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Bench: JUSTICE S.P. Srivastava & K.N. Ojha


Law Point:
Intention to be cruel not essential element : In marital matters, feelings and attitudes of minds are material.





Feeling aggrieved by the judgment and order of the Family Court decreeing the suit of the husband filed under Section 13 of the Hindu Marriage Act and annulling the marriage solemnized between the parties to the suit on 20.11.1975 providing, however, that the decree of annulment of marriage will come into effect on the payment of a lumpsum amount of Rs. 5 lacs to the wife towards maintenance allowance to her, the wife has now approached this Court by means of the present First Appeal seeking redress praying for the reversal of the impugned decree.

2. We have heard the learned Counsel for the wife – appellant as well as the learned Counsel representing the husband – respondent and have carefully perused the record.

3. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass.

4. The suit giving rise to this appeal had been filed on 9.1.1997 claiming a decree of divorce and annulment of the marriage praying for “Setting the petitioner (husband) at liberty from the marital ties”. The husband had come up with the case that he had been married to the defendant-wife on 20.11,1975 out of which wed-lock three sons were born. It was claimed that the wife was a woman of hard temperament and rude behaviour. After the marriage, she had been picking up quarrels not only with the husband but also with his parents and creating scenes and insisting upon for separate residence. The wife and her father, who was running a business at Bombay, had been playing tricks with the husband and dodging him from the very inception. The wife was a cunning woman and was a hungry for wealth and acting in conspiracy with her parents, has trapped the petitioner/plaintiff in such a way that whatever assets were made by the petitioner were ostensibly taken in her name.

5. It was further alleged that in May, 1994 while the husband along with the wife and children had visited the place of his father-in-law in connection with his Golden Wedding Anniversary, the petitioner had detected that the wife was indulging in vulgarity amounting to unchastity with a doctor namely Vishwas Raut. Her conduct was highly unbecoming of a married woman. Husband had started living separately from the wife from May, 1994. The wife had also attempted to poison him in February, 1995. The wife had started misbehaving with the husband and creating scenes making the life of the husband very miserable. She had started using physical criminal force and had been causing physical hurt to the petitioner. She had been using abusive language highly unbecoming of her status. Her attitude showed that she wanted alimony from the petitioner-husband so that she may live comfortably with all wealth with her paramour.

6. It was also claimed that in the absence of the husband, the wife had even forcibly broken the locks of his apartment at Chitrakoot and the cupboard kept there and had removed valuable unit certificates, shares certificates, Bank and PPF Pass-books, jewellery and other important papers. The wife with a view to make the petitioner financially a wreck had clandestinely withdrawn an amount of Rs. 9.50 lakhs from the account of Nikhil Rubbers (P) Ltd., maintained in Standard Chartered Bank on 19.6.1996 and transferred the same to her personal account and withdrew the same. She had also lodged a false First Information Report under Section 420/467/468/471, IPC against the petitioner to get him arrested. Criminal case bearing No. 256 of 1996 had been registered and the petitioner has to face the trial. The wife had also gone to another factory of the husband along with the police and created a situation where the husband had been beaten up. She had employed Goonda elements not only to kill the husband but also to take over the factory. The wife got made publication in the newspapers openly undermining his status in the Society alleging that he was an employee and he had abandoned his job in May, 1996. She had managed to get the petitioner beaten up; by his son Nitin Kohli and maternal uncle Subhash Bhasin. The petitioner was manhandled, abused, and scolded by the Thana Incharge.

7. It was further claimed that the wife herself was living in unchastity and misbehaving with the petitioner and using defamatory language. The husband had filed a suit for judicial separation being O.S. No. 666 of 1995 but that Suit was not pursued as separation according to him was not the panacea for the redressal sought for. The husband claimed that it was a case of exceptional hardship. His life had been ruined and the wife only loved money and her paramour. A stage had been reached where it was no longer possible for him to call the opposite party as his wife. The husband asserted that the marriage had been irretrievably broken.

8. The aforesaid Suit was contested by the wife by filing a detailed written statement denying the allegations levelled against her. A specific plea had been taking relating to non-joinder of necessary party as the husband had not impleaded as party-respondent the alleged adulterer. She had asserted that the petitioner – husband had throughout misbehaved with her with faithlessness and rudeness. He had been thrown out from his parental house by his father and thereafter had established a Rubber unit, which was fully financed by the parents of the wife.

9. So far as the premises No. 7/36-A, Tilak Nagar, Kanpur was concerned, it was claimed that it had been purchased out of her own capital and not a single Naya Paisa had been contributed by the petitioner towards the purchase of the said premises. A First Information Report about the criminal activities of the husband had been lodged when without any authority and consent of the wife, he had withdrawn a large amount for which there could be no justification.

10. It was asserted that the wife had not lodged any false report against the husband and had not made any attempt to get him arrested. The husband-plaintiff had, however, given a merciless beating to his own son and had tried to kill him as the son had strongly protested against the immoral relation of his father with a woman named Smt. Shiva Nagi of Bombay. The son had protested against the petitioner’s shameful misbehaviour with his mother and abusing and beating her.

11. The wife had asserted that the husband-petitioner had kept the said Shiva Nagi wife of Sardar Amarjeet Singh Nagri r/o 62, Vithal Nagar, Road No. 11, Juhu Vile Parle Scheme, Mumbai as his mistress and both of them were residing together at premises No. 13/384, Civil Lines, Kanpur as husband and wife. The wife had claimed that in order to legalize his immoral relation with the said woman, the petitioner husband had filed the suit giving rise to this appeal claiming a decree of divorce on utterly false and fabricated case and scandalous allegations. Criminal case had been registered against the petitioner relating to his criminal activities. The wife claimed that she had never treated the petitioner with cruelty although the husband had opted to desert her and live with another woman separately. The relations between the petitioner-husband and Smt. Shiva Nagi were immoral as they were living virtually as husband and wife. The wife also complained that the major portion of her jewellery and cash has been forcibly grabbed by the petitioner-husband.

12. She denied having use of any criminal or physical force or causing any hurt to the husband. She further claimed that the husband was running his life in an immoral company of his concubine viz. Smt. Shiva Nagi.

13. It was also claimed that since the Original Suit No. 666 of 1995 filed for judicial separation by the husband had been withdrawn, the present suit on the same cause of action could not be maintained. It was further claimed that the husband had deserted his legally wedded wife and opted to live with a married woman and in such a situation he could not be permitted to take undue advantage of his own wrongs. The wife asserted that she sincerely desired to live with the petitioner-husband and lead a life of conjugal happiness.

14. The husband-plaintiff filed a replication in which he reiterated his case as stated in the plaint.

15. The Trial Court has framed an issue on the question relating to the effect of the non-impleadment of Dr. Vishwas Raut — the alleged adulterer which was issue No. 5. It was decided separately vide the judgment and order dated 2.11.1999. The Trial Court had come to the conclusion that as the plaintiff himself had asserted that the suit had been filed on the ground of cruelty and even if adultery part was ignored, the Suit could still be held to be maintainable on the ground of adultery, and the issue No. 5 had to be answered in favour of the plaintiff. However, the Trial Court made it clear that since the plaintiff had made a statement that he is confining his claim on the ground of cruelty and had not impleaded the alleged adulterer, he will not be entitled to lead any evidence on the question relating to the adultery nor such a ground will be available for consideration in support of the case of cruelty. It was clearly indicated that the plaintiff will neither be granted permission to lead evidence on the aspect relating to the alleged adultery nor any evidence led in support of such a plea will be taken into consideration. The aforesaid finding of the Trial Court have not been assailed and have attained finality.

16. It may be noticed at this stage that during the pendency of the Suit the wife has moved an application (paper No. 162-C-2 asserting that the husband was living in adultery with Smt. Shiva Nagi wife of Sardar Amarjeet Singh Nagi who had accompanied him and had gone to London. It was prayed that the passport of the plaintiff be summoned and the husband be directed to produce his passport and a photostat copy of that passport may be placed on the record. This, it was claimed, will amply establish the case of the wife taken in the written statement. The Trial Court after taking into account the deposition of the wife, who had been examined as P.W. 1 as well as the deposition of P.W. 2, P.W. 3, P.W. 4 and P.W. 5 and further taking notice of the fact that in the oral evidence it had come that Smt. Shiva Nagi had been accompanying the plaintiff-husband whenever he used to visit Europe had directed the plaintiff to file certified photostat copy of his entire passport which could show that he had visited foreign countries.

17. The husband challenged the aforesaid order before this Court by means of Civil Misc. Writ Petition No. 22342 of 2001. This writ petition was disposed of vide the order passed by the learned Single Judge dated 13.6.2001. A perusal of the aforesaid judgment indicates that during the course of argument the Counsel for the petitioner had stated that he did not want to press the relief in regard to quashing of the order dated 10.5.2001. The writ petition was dismissed observing that the Suit itself may be decided expeditiously preferably within a period of 3 months without granting any unwarranted adjournment.

18. After the dismissal of the writ petition, the husband instead of complying with the order dated 10.5.2001 moved an application seeking review of the said order which application was rejected by the Family Court on 6.7.2001.

19. It appears that the plaintiff-husband after hearing the order rejecting the application made certain observations against the presiding officer and prayed for transfer of the case. The presiding officer vide the order dated 6.7.2001 requested the principal Judge of Family Court to transfer the case from his Court.

20. Thereafter, when the case was transferred, the principal Judge of the Family Court retained the file with him. An application seeking review of the order dated 6.7.2001 was filed which was allowed on 26.7.2001 and the order dated 10.5.2001 which stood affirmed with the dismissal of the writ petition indicated hereinabove was recalled and set aside.

21. The above facts indicate the insistence of the husband in withholding the production of the passport in question and further withholding of the evidence which was available with him and could together with the evidence indicate his visits to Europe accompanied by a woman other than wife lending support to the wife’s version as indicated in the written statement. It may, however, be noticed that the principal Judge, Family Court, in his order dated 26.7.2001 had noticed the admission of the plaintiff that he used to visit foreign countries in connection with his business. In the circumstances, indicated hereinabove, the order dated 26.7.2001 allowing the second application for receiver could not be held to be justified specially on account of the finality attached to the order passed by this Court as well as the order passed by the family Court itself rejecting the first application seeking review of the said order.

22. It may be noticed that the husband plaintiff prior to the filing of the suit giving rise to this appeal had filed a suit registered as Matrimonial Case No. 666 of 1995. In that suit various allegations similar to the allegations made in the Suit giving rise to this appeal has been made against the wife. The wife has filed a written statement in that case, herein besides raising various pleas denying the plaint allegations it had been asserted that affairs of Mr. Naveen Kohli – the husband with Mrs. Shiva Nagi had been continuing since May, 1994 and ever since then, he had been using the property and funds of the company Nikhil Rubbers (P) Ltd., for his personal benefits not associated with the family constituting his wife and his children. It was also asserted that Mr. Naveen Kohli had been spending most of his time till late night using the office telephone for making trunk calls to Mrs. Shiva Nagi and wasting funds on frivolous visits to Bombay and Delhi staying in expensive hotels and ignoring the interest of the family. The wife had also asserted that she was a tax-payee prior to her marriage with Naveen Kohli. Her parents for the benefits and happiness of the family of the husband and due to their love and affection for them, had been making huge contribution in different measures from time-to-time to reduce the irritant financial strains occasioned due to extravagance of Mr. Navin Kohli and his extra-marital relationship with Mrs. Shiva Nagi. Efforts were made by all concerned to persuade Mr. Naveen Kohli to reunite the family but it fell on deaf ears, and the husband ignoring his responsibility toward his wife and his children and social status which had come to acquire for whatever reasons, had chosen a wrong path at that stage which did not behove well of him and was not in the interest of the family peace.

23. During the pendency of the suit giving rise to this appeal the wife-the present appellant had moved an application praying for the grant of adequate cost of litigation as well as interim alimony under Section 24 of the Hindu Marriage Act. In the affidavit filed in support of the aforesaid application it has been indicated that the wife along with her husband Shri Naveen Kohli owned and possessed 4 business concerns dealing with Rubber goods at premises No. D/15, Panki Industrial Estate, Site No. 2, Kanpur and Dada Nagar Industrial Area, Kanpur. These business concerns were being run in the name and style of M/s. Nitin Rubber Company; M/s. Nikhil Rubber Company; M/s. Naveen Kohli and Sons; and M/s. Nimit Exports. It was also alleged that out of the aforesaid 4 business concerns, the husband had unlawfully and by force and by violence had grabbed and had taken full control of three of them and only M/s. Nitin Rubber Company was the company being run in the supervision and control of the wife. This company was not yielding any profit and the income was hardly sufficient to meet her expenses as well as those of her 3 children.

24. Naveen Kohli – the husband had also moved an application for grant of adequate cost of litigation and interim alimony from the wife. In the affidavit filed in support of this application it had been asserted that the husband was carrying on business of his proprietorship concern known as Naveen Elastomers but the said business was not yielding any profit. It was further asserted that M/s. Nitin Rubber was doing fantastically good business and its monthly turn over was approximately Rs. 6 lacs with 50% profit. The husband claimed an amount of Rs. 50,000/- per month as alimony from the wife. He had also asserted that he had filed a Suit being Suit No. 195/7 of 1997 against the wife claiming a decree of declaration that he was the real owner of the entire land, building, plaint and machinery, dies, assets, goodwill, stocks, monies receivable, etc. of M/s. Nitin Rubber and was the exclusive owner of 7/36-A, Tilak Nagar, Kanpur and agricultural land at Singhpur, Kanpur and these properties were Benami in the name of the defendant. He had also prayed for a decree of mandatory injunction requiring the defendant to return the articles of jewellery valued about Rs. 9 lakhs.

25. It may further be noticed that in the affidavit filed by Naveen Kohli on 4.11.1997 he had asserted that the wife was leading an adulterous life not only at Kanpur but also at Bombay and Delhi with the persons whose names were disclosed to be Vishwas Raut at Bombay and Subhash Bhasin at Kanpur. Besides the above, the husband also asserted that the wife was a woman of easy virtue who indulged in adultery with other persons as well, who came and visited her at C-712, New Friends Colony, New Delhi is well as 7/36, Tilak Nagar, Kanpur.

26. In the counter-affidavit filed by the wife in opposition to the application of the plaintiff it has been asserted that the husband shamelessly roams about along with his concubine named Smt. Shiva Nagi day and night. When his sons protested against his immoral relations with the said lady, the husband opposed and assaulted them. He also threatened to kill them and he did make such a heinous attempt once in the past in respect of which an FIR was also lodged. It was also asserted that the husband was flourishing in riches but unfortunately instead of financing his family, he was squandering all his wealth over his immoral activities with Shiva Nagi. His standard of living was very lavish as would be apparent from the bills and vouchers of the Five Star hotels, where he stayed and enjoyed luxurious life.

27. The wife had also filed a suit which was registered as matrimonial case No. 517/ 1996 against her husband under Section 9 of the Hindu Marriage Act. On 3.1.1997 she had moved an application in that case that in order to save their marriage from a breakdown she voluntarily condoned all misdeeds and cruel acts of her husband. She had already indicated the same sentiment in the other pending Suit No. 666 of 1999 filed by the husband under Section 10 of the Hindu Marriage Act. She had prayed for the dismissal of her suit as withdrawn which prayer was allowed.

28. It may also be noticed that the wife along with her son Nimit Kohli had filed a petition under Sections 397/398/399/402/403 and 406 of the Companies Act in respect of the company Nitin Rubber (P) Ltd. Registered as Company Petition No. 27 of 1997 in the company law Board, Principal Bench, New Delhi. In that case, the wife had asserted that her husband wanted to marry Shiva Nagi D/o. Sardar Kripal Singh of Kanpur. The parents of the said girl had threatened Naveen Kohli to discontinue the affairs and married their daughter in a hurry in a family in Bombay. Naveen Kohli, however, continued the affairs with the said girl even after her marriage and was presently living with her in Delhi in a house owned by him at S/130, Greater Kailash, Part-1, New Delhi. The said Shiva Nagi was married to one Amarjeet Singh Nagi r/o 62, Vithal Nagar, Road No. 11, Juhu Vile Parle Scheme, Mumbai. She had two grown up children and to the best of information and knowledge, she had not yet been divorced. Despite this knowledge the wife as a devoted Hindu wife continued to live with Naveen Kohli in the interest of maintaining domestic harmony and peace in the pious hope that Naveen Kohli would mend his ways with the birth of children. These hopes, however, had failed. In the same case, the wife has further asserted that criminal and civil cases had been filed against Naveen Kohli with a view to check his illegal and criminal activities.

29. In her First Information Report dated 27.7.1996 lodged at Police Station Kohna, Kanpur Nagar (Paper No. 101 on the record), the wife has asserted that for the past one year it had become usual for the husband Naveen Kohli to come late at the residence and remain absent for 2-3 days continuously and insulting the wife and indulging into marpeet had become usual feature. He went to Delhi on 15.6.1996 along with Shiva Nagi and resided as husband and wife in the house No. S. 130, Greater Kailash, Part-1, New Delhi. They also resided at premises No. 71, Sunder Nagar, New Delhi. He had support of his mother Smt. Sushil Kohli while hurling insults and abuses on the wife.

30. On 11.4.2001 the wife Neelu Kohli filed an application before the Trial Court in the suit giving rise to this appeal stating that even though the charges levelled by the petitioner-husband against her were totally false and fabricated, she had condoned those wrongs and she cherished no ill-will against her husband. She also gave undertaking to serve the petitioner with usual faithfulness and devotion indicating that she had burning desire that the petitioner – husband reconcile, resume cohabitation with her and lead a fresh life of conjugal happiness. It was also indicated that out of wedlock she had 3 grownup sons, out of whom one was going to be married but the pendency of the suit had brought such a bad name to the family that the wife was not getting a suitable bride of any decent family. She had asserted that marriage between the parties had not completely broken down and on her part, she keenly desired to go back to her husband and serve him with usual faithfulness.

31. The plaintiff-husband in support of his case had examined himself as P.W. 1 on 18.12.1999. He disclosed his age to be 48 years only. He had stated that his marriage with the respondent had been solemnized in the year 1975. The first son Nitin was born in the year 1976; the second son Nikhil was born in the year 1979; and the third son Nimit was born in the year 1983. He had stated that he along with the wife resided together till November, 1995. He had also stated that after the filing of the Suit praying for judicial separation under Section 10 of the Hindu Marriage Act on 23.11.1995. He had shifted to a flat in Chitrakoot apartment. The wife had in December, 1995 instructed the Bank prohibiting operation of the bank account by him and had also withdrawn an amount of Rs. 9 lakhs on 19.6.1996 from the account of M/s. Nikhil Rubber and deposited it in her personal account. The First Information Report was lodged on 4.7.1996 by his eldest son and an other case under Sections 420/468, IPC was lodged on 9.7.1996 by the wife against him. The third case was lodged by his own maternal uncle on 5.10.1996 relating to the incident which had taken place on 30.6.1996. It was claimed that the wife had asserted that the husband was a drunkard and characterless person. He is ‘Awara’ and ‘Fakkar’. He has come forward with the grievance that his wife used to insult him without any rhyme and reason. He claimed that she did not know Smt. Shiva Nagi. He also stated that he did not know even Sardar Amarjeet Singh Nagi. He admitted that in Delhi he had the flat 530, Greater Kailash, Part-I and used to reside whenever he was at Delhi but Shiva Nagi never resided with him. She had never taken Shiva Nagi to foreign country along with him. He stated that in Bombay the wife had shown uncalled for intimacy with Dr. Vishwanath Raut and had not shown any repentance thereafter. The activities of the wife were aimed at humiliating him. He admitted that the wife had never beaten him but on some occasions in anger had torn away his clothes. He denied the suggestion that he wanted to marry Smt. Shiva Nagi after the divorce from the respondent-wife. It was also asserted that the wife got published notices in the daily newspaper showing him to be an ex-employee of the company making allegations which lowered own his prestige.

32. It was also stated that the wife had lodged a complaint against him in Women Police Cell, Delhi under Section 498, IPC which was being considered.

33. Apart from the above oral evidence, no other witness was examined by the plaintiff in support of his case and his oral evidence was closed.

34. The wife in support of her case had examined herself as D.W. 1. She had disclosed her age on 17.1.2000 to be only 45 years. She had stated that the husband was a hot tempered person and more than often picked up quarrel with his mother and father. In 1978 after such a quarrel he was thrown out by his father from his house. Thereafter, her father and mother supported her husband and arranged for finances for setting up a factory in which his husband had done some work but never supported her with any money. The other factory was also set up by her own income. The claim of the plaintiff-respondent that in the factory his money has been invested was totally false. She stated that upto the year 1994 all of them i.e. her husband and children were living together in happiness when it came to her knowledge that Shiva Nagi, daughter of Shri Kripal Singh wanted to marry with her husband and had started meeting him. Smt. Shiva Nag, the wife of Amarjeet Singh Nagi is resident of Bombay. She has two sons who are grown up. Leaving them she used to meet her husband in hotels at Bombay and Delhi. Subsequent to the year 1994, her husband started withdrawing money from her (wife’s) account relating to the factories. The money was also withdrawn from her personal account and he purchased the flat 9/130, Greater Kailash, Part-I. Thereafter, he filed a suit for judicial separation. At that time both the husband and wife were residing together. On 18.6.1996 he all of sudden went to Delhi and on 19.6.1996 Shiva Nagi leaving Bombay went to him at Delhi and resided in the same flat. Both started residing in the said flat as husband and wife.

35. Thereafter, she lodged a report against Shiva Nagi and her husband in Delhi. Both of them did not turn up in Mahila Thana, Delhi. Apart from the aforesaid, the husband used to take Shiva Nagi with him when he visited foreign country on 13th, 14th, 15th April, 1999, the husband had taken Shiva Nagi to foreign country with him and both resided in a hotel.

36. It was also stated that the husband had given a severe beating to her and he had beaten his son also and had asked her that she should give divorce so that he may marry Shiva Nagi as he wanted to live with her. The plaintiff-husband insisted that she should divorce him as he wants to marry Shiva Nagi. She denied as incorrect the alleged incident which was claimed by the husband to have taken place in Bombay on the date on which the 50th Marriage Anniversary of his parents was being celebrated. Whole story she claimed was baseless and motivated. She unequivocally and categorically stated that she did not want an annulment of marriage. The husband was seeking the annulment of marriage with her only with the object of marrying again with Shiva Nagi. She further stated that in case the husband leaves Shiva Nagi and resides with her, she will withdraw all the cases which she had filed.

37. The wife in support of her case examined Nitin Kohli aged about 23 years her eldest son as D.W. 2, who had stated that his father was not residing with him since 1995. He had further stated that the behaviour of his mother towards his father was good and she never indulged in “Gali Galauj” as claimed. Out of three Rubber factories belonging to her mother, which were being looked after by his mother and father together, now only one factory remained with her and the other two factories had been taken over by his father. He had also stated that his father had beaten him and had also instructed his workers to beat him. A First Information report was thereafter lodged by him against his father. His father had also beaten him at the residence. Once when the father was beating his mother and he had intervened, Naveen Kohli – the father had given him a thorough beating. His father had beaten his mother as he used to reside with a lady named Shiva Nagi who was being objected to by his mother. Shiva Nagi was the wife of Sardar Amarjeet Singh Nagi resident of Bombay. Shiva Nagi was residing with his father since 1996. Smt. Shiva Nagi had not been divorced by her husband and she was residing with his father illegally. He had seen his father, residing with Shiva Nagi in premises No. S-1 30, Greater Kailash, New Delhi and 13/338, Civil Lines, Kanpur as well as 29-A, Chitrakoot Apartment, Tilak Nagar. His father had arranged his meeting with Shiva Nagi in one restaurant. He denied the incident which was claimed to have happened in Bombay involving her mother at the residence of her father while all of them had gone there in connection with 50th Marriage Anniversary. After he returned from Bombay his father had given him a thorough beating. When his mother and brother wanted to intervene, they were also beaten. If Police had not come on the spot his father might have killed him. He expressed a desire that he wanted that his father may leave Shiva Nagi and start residing with his family. His father in spite of repeated requests had refused to leave Shiva Nagi. He had told that he could leave his family but not Shiva Nagi. He denied the suggestion that he was making statement at the instance of her mother. The suggestion that he had lodged a false First Information Report has been denied as incorrect.

38. Shri Kailash Kohli aged about 62 years was examined as D.W. 3. He happened to be the elder brother of Naveen Kohli – the husband. He had deposed that the temperament of Neelu Kohli was very good. He knew the lady named Shiva Nagi. Naveen Kohli knew her from before. He had seen Naveen Kohli living with Shiva Nagi. He knew that Naveen Kohli had gone to visit foreign countries along with Shiva Nagi. He also claimed to have requested Naveen Kohli to leave Shiva Nagi and reside with his children but Naveen Kohli had told him that he should accept Shiva Nagi as his (Naveen Kohli’s) wife. Neelu Kohli according to him had never misbehaved with any member of the family. He admitted that he was the step-brother of Naveen Kohli. He was married in 1972.

39. Shri Om Prakash Kohli aged about 67 years was examined as D.W. 4. He admitted that he was the Mama of Naveen Kohli. He had stated that Neelu Kohli belonged to a respectable family and her temperament was normal.

40. Shri Nikhil Kohli the second son of Naveen Kohli was examined as D.W. 5. He denied the allegations made by the father against his mother. He in categorical terms stated that even at that time when his deposition was recorded, his father was residing with Shiva Nagi and he wanted to marry Shiva Nagi. According to him the petition for divorce had been filed to facilitate the marriage between his father and Shiva Nagi.

41. The Trial Court observed that the wife had not co-operated in the disposal of the suit and had abused the legal proceedings. Thereafter, the judgment had been reserved.

42. The aforesaid observation is not at all supported and warranted by the evidence and material brought on record. The wife had not taken any such steps which could result in restricting the progress of the suit. In fact steps had been taken by her to ensure the production of witnesses from Bombay and Delhi in support of her version but the Trial Court on erroneous assumptions had compelled the wife to remain contended with the oral evidence of the witnesses examined by her to which a reference has been made above.

43. The Trial Court after narrating the case of the parties, while disposing of Issue Nos. 1 and 2 had recorded a finding that since the defendant – wife had lodged various criminal cases against the husband and had also got him tortured through the police and had further published in the newspaper a news item declaring him to be an employee, it was apparent by the aforesaid acts that she had caused physical, mental and economical pain to the husband and harassed him which activity clearly fell within the ambit of the expression “cruelty”.

44. The Trial Court had also observed that even though the defendant-wife had alleged cruel treatment at the hands of her husband yet she had not led any solid proof which could support her case.

45. On the aforesaid findings the issue Nos. 1 and 2 were decided in favour of the plaintiff holding that the wife had given cruel treatment to the husband.

46. The Trial Court decided issue No. 3 in favour of the plaintiff-husband holding that the wife had levelled false allegations against the husband and had caused him economical, physical and mental harassment.

47. The Trial Court decided issue Nos. 4 and 6 in the negative. Issue No. 4 was to the effect as to whether the wife had committed adultery and issue No. 6 was to the effect as to whether the plaintiff had kept Shiva Nagi as his concubine and its effect. So far as the issue No. 7 was concerned it was about the maintainability of the suit. The Trial Court held that the plea of res judicata could not be attracted and the dismissal of the plaintiffs suit filed under Section 10 of the Hindu Marriage Act had no effect.

48. While deciding issue Nos. 8 and 9 the Trial Court came to the conclusion that marriage had been irretrievably broken and the only option left was to grant a decree of divorce and annulment of marriage. On the question of permanent alimony, the Trial Court was of the view that a lump sum payment of Rs. 5 lakhs to the wife would meet the ends of justice.

49. The learned Counsel for the appellant-wife had strenuously urged that the wrong approach of the Trial Court in considering the real issue and the vital facts going to the root of the matter has resulted not only in vitiating the findings returned by it but has also resulted in manifest miscarriage of justice. It has been urged that from the very beginning the wife had been saying that in spite of her forgetting the past and condoning the cruelty with which she was meted out by her husband, the husband had been persistently indulging in matrimonial offences besides the activities which amounted to breach of trust which had also resulted in pecuniary loss to the wife causing great mental pain and discomfort to her and further that such a husband who voluntarily had stooped down with the oblique motive giving preference to living in sin than looking after his family and maintaining good relations with his wife and children, could not be allowed to take advantage of the wrongs for which he himself was responsible.

50. It is contended that in the circumstances of the present case the husband could not be allowed to complaint that his wife was guilty of doing an act causing mental cruelty to the husband and further to complaint that by such an act he had suffered mental pain and agony as a result of which married life had been broken down and he was not expected to live with his wife.

51. The learned Counsel for the appellant has further contended that it was the husband who had been committing positive wrongs amounting to “misconduct uncondonable” for the purpose of Section 23(a) of the Hindu Marriage Act, 1955 which justified denying relief under Section 13(1)(a) of the aforesaid Act and remedying the wrong by reversing the impugned decree.

52. Learned Counsel for the appellant has also urged that the appellant wife is still prepared to live with the husband provided he behaved properly and snaps his relationship with Shiva Nagi. It is claimed that none else except the husband has to be blamed for such an unhappy and unfortunate situation which has been brought about with the negligence and reckless actions of the husband. It is also urged that the wife had no option but to take recourse to law availing the remedies aimed at preventing the criminal activities of the husband which severely affected her. It is urged that taking recourse to legal remedy available to a wife to save her person or property even against an erring husband which remedy cannot be demonstrated to be based on false allegations or being motivated cannot be taken to result any mental cruelty so as to justify the grant of a decree of divorce or annulment of marriage.

53. The learned Counsel for the respondent has tried to support the impugned decree on the reasonings of the Trial Court.

54. We have given our anxious consideration to the rival submission made by the Counsel for the parties.

55. Although the grounds of divorce have been liberalized with the enforcement of the Marriage Laws (Amendment) Act, 1976, they nevertheless continue to form an exception of the general principle favouring the continuation of the marital tie. Further, while exercising the matrimonial jurisdiction, the Court is not merely concerned with the rights of the private parties but it has to keep in view the matters of the public policy as well. In spite of the fact of the divorces have now been made by the Legislature much less stringent, it is always in public interest that marriage contemplated under the act as an institution of matrimony which under the Hindu Law is a sacrament and not a mere socio-legal contract and is not performed for mere emotional gratification and not a mere betrothal but its contents are religious, should not be annulled on lighter grounds.

56. It may be hazardous and on facts of a case even unjustified to lay down as a general principle of law the necessity or otherwise of the element of intention as a requirement sine qua non for establishing or rejecting a case for judicial separation or divorce on the basis of cruelty. Each case depends on its own facts and must be judged on their basis. The concept of cruelty has varied from time-to-time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the spouses regard being had to their culture, temperaments, status in life and state of health of the parties, interaction between them in their daily life and numerous other factors which cannot be brought in and confined to an exclusive or inclusive definition.

57. It must not however be lost sight of that the existence of cruelty depends not on the magnitude but rather on the consequences of matrimonial offence of cruelty actual or apprehended. Cruelty as envisaged under the Act is not restricted to acts of physical violence and may extend to behaviour which may cause pain and injury to the mind as well so as to render the continuance in matrimonial home and ordeal where it becomes impossible for them to live together without mental agony, torture or distress. The expression “cruelty” as envisaged under Section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes his being treated with cruelty whether physical, mental, social or otherwise but the acts complained of must be more serious than ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underlying requirement of the provision.

58. There is a long line of decisions holding that false, scandalous, malicious, baseless and unproved allegations made by one spouse whether in letters or other writings or plaint or a written statement or even in appeal or by any other mode amounts to cruelty. Such allegations may result in maligning either of the spouse or his/her near relations. Such allegations do cause great mental agony either to the husband or the wife as the case may be. False complaint to police or other authorities have also the same result. The Court has ample jurisdiction to take into consideration even the subsequent events. Such scandalous and false matters, even if, it is brought on record subsequent to the filing of the petition or written statement can be taken into consideration. It is the cumulative effect of all the acts and conduct which has to be taken into consideration for finding out whether the behaviour of the erring spouse falls within the ambit of cruelty as envisaged under Section 13(1-a) of the Hindu Marriage Act. What may amount to cruelty in one case may not amount to cruelty in another case. The Court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and the manners of the parties. Cruelty may consist of a single act or conduct of the respondent or it may consist of a series of acts, none of which by itself can be said to constitute cruelty but in their totality they may amount to cruelty.

59. Even though a very wide meaning has been given to cruelty, yet every act or conduct of one party which makes the other unhappy or miserable cannot amount to cruelty. This could not have been the legislative intent is obvious from the fact that the Hindu Marriage Act recognizes the institution of marriage as known and understood under the Hindu Law. This is clear from Section 4 of the Act which stipulates that save as otherwise expressly provided in the Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act and further that any other law in force immediately before the commencement of this Act shall cease to have effect insofar as it is inconsistent with any of the provisions contained in this Act.

60. The overriding effect of the Act does not militate against the concept of the Hindu marriage being a sacrament. The mere fact, therefore, that the erring spouse is moody, whimsical, mean, stingily, selfish, boorish, irritable, inconsiderate, etc., will not be sufficient to amount to cruelty. Similarly, merely neglect or want of affection, expression of hatred will not be a conduct constituting cruelty. The idiosyncrasies of the wife some time may not amount to cruelty, even though they make the husband unhappy. There may be occasions where the conduct of wife may lead to unpleasantness but such unpleasantness alone will not amount to cruelty and this may reasonably fall within the ambit of ordinary wear and tear of matrimonial life which is not sufficient for establishing cruelty as envisaged under the Act. However, in matrimonial life, acts and conducts amounting to mental cruelty abound and have sometimes more devastating effect than the acts of physical violence.

61. We may notice at this stage that intention to be cruel is not an essential element of cruelty as envisaged under Section 13(1-A) of the Hindu Marriage Act. If bitter waters are flowing it is not necessary to enquire from which source they spring. The intention or motive behind the cruelty has lost significance in the changed society and the social atmosphere of the present day. It is sufficient that if the cruelty is of the type which indicates that the relations between the spouses had deteriorated to such an extent or the conduct of one or the other is such that it has become impossible for them to live together without mental agony. In marital matters, the feelings and attitudes of minds are material.

62. Under the matrimonial law the “condonation” means the refers to only a conditional forgiveness. Such condonation implies the condition that no further matrimonial offence shall be committed. Where continuing course of conduct on the part of the spouse which tantamount to causing mental cruelty is made the basis of relief then no condonation can be pleaded because the subsequent and the latest act of cruelty would wipe out the effect of condonation of earlier act or acts of misconduct. The acts of cruelty even though condoned or deemed to have been condoned may be relied upon for the purpose of showing the persistent conduct of such party considering the subsequent acts of cruelty not followed by any cohabitation or other act of condonation.

63. We are conscious that on the one hand there are old traditional ideas of family unity, the bond of kinship demanding total allegiance as envisaged in a Joint Hindu Family as known to Hindu Law and on the other hand there are ideas of freedom, liberty and equality which are seeping in deeper and deeper even in the joint households. Fission and not the union has become the modern trend in the fast deteriorating economic conditions giving an impression that the happy married life is only a mirage. The effect of the social and human tussle apparent in the present day society is that the couples living in the joint family seek freedom from the shackles of kinship bond which are still holding. More often than not, the couple try to shed their kinship bonds but more often than not they do not succeed; the centuries old traditional kinship bonds are hand to shed. This leads to friction. In such a setting the wife for whom there is no kinship bond to hold her to her husband’s family except that she is wedded to son of a joint family often finds it difficult to adjust herself, and difference arises and get accentuated. Sometimes these differences become so acute that either wife leaves the household or is turned out of it. This obviously requires deep understanding capacity to adjust. Both the husband and wife have to make every possible effort in this regard to save the matrimonial tie.

64. The Apex Court in its decision in the case of V. Bhagat v. D. Bhagat (Mrs.), II (1993) DMC 568 (SC)=(1994) 1 SCC 3337, had observed as follows:

“……..Mental cruelty in Section 12(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made………”

65. In its decision in the case of S. Hanumantha Rao v. S. Ramani, I (1999) DMC 628 (SC)=III (1999) SLT 318=(1999) 3 SCC 620, the Apex Court had observed as follows:

“……..Before we deal with the submission it is necessary to find out what is mental cruelty as envisaged under Section 13(1)(i-a) of the Act. Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party……..”

“………..the appellant cannot be allowed to take advantage of a wrong done by his wife of which he himself was responsible. In such a case the appellant cannot be allowed to complaint that his wife is guilty of committing an act of mental cruelty upon him, and further by such an act, has suffered mental pain and agony as a result of which married life has broken down, and he is not expected to live with his wife ……….”

66. In its decision in the case of Chetan Dass v. Kamla Devi, I (2001) DMC 714 (SC)=III (2001) SLT 420=(2001) 4 SCC 250, the Apex Court while considering the implication arising under Section 23(1), Clauses (a), (b) and (e) of Hindu Marriage Act, had observed as follows:

“…..Learned Counsel for the respondent submits that in certain situations, relief would be denied to the petitioner where it is found that he is taking advantage of his own wrong for the purposes of making out a case to obtain the decree. He has drawn our attention to Section 23(1), Clauses (a), (b) and (e) of the Hindu Marriage Act which are quoted below:

“23. Decree in proceedings—(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that—

(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in Sub-clause (a), Sub-clause (b) or Sub-clause (c) of Clause (ii) of Section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

(c) to (d) xxx xxx xxx

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.”

“…..Let the things be not misunderstood nor any permissiveness under the Iaw be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings that it would be quite easy to push and drive the spouse to a corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrong-doer, and walk away out of the matrimonial alliance on the ground that the marriage has broken down. Lest the Institution of marriage and the matrimonial bonds get fragile easily to be broken which may serve the purpose most welcome to the wrong-doer who, by hear, wished such an outcome by passing on the burden of his wrong-doing to the other party alleging her to be the deserted leading to the breaking point …….”

67. The Trial Court in the present case has dealt with the question relating to the cruelty raised by the husband in a very perfunctory manner altogether ignoring the context in which the allegations and counter-allegations had been made. Instead of giving any reasoning and property evaluating the evidence on the record in a correct perspective, the Trial Court has straightaway jumped to the conclusion that since the wife had got registered several criminal cases against the husband and had got him arrested at the instance of the police and further had got published a news item showing to be an employee, these activities had resulted in physical, mental and economic pain to the husband which fell in the category of mental cruelty.

68. The aforesaid conclusions appear to have been drawn without taking into account the context. So far as the publication of the news item referred to above is concerned, the status of husband in the registered company was only that of an employee and if any news item was published in such a situation it could not by any stretch of imagination be taken to have lowered down the prestige of the husband.

69. It may be noticed that in one of the news items what had been indicated was that in the company Nikhil Rubber (P) Ltd., Mr. Naveen Kohli was only a Director along with Mrs. Neelu Kohli who held 94.5% shares of Rs. 100/- each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the association of Nikhil Rubber (P) Ltd. had caused immense loss of business and goodwill. He has stealthly removed produce of the company, besides diverted orders of foreign buyers to his proprietorship firm M/s. Navneet Elastomers. He has opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the Company. Statutory authority – Companies Act had refused to register documents filed by Mr. Naveen Kohli and had issued show-cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the act of Mr. Naveen Kohli.

70. We are of the considered opinion that the aforesaid news items cannot by any stretch of imagination be taken to have resulted in mental cruelty which may warrant the grant of a decree of divorce annulling a marriage which under the Hindu Law is a sacrament. A news item issued to protect the interest of the company and to protect the interest of its employees and major share holders cannot be said to be illegal or motivated.

71. The other news item which had been published by the wife describing herself to be the sole proprietor of M/s. Nitin Rubber contained a recital that Mr. Naveen Kohli was working in the said proprietorship firm as a Manager and had abandoned his job since May, 1996 and had not resumed duties. The news item cautioned that since Naveen Kohli is no more in the employment of the firm anybody dealing with him shall be doing so at his own risk, his authority to represent the firm has been revoked and none should deliver him orders, cash, cheques or drafts payable to the firm.

72. As has already been noticed hereinabove, the husband had filed a suit being suit No. 195 of 1997 for declaration of the title and injunction which is claimed to be still pending. In such a situation there could be no occasion for Naveen Kohli to dispute the sole proprietorship of Smt. Neelu Kohli. So tar as M/s. Nitin Kohli was concerned, he could not, therefore, have any status other than of an employee. So far as Nitin Rubber (P) Ltd., was concerned, the news item describing his correct status in the company Nitin Rubber (P) Ltd., could not be taken to have resulted in lowering down his prestige or result in causing mental cruelty. The finding of the Trial Court on this aspect of the matter is not at all sustainable in law.

73. So far as the lodging of the First Information Report referred to in the impugned judgment is concerned, we have perused the copies of the First Information Reports. The criminal proceedings initiated against the husband have not concluded as yet. It will not be appropriate to make any comment on the truthfulness or otherwise of the allegations made in the First Information Report as they may cause prejudice but this much cannot be overlooked that the offences claimed to have been committed by the husband were of a serious nature. If the husband of his own accord had stooped down to commit such acts in spite of the protest of the wife which acts amounted to offences, he had to think himself for the plight in which he stood placed. The action of the wife in the peculiar facts and circumstances of the present case could not be taken to be such which may warrant the annulment of marriage. The marriage and criminal activities of the husband and the remedial action sought for by the wife as available in law had to be kept apart.

74. We have perused the deposition of the wife and the son as well as the other relative who had been examined in support of the wife’s case. The deposition of the wife as well as the son Nitin Kohli does inspire confidence and both the witnesses appear to be truthful witnesses. Nothing damaging could be extracted from their cross-examinations and crucial facts proved by them based on their own personal knowledge pointed out the reckless attitude of the husband his burning desire to live in sin along with Shiva Nagi. The wife had tried to summon Sardar Amarjeet Singh and other persons from Delhi and Bombay in support of her case about the involvement of her husband with Shiva Nagi and his desire to marry her but this opportunity was denied to her by the Trial Court. In the absence of annulment of marriage between Shiva Nagi and Sardar Amarjeet Singh even if divorce had been granted as sought for by the husband. He could not marry Shiva Nagi so long as she continued to be legally wedded wife of Amarjeet Singh. The statement of the wife and his son Nikhil had a ring of truth in them and their statements are reliable. The Trial Court had gone astray in not evaluating the evidence on merit and straightaway jumping on the conclusion that the husband had succeeded in establishing cruelty justifying a decree as prayed for even though the evidence and the material brought on record did not warrant such a conclusion.

75. It may be noticed that the Trial Court had granted a lumpsum alimony of Rs. 5 lakhs to the wife for her life and the decree of annulment of marriage was to become effective on the payment of the aforesaid amount. The amount was paid on 17.2.2003 just two days after the pronouncement of the judgment. This shows that the husband was not in dearth of money and as pointed out by the wife had enough money at his disposal which was readily available.

76. Taking into consideration the totality of the circumstances as brought to record, the submissions made by the learned Counsel for the appellant referred to hereinabove, cannot be said to be without any substance and are acceptable.

77. The actions of the respondent-husband complained of by the wife-appellant in the circumstances of the present case clearly fell within the ambit of “positive wrongs” as noticed in the decision of the Apex Court in the case of T. Srinivasan v. T. Varalakshmi (Mrs.) reported in (1998) 3 SCC 112 and amounted to “Misconduct” uncondonable for the purpose of Section 23(1)(a) of the Hindu Marriage Act, 1955. The Trial Court, therefore, ought to have refused to grant the decree taking into account the own fault of the husband.

78. In view of our conclusions indicated hereinabove, sufficient ground has been made out for the interference in the impugned decree.

79. In the result, this appeal succeeds and setting aside the impugned decree the suit filed by the husband – respondent seeking a decree of divorce and annulment of marriage in question is dismissed.

80. However, there shall be no order as to costs.

Appeal allowed.

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