Smt Kailashi Bai Vs Omprakash

This appeal under Section 28 of the Hindu Marriage Act, 1955 has been filed by the appellant-wife against the judgment and decree dated 17.12.2007 passed by District Judge, Bundi, whereby the application under Section 13 of the Act of 1955 filed by the respondent-husband has been allowed and a decree of divorce has been granted in his favour.

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Brief facts of the instant appeal giving rise to the dispute are that the respondent-husband filed an application under Section 13 of the Act of 1955 before the learned Court below contending

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therein that the marriage of appellant-wife and respondenthusband took place in the year 1998 in accordance with Hindu rites and ceremonies. Soon after marriage, on request of appellant-wife she was allowed to manage the bangle shop of the father of the respondent-husband, however, she started siphoning the money from the shop and after taking out money, she used to give the same to her father. In May, 1999 she made a complaint with regard to severe ache in her stomach and for treatment she went to her parent's place. The respondent-husband was informed that there was cyst in her stomach which has been removed by way of surgery.

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It was further stated by the respondent-husband that for last 2-3 years or more, the appellant-wife has withdrawn herself from co-habitation of respondent-husband. Appellant-wife lodged one false case in Bundi Court on 17.11.2005 and an allegation was also levelled by her that parents of respondent-husband had made her barren after removal of her uterus, whereas the correct facts are that the appellant-wife was got admitted in hospital by her own father.

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It was also contended in the application the appellant-wife attempted to commit suicide twice and regular threats in this regard were given by the appellant-wife to the respondenthusband. It was also averred that for no reasonable cause, appellant-wife has deserted respondent-husband and she has caused severe mental trauma to the respondent-husband on

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account of her cruel behaviour. He prayed for granting a decree of divorce on the ground of cruelty and desertion.

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On receiving notice of the divorce petition, the appellant-wife filed a reply to the application in which she categorically denied all the allegations and levelled counter-allegations of committing cruelty with her. It was stated in the reply by the appellant-wife that respondent-husband and his family were in greed of dowry and after snatching all her money, clothes, ornaments and streedhan she was thrown out of her matrimonial home. They used to taunt her on account of not conceiving and the real intention of the husband was to re-marry with some other lady.

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It was also contended in the reply that feeling aggrieved by the cruelty, she lodged criminal case against the respondenthusband and his parents, who were arrested and remained in judicial custody, therefore, the application for divorce has been moved in a revengeful manner, whereas she wanted to continue the martial tie. She prayed for dismissing the application filed by the respondent-husband under Section 13 of the Act of 1955.

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On the basis of pleadings of the parties as many as three issues were framed, out of which issue No.1 was with regard to cruelty and issue No.2 was in respect of desertion.

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Respondent-husband gave his own testimony as AW-1 and also produced AW-2 Durga Shanker, AW-3 Kaushalya, AW-4 Radha Kishan and AW-5 Abdul Gaffar, whereas in-counter the appellantwife produced herself as NAW-1 and also got examined NAW-2 Nand Lal and NAW-3 Bhanwar Singh.

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After hearing arguments of both the side, the learned Court below allowed the application under Section 13 of the Act, 1955 and granted a decree of divorce in favour of respondent-husband.

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Learned counsel for the appellant-wife, while assailing the judgment and decree dated 17.12.2007 would submit that the learned Court below has utterly failed to appreciate the pleadings of the parties, materials and evidence available on record and law prevailing at the relevant time, hence the impugned judgment and decree dated 17.12.2007 is liable to be quashed and set aside.

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Learned counsel for the appellant-wife also submits that the learned Court below could not properly appreciate that no cruelty whatsoever has been committed by the appellant-wife and the allegations levelled by the respondent-husband remained unsubstantiated. No proper evidence was laid by the respondenthusband to prove the allegations either with regard to cruelty or desertion. Even then without their being any legal basis and foundation, decree of divorce has been granted by the learned Court below.

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Learned counsel for the appellant-wife would also submit that the respondent-husband himself was committing cruelty with the appellant-wife and therefore in order to pursue her legal reports, she lodged criminal complaint against the respondenthusband and his parents and they were also arrested by the Police Authorities. Hence, in view of Section 23 of the Act of 1955, a person who himself is accused of committing cruelty, cannot file an application for seeking divorce on the basis of cruelty.

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Learned counsel for the appellant-wife would also submit that although this Court vide order dated 12.09.2011 issued direction to the respondent-husband to pay a sum of Rs.2500 per month as maintenance pendente lite, however, the appellanthusband has not been paying the same to her. Hence, under these circumstances a decree of divorce granted in his favour is liable to be quashed and the appeal filed by the appellant-wife may be allowed.

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Per contra , learned counsel for the respondent-husband submits that the impugned judgment and decree has been passed by learned Court below after due appreciation of the pleadings of the parties and meticulous analysis of the evidence on record. As such, there is no infirmity or illegality in the impugned judgment and decree and therefore, the appeal filed by the appellant-wife is totally misconceived and liable to be quashed.

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Learned counsel for the respondent-husband would also submit that sufficient evidence has been produced by the respondent-husband in order to show sustained pattern of cruel behaviour of the appellant-wife towards the respondent-husband and his family members.

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Learned counsel for the respondent-husband has also submitted that the appellant-wife was habitual of levelling baseless and unfounded allegations with regard to character assassination of the respondent-husband. Such allegations intented to shatter the mutual respect and trust between husband

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and wife and have caused grave mental cruelty to the respondenthusband.

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Learned counsel for the respondent-husband further submits that on the basis of false and frivolous allegations, the appellantwife lodged malicious complaint of demand of dowry against the respondent-husband and his parents. On account of such criminal complaint, he as well as his family members has remained in custody which have caused him and his entire family grave humiliation and harassment; and their reputation has been degraded in the society.

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Learned counsel for the respondent-husband has also submitted that as there was no substance in the allegations, therefore, later on the appellant-wife entered into a compromise and withdrew her complaint, which in itself is sufficient to prove that the allegations levelled by her were false and the FIR was lodged only to victimise and harass the respondent-husband.

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During the pendency of appeal, it has been brought on record that while the appeal was pending, the appellant-wife has entered into Nata marriage with one Sh. Ghanshyam and out of their wedlock two sons were born. Therefore, as per learned counsel for the husband it is not possible to restore marital tie between the appellant-wife and respondent-husband. Hence, learned counsel for the respondent-husband prayed for dismissing the appeal.

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We have carefully heard the learned counsels for both the parties and examined the record.

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After appreciating the evidence, we find that there are allegations and counter-allegations levelled by appellant and respondent on one another.

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It is evident from the record that the appellant-wife has lodged criminal case against the respondent-husband and his family members in which they had to remain under custody. Later on, such complaint was withdrawn by entering into compromise. Such facts would reveal that the allegations levelled by the appellant-wife with regard to demand of dowry were not correct and it also shows the intention of appellant-wife to unnecessarily harass and victimise the respondent-husband and to defame him in the eyes of the society.

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It is a settled proposition of law that lodging false criminal case against the respondent-husband amounts to mental cruelty and is in itself is sufficient to draw a presumption that it was not possible for them to continue their marital tie.

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Marriage is a sacrament under Hindu Law and its delicacy rests upon mutual respect and trust, however, in the instant case the evidence on record more particularly in respect of indecent and ill-mannered behaviour of the appellant-wife would reveal that their marriage was a hollow shell devoid of any warmth, affection and emotional intimacy. Hence, the learned Court below has committed no mistake in severing their tie.

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It has also come in record that wife has remarried in the year 2012, after passing of a decree of divorce passed by the learned Court below, hence, under such circumstances, by no

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stretch of imagination, marital tie between appellant-wife and respondent-husband can be restored back.

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From the evidence it also reflects that appellant-wife and respondent-husband have been living separately since last more than 15 years and in the facts and circumstances mentioned hereinabove it is not possible for them to re-unite.

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It would be relevant to refer that in the case of Rakesh Raman Vs. Kavita reported in 2023 (17) SCC 433 , the Hon'ble Supreme Court has held as under:

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".......(17) Under similar circumstances, this Court in R. Srinivas Kumar v. R. Shametha, Munish Kakkar v. Nidhi Kakkar and Neha Tyagi v. Deepal Tyagi has held that an irretrievable marriage is a marriage where husband and wife have been living separately for a considerable period and there is absolutely no chance of their living together again. In all the above cited three cases, this Court in exercise of its power under Article 142 of the Constitution of India has dissolved the marriage on the ground of irretrievable breakdown as a ground, which otherwise does not exist under the Hindu Marriage Act."

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In the case of Raj Talreja Vs. Kavita Talreja reported in 2017 (14) SCC 194 , the Hon'ble Supreme Court has held as

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under:

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“......11. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the

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complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act, 1955 (for short "the Act"). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self-inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 IPC.”

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Hon'ble Supreme Court in the case of Samar Gosh Vs. Jaya Gosh reported in 2007 (4) SCC 511 , while giving guidelines with regard to different factors amounting to cruelty has held as under:

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"......101 (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.”

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As regards the allegations of the appellant-wife that the respondent-husband has not been paying the maintenance pendente lite to the appellant despite their being specific order, it would be sufficient to observe that after performing re-marriage, she has lost all her rights to claim maintenance pendente lite .

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Learned counsel for the respondent has informed the Court

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that so far as the maintenance due till the date of her re-

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marriage, respondent-husband has already paid the same to the appellant-wife.

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For the reasons mentioned hereinabove, after discussing the evidence adduced by the parties and examining the findings given by the learned Court below, we are of the view that the learned Court below has rightly decided the Issues No.1 & 2 in favour of respondent-husband and has committed no mistake in granting a decree of divorce in favour of respondent-husband.

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Resultantly, the instant appeal fails on account of being misconceived and devoid of any substance and the same is hereby rejected.

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All pending application(s) also stand disposed of.

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Record of the learned Court below be sent back.

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(ANAND SHARMA),J

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(INDERJEET SINGH),J

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DAKSH/139

Smt Kailashi Bai v. Omprakash

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Smt Kailashi Bai v. Omprakash

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