High Court
Case Details
Mat.App. 7/2012 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH JUDGEMENT AND ORDER (CAV) (Indira Shah, J)
Legal Reasoning
By this common judgement and order, we propose to dispose of the two app eals, namely, Matrimonial Appeal No. 7/12 and Matrimonial Appeal No. 8/12, which have arisen out of the judgements and decrees, dated 09.01.2012, passed, in FC( C) Case No. 77/06 and FC(C) Case No. 364/2008, respectively, by the learned Prin cipal Judge, Family Court, Kamrup, Guwahati. 2. While FC(C) Case No. 77/06 had been instituted, under Section 9 of the H indu Marriage Act, 1955, by the present appellant, namely, Purnima Upadhyaya, wh o is wife of the respondent herein, seeking restitution of her conjugal rights w ith her husband, FC(C) 364/2008, had been instituted on the basis of an applicat ion, made by the respondent herein, namely, Baburam Sharma, under Section 13 of the Hindu Marriage Act, 1955, seeking dissolution of marriage with his wife, who is the appellant herein. 3. As the application, made by the wife, under Section 9 of the Hindu Marri age Act, 1955, for restitution of conjugal rights with her husband, has been dis missed and the husband’s application, made under Section 13 of the Hindu Marriag e Act, 1955, seeking decree of dissolution of marriage, has been allowed, the wi fe has preferred both these appeals. 4.
Legal Reasoning
We have heard Mr. N. N. Upadhyaya, learned counsel for the appellant, in the two appeals, and Mr. P. C. Dey, learned counsel for the respondent in both the appeals. The appellant, who is wife of the respondent herein, filed, on 17.03.200 5. 6, a suit, under Section 9 of the Hindu Marriage Act, 1955, for restitution of c onjugal rights with the respondent herein. Thereafter, the respondent filed a p etition, on 11.08.2008, under Section 13 of the Hindu Marriage Act, 1955, for di ssolution of his marriage with the appellant herein. As already indicated above , the learned Principal Judge dismissed the petition for restitution of conjugal rights filed by the appellant and passed the decree of dissolution of marriage between the parties. Since the decree, passed in both the cases, have been chal lenged in these appeals, we, as indicated above, propose to dispose of both the appeals by this common judgement. 6. The marriage between the parties was solemnized, on 10.05.2005, accordin g to the Hindu rites and customs. The husband-respondent is a resident of Nahol ia and, at the time of marriage, he was employed, at New Delhi, in a computer in stitute. After their marriage, the appellant was taken by the respondent to New Delhi and while she was with her husband at New Delhi, respondent sent the appe llant back to his parental house, at Naholia, on 26.07.2005, because his mother was ailing. It is the case of the appellant that the husband-respondent had pro mised that he would come to his home, at Naholia, within a week, but he did not come and, when he did not come, the appellant contacted him over phone, but her husband behaved in rude manner and threatened to divorce her. It is also the ca se of the appellant that in the month of September, 2005, the appellant came to her paternal house to celebrate Teej festival and, immediately after the Teej fe stival, she, along with her elder brother, went to New Delhi, but the husband-re spondent refused to accept her as wife; rather, she was physically and mentally tortured. It is the further case of the appellant that the husband-respondent t old her (i.e., the appellant), on 25.09.2005, to accompany him to his house, at Naholia, on 27.09.2005 and both the parties accordingly proceeded for Naholia fr om New Delhi, but, on arriving at Guwahati, on 30.09.2005, respondent took the a ppellant to her parental house, at North Guwahati, and left her there and, since then, the appellant has had been residing with her parents and, hence, she file d the application, as already indicated above, for restitution of conjugal right s. 7. The husband-respondent contested the case by filing a written statement, wherein he stated that he requested his wife (appellant) to stay at his parenta l house, at Naholia, for some time so that she could attend to his ailing mother , but the appellant did not agree and, therefore, he was compelled to take her t o New Delhi. It is also the case of the husband-respondent that when the appell ant was at her paternal house, he requested her to attend to his ailing mother t ill her recovery, but the appellant abused him in filthy language and, when the appellant came to New Delhi, leaving her husband’s ailing mother alone at Naholi a, the husband-respondent tried to persuade his wife (i.e., appellant) to stay w ith his mother, but the appellant picked up quarrel and expressed her intention that she would not live at Naholia. It is the case of the husband-respondent th at in the month of September, 2005, the appellant came with her brother to New D elhi and started abusing the respondent and told her husband that she would revi ve the marital-tie provided the respondent discontinues his relation with his mo ther and allows the wife-appellant to live at New Delhi. However, according to the husband-respondent, he failed to accept this proposal as his mother was very old and none else was there to look after her there. Thereafter, the appellant came back to her parental house deserting the respondent. It was also alleged by the husband-respondent, in the suit relating to restitution of conjugal rights, that the appellant filed a false case against him at CID Police station. The h usband-respondent contended that it was the appellant, who had deserted and trea ted him with cruelty, and, therefore, there was no possibility of restoration of their conjugal life. 8. In the petition filed by the husband-respondent under Section 13 of t he Hindu Marriage Act, 1955, praying for decree of dissolution of marriage, the husband-respondent has alleged that the appellant has been staying at her parent al house on her own volition, she belongs to a very well to do family, but the p etitioner is from a very simple middle class family and, hence, the appellant co uld not adjust herself with the family environment of her husband and wanted to live with her husband separately instead of residing at her husband’s native hou se at Naholia and that she lodged a case, at CID Police Station, only to harass him. 9. The appellant herein contested the case, instituted by her husband, by filing a written statement, wherein she has averred that her mother-in-law had b een living, at Naholia, with her husband and two other sons, daughter-in-law and a youngest daughter and, hence, the contention of the husband-respondent that t here was none to look after his ailing mother was false. The appellant has also averred, in her written statement, that she had taken proper care of her ailing mother-in-law and never abused or misbehaved with her mother-in-law. According to the appellant, as her husband deserted her without any just cause and never tried to keep contact with her, she filed a case at CID Police Station. 10. In both the cases aforementioned, evidence was adduced by the parties by examining witnesses. The respondent, in his evidence, stated that though af ter his marriage with the appellant, he tried to pursuade his wife to stay at hi s parental house, at Naholia, and look after his ailing mother, the appellant di d not agree and insisted to live with him at New Delhi and, hence, she was taken to New Delhi, but in the 3rd week of June, 2005, he got information that his mo ther was seriously ill and there was nobody to look after his mother and he aske d his wife to go to Naholia and although she went to Naholia, she started quarr elling with him. The respondent also alleged, in his evidence, that his wife was never a good wife and she never discharged her duties as a good wife; rather, u pon coming to Naholia, his wife often scolded his bed-ridden mother-in-law and, instead of taking care of his ailing mother, she went to her parental house at North Guwahati. It is in the evidence of the respondent that in the first week of Sep 11. tember, 2005, his wife left her matrimonial home after abusing her mother-in-law and, thereafter, she went to New Delhi with her brother and both started abusin g him and that she placed a condition before him that she would not return to he r parental home if her husband would never send her to his parental house, at Na holia, and, thereafter, she returned back to Guwahati along with her brother and never came to her matrimonial house and that she also lodged a false case again st him. 12. However, the husband-respondent’s brother, Harilal Sharma, who was exami ned as DW 2, in the divorce case, has stated in his cross-examination, that the appellant came to Naholia from New Delhi, while his mother was sick. DW2 has cl early deposed that he did not see the appellant misbehaving with his ailing moth er. This witness (DW2) has, rather, admitted that his younger brother resides w ith his parents. DW2 could not say about any quarrel between the parties in New Delhi. Similarly, DW.3, Buddi Sagar Upadhyay, who was examined, in the divorce suit, by the husband-respondent, stated that he had not seen the occurrence, w hich had allegedly taken place in New Delhi, but he stated that at Naholia, he h ad seen, once, the appellant not responding to her mother-in-law. 13. The observations of the learned trial Court that DW.2 and DW3 have sup ported the evidence of the husband-respondent on material particulars are, there fore, not factually correct. Neither DW.2 nor DW.3 saw the appellant abusing her ailing mother-in-law or misbehaving with her or causing mental harassment to he r husband. 14. The appellant, in her evidence, reiterated the contentions embodied in her pleadings. Her evidence was corroborated by PW.2, Ruma Sarma, examined in t he proceeding of restitution of conjugal life, to the extent that he came to kno w that the husband had neither communicated with the appellant since the day she came to her parental house. PW.3, Thaneswar Sarma, has stated that he went to N ew Delhi with his children to enjoy summer holidays and the husband-respondent r equested him to take the appellant to the husband-respondent’s house, at Naholia , so that the appellant could take care of her ailing mother-in-law and he (PW3) accordingly brought the appellant to her matrimonial house and that after the T eej festival, he, again, took the appellant to the respondent’s house at New Del hi, but they were not welcomed properly. PW3 has alleged that on 30-09-2005, the couple came to his residence at Guwahati and the appellant left the respondent there and, since then, the respondent has not contacted the appellant and he has , thus, deserted the appellant without any cause. 15. In her written statement filed by the appellant in the divorce suit, th e respondent has averred that when her husband, on the pretext of taking her to Naholia from New Delhi, took her to North Guwahati and, after keeping her in her parental house, vanished from there, she fell ill. She, therefore, filed a pet ition for restitution of their conjugal rights, but the notice of the same could not be served on the respondent, although she took all efforts to serve the not ice. As the notice could not be served, she sent e-mail, dated 14-06-2006, to t he President of India, Rastrapati Bhawan, and her complaint was forwarded by the Secretary, Rastrapati Bhawan, to the Government of Assam and the Additional Sec retary to the State Government forwarded her complaint to the Director General o f Police asking for report and the Director General of Police, in turn, forwarde d the said complaint to the Sr. Superintendent of Police, City Guwahati, and, la ter on, the senior Superintendent of Police forwarded the same to DSP, Panbazar, and as the appellant did not get any information regarding her complaint, she a pproached the All Women Police Station, at Panbazar, whereupon the Officer-in-ch arge of the All Women Police Station advised her to file a complaint before the CID and, accordingly, she (the appellant) lodged a complaint, dated 17-04-2007, with the Superintendent of Police (CID). 16. Learned counsel for the respondent, relying on the case of Kalya n Neog Vs. Rashmi Rekha Hazarika Neog, (2010) 5 GLT 24, has submitted that in In dian Society, it is obligatory for the wife to be dutiful not only to her husban d, but to other family members and the persistenct insistence, on the part of th e wife, to live separately constitutes cruelty. In Kalyan Neog (supra), both parents of the husband were ailing and ther 17. e was none to look after them; whereas the mother of the husband- respondent, in the present case, although ailing, had been residing with her husband and other sons as well as daughters-in-law. Therefore, the contention of the husband- res pondent that there was none to look after his ailing mother, at Naholia, was not true. As regards the misbehaviour/abuse by the wife-appellant towards her moth er-in-law, we find that the same has not been corroborated by the evidence of th e respondent’s own brothers. Admittedly, the husband was residing at New Delhi a nd he had no occasion to see the behaviour of his wife towards his mother. The b rothers, who were examined by him, did not see any such misbehaviour on the part of the wife-appellant. Only DW3 has stated that once, the respondent-wife did not respond to her mother-in-law. Not responding only once, as noticed by DW3, c annot be termed ’cruelty’ within the meaning of Section 13 of the Hindu Marriage Act, 1955. 18. It is also in the evidence on record that when the appellant was at New Delhi, the appellant was asked by her husband to go to Naholia to attend to his ailing mother and the appellant did come to Naholia and attended to her husband ’s ailing mother. It also appears from the evidence on record that when she, aga in, went to New Delhi, she was brought to her parental house by the husband and left her there. Therefore, the contention of the husband-respondent that the wif e deserted him with an intention to end the marital-tie cannot be accepted. 19. Another allegation of the husband- respondent is that the wife lodge d a complaint at CID Police Station against him. She wrote a letter to the Presi dent of India alleging dowry harassment. According to the respondent, the condu ct of the appellant, in lodging case against the husband at the CID Police Stati on, can be termed as cruelty. What needs to be noted, in this regard, is that th e respondent filed a petition for restitution of her conjugal rights, but due to non-service of summons, as she averred in her written statement, she lodged com plaint against her husband, wherein the allegation of the dowry demand was made. Thus, from the materials on record, it appears that both parties were at fault. 20. In the last part of 2005, when the appellant was left at her matrimonial house by her husband, she filed, on 17-03-2006, an application for restitution of her conjugal rights and, thereafter, on 14-06-2006, she sent, by way of an e- mail, to the President of India, a complaint with the heading ’Dowry Harassment’ . It appears from the records that charge sheet, under Sections 498A/120(B) IPC , has already been submitted against the husband-respondent. 21. Considering the fact that a charge-sheet has already been laid in the cr iminal case aforementioned, it was inappropriate, on the part of the learned Cou rt below, and it would be inappropriate, on the part of this Court, too, as an a ppellate Court, to determine the veracity and/or correctness of the allegations, which have been made the foundation for criminal prosecution of the appellant. 22. As regards the husband-respondent’s case that his wife had deserted him, suffice it to point out that the husband-respondent has miserably failed to pro ve that the wife-appellant had deserted him. On the other hand, the wife-appell ant has clearly succeeded in establishing that the husband-respondent is unwilli ng to keep the appellant with him, at New Delhi, and treat her as his wife and h e, rather, wants the appellant to remain at Naholia and look after his mother, w hile there are others, too, in the family, who have equal responsibility in the matter. 23. Situated thus, while the husband-respondent’s case, seeking dissolution of his marriage with his wife, ought not to have been granted, his wife’s (i.e., the present appellant’s) application, seeking restitution of her conjugal right
Decision
s, ought to have been allowed. 24. In the result and for the reasons discussed above, these two appeals suc ceed. We accordingly set aside the impugned decree dissolving the marriage of t he appellant with the respondent and we also set aside and reverse the decree, w herbythe learned Court below has declined to grant a decree for restitution of t he appellant’s conjugal rights. Both the appeals are accordingly allowed. 25. . 26. posed of. 27. With the above observations and directions, both these appeals stand dis Let appropriate decrees be drawn in terms of the decisions reached above Send back the LCRs.