Court:RAJASTHAN HIGH COURT
Bench: JUSTICES Ajay Rastogi & Dinesh Chandra Somani
RAMESHWAR PRASAD Vs. SUGNA DEVI On 4 July 2017
Filing of false complaint under Section 498A, IPC by Wife is sufficient ground to constitute matrimonial cruelty.
The applicant/appellant has preferred this appeal under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 30.4.2009 passed by Judge, Family Court No. 2, Jaipur in Case No. 192/2003, whereby, the petition filed by the applicant/appellant under Section 13 of the Hindu Marriage Act for dissolution of marriage, has been dismissed.
2. The material facts necessary for disposal of this appeal are that the appellant filed a petition under Section 13 of the Hindu Marriage Act, 1955 on 31.5.2003 against the non-applicant/respondent in Family Court No. 2, Jaipur on the ground of cruelty and desertion, and prayed to grant a decree of divorce. The applicant/appellant averred that the marriage between the aforesaid parties was solemnized on 8.4.1968 in a Mass Wedding Ceremony held in village Kalwada, District Jaipur. At the time of marriage, both the parties were minor and no dowry articles were taken by father of the applicant, rather he gave Rs. 2,000 to father of the non-applicant. After 10 years of the marriage, when the parties became major, father of applicant-husband contacted Chhitar, who happens to be brother-in-law (Jija) of the non-applicant/wife for Gona, who demanded money. When father of the applicant/husband declined to pay money, then Chhitar became furious and since then, he hates family of the applicant. In presence of persons of the community, Chhitar gave a threat that he will not let this couple settle down. However, Gona ceremony took place in the year 1979 under these controversies. Thereafter, non-applicant/wife gave birth to two children out of this wedlock but unfortunately both could not survive. Non-applicant/wife lived with the applicant up to year 1993, but no more issue born during this period.
3. It is also averred that appellant is the only male child of his parents. Brother-in-law of non-applicant, Chhitar resides in front of the house of the applicant and he has cordial relations with non-applicant. Under ill-advice and on instigation of her brother-in-law (Jija Chhitar), non-applicant/wife was always cruel with the applicant and his parents, and misbehaved with them on trivial matters with intent to harm reputation of the applicant in society, and thereby caused mental agony. Not only this, the non- applicant never cooked food for old parents of the applicant and she used to get them out of the house in cold winter.
4. The applicant also averred that the non-applicant used to go to her maternal house without information and whenever, the applicant went to his in-laws house to bring her back then, the non-applicant, her brother Kaluram and his wife and Gopal insulted and gave him beatings in the market, after consuming liquor.
5. The applicant/appellant also averred that under ill-advice of her Jija, the non-applicant/wife always neglected the applicant. Several times, the applicant brought back the non-applicant from her maternal house, with intervention of respectable persons of the society, but after some time, she used to quarrel with parents of the applicant and went back to her maternal house. When the applicant objected to the conduct of the non-applicant and threatened her brother-in-law Chhitar, then she lodged a false report on 8.3.1993 in Police Station, Shastri Nagar for offence under Section 498A and after investigation, police filed a charge-sheet against them in the Court. The learned Trial Court convicted the applicant and his parents in year 1997. News of the Court’s judgment was got published in the newspapers, which tarnished and damaged their respect in the society and caused mental agony. Thereafter, appeal was filed against the judgment, which was allowed by Additional Sessions Judge on 1.4.1998 and they were acquitted of the charge.
6. Applicant-appellant further averred that the applicant made a complaint to his caste Panchayat. The Panchas called both he parties through notice but non-applicant did not turn up as she was not willing to live with the applicant. To harass the applicant, non-applicant filed a complaint under Section 125 of Cr.P.C. The Court made several efforts for restitution but the non-applicant refused outrightly. The non-applicant has willingly deserted the applicant for last 10 years, without any reasonable cause. The applicant went to his in-laws house on 30.5.2002 to bring back the non-applicant, but she insulted him. After consuming liquor, brother-in-law Kalu quarreled with the applicant and insulted him, and in last he prayed to grant a decree of divorce in his favour.
7. The non-applicant/respondent filed her written statement admitting the fact that her marriage took place with the applicant before about 25 years in village Kalwada, Gona ceremony took place after 10 years of marriage but indisputably, non-applicant lived with the applicant upto year 1993. Non-applicant also admitted that she approached the Court for her maintenance and she also an FIR against applicant and his relations, in Police Station, Shastri Nagar for offence under Section 498A, and she denied all other material averments made by the applicant in the divorce petition. She further averred that the applicant and his father demanded dowry at the time of Gona. It was wrong to say that her Jija (Brother-in-law) Chhitar ever demanded money from the applicant. The relations did not remain cordial because demand of dowry made by applicant and his father, could not be satisfied and the ceremony of Gona took place with intervention of the persons of caste community.
8. It is also averred that Jija (Brother-in-law) of the non- applicant, Chhitar is an old person having wife and young aged children. The applicant and his family members used to deny food and gave beatings to the non-applicant and thereby, caused mental agony to the non-applicant.
9. The non-applicant further averred that when she went to her maternal house on the occasion of birth of nephew, the applicant brought a lady, named Dhanni to his house and, since then he is living with her till today, and who gave birth to 3-4 children. The non-applicant denied the allegation of mal-treatment and averred that she never mal-treated the applicant and his parents, rather she always served them. She also averred that nata marriage of the applicant with Dhanni, caused mental cruelty, and which caused her to leave the matrimonial home. It is also averred that in compelling circumstances, she filed an application in the Court for granting maintenance. She also averred that applicant and his family members tortured her for dowry, gave beatings to her and brought other woman, and thereby deserted the non-applicant. The applicant also attempted to burn non-applicant, therefore, the complaint was made to the police, and in last she prayed to dismiss the divorce petition filed against her, with cost.
10. On basis of the pleadings of the parties, learned Trial Court framed following issues:
Whether the non-applicant/wife committed cruelty with the applicant/husband ?
Whether the non-applicant/wife deserted the applicant/ husband without any reason for last 10 years ?
11. In support of his case, the applicant/appellant examined Rameshwar (PW-1), Chhoturam (PW-2), Laduram (PW-3) and Mahesh Kumar (PW-4) in oral evidence and exhibited three documents. Non-applicant/respondent examined herself as Sugna Devi (DW-1). After hearing the parties, learned Family Court dismissed the divorce petition filed by the applicant/appellant, hence this appeal.
12. Learned Counsel for the appellant contended that learned Family Court has failed to appreciate that the respondent/wife treated the appellant with cruelty by her disrespectful behaviour and attitude, whenever he went to his in-laws house, to bring her back to her matrimonial home. She misbehaved rather abused the appellant before respected members of the society and as such insulted him, which amounts to cruelty.
13. Learned Counsel for the appellant also contended that learned Family Court has committed material error in having failed to appreciate that the respondent/wife filed a false criminal case under Section 498A of IPC against the appellant and his parents, and the learned Trial Court wrongly punished them, and the learned Appellate Court acquitted the appellant and his parents. Filing of false criminal case by the respondent against the appellant and his parents, caused mental cruelty. Learned Counsel also submitted that the news of conviction of the appellant and his parents by the learned Trial Court, was published in newspaper which caused mental agony and harassment to the appellant, but the learned Family Court dismissed the divorce petition ignoring the material facts as mentioned above, and passed the impugned judgment on surmises and conjectures, without application of mind.
14. Learned Counsel for the appellant also contended that Sugna (DW-1), respondent herself stated on oath that she has been living separately since 8.3.1993 i.e. for last 16 years and during this period, no co-habitation took place between the parties. Therefore, the factum of desertion by the respondent for last 16 years, is well proved, even then the learned Family Court wrongly decided the issue No. 2. Thus, the impugned judgment and decree deserves to be quashed and set aside. In last, learned Counsel for the appellant prayed to allow the appeal and to quash and set aside the impugned judgment and order, and to pass the decree of divorce in favour of the applicant/appellant. In support of his contentions, learned Counsel for the appellant placed reliance on:
I (2002) DMC 552 (DB)=2001 (3) WLC (Raj.) 689, Smt. Rukmani Devi v. Badri Narayan.
In 2007 (3) WLC 133 (Raj.), Smt. Alka Dadhich v. Ajay Dadhich.
I (2002) DMC 666 (DB)=2002 (1) WLC (Raj.) 717, Rakesh Sharma v. Surbhi Sharma.
15. Per contra, learned Counsel for the respondent strongly refuted the arguments of the learned Counsel for the appellant and contended that the appellant/husband has utterly failed to prove the allegations of cruelty and desertion levelled by him against the respondent/wife. Moreover, it is proved that the appellant has performed nata ceremony with another woman named Dhanni and he is living with her, who gave birth to 3-4 children out of this wedlock, which forced the respondent/wife to leave the matrimonial home in the year 1993, and since then she is living in her maternal house due to compelling circumstances.
16. Learned Counsel for the respondent also contended that the appellant cannot be permitted to take advantage of his own wrong. Learned Counsel further contended that the alleged cruelty with the appellant and his parents, was committed about 10 years ago, prior to the institution of the divorce petition. The incidents alleged by the appellant are not of recurring nature and there is no proximity with filing of the petition. Therefore, the alleged incidents of long past, have been condoned by the appellant and thus, does not constitute an act of cruelty. Learned Counsel supported the impugned judgment and decree passed by the learned Family Court, and prayed to dismiss the appeal being devoid of any substance. In support of his contentions, learned for the respondent placed reliance on:
In II (2017) DMC 28 (SC)=III (2017) SLT 317=AIR 2017 Supreme Court 1316, Suman Singh v. Sanjay Singh.
17. We gave anxious consideration to rival contentions of learned Counsel for the parties and carefully scanned the material and record of the case.
18. It is admitted fact that the marriage between the parties was solemnized on 8.4.1968 in village Kalavada, at the time of marriage, both the parties were minor and Gona ceremony took place after 10 years of the marriage, after interference of the persons of caste community and from this wedlock, the respondent/wife gave birth to two children and both could not survive. It is also admitted fact that the respondent/wife approached the Court for maintenance under Section 125 of Cr.P.C. and also lodged an FIR implicating the appellant and his parents, in Police Station Shastri Nagar for offence under Section 498A of IPC. It is not disputed that they lived together up to the year 1993 and the learned Trial Court convicted the appellant and his parents under Section 498-A of IPC, but the appeal preferred by the appellant and his parents, was allowed by Additional Sessions Judge No. 1, Jaipur City, Jaipur on 1.4.1998, and the Appellate Court acquitted all of them.
19. Petitioner Rameshwar Prasad (PW-1) deposed that his marriage was solemnized in the year 1968 according to Hindu rites. In marriage, his father gave Rs. 2,000 to father of Sugna (respondent/wife). No dowry articles were given in the marriage. Jija (brother-in-law) of Sugna, Shri Chhitar was mediator in the marriage. In 1978, when father of Sugna was approached for Gona, he said to call Chhitar. When met with Chhitar, he demanded Rs. 5,000, and gave a threat that he will not let this couple to settle down. For some time, they lived together, but thereafter, non-applicant used to go to her maternal house on the ill-advice of Chhitar and his wife. Whenever the witness went to his in-laws house to bring back the non-applicant, then her brother Gopal, Kalu and Bhabhi (sister-in-law) insulted and abused him. The witness used to understood her and brought her back then, after some time Sugna used to speak loudly and give abuses. She didn’t cook food in time for old parents of the witness and used to abuse them. During this period, out of this wedlock, Sugna gave birth to two children, who could not survive. Sugna had cordial relations with her Jija and sister and used to go to them. One day, he saw Sugna and Chhitar in objectionable condition. He seriously objected to it, then, in counter and on ill- advice of Chittar, she lodged an FIR on 8.3.1993, against the witness and his parents in Police Station, Shastri Nagar. The witness was acquitted in the case and he made a complaint to the caste Panchayat, who issued notice to Chhitar, Sugna and her brother, but they did not turn up. He made several efforts to live together with Sugna. The non-applicant is not residing with him since 8.3.1993 and the fact is that she is living in Shivaji Nagar with someone else.
20. The witness proved copy of decision of caste Panchayat and copy of judgment of acquittal passed by the Appellate Court.
21. In cross-examination, the witness Rameshwar (PW-1) stated that the non-applicant is residing with a boy named Amar Chand and denied the suggestion that Amar Chand is son of non- applicant’s sister. The witness also denied the suggestion that he performed marriage with Dhanni Devi and got children from her. Chhoturam (PW-2) is relative of the applicant/appellant, who deposed that about 13-14 years ago, caste Panchayat took place regarding dispute of Gona. We made several efforts for restitution of Sugna and Rameshwar, but she denied to go to the house of Rameshwar.
22. Laduram (PW-3) is father of the applicant/appellant. The witness deposed that the marriage of Rameshwar and Sugna was solemnized 35-36 years ago, and Gona ceremony took place after 8-9 years of the marriage. After Gona, Sugna lived in matrimonial home with the appellant for 8-9 years, and gave birth to two children, who could not survive. He does not know, as to why Sugna is not living in his home. Caste Panchayat gave a verdict that Sugna will live in the house of Rameshwar but she did not obey. Presently, Sugna is living with son of her sister, in Shivaji Nagar. The witness also stated that in a case instituted by Sugna, they were convicted and sentenced to one year imprisonment, but later on they were acquitted by the Appellate Court. In cross- examination, the witness admitted that Sugna was not present in caste Panchayat. The witness denied the suggestion that Rameshwar has solemnized second marriage with Dhanni.
23. Mahesh Kumar (PW-4) is first cousin of the appellant. The witness deposed that 13-14 years ago, Sugna was living in house of Rameshwar, situated in Shastri Nagar and Rameshwar was living in Jodhpur. Sugna used to speak disrespectfully with her parents-in-law. Under ill-advice of her Jija, Sugna lodged a case against Rameshwar, in which they were convicted, and later on they were acquitted in appeal. In cross-examination, the witness stated that he has no knowledge, if the applicant would have solemnized second marriage with a woman, named Dhanni, and is having 6 children from her.
24. In rebuttal of above evidence, Sugna Devi (DW-1), the respondent herein, has deposed that 30 years ago, she was married in childhood with Rameshwar. They lived together for 10- 12 years after marriage, and out of this wedlock, she gave birth to two sons (twins), who died after two hours of their birth. The witness also deposed that almost everyday, the applicant and his family members used to beat her for trivial matters. She gave due respect to her parents-in-law and all family members. Her father made no demand at the time of Gona, rather he gave some ornaments to her. She used to do all domestic work in her matrimonial home. She doesn’t have any illicit relations with her Jija, he is like her father. She instituted dowry case on her own. The witness also deposed that the applicant does not want to keep her with him, and he brought second wife named Dhanni, and is having 2-3 children from her. The applicant gave her beatings and poured oil, over her person. Police came on spot on information of someone, report was lodged in police station and since then, she is living in her maternal house for last 15 years, and during this period, the applicant never came to bring her back. She is still ready and willing to live with the applicant, as his wife.
25. In cross-examination, the witness admitted that she is living separately from the applicant for last 15-16 years, and the house of her sister and Jija is situated in front of the house of her husband. Witness admitted that her husband was annoyed with her Jija Chhitar but she does not know the reason thereof. The witness admitted that her husband arranged for her operation, when she was living with him. The witness also admitted that during last 15-16 years, they never lived together and she denied the suggestion that she would have started litigation at the instance of her Jija.
26. From perusal of pleadings of the parties and oral as well as documentary evidence produced by them, this is an admitted fact that the respondent/wife lodged an FIR with Police Station, Shastri Nagar, against the appellant and his parents for offence under Section 498A of IPC. After investigation, the police filed charge-sheet against them and they were prosecuted. After conclusion of trial, the appellant and his parents were convicted and sentenced to one year’s imprisonment by the learned Trial Court. The appellant and his parents preferred appeal against the judgment of conviction and order of sentence passed by learned Trial Court, which was allowed by Additional Sessions Judge No. 1, Jaipur City, Jaipur on 1.4.1998, and the Appellate Court acquitted the accused/appellant and his parents.
27. In Smt. Rukmani Devi v. Badri Narayan (supra), the learned Family Court granted the decree of divorce in favour of the husband-respondent on the ground of cruelty, which was assailed by the appellant/wife before the High Court. A criminal case under Sections 498A and 406 of IPC was registered against the husband and his relations on the basis of report of the wife. After investigation, charge-sheet was filed but the learned Metropolitan Magistrate, New Delhi discharged the accused persons on the ground that Courts at Delhi has no jurisdiction. The wife did not pursue criminal actions further. Coordinate Bench of this Court observed that the wife-appellant does not want to live with the husband and an attempt was made by the learned Family Court to pursuade the parties to live together, but the wife-appellant did not agree to reside with the husband respondent. In such circumstances, the Coordinate Bench did not see any illegality in the findings arrived at by the learned Family Court and dismissed the appeal filed by the wife.
28. In Smt. Alka Dadhich v. Ajay Dadhich (supra), the husband alleged that the wife misbehaved with the parents of the husband. She used to wander bare-headed in front of the parents and sit in open verandah, only in petticoat-blouse. She used to talk to her in-laws in filthy language and used to defy directions of husband, and gave threatening to implicate the husband and entire family in false cases, and to commit suicide after jumping from roof of the house. The wife also lodged a criminal case against the husband and his family members on the allegation of demand of dowry. Coordinate Bench of this Court was satisfied on the material on record that the relationship between the parties had deteriorated to such an extent, due to conduct of the wife that it would be impossible for them to live together without mental agony, torture or distress and dismissed the appeal filed by the wife.
29. In Rakesh Sharma v. Surbhi Sharma (supra), the husband was seeking divorce on ground of desertion and cruelty of wife. Wife filed the petition for judicial separation. Learned Trial Court allowed the husband’s petition and passed a decree of judicial separation instead of decree of divorce. The fact of wife residing with parents was not disputed. No reason for desertion was established in evidence adduced by the wife, and there was no reliable evidence of cruelty or adultery or demand of dowry on part of the husband. Wife made no attempt to return to matrimonial home and the learned Trial Court itself held that there was no chance of re-union. Coordinate Bench of this Court substituted the decree of judicial separation, by decree of divorce.
30. In Suman Singh v. Sanjay Singh (supra), respondent-husband filed a petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of date of petition. Hon’ble the Apex Court held that incidents alleged to have occurred 8-10 years prior to the petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with filing of petition. It is also held that few isolated incidents of long past and that too found to have been condoned due to compromising behavior of parties, cannot constitute an act of cruelty within meaning of Section 13(1)(ia) of Act.
31. It was husband who withdrew from company of wife without reasonable cause and the husband is not entitled to decree of dissolution of marriage. Whereas, in present case, the appellant/husband filed a petition on 31.5.2003 seeking divorce on the ground that the respondent/wife was always cruel to him and his parents, and misbehaved with them on trivial matters with intend to harm reputation of the appellant in society. It is also alleged that the respondent/wife never cook food for his old parents and she used to get them out of the house in cold winter. It is also alleged that the respondent/wife used to go to her maternal house without information, and whenever the appellant went to his in-laws house to bring her back then, after consuming liquor, the respondent/wife, her brother Kalu and his wife, and Gopal insulted and gave him beatings in the market.
32. It was also alleged that when he objected to the conduct of the non-applicant, and threatened her brother-in-law Chittar, in counter she lodged a false report in Police Station, Shastri Nagar for offence under Section 498A of IPC and after investigation, police filed a charge-sheet against the applicant and his parents in the Court. The learned Trial Court convicted them and news of the Court’s judgment was got published in the newspapers, which tarnished their image in the society and caused mental agony. But as there was no material to book them, an appeal filed against the judgment of conviction and order of sentence, was allowed by the Appellate Court and they were acquitted of the charge. Due to change in facts and circumstances of the case, the law laid down by the Apex Court in this case, is not of much help to the respondent.
33. In K. Srinivas v. K. Sunita reported in X (2014) SLT 126=(2014) 16 SCC 34, the question before the Apex Court was whether filing of criminal complaint for offences under Indian Panel Code and Dowry Prohibition Act, 1961 by wife, whereby the husband and his family members were acquitted, would amount to cruelty for the purpose of dissolution of marriage. The Apex Court held that filing of false complaint by wife to embarrass the husband and family members, in the given facts and circumstances constituted cruelty as postulated in Section 13(1) (ia) of Act. In present case, it is admitted fact that the respondent-wife lodged an FIR against the appellant and his parents in Police Station, Shastri Nagar for offence under Section 498-A of IPC. This is also not in dispute that the Additional Sessions Judge No. 1, Jaipur City, Jaipur, the Appellate Court acquitted them for the charge.
34. Taking support from the law laid down by the Apex Court in K. Srinivas v. K. Sunita (supra), we are of the opinion that filing of criminal complaint for offence under Section 498-A of IPC by the respondent wife, whereby the appellant-husband and his parents were acquitted, amounts to cruelty for the purpose of dissolution of marriage. Filing of false complaint by the wife is sufficient to constitute matrimonial cruelty.
35. From holistic analysis of the evidence produced by the parties, and also the indisputed fact that respondent-wife lived with the appellant-husband upto year 1993, it is proved that in the year 1993, the respondent-wife lodged an FIR against the husband and his parents in Police Station, Shastri Nagar for offence under Section 498-A of IPC, in which the appellant- husband and his parents were acquitted by the Appellate Court in the year 1998. It is also not in dispute that even after culmination of criminal proceedings, the respondent-wife did not make any attempt to return to her matrimonial home, and thereby deserted the appellant/husband without any reason since the year 1993.
36. In view of above, we are satisfied from the material on record that the relationship between the parties has deteriorated to such an extent that it would not be possible for them to live together with such mental agony and distress, due to conduct of the respondent-wife. The respondent-wife dragged the appellant /husband and his old aged parents in a criminal prosecution for offence under Section 498-A of IPC, she cannot expect to reconcile the marital ties. It is also proved that the respondent-wife has knowingly deserted the appellant-husband without any reasonable excuse, for more than 10 years.
37. In view of above, the applicant/husband has made out a case to claim decree of divorce. The appeal is well founded and deserves to be allowed. Accordingly, we allow the appeal filed by the applicant-husband, and set aside the impugned judgment and decree passed by learned Trial Court, and dissolve the marriage of the parties solemnized on 8.4.1968. The parties shall bear their own costs.
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