreme
Court observed as under:
“7. The concept of cruelty and its
effect varies from individual to
individual, also depending upon the
social and economic status to which
such 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.”
16. Further, in Parveen Mehta v. Inderjit Mehta4, the Supreme
Court observed as under:
“21. Cruelty for the purpose of
Section 13(1)(i-a) is to be taken as a
behaviour by one spouse towards the
other, which causes reasonable
apprehension in the mind of the latter
that it is not safe for him or her to
continue the matrimonial relationship
with the other. Mental cruelty is a
state of mind and feeling with one of
the spouses due to the behaviour or
behavioural pattern by 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. A feeling
of anguish, disappointment and
frustration in one spouse caused by
the conduct of the other can only be
appreciated on assessing the attending
facts and circumstances in which the
two partners of matrimonial life have
been living. The inference has to be
drawn from the attending facts and
circumstances taken cumulatively. In
case of mental cruelty it will not be
a correct approach to take an instance
of misbehaviour in isolation and then
pose the question whether such
behaviour is sufficient by itself to
cause mental cruelty. The approach
should be to take the cumulative
effect of the facts and circumstances
emerging from the evidence on record
and then draw a fair inference whether
the petitioner in the divorce petition
has been subjected to mental cruelty
due to conduct of the other.”
17. In Suman Kapur v. Sudhir Kapur5, after grant of divorce,
the husband entered into a second matrimonial alliance during
the limitation period for filing the appeal, the Supreme Court
observed as under:
26. Regarding remarriage by the
husband, it was stated that after the
decree of divorce passed by the trial
court, the husband did not remarry.
But the decree of divorce was
confirmed by the High Court. The
husband thereafter had taken the
action which cannot be said to be
illegal or otherwise unlawful. The
wife, therefore, cannot take a
technical contention that the husband
should have waited till the period of
filing special leave to appeal to this
Court would expire. It was, therefore,
submitted that the appeal deserves to
be dismissed.
18. Having regard to the facts situation of the case, a decree
of divorce cannot be reversed on account of the fact that the
respondent/plaintiff has entered in second matrimonial
alliance, it would be proper to grant a sum of Rs. 1000/- p.m.
as permanent alimony in addition to the amount already paid
under the provisions of section 125 Cr.P.C, payable to the
appellant-wife.
19. The appeal is accordingly dismissed with the above stated
order. There shall be no order asto costs
20. A decree may be prepared accordingly.
J U D G E