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Vijay Vathvi Vs. Chhaya Vathvi

Judgement

 

Court: Madhya Pradesh High Court

Bench: JUSTICE S.K. Gangele, J. & Anurag Shrivatava

Vijay Vathvi Vs. Chhaya Vathvi On 14 February 2018

Law Point:
Mental Cruelty — Wife left matrimonial home without any cause — Non-compliance of compromise under Section 9 of HMA — Mental cruelty with appellant-husband as not performing marriage obligation — Appellant-husband entitled to receive decree of divorce.

 

 

JUDGEMENT

 

1. Appellant has filed this appeal against the judgment dated 26.3.2010 passed in Civil Suit No. 617-A/2008 by which the Trial Court dismissed the suit of the appellant for divorce.

2. Marriage of appellant-husband was solemnized with the respondent on 26.4.2001 at Bhopal. As per appellant, respondent wife lived with him up to 28.7.2001 thereafter she did not return back to live with him. She made a demand that she would like to live with the appellant, if he would take a separate house. Appellant was living at that time with his widow mother and wife. Appellant pleaded that it was not possible for him to live in a separate accommodation. Appellant served a notice to respondent on 23.3.2002. He received reply on 9.4.2002 and thereafter, respondent lived with the appellant for a period of two months. She became pregnant. She gave birth of a daughter in the house of her father and mother. Appellant filed a suit for restitution of conjugal rights under Section 9 of Hindu Marriage Act. Compromise was entered between the appellant and respondent on 8.5.2008, thereafter, respondent came back to live with the appellant. She again went to her parental house on 14.8.2008 for Rakshabandhan. She did not return back, appellant tried his best that respondent will come back but she did not return back.

3. As per the appellant, respondent has been living separately since then. In spite of best efforts the respondent did not turn back to live with the appellant, hence, she practised cruelty. She does not want to perform obligation of marriage. Act of the respondent amounts to cruelty, hence, decree of divorce be granted in favour of the appellant.

4. Respondent denied pleadings of appellant. She pleaded that she was living in a joint family since her birth. Appellant does not like her. She is willing to live with the appellant. Demand of dowry was made from the respondent. Respondent admitted in her written statement that a compromise was entered between her and appellant in a proceeding instituted by appellant for restitution of conjugal rights and thereafter she went at the house of appellant to live with him. She further pleaded that when she went there, demand of Rs. 50,000 was made. Respondent became pregnant. Appellant forced her for abortion and he had abused her. At the time of delivery new born baby was weak and she was died on 19.1.2002. Respondent further prayed that if decree of divorce be granted an amount of Rs. 15,00,000 be given in favour of her as permanent alimony and Stridhan be returned back.

5. Appellant examined himself, he deposed same facts as pleaded by him in his plaint. He further deposed that he had gone to take back respondent after Rakshabandhan but she did not return back. Information of delivery was given to him after fifteen days. When I was going to house of parents of the respondent to take her back on 17.8.2008, her brother Prakash with other 10 to 12 persons had beaten me. Report of the incident was lodged at Police Station, Piplani which is Ex. P/3 and complaint Ex. P/4 was also sent to Human Rights Commission. Respondent thereafter lived with me for a period of 4 to 6 months during last 8 years. He denied the fact that any demand of dowry was made by him or his family members. Daughter aged about 6 years is with the respondent. He further deposed that he wants to live with respondent however, under duress he filed suit for divorce.

6. Another witness Harish Kumar Vadhwi PW/2 deposed that respondent lived with appellant for a short period after marriage. She used to quarrel with appellant and told me that appellant is blad hair, hence, she does not like him. There was compromise before the society between appellant and respondent, then respondent came back for a period of 8 to 10 days and returned back to her parents house. Newly born child was weak and when he received information it was died. At the time of Rakshabandhan respondent left the house of appellant and she did not return back.

7. PW/3 Devid is the neighbour of appellant. He deposed that he had seen appellant and respondent living together for a period of six to seven months. There was quarrel between them. I also went along with appellant to take back the respondent, however, she did not return back.

8. PW/4 Dinesh Kumar deposed that I know both appellant and respondent. She lived with appellant for a period of 6 to 7 months after marriage, thereafter, she did not turn back. Persons of the society tried to pursue the respondent to live with the appellant. She left house of appellant in Rakshabandhan thereafter she did not return back.

9. Respondent in her evidence deposed the same facts as deposed in her written statement. She further deposed that when she was pregnant, it was diagnosed that she has a girl child, appellant forced her for abortion, however, she refused to the same. Thereafter, she was forced to leave the house of the appellant. She further stated that she did not make any complaint at police station. In a proceeding under Section 9 of Hindu Marriage Act instituted by the appellant, she entered into compromise to save her house, however, when she returned back, appellant practised cruelty, he had committed maar-peet with my brother and thereafter I made a complaint at Police Station, Shahjahanabad. Appellant has stridhan of the respondent. She further deposed that if decree of divorce be granted an amount of Rs. 15,00,000 be given to her as permanent alimony. In her cross-examination she admitted the fact that she had lived with appellant for a period of one year during different intervals. She admitted the fact that she did not lodge any report at the police station. There was compromise and thereafter I returned back to live with the appellant, however, appellant practised cruelty. She denied the fact that her brother and other persons had taken quarrel with the appellant.

10. Mr. Shyam Singh who is brother of the respondent tendered his evidence. He deposed that when the respondent was pregnant, in sonography it was detected that she had girl child, appellant and his family members forced the respondent for abortion. They prasticed cruelty with her. In his cross-examination he denied the fact that respondent lived with the appellant for 4 to 5 months after marriage and report of demand of dowry was not lodged at police station and there was compromise before the society between the appellant and respondent. Dowry was also given at the time of marriage.

11. From the aforesaid evidence, undisputed facts are that the respondent lived with the appellant for a period of four to five months during whole career after marriage as admitted by the brother of the respondent in his cross-examination. Appellant filed suit for restitution of conjugal right, thereafter compromise had taken place between the appellant and respondent on 8.5.2008. Respondent came back to house of the appellant and she lived with him for brief period. On Rakshabandhan again she went to the house of her father and thereafter she did not come back. There is no reason to believe that any cruelty could be committed within a period one month or 15 days when the respondent lived with appellant after compromise. Appellant lodged report at Police Station, Piplani which is Ex. P/3. It is mentioned that on 17.8.2006 when appellant was going to the house of father of respondent at around 9.30 in the night at Regiment Road near Mata Mandir brother of respondent with other persons stopped motor cycle and he had abused him. Police also came there. There is a danger to the life of appellant. Appellant also sent a report to Human Rights Commission which is Ex. P/4. He mentioned the same facts. He filed suit for restitution of conjugal rights and in that suit a compromise was entered. In spite of that, respondent did not live with the appellant except for brief period.

12. The Apex Court in the case of Samar Ghosh v. Jaya Ghosh, I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=(2007) 4 SCC 511 has held as under in regard to mental cruelty:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

13. From the evidence on record, in our opinion, respondent left matrimonial home without any cause. She did not lodge any complaint in regard to demand of dowry or cruelty, hence, her version that demand of dowry was made is not reliable. Contrary to this, appellant lodged report at the police station. He also sent complaint to Human Rights Commission, hence, respondent has been living separately without any cause. She practised mental cruelty with the appellant because she was not performing obligation of marriage. She has deserted the appellant, hence, in our opinion, the appellant is entitled to receive decree of divorce.

14. Respondent herself pleaded that if decree of divorce be granted in favour of appellant, permanent alimony be granted. In her application filed under Section 24 of Hindu Marriage Act before the Trial Court. Respondent pleaded that appellant has a shop of Sports Items at Shastri Market, Bhopal. He was earning Rs. 15,000 per month. Daughter is living with respondent.

15. Looking to the aforesaid evidence on record, in our opinion, it would be just and proper to grant permanent alimony of Rs. 10,00,000 in favour of the respondent.

16. Appeal filed by the appellant is allowed. Impugned judgment and decree passed by the Trial Court is hereby set-aside. A decree of divorce is granted in favour of the appellant. The marriage performed between the appellant and respondent is hereby dissolved. It is further ordered that appellant shall pay a permanent alimony of Rs. 10,00,000 to the respondent within a period of three months from the date of judgment.

C.C. as per rules.

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