Hon'ble Yogesh Chandra Gupta,J.
1. Marriages--be it for love or arranged--are demanding as well as fragile institution. It takes patience, effort, and faith to preserve them. Yet, they do fail. And if that happens then 'are the defaulters entitled to take advantage of their own fault in divorce proceeding'--is the main question involved in this appeal.
THE FACTS
2. Dr. Tara Charan Agarwal (the Appellant) and Smt. Dr. Veena Agarwal (the Respondent) are allopathic doctors. They knew each others from the school days. They went to the same medical college, fell in love, and married on 17.1.1967, while completing their studies.
3. A son was born to them in June, 1970 but he died young within a few of days of his birth. A daughter was born on 21.12.1971. At present, she is married.
4. The Respondent was operated twice in 1973 and 1984 before the proceeding started and for the third time in 1988 during the proceeding.
5. Initially, the relations between the parties were happy. However, they started deteriorating after second operation, when the Respondent came to know about a letter (paper 39-Ka) said to be written by the Appellant to Shashi, the younger sister of the Respondent.
6. The relations came to an end when the Respondent discovered the two letters (photostat copies are 30-Ga and 31-Ga) said to be written by Shashi to the Appellant.
7. The Appellant filed matrimonial petition no. 618 of 1987 under section 13 of the Hindu Marriage Act, 1955 (the Act) for divorce on the ground of cruelty. It was after husband-wife relations came to an end. The specific instances of cruelty were also alleged in paragraph 9 of the plaint.
8. The Respondent filed the written statement contesting the proceeding. She denied the specific instances alleged by the Appellant. She alleged that there was cruelty on the part of the Appellant in as much as, The Appellant was carrying on an affair with Shashi;
The Appellant insisted that the Respondent should accommodate Shashi in the same house. This proposal was neither accepted by the Respondent nor by their daughter, who was student of intermediate at that time;
The Appellant tortured and threw tantrums on rejection of his proposal to accommodate Shashi in the house.
9. The Appellant examined the following witnesses:
Dr. Tara Charan Agarwal (PW-1): the Appellant himself. He deposed about the cruelty and the specific instances;
Sri Chandra Veer Singh (PW-2): an advocate and friend of the Appellant. He deposed about the incident dated 25.1.1987, when the Respondent is said to have refused to make tea;
Sri Ram Prakash Goyal (PW-3): the brother of the Appellant's brother-in-law (Jijajee). He deposed about the incident dated 26.1.1987, when the Respondent is said to have used foul language for the Appellant;
Sri AS Kapoor (PW-4): the hand writing expert. He proved his report and opined that the hand writing in paper no. 39-Ka, the alleged love letter, is not in the Appellant's hand writing.
10. The Respondent examined the following witnesses:
Dr. Veena Agarwal (DW-1): the Respondent herself. She denied the incidents narrated by the Appellant. She deposed about the affair of the Appellant with Shashi and cruelty on his part;
Sri Risal Uddin (DW-2): clerk in the Physiology Department. He proved the leave application given by the Respondent for granting leave from January 24th to 26th, 1987 for going to Gwalior;
Sri Suresh Chand (DW-3): the brother of the Respondent and Sashi. He had found the letter 39-Ka and deposed about the affair of the Appellant with Shashi;
Sri JP Tiwari (DW-4): the tax assistant in the Income Tax Department. He produced the income tax records for the year 1980-81 and 1981-82;
Sri Deepak Kashyap (DW-5): the hand writing expert. He proved his report and opined that hand writing in the paper no. 39-Ka is the Appellant's handwriting.
11. Apart from other documents, the following documents were also filed:
Paper no. 39-Ka: The alleged love letter by the Appellant to Shashi;
30-Ga and 31-Ga: The photostat copies of the alleged love letters by Shashi to the Appellant.
12. The trial court dismissed the suit after recording the following findings:
The Respondent has no illicit relationship with any another man;
It is not proved that the Respondent had set the daughter against the Appellant;
The specific instances of abuse and insult by the Respondent (said to be cruelty) were not proved;
There is no cruelty on part of the Respondent;
The Appellant has illegal relationship with Shashi;
There is cruelty on the Appellant's part.
Hence the present appeal by the plaintiff.
13. In this appeal, initially a counsel had put up appearance on behalf of the Respondent. Subsequently, he was elevated to the High Court at Uttarakhand and notices were sent to the Respondent to engage another counsel. The notices were served but no one put up appearance her behalf. Subsequently, the notices were again served personally through CJM Agra on the Respondent but she has chose not to put up appearance through any advocate.
POINTS FOR DETERMINATION
14. We have heard Shri B Dayal, counsel for the Appellant. The following points arise for determination in the case:
(i)Whether there is any cruelty on the Respondent 's part;
(ii) Whether the marriage has broken down irretrievably;
(iii)Whether divorce should be granted, as there is no purpose in continuing the marriage.
1st POINT: NO CRUELTY ON RESPONDENT'S PART
15. The counsel for the Appellant submits that cruelty on the Respondent's part is proved in as much;
(i)The Respondent had misbehaved and used foul language on 25.1.1987 and 26.1.1987;
(ii)She has withdrawn from husband-wife relationship.
1st Submission: Incidents Not Proved
16. The Appellant in paragraph 9 of his petition has alleged some specific incidents to show misbehaviour and cruelty on part of the Respondent. The counsel for the Appellant has emphasised about two incidents said to have taken place on 25.1.1987 and 26.1.1987.
The First Incident
17. On the first occasion, Sri Chandra Veer Singh (PW-2) is said to have come to their house and it is said that the Respondent refused to make tea for him.
18. The aforesaid incident was deposed by the Appellant as well as by Sri Chandra Veer Singh (PW-2); whereas it was denied by the Respondent (DW-1).
19. The Respondent (DW-1) and Sri Suresh Chand (DW-3) have deposed that at present Sri Chandra Veer Singh is an advocate but earlier he was compounder of the Appellant. Sri Chandra Veer Singh has admitted that he gave injunction and glucose to the patients referred to him by the Appellant and earned some money in this process. This gives credence to the statement of the Respondent that earlier he was compounder of the Appellant.
20. Sri Chandra Veer Singh is not only a friend of the Appellant but is obliged to him. He has reason to depose in his favour.
The Second Incident
21. The other incident is said to have taken place on 26.1.1987. The Appellant (PW-1) and Sri Ram Prakash Goyal (PW-3) have deposed that:
On 26.1.1987, the Appellant's sister, her husband (Jijajee of the Appellant), and Sri Ram Prakash Goyal (younger brother of the Appellant's Jijaji) (PW-3) had come to the house for reconciliation;
The Respondent used foul language for the Appellant in front of them.
22. The Respondent denied both the incidents. She deposed that she had gone to Gwalior to meet her sister and was not present at Agra on those dates.
23. The Respondent also examined Sri Risal Uddin (DW-2) clerk in the Physiology Department of the medical college where she worked. He proved the application for leave filed by the Respondent in the Medical College for grant of leave from January 24 to 26, 1987. The leave was sanctioned.
24. Sri Suresh Chand (DW-3), brother of the Respondent, also deposed that he had gone to the station to drop the Respondent. It is also not disputed that the Respondent's sister lives in Gwalior.
25. The trial court has held that the Appellant has not been able to prove the incidents dated on 25th and 26th January, 1987 or that the Respondent misbehaved or used foul language on those days or on any other day. Considering the evidence on the record, there is no illegality in this finding.
2nd Submission: There is Justification
26. The parties no longer have husband-wife relationship. The Appellant claims that it came to end in 1986; whereas, the Respondent claims it to have lasted till March 1987. However, this variance is not material.
27. The matrimonial petition was filed on 21.5.1987 after March 1987. The parties did not have husband-wife relationship prior to the filing of the matrimonial petition and this void still continues.
28. Withdrawal from husband-wife relationship is a serious matter. In case there is no justification for the same, it may be mental cruelty entitling the other party for divorce. Let us consider, if there is any justification.
Love Letters Proved: Paper 39-Ka
29. According to the Respondent, she came to know about love affair between the Appellant and her young singer Shashi through paper no. 39 Ka in 1984. It is a love letter said to be written to a lady called Chand. This letter was found by Sri Suresh Chand, brother of the Respondent (DW-3), at the time of Respondent's second operation. It was shown to her subsequently.
30. The Appellant has denied writing the aforesaid letter. He has also examined Sri AS Kapoor (PW-4), a hand writing expert. Shri Kapoor compared it with the Appellant's specimen hand writing and gave a report. He proved his report where he had opined that the letter was not in the Appellant's hand writing.
31. The Respondent has examined herself as DW-1. She has also examined her brother Sri Suresh Chand (DW-3) and Sri Deepak Kashyap (DW-5), the hand writing expert. DW-1 and DW-3 stated that:
Their sister Shashi, is also known as Chand;
They have seen the Appellant's writing and recognise his hand-writing;
The hand writing on 39-Ka is that of the Appellant.
32. Sri Deepak Kashyap (DW-5) gave a report. He proved his report and opined that the hand writing on 39-Ka is of the Appellant. The hand writing experts of the parties differ in their opinion.
33. It is admitted case that Shashi was married in 1984 but the Respondent (DW-1) as well as her brother (DW-3) have deposed that Shashi had left her matrimonial home and was living in Agra in a rented house. DW-3 has further deposed that this house was taken on rent by the Appellant for Shashi
34. The hand writing experts have given reasons for their different opinions. The trial court has agreed with the reasons given by the expert of the Respondent and has held that the letter was in hand writing of the Appellant. On this finding, he should have exhibited the documents. Perhaps, this is an inadvertent mistake.
35. We affirm the finding recorded by the trial court that paper no. 39-Ka was written by the Appellant on the following considerations:
Sri Suresh Chand (DW-3) deposed that he caught the letter (paper no. 39-Ka);
He (DW-3) as well as the Respondent (DW-1) have deposed that they recognise the hand writing of the Appellant and it is his hand writing;
The reason given by Shri Kashyap (DW-5) are more convincing;
Nothing has been pointed out to show that this finding is incorrect.
Paper no. 30-Ga and 31-Ga
36. The Respondent has also filed two photostat copies of two letters 30- Ga and 31-Ga. A reading of these letters indicate that they are love letters written by Chand. The Respondent deposed that:
She had found two letters written by Shashi to the Appellant;
She got photostat done of the letters;
When the Appellant came to know about it, he took away the originals but could not take the photostat copies as he did not know about them.
37. The Respondent (DW-1) and Sri Suresh Chand (DW-3) have also deposed that:
They recognise handwriting of their sister Shashi;
The writing in the photostat copies (30-Ga and 31-Ga) is that of Shashi;
38. There is no suggestion or any material to show that originals of 30-Ga and 31-Ga were not taken back by the Appellant or they were not written by Shashi: in fact during argument it was accepted. In view of this as the original letters were with the appellant, they were also formally proved-- they should have been also exhibited: this also appears to be inadvertent mistake.
Appellant's Affair with Shashi
39. The Trial court has recorded a finding that the Respondent was not having an affair with any person. Nothing has been pointed out that any other inference is possible. This is upheld.
40. The Appellant (PW-1) had denied his relationship with Shashi. However, the Respondent is elder sister of Shashi. Sri Suresh Chand (DW-3) is real brother of the Respondent as well as of Shashi. Both of them deposed about illicit relationship between the Appellant and Shashi. In case, there was no such relationship then there was no reason for the Respondent or Sri Suresh Chand to depose against Shashi, their own sister. No brother or sister would depose against their sister.
41. Any wife would be loath to accept any other women in her husband's life--more so or even though, the other women might be her sister. This is valid justification for withdrawing from husband-wife relationship.
42. We have already indicated (paragraph 33 of the judgement) the evidence of the Respondent (DW-1) and her brother (DW-3) that Shashi has left matrimonial home and was living in Agra; perhaps in the house rented by the Appellant. The Trial Court has recorded a finding that the Appellant had sexual relations with Shashi and was having an affair with her. Considering the evidence on record, this finding is also upheld.
43. In our opinion:
The Appellant has not been able to prove specific instances of misbehaviour;
The Appellant was having a love affair with Shashi;
There was justification for the Respondent to withdraw from husband-wife relationship;
There is no cruelty on the part of the Respondent.
2nd & 3rd POINT: THE APPELLANT CANNOT TAKE ADVANTAGE OF HIS FAULT
44. The counsel for the Appellant submits:
There is no husband-wife relationship for 25 years;
The marriage has broken down;
There is no justification for the marriage to continue; and The Appellant should be granted divorce.
45. Under the Act, if he parties agree for the divorce then it can be granted on mutual consent: there cannot be any objection to it. However, In case there is no consent, then divorce can only be granted on the grounds mentioned in section 13 of the Act.
46. Section 13(I)(a) provides that divorce can be granted if the other party has treated the petitioner with cruelty: it has to be by the person other than the one seeking divorce.
47. While discussing the second submission of the previous point, we have discussed the evidence and have held that the Appellant was having an affair with Shashi, the younger sister of the Respondent. The Respondent also deposed that:
The Appellant insisted that Shashi should be permitted to live in the same house;
He used to torture and throw tantrums, when his proposal was refused by the Respondent;
She was willing to resume relationship if the Appellant dropped the proposal/ condition.
48. The aforesaid part of the oral testimony of the Respondent (DW-1) appears credible and worth accepting, if seen in the light of the evidence and finding recorded while dealing with the first point. This amounts to cruelty on part of the Appellant on the Respondent. This is also finding of the trial court. We affirm it.
49. The Appellant cannot be granted divorce on the ground of cruelty on his part. But can divorce be granted on the ground that marriage has broken down irretrievably.
50. We have our doubts whether marriage has broken down irretrievably or not as the Respondent is willing to resume husband-wife relationship, if the Appellant drops the immoral compromise. However, it is not necessary to decide whether marriage has broken down irretrievably or not, as even if it has so broken, divorce cannot be granted. For the purpose of the appeal, we assume that the marriage has broken down irretrievably.
51. Incompatibility in marriage or irretrievability of a marriage, or marriage being broken down irretrievably is not a ground for divorce though recommended by the Supreme Court in Naveen Kohli vs. Neelu Khli: AIR 2006 SC 675 for consideration to amend the Act. It may amount to mental cruelty entitling a party to divorce but it should be without any fault or at least fault of both sides. This is not the case here. In this case, the fault is of the Appellant: he has been cruel to the Respondent by insisting for the immoral compromise.
52. In case, divorce is granted in this case, then it would mean that a party can take advantage of his misdeed; it is not permissible under the Act. Had there been some fault of the Respondent also then the matter would have been different--the relief could have been considered.
53. In view of above, the third point is decided against the Appellant.
AN OBSERVATION
54. In view of our findings, the appeal has to be dismissed. However, this does not preclude the parties to settle their differences by mutual consent. After all, life has to go on: forgive and forget are essential part of the same. We hope that this may happen.
CONCLUSIONS
55. Our conclusions are as follows:
(a)There is no cruelty on part of Dr. Veena Agarwal (the Respondent);
(b)The cruelty is on part of Dr. TC Agarwal (the Appellant);
(c)The Appellant cannot take advantage of his own fault.
In view of our conclusions, the appeal is dismissed.
Order Date :- 5.7.2011 BBL