Hon'ble Dr. Satish Chandra, J.
Heard learned Counsel for the parties.
These appeals have been preferred by the appellant against the order dated 6.1.2009 whereby the application filed by the appellant under Section 9 of the Hindu Marriage Act [in short it has been referred to as 'Act'] was rejected and the Suit of the respondent-plaintiff under Section 13 of the Act was decreed.
In short, the facts, as comes out from the record, are that the marriage of Smt. Poornima Misra was solemnized with Sunil Misra (respondent) on 29.1.2001 according to Hindu Vedic Rites at Lucknow. After the marriage, the wife performed all marital obligation as wife and gave due respect to the in-laws. In the marriage, the appellant's father gave valuable gifts and jewellery including one Maruti Car. But their in-laws were demanding more dowry and started ill-treating the appellant. On account of the maltreatment of in-laws, the appellant was compelled to leave her matrimonial house. When the appellant was living with her parents, the husband filed a Suit under Section 9 of the Act for restitution of conjugal rights. After expiry of one year, the said Suit was withdrawn and a petition for divorce under Section 13 of the Act on the ground of cruelty, was moved. In this petition, the respondent also averred that the appellant pressurized the respondent to live separately from her parents and started neglecting the parents. The appellant also terminated the pregnancy to get herself free from the marital obligation. The 2 application for divorce was contested by the appellant and the allegations were denied. The appellant-Poornima Misra moved an application for maintenance under Section 24 of the Act and also filed an application for restitution of conjugal rights under Section 9 of the Act. Both the petitions were contested by the respondent- husband by leading documentary evidence, such as, F.I.R., statement of witnesses and charge-sheet. The appellant in support of her assertions also adduced oral and documentary evidence.
The Family Court, after analyzing the materials on record, the statement of witnesses and numerous case laws, passed the detailed order rejecting the application under Section 9 of the Act and granted the decree of divorce.
Hence these appeals.
At the time of entertaining the appeal, this Court stayed the operation of the impugned judgments dated 6.1.2009, but provided that the parties shall appear in person so that the dispute may be settled amicably. From the order sheet, it comes that the parties did appear before the Court, but amicable settlement of the dispute failed.
On number of occasions, the parties appeared and on one date, as there was no possibility of amicable settlement, the Court suggested the respondent to give Rs.10 lakhs as permanent alimony to settle the dispute. The husband was ready to pay Rs.7 lakhs and the Counsel for the appellant prayed for time for settlement, which was allowed. When the case again came up, the appellant showed reluctance and the Counsel stated that as the appellant is ready to live with her husband, as such, she is not interested in accepting the permanent alimony and insisted for deciding the case on merits.
Learned Counsel for the appellant has contended that the Family Court committed an error in allowing the Suit of respondent under Section 13 of the Act and rejecting the application of the appellant under Section 9 of the Act without recording any specific finding of cruelty by the appellant and also 3 overlooked that irretrievable breakdown of a marriage is not a ground of divorce. The trial against the respondent under Section 498-A I.P.C. is still pending and they have yet not been acquitted. He further submitted that the appellant has not left the matrimonial house on her own wish or consent but the members of the family of the respondents forced her to leave the matrimonial house. The appellant is still ready to live with the respondent-husband. The Court below also erred and failed to appreciate that the sanctity of the marriage cannot be left at the wish of one annoying spouse. In order to show that the impugned order is erroneous, reliance has been placed upon the cases of Smt. Beena Versus Suresh Vir Tomer [1995 (25) ALR 277] and Savitri Pandey Versus Prem Chandra Pandey [(2002) 2 SCC 73].
He further submitted that the wife has been made to suffer great agony and pain as the members of the family of the respondents had not only ill-treated her but also manhandled which resulted in miscarriage of pregnancy. Despite all these conducts and misbehaviour of the respondent, the appellant is ready to forgive all these things and wants to live with her husband.
On behalf of the respondent, it has been submitted that the Family Court has passed the just and reasonable order after appreciating the materials on record. The Family Court rightly rejected the application under Section 9 of the Act and allowed the application under Section 13 of the Act as it was satisfied that the respondent has been able to establish cruelty by the appellant. He further submitted that the parties to the appeal are living separately for the last nine years and there is no chance of reconciliation and the marriage has broken down irretrievably. He further submitted that on account of false report lodged by the appellant, the respondent and his father were remained in jail for twelve days which lowered their image in the society.
In order to establish that it is virtually impossible for the parties to live together and the decree of divorce is the only recourse left and to justify that the order of the Family Court is 4 perfectly legal, reliance has been placed upon the cases of Smt. Meena Singh Versus Mithlesh Kumar Singh [(2009 (3) ALJ 303], Satish Sitole Versus Ganga (Smt.) [(2008) 7 SCC 734], Smt. Mayadevi Versus Jagdish Prasad [2007 AIR SCW 1803], Sujata Uday Patil Versus Uday Madhukar Pathil [2007 AIR SCW 896], Naveen Kohli Versus Neelu Kholi [(2006) 4 SCC 558], Durga Prasanna Tripathi Versus Arundhati Tripathi [(2005) 7 SCC 353], Jayachandra Versus Aneel Kaur [AIR 2005 SC 534], Poonam Gupta Versus Ghanshyam Gupta [AIR 2003 (All) 51], G. V. N. Kameshwar Rao Versus G. Jabilli [(2002) 2 SCC 296], Praveen Mehta Versus Inderjit Mehta [11 (2002) DMC 205 (SC)] and Smt. Kalpana Srivastava Versus Surendra nath [AIR 1985 (All) 253].
In Smt. Meena Singh Versus Mithlesh Kumar Singh (supra), the appeal was preferred by the wife against the decree of divorce granted on the ground of mental cruelty. The Division Bench of this Court while confirming the decree of divorce granted permanent alimony and observed as under:-
"11. In view of the aforesaid decisions, to end the miseries of the parties and to allow them to henceforth live a happy and peaceful life by bringing to an end the litigation appear to be a more sound, reasonable and practical decision. The parties are living separately for many years and there is no possibility of their uniting. Thus, for all practical purposes the marriage is completely dead. In view of the above and the allegations/counter-allegations levelled against each other with regard to their character the element of cruelty on part of both of them is also inherent. ..."
In G. V. N. Kameshwar Rao Versus G. Jabilli (supra), the Apex Court observed that the mental cruelty faced by the appellant is to be assessed having regard to his status in life and his educational background and the environment in which he lived.
The Apex Court in the case of Satish Sitole v. Ganga (supra) ruled and laid down that the living of parties to a marriage separately for a long time, making acrimonious allegations against 5 each other amounts to cruelty and continuance of such marriage is further act of cruelty.
The expression of 'cruelty' in detail has been considered in Smt. Mayadevi Versus Jagdish Prasad (supra) by the Hon'ble Supreme Court. In paragraph 9 of the judgment, the Supreme Court observed as under:-
".... The concept, a proof of beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complaint spouse because of the acts or omissions of the other. Cruelty may be physical or corporal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty, there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."
The Apex Court in another case, namely, Sujata Uday Patil v. Uday Madhukar Patil (supra) again examined the cruelty and the kind of degree of cruelty which may amount to a matrimonial offence. The Supreme Court observed that the cruelty may be inferred from the facts and matrimonial relation of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred.
In para 72 of the judgment of the case of Naveen Kohli Versus Neelu Kohli (supra), the Apex Court observed that the legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act. The Apex Court referred the 71st report of Law Commission of India wherein it was mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in 6 those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bounds which are the essence of marriage have disappeared.
Following the principle of 'live and let live' and the precedent laid down by the Apex Court, it is desirable and expedient in the interest of justice to uphold the decree of divorce passed by the Family Court below and to dismiss the appeal.
Matrimonial disputes have to be decided by Courts in a pragmatic manner keeping in view the ground realities. For this purpose a host of facts have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offsprings.
We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
In the instant case, the appellant could have suffered traumatic experience because of the police complaints on account of which he and his father had to remain in jail as a consequence whereof there was loss of reputation and prestige in the society. Just after the marriage, the appellant started complaining against 7 the parents and brother Arun Kumar Misra, who was mentally retarded with the sole object to get separate living from parents. Not accepting the wish of the appellant, he earned annoyance and the wife left the matrimonial house without any information. In the application for divorce, the husband has stated that on 21.4.2001, he received a telephonic call from her mother-in-law that the appellant is ill and is admitted in Vivekanand Polyclinic. When the respondent alongwith his father went there, they came to know that pregnancy of the first child has been terminated. It is in this background that the respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions including the false criminal report perpetuated by the appellant, the respondent-husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationship.
The trial Court has examined the circumstances and the background in order to reach the conclusion, whether the conduct complained of amounts to cruelty in the matrimonial law. The instances of the circumstances and the cruelty highlighted by the trial Court clearly proves that the husband was subjected to mental cruelty. At page 32 of the judgment, the Family Court observed as under:-
उललेखनीय है िक अनय पक के दारा दािखल िकए गए अिभलेखीय साकय एव पतावली का समपूणर रप से िवशलेषण एव मूलयाकन करने से यह सपष होता है िक पितवािदनी ने यह सकलप ले िलया है िक वह वादी के जीवन को भी नारकीय जीवन बनाने के िलए ही वेदना मे जीवन वयतीत करगे ी । इस पकार के अिडंग तथा कठोर दिषकोण से इस वाद के तथयो तथा पसंग मे यह सनदेह होना सवभािवक है िक पितवािदनी वादी के साथ मानिसक कूरता का वयवहार करने पर अड़ी हु ई है, जब िक यह सपष हो जाता है िक पककारा के मधय िववाह अपितषापय रप से भगं हो गया है एवं उनके साथ रहने या पुनः एक होने की कोई समभावना नही है ।
The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven.
All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter- productive to the institution of marriage. The Courts do not have to deal with ideal husband and ideal wives. It has to deal with particular man and women before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.
In the instant case, the Family Court has examined in detail the conduct of the appellant. On one hand, she stated that she is not pursuing the criminal case under Section 498-A I.P.C. and on the other hand, she had got her statement recorded before the Court. She also filed criminal revision, lodged criminal case under Section 406 I.P.C. against the respondent and his father. The father of the appellant had also filed a complaint case under Section 420 I.P.C. against the respondent and his father. Not only this, the complaints were also made to the authorities of Sahara India, where the respondent was working. On account of various complaints, the respondent had to resign from the Sahara India. The Family Court has examined all these facts and passed a detailed speaking order before coming to the conclusion that the marriage bond has been broken down beyond the hope of repair and the marriage is only for the namesake.
In view of the fact that the parties are living separately for more than nine years and a large number of criminal and civil proceedings have been initiated against the respondent and some proceedings have been initiated by the respondent against the appellant, the Family Court rightly came to the conclusion that the matrimonial bond between the parties is beyond repair. The marriage between the parties is only in name.
Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court seriously made an 9 endeavour to reconcile the parties and we wanted to put a quietus to all litigations between the parties and not to leave any room for future litigations by granting Rs.7 lakhs as permanent alimony, but it was refused by the appellant. Therefore, it appears that the appellant does not want divorce by mutual consent.
From the analysis and evaluation of the entire evidence, it is clear that the appellant has resolved to live in agony only to make life a miserable hell for the respondent as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the appellant is bent upon treating the respondent with mental cruelty. The marriage has been wrecked beyond the hope of salvage and there is no chance of their coming together. Therefore, the case law relied upon by the appellant and the assertion that the respondent shall not be allowed to take advance of his own faults and the decree for dissolution of the marriage shall be denied to the respondent is of no help to the appellant.
In these circumstances, we are of the view that when the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are abound to be a source of greater misery for the parties.
For the reasons aforesaid, the decree of divorce passed by the Family Court is upheld. Both the appeals are hereby dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.