Smt. Sonal Sah v. Neeraj Sah JUDGMENT For consideration Sd
Case Details
'f, "•-;:. -"~ .ff.^ ^^' ff AV' ^ ^- HIGH COURT OF CHHATTISGARH, BILASPUR Division Bench: Hon'ble Shri Sunil Kuniar Sinha &. Hon'ble Shri R.N, Chandrakar, J J F.A. (M) No. 65 of 2009 Smt. Sonal Sah Vs. Neeraj Sah JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE R.N. CHANDRAKAR CU' e^- R.JV. chan •Judsr'ge Post for Judgment : Oj^ /^I/2013 Sd/- Sunii Kumar Sinha Judge ^•^^^Ss^^^S^Sn.^^ & ^ :'s 5S;.T;-iSi(-'' HIGH COURT OP CHHATTISGARH, BILASPUR Division Bench: Hon'ble ShrLSunil Kumar Sinha & Hon'ble Shri R.N. Chandrakar. J J F.A.IMlNo. 65 of 2009 APPELLANT RESPONDENT
Legal Reasoning
That apart, we note that these allegations were made by tne respondent after the appellant left his house. He did not make such allegations while the appellant was residing with him. " -^ M A/ F.A.fIVnNo.65of2009 (16) It was a very short spell when the husband and wife resided together. Even if we take, for the sake of the argument, that the wife had denied for sexual intercourse during that period, looking to the short spell it can not be taken as considerable period as has been pointed out in Sam.ar Ghosh (supra), giving rise to a ground for filing a petition for divorce on account of mental cruelty on such act. (17) The respondent had also taken the ground of unsoundness of mind of the appellant, but the sarae was not substantiated by the evidence. The pleadings in this regard were vague and general. In cross-examination, Para-16, the respondent has admitted that he was not saying that the appellant was insane. He also admitted that he did not take the appellant to any Doctor. The appellant had also appeared before the Family Court and she was cross- examined by fhe respondent. The Family Court has also not made any observation that either she was of unsound raind or her behaviour was abnormal so as to hold that her mental status was not good. The appellant is metric pass. She had ffled her certificates. It is on all this account, the Judge Family Court has held that the ground relating to unsoundness of mind was not proved and the evidence led by the respondent was not believed. This reflects on the quality of the evidence led by the respondent on which the FamUy Court simply relied ignoring the fact that the evidence in relation to mental cruelty was rebutted by the appellant. In the light of the above discussions, we are of the view •l-3t ^M / F.A.(']VnNo.65of2009 that the respondent has failed to prove that he was denied cohabitation by the appellant in the period when the appeUant was residing with him in his house, and thus, the alleged mental cn-ielty on account of non-cohabitation was not established on his evidence as the same was rebutted by the evidence of the appellant. (18) For the foregoing reasons, the appeal is allowed. The impugned judgment and decree passed by the Family Court are set-aside. The petition for divorce, filed by the respondent/plaintiff, is dismissed. (19) No order as tocost. (20) Let a decree be drawn. Sd/- Sunil Kumar Sinha Judge Sd/- R.N. Chandrakar Judge '%tti
Arguments
Smt. Sonal Sah, aged about 28 years, W/o Shri Neeraj Dwara Shri Sah, HasmuKh Virani, Chandan Bhadrak, District Vihar, Bhadrak (Orrisa) R/o Versus Neeraj Sah, aged about 32 years, S/o Shri Jagdish Sah, R/o Thakur Para, Near Durga Mandi, Purani Basti, Raipur (C.G.) (Appeal under Section 19 (1) ofFamily Courts Act, 1984) Appearance: Mr. Raghvendra Pradhan and Mr. Shikhar Sharma, Advocates for the appellant. Mr. Raja Sharma, Advocate for the respondent. _<— JUDGMENT (03, .11.2013) FoUowing judgment of the Court was delivered by Sunil Kuniar Sinha, J. (1) Being aggrieved with the judgment and decree dated 31st of Au^ust, 2009, passed in Civil Siiit No. 108-A/2008 by the First Additional Principal Judge, Family Court Raipur, District Raipur (G.G.), the defendant (wife) has Bled this appeal. -* (2) The marriage between the pardes was solemnized on 28.1.2007. According to the plaint allegations, the appellant y-y. 'x F.A.nV[')No.65of2009 ^ resided with the respondent in his house for 1 month 8s 7 days, and thereafter she did not retum to his company. The respondent (husband) then filed a petition u/Ss 13 (1) (ia) and 13 (1) (iii) ofthe Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') for grant of a decree of divorce. This was registered as Civil Suit No. 108-A/2008. The respondent contended that when the appeUant was residing with him. in his house, she did not agree for cohabitation even for one time. When he used to fa-y for cohabitation, it was always refused by the appellant. She used to push him back while the respondent wanted to cohabit with her. That apart, the behaviour ofthe appellant was not normal. She used to make gestures of different kinds; she used to laugh on anyone; she used to clap after seeing anyone. According to the respondent, the appellant was a lady of unsound mind. The respondent thus prayed for a decree of divorce on two grounds. First, on the ground of mental cruelty and second, on the ground of unsoundness of mind, precisely u/Ss 13 (1) (ia) and 13 (1) (iii) of the Act. (3) • The appeUant Eled her written statement and denied the allegations made by the respondent. She very clearly pleaded in Para-2 of her written statement that the respondent cohabited with her on many occasions'while she was residing with hira in her matriinonial house. She had extended full cooperation while discharging her marital obligations and had always cooperated in 'x cphabitation with her. The appellant also denied allegations in P'SBi& F.A.(M1No.65of2009 to her mental status. She filed the certilicate of her education. She pleaded that she was the only daughter in the family and after the marriage, the respondent raised demand of Rs.5 lakhs which was not fulfilled, therefore, false allegations were raised against her. After the marriage, after living for 1 month 8s 7 days, in usual manner, she had gone to her parent's place, but the respondent did not turn up fo take her back to the matrimonial house and demand of Rs.5 lakhs, and when the demand was not fulfilled, a petition for divorce on fictitious grounds was filed. (4) The leamed Judge Family Court, frained issues on 29.8.2009 and called upon the parties to adduce their evidence. The respondent/plaintiff examined himself as PW-1, Mukund Rai Sah -(PW-2) and Bhoopat Rai Bhooptani (PW-3). The appellant/defendant exarained herself as DW-1, HasrauKh Bhai Dhabliya (DW-2) and Hasmukh Rai Virani (DW-3). (5) The Family Court held that the allegations with relation to unsoiuidness ofmind was not proved. However, it was proved that the appellant/defendant had treated the respondent/plaintiff with cruelty on account of not cohabitating with him after solemnization of their marriage. Therefore, the respondent/plaintiff was entitled for a decree of divorce u/S 13 (1) (ia) of the. Act. The Civil Suit, filed by the respondent, thus was decreed u/S 13 (1) (ia) of the Act and the marriage solemnized between them was dissolved by a decree of divorce. i, F.A. (M) No. 65 of 2009 Mr. Raghvendra Pradhan and Mr. Shikhar Sharraa, learned counsel appearing on behalf of the appellant, have argued that it was not proved that fhe appellant did not cohabit with the respondent while she was residing in her inatrim.onial house; fhe appellant has rebutted the oral evidence led in that behalf; the Judge, Family Court, did not assigned any reason to disbelieve tlie evidence of the appellant. Therefore, the judgment vitiates as the grounds taken by the respondent remained unproved. (7) On fhe other hand, Mr. Raja Sharina, learned counsel appearing on behalf of the respondent, has opposed fhese arguments and supported the judgment and decree passed by the Family Gourt. He argued that the facts relating to mental cruelty on account of non-cohabitation was fully established by the evidence of the respondent. (8) Learned counsel for the parties have cited many decisions. (9) We have heard counsel for the parties. (10) There is no doubt in saying that sexual activity is an important instance in marital life. If the spouse is unable to enjoy sex, it may lead to frustration and ultimately disappointment and depression are the results causing mental cruelty to the husband or wife who wanted to have harmonious sexual relations wifh other. v —I F.A.('M)No.65of2009 In Samar Ghosh -Vs- Jaya Ghosh, 12007} 4 SCC 511, it was held that wife s refusal to cohabit with husband and refusal of intercourse, and later deciding unUaterally not to have any children amounts to mental cruelty. It was held that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No uniform standard can ever be laid down for guidance, yet it is deemed appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances have been quoted saying that they are only illustrative and not exhaustive, which we quote:- (i) On consideration of the complete matrimonial Ufe of the parties, acute mental pain, agony and suffering as would not make it possible for the parties to Uve with each other, could come within the broad parameters of mental cruelty; (ii) On a comprehensive appraisal matrimonial life of the parties, of if the entire 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; but frequent rudeness of language, petulance or manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable; (ivj Mental cruelty is a state of mind. The feeUng of deep anguish, disappointment, frustration in one spouse . caused by the conduct of the other for a long time, may lead to mental cruelty; f €^'€h^i '''*-. '• .•' -'...- ^•'' F.A.(M')No.65of2009 (v) (vi) A sustained course of abusive and hurailiating treatment calculated to torture, discommode or render iniserable life of the spouse; Sustained unjustifiable conduct and behaviour of one spouse actuaUy affecting the physical and mental health of the other spouse. The treatanent 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 pleasi-ire can also amount to mental cruelty; (viii) The conduct must be much more than jeolousy, selfishness, possessiveness which cause unhappiness and dissatisfaction and emotional upset, but 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; The married life should be reviewed as a whole and a (x) 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, extremely difficult the wronged party finds it 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 *^'i3i« 1^;;?-~^^^ ."' ^ F.A.('M)No.65of2009 reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty; (xii) Unilateral decisioh of refusal to have intercoiu-se for considerable period without fhere 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 the it may fairly be concluded that separation, matrimonial hond 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 feeUngs and emotions of the parties. In such like situations, it inay lead to mental cruelty. In illustration (xii), it has been held, as quoted above, that unilateral decision of refusal to have sexual intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. Thus there is no doubt to hold that if it is proved by evidence that there was refusal of one party to have intercourse for a considerable period without there being any reason,would be a cruelty and ultimately a ground for a decree of divorce u/s 13 (1) (ia) of the Act. ''"•¥• (12) Mr. Raghvendra Pradhan, learned counsel for the appeUant, has cited the decision of Gurbux Singh -Vs- Hanninder JCaur, li lll-11fcli fi- F.A.(TM')No.65of2009 (2010) 14 SCC 301. In the said judgment, it has been held that onus to prove that particular conduct or behaviour resulted in cruelty is on the person who claims relief. Reference has been made to Sections 101 SE 114 ofthe Evidence Act, 1872. The Suprerae Court has observed that cruelty has not been deEned under the Act. It is quite possible that a particular conduct may amount tp cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Therefore, it is essential for a party, who claims relief, to prove that a particular/part of conduct or behaviour resulted in cruelty to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis-a-vis fhe other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty. A note of Samar Ghosh (supra) has also been taken in this matter. (13) A similar view regarding onus to prove was taken by the Supreme Court in Neelam Kumar -Vs- Dayarani. (2010) 13 SCC 298. It was held that the burden lies upon a person who alleges cruelty and no decree of divorce can be granted unless person seeking divorce proves cruelty on the basis of pleadings and evidence. (14) Now we shall examine the case on hand on the above principles. esasiM'S!MaSBS» u F.A. CM) No. 65 of 2009 (15) In the instant case, it is admitted between the parties that the marriage was solemnized on 28.1.2007, and thereafter, the wife (appellant) resided with the husband (respondent) for Iraonth &. 7 days in her matrunonial house. The respondent has taken a plea that the appeUant did not allow to perform sexual intercourse even for once in this period. This has also been stated in the affidavit filed by the respondent as evidence. In rebuttal, the appellant (wife) has also filed her affidavit in which she has deposed that she was fully cooperating with the respondent and was giving all physical andniehtal pleasure to him. In cross- examination, she denied the suggestion that no cohabitation had taken place between them while her stay in the matrimonial house. She has further denied the suggestion that whenever respondent wanted to have physical relations (cohabitation), she used to push him and deny him. Thus, the appellant (wife) has rebutted the evidence of respondent (husband) that there was no physical relation between them during the entire period of 1 month & 7 days. However, the Judge Family Court has ignored the evidence 6f the appellant (wife) and has recorded the finding in favour of the respondent (husband) by considering the evidence which he adduced by filing his affidavit. No r'eason has been assigned for not accepting the said evidence ofthe appellant (wife).