HON'BLE SRI JUSTICE RAMESH RANGANATHAN AND HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY CIVIL MISCELLANEOUS APPEAL No.366 OF 2004
Date: 09-09-2014
Between:
Koppala Sankaramma. - - - Appellant.
And Koppala Gopal. - - - Respondent.
This Court made the following :
HON'BLE SRI JUSTICE RAMESH RANGANATHAN AND HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY CIVIL MISCELLANEOUS APPEAL No.366 OF 2004
JUDGMENT: (Per Hon’ble Sri Justice M. Satyanarayana Murthy)
The respondent, who suffered divorce decree in Original Petition No.19 of 2001 on the file of the Court of Senior Civil Judge, Srikalahasti, Chittoor District (For short, ‘the trial Court’), preferred this Appeal against the order dated 28.08.2003.
2. For convenience of reference, the ranks given to the parties in O.P. No.19 of 2001 will be adopted throughout this judgment.
3. The petitioner (husband) filed petition against the respondent (wife), who is appellant herein, under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 (For short, ‘the Act’) for grant of decree of divorce, dissolving the marriage between the petitioner and respondent, alleging that their marriage took place about 30 years ago in Ardhamala village as per Hindu rites and customs, lived happily for 3 years in the same village. However, the respondent started demanding the petitioner to shift his family to Srikalahasti town, unable to bear the harassment; the petitioner shifted his family to Vetti Harijanawada of Srikalahasti. Thereafter, when the petitioner failed to meet the luxurious demands of the respondent, respondent developed quarrelsome attitude and created troubles in day to day life of the petitioner and as such subjected him to mental cruelty.
During their wedlock, the petitioner and respondent were blessed with three daughters by name Ganga Devi, Rajamma and Chengamma and that 3 years after settling at Srikalahasti, the respondent developed dislike towards the petitioner, as he was unable to satisfy her luxurious demands, left the house without any intimation and her whereabouts were not known for 2 years. In the year 1985, respondent filed M.C. No.4 of 1985 on the file of Additional Junior Civil Judge, Srikalahasti claiming maintenance for herself and her children. Thereupon, due to intervention of elders, a compromise agreement dated 06.06.1985 was entered into by both the petitioner and respondent; as per agreement, paid Rs.3,000/- in cash and Ac.1.50 cents of land at Ardhamala village to the respondent. Since then they are living separately.
Again, the respondent left the village and her whereabouts were not known till January, 2001 and that there was no conjugal relationship between the petitioner and respondent for the last 24 years. Thus, the respondent deserted the petitioner without any reasonable cause. Hence, sought for decree of divorce, both on the grounds of mental cruelty and desertion for a period of more than two years, prior to filing of the Petition.
4. Respondent filed counter denying material allegations of the Petition while admitting the relationship between the petitioner, respondent and their children. However, contended that the marriage of two elder daughters was performed by them and the 3rd un-married daughter was living with the respondent, by then. The petitioner is a vagabond and roaming on the roads in the town. After 10 years, from the date of marriage, the petitioner requested the respondent to allow him to start paddy business at Srikalahasti. Accordingly, with the consent of the respondent, the petitioner started paddy business and used to visit Ardhamala village once in three or four days, while staying in Ardhamala village used to collect agricultural produce from the respondent and investing money in the business. The respondent developed cultivation and handed over agricultural produce to the petitioner; she also handed over her ‘stridhana’ property to the petitioner to purchase house at Srikalahasti. The respondent never treated the petitioner cruelly. Hence, the petitioner is not entitled to claim divorce on the ground of cruelty.
She further contended that the petitioner developed illicit contact with a woman by name Mastanamma and contacted a bigamous marriage with her on 29.06.2001, started neglecting the respondent and her un-married daughters and created troubles to the respondent and her children at Ardhamala village. Thereupon, the respondent filed C.C. No.266 of 2001 against the petitioner and two others for the offence punishable under Section 494 I.P.C. before the Judicial I Class Magistrate, Srikalahasti. She also filed O.P. No.3 of 2002 on the file of Principal Junior Civil Judge, Srikalahasti claiming maintenance. The three daughters of the petitioner filed O.S. No.47 of 2001 against the petitioner for partition of the property. The respondent and petitioner never lived separately for the last 24 years for the reason that the 3rd daughter was aged 19 years by then and the petitioner married one Mastanamma, leading conjugal life with her in Bhaskarpet, Srikalahasti. Therefore, the respondent is not able to stay with him and thus, there is a reasonable cause for her separate living. Hence, the acts attributed to the respondent do not amount to desertion and she also denied the mental cruelty, desertion and compromise between the parties and prayed to dismiss the petition.
5. During course of enquiry, on behalf of the petitioner PWs.1 to 4 were examined and Exs.A-1 to A-4 were marked. On behalf of the respondent, RW.1 was examined and marked no documents on her behalf.
6. The sole point that fell for consideration before the trial Court is as follows:
Whether the petitioner is entitled for grant of divorce by dissolving the marriage?
7. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court believed that the respondent deserted the petitioner and granted decree of divorce dissolving the marriage between petitioner and respondent, without recording any finding on cruelty and desertion.
8. Aggrieved by the divorce decree and order of the trial Court, respondent – appellant preferred this Appeal on various grounds. The first and foremost contention raised in the grounds of appeal is that the trial Court did not consider the burden of proof which initially rests on the petitioner to prove both cruelty and desertion by placing cogent and satisfactory evidence and that the trial Court failed to record specific finding on both the grounds of cruelty and desertion. It is further contended that the petitioner, who is guilty of marrying another person during subsistence of his 1st marriage with the respondent, is guilty of wrong and he cannot take advantage of his own wrong. The trial Court without recording its specific finding on both the grounds, erroneously granted divorce decree in favour of the petitioner dissolving the marriage between the petitioner and respondent. Thereby, the order of the trial Court is erroneous and prayed to allow this Appeal setting-aside the order of the trial Court.
9. During course of argument, learned counsel for the respondent – appellant while reiterating the grounds urged in the appeal, brought to the notice of this Court that the petitioner and respondent are living together since long time; whereas, learned counsel for the petitioner – respondent herein, without advancing any argument, conveniently reported no instructions without disclosing as to whether they are living together or not after passing the order under challenge.
10. Considering grounds of appeal, argument advanced by learned counsel for the respondent, perusing oral and documentary evidence including the divorce decree and order under challenge, the points that arise for consideration are:
1. Whether the respondent subjected the petitioner to mental cruelty? If so, is the petitioner entitled to a decree of divorce under Section 13(1)(ia) of Hindu Marriage Act, 1955?
2. Whether the respondent deserted the petitioner without any reasonable cause for a period of more than two years, prior to filing of the Petition? If so, is the petitioner entitled to a decree of divorce under Section 13(1)(ib)of Hindu Marriage Act, 1955?
11. POINT Nos.1 and 2: The trial Court framed only one issue for consideration though the petitioner claimed divorce on the grounds of mental cruelty and, desertion for a period of more than two years without any reasonable cause, which affords a ground for divorce under Section 13(1)(ia) and (ib) of the Act, 1955. The trial Court is supposed to frame two points for consideration as the petitioner affirmed a fact and denied by the respondent which give rise to an issue in view of Order 14 Rule 1 of C.P.C. but the point framed for consideration before the trial Court is contrary to Order 14 Rule 1 of C.P.C.
12. In Makhan Lal Bangal Vs. Manas Bhunia and others
[1]
, when similar question came up for consideration in an Election Petition regarding framing of issues, the Apex Court held as follows:
“19. An Election Petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission ”
13. If the principle laid down in the decision cited supra is applied, the nature of dispute involved in the Petition between the petitioner and respondent is purely civil in nature and the enquiry must be like a civil trial. When issues are required to be framed under Order XIV in an Election Petition, the same can be applied to the Petitions filed under the Hindu Marriage Act, so as to narrow the dispute and put to the notice of the parties about the real controversy to be decided by the Court, otherwise it is difficult for them to let in evidence. Hence, non framing of an issue or in other words, specific points for consideration is a good ground for remanding the matter for reappraisal subject to prejudice having been shown to have resulted by such omission
14. The main ground urged before this Court is that the trial Court did not record any finding either on the ground of cruelty or on the ground of desertion and in the 2nd ground of grounds of appeal, a specific contention is raised that the trial Court did not record any finding. In paragraphs 10 to 13 of the Order, the trial Court discussed the evidence at length and ultimately at Page 8 of its Order, the trial Court recorded a finding that the petitioner is entitled to a decree of divorce dissolving their marriage. The specific finding of the trial Court is extracted hereunder, for better appreciation:
“Therefore, the petitioner married Mastanamma and Gnanamma. Therefore, in these circumstances, the petition is allowed without costs by granting divorce by dissolving the marriage of the petitioner with the respondent. This point is answered accordingly.”
15. The entire order under challenge is silent with regard to the 1st ground under Section 13(1)(ia) of the Act, 1955 i.e., subjecting the petitioner to cruelty by the respondent. However, the attribution made against the respondent by the petitioner is only a demand made to satisfy her luxuries and the petitioner failed to meet the luxurious demands, which amount to cruelty. The word ‘cruelty’ is not defined in the Hindu Marriage Act but the Apex Court, in Savitri Pandey Vs.
[2]
Prem Chandra Pandey , ruled as follows:
“Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. The averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.”
16. In another decision of the Apex Court, in Naveen Kohli Vs.
[3]
Neelu Kohli , the Apex Court defined the word ‘cruelty’ and held as follows:
“To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions.”
17. In a recent judgment of the Apex Court in Samar Ghosh Vs.
[4]
Jaya Ghosh , the Apex Court while defining the word ‘cruelty’, laid down some instances of human behavior relevant for dealing with cases of mental cruelty and gave illustrative instances though not exhaustive, which are 14 in number. But, the instance very much relevant to the present case is:
“(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.”
18. Keeping in mind the principles laid down by the Apex Court, the Court has to decide whether the respondent subjected the petitioner to cruelty, much less mental cruelty. It is the duty of the trial Court to decide the nature of allegations amounting to cruelty attributed to the respondent and whether such allegations would afford a ground to grant decree of divorce under Section 13(1)(ia) of the Act, 1955 and decide the real controversy between the parties. The trial Court did not record any finding with regard to the 1st ground i.e., cruelty under Section 13(1)(ia) of the Act, 1955.
19. The 2nd ground urged before the trial Court for grant of divorce is desertion. There is a specific allegation in Para 4 of the Petition that the respondent and petitioner are living separately for the last 24 years and produced documentary evidence to substantiate the same. However, the trial Court after considering the evidence came to the conclusion that the petitioner is entitled to a decree of divorce in view of the finding extracted hereinabove. Mere separate living by itself does not amount to desertion, unless there is an intention on the part of the respondent to bring the cohabitation to an end, permanently.
20. According to Section 13(1)(ib) of the Act, 1955 when a spouse is living separately without any reasonable cause for a period of not less than two years prior to filing of the petition, it is a ground to grant decree of divorce. The word ‘desertion’ is not defined under the Hindu Marriage Act separately, but under the explanation to Section 13(1)(ib) of the Act, 1955 the word ‘desertion’ is explained as follows:
“In this sub-section, 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 of the marriage, and its grammatical variations and cognate expression shall be construed accordingly.”
21. In Savitri Pandey Vs. Prem Chandra Pandey
[5]
, the Apex Court defined the word ‘desertion’ as contained under Section 13(1) (ib) of the Act, 1955 which is as follows:
“‘Desertion’, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. If a spouse abandons the other in a state of temporary passions for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.”
22. In another decision of the Apex Court, in Adhyatma Bhattar
[6]
Alwar Vs. Adhyatma Bhattar Sri Devi , the Apex Court defined the word ‘desertion’ and held as follows:
“’Desertion’ in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end – animus decidendi;
3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period.”
23. In Lachman Utamchand Kirpalani Vs. Meena @ Mota
[7]
, the Larger Bench of the Apex Court held that the desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus decidendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
24. In view of the principles laid down by the Apex Court, it is the duty of the trial Court to record a finding whether separate living of both the petitioner and respondent for the last 24 years by the date of filing petition would amount to desertion affording a ground under Section 13(1(ib) of the Act, 1955. According to Section 13(1)(ib) of the Act, 1955 the husband or wife has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition, the petitioner is entitled to decree of divorce but the trial Court did not record that the desertion of the petitioner by the respondent is more than a continuous period of two years immediately preceding presentation of the petition and whether there is any reasonable cause for separate living of respondent. Mere allegation in the Petition that they are living separately for the last more than 24 years is not sufficient to grant decree of divorce. Thus, the order under challenge is without any finding as to the requirements to grant a decree under Section 13(1)(ia) and (ib) of the Act, 1955.
25. According to Order 14 Rule 2 of C.P.C., it is obligatory on the part of the Court to pronounce judgment on all issues inclusive of both fact and law but the Order under challenge is totally against to Order 14 Rule 2 of C.P.C. Therefore, in the absence of any specific finding on both the grounds, the order under challenge is unsustainable under law and liable to be set-aside.
26. Learned counsel for the respondent – appellant submitted that after the Order under challenge, the petitioner and respondent are living together and if any adverse order is passed against the respondent – appellant, there is a possibility of separation due to grant of decree but the learned counsel for the petitioner – respondent herein conveniently avoided to advance his argument and reported no instructions about their living status.
27. As the trial Court failed to record any finding on both the grounds, the order under challenge is liable to be set-aside and, accordingly, we set-aside the order under challenge. However, remanding the matter to the trial Court, exercising power under Order 41 Rule 23-A of C.P.C., directing the trial Court to restore the Petition to its original number in the O.P. Register and frame appropriate points for consideration, keeping in mind the principles laid down by the Apex Court, and decide the matter in accordance with law, as expeditiously as possible, preferable within a period of three (3) months from the date of receipt of a copy of this judgment.
Accordingly, with the above direction, the Civil Miscellaneous Appeal is disposed of. In the circumstances, the divorce decree and order under challenge are set-aside as they are unsustainable under law.
In consequence, the miscellaneous petitions, if any, pending in this Appeal shall stand disposed of. No order as to costs.
RAMESH RANGANATHAN, J M. SATYANARAYANA MURTHY, J Date: 09-09-2014.
Dsh HON’BLE SRI JUSTICE RAMESH RANGANATHAN AND HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY 14
CIVIL MISCELLANOEUS APPEAL No.366 OF 2004
(Judgment of the Division Bench delivered by Hon’ble Sri Justice M. Satyanarayana Murthy)
Date. 09-09-2014
DSH
[1] AIR 2001 SC 490 (1)
[2] AIR 2002 SC 591
[3] AIR 2006 SC 1675
[4] 2007 (4) ALD 11 (SC)
[5] AIR 2002 SC 591
[6] AIR 2002 SC 88
[7] AIR 1964 SC 40