Hon'ble S.C. Chaurasia,J.
(Delivered by Hon'ble Devi Prasad Singh, J)
1. Present appeals under Section 19 of the Family Courts Act, read with Section 28 of the Hindu Marriage Act, 1955 have been preferred against the impugned judgment dated 27.8.2010, passed by Principal Judge, Family Court, Lucknow so far as it relates to decree of Regular Suit No.2077 of 2007 filed by the respondent under Section 9 of the Hindu Marriage Act. By the said judgment dated 27.8.2010, learned Family Court has also dismissed the suit of plaintiff/ appellant filed under Section 13 of the Hindu Marriage Act.
2. Since ages, solemnisation of marriage has been found to be best mode of life to save the human race from animal's living and consequential irreparable injury. The institution of marriage is not only based on thousand years of experience of human race but it is a time tested ceremony which has saved the human race since ages from desertion, prostitution and different forms of agony. Different religions have given importance to marriage in different way. Even, non-believers prefer marriage to save their children or coming generation to become street boy. Non-believers may enter into wedlock under the law framed by the State. In India, particularly among Hindus, ceremony of marriage has been pious bond to unite men and women to work collectively not only for own interest but also for generations to come.
Marriage in Hindu Religion
3. Marriage and sonship constitute some of the unique chapters in the litera legis of ancient Hindu Law. As early as the time of Rig-Veda marriage had assumed the sacred character of sacrament and sanction of religion had heightened the character and importance of the institution of marriage. The Rig-Veda pronounces some impressive texts:
After completing the seventh step (Saptpadi) the bridegroom said: "with seven steps we have become friends (sakha). May I attain to friendship with thee: May I not be separated from thy friendship." Satpatha Brahamna speaks of the wife as the half of one's self-Ardho ha va esha atmano.
4. The basal thought was that marriage was a prime necessity for that alone could enable a person to discharge properly his religious and secular obligations. The earliest records shows that rules of inheritance depended on the rules of marriage and it was obligatory on the father to give the daughter in marriage as gift are given. The Smiritis deals with the subject of marriage with meticulous care and make fascinating study. Apastamba has stated that from time of marriage the husband and wife were united in religious ceremonies and likewise in rewards of acts of spiritual merit.
5. Marriage a Sacrament: Marriage is necessarily the basis of social organization and foundation of some important legal rights and obligations. The importance and imperative character of the institution of marriage needs no comment. In Hindu Law marriage is treated as a samskara or a sacrament. It is the last of ten sacraments, enjoyed by the Hindu religion for regeneration of men and obligatory in case of every Hindu who does not desire to adopt the life of sanyasi. From the very commencement of Rig-Vedic age, marriage was a well established institution, and the Aryan ideal of marriage was very high. Monogamy was the rule and the approved rule, though polygamy existed to some extent. In Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realized.
The high value placed on marriage is shown by the long and striking hymn of Rig-Veda, X, 85; "Be, thou, mother of heroic children, devoted to the Gods, Be, thou, Queen in thy father -in -law's household. May all the Gods unite the hearts of us two into one".
The wife on her marriage was at once given an honoured position in the house. She was mistress in her husband's home and where she was the wife of the eldest son of the family, she exercised authority over her husband's brothers and his unmarried sisters. She was associated in all the religious offerings and rituals with her husband. As the old writers put it," a woman is half her husband and completes him".
Manu in impressive verses, exhorted men to honour and respect woman. Woman must be honoured and adorned by their fathers, brothers, husbands, and brothers- in-law who desire their own welfare. Where women are honoured, there gods are pleased; but where they are not honoured, no sacred rite yield rewards." The husband receives wife from gods, he must always support her while she is faithful". "Let mutual fidelity continue until death. This may be considered as the summary of the highest law for husband and wife."
Dispute between husband and wife not allowed to be litigated either in the customary tribunals or in the king's courts. Neither bailment nor contracting of debt, neither bearing testimony for one another nor partition of property was allowed between them.
6. According to Hinduism, marriage between two souls is a very sacred affair that stretches beyond one lifetime and may continue to at least seven lives. The relationship between the two does not necessarily have to begin only when they have attained birth as human beings. The gender of the two partners also does not have to the same in all the births. As the stories in purans confirm, two individual souls may come together any time during their existence upon earth, even when they assume a lower life from, such as that of any animal or bird, and carry forward their relationship further into higher life forms such as that of human beings. Once married, a couple is expected to uphold their family names by remaining faithful and truthful to each other and by enacting their respective roles as laid out in the Hindu law books.
As the epic Ramayana and Mahabharata illustrate, a couple ought to stick together through the ups and downs of life, however challenging and arduous the situation may be, taking care of each other and keeping in each other. According to beliefs of Hinduism, marriage is a sacred institution devised by gods for the welfare of human beings. Its primary purpose is procreation and continuation of life upon earth. Sexual union is intended solely for this purpose and should be used as such. Its secondary purpose is upholding of the social order and the Hindu dharma, while its ultimate aim is spiritual union with the inmost self, which is possible when a couple perform their obligatory duties and earn the grace of god through their good karma. A man and woman are believed to come together as husband and wife primarily for spiritual reasons rather than sexual or material, although they may not be mentally aware of the fact. Once married, the couple is expected to carry out their respective traditional duties as house holders and upholders of family traditions and work for the material and spiritual welfare of each other, the members of their family and also society.
7. The concept of divorce is alien to Hinduism, as marriages are meant to last for a life time. Neither men nor women can throw away their martial relationships on some flimsy or selfish or whimsical grounds. Remarriage is permitted only under exceptional circumstances. Polygamy to some extent also was the practice among the Hindus just a few centuries ago. Presently, in India, the Hindu Marriage Act not only prohibits it but also makes it a punishable offense.
However, with the change of time, advent of western philosophy in India and having no research oriented work done at political and judicial forum, gradually the institution of marriage is diluting in this country also. Higher judiciary also in absence of any backup to find out the injury caused by western way of life approved to some extent the matrimonial life professed by western without thinking the consequences which nation may suffer in due course of time.
8. Now, it is well known that more than 50% wedlock breaks in United States of America and sometime divorce takes place in few months of solemnisation of marriage leaving the lady or man in solitary state or remarriage again. Change of wife and husband in substantial number is frequent because of "Cake Walks Law" pertained to divorce. The effect of breakage of the institution of marriage cannot be noticed in short span of time but it took centuries and when society awakes it becomes too late.
FACTS OF PRESENT CASE
9. It is unfortunate that present controversy relates to a couple both of whom belongs to intellectual class of the society, meant to serve the people. Both are doctors. The appellant Ajai Lavania is a Surgeon possessing M.S. Degree. The respondent Smt. Shobhna Dubey is Ophthalmology doctor.
10. The marriage of the appellant and respondent was solemnised at a very sacred place of the country, i.e. Brindavan, district Mathura on 1.12.2001. Both came known to each other through advertisement in the newspaper. At the time when marriage was solemnised, the appellant Ajai Lavania was pursuing his M.S. Course at Manipal, Karnataka and the respondent was doing her senior Residency at Meerut. After marriage they had gone for honeymoon to Goa for about two weeks. Then went back to their respective place at Meerut and Manipal. In July, 2002, the appellant had completed his M.S. Course whereas the respondent had completed her Senior Residency course. It is stated by the appellant that on persuasion of the respondent, the appellant joined a job at Bhairwa Medical College, Nepal where both used to enter into quarrel for small matters. Having no consensus to live together the respondent went to Meerut and joined Senior Residency again . In December, 2002, the appellant went to Manipal along with the respondent and lived there as husband and wife. There too, it is alleged that there was difference of opinion on small matters. The respondent joined Shanti Manglik Hospital Fateha Road, Agra in July, 2007 and started to live there along with the appellant. It is alleged that the respondent instructed the appellant not to bring his grand father and grand mother which has been denied by the respondent.
11. The cause of action arose on 26.9.2007 when it is alleged by the appellant that the respondent assaulted him, broken the furnitures and assaulted him with cutting his body with teeth. The appellant got himself checked up in S.N. Medical College, Agra and informed the police and also lodged a First Information Report against the respondent. It is also alleged that the respondent was ousted from Shanti Manglic Hospital by the Committee of Management on account of her short temperament.
12. The appellant has joined Apolo Hospital, Delhi. There too, it has been alleged by the appellant that the respondent visited the hospital on 19.10.2007 and quarreled with the staff of the Apolo Hospital. From the material on record, it is admitted fact that the appellant had gone to attend an ENT conference on 28.9.2007 at Allahabad along with the respondent and while returning from the conference, it has been alleged by the respondent that the appellant left her at Lucknow with demand to pay Rs.4 lacs so that he may visit Canada. It has been stated by the respondent that the appellant has left her at Lucknow on 30.9.2007 merely in the cloth she was wearing stating that he sill not take her to Delhi unless her guardian pays Rs.4 lacs to enable him to visit Canada. Under the aforesaid backdrop, the respondent had filed a First Information Report under Crime No.135/2008 under Sections 498-A/506/507 IP.C read with Section ¾ Dowry Prohibition Act in which the appellant and his family members were convicted and later on released on bail by the appellate court. However, the respondent insisted that she want to live with the appellant and forgives him but it appears that the appellant did not agree with the respondent to live together under the garb of constant tussle between them and lodging of the criminal case from time to time against each other.
Subject to aforesaid backdrop, while asserting her right to live together, the respondent has filed a case under Section 9 of the Hindu Marriage Act at Lucknow, registered as Suit No.2077 of 2007. Thus, the suit was filed in the year 2007 by the respondent for restitution of conjugal rights.
13. On the other hand, the appellant has filed a suit No.669 of 2009 under Section 13 of the Hindu Marriage Act at Agra on 24.10.2007 for divorce which was transferred to Lucknow. The cause of action has been shown as on 26.9.2007, when he alleged to have suffered injury during quarrel and got himself treated at S.N. Medical College, Agra and lodged a First Information Report against the respondent wife. The Family Court, Lucknow clubbed both the suits having common facts and decided by the impugned judgment.
14. While decreeing the petition filed by the respondent under Section 9 of the Hindu Marriage Act and dismissing the suit filed by the appellant for divorce, learned Family Court took note of the fact that when the appellant visited Moti Lal Nehru Medical College, Allahabad to attend 20th National Conference on 29/30.9.2007, both stood together in conference and remained in the hospital as husband and wife. Accordingly, learned trial Court noted the incident of 26.9.2007 as false with finding that in case it would have been taken place, then there was no occasion for the appellant and respondent to attend the conference on 29./30.9.2007 at Allahabad, that too when a First Information Report was lodged by the appellant against the respondent. The trial court took note of the allegation levelled by the respondent that the appellant having illicit relationship with a lady Rashmi and he is a club visitor and habitual drinker and the effort made was to any how to break the marriage to continue with his living relationship. He further observed that it is not a case of cruelty but a case where a defence has been set up to obtain divorce on false ground. The Family Court further noted from the evidence that because of wedlock, the respondent was pregnant but on account of complicated Ectopic Pregnancy, the respondent suffered from abortion after about 8-9 months. Even after the abortion, they lived together with physical relationship. During the course of trial, in the suit No.2077 of 2007 for restitution of conjugal rights, following issues were framed :
1.Whether Ajay Lavania without any justified cause had deserted the plaintiff Smt. Shobhna Dubey. Hence, he is not discharging his family duty ?
2.Whether the plaintiff is entitled for any relief from the Court ?
15. In the suit No.669 of 2009 for divorce, the Family Court on 30.11.2009 had framed following issues :
1.Whether the plaintiff Ajay Lavania without any justifiable reason had deserted his wife Smt. Shobhna Dubey. In consequence thereof, he is failing his duty towards wife ?
2.Whether the respondent Smt. Shobhna Dubey has behaved cruelty with the plaintiff Ajay Lavania continuously since long time. In consequence thereof, the plaintiff has got reasonable reason to believe that it shall be harmful to live with the defendant as husband and wife.
3.Whether the plaintiff/defendant is entitled for any relief ?
4.Whether the defendant is entitled for any relief from the Court ?
16. Section 9 of the Hindu Marriage Act provides that when either the husband or the wife without any reasonable excuse withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights whereas Section 13 provides various grounds to a person in wedlock to approach the court for dissolution of marriage by decree of divorce. For convenience, Sections 9 and 13(as amended by Act No.68 of 1976) of the Hindu Marriage Act are reproduced as under :
"9. Restitution of conjugal rights.-
(1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
[Explanation.- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
13. Divorce. (1) Any marriage solemnized, 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 solemnization of the marriage, treated the petitioner with cruelty; or [(ib) 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 continuous 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.
Explanation.- In this clause,-
(a) the expression "mental disorder"" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or]
(iv)has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from veneral 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;
Explanation. In this subsection, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.
(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, -
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
(i)in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition;
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956(78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;or
(iv)that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.- This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976(68 of 1976)"
However, in the State of U.P., even prior to Amending Act No.68 of 1976, ground with regard to cruelty was incorporated by U.P. Act No.13 of 1962 which is reproduced as under :
"STATE AMENDMENTS UTTAR PRADESH.- In its application to Hindus domiciled in U.P and also when either party to the marriage was at the time of marriage a Hindu domiciled in U.P., in Section 13-(added in Central Act by Amending Act No.68 of 1976)
(i) in sub-section(1), after clause (i) insert and deem always to have been inserted the following :
A plain reading of Section 13(1) (ia), shows that a decree of divorce may be granted by the court in case either of the party, i.e. husband or wife has persistently or repeatedly treated the the other with cruelty causing a reasonable apprehension to the petitioner that it will be harmful or injurious for him to live with the other party. Under Section 13(1)(ib), a suit for divorce may also be filed on the ground that either side has deserted the petitioner for continuous period of not less than two years immediately preceding the presentation of the petition.
Thus, keeping in view the U.P. Amendment and intent of Legislature, cruelty means persistent or repeated ill treatment of a spouse to other which causes a reasonable apprehension in the mind of plaintiff with regard to harm or injury which may be caused while living with other party.
18. Mr. Sudeep Seth, learned counsel appearing for the appellant has vehemently argued that the respondent had treated the plaintiff appellant with cruelty. Hence he is entitled for divorce. He submits that the learned Family Court has not considered the material evidence on record led by the appellant and the impugned judgment suffers from surmises and conjectures. He further submits that because of subsequent conviction in criminal case, marriage is not revivable, hence divorce is the only remedy to secure the ends of justice.
19.On the other hand, Smt. Shobhna Dubey, respondent appeared in person and argued the case stating that she is ready to live with her husband and also ready to forget whatever happened in the past. She also assures that she is not interested to persecute or prosecute the members of the appellant's family. She also stated that minor quarrels, fractions or disagreement between the husband and wife does not constitute cruelty. The Family Court has recorded the sound finding and the appeal is liable to be dismissed. She further submits that since an amendment application filed by the appellant was kept pending and not allowed by the Family Court, subsequent event could not be taken into account as it would amount to travel beyond the pleading.
20.Both sides submitted the written arguments as well as compilation of case laws to defend their cause.
21.Before the trial court, on behalf of the respondent plaintiff, in suit filed for restitution of conjugal rights, certain documentary evidence was filed. The complaint dated 26.9.2007 along with the applications C-38/95, C-38/96 and C-38/97 shows that while lodging a First Information Report with regard to assault, the appellant also prayed for police security keeping in view the alleged injury in terms of medical report of the same day obtained from Medical College. It was after the incident dated 26.9.2007, both husband and wife went to Allahabad to attend conference on 29/30.9.2007. The injury report prima facie does not reveal the injury caused by teeth bite. It has been observed in the judgment and order dated 31.5.2010 by Special Additional Chief Judicial Magistrate, C.B.I., Lucknow in case No.3674 of 2008, while convicting the appellant under Sections 498-A, 506, 507 I.P.C. read with Section ¾ Dowry Prohibition Act, that the incident dated 26.9.2007 was created to avail divorce (C-40/33 and C-60/33) in the case filed under Section 13 of the Hindu Marriage Act. An adverse comment has also been made by the Special Additional Chief Judicial Magistrate, C.B.I., Lucknow while convicting the appellant and other family members. Photographs have been filed with regard to honeymoon at Goa which prima facie shows intimacy between the appellant and the respondent. Emails sent by the appellant, copies of which have been filed in the trial court as C-52/3 to C-52/32 also reveals intimacy between the parties. Email of Shobhna Dubey on record also shows intimacy between them. During cross-examination, in the case under Section 9 of the Hindu Marriage Act, the appellant himself stated that he was having cordial relationship with Shobhna before pregnancy and even if all the complaints are taken back, the appellant is not ready to live with Shobhna Dubey. Attention has been invited to certain Email sent by lady Rashmi Rao filed as C-31/16, 17, 18 to establish living relationship between the appellant Ajay Lavania and Rashmi Rao. The appellant has filed copy of bill to show his financial prospects. The documentary evidence on record shows abortion because of complicated Ectopic Pregnancy. In his letter dated 29.4.2007, the appellant has consoled the respondent to ignore the ill treatment imparted by Mrs. Archana Lavania and Mrs. Prabha Lavania. He ensured that he is with his wife against them.
22.Learned counsel for the appellant Shri Sudeep Seth submitted that the incident dated 26.9.2007 was an incident of cruelty. Coupled with the fact that the respondent had alleged extra marital affairs against the appellant with allegation of his being habitual drinker and lead club life and watching of blue films, the conviction in the criminal case creates a ground of irretrievable break down of marriage. He submits that the parties have reached to a situation where there is no chance of reunion. Learned counsel for the appellant has relied upon the cases reported in (2003)6 SCC 334 Vijay Kumar Ramchandra Bhate versus Neela Vijaykumar Bhate, 2003(2) AWC 1665(SC) K.A. Abdul Jaleel versus T.A. Shahida, 2005(3) AWC 2093 Amar Nath Gupta versus State of U.P. and another and AIR 2007 Andhra Pradesh 201 Sardar Darshan Sngh and others versus Smt. Surjeeth Kaur.
It is also stated that the respondent has tried to make out a case on the basis of false and fabricated document and the Evidence Act is not applicable strictly.
23.In the case of Vijay Kumar Ram Chandra Bhate (supra) while interpreting the word, "cruelty" under the Act, Hon'ble Supreme Court ruled that the character assassination in or during divorce proceedings amounts to cruelty and substantiate the wife's petition for divorce on the ground of cruelty. The allegation against the wife of unchastity, indecent familiarity with another person and extramarital relationship alleged in the written statement by the husband constitute a cruelty. However, the case in hand seems to be based on different facts and circumstances where the allegation of living relationship has been tried to establish on the basis of Emails and other surrounding facts with submission that the appellant had cooked up a false case to dissolve the marriage. It is not a case where character assassination has been made on false or concocted ground; rather facts have been tried to prove on the basis of documentary evidence which does not seem to have been categorically denied.
24. In the case of K.A. Abdul Jaleel (supra), Hon'ble Supreme Court held that the Family Court has jurisdiction to adjudicate the question relating to properties of divorced parties.
25.In the case of Jagannath (supra), a Single Judge of this Court held that while filing petition for maintenance against the husband, the Family court has right to take evidence from both side by consolidating two suits and give common judgment.
26. In the case of Sardar Darshan Singh(supra), Hon'ble Single Judge of Andhra Pradesh High Court opined that subsequent event shall be taken into consideration by way of rejoinder. However, rejoinder is impermissible if such subsequent pleadings sets up plea inconsistent with pleading in plaint.
27. The respondent relied upon a case decided on 22.9.2010 by Hon'ble Supreme Court in Civil Appeal Nos.8196-8197 of 2010 Sanjeeta Das versus Tapan Kumar Mohanty, another judgment dated 27.2.2009 delivered in Civil Appeal No.1330 of 2009 Vishnu Dutt Sharma versus Manju Sharma, (2004)7 SCC 747 Shyam Sunder Kohli versus Sushma Kohli alias Satya Devi, [2002(46)ALR 465] Savitri Pandey versus Prem Chandra Pandey, (2001)4 SCC 250 Chetan Dass versus Kamla Devi, AIR 2005 Bombay 278 Ajay Sayajirao Desai versus Mrs. Rajashree Ajay Desai, AIR 1989 Delhi 121 Ashok Kumar Bhatnagar versus Smt. Shabnam Bhatnagar, AIR 1984 Allahabad 81 Satya Pal Sethi versus Smt. Sushila Sethi, AIR 1964 MP 28 Narayan Prasad Choubey versus Smt. Prabhadevi, (2009)4 SCC 366 Sipra Bhattacharyya versus Dr. Apares Bhattacharyya, (2005)3 SCC 313 B.P. Achala Anand versus S. Appi Reddy and another, (2005)10 SCC 299 Naresh Chandra Singhania versus Deepika Alias Buby and (1997)7 SCC 7 Jasbir Kaur Sehgal(Smt) versus District Judge, Dehradun and others.
28.In the case of Sanjeeta Das(supra), Hon'ble Supreme Court has set aside the Division Bench judgment of Orissa High Court holding that a Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of Hindu Marriage Act. A decree of divorce cannot be granted with or without consent of either side for consideration. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under Section 13 of the Act unless of course the consenting parties proceed under section 13B of the Act.
29. In the case of Vishnu Dutt Sharma(supra), Hon'ble Supreme Court declined to interfere where the Delhi High Court had dismissed the appeal filed by the husband whereby the trial Court has declined to grant divorce on the ground of cruelty. Since the husband himself has imparted cruelty, it was not found to be good ground to grant divorce in the petition filed by the husband. Hon'ble Supreme court observed that the wife has successfully demonstrated that in fact, she suffered cruelty at the hands of husband appellant. In such a situation to grant divorce to the husband appellant only on the ground of irretrievable breakdown of marriage would not be proper.
30. In the case of Shyam Sunder Kohli (supra), their Lordships of Hon'ble Supreme Court held that it was the husband who had been at fault and had not allowed the marriage to break. Therefore, the marriage could not be dissolved on the ground of irretrievable break down. To reproduce relevant portion, to quote :-
"12. On the ground of irretrievable breakdown of marriage, the court must not lightly dissolve a marriage. It is only in extreme circumstances that the court may use this ground for dissolving a marriage. In this case, the respondent, at all stages and even before us, has been ready to go back to the appellant. It is the appellant who has refused to take the respondent back. The appellant has made baseless allegations against the respondent. He even went to the extent of filing a complaint of bigamy, under Section 494 IPC against the respondent. That complaint came to be dismissed. As stated above, the evidence shows that the respondent was forced to leave the matrimonial home. It is the appellant who has been at fault. It can hardly be in the mouth of a party who has been at fault and who has not allowed the marriage to work to claim that the marriage should be dissolved on the ground of irretrievable breakdown. We, thus, see no substance in this contention."
31. In the case of Savitri Pandey (supra), Hon'ble Supreme Court held that cruelty means the acts which are dangerous to life, limb or health and should be distinguished from the ordinary wear and tear of family life. The sanctity of marriage cannot be left at the whims of one of the annoying spouses.
32. In the case of Chetan Dass(supra), Hon'ble Supreme Court held that the principle of irretrievable break down of marriage cannot be used as a formula to gain relief of divorce automatically. Hon'ble Supreme Court ruled that where party seeking divorce are found during the course of judicial proceeding to have committed matrimonial offence and has been unable to establish any allegation against the spouse, a decree of divorce on the ground of irretrievable breakdown of marriage cannot be granted. Erring party cannot be permitted to break the marital bond by taking advantage of his own wrong. It shall be appropriate to reproduce para 14 of the judgment which is as under :
"14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case."
33. In the case of Ajay Sayajirao Desai(supra), Hon'ble Supreme Court held that where the wife at all stages has been ready to go back to husband and it is the husband who refused to take back wife on baseless allegation to the extent of filing false complaint against wife with intention to create evidence against wife, the marriage cannot be dissolved on the ground of irretrievable breakdown.
34. In the case of Ashok Kumar Bhatnagar(supra), a Division Bench of Delhi High Court held that where the husband is harassing his wife for dowry and abandoning her, he cannot be permitted to take benefit of his own wrong and claim divorce on the ground of irretrievable break down of marriage.
35. In the case of Satya Pal Sethi(supra), Hon'ble Single Judge of Allahabad High Court has dismissed the divorce petition where the husband took the plea of cruelty and desertion, but, failed to prove charges against wife and on the other hand, the wife has proved that the husband was living in adultery.
36. In the case of Narayan Prasad Choubey (supra), a Division Bench of M.P. High Court held that no judicial separation can be granted against the wife on the ground of his irritating idiosyncrasies and because of allegation that the wife was frequently picking up petty domestic quarrels with her mother-in-law and thereby rendering the life unhappy for the husband.
37. In the case of Sipra Bhattacharyya(supra), Hon'ble Supreme Court has set aside the order of the High Court where the High Court has rejected the application for enhancement of maintenance keeping in view the facts and circumstances of the case.
38. In the case of B.P. Achala Anand(supra), Hon'ble Supreme court ruled that a divorced wife has right to stay in tenancy premises but it shall be dependent upon the terms and conditions in which the decree of divorce has been granted and the provision of maintenance has been made. Hon'ble supreme Court held that right to residence is part and partial of her right to maintenance.
39. In the case of Naresh Chandra Singhania(supra), Hon'ble Supreme Court ruled that in the event of enhancement or increase of husband's income, the maintenance may also be increased.
40. In the case of Jasbir Kaur Sehgal (smt), Hon'ble Supreme Court held that the maintenance pendent lite can be granted not only to wife but also to her dependants whom she is also maintaining under Section 24 of the Hindu Marriage Act.
41. In view of aforesaid case law, cited by other side, there appears to be no dispute over the proposition of law that in the event of cruelty, mental or physical caused by either side, a suit for divorce may be decreed. However, it should be proved with pleading and evidence on record.
42. In the present case, the suit was filed only on the ground of cruelty under Section 13(1)(ib) of the Hindu Marriage Act and not on the ground of irretrievable ground of marriage. On the basis of subsequent events, i.e. conviction in the criminal case, learned counsel for the appellant submitted that a divorce may be granted on the ground of irretrievable breakdown of marriage.
43. A perusal of the relief claimed in the suit filed by the appellant, it is evident that the suit was filed on the ground of cruelty and desertion by wife. In absence of specific relief claimed on the ground of irretrievable breakdown of marriage, the dissolution of marriage cannot be considered on this ground. Though subsequent events may be looked into but that too only keeping in view the original pleading on record. Subsequent events supplement the original pleading to make out a case for decree of suit for divorce but it does not empower the courts to decide the suit totally on new ground beyond the issues framed by the trial court.
Otherwise also, from the facts, circumstances and evidence on record, there appears to be no over action on the part of the respondent creating a ground for irretrievable breakdown of marriage.
44. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined by the Hindu Marriage Act. No comprehensive definition can be given to cruelty as it may be fatal to the social structure based on institution of marriage. Prior to Amending Act of 1976, the only ground available for divorce was by way of judicial separation. By amendment, the word added is "treated the petitioner with cruelty". The object seems to give a definition exclusive or inclusive, which may amply meet every particular act or conduct and not fail in some circumstances. Legislature to their wisdom has left the cruelty to be determined by courts on the facts and circumstances of each case as to whether the conduct amounts to cruelty. It is also because since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases. However, it is true that there has been forward march towards liberalisation of the divorce on the ground of cruelty and the statutory limitations in old Section 10(1)(b).
45. Hon'ble Supreme Court in AIR 1975 SC 1534 Dastane versus Dastane, followed by a Full Bench of Bombay High Court in AIR 1984 Bom 413 Kesbavrao versus Nisba examined the matrimonial ground of cruelty in view of old section 10(1)(b) of the Act. It is held that the provision is to be considered as to whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It is also pointed out that it was not necessary under English Law that cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. What is required is that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent.
46. In Hindu Law, by Mulla after considering Indian and foreign judgments, cruelty has been dealt with as under :
"Though the clause does not in terms state so, it is abundantly clear that the application of the rule must depend on the circumstances of each case. Without attempting to define cruelty it may be said that 'cruelty' contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause such apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status, environments and social values, as also the customs and traditions governing them. The apprehension contemplated by the above conception is that further cohabitation will be harmful or injurious and not that the same or similar acts of cruelty will be repeated."
47. In a case reported in AIR 1988 SC 121 Sbobba Rani versus Madhukar Reddy, Hon'ble Supreme Court examined the sub-s 13(1)(ia) of the Hindu Marriage Act and held that there could be cases where the conduct complained of itself may be bad enough and per se unlawful or illegal. Then, in such a situation, the impact or the injurious effect on the other spouse need not enquire and cruelty shall be established if the conduct itself is proved or admitted.
However, in the present case, conduct of the respondent constituting cruelty does not seem to be proved or admitted. Mulla in Hindu Law has given a word of caution to follow blindly the western judgments or the cases decided keeping in view the facts and circumstances of a particular case. To quote :
"There has been such a marked change in the notions of matrimonial duties and obligations of husband and wife in the present generation in India that it will be incumbent on the court to be extremely careful in the matter of seeking assistance and guidance from decisions arrived at under any previous legislation in India or England, even when the rules may be similarly worded. Blind adherence to any of those decisions must be deprecated, particularly when they relate to persons whose customs, manners and mode of life may be different."
48. In King versus King[1953]AC 124 page 130, it has been held that the law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. Physique, temperament, standard of living and culture of the spouses and the interaction between them in their daily life and all other relevant circumstances must have a bearing on the question whether the acts or conduct complained of amount to the matrimonial offence which entitles a spouse to relief under this clause.
49. The language of Section 13 is comprehensive enough to include cases of physical as well as mental cruelty and the cases where both the elements are present. Where physical violence is proved, the matter may not present any particular difficulty. Even a single act of violence may by itself be of such a grievous and inexcusable nature as to satisfy the test of cruelty. However, on the other hand, isolated acts of assaults committed on the spur of the moment and on some real or fancied provocation may not amount to cruel treatment. The assault or assaults must not be viewed as isolated facts but in the proper setting, as an incident or incidents in a complicated series of marital relations. It would be relevant to have regard to any physical or mental strain under which the accused spouse may have been labouring. The minor acts of physical violence alleged by either side may not amount to cruelty but may be an incident of life which should be tolerated or adjusted by either side. The domestic life of spouse must be surveyed as a whole before recording a finding on cruelty keeping in view their possible future relations and the reasonableness or otherwise of the apprehension in the mind of the party.
50. The conduct consisting of number of acts should be judged in relation to its attendant circumstances, and the physical or mental condition or susceptibilities of the innocent spouse and the offender's knowledge of the actual or probable effect of his conduct on the other. The acts and incidents complained of along with conduct of the parties should be taken together to form a composite picture to ascertain cruelty.
51. Coming to present controversy in view of aforesaid principles, so far as incident of 26th September, 2007 is concerned, which has been vehemently relied upon by the appellant's counsel does not seem to constitute cruelty for the reason that after the said incident, both the appellant and the respondent attended a conference at Allahabad and the evidence on record shows that they remained at Allahabad for two days as husband and wife in the same room at the hospital. Thus, the incident of 26.9.2007, if assuming to be true, was an incident originated on the spur of moment and was not deliberate and intentional action on the part of the respondent to cause harm to the appellant.
52. Moreover, it was the appellant who had lodged a First Information Report against the respondent with regard to incident of 26.9.2007 and obtained medical certificate. Prima facie, the appellant seems to have created a ground and lodged the First Information Report against the respondent on the one hand and on the other hand, he attended the seminar at Allahabad keeping her in dark with regard to lodging of First Information Report and medical certificate obtained from the Medical College.
53. The statements of Ajay Lavania and Vinod Kumar Rathore also do not make out a case causing cruelty by the respondent. Only because the appellant does not want to live with the respondent for any reason whatsoever shall not be sufficient to constitute cruelty or create a ground for divorce under Section 13 of the Act. In his statement, the appellant stated that the respondent has got no complaint against the petitioner but he has got complaint or grievance against the respondent. No cogent evidence has been led or filed by the appellant before the trial court to make out a case of cruelty.
54. Specific allegation raised by the respondent that on account of living relationship with a lady, namely Rashmi Rao, the appellant wants divorce has not been rebutted by cogent and trustworthy evidence. Email of Rashmi Rao creates a reasonable doubt over the conduct of the appellant. Stating correct fact without any concoction shall not create cruelty or ground to claim divorce.
55. The respondent consistently pleaded and asserted that she wants to live with the appellant and she is still ready to forget all previous incidents and also ready to excuse and take appropriate step for the appellant's acquittal in the appellant's pending appeal seems to be bona fide action of the respondent. In case they unite together, keeping in view the statement given before this Court, the appellate court shall take lenient view and if parties agree, then permit to enter into compromise.
56. From the material and evidence on record, there appears to be no doubt that there has been quarrel between the appellant and the respondent during short span of matrimonial life on trivial issues and either side may be at fault but does not seem to create a ground under Section 13(i)(ib) of the Act to decree the suit for divorce on the ground of cruelty.
57. A decree of divorce under the statutory provision should not be granted merely on the ground of wrongful conduct of spouse or minor incident or incident of violence having taken place at the whisper of moment or either side does not want to live with each other for any reason whatsoever. Irretrievable breakdown of marriage cannot be a ground to decree a divorce suit unless specifically pleaded showing the instances enumerating the grounds making out a case beyond the reasonable doubt. Continuing of minor incidents or quarrel during matrimonial life in today's atmosphere when everyone is facing complex problem in day to day life from office to house or in the street shall not constitute cruelty for statutory divorce. Only a violence which is deliberate, planned and intentional to harm the other side for some extraneous reasons or may be because of some illicit relationship may constitute cruelty and warrant divorce.
58. In the present case, there appears to be no evidence which may establish that the quarrel between the appellant and the respondent on some of the dates were outcome of deliberate, planned and intentional decision to harm the appellant; rather the appellant himself has lodged a First Information report against the respondent and thereafter both sides entered into litigation and registration of the criminal cases on one or other ground. Once the appellant himself initiated the criminal proceeding and allegation is against him with regard to demand of dowry, then it shall not constitute cruelty to make out a case for divorce.
59. Before parting with the case, it shall be appropriate to observe that a decree of divorce is an exception and a thing which is an exception should not be granted lightly by courts. The institution of marriage in a civilized society not only amongst Hindus but others also has been established since ages to regulate the society and save the humanity from rule of jungle(forest). It is the matrimonial institution which differentiate a man from beast, meant to transfer its knowledge and culture to posterity. Grant of divorce by the courts leisurely or merely on asking or with the consent of parties or because one does not like, other shall spoil the whole social set up in due course of time.
60. While narrating the importance of marriage and family values, a three times U.S. Republican Senator from Missouri, John Danforth in his book, "Faith and Politics" (page 112) observed as under :
"Genesis tells us that a man leaves his father and mother and "cleaves" to his wife. The dictionary definition of cleave is "to adhere to firmly and closely or loyally and unwaveringly." My own mental image of cleaving is the bonding together of two objects, say the gluing of two pieces of wood so that they are as one. All the instructions I have seen on the subject say that it is important to clean the surfaces of the two objects before applying the glue so that external matter does not interfere with the bonding. For me, this is a metaphor for marriage because all sorts of external influences, people as well as interests, interpose themselves between the marital partners. That is the case for every married couple. The external influence may be, as the verse in Genesis suggests, the claims on a husband or wife by demanding parents, or it may be the responsibilities of raising children, or the hours and energy devoted to one's job. The challenge for every married couple is to cleave together and not allow the external influences that insert themselves into the marriage to break the bond between them."
Learned author(supra) expresses his sorrow with regard to divorce rate in U.S.A. (page 66-67), in the following words :
"I think the reason behind this fervor is an understandable concern about the state of values in our society. When the divorce rate is 50 percent and unwed teen pregnancies are 34 percent, when it seems that family entertainment is impossible to find among the obscene, when children have access to drugs, then there is little wonder that many Americans are desperate to restore some measure of decency to our common life, to return to a world which, at least in our memories, was better than what we have today-a world in which religion seemed to have more force in influencing how people live their lives."
61.Because of soft provisions for divorce, the western countries and U.S.A. are facing acute problem. Easy divorce break the families, and in case spouse has children, they are the ultimate sufferer. In young age, ordinarily the temptation for extramarital relationship is high and in case courts are lenient, then there shall always be cause to approach for divorce in the persons of easy virtue. Law is not for those who meditate and lead a spiritual, honest and fair life, but it is to regulate the commoners who become victim of circumstances easily.
62.Moreover, in Hindus, marriage, as observed (supra), is sacred character of sacrament. Statutory provision for divorce is the enabling provision and is an exception, not to be exercised in a routine manner or lightly. Marriage provides hereditary right to a spouse in the event of death of either of them and heredity rights to the coming generation born from the wedlock and collective social security to spouse and children. It is the marriage which differentiate between a civilized and uncivilized society. Keeping in view the magnitude of benefit and social security available to a spouse, no matter there are some differences and wrangles in a matrimonial life. George Bernard Shaw said, "Marriage is popular because it combines the maximum of temptation with maximum of opportunity". (In Man and Superman).
Horald Nicolson advised, to quote, : "The great secret of successful marriage is to treat all disasters as incidents and none of the incidents as disasters".
62. As observed (supra), continuance of marriage is 'rule' and divorce is an exception. Exception cannot become rule by liberal approach. Section 13 of Hindu Marriage Act is enabling provision and enabling provision deal with disability or contingencies in special circumstances but it does not confer power to invoke the provision with regard to divorce as a matter of right. The courts should be conscious to ensure that the statutory provision with regard to divorce or maintenance is not abused by either of the spouse for extraneous reasons or as an instrument to wreak vengeance.
63. Courts have to ensure that the matrimonial life continue to its entirety and the duo husband and wife may consume their natural life, as far as possible. It shall be necessary for the plaintiff/ petitioner who approached the Court under Section 13 of the Act to establish that he or she has not been at fault and possess impeccable character and made all efforts for continuance of matrimonial life. There shall be dual burden on the plaintiff, first to prove his or her own impeccable character and efforts made for continuity for matrimonial life and secondly, it shall be necessary to establish that the conduct of other side is so impractical and serious that it shall cause irreparable loss and injury warranting dissolution of marriage. Keeping in view the provision contained in Sections 102 and 103 of the Evidence Act, burden to prove the grounds with regard to divorce shall be on the plaintiff to establish the facts.
There may be situation when both side does not possess impeccable character or both are flirt or have been indulged in unethical practice, then in such situation, it is for the court to decide the issue in a just and proper manner to secure the interest of both sides. In case, the defendant in a divorce suit possess impeccable character and discharge her/his obligation in the manner which is expected from a person of common prudence or except some minor violence or incidence at the spur of moment, then in such situation, it shall not be proper for the Court to decree a divorce suit.
64. The case laws referred by other side deals with original provision contained in Section 13 of the Act with regard to cruelty. While interpreting the provision with regard to divorce, every word should be given its meaning. The legislatures were conscious by making U.P. Amendment to check the abuse of process of law keeping in view falling standard of life. That is why, they have used the words, "persistently or repeatedly", coupled with reasonable apprehension in the mind of the plaintiff with regard to harm or injury which may sustain while living with other party. Reasonableness should not be based on trivial grounds. It must be based on well founded material and reasoning.
65. Apprehension with regard to harm or injury should also be of such nature which may cause the other side irreparable loss or injury. Meaning thereby, the reasonable apprehension with regard to harm or injury should be such which may not be bearable to lead a normal life.
In the present case, there appears to be no material which may create a reasonable apprehension in the mind of the plaintiff appellant resulting into harm or injury in incident which may not be bearable or irreparable because of which the appellant cannot lead a matrimonial life along with the respondent. Liking or disliking shall not be a ground to decree a divorce.
66. Thus to sum up, the allegations on record are all of trivial nature and does not constitute cruelty. Subject to observation made in the body of present judgment, appeals lack merit. Hence dismissed.
No order as to costs.
(Justice S.C. Chaurasia) (Justice Devi Prasad Singh) July 28, 2011 kkb/