Family Court Appeal No.125 of 2008,Civil Application No.179 of 2008

18th August, 2009

Petitioner Counsel: Mr. ASHOK G. TORASKAR
Respondent Counsel: Smt. SONIA MISKIN

Cases Cited:
Sujata Uday Patil Vs. Uday Madhukar Patil, 2007(3) ALL MR 319 (S.C.)=(2006)13 SCC 272 [Para 19]
Vinita Saxena Vs. Pankaj Pandit, 2006(5) ALL MR 67 (S.C.)=(2006)3 SCC 778 [Para 20]
Rishikesh Sharma Vs. Saroj Sharma, (2007)2 SCC 263 [Para 21]
Naveen Kohli Vs. Neelu Kohli, 2006(4) ALL MR 190 (S.C.)=(2006)4 SCC 558 [Para 22]

JUDGMENT

P. B. MAJMUDAR, J.:- Marriage between a man and woman is considered to be a sacred ceremony. It is a social contract between two individuals that unites their lives legally, economically and emotionally. The husband and wife performs the marriage ceremony with a fond hope that they will stay together for the rest of their life and both of them will have love and affection amongst each other and if any issues are born out of the said wedlock they will be looked after by them. With this pious objective, the marriages under the Hindu Marriage Act are taken place and that too in a sacred manner in the presence of a priest. Therefore, the said ceremony is a sacred ceremony which is not required to be treated lightly by either spouse treating it as a child's play. It is said that marriages are made in heaven but they are broken on earth. Appropriate care is required to be taken to see that such marriages are not broken lightly and that is how laws are enacted for providing dissolution of marriage as per statutory grounds available. The manner in which various divorce petitions are filed creates doubt as to (i) whether the marriages which are treated as sacred ceremony will still continue to be the same in future; (ii) whether the tradition which is prevailing since time immemorial in this country will continue for a long time and (iii) whether the child who is born out of the said wedlock will be able to get the love and affection of father and mother in case the marriage is dissolved in a light fashion.

2. The present appeal is directed against the order dated 30th January, 2008 passed by the Principal Judge, Family Court, Mumbai, in Petition No.A-1915 of 1995, by which the Family Court has dismissed the petition filed by the appellant-husband for getting a decree of divorce under Section 13(i)(i-1) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act").

3. The aforesaid petition was filed on the ground of alleged cruelty on the part of the respondent-wife. The marriage between the parties took place on 5th December, 1992. Out of the said wedlock a child viz. Yogesh is born on 27th August, 1993. The petition thereafter was filed on 18th October, 1995 for dissolution of the marriage. It is the case of the appellant that the conduct of the respondent is abnormal and she is having pugnacious nature and she did not give any love and respect to the appellant and used abusive language. In order to substantiate the case for cruelty, various instances were cited in the petition. The same are as under :

(i) That after the marriage, the respondent insisted to go for honeymoon even though the mother-in-law of the respondent was admitted in the hospital due to illness for which she threatened the husband to commit suicide.

(ii) After the respondent became pregnant, for the purpose of delivery, she went to her mother's place in July, 1993 and she delivered a child on 27th August, 1993 and thereafter she came back to the appellant's house in October, 1993 but she started quarreling with the appellant thereafter and she insulted him.

(iii) That on 27th August, 1994, on the first birthday of the son, the respondent quarreled with the appellant and went to Siddhivinayak temple all alone, leaving the child and the family members in the house to celebrate the birthday.

(iv) That the respondent on one occasion abused the appellant, assaulted him and shouted which went on upto 2.00 p.m. in the night and thereafter she went near the balcony and stripped her clothes for which appellant filed a police complaint at the N. M. Joshi Marg Police Station on 18th March, 1995.

(v) That the respondent did not cook, did not arrange for hot water for his bath and quarrels between the parties continued.

4. On the basis of the aforesaid grounds, it is the case of the appellant that the respondent was treating the appellant by way of cruelty and accordingly prayed that the marriage should be dissolved.

5. The petition was resisted by the respondent by denying the aforesaid allegations. It is the case of the respondent that from day one the appellant was not happy with her and the reason for the same is that he was having relationship with someone prior to their marriage. She denied all the allegations levelled against her by the appellant. It is her case that ultimately the respondent and the appellant started residing together in a house at Currey Road but the appellant hardly stayed with her and thereby tortured her. It is the say of the respondent that regarding joint family property, there was a settlement in which the appellant received his share of Rs.4 lakhs in cash and Rs. One lakh by cheque from his father, besides a room at Currey Road which came to his share as well as a share in the tailoring business. In spite of having received his share from the ancestral property, he avoided the respondent and left the respondent and their son in lurch for days together. It is her case that the respondent would not even go to his tailoring shop and he would not disclose his whereabouts. It is her further case that she has no means of livelihood.

6. The learned Judge of the Family Court framed various issues at Exhibit-14. After considering the evidence on record, the learned Judge came to the conclusion that from the evidence of on record, the cruelty as alleged by the appellant is not established. The learned Judge accordingly dismissed the said petition. However, the learned Judge came to the conclusion that the respondent is entitled to claim maintenance from the appellant for herself as well as for the minor son Yogesh at the rate of Rs.1,000/- each. It is the aforesaid order of the Family Court which is impugned at the instance of the appellant in this appeal.

7. A Division Bench of this Court passed an order on 18th September, 2008 by which record and proceedings were called for and it was directed that the appeal may be decided at the admission stage itself. That is how, the appeal is placed before us for hearing.

8. The learned counsel for the appellant submitted that the Family Court has gravely erred in dismissing the petition, as from the evidence on record it can be inferred that the respondent had treated the appellant with cruelty. The learned counsel further submitted that since the respondent is having quarrelsome nature and not respecting the appellant and since she was making grievance as to why the appellant was having relationship prior to their marriage and why such relationship was not disclosed to her, it amounts to cruelty. It is submitted that since it is not possible for the appellant now to reside with the respondent that a decree should be passed, if not on the ground of cruelty then on the ground that the marriage has been irretrievably broken down. Learned counsel for the appellant further submitted that by now more than fifteen years have passed since the appellant and respondent are not staying together, that a decree of divorce is required to be passed on the ground that the marriage is irretrievably broken down. Learned counsel further submitted that the respondent in the past filed two N.C. Complaints and even the appellant had filed one N.C. Complaint and on that basis and taking the overall circumstances of the case, it can be presumed that the appellant was treated with cruelty by the respondent. Learned counsel for the appellant has taken us through the oral and documentary evidence on record and has also cited various judgments of the Apex Court and prayed that the marriage between the appellant and the respondent be dissolved according to the provisions of the Act.

9. Mrs. Sonia, learned counsel for the respondent, on the other hand, submitted that the Family Court, after having appreciated the evidence on record, has come to the conclusion that it is not a case wherein it can be said that any act of cruelty is committed by the wife to the appellant, this Court, therefore, may not grant such decree in the appeal. It is submitted by her that the appellant has never taken care of the respondent or of the minor child for all this period and reluctantly he paid maintenance after the Family Court judgment which, according to her, is also not complied with fully as the appellant is still in arrears of Rs.18,000/-. It is submitted that no case is made out by which it can be said that the respondent had committed any act of cruelty. It is submitted that the appellant had a relationship with one lady which fact is not in dispute. When the respondent tried to make enquiry about the same, the appellant did not like the same. A false bogey is created by the appellant regarding certain instances for which there are no independent witnesses and only on false premises alleged act of cruelty is attributed to her. The learned counsel for the respondent submitted that she has taken instructions from the respondent as to whether she is willing to give mutual divorce. She submitted that the respondent did not want to live in the society with a label of divorcee. Since the appellant has ruined her life and her son has been put to miserable condition that she is not willing to get separated by breaking the marital tie. It is submitted that great injustice has been meted out to her as well as to her son by the appellant as the appellant has never taken care of even maintaining the minor child for all these years. According to the respondent, no case for cruelty is made out at all. Simply because her husband is not ready and willing to keep her is no ground for passing a decree on the ground that the marriage is irretrievably broken down especially when no such ground is taken in the petition before the Family Court.

10. We have heard the learned counsel for the parties at great length and have gone through the evidence on record.

11. The principal question which requires consideration is as to whether from the evidence on record, can it be inferred that the respondent has committed an act of cruelty towards her husband and whether the marriage is required to be dissolved on the aforesaid ground.

12. In this connection, it is required to be noted that in his evidence, the appellant has merely narrated certain instances such as wife started quarreling at the time when the appellant and respondent could not go for honeymoon on the ground that the appellant's mother was sick. It is not possible to believe that simply because the appellant and the respondent had not gone for honeymoon initially planned that the respondent started behaving in an improper manner or tried to quarrel with the appellant on the said ground. It is not in dispute that subsequently from the said wedlock a child is born. There is no satisfactory evidence in this behalf that the respondent had acted in a particular manner in this behalf. The learned trial Judge has rightly considered this aspect, in our view, in an appropriate manner in para 9. I of his judgment which reads thus :

"I. The incident of petitioner's mother's hospitalization : This happened in December, 1992 immediately after the marriage. The parties had planned honeymoon, but it did not take place because of two reasons viz. The Petitioner's mother was hospitalized and secondly riots erupted in Mumbai. The respondent became upset and quarreled with the petitioner. Even the respondent's sisters and brother-in-law had quarreled with him. But in the cross-examination he admitted that on 12th December, 1992 at 8.00 p.m. he and his wife went to the respondent's brother's house for dinner. Had there been an incident of quarrel during this time, this festivity could not have happened. I am not inclined to believe the incident as narrated by the petitioner."

13. Regarding the incident of February, 1983 i.e. at the time when the parties went to native place, the appellant came back to Mumbai after leaving the respondent, who was newly married wife at that time in the company of his mother where she stayed with her for two months. The learned Judge has found that the appellant had not gone there to bring her back and the respondent along with her mother-in-law came back to Mumbai on their own. The learned Judge in our view has rightly found that the appellant was insensitive and it was not proper on the part of the appellant to leave the wife at the native place for two long months as they were newly wedded couple at that time.

14. So far as the birthday anniversary of their son is concerned, the respondent had gone at the relevant time at Siddhivinayak temple and, therefore, her presence was not seen in some photographs taken by the appellant. That fact itself can never be considered as a ground of cruelty. In fact, it is nobody's case that respondent was not looking after the child. In fact, all throughout the child remained with the mother. Even certain ceremonies regarding first hair cut of the child, photographs were taken which were on record at Exh.79. It seems, therefore, that on such flimsy grounds the appellant has tried to create a case that the respondent has treated him with cruelty. Regarding police complaint is concerned, since the wife apprehended that her son is taken away by the appellant, she filed a N.C. Complaint. As per the evidence on record, at the intervention of the police that the son was given to the respondent. In paragraph VI, the learned Judge has observed as under :

"VI. The incident of 17th September, 1995. On that day the petitioner took their son and went casually to his sister's house in the afternoon. He did not come back sooner because the son slept there for long time. The respondent panicked and lodged a police complaint. This in my view cannot be a grievance because admittedly the petitioner had gone to his sister's house as a casual visit and since the son was with him, he could not have stayed away from home without informing the mother for long time. The mother was bound to be panicked and out of anxiety if she had lodged a complaint, he should not take it as an offence. As such no police action was taken against him."

15. As against that, it is the case of the respondent that since beginning the appellant did not like her. It is not in dispute and, as rightly conceded by the learned counsel for the appellant, that the appellant was having relationship with one lady before their marriage. But the said lady died before the marriage between the appellant and the respondent and, therefore, his relationship with that lady before the marriage is of no consequence. The photographs in this behalf are produced on record and the learned counsel for the appellant has fairly conceded that the appellant was having intimacy with the said lady and in fact they wanted to marry but because of her death they could not marry. In this behalf, the learned Judge has observed as under in paragraph 10 of his judgment :

"The respondent's case is that since beginning, the petitioner did not like her. She pointed out that he had a love affair prior to their marriage. She even produced on record photographs showing the petitioner and his girlfriend. The photographs are on record and the petitioner has not denied such relationship. In the photographs, the petitioner and his girl friend are seen in quite intimate relationship. The photographs show that they had gone on a trip away from Mumbai, they stayed in one room and were happy in each others company. The photographs in fact show as if they were newly married couple enjoying their honeymoon. The petitioner is seen in a very happy mood. The petitioner explained that this girlfriend died prior to his marriage with the respondent. Comparing the lady in the photographs with the respondent, it is clear that she was better looking and was in a shapely figure. In this background, the respondent's case that since beginning the petitioner disliked her, ignored her and was not happy with this marriage deserves to be believed. I am, therefore, inclined to reject the petitioner's case of alleged cruelty of the respondent."

We have perused the photographs taken on record. The observations of the learned trial Judge, in our view, are as per the evidence on record and, therefore, the learned trial Judge has correctly rejected the appellant's case of alleged cruelty on the part of the respondent in this behalf.

16. The learned counsel for the appellant has fairly pointed out that there is no evidence that the respondent has ever tried to commit suicide even though the said allegation is made by the appellant in this behalf. Considering the aforesaid aspect, we are of the opinion that with a view to get decree of divorce, false grounds of cruelty has been created by the appellant.

17. It is required to be noted that after the marriage, a lady joins the husband with high hope that she will be treated like a family member. There may not be any single matrimonial home where some minor quarrels or exchange of words might not have taken place between the husband and wife. It is not expected from the wife that she should not even speak a single word or cannot in a given case raise any grievance about a particular act of the husband. Husband and wife both shares equal responsibility to see that the matrimonial home runs in a peaceful manner, more so when a child is born out of the said wedlock. Simply because in a given case wife makes some grievance in a louder voice, such act can never be treated as an act of cruelty as, on marriage, the right of freedom of speech of wife cannot be said to have been taken away in any manner, otherwise after marriage the wife will have no right to speak at all in any manner in the family. It is not expected that a lady should remain like a maid-servant and only to prepare food and look after the children. The wife is not executing a slavery bond in favour of the husband or in favour of her in-laws. Normal wear and tear is expected in a matrimonial home. Quarrels between spouses on trivial matters in the day to day married life may also not amount to cruelty. A wife is also expected to have equal honour and dignity in the matrimonial home. It has come in evidence of the wife that on various occasions she was waiting for the husband after preparing the food and the appellant would not turn up till late night and after returning home he refused to take food on the ground that he has already taken dinner outside. It is the duty of the husband to respect the sentiment of the wife also. It is an admitted fact that he has never taken care of his wife and the child by sending even a single rupee towards their maintenance till the order to that effect came to be passed by the Family Court in this behalf. The respondent was not expected to remain in the house as a slave. It is unfortunate that a child is deprived of the love and affection of his father also. Even though the respondent is staying in the matrimonial home, the appellant is not residing there as, according to the learned counsel for the appellant, the appellant is residing at his sister's place. Considering the evidence on record, we find substance in the argument of the learned counsel for the respondent that the appellant is residing separately only with a view to see that he can live with his wife in whichever manner he wants to live.

18. At this stage, reference is required to be made to a letter written by the appellant to the respondent after filing the divorce petition wherein he has stated that he would be coming late and need not wait for him. If the relationship was strained, the appellant was not expected to inform the respondent through the aforesaid communication that he would come late. It strengthens the case of the respondent that the appellant used to come late at night regularly which, in our view, can be said to be an act of cruelty on the part of the husband towards the wife. The cruelty may be mental or physical, intentional or unintentional. In law the cruelty has to be of one spouse to the other. Normal wear and tear of marriage do not amount to cruelty. In our view, the conduct complained of in the present case does not constitute cruelty. Taking an overall view of the matter and considering the evidence on record as a whole, in our view, the case put forward by the appellant regarding acts of cruelty pleaded in the petition on the part of the respondent is nothing but an imaginary one. We are, therefore, of the considered view that the decision of the trial court is not required to be interfered with as the trial Court has rightly rejected the petition for dissolution of the marriage.

19. At this stage, reference is required to be made to the decision of the Apex Court relied upon by the appellant in the case of Sujata Uday Patil Vs. Uday Madhukar Patil ((2006)13 SCC 272 : [2007(3) ALL MR 319 (S.C.)]) wherein it has been held that a cruelty is a mixed question of law and fact. Cruel treatment can be inferred from the entire course of conduct and incidents showing display of temperament, emotion and perversion by one spouse causing hurt and humiliation to the other spouse. In the said case, on appreciation of evidence, the District Court and the High Court found that wife meted out cruel treatment to husband. It has also been held that when the District Judge made serious efforts for reconciliation and an amicable solution but failed and the husband married another woman after grant of divorce decree by District Judge on expiry of the limitation period and the divorce was later affirmed by the High Court and it was held that the marriage has irretrievably broken down. So far as the facts of the instant case are concerned, as we have already discussed, as per the evidence on record it cannot be said that the wife treated the husband with cruelty. In the aforesaid case before the Supreme Court after the decree of divorce granted by the District Court, the husband remarried. In our view, the family Court in the case on hand has dismissed the petition rightly as no case of cruelty is made out by the husband.

20. The learned counsel for the appellant has relied on another decision of the Supreme Court in the case of Vinita Saxena Vs. Pankaj Pandit ((2006)3 SCC 778 : [2006(5) ALL MR 67 (S.C.)]) wherein it has been held that cruelty and mental disorder are two different grounds for grant of divorce. The cruelty, may be physical or mental, intentional or unintentional, varies from time to time, place to place and individual to individual depending upon socio-economic conditions and status, cultural and human values, educational standard, individual temperament, etc. In the said case the wife was suffering from mental disorder and considering the dead relationship between them, decree for divorce was granted. The learned counsel for the appellant, while relying upon certain observations in the aforesaid judgment submitted that since the parties are residing separately since long and the marriage now cannot be saved, decree of divorce as prayed be granted. He also submitted that human aspects from all angles should also be considered by this Court.

21. Learned counsel for the appellant has relied upon the decision of the Supreme Court in the case of Rishikesh Sharma Vs. Saroj Sharma ((2007)2 SCC 263). It has been held by the Supreme Court in the said case that the marriage is irretrievably broken down with no possibility of the parties living together again. In the said case, both the parties had crossed 49 years and were living separately and working independently since 1981. It was found that the wife was repeatedly filing criminal cases against the husband which could not be substantiated as found by the Courts. One child born out of the said wedlock has already been married. Considering the said fact the Apex Court found that the marriage is irretrievably broken down and ultimately decree for dissolution of marriage was granted in favour of the husband.

22. Learned counsel for the appellant has also placed reliance on the decision of the Supreme Court in the case of Naveen Kohli Vs. Neelu Kohli ((2006)4 SCC 558 : [2006(4) ALL MR (S.C.) 190]) wherein it has been held that when parties are living separately for a sufficient length of time and if one of them brings a petition for divorce decree, it can be presumed that marriage has broken down irretrievably. In the instant case, it is required to be noted that till the filing of the petition, the appellant and the respondent had not separated in any manner. Simply because the Family Court took more than fourteen years in deciding the case is no ground for dissolving the marriage. No party to the litigation can take benefit on the ground that the court proceedings are taken long time and on that ground Court should grant decree of divorce by holding that the marriage is irretrievably broken down. If the Family Court has not taken up the matter for hearing for such a long time, an added ground cannot be given to the appellant to say that now considerable time has elapsed and, therefore, decree of divorce should be granted. In our view, it is not possible for us to allow this appeal only on the ground that now considerable time has passed since the appellant and respondent are separated and, therefore, this Court should presume that the marriage has irretrievably broken down.

23. It is required to be noted that the Legislature has not provided irretrievable breakdown of marriage as one of the grounds under Section 13 of the Act for dissolution of marriage. In a given case, if the husband and wife apply for mutual divorce, that stands on a different footing but if one of the spouses is not willing to give consent divorce, then only statutory grounds available in the Act are required to be considered by the Court of law and to find out as to whether any such grounds exist for dissolving the marriage as provided by law. In the instant case, learned counsel for the respondent-wife submitted that the respondent is not willing to give consent for divorce, as, according to her, she does not want to stay in the society as a divorcee and that great injustice has been done by the appellant to her and her child.

24. The institution of marriage occupies an important place and plays an important role in the society in general and, therefore, it would not be appropriate to apply the doctrine of irretrievable breakdown of marriage as a straitjacket formula for dissolving the marriage. This aspect has to be considered in the background of other facts and circumstances of the case. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. Irretrievable breakdown of marriage is not a ground by itself to dissolve the marriage. It is only in extreme circumstances that the court may use this ground of irretrievable breakdown of marriage of divorce. Marriage results in unity of marital relation between husband and wife. Even otherwise, the powers of the Supreme Court under Article 142 of the Constitution of India are different and, therefore, the decision of the Supreme Court under Article 142 of the Constitution of India cannot be straightaway made applicable so far as proceedings before the High Courts are concerned, as this Court in an appeal is required to find out as to whether any statutory ground is available for passing a decree of divorce.

25. In any event of the matter, this Court while considering the case as to whether divorce should be granted or not is required to consider the statutory grounds provided under Section 13 of the Act. The Act is enacted keeping in view the social, economic and political changes in the Country. The Act brings about a number of important changes in the field of Hindu marriage and divorce law in the country. Cruelty has been made a ground for divorce as well as judicial separation. The Legislature has provided decree of dissolution of marriage by way of mutual consent under Section 13-B of the Act. However, if either side is not willing to give any consent, the Court is required to see the statutory ground available as provided under Section 13 of the Act for dissolving the marriage.

26. So far as the facts of the present case are concerned, it is not in dispute that till the filing of the petition before the Family Court, the appellant and the respondent had not separated and were residing together. It is also required to be noted that even at the time when the petition was pending before the trial Court, a letter was written by the appellant to the respondent as referred above. If ultimately the court proceedings consume time that itself is not a ground for dissolving the marriage by holding that the parties are staying separately since long and on that ground it should be inferred that the marriage is irretrievably broken down. If in a given case, either side may leave the company of another on his or her own volition and thereafter press a point that since husband and wife are residing separately for considerable time, it should be inferred that the marriage is irretrievably broken down. If such thing is permitted, the one side who is interested in getting divorce would withdraw the company of another and thereafter try to take advantage of the situation of his or her own wrong. In our view, in such a situation, such benefit cannot be given to an erring party who has withdrawn from the company of another. It is not a universal law that if the husband and wife have not stayed together for some time, marriage must be dissolved on the ground that it has irretrievably broken down and decree of dissolution of marriage must be passed. If such thing is permitted, the sanctity of marriage will be lost. Under Section 13-B of the Act, divorce by mutual consent has now received statutory approval. If that is not possible, the Court has to consider the statutory grounds available in the Act for dissolving the marriage. Since in the instant case, mutual divorce is not possible, this Court is required to go through the statutory ground available i.e. cruelty and as per the evidence discussed above, it cannot be said that the respondent has committed any act of cruelty and, therefore, no decree can be passed on the said ground. Even otherwise, the ground which is pressed into service before us regarding irretrievable breakdown of marriage is not even pressed into service before the Family Court. Even no evidence is led in this behalf.

27. Considering the aforesaid aspect of the matter, in our view, the trial Court has not committed any error in rejecting the petition for divorce on the ground of cruelty. The only ground on which petition was filed is cruelty on the part of the respondent. Since it is not found that the appellant has proved the factum of cruelty on the part of the respondent, in our view, the marriage between the parties cannot be allowed to be dissolved. We accordingly do not find any substance in the appeal. Appeal is accordingly dismissed. There shall be no order as to costs.

28. In view of the dismissal of the appeal, no order is required to be passed in the Civil Application. Civil Application is also accordingly rejected.

Appeal dismissed.