Open iDraf
Smt. Bulbul Sharma v. Vijoy Kumar Sharma

Smt. Bulbul Sharma
v.
Vijoy Kumar Sharma

(High Court Of Gauhati)

Matrimonial Appeal No. 28 Of 2009 | 27-03-2012


1. The challenge in this appeal is to the judgment and decree, dated 1/6/2006, passed by the learned Principal Judge, Family Court, Kamrup, Guwahati, in FC (Civil) No. 82/2003, whereby and whereunder the learned Family Judge, while allowing the petition, filed by the respondent-husband, under section 13 of the Hindu Marriage Act, 1995 (hereafter referred to as the Act) dissolved the marriage, solemnised between the appellant and the respondent, on 28/11/1985.

2. We have heard Mr. P.K. Roychoudhury, learned counsel appearing for the appellant and Mr. J. Roy, learned counsel appearing for the respondent.

3. The marriage between the appellant and the respondent was solemnised, on 28/11/1985, at Guwahati, as per Hindu rites and customs. After the said marriage, the appellant used to live with her husband in her matrimonial house at Guwahati. Due to family discord, the respondent-husband, as petitioner, filed an application under section 13(1)(ia) read with section 13(1)(b) of the Act seeking dissolution of the said marriage by a decree of divorce, on the ground of cruelty and desertion, on the part of the wife.

The claim of the husband is that, the appellant, soon after the marriage, started to behave abnormally and treated the respondent and the members of his family in most objectionable manner by misbehaving with them and also without showing any respect to the respondent. According to the respondent husband, the appellant has been maintaining illicit relation with a person at Kolkata i.e. the place where the paternal house of the appellant is situated. As alleged by the respondent-husband, his wife used to frequently visit her paternal house at Kolkata and refused to return to her marital home and on being persuaded, though returned to the marital home, she, again, left for Kolkata, on 10/4/1998, after picking up a quarrel with the respondent-husband and the members of his family. According to the respondent, the appellant threatened him and lodged an FIR against him, with the All Woman Police Station, Panbazar on 4/2/2004.

The claim of the respondent has been contested by the appellant-wife by filing a written statement. Denying the allegations of cruelty and desertion, the appellant wife, in her written statement, averred that she was tortured by her husband and the members of his family in connection with the demand of dowry and that she was thrown out from the marital home. Denying the allegations, brought against her, the answering wife stated that, due to the torture, meted out to her, she was compelled to take shelter in her parent’s house. She also denied the petitioner’s claim that she had deserted her husband. She alleged that the ill-treatment and physical torture committed by her husband compelled her to approach the Police.

4. Upon the pleadings of both the parties, the learned Trial Judge framed the following issues:-

1. Whether the respondent refused to have sexual intercourse with the petitioner by deserting him very frequently thereby inflicted torture upon him?

2. Whether the petitioner is entitled to get a decree of divorce?

3. To what relief/relieves parties are entitled.

In support of his case the husband-respondent examined his father (PW1) and himself (PW2).

The appellant wife also examined herself as DW1 and her brother as DW2.

5. Considering the materials, on record, the learned Trial Judge came to the findings that both the parties have been living separately for seven years and that their marriage has been irretrievably broken down, leaving no scope for reconciliation. In view of the above, the learned Trial Judge held that the desertion, caused 4

by the wife, amounted to cruelty, for which the husband was entitled to get a decree of divorce as prayed for. Accordingly by the impugned judgment and order, the learned Trial Judge granted the decree dissolving the marriage between the said couple.

6. Aggrieved by the said judgment and decree, the wife, as the appellant, has come up with this appeal on the ground that no case for dissolution of the marriage has been established and that the learned Trial Judge committed error by granting the decree of divorce.

7. Mr. P.K. Roychoudhury, learned counsel appearing for the petitioner, taking us through the evidence, on record, more particularly, the evidence of PW2, i.e. the husband respondent and DW1, i.e. the appellant wife has submitted that the respondent failed to prove that the appellant had treated him with cruelty or that she had deserted him. The learned counsel, referring to the evidence, on record, stated that the respondent-husband left her at Kolkata, compelling her to take shelter in her parent’s house and that, although the appellant is all along willing to live with the respondent husband, the latter refused to accept her. In view of the above, it is submitted, that, in the absence of any evidence regarding cruelty and desertion on the part of the appellant the husband-respondent failed to establish his case for divorce and as such, the learned Trial Judge committed error by granting the divorce.

8. Refuting the said arguments, advanced by the learned counsel, appearing for the appellant, Mr. J. Roy, Advocate, has submitted that the appellant had, on her own volition, used to leave the matrimonial home and that she has been staying in her parent’s house w.e.f. 28/4/1998 and as such her absence for such a long period substantiates the plea of desertion. It is also submitted that, in view of the said desertion and adverse conduct, on the part of the appellant, it is not possible for the petitioner to lead a married life. In view of the above, the learned counsel, supporting the impugned judgment and order, has submitted that the learned Trial Judge committed no error by granting the divorce.

9. Having heard the learned counsel for the parties and considering the materials on record, more particularly, the evidence adduced by both the parties, we find that there is no dispute that both the parties solemnised their marriage as per Hindu rites and as such they are governed by the Act aforesaid.

The grounds on which divorce can be sought and granted has been provided by section 13 of the Act, which read as follows:-

“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—

(i) has, after the solemnisation of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.”

10. Desertion and cruelty are also good grounds for dissolution of marriage.

The word cruelty has not been defined in the Act. Cruelty, no doubt, can be mental and physical or both. Cruelty is the cumulative effect of the conduct of a person which adversely affect the other.

In Sobha Rani versus Madhukar Reddi (1988) 1 SCC 105, the Supreme Court observed as hereunder:

“4…. Section 13(1)(i-a) uses the words “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

5…. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Danning said in Sheldon versus Sheldon, “the categories of cruelty are not closed”. Each case may be different. We deal with the conduct of human beings who are not general similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”

In the case of V. Bhagat versus D. Bhagat (Mrs.) (1994) 1 SCC 337, the Supreme Court observed as hereunder:-

“16….. Mental cruelty in Section 13(1)(i-a) 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 words, 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, educational 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 apart 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 are made.”

11. Admittedly, in the present case, there is no allegation of physical cruelty. What the husband-respondent has alleged, in his divorce petition, is mental cruelty.

12. In the light of the above principles, laid down by the Supreme Court, we may now examine whether the conduct of the appellant-wife, amounted to mental cruelty making it impossible for the husband to continue with their marital life. The allegations and counter allegations, made by the parties, cannot be the ground for grant of divorce, unless the legal ground(s) prescribed in the Statute is established. There must exist some extra ordinary feature warranting grant of divorce on the basis of the pleadings and other admitted/proved materials.

In order to establish the plea of cruelty and desertion, the respondent husband examined his father and himself as PW1 and PW2 respectively.

The father of the husband, who deposed as PW1, stated that his daughter in law i.e. the wife/appellant did not like to stay in her marital home and that she used to frequently leave for her paternal house, at Kolkata. According to PW1, his daughter-in-law spent about 14 years in the said manner and she did not return to her marital home since last six years. He further stated that his daughter-in-law used to live, at her own way, without mixing with other members of the family. He further stated that she used to make telephonic threatening calls.

The said father-in-law did not disclose any specific instance or conduct on the part of the appellant, indicating that it was impossible for his son to continue with the marital life. He even did not whisper anything to show that the said daughter-in-law uttered, anything unbearable for her husband.

The husband-respondent in his evidence, given as PW2, stated that, after the marriage, his said wife did not like to live with him and that she wanted to visit her parents. According to this witness, he himself took her to her parent’s house, on many occasions. He further stated that his wife used to leave for her parent’s house, at her own will, after staying two or three days with him. He also stated that she did not return to the marital home since seven years. He further stated that she used to telephonically threaten him. However, the husband-respondent did not disclose any specific instance or manner of the threat, which made it impossible for him to continue with the marital life.

13. His statement that the wife used to frequently leave for her parents house and that she did not like to stay in her marital house, cannot be sufficient ground to hold that she treated him with cruelty.

In order to establish the plea of cruelty, sufficient evidence/materials should be adduced to show that the conduct of the spouse is such that it is not possible for the other spouse to live with the said spouse. There is nothing, on record, to show that the conduct of the petitioner-wife, who used to frequently visit her parent’s house made the life of the husband petitioner miserable hell. On the other hand, the wife/appellant, who deposed as DW1 stated that the husband and the members of her-in-law’s family, used to torture her physically and that they wanted to drive her out of the marital home. She also stated that once her husband had taken her to Kolkata by Aeroplane and left her alone, asking her to go to her parent’s house. She also stated that her husband did not take any steps for her medical treatment. She clearly stated that she was all along ready to live with her said husband and that she did not want divorce.

From the above discussed evidence it is found that the husband-respondent failed to make out a case to substantiate the plea of cruelty.

14. The other plea taken by the husband respondent is “desertion”, which is also a valid ground for divorce. According to the husband, his wife i.e. the appellant left the marital home about seven years ago and that she did not return. His father also stated that she left the marital home six years ago. The wife clearly stated that she was all along ready and willing to join the marital life with her husband. Though she was cross-examined, on behalf of the husband, her said evidence remained undemolished. There is nothing on record, to show that the husband had ever made any attempt to bring her back to the marital home.

15. In view of the willingness, expressed by the wife, to return to the life of her husband, it cannot held that she has, permanently, left her husband with a determination to break the matrimonial tie never to return to the life of the respondent husband. The wife has categorically stated that she has been staying in her parent’s house due to the physical torture and harassment caused to her. Her specific allegation regarding physical harassment has not been denied by the husband. Even no suggestion has been put to her, denying her the said categorical statement.

DW2 who is the brother of the appellant wife has supported the appellant by saying that the respondent husband had tortured and driven her out of the marital home.

From the above, it appears that the appellant wife did not leave her marital home with an intention to permanently leave her husband. The above evidence, rendered by the appellant and DW2 indicates that the appellant has been compelled to take shelter in her parent’s house.

Therefore, in view of the above discussion, we have no hesitation in holding that the husband respondent, who is the petitioner in the divorce case, failed to establish the pleas of cruelty and desertion, on the part of the appellant wife. As husband aforesaid failed to substantiate the said pleas, on which divorce has been sought, the learned Trial Judge committed error by granting the divorce, on the grounds aforesaid. Though the learned Trial Judge observed that the marriage between the said couple has irretrievably broken down, the same cannot be ground for granting divorce. In the case of V. Bhagat (supra), the Supreme Court has observed that irretrievable breakdown of a marriage is not a ground by itself.

In view of the above, as the husband respondent failed to establish the grounds of cruelty and desertion, on the part of the wife appellant, he is not entitled to get the marriage dissolved. Hence, the impugned judgment and decree cannot be maintained. Therefore, we find sufficient merit in this appealrequiring interference with the impugned judgment and order. Accordingly the impugned judgment and order, dissolving the marriage of the appellant and the respondent is set aside. Return the LCR. No costs.

Advocates List

For the Appellant P.K. Roychoudhury, Advocate. For the Respondent J. Roy, Advocate.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE CHIEF JUSTICE MR. A.K. GOEL

HON'BLE MR. JUSTICE C.R. SARMA

Eq Citation

2012 (2) GLT 695