Hon'ble Om Prakash-VII,J.
(Delivered by Hon'ble Rajes Kumar, J.) Heard Smt. Anita Tripathi, learned counsel for the appellant.
This is an appeal under Section 19 of the Family Court Act against the order dated 9.9.2005 passed by the Judge, Family Court, Agara, by which he has rejected the petition filed by the appellant under Section 13 of the Hindu Marriage Act (hereinafter referred to as the "Act") for divorce.
The brief facts of the case are that the appellant married with the respondent on 21.11.1997 in accordance to Hindu rituals. A suit has been filed on the allegation that on 14.3.2008, the respondent-wife went to her parents house after taking jewellery of sister-in-law of the appellant and thereafter did not come despite the efforts being made by the appellant. The last effort was made on 10.2.1999. When the appellant gone to respondent's parents' house to take her back, he has been physically assaulted, in respect of which a complaint has been filed before the Senior Superintendent of Police, Agra. Thereafter, the appellant has filed petition under Section 9 of the Act, being case no. 257 of 1999 for the restitution of conjugal rights. Respondent filed complaint under Section 498-A of the IPC, which has been registered as case no. 239 of 1999. Another complaint has been filed under Section 406 IPC and under Section 125 Cr.P.C. In the aforesaid cases, the appellant and his family members have been arrested and have been sent to jail. It is pleaded that in these circumstances, it is not possible for the appellant to live with the respondent.
The respondent disputed the allegation of the appellant and made allegation that the appellant is the guilty of cruelty and has demanded a sum of Rs.25,000/- and has adopted coercive method. Though she was pregnant, even then she was beaten and tortured by different means for which she has also wrote letters to her parents and when the parents of the respondent-wife could not pay the amount on 15.8.1998, she has been thrown out from the house at the stage of pregnancy and has been threatened that in case if she would not bring Rs.25,000/-, she would not be allowed to enter in the house and would be killed. On 30.11.1998, she had given birth to one son and the appellant is not even ready to give his name to his son. The Judge, Family Court on the facts and circumstances, has observed that the appellant has behaved in a cruel manner, not like the husband-wife and accordingly dismissed the petition.
Learned counsel for the appellant submitted that the notices had been sent by ordinary post as well as by registered post. The notice sent through registered post has not returned back, thereafter, on the direction of this Court a publication was made in newspaper "Amar Ujala" Agra City Edition on 19.2.2014, but no one has put in appearance nor any counter affidavit has been filed. She submitted that the appellant has made sincere efforts to save the marriage and despite the abnormal behaviour, he filed petition under Section 9 of the Act for the restitution of conjugal rights, but when it was found that it is not possible to live together, he withdrew the petition and filed divorce petition. She submitted that since 1998, the husband is living separately. The wife filed three criminal cases against the appellant and sent him and his family members to jail. In the circumstances, it is not possible for him to live with her. More than 16 years have passed living separately. Separation has created unbridgeable distance between two. The respondent treated the appellant with mental cruelty and the marriage between the parties had reached to an irretrievable break down. In the circumstances, the grant of decree for divorce could be in the interest of both the parties and refusal to grant the decree would be disaster to them.
We have considered the submissions of learned counsel for the appellant.
Notices were sent to the respondent by ordinary post as well as by registered post. Envelope of the registered post has not returned back. However, on the direction of this Court, notice has also published in the newspaper "Amar Ujala" on 19.2.2014. The respondent has not put in appearance and has not filed any counter affidavit. In the circumstances, the Court has no option except to proceed ex-parte.
In the case of A. Jayachandra Vs. Annel Kaur, reported in (2005) 2 SCC 22 a three Judge Bench of the Apex Court has observed as follows:
"The expression 'cruelty' has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof 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 of the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal 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, the 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 dispute.
The expression 'cruelty' has been used in relation to human conduct or human behabour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First the enquiry must begin as to the nature of cruel treatment, secone the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need to be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
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 moire 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, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However insignificantly or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
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 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 hypersensitive approach would be counterproductive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to the matrimonial court."
In Durga Prasanna Tripahty v. Arundhati Tripathy, reported in (2005) 7 SCC 353 this Court further observed that marriage are made in heaven. Both parties have crossed the point of no return. 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 Apex Court in the case of Naveen Kohli Vs. Neelu Kohli, reported in (2006) 4 SCC 558 held as follows:
"Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.
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, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that 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 bound to be a source of greater misery for the parties.
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 injuries to the interest of the parties. Where there has been a long period of continuance 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.
Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing ids gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.
In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.
Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extraordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- (Rupees twenty-five lakhs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five lakhs with interest) deposited by the appellant on the direction of the trial court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs.20,00,000/- (Rupees twenty lakhs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant."
Similar view has been reiterated by the Apex Court in a recent judgment in the case of K Srinivas Rao Vs. D A Deepa, reported in 2013 Law Suit (SC) 158, the Apex Court held as follows:
"11........................(xiv) Where there has been a long period of continuous separation, it may fairly be concluded 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 such like situations, it may lead to mental cruelty.
We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent-wife in her complaint dated 4/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant-husband asked her to sleep with the father is bound to anger him. It is his case that his humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent-wife was anxious to go back to the appellant-husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondent-wife has caused mental cruelty to the appellant-husband.
Pursuant to this complaint, the police registered a case under Section 498-A of the IPC . The appellant-husband and his patents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondent-wife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offences punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant-husband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant-husband so that he would be removed from the job. The conduct of the respondent-wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant-husband.
In our opinion, the High Court wrongly held that because the appellant-husband and the respondent-wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices of filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse's life miserable. This is that has happened in this case.It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Gosh, if we refuse to sever the tie, it may lead to mental cruelty.
In V. Bhagat this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of cruelty this Court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind. In Naveen Kohli, where husband and wife had been living separately for more than ten years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that the marriage had been wrecked beyond the hope of salvage and public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. It is important to note that in this case this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce."
In the present case, we find that both the parties have made allegations against each other. The undisputed facts are that strained relationship led filing of the criminal complaint by the respondent which resulted in the arrest of the husband and his family members. Admittedly, both are living separately since 1998 and more than 16 years have passed. Separation has created unbridgeable distance between two. Having regard to the facts and circumstances, we are of the view that the respondent treated the appellant with mental cruelty and the marriage between the parties had an irretrievable break-down. In the circumstances, grant of decree for divorce would be in the interest of both the parties while refusal to grant the decree could be disaster to them.
However, we are of the view that having regard to the facts and circumstances and the status of the parties, the appellant may pay a sum of Rs.5,00,000/- towards permanent alimony to the respondent. The appellant shall deposit the said amount in the Family Court within a period of two months and the respondent shall be entitled to withdraw the same.
In the result, the appeal is allowed. The impugned order dated 9.9.2005 passed by the Judge, Family Court, Agra is set aside. Suit No. 94 of 2000 (Prakash Chandra Kapoor Vs. Smt. Ritu Kapur) under Section 13 of the Hindu Marriage Act is decreed and the marriage dated 21.11.1997 stand dissolved.
Order Date :- 14.8.2014 OP