{"id":213727,"date":"2010-01-18T00:00:00","date_gmt":"2010-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/poornima-misra-vs-sunil-misra-on-18-january-2010"},"modified":"2017-10-08T05:04:24","modified_gmt":"2017-10-07T23:34:24","slug":"poornima-misra-vs-sunil-misra-on-18-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/poornima-misra-vs-sunil-misra-on-18-january-2010","title":{"rendered":"Poornima Misra vs Sunil Misra on 18 January, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Poornima Misra vs Sunil Misra on 18 January, 2010<\/div>\n
                                 1\n\n                                                             Reserved\n\n                   First Appeal No. 11 of 2009\n\nSmt. Poornima Misra                        ...     Appellant\n                             Versus\nSunil Misra                                ...     Respondent\n\n                        Connected with\n\n                   First Appeal No. 10 of 2009\n\nSmt. Poornima Misra                        ...     Appellant\n                             Versus\nSunil Misra                                ...     Respondent\n                           -------------\n\nHon'ble Rajiv Sharma, J.\n<\/pre>\n
Hon’ble Dr. Satish Chandra, J.\n<\/p>\n
      Heard learned Counsel for the parties.\n<\/p>\n
      These appeals have been preferred by the appellant against
\nthe order dated 6.1.2009 whereby the application filed by the
\nappellant under Section 9 of the Hindu Marriage Act [in short it
\nhas been referred to as ‘Act’] was rejected and the Suit of the
\nrespondent-plaintiff under Section 13 of the Act was decreed.\n<\/p>\n
      In short, the facts, as comes out from the record, are that
\nthe marriage of Smt. Poornima Misra was solemnized with Sunil
\nMisra (respondent) on 29.1.2001 according to Hindu Vedic Rites at
\nLucknow. After the marriage, the wife performed all           marital
\nobligation as wife and gave due respect to the in-laws. In the
\nmarriage, the appellant’s father gave valuable gifts and jewellery
\nincluding one Maruti Car. But their in-laws were demanding more
\ndowry and started ill-treating the appellant. On account of the
\nmaltreatment of   in-laws, the appellant was compelled to leave
\nher matrimonial house. When the appellant was living with her
\nparents, the husband filed a Suit under Section 9 of the Act for
\nrestitution of conjugal rights. After expiry of one year, the said
\nSuit was withdrawn and a petition for divorce under Section 13 of
\nthe Act on the ground of cruelty, was moved. In this petition, the
\nrespondent also averred that the appellant pressurized the
\nrespondent to live separately from her parents and started
\nneglecting the parents. The appellant also terminated the
\npregnancy to get herself free from the marital obligation. The
\n                                     2<\/span><\/p>\n
application for divorce was contested by the appellant and the
\nallegations were denied. The appellant-Poornima Misra moved an
\napplication for maintenance under Section 24 of the Act and also
\nfiled an application for restitution of conjugal rights under Section
\n9 of the Act. Both the petitions were contested by the respondent-
\nhusband by leading documentary evidence, such as, F.I.R.,
\nstatement of witnesses and charge-sheet. The appellant in
\nsupport of her assertions also adduced oral and documentary
\nevidence.\n<\/p>\n
      The Family Court, after analyzing the materials on record,
\nthe statement of witnesses and numerous case laws, passed the
\ndetailed order rejecting the application under Section 9 of the Act
\nand granted the decree of divorce.\n<\/p>\n
      Hence these appeals.\n<\/p>\n
      At the time of entertaining the appeal, this Court stayed the
\noperation of the impugned judgments dated 6.1.2009, but
\nprovided that the parties shall appear in person so that the
\ndispute may be settled amicably. From the order sheet, it comes
\nthat the parties did appear before the Court, but amicable
\nsettlement of the dispute failed.\n<\/p>\n
      On number of occasions, the parties appeared and on one
\ndate, as there was no possibility of amicable settlement, the Court
\nsuggested the respondent to give Rs.10 lakhs as permanent
\nalimony to settle the dispute. The husband was ready to pay Rs.7
\nlakhs and the Counsel for the appellant prayed for time for
\nsettlement, which was allowed. When the case again came up, the
\nappellant showed reluctance and the Counsel stated that as the
\nappellant is ready to live with her husband, as such, she is not
\ninterested in accepting the permanent alimony and insisted for
\ndeciding the case on merits.\n<\/p>\n
      Learned Counsel for the appellant has contended that the
\nFamily Court committed an error in allowing the Suit of
\nrespondent under Section 13 of the Act and rejecting the
\napplication of the appellant under Section 9 of the Act without
\nrecording any specific finding of cruelty by the appellant and also
\n                                  3<\/span><\/p>\n
overlooked that irretrievable breakdown of a marriage is not a
\nground of divorce. The trial against the respondent under Section
\n498-A I.P.C. is still pending and they have yet not been acquitted.
\nHe further submitted that the appellant has not left the
\nmatrimonial house on her own wish or consent but the members
\nof the family of the respondents forced her to leave the
\nmatrimonial house. The appellant is still ready to live with the
\nrespondent-husband. The Court below also erred and failed to
\nappreciate that the sanctity of the marriage cannot be left at the
\nwish of one annoying spouse. In order to show that the impugned
\norder is erroneous, reliance has been placed upon the cases of
\nSmt. Beena Versus Suresh Vir Tomer [1995 (25) ALR 277]
\nand Savitri Pandey Versus Prem Chandra Pandey [(2002) 2
\nSCC 73].\n<\/p>\n
      He further submitted that the wife has been made to suffer
\ngreat agony and pain as the members of the family of the
\nrespondents had not only ill-treated her but also manhandled
\nwhich resulted in miscarriage of pregnancy. Despite all these
\nconducts and misbehaviour of the respondent, the appellant is
\nready to forgive all these things and wants to live with her
\nhusband.\n<\/p>\n
      On behalf of the respondent, it has been submitted that the
\nFamily Court has passed the just and reasonable order after
\nappreciating the materials on record. The Family Court rightly
\nrejected the application under Section 9 of the Act and allowed
\nthe application under Section 13 of the Act as it was satisfied that
\nthe respondent has been able to establish cruelty by the
\nappellant. He further submitted that the parties to the appeal are
\nliving separately for the last nine years and there is no chance of
\nreconciliation and the marriage has broken down irretrievably. He
\nfurther submitted that on account of false report lodged by the
\nappellant, the respondent and his father were remained in jail for
\ntwelve days which lowered their image in the society.\n<\/p>\n
      In order to establish that it is virtually impossible for the
\nparties to live together and the decree of divorce is the only
\nrecourse left and to justify that the order of the Family Court is
\n                                    4<\/span><\/p>\n
perfectly legal, reliance has been placed upon the cases of Smt.
\nMeena Singh Versus Mithlesh Kumar Singh [(2009 (3) ALJ
\n303], Satish Sitole Versus Ganga (Smt.) [(2008) 7 SCC
\n734], Smt. Mayadevi Versus Jagdish Prasad [2007 AIR
\nSCW 1803], Sujata Uday Patil Versus Uday Madhukar Pathil
\n[2007 AIR SCW 896], Naveen Kohli Versus Neelu Kholi
\n[(2006) 4 SCC 558], Durga Prasanna Tripathi Versus
\nArundhati Tripathi [(2005) 7 SCC 353], Jayachandra
\nVersus Aneel Kaur [AIR 2005 SC 534], Poonam Gupta
\nVersus Ghanshyam Gupta [AIR 2003 (All) 51], G. V. N.
\nKameshwar Rao Versus G. Jabilli<\/a> [(2002) 2 SCC 296],
\nPraveen Mehta Versus Inderjit Mehta [11 (2002) DMC 205
\n(SC)] and Smt. Kalpana Srivastava Versus Surendra nath
\n[AIR 1985 (All) 253].\n<\/p>\n
         In   Smt. Meena Singh Versus Mithlesh Kumar Singh
\n(supra), the appeal was preferred by the wife against the decree
\nof divorce granted on the ground of mental cruelty. The Division
\nBench of this Court while confirming the decree of divorce granted
\npermanent alimony and observed as under:-\n<\/p>\n
         “11. In view of the aforesaid decisions, to end the
\n         miseries of the parties and to allow them to
\n         henceforth live a happy and peaceful life by bringing
\n         to an end the litigation appear to be a more sound,
\n         reasonable and practical decision. The parties are
\n         living separately for many years and there is no
\n         possibility of their uniting. Thus, for all practical
\n         purposes the marriage is completely dead. In view of
\n         the above and the allegations\/counter-allegations
\n         levelled against each other with regard to their
\n         character the element of cruelty on part of both of
\n         them is also inherent. …”<\/p><\/blockquote>\n
         In G. V. N. Kameshwar Rao Versus G. Jabilli<\/a> (supra),
\nthe Apex Court observed that the mental cruelty faced by the
\nappellant is to be assessed having regard to his status in life and
\nhis educational background and the environment in which he
\nlived.\n<\/p>\n
         The Apex Court in the case of Satish Sitole v. Ganga<\/a>
\n(supra) ruled and laid down that the living of parties to a marriage
\nseparately for a long time, making acrimonious allegations against
\n                                   5<\/span><\/p>\n
each other amounts to cruelty and continuance of such marriage
\nis further act of cruelty.\n<\/p>\n
      The expression of ‘cruelty’ in detail has been considered in
\nSmt. Mayadevi Versus Jagdish Prasad (supra) by the Hon’ble
\nSupreme Court. In paragraph 9 of the judgment, the Supreme
\nCourt observed as under:-\n<\/p>\n
             “…. The concept, a proof of beyond the shadow
\n      of doubt, is to be applied to criminal trials and not to
\n      civil matters and certainly not to matters of such
\n      delicate personal relationship as those of husband and
\n      wife. Therefore, one has to see what are the
\n      probabilities in a case and legal cruelty has to be
\n      found out, not merely as a matter of fact, but as the
\n      effect on the mind of the complaint spouse because of
\n      the acts or omissions of the other. Cruelty may be
\n      physical or corporal or may be mental. In physical
\n      cruelty, there can be tangible and direct evidence, but
\n      in the case of mental cruelty, there may not at the
\n      same time be direct evidence. In cases where there is
\n      no direct evidence, Courts are required to probe into
\n      the mental process and mental effect of incidents that
\n      are brought out in evidence. It is in this view that one
\n      has to consider the evidence in matrimonial disputes.”<\/p><\/blockquote>\n
      The Apex Court in another case, namely, Sujata Uday
\nPatil v. Uday Madhukar Patil<\/a> (supra) again examined the
\ncruelty and the kind of degree of cruelty which may amount to a
\nmatrimonial offence. The Supreme Court observed that the cruelty
\nmay be inferred from the facts and matrimonial relation of the
\nparties and interaction in their daily life disclosed by the evidence
\nand inference on the said point can only be drawn after all the
\nfacts have been taken into consideration. Where there is proof of
\na deliberate course of conduct on the part of one, intended to hurt
\nand humiliate the other spouse, and such a conduct is persisted,
\ncruelty can easily be inferred.\n<\/p>\n
      In para 72 of the judgment of the case of Naveen Kohli
\nVersus Neelu Kohli (supra), the Apex Court observed that the
\nlegislature must consider irretrievable breakdown of marriage as a
\nground for grant of divorce under the Hindu Marriage Act. The
\nApex Court referred the 71st report of Law Commission of India
\nwherein it was mentioned that restricting the ground of divorce to
\na particular offence or matrimonial disability, causes injustice in
\n                                   6<\/span><\/p>\n
those cases where the situation is such that although none of the
\nparties is at fault, or the fault is of such a nature that the parties
\nto the marriage do not want to divulge it, yet there has arisen a
\nsituation in which the marriage cannot be worked. The marriage
\nhas all the external appearances of marriage, but none of the
\nreality. As is often put pithily, the marriage is merely a shell out of
\nwhich the substance is gone. In such circumstances, it is stated,
\nthere is hardly any utility in maintaining the marriage as a facade,
\nwhen the emotional and other bounds which are the essence of
\nmarriage have disappeared.\n<\/p>\n
      Following the principle of ‘live and let live’ and the
\nprecedent laid down by the Apex Court, it is desirable and
\nexpedient in the interest of justice to uphold the decree of divorce
\npassed by the Family Court below and to dismiss the appeal.\n<\/p>\n
      Matrimonial disputes have to be decided by Courts in a
\npragmatic manner keeping in view the ground realities. For this
\npurpose a host of facts have to be taken into consideration and
\nthe most important being whether the marriage can be saved and
\nthe husband and wife can live together happily and maintain a
\nproper atmosphere at home for the upbringing of their offsprings.\n<\/p>\n
      We have been principally impressed by the consideration
\nthat once the marriage has broken down beyond repair, it would
\nbe unrealistic for the law not to take notice of that fact, and it
\nwould be harmful to society and injurious to the interests of the
\nparties. Where there has been a long period of continuous
\nseparation, it may fairly be surmised that the matrimonial bond is
\nbeyond repair. The marriage becomes a fiction, though supported
\nby a legal tie. By refusing to sever that tie the law in such cases
\ndoes not serve the sanctity of marriage; on the contrary, it shows
\nscant regard for the feelings and emotions of the parties.\n<\/p>\n
      In the instant case, the appellant could have suffered
\ntraumatic experience because of the police complaints on account
\nof which he and his father had to remain in jail as a consequence
\nwhereof there was loss of reputation and prestige in the society.
\nJust after the marriage, the appellant started complaining against
\n                                         7<\/span><\/p>\n
the parents and brother Arun Kumar Misra, who was mentally
\nretarded with the sole object to get separate living from parents.
\nNot accepting the wish of the appellant, he earned annoyance and
\nthe wife left the matrimonial house without any information. In
\nthe application for divorce, the husband has stated that on
\n21.4.2001, he received a telephonic call from her mother-in-law
\nthat the appellant is ill and is admitted in Vivekanand Polyclinic.
\nWhen the respondent alongwith his father went there, they came
\nto know that pregnancy of the first child has been terminated. It
\nis in this background that the respondent filed an application for
\ndivorce on the ground of cruelty alleging that because of the acts
\nof cruelty on several occasions including the false criminal report
\nperpetuated by the appellant, the respondent-husband was under
\napprehension that it would not be desirable and safe to stay with
\nthe appellant and to continue their marital relationship.\n<\/p>\n
      The trial Court has examined the circumstances and the
\nbackground in order to reach the conclusion, whether the conduct
\ncomplained of amounts to cruelty in the matrimonial law. The
\ninstances of the circumstances and the cruelty highlighted by the
\ntrial Court clearly proves that the husband was subjected to
\nmental cruelty. At page 32 of the judgment, the Family Court
\nobserved as under:-\n<\/p>\n
             \u0909\u0932\u0932\u0947\u0916\u0928\u0940\u092f \u0939\u0948 \u093f\u0915 \u0905\u0928\u092f \u092a\u0915 \u0915\u0947 \u0926\u093e\u0930\u093e \u0926\u093e\u093f\u0916\u0932 \u093f\u0915\u090f \u0917\u090f \u0905\u093f\u092d\u0932\u0947\u0916\u0940\u092f
\n      \u0938\u093e\u0915\u092f \u090f\u0935 \u092a\u0924\u093e\u0935\u0932\u0940 \u0915\u093e \u0938\u092e\u092a\u0942\u0923\u0930 \u0930\u092a \u0938\u0947 \u093f\u0935\u0936\u0932\u0947\u0937\u0923 \u090f\u0935 \u092e\u0942\u0932\u092f\u093e\u0915\u0928 \u0915\u0930\u0928\u0947 \u0938\u0947 \u092f\u0939
\n      \u0938\u092a\u0937 \u0939\u094b\u0924\u093e \u0939\u0948 \u093f\u0915 \u092a\u093f\u0924\u0935\u093e\u093f\u0926\u0928\u0940 \u0928\u0947 \u092f\u0939 \u0938\u0915\u0932\u092a \u0932\u0947 \u093f\u0932\u092f\u093e \u0939\u0948 \u093f\u0915 \u0935\u0939 \u0935\u093e\u0926\u0940 \u0915\u0947 \u091c\u0940\u0935\u0928
\n      \u0915\u094b \u092d\u0940 \u0928\u093e\u0930\u0915\u0940\u092f \u091c\u0940\u0935\u0928 \u092c\u0928\u093e\u0928\u0947 \u0915\u0947 \u093f\u0932\u090f \u0939\u0940 \u0935\u0947\u0926\u0928\u093e \u092e\u0947 \u091c\u0940\u0935\u0928 \u0935\u092f\u0924\u0940\u0924 \u0915\u0930\u0917\u0947 \u0940 \u0964 \u0907\u0938
\n      \u092a\u0915\u093e\u0930 \u0915\u0947 \u0905\u093f\u0921\u0902\u0917 \u0924\u0925\u093e \u0915\u0920\u094b\u0930 \u0926\u093f\u0937\u0915\u094b\u0923 \u0938\u0947 \u0907\u0938 \u0935\u093e\u0926 \u0915\u0947 \u0924\u0925\u092f\u094b \u0924\u0925\u093e \u092a\u0938\u0902\u0917 \u092e\u0947 \u092f\u0939
\n      \u0938\u0928\u0926\u0947\u0939 \u0939\u094b\u0928\u093e \u0938\u0935\u092d\u093e\u093f\u0935\u0915 \u0939\u0948 \u093f\u0915 \u092a\u093f\u0924\u0935\u093e\u093f\u0926\u0928\u0940 \u0935\u093e\u0926\u0940 \u0915\u0947 \u0938\u093e\u0925 \u092e\u093e\u0928\u093f\u0938\u0915 \u0915\u0942\u0930\u0924\u093e \u0915\u093e
\n      \u0935\u092f\u0935\u0939\u093e\u0930 \u0915\u0930\u0928\u0947 \u092a\u0930 \u0905\u095c\u0940 \u0939\u0941 \u0908 \u0939\u0948, \u091c\u092c \u093f\u0915 \u092f\u0939 \u0938\u092a\u0937 \u0939\u094b \u091c\u093e\u0924\u093e \u0939\u0948 \u093f\u0915 \u092a\u0915\u0915\u093e\u0930\u093e \u0915\u0947
\n      \u092e\u0927\u092f \u093f\u0935\u0935\u093e\u0939 \u0905\u092a\u093f\u0924\u0937\u093e\u092a\u092f \u0930\u092a \u0938\u0947 \u092d\u0917\u0902 \u0939\u094b \u0917\u092f\u093e \u0939\u0948 \u090f\u0935\u0902 \u0909\u0928\u0915\u0947 \u0938\u093e\u0925 \u0930\u0939\u0928\u0947 \u092f\u093e \u092a\u0941\u0928\u0903
\n      \u090f\u0915 \u0939\u094b\u0928\u0947 \u0915\u0940 \u0915\u094b\u0908 \u0938\u092e\u092d\u093e\u0935\u0928\u093e \u0928\u0939\u0940 \u0939\u0948 \u0964<\/p><\/blockquote>\n
      The foundation of a sound marriage is tolerance, adjustment
\nand respecting one another. Tolerance to each other’s fault to a
\ncertain bearable extent has to be inherent in every marriage.
\nPetty quibbles, trifling differences should not be exaggerated and
\nmagnified to destroy what is said to have been made in heaven.\n<\/p>\n
                                     8<\/span><\/p>\n
All quarrels must be weighed from that point of view in
\ndetermining what constitutes cruelty in each particular case and
\nas noted above, always keeping in view the physical and mental
\nconditions of the parties, their character and social status. A too
\ntechnical   and   hyper-sensitive       approach   would   be   counter-
\nproductive to the institution of marriage. The Courts do not have
\nto deal with ideal husband and ideal wives. It has to deal with
\nparticular man and women before it. The ideal couple or a mere
\nideal one will probably have no occasion to go to Matrimonial
\nCourt.\n<\/p>\n
      In the instant case, the Family Court has examined in detail
\nthe conduct of the appellant. On one hand, she stated that she is
\nnot pursuing the criminal case under Section 498-A I.P.C. and on
\nthe other hand, she had got her statement recorded before the
\nCourt. She also filed criminal revision, lodged criminal case under
\nSection 406 I.P.C. against the respondent and his father. The
\nfather of the appellant had also filed a complaint case under
\nSection 420 I.P.C. against the respondent and his father. Not only
\nthis, the complaints were also made to the authorities of Sahara
\nIndia, where the respondent was working. On account of various
\ncomplaints, the respondent had to resign from the Sahara India.
\nThe Family Court has examined all these facts and passed a
\ndetailed speaking order before coming to the conclusion that the
\nmarriage bond has been broken down beyond the hope of repair
\nand the marriage is only for the namesake.\n<\/p>\n
      In view of the fact that the parties are living separately for
\nmore than nine years and a large number of criminal and civil
\nproceedings have been initiated against the respondent and some
\nproceedings have been initiated by the respondent against the
\nappellant, the Family Court rightly came to the conclusion that the
\nmatrimonial bond between the parties is beyond repair. The
\nmarriage between the parties is only in name.\n<\/p>\n
      Once the parties have separated and the separation has
\ncontinued for a sufficient length of time and one of them has
\npresented a petition for divorce, it can well be presumed that the
\nmarriage has broken down. The Court seriously made an
\n                                   9<\/span><\/p>\n
endeavour to reconcile the parties and we wanted to put a quietus
\nto all litigations between the parties and not to leave any room for
\nfuture litigations by granting Rs.7 lakhs as permanent alimony,
\nbut it was refused by the appellant. Therefore, it appears that the
\nappellant does not want divorce by mutual consent.\n<\/p>\n
       From the analysis and evaluation of the entire evidence, it is
\nclear that the appellant has resolved to live in agony only to make
\nlife a miserable hell for the respondent as well. This type of
\nadamant and callous attitude, in the context of the facts of this
\ncase, leaves no manner of doubt in our minds that the appellant is
\nbent upon treating the respondent with mental cruelty. The
\nmarriage has been wrecked beyond the hope of salvage and there
\nis no chance of their coming together. Therefore, the case law
\nrelied upon by the appellant and the assertion that the respondent
\nshall not be allowed to take advance of his own faults and the
\ndecree for dissolution of the marriage shall be denied to the
\nrespondent is of no help to the appellant.\n<\/p>\n
       In these circumstances, we are of the view that when the
\nbreakdown is irreparable, then divorce should not be withheld.
\nThe consequences of preservation in law of the unworkable
\nmarriage which has long ceased to be effective are abound to be a
\nsource of greater misery for the parties.\n<\/p>\n
       For the reasons aforesaid, the decree of divorce passed by
\nthe Family Court is upheld. Both the appeals are hereby
\ndismissed. In the facts and circumstances of the case, the parties
\nshall bear their own costs.\n<\/p>\n
HM\/-                                  January 18   , 2010\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Poornima Misra vs Sunil Misra on 18 January, 2010 1 Reserved First Appeal No. 11 of 2009 Smt. Poornima Misra … Appellant Versus Sunil Misra … Respondent Connected with First Appeal No. 10 of 2009 Smt. Poornima Misra … Appellant Versus Sunil Misra … Respondent ————- Hon’ble Rajiv Sharma, J. Hon’ble Dr. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-213727","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nPoornima Misra vs Sunil Misra on 18 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/poornima-misra-vs-sunil-misra-on-18-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Poornima Misra vs Sunil Misra on 18 January, 2010 - 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