Reserved on : 17.3.2021
Delivered on : 13.4.2021
Court No. - 21
Case :- FIRST APPEAL No. - 778 of 2017
Appellant :- Manoj Mittal
Respondent :- Smt. Rajni Mittal
Counsel for Appellant :- Vijay Kumar Dwivedi
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Ajit Singh,J.
1. Heard Sri Vijay Kumar Dwivedi, learned counsel for the appellant. Though served, none appears for respondent wife, hence, ex- parte.
2. This First Appeal has been filed against the order dated 8.11.2016 passed by the Additional Principal Family Judge, Fast Track Court No. 1, Agra in Marriage Petition Case No. 576 of 2005 Under Section 13 of Hindu Marriage Act whereby learned Family Judge dismissed the said Hindu Marriage Petition
3. Brief facts of this case are that on 24.05.2002 the appellant has solemnized marriage with opposite party, namely, Smt. Rajni Mittal as per Hindu rites and rituals without raising any demand of dowry. It is further alleged that just after fifteen days of the marriage, the opposite party started misbehaving with the appellant and his other family members (in-laws of the opposite party) in a cruel manner and started harassing. She also started altercation and used to abuse the family members of the appellant and also used abusing language with them. The respondent has deserted the appellant since 2002 and parties are staying separately since 2003.
5. Further allegation by the appellant against the wife is that she was always disobedient to the appellant and his parents. Even without any communication or information to the appellant, she took job in Cyber/Computer Center and without informing the appellant or his family members, she started remaining away from home. She would leave home in early morning and returned by mid-night. On query of the appellant, she would abuse the appellant. She wanted to enjoy her life without any obstruction from anybody of any kind. It was also conveyed by her that she wanted to enjoy in her own company and she had no interest in the appellant and his family members. A threat was also given that if the family members would cause any problem in her life, she would implicate them in false and frivolous criminal proceedings.
6. Further case of the appellant is that out of their wedlock, a child was born. The nature of the opposite party never changed and on 27.05.2005 she went out with a sum of Rs. 20,000/- and jewelry and returned on 29.05.2005 in night at 10:00 P.M. and in the morning on 30.05.2005 when appellant wanted to know the reason of her missing and her whereabouts during the missing period, she committed mar-pit with appellant with knife and bite in his arm and thereafter lodged the First Information Report against the appellant with false allegations under sections 498A, 323, 504, 506 I.P.C. and Section ¾ D.P. Act at police station New Agra. On the basis of said FIR the appellant and his parents were arrested by the police and sent to jail. After passing a long period of detention in prison, the appellant along with his parents were enlarged on bail by the court below. After conclusion of the trial proceedings, the trial court convicted and sentenced the appellant and his parents with two years Rigorous Imprisonment under Section 498A I.P.C. with a fine of Rs. 20,000/- each and in default of payment of fine they shall undergo three years simple imprisonment and they were also convicted and sentenced to six months simple imprisonment under Section 4 D.P. Act with fine of Rs. 1000/- each and in default of payment of fine they shall further undergo one month simple imprisonment.
7. Feeling aggrieved by the order dated 29.10.2012 passed by the Chief Judicial Magistrate, Agra the appeal/revision had been filed, which was allowed. The appellant has been exonerated and his revision came to be allowed by the Sessions Judge.
8. Learned counsel for the appellant has relied on the following judgments in support of his contention that the decree of divorce was the only answer to the marital discord between appellant and respondent:-
(i) 2015 (1) AWC 80 (SC) K. Srinivas vs. K. Sunita.
(ii) 2015 (1) AWC 83 (SC) Lata Baburao Maneand another vs. Ramchandra Mane (Dead) Through L.Rs.
(iii) 2015(1) JCLR662(All)} Smt. Manisha Srivastava vs. Rohit Srivastava.
(iv) AIR 2006 ALLAHABAD 7 Smt. Sadhana Srivastava vs. Arvind Kumar Srivastava.
9. The reliance on the decisions and the factual scenario in the chronology of events would go to show that the respondent had left the matrimonial home and she herself was giving a lot of mental agony to the appellant.
10. In the gist of submission submitted by the appellant, it is submitted that after the marriage, the respondent started quarreling and has left the matrimonial home and has also filed a criminal complaint under Section 498 (a), 114 of the Indian Penal Code, but the appellant was acquitted. The respondent has been filing complaints against him and his family members on various grounds but he was acquitted in all the cases but according to him, in this way, the respondent has caused severe mental harassment to him and has also been defamed in the society. It is also the say of the appellant that the respondent has no intention to continue their marriage bond as he has made several efforts to call her back but all the efforts for reconciliation have proved futile and the respondent has treated him with cruelty by going on filing various criminal complaints against him and his family members from time to time on one or other pretext on fabricated grounds only with an intention to harass him and he has been deserted without any reasonable cause and without any fault on his side.
11. It would be necessary to refer to the provisions of Section 13 (1) (i-b) of the Hindu Marriage Act, 1955 which reads as under:-
“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) XXX XXX XXX (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period not less than two years immediately preceding the presentation of the petition; or
(ii) & (vii) XXX XXX XXX Explanation :- 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 to the marriage, and its grammatical variations and cognate expression shall be construal accordingly.”
12. It is very clear from the facts and the documents produced that the wife has filed criminal complaints against the husband and his family members. This fact is abundantly clear from the documentary evidence.The evidence led by wife is also sifted by us. Therefore, in light of the settled legal position and the judgments on which the appellant has relied, it is proved that the wife has no intention of cohabiting on the following grounds;
(1) desertion for more than ten years;
(2) cruelty perpetrated by the wife.
13. Reliance can be placed on the decision titled Narandra Kumar Gupta vs. Indu; AIR 2002 Rajasthan 169 wherein husband had filed a petition for divorce on ground of cruelty. The wife instituted FIR against husband under S. 498-A of penal code for subjecting her to cruelty, which after investigation was found false. Hon’ble Court has considered that the act of the wife amounts to cruelty and husband was held entitled to a decree of dissolution of marriage.
14. The decision in Praveen Mehta vs. Inderjit Mehta; AIR 2002 SC 2582 wherein it was held that wife leaving matrimonial house few months after marriage and despite several attempts by relatives and well wishers no conciliation between them was possible. Over 10 years have elapsed since the spouses parted company. Hon’ble Court has held that it can be reasonably inferred that marriage between parties has broken down irretrievably without any fault on the part of husband. Decree of divorce, therefore, not liable to be interfered.
15. Thus what is discussed above and evidence on record that of appellant-husband and the respondent-wife, go to show that wife has no intention of continuing with the marital tie. In this case, it is proved that the wife had no intention of cohabiting with the husband.
16. The parties have lost mutual trust in each other. They are living separately since long rather more than a decade. The wife has ignored the husband. There is a breakdown, which is such which cannot be reconciled, similar circumstances had arisen before Hon’ble Apex Court. which dealt with in the case of Durga Prasanna Tripathy v. Arundhati Tripathy; AIR 2005 SC 3297. It would be relevant for this Court to refer to para-29 and 30 of the said decision, which is reproduced as follows:
“29. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on had is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties have been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.
30. Before parting with this case, we think it necessary to say the following: A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed. We feel that t further sum of Rs. 1 lack by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent- Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent.”
17. It would also be relevant to rely on the decision of the Hon’ble Supreme Court in the case of Naveen Kohli v. Neelu Kohli reported in AIR 2006 SC 1675 wherein Hon’ble Apex Court has recommended the Union of India to consider bring in an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable break down of marriage as ground for granting of divorce. There also the wife had registered several criminal complaints and thereby perpetrated cruelty on the husband. In the said case also, allegation was leveled against the husband regarding having concubine which is similar in this case but which has been not proved satisfactorily. In this case also there is no possibility of reconciliation between the parties, and therefore, this marriage requires to be dissolved as done in the said decision. In this case, the cumulative facts in the facts and circumstances which emerged from the record, inference can be drawn that the petitioner-
husband has been subjected to the mental cruelty due to the conduct of the respondent-wife.
18. In the present case, it is an admitted position of fact that there has been no sincere attempt made by the deserting wife to cohabit with the husband. On the contrary, had that been so, the wife would have shown her willingness in the petition filed by the husband for restitution of conjugal rights. Instead, she filed a complaint under Section 498 (a) even after the husband was acquitted, the wife has not filed appeal/ revision in the superior Court.
19. For the reasons stated above, we dissolve the marriage, however, as the wife is not before us and as the matter has proceeded ex-parte, we leave it to her to claim maintenance as per law available to her.
20. Appeal is allowed. The Judgment and decree shall stand modified to the aforesaid extent. Record be sent to the Trial Court, namely, family court.
21. We appreciate the effort of Sri Vijay Kumar Dwivedi in assisting us.
Order Date :- 13.4.2021 Faridul/Ram Murti