1. The present first appeal has been filed under Section 19 of the Family Court Act challenging the judgment and decree dated 18.08.2021 passed in RCS-HM 82-A/2020 by the Principal Judge, Family Court, Sidhi whereby the application filed by the husband under Section 13(1) of the Hindu Marriage Act, 1955 for dissolution of marriage and seeking a decree of divorce on the ground of cruelty has been allowed.
2. I t is the case of the appellant that marriage of the appellant and the respondent was solemnized according to Hindu rites and rituals on 01.05.2014. After four days, she returned back to the parental house and when the respondent trying to contact her, she refused to talk with him. There is no physical relations between them continuously for a period of three years. The respondent/husband filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which was allowed vide order dated 26.09.2017 and the appellant/wife was directed to reconcile the matrimonial relations. However, the appellant/wife did not reconcile the matrimonial relations and filed an application under Order 9 Rule 13 of the CPC for setting aside ex- parte decree. During pendency of these proceedings, the mediation proceedings took place and both the parties agreed to reside together and, therefore, the application under Order 9 Rule 13 of the CPC has been rejected. Thereafter, the respondent/husband went to take back the appellant, but she did not return back and did not even try to talk him. Therefore, the respondent/husband filed an application under Section 13(1) of the Hindu Marriage Act, 1955 seeking decree of divorce, which was allowed by the impugned judgment and decree.
3. It is argued that after her marriage, the appellant was treated with cruelty by the husband and his family members. She has been thrown out of the matrimonial home and, therefore, under the compelling circumstances, she is residing with her parents. She has filed an application seeking maintenance before the Judicial Magistrate First Class, Majhauli and the learned Magistrate has awarded Rs.2500/- per month in her favour and since the respondent/husband did not pay the awarded maintenance amount, she filed an execution proceedings. Learned Family Court has failed to appreciate the evidence available on record and passed a decree of divorce on the ground that there has been no restitution of conjugal rights between the parties for a period of one year or upwards after the passing of a decree for restitution of conjugal rights. The factum of cruelty and demand of dowry could not be proved by her. But the fact remains that no efforts were made by the respondent/husband at any point of time to take her back at the matrimonial house.
4. Heard learned counsel for the appellant and perused the record.
5. From the perusal of the record, the admitted facts being that the marriage between the parties was solemnized on 01.05.2014 as per Hindu rites and rituals. The respondent/husband filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which was allowed vide order dated 26.09.2017 and the appellant/wife was directed to reside with the respondent/husband and perform the matrimonial relations. The appellant/wife filed an application under Order 9 Rule 13 of the CPC for setting aside ex-parte decree. During pendency of the proceedings, the mediation proceedings have been taken place and both the parties agreed to reside together. The appellant/wife has filed an application seeking maintenance before the Judicial Magistrate First Class, Majhauli and Rs.2500/- per month has been awarded in her favour and since the respondent/husband did not pay the maintenance amount, she filed an execution proceedings. The appellant/wife has not made any efforts to reconcile the marital relationship. The only ground taken by the wife is that there was harassment and demand of dowry, therefore, under compelling circumstances, she left the matrimonial house and was residing with her parents, but the facts remains that there is nothing on record to show that any previous incident took place and she reported the matter to the authorities.
The appellant and the respondent are residing separately since 2016.
6. The respondent/husband in his statement stated that after marriage, only three times, the appellant came to her matrimonial house and after 31.12.2016 there was no marital relations between them. He filed an application in the year 2017 for restitution of conjugal rights which was decreed and he tried to take her back to her matrimonial home, but she refused to go to her matrimonial house. The appellant/wife in her cross-examination has admitted the fact that after marriage, only three times she went to her matrimonial home. She also stated that she was being treated with cruelty, but she did not report the matter to the police authorities. In cross-examination, she admitted the fact that after compromise has taken place on 13.11.2018, she never went back to matrimonial home and after 31.01.2018 there were no marital relations between them.
7. Learned Family Court has taken into consideration the aforesaid aspect of the case and has passed the impugned judgment dissolving the marriage. There is nothing on record to show that at any point of time, any efforts were made by the wife to reconcile her relationship with the husband and deserted the husband without any valid reason. A categorical finding, with respect to the fact that there is no restitution of conjugal rights between the parties for a period of one year or upwards even after passing of a decree for restitution of conjugal rights so also the fact that the appellant is residing separately since 2016 without any valid reason, has been recorded by the learned Family Court which could not be disputed by the counsel for the appellant.
8. The Hon'ble Supreme Court in Debananda Tamuli vs. Kakumoni Kataky reported in (2022) 5 SCC 459 has held as under:
"7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for t h e appellant relied upon the decision of this Court in Lachman Utamchand Kirpalani [Lachman Utamchand Kirpalani v. Meena, (1964) 4 SCR 331 : AIR 1964 SC 40] which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.
12. Thus, in our considered view, the ground of desertion under clause (i-b) of sub-section (1) of Section 13 of the HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case. But, after having carefully perused the evidence on record, we find that no case is made out to disturb the findings recorded by the courts on the issue of cruelty."
In the present case there are no reasons assigned by the wife and she is residing separately from her husband without any reason for more than one year even after a decree of restitution of conjugal rights has been passed, hence, the case clearly falls under Clause (i-A) of sub-section 2 of Section 13 of the Hindu Marriage Act.
9. Cruelty has not been defined under the Act of 1955. The context where it has been used which is a ground for dissolution of a marriage would show that it has to be seen as a human conduct and behavior in matrimonial relationship. The Hon’ble Supreme Court while dealing with the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 opined that the cruelty can be physical as well as mental. The same reads as under:
“46 ……The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to 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, 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. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment.
101 ( xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
(Emphasis supplied)
10. The Hon'ble Supreme Court further in the case of Narendra v. K. Meena reported in (2016) 9 SCC 455 has held as under:
"12. The respondent wife wanted the appellant to get separated from h i s family. The evidence shows that the family was virtually maintained from the income of the appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meager income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.
13. In the instant case, upon appreciation of the evidence, the trial court came to the conclusion that merely for monetary considerations, the respondent wife wanted to get her husband separated from his family. The averment of the respondent was to the effect that the income of the appellant was also spent for maintaining his family. The said grievance of the respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the respondent wanted the appellant to be separated from the family—the sole reason was to enjoy the income of the appellant. Unfortunately, the High Court considered this to be a justifiable reason.
14. In the opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the respondent husband. We do not see a n y reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be tortuous for the husband and in our opinion, the trial court was right when it came to the conclusion that this constitutes an act of “cruelty”.
11. In the present case, the evidence available on record shows that the wife was living separately from the husband for more than one year even after a decree of restitution of conjugal rights is passed without there being any explanation for the same. She has not made any attempt to go back to her matrimonial house. Thus, the learned Family Court has not committed any error in holding that the appellant/wife was residing separately since 2016 without any valid reason and deserted her husband and, therefore, the respondent/husband is entitled for a decree of divorce on the ground of cruelty. Thus, learned Family Court considering overall facts and circumstances of the case has allowed the application filed under Section 13(1) of the Hindu Marriage Act, 1955 and rightly granted a decree of divorce in favour of the respondent/husband, which does not call for any interference in the present appeal.
12. The first appeal sans merit and is accordingly dismissed. No order as to costs.
