JUDGMENT R.K. Mahajan, J.
1. This appeal has been filed against the Judgment and decree dated 22.4.1997 passed by Shri B. D. S. Srivastava, Judge, Family Court, Varanasi by which the Judge, Family Court, Varanasi has decided two cases :
(i) Case No. 268 of 1995 Rajesh v. Kumud--Application for restitution of conjugal rights under Section 9 of Hindu Marriage Act. The said application was dismissed by the aforesaid order.
(ii) Case No. 316 of 1995, Kumud v. Rajesh--Application under Section 13 of Hindu Marriage Act for a decree of divorce on the ground of cruelty and desertion. The said application was allowed by the aforesaid Judgment and decree.
2. It may be mentioned at the very outset that the appellant-husband had moved application under Section 9 of the Hindu Marriage Act (hereinafter referred to as the 'Act') on 26.9.1995. The wife-respondent moved an application under Section 13 of the Act on 9.11.1995.
3. In order to understand the controversy in the present appeal, the following few facts are necessary. Parents are keen to marry their daughter and of course it is their moral and pious duty to do so. Later on after marriage, it is generally found that there is difference of upbringing between the two families which brings clash of ego. Then there is wreckage of holy tie. Fortunately in this case, the background of both the families is service. Unfortunately, the husband was studying in B.Sc. when the marriage was performed with the respondent-wife. The wife is also literate as revealed from the meeting in Chamber and she has done B.Sc. The appellant-husband is still studying Law in Banaras Hindu University and is unemployed. Employment is also a big factor in destabilising the marriages. The marriage took place on 26.6.1988 in village Chandvak, District Jaunpur. Father of the appellant-husband belongs to Varanasi.
4. The plea of the appellant-husband in the petition under Section 9 of the Act in brief is that at the Instance of relations of husband, "Gauna" took place on 10.5.1989 in presence of relatives of both the sides. The respondent-wife stayed for two months. It has been stated by the appellant that he has been performing conjugal rights and the marriage has been consumated. It is pleaded by the husband-appellant that on 7.7.1989, the respondent-wife left the house of the appellant husband with ornaments and other costly items and gifts, etc. for the house of her parents stating that she will return after a month but she never came back. It is also averred that after making requests by the appellant-husband and his parents, she did not come. It is further stated by the appellant-husband that the wife-respondent left his home on the ground that she was not kept with dignity and due honour. It is further stated by the appellant-husband that he is ready to keep his wife with proper honour and dignity which is given to a wife but it appears that she is not willing to resume his company without any sufficient cause and as such he has moved an application under Section 9 of the Act.
5. The case of the wife is that the marriage was performed and she went to the house of the husband and stayed there for thirteen months. She has introduced a case that she was not liked by the husband and his near relations, i.e., father, sister, etc. on the ground that she has not brought dowry. There was constant demand of T.V., V.C.R., etc. She has gone to the extent that she was not given food and she was on the verge of starvation and she was turned out from the marital home and was advised not to come unless she brings dowry. In other words, her case is that she was not treated fairly and was tortured physically and mentally and no efforts were made for six years and six months by close relatives of husband. i.e., father, sister, etc. to take her back. She has moved an application under Section 13 of the Act for divorce on the ground of desertion and cruelty. She has denied the version of the husband that marriage was consumated during thirteen months and gone to the extent that just after marriage, her husband refused to have sexual relations with her unless she brings dowry. In substance, this is the case of the parties.
6. The Judge, Family Court, Varanasi framed the following Issues in both the aforesaid cases :
(i) Whether the wife-respondent has withdrawn the society of the husband without any sufficient cause?
(ii) Whether the wife was treated with cruelty?
(iii) What relief the petitioner (husband) is entitled to get?
(iv) Whether the respondent-husband demanded dowry and in case on non-meeting of demand she was treated with cruelty?
(v) Whether the wife was turned out after keeping her ornaments by the husband?
(vi) Whether the husband has deserted the wife? if yes, it s effect?
(vii) Whether the wife is entitled to get her ornaments from the husband?
(vii) What relief the petitioner (wife) is entitled to get?
7. The Family Court Judge after examining the evidence on record gave the following findings :
He was of the view that dowry was demanded. He has stated that the wife was ill-treated and she was in helpless condition and went to her house after she was beaten. He was also of the view that desertion has also been established. Learned Family Judge gave a finding that there is no evidence regarding details of ornaments or keeping of the ornaments by the In-laws and gave a negative finding. The Family Court Judge was of the view that the husband-appellant's application under Section 9 of the Act does not deserve to be considered and has dismissed the same.
8. Feeling aggrieved, the husband-appellant filed the present appeal. He appeared in person and he has been heard in Chambers by making efforts between the couple in the presence of relations, i.e., father-in-law. We also called the couple in Chambers. Later on husband was also called to give explanation on certain points and letters written by him to his wife on different dates. The husband-appellant has challenged the finding of the lower court on the following grounds :
Firstly, he stated that the Family Court has misread the evidence of the wife and gave a wrong finding of cruelty and desertion. He further submitted that the Family Court should not have tried both the cases as they are on distinct cause of action. He also submitted that there is no application of Evidence Act under Section 14 of Family Courts Act and letters should have been admitted by the Family Court Judge. He further submitted that he had no intention to grab money as he is a Brahmin and no dowry was demanded. He also stated that his father-in-law came to his house with so many persons on scooters and ambassador car and took his wife forcibly and rather his father-in-law is making efforts to remarry his wife after getting divorce from him. He also argued that he believes in permanent ties of the marriage and not contractual.
9. Shri R. G. Padia, Senior Advocate appears on behalf of wife-respondent. We have heard Shri Padia at length. Shri Padia states that the finding of the Family Court is correct.
1O. Before discussing the reasoning for accepting the appeal, brief reference would be given to the evidence adduced in the petition for restitution of conjugal rights filed by the appellant-husband. The appellant-husband produced himself, his sister Km. Usha Upadhyay and his father, namely, Shri Vibhuti Narayan Upadhyaya. We find from the statements of Km. Usha Upadhyay that her sister-in-law went with her father as soon as he came with some persons. She further stated that her sister-in-law was not treated badly. She further stated that her father earns around Rs. 4,500 and they own 16-17 bighas of land. She further stated that they have a mixed (Kaccha/Pucca) house in village. She has one more brother. She is also a Law student. We find support from her statement that father of the respondent-wife came with some persons and took her daughter. It is also in the statement of the appellant-husband that there was a condition imposed by his In-laws that unless he makes earning of Rs. 5,000 per month, his wife would not be sent back. He had been making efforts to bring her wife back. He denied the allegations of dowry. He has supported the version of taking his wife by his father-in-law in company of 50-60 persons who were on scooters and his wife was taken in an Ambassador car. Information of the Incident was also given to the police.
11. The respondent-wife denied the version of the appellant-husband.
12. We have also perused the statement of Shri Pramod Shankar Pandey, father of the respondent-wife, who has stated that he had not beaten his son-in-law. However, he stated that he visited her daughter during thirteen months and she has been complaining about the demand of dowry but not a single letter was written to the father. In our view. It is a cooked up story especially when he states that he wants to marry her daughter again after divorce.
13. We are of the considered view that Family Court has held in taking a wrong approach in appreciating evidence and law of dissolution of marriage on merits. It is unbelievable that wife who remained thirteen months has only cohabited for four days. It is not case of husband that she is not good looking. Rather he told us in the Chamber that he is not willing to loose such type of wife. It is also unbelievable and improbable and not in consonance with human conduct that newly wedded wife is not given food and demand of T.V., V.C.R., etc. is mentioned. The marriage was arranged one. There is no positive evidence that the demand regarding such things was made. Rather some times, such type of demands are introduced to make a case of divorce. The appellant-husband filed case under Section 9 of the Act and then the wife set up a case of cruelty. The wife is speaking a white lie when she says that she stayed for thirteen months and she was made to lead unbearable life and she remained" silent spectator. The version of the husband-appellant is that the respondent-wife stayed for only two months after performance of "gauna" and then she was taken by her father in company of 50-60 persons. It appears from one letter which is on record and dated 5.3.1989 written by close relations of wife from Bachranva that date of gauna has been fixed in May. 1989. Before performance of "gauna ", the bride and bridegroom stayed at the house of their respective parents. The version of the respondent-wife that she stayed for thirteen months is palpably false and the Family Court Judge should have relied upon on this letter and this letter is admissible under Section 14 of the Family Courts Act. Even if this letter is Ignored for argument sake, then there is no reason to disbelieve the statement of the husband and other relations of the husband regarding the performance of the "gauna ". We are of the view that the Family Court Judge has committed a mistake on facts and law.
14. Under Section 23 of the Act, there must exist a ground for dissolving a marriage and the ground must be proved. Merely the boy is studying in Law or he was B.Sc. at the time of marriage does not mean that the marriage has failed. The marriage should be given fair trial. It appears from the statement of the sister of the appellant-husband that they have mixed house, i.e., Kaccha-Pucca and it cannot be ruled out that there is difference of living standard, as revealed from the Chamber meeting. It does not mean that marriage should be broken on this point without making a genuine effort. The boy can Improve with the passage of time and the bride can help towards the Improvement when the nuptial tie has been tied upon. In this State during disposal of the matrimonial cases, we have observed that the petitions are filed on difference of Intellectual level or standard of living which is not healthy as it will destabilise the married life in the society. It will be difficult for the divorcee, may be husband or wife, to get again remarried in our society unless some misrepresentation is played that he is unmarried or some other consideration. The version of the dowry, as already stated, is not supported by conduct or surrounding circumstances. The stay of thirteen months would have made her life hell if there was consistent demand of dowry and she would have given birth to a child. The version of the husband that she stayed only for two months is more probable taking into consideration the preponderance of the circumstances.
15. It cannot be also ruled out that since the appellant-husband is still unemployed, she may not have been able to adjust in a joint family for some time and that is also no ground for divorce. It cannot be Inferred that it is cruelty on the part of the husband to improve his education. The truth is that their mental level and living standard have not come to the expectation of the wife and her parents. The Family Court Judge should not have jumped to the conclusion that the marriage cannot be preserved in such circumstances and it is impossible to live with each other. We are of the view that the husband is not guilty of cruelty and desertion. We also do not rely upon the evidence of the wife-respondent.
16. We are of the view that the Family Courts do not go deeply into the causes of the failure of the marriage and rather do not ask the questions in detail to the parties and also ash for the documents in their possession for perusal to arrive at the truth. They should keep in mind that the Legislature has dispensed with strict rigours of the Civil Procedure Code and Evidence Act and emphasised that the effort should be made to preserve the marriage and matter be settled expeditiously. They should also keep in mind that lawyer's appearance should be minimised and they should perform the role of patriarch and not the role in strict sense of civil court and keep silent. They have right to put questions under Section 10(3) of the Family Courts Act to arrive at the truth.
17. We set aside the findings of the trial court and Impugned decree of divorce and grant decree of restitution of conjugal rights as the Wife has withdrawn from the society of the husband without any sufficient cause and decree of restitution is accordingly passed in favour of the appellant-husband against the respondent-wife. No other point has been argued. The plea of the appellant-husband cannot be accepted that two matter cannot be tried together as the appreciation of the case are common and rather law also requires.
18. The appeal in both cases is allowed. No cost.