Court:MADHYA PRADESH HIGH COURT
Bench: JUSTICE Subhash Samvatsar & Indrani Datta
VANDHANA GUPTA Vs. RAJESH GUPTA On 11 July 2008
Wife behaving cruelly with Husband and his family members and she left matrimonial house and living separately without any just and proper cause. She has deserted respondent for continuous period of not less than two years. Husband entitled to decree of divorce.
Appellant/wife has filed this First Appeal under Section 19 of the Family Courts Act, 1984 being aggrieved by the judgment and decree dated 21.11.2005 passed by the Family Court, Gwalior in H.M.A. No 39A/03 by which respondent’s petition for divorce was allowed and petition filed by the appellant/wife for restitution of conjugal rights, which was registered as H.M.A. No. 373A/03, has been dismissed.
2. Admitted facts of the case are that marriage between the appellant and respondent has been solemnized by Hindu traditions on 4.11.1998 in Gwalior.
3. Brief facts of the case are that in Case No. 39A/03 filed by the respondent/husband it is stated that after the marriage appellant’s behaviour was not cooperative with the family members of the respondent. She misbehaved with respondent and his mother. She was not cooperative in household works. Appellant went to her parental house from time-to-time without consent of the respondent and on 18.4.1999 she went to her parental house and returned on 6.5.1999 and again on 13.5.1999 she went to her parental house and returned on 14.5.1999. The appellant insisted the respondent for publication of her poetries and when he refused then she brought the knife from the kitchen and made effort to commit suicide. The respondent intimated about this incident to the parents of the appellant and thereafter on the same day she returned back to her parental house with her uncle Mr. Vinod Gupta. It is also alleged that the appellant used to give threatening of registration of false dowry case and after the incident of 14.5.1999 on the assurance of good behaviour by the appellant’s parents, the appellant returned back to respondent’s house on 21.6.1999. After that her behaviour was not changed and she continued to misbehave with the family members of the respondent and also started making allegations that the respondent is impotent and, therefore, respondent felt insulted and also suffered mental agony. She used to threaten respondent and his family members to involve them in criminal cases and in this way the appellant behaved cruelly with the respondent. Appellant is residing separetly since 1.2.2001 at her parental house without any sufficient cause or reason and in spite of several requests and efforts being made to bring her back, she refused to come back to her matrimonial house, therefore, on the ground of cruelty and desertion divorce was sought.
4. Appellant filed written statement and denied the allegations of the application. She submitted that the behaviour of the family members of the respondent was not good with her and they used to torture and demand dowry and the incident dated 14.5.1999 is false and in fact on 14.5.1999 when she returned back from Dholpur after giving the examination of B.A. the respondent assaulted her and demanded a sum of Rs. 50,000 and a motorcycle and thrown her out of the house in the wearing clothes, therefore, she went to her relative’s house in Gwalior. Thereafter on 6.6.1999 her father along with some relatives namely Anil Bansal, Vinod Gupta and Vishnu Bansal went to the house of the respondent, where the father of the respondent again demanded Rs. 50,000 and motorcycle and her father agreed to pay a sum of Rs. 30,000 in two instalments and on 21.9.1999 her father paid Rs. 10,000 and after that on 22.9.1999 she returned back to the respondent’s house and on 12.11.2000 her father paid Rs. 20,000 to the respondent and his father. Thereafter in January 2001 the respondent and his father and mother demanded the motorcycle and also started misbehaving with her and also restricted her to talk to anyone and by the consent of the respondent on 31.1.2001 she came back to her parents’ house and thereafter her father and herself approached so many times to the respondent and his father but they never turned up to take her back and also started demanding four-wheeler. She prayed for dismissal of the application filed by the respondent/husband for divorce and prayed for restitution of conjugal rights.
5. We have heard the learned Counsel and perused the record of the case.
6. Learned Counsel for the appellant has challenged the finding arrived at by the Family Court on the ground that Trial Court has not considered the evidence adduced by the appellant properly and Trial Court has not taken notice of the fact that from 21.6.1999 to 31.1.2001 appellant and respondent lived together and as such all acts complained be condoned as per Section 23(1)(b) of Hindu Marriage Act. Hence the impugned judgment and decree deserves to be set aside and suit filed by the appellant for restitution of conjugal right deserves to be decreed.
7. Before appreciating the evidence on record the concept of cruelty is to be clarified. The Apex Court in the case of Parveen Mehta v. Inderjit Mehta, II (2002) DMC 205 (SC)=IV (2002) SLT 381=(2002) 5 SCC 706, held that mental cruelty is a state of mind and feelings and is therefore necessarily a matter of inference to be drawn from the facts and circumstances of the case. Proper approach requires the assessment of the cumulative effect of the attending facts and circumstances established by the evidence on record. Only then can the inference be drawn that the petitioner has been caused to suffer mental cruelty by the spouse. Similar view was expressed by Bench of this Court in the case of Surbhi Agrawal v. Sanjay Agrawal, I (2000) DMC 453 (DB)=2000 (1) MPLJ 575, that cumulative effect of all acts and conduct has to be taken into consideration to find out if behaviour of erring spouse falls within ambit of cruelty.
8. In the case of A. Jayachandra v. Aneel Kaur, I (2005) DMC 111 (SC)=VII (2004) SLT 581=AIR 2005 SCW 163, the Hon’ble Apex Court has held that expression “cruelty” has been used in relation to human conduct or human behaviour. To constitute cruelty, conduct complained of should be grave and weighty for arriving at conclusion that petitioner spouse cannot be reasonably expected to live with other spouse.
9. In the light of above principles of law, we have to examine the evidence on record in order to determine whether case of cruelty has been established.
10. PW-1 is respondent/husband. He has deposed about appellant’s cruelty. As per him the cruel behaviour of the appellant is in the following manner:
(i) The appellant is not doing the household work.
(ii) She misbehaved with his mother and father.
(iii) She gave the threatening to him and his family members to involve them in criminal case.
(iv) She says that he is impotent person.
(v) On 14.5.1999 the appellant tried to commit suicide when he refused to publish her poetries.
(vi) Appellant always insisted to go to hotel and cinema.
Respondent stated that he informed about the incident dated 14.5.1999 to the father of the appellant. Thereafter, her relative Vinod Gupta came and appellant went with him. After four months of this incident, appellant’s father begged apology. This was intimated by the appellant’s uncle to his father and then on 21.9.1999 appellant came back to his house and she stayed there up to 31.1.2001 and in this period also, her behaviour was not proper. She continued quarrelling and misbehaving with him and his family members and her threatening for involving them in criminal case was as usual and her cruel behaviour was also continued.
11. Similar is the statement of PW-2 and PW-3 father and mother of the respondent. They have stated that the appellant always used to misbehave with their son and family members. They also deposed about the incident of 14.5.1999 when attempt of suicide was made by the appellant. They supported the version of the respondent about misbehaviour and calling the respondent as impotent by the appellant. They have also stated about quarrelling, misbehaving and regarding threatening given by the appellant to register a criminal case against them. They denied the allegations about demand of dowry.
12. Appellant is DW-1. She has stated that she never misbehaved with respondent. As per her statement on 14.5.1999 respondent assaulted her and called her uncle Vinod Gupta and demanded Rs. 50,000 and a motorcycle then he kicked her out asking her not to turn out in his house unless the demand is fulfilled. She has not stated in examination-in-chief about any demand of dowry by respondent and his family members from November 1998 after her marriage till 14.5.1999.
13. Statement of appellant is not reliable and is self contradictory. In cross-examination she has stated that demand of dowry was made first time on 14.5.1999 and in examination-in-chief she has stated that after a week of marriage, respondent harassed her with respect to demand of dowry. She has also stated that she has written some letters to her father intimating about the demand of dowry made by the respondent. No such letters have been produced on behalf of the appellant. Second point is to be noticed that there is no report about torture given to her for non-fulfilment of demand of dowry. This falsify her dowry allegation.
14. DW-2 Hari Narayan, who is father of defendant/appellant, has just reiterated the contention of the appellant about demand of dowry. Statement of this witness is not reliable. According to his statement, DW-3 Vishnu Bansal was also present at the time when he gave Rs. 20,000 towards dowry amount to respondent and his father. While DW-3 Vishnu Bansal in cross-examination in para 19 has denied that appellant’s father gave Rs. 20,000 in his presence. No other witness K.K. Sharma or Vinod Gupta in whose presence the remaining amount of Rs. 20,000 is said to be given is examined on behalf of appellant. This also falsifies the dowry allegations.
15. Therefore, from the evidence led by the parties there is no evidence to draw inference about demand of dowry of harassmant and torture by respondent. It is apparent that appellant has levelled false allegation of demand of dowry which cannot be established in evidence. Making such false allegations amounts to cruelty.
16. Respondent’s Counsel drew attention of this Court to the case of Madhuri Aswani v. Arjundas Aswani, 2007 (3) MPLJ 550. In that case appeal was filed by wife against decree of divorce. Relation between parties were strained. It was proved that wife had levelled false allegations and demand of dowry could not be substantiated by wife and it was concluded that decree of divorce was justified in the facts and circumstances and appeal was dismissed.
17. From the evidence produced on behalf of the respondent, it is also proved that appellant used to call him impotent in the form of abuse. Evidence on this point is unrebutted in cross-examination and is supported by the statement of his parents. This is also proved that her behaviour was not proper and she used to threaten the respondent to involve in criminal case and was not doing any household work. All these acts amount to cruelty. Learned Counsel for the respondent relied upon a judgment rendered in the case of Smt. Shanti Devi v. Raghav Prakash, AIR 1986 Raj. 13, in that case wife Shanti Devi levelled false allegations that her husband is impotent in the form of abuse and it was found that this statement cannot be lightly ignored as in matrimonial matters it is serious stigma on manhood and is bound to cause great mental agony and pain resulting in cruelty to husband.
18. In this way it is apparent that appellant is responsible for the mental agony of respondent and that amounts to cruelty. Thus, ground under Section 13(i-a) is made out and it is proved that appellant has treated the respondent with cruelty.
19. So far as second issue of desertion is concerned, it is apparent from the evidence that parties are living separately from 1.2.2001 and it is not proved that appellant is residing separately from matrimonial home due to harassment and torture given to her by respondent or his family members. It is proved that she was behaving cruelly with respondent and his family members and she left matrimonial house from 1.2.2001, therefore, she is responsible for living separately without any just and proper cause. She has deserted the respondent for a continuous period of not less than two years immediately after the incident of 14.5.1999. Hence, this appeal is dismissed and judgment and decree of the Court below is affirmed. Respondent is entitled for decree of divorce under Sections 13(ia) and 13(ib) of Hindu Marriage Act.
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