Allowed

Smt. Geeta Kewat v. Pankaj Kewat

Chhattisgarh HC8 Aug 2023FA(MAT)/56/2022

Case brief

AI extract

What is this about?

Appellant wife appealed against Family Court decree dissolving marriage citing cruelty and desertion. High Court, analyzing evidence and citing Supreme Court guidelines, found cruelty allegation unsupported due to lack of cogent proof. Marriage found in repair as separation duration was insufficient. Appeal allowed, decree quashed.

What did the court decide?

Appeal allowed; judgment and decree dated 06.02.2020 passed by Family Court, Janjgir in Civil Suit No.142-A/18 quashed.

Smt. Geeta Kewat Vs Pankaj Kewat — Matrimonial and Divorce | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA(MAT) No. 56 of 2022

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Reserved on. 12.07.2023

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Pronounced on. 08.08.2023

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Smt. Geeta Kewat W/o Pankaj Kewat presently Aged About 29 Years R/ o Village Shivrinarayan, Tahsil Pamgarh, District, Janjgir-Champa, Chhattisgarh Present Address- Village Hareli Bhatha, Police Station Hasaud, Tahsil Jaijaipur, District Janjgir- Champa, Chhattisgarh.

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---- Appellant

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Versus

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Pankaj Kewat S/o Late Phoolsay Kewat Aged About 27 Years R/o Village Shivrinarayan (Moghapara), Police Station And Tahsil Shivrinarayan, District Janjgir-Champa, Chhattisgarh, Present AddressElectricity Office Compound Mungeli Police Station And Tahsil Mungeli, District, Mungeli, Chattisgarh. -- Respondent

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For Appellant: Shri Akash Agrawal, Advocate. For Respondent: None, despite service of notice.

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Division Bench:Hon'ble Justice Shri Goutam Bhaduri and Hon’ble Jusitce Shri Sanjay S. Agrawal CAV Judgment/Order

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Per Sanjay S. Agrawal, J.

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This appeal has been preferred by the non-applicant/wife under Section 19 (1) of the Family Courts Act, 1984, questioning the legality and propriety of the judgment and decree dated 06.02.2020 passed by the learned Judge, Family Court, Janjgir, District, Janjgir-Champa(C.G) in Civil Suit No.142-A/18, whereby the learned Family Court has decreed the applicant’s/husband claim, entitling him the decree for dissolution of marriage on the ground enumerated under Section 13(1)(i-a) and (i-b) of

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the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act, 1955”). The parties shall be referred hereinafter as per their description before the Court below.

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Briefly stated the facts of the case are that the applicant/husband has initiated the proceeding seeking dissolution of marriage, solemnized on 25.04.2015 in accordance with the Hindu Rites and Rituals, by submitting inter alia, that immediately after the marriage, his wife has refused to perform her matrimonial obligations and has left his company within a period of one year while using filthy words against his family members and by alleging that he is impotent and it is not possible for her to live with him. It is pleaded further that the applicant-husband has informed his family members and in-laws regarding the behaviour of his wife, who have advised the non-applicant/wife to perform her matrimonial obligations, but, she refused to develop any relationship with him. It was pleaded further that a social meeting was thereafter convened within a period of one year of his marriage, where, she made allegations against him and left his company without any sufficient reasons and started residing separately for a period of more than 2 years, therefore, he has been compelled to initiate the proceeding for dissolution of marriage on the ground of cruelty and desertion.

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While contesting the aforesaid claim, it was pleaded by the nonapplicant/wife that her husband often used to assault and harass her on account of demand of dowry and pleaded further that he himself has deserted her and, contended further that in the Panchayat meeting, he assured to bring her back and had taken 2 months time, but even after passing of several months, he did not make any effort in order to bring

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her back and, instead refused to live with her, when her father took her to her matrimonial home. It is denied specifically in her written statement that she has made any allegation against her husband regarding his manhood (Impotency) or has used any filthy words against his family members and contended further that the applicant-husband, on the basis of the false averments, is trying to get a decree for dissolution of marriage, therefore, the claim as made by him, deserves to be dismissed.

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In support, the applicant/husband has examined himself as AW1, mother (AW-2) and one Sagar Prasad, who was the vice president of his community as AW-3, while non-applicant/wife has examined herself in rebuttal.

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After considering the evidence led by the parties, it was held by the trial Court that the non-applicant/wife has not only deserted her husband, but has caused mental cruelty upon him and, accordingly, granting a decree for dissolution of marriage on the ground of cruelty and desertion and, being aggrieved, the non-applicant/wife has preferred this appeal.

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Learned counsel appearing for the appellant/wife submits that the finding of the Court below holding that the non-applicant/wife has committed cruelty upon her husband and deserted him without any reasons being assigned is apparently contrary to law. Further contention of him is that the burden to establish the fact that the non-applicant/wife has committed cruelty upon him or has deserted him without any reasons being assigned is upon him, however, in absence of any cogent and reliable evidence led by him, it ought not to have been held by the trial

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Court that the non-applicant/wife has committed any kind of cruelty upon her husband or has deserted him. The findings as recorded by the trial

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Court are, therefore, liable to be set aside.

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No one appears on behalf of the applicant/husband, despite service of notice of this appeal upon him.

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We have heard, learned counsel appearing for the non-applicant/ wife and perused the entire record carefully.

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The question which arises for determination in this appeal is as

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to:-

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“Whether the applicant/husband has succeeded to establish the fact that he was subjected to mental cruelty by his wife and/or, whether he was deserted by his wife without any reasons being assigned for the period of two years prior to institution of the claim?”

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According to the Applicant (AW-1), his wife used to call him impotent and does not like him as also not used to prepare food for entire week and used to leave the home frequently without intimating him and, sometimes, she has tried to assault him and often insisted to live separately from his family members. It, however, appears from his (AW1) testimony that a report was lodged by him before the police station with regard to the alleged cruelty committed by his wife, but, admittedly, no documents to this effect was produced by him in order to establish the said fact. That apart, the allegation of impotency, as alleged against him by his wife, was not even supported by his mother Savitri (AW-2), nor the finding has been recorded by the trial Court that the non-applicant/wife has raised an allegation regarding her husband’s impotency.

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In view of the aforesaid evidence of the applicant and his mother

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and in absence of any finding recorded by the trial Court, it is difficult to hold that the applicant was subjected to mental cruelty as alleged by him. At this juncture, it is to be seen the guidelines made in this regard by the Supreme Court in the matter of Samar Ghosh vs. Jaya Ghosh reported in ( 2007) 4 SCC 511 , wherein, it has been observed at paras 98 to 101 as under:-

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“98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘'mental cruelty'’ within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental

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cruelty.

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Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

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Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case

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would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

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No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘'mental cruelty'’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

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“(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

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(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

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(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

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(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

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(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

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(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct,

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studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

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(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

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(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

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(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

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(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

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(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

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(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

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(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

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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. “

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In the light of the aforesaid principles laid down by the Supreme Court and in view of the evidence led by the applicant (AW-1) and his mother (AW-2), as observed herein above, the finding recorded by the trial Court holding that the non-applicant/wife has committed cruelty upon her husband cannot be held to be sustained and, accordingly, it is set aside.

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In so far as the, the ground of desertion is concerned, the applicant (AW-1) has, however, failed to state that when she left her house and, that apart, from his testimony, particularly, para -6, would, however, show that she is living apart after the Panchayat meeting was over, which was held on 28.02.2018, as reflected from his statement. Therefore, even if it is assumed that she started living separately as such then it would be at the most with effect from 28.02.2018 and since the application seeking dissolution of marriage on the ground of desertion was filed much before the expiry of 2 years as provided in the said provision, i.e., on 17.07.2018, therefore, petition as framed appears to be pre-matured in nature. Moreover, he failed to establish the fact that she started living separately without any reasons being assigned. In such circumstances, he (applicant) would not be entitled to obtain a decree for dissolution for marriage on the ground of desertion as well. The finding of the trial Court to this effect also liable to be and, is hereby set aside.

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Consequently, the appeal is allowed and the judgment and decree dated 06.02.2020 passed by the learned Judge, Family Court, Janjgir, District,Janjgir-Champa(C.G) in Civil Suit No. 142-A/18 is hereby quashed.

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No order as to costs.

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A decree be drawn accordingly.

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Sd/Sd/-

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(Goutam Bhaduri) (Sanjay S. Agrawal) JUDGE JUDGE

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vivek

Smt. Geeta Kewat v. Pankaj Kewat

Case brief

What is this about?

What did the court decide?

Smt. Geeta Kewat v. Pankaj Kewat

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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