Sujata
Uday Patil Vs. Uday Madhukar Patil [2006] Insc 953 (13 December 2006)
G.P.
Mathur & A.K. Mathur
(arising
out of SLP (C) Nos. 18502-18503 of 2004) G.P. Mathur, J.
Leave
granted.
2.
These appeals, by the special leave, have been preferred against the judgment
and decree dated 9.3.2004 of Bombay High Court (Aurangabad Bench) by which the
second appeals preferred by the appellant herein were dismissed and the decree
of divorce passed by the learned District Judge, Jalgaon, on 12.11.2002 was
affirmed.
3. The
marriage of the appellant and the respondent was performed on 1.3.1994 and a
son Charul @ Chaitanya was born out of the wedlock on 6.2.1995. In the year
1999 the respondent (husband) filed a petition for a decree of divorce against
the appellant (wife) under Section 13(1)(i-a) and (i-b) of the Hindu Marriage
Act, 1955 on the ground that the appellant had treated him with cruelty and had
also deserted him for a continuous period of not less than two years
immediately preceding the presentation of the petition. The petition was
contested by the appellant on various grounds. The Joint Civil Judge (Senior
Division) passed a decree for judicial separation on 10.12.2001. The appellant
and respondent both preferred appeals against the said decree and the learned
District Judge, Jalgaon, by the judgment and decree dated 12.11.2002, dismissed
the appeal filed by the appellant and allowed the appeal filed by the
respondent and dissolved the marriage of the parties by a decree of divorce. He
further directed that the respondent shall pay permanent alimony @ Rs.700/- per
month to the appellant and @ Rs.500/- per month to the son Charul @ Chaitanya.
The second appeals preferred by the appellant against the decree passed by the
learned District Judge were dismissed by the High Court on 9.3.2004.
4. The
trial court held that the appellant behaved in a cruel manner and did not
cohabit with the husband; that the husband failed to prove that the wife
deserted him without any reasonable excuse and that the appellant was ill-treated
by the respondent and his parents.
On
these findings the trial court came to a conclusion that the respondent was not
entitled for a decree of divorce but had made out a case for judicial
separation and a decree was accordingly passed. The learned District Judge,
after a detailed discussion of oral and documentary evidence on record, held
that the wife had treated the husband with cruelty; that she had deserted the
husband for a continuous period of not less than two years immediately preceding
the presentation of the petition and that there was no legal impediment in
granting the decree for divorce. On these findings decree of divorce was
granted.
5. The
High Court in second appeal, after a careful consideration of the submissions
made by the learned counsel for the parties and the material available on
record, has recorded the following findings: - "After giving my thoughtful
consideration the submissions made by the counsel for the parties and also
having gone through the evidence recorded at the trial and findings recorded by
the courts below and reasons assigned therefore, I am of the opinion that it
was a case where the wife was guilty of deserting the husband without
sufficient cause and the desertion was certainly with the intention to put an
end to the matrimonial relations. The trial court as well as appellate court
have rightly found that the wife was guilty of conduct amounting to cruelty.
Here as rightly submitted by Mr. Dixit learned counsel for the respondent, the
act of cruelty was pertinent and grave on account of police complaints lodged
against the appellant and his father and that too during the period when the
marriage of respondents brother was settled. It was in that background that the
wife voluntarily left the matrimonial home and desertion on her part stood
confirmed by the fact that she lived separately for over two years and did not
make any efforts to come back to matrimonial home for cohabitation. The wife
having failed to establish the alleged acts of cruelty on the part of the
husband, it is needless to say that her leaving the matrimonial home and cause
separation was without sufficient cause. .........
...........................................................................................
As
against that, one cannot lose sight of the fact that wife, even after having
lodged complaint against the husband in police station, left the matrimonial
home happily without there being any remorse or repentance and that too
carrying all her belongings with her and admittedly she did not return though a
period of two years lapsed and the husband issued notice seeking divorce.
Therefore, the appellate court was right in observing in his judgment that
there was no condonation of cruelty on the part of the husband and that there
was no reconciliation between the parties and that the husband is not taking
undue advantage of his own wrong." Holding as above the High Court
dismissed the second appeals filed by the appellant and affirmed the decree of
divorce passed by the learned District Judge.
6.
Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 (hereinafter
referred as 'the Act') lays down the grounds on which a marriage may be
dissolved by a decree of divorce. This sub-section has several clauses and
under clause (i-a) cruelty and under clause (i-b) desertion for a continuous
period of not less than two years immediately preceding the presentation of the
petition, are grounds for granting a decree of divorce. The following
observation made by this Court in Reynolds Rajamani vs. Union of India AIR 1982
SC 1261, which is a case under Section 10 of the Divorce Act, throw
considerable light on the approach which should be adopted in dealing with a
provision relating to divorce: -
"The
history of all matrimonial legislation will show that at the outset,
conservative attitude influenced the grounds on which separation or divorce
could be granted. Over the decades a more liberal attitude has been adopted,
fostered by a recognition of the need for individual happiness of the adult
parties directly involved. But although the grounds for divorce have been
liberalized, they nevertheless continue to form an exception to the general
principles favouring the continuation of the marital tie. In our opinion, when
a legislative provision specifies the grounds on which divorce may be granted
they constitute the only conditions on which the Court has jurisdiction to
grant divorce. If grounds need to be added to those already specifically set
forth in the legislation, that is the business of the Legislature and not of
the Courts. It is another matter that in construing the language in which the
grounds are incorporated the courts should give a liberal construction to it.
Indeed we think that the courts must give the fullest amplitude of meaning to
such a provision. But, it must be meaning which the language of the section is
capable of holding."
Therefore,
a liberal approach has to be adopted in dealing with various clauses of
sub-section (1) of Section 13 of the Act and full meaning should be given to
the words used by the legislature.
7. The
word "cruelty" and the kind or degree of "cruelty"
necessary which may amount to a matrimonial offence has not been defined in the
Act. What is cruel treatment is to a large extent a question of fact or a mixed
question of law and fact and no dogmatic answer can be given to the variety of
problems that arise before the court in these kind of cases. The law has no
standard by which to measure the nature and degree of cruel treatment that may
satisfy the test. It may consist of a display of temperament, emotion or
pervasion whereby one gives vent to his or her feelings, without intending to
injure the other. It need not consist of direct action against the other but
may be misconduct indirectly affecting the other spouse even though it is not
aimed at that spouse. It is necessary to weigh all the incidents and quarrels
between the parties keeping in view the impact of the personality and conduct
of one spouse upon the mind of the other. Cruelty may be inferred from the
facts and matrimonial relations of the parties and interaction in their daily
life disclosed by the evidence and inference on the said point can only be
drawn after all the facts have been taken into consideration. Where there is
proof of a deliberate course of conduct on the part of one, intended to hurt
and humiliate the other spouse, and such a conduct is persisted, cruelty can
easily be inferred. Neither actual nor presumed intention to hurt the other
spouse is a necessary element in cruelty.
8. We
have carefully considered the findings recorded by the learned District Judge
and also by the High Court and in our opinion they are fully born out from the
material on record and cannot be faulted with on any ground. Therefore, the
decree for divorce has to be maintained.
9.
There is another aspect of the case which has a serious bearing on the outcome
of the litigation. It is averred in the counter affidavit filed by the
respondent that after the decree of divorce had been granted by the learned
District Judge on 12.11.2002 he married one Manisha Patil on 11.1.2003 and a
daughter Sejal Uday Patil was born out of the said wedlock. In the rejoinder
affidavit filed by the appellant it is averred that immediately after the
judgment was delivered by the learned District Judge, an application for
certified copy of the judgment was given and thereafter a notice by registered
post was sent to the respondent on 11.1.2003 that she was taking steps to file
a second appeal in the High Court and this notice was served upon the
respondent on 14.1.2003. The second appeals were filed in the High Court on
21.1.2003 and it was thereafter that the respondent married Manish Patil on
25.1.2003. It may be mentioned here that at the relevant time Section 28 (4) of
the Hindu Marriage Act provided a limitation of 30 days for filing an appeal
against all decrees made by the court in any proceeding under the Act. This
provision has been amended by Marriage Laws (Amendment) Act, 2003 on 23.12.2003
and now the period of limitation for filing an appeal is 90 days.
Therefore,
when the respondent entered into wedlock with Manisha Patil, the period of
limitation for filing the appeal against the decree of divorce granted by the
learned District Judge had expired and no order staying the decree had been
obtained by the appellant. We may clarify here that it should not be understood
that this Court is expressing any opinion regarding the validity or otherwise
of the second appeals which were filed by the appellant before the High Court.
However, the fact remains that the respondent has married again and he has a
child from the second wedlock.
10.
Matrimonial disputes have to be decided by courts in a pragmatic manner keeping
in view the ground realities. For this purpose a host of factors have to be
taken into consideration and the most important being whether the marriage can
be saved and the husband and wife can live together happily and maintain a
proper atmosphere at home for the upbringing of their offsprings. This the
court has to decide in the fact and circumstances of each case and it is not
possible to lay down any fixed standards or even guidelines.
11. In
the case in hand it is an established fact that the respondent has married
again and has a child from the second wife. In such circumstances even if the
decree for divorce granted by the learned District Judge which has been
affirmed by the High Court is set aside, as prayed by the appellant herein, no
useful purpose would be served.
The
appellant cannot possibly live with the husband in such a scenario nor it will
be conducive to the upbringing of her son Charul @ Chaitanya. The learned
District Judge has mentioned in the judgment that he made serious efforts for
reconciliation and talked to the parties in arriving at an amicable solution
but the respondent was reluctant to take back the appellant on account of
strained relationship and at the same time the appellant, who refused to give
divorce to the respondent, was not firm as to whether their union would bring
about happy reunion. He has further mentioned that he suggested to the parties
to take some unanimous decision keeping in mind the future of their son Charul
@ Chaitanya but they failed to come to any such decision. The case was
adjourned several times in this Court also to enable the parties to arrive at a
settlement but it did not bring about any fruitful result.
12.
The appellant had filed an application in this Court claiming Rs.6,000/-
towards maintenance. A reply has been filed by the respondent and paragraph 4
thereof reads as under: -
"4.
It is submitted that the petitioner in her application has pointed out that the
respondent is holding agricultural land gut No. 34 admeasuring 24 are, gut No.
380/2 admeasuring 96 are and a residential house admeasuring 45/12.5 feet
situated at Shevge, Tehsil- Pachora, District Jalgaon. It is submitted that the
said properties are joint family properties and same are not the independent
properties of the respondent. However, with consent of father and brother
towards full and final settlement I am ready to give all the three aforesaid
properties to the petitioner and son Charul in lieu of the maintenance subject
to withdrawal of all the proceedings and orders obtained by the petitioner
against respondent in various courts below." In para 5 of the reply it is
averred that the learned District Judge has directed the respondent to pay
Rs.700/- per month to the appellant and Rs.500/- per month to the son Charul @ Chaitanya
as maintenance as per the provisions contained in Section 25 of the Act.
In
special civil suit No. 88 of 2000 filed under the Hindu Adoption and
Maintenance Act the trial court has directed the respondent to pay Rs.1,000/-
per month as maintenance for son Charul @ Chaitanya in addition to the
aforesaid amount. Apart from above an ex-parte order has also been passed in
proceedings under Section 125 of Criminal Procedure Code wherein the respondent
had been directed to pay Rs.1,000/- per month to the appellant and Rs.800/- per
month to the son Charul @ Chaitanya. It is also averred that a criminal case
has also been instituted by the appellant against the respondent under Section
494 of Indian Penal Code.
13. We
are of the opinion that the offer made by the respondent regarding giving of
some immovable properties to the appellant and her son Charul @ Chaitanya in
lieu of maintenance may not be workable and may create complications, specially
in view of the fact that the respondent has asserted the said properties to be
the joint family properties and there is no such enforceable document on record
by which the consent of the father and other brothers may be clearly and
unequivocally accepted. We, therefore, consider it proper that the respondent
should pay a lump sum amount to the appellant, interest income whereof may be
enough for her maintenance and also that of her son Charul @ Chaitanya. It has
come on record that the appellant is living with her father and she is working
as a teacher in some school where she is getting Rs.2,000/- per month. The
respondent is working as a Junior Engineer in Municipal Corporation of the city
of Jalgaon. Though he has produced a salary
certificate wherein his basic salary is shown to be Rs.2,360/- per month and
gross salary as Rs.8,423/- but the same has been seriously challenged by the
appellant on the ground that the respondent has not opted for the grade which
is payable in accordance with the recommendations of Fifth Pay Commission and
is deliberately drawing salary in a lower grade. However, we do not want to
enter into this controversy. In our opinion, payment of a lump sum amount of
rupees eight lakhs by the respondent to the appellant would meet the ends of
justice.
14. In
view of the discussion made above the appeals are disposed of in following
terms: -
(i)
The decree of divorce passed by the learned District Judge on 12.11.2002 is
affirmed.
(ii)
The respondent is directed to pay a lump sum amount of rupees eight lakhs to
the appellant as maintenance for herself and her son Charul @ Chaitanya. The
respondent is granted three months time to pay rupees four lakhs and the
balance in the next three months and thus the entire amount should be paid
within six months.
(iii)
The proceedings initiated by the appellant or by her son against the respondent
under
(a)
The Hindu Adoptions and Maintenance Act,
(b)
Section 125 of Code of Criminal Procedure and
(c) criminal
case under Section 494 IPC shall remain suspended for a period of three months
and if the amount is paid as indicated earlier, for a further period of three
months.
(iv)
After the entire amount of rupees eight lakhs has been paid by the respondent
to the appellant, the proceedings of the cases instituted under Section 125 Cr.P.C.
and Section 494 IPC shall stand quashed and the proceedings under Section 18 of
the Hindu Adoptions and Maintenance Act shall be abated.
(v) If
the sum of rupees eight lakhs is not paid by the respondent to the appellant as
indicated above, it will be open to the appellant to execute the decree and
recover the said amount from the respondent in accordance with law.
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