Thursday, January 10, 2013
Divorce under Section 13(1) (ia) of The Hindu Marriage Act, 1955
“Keeping in view the aforesaid enunciation of law pertaining to mental cruelty, it is to be scrutinized whether in the case at hand, there has been real mental cruelty or not, but, a significant one, the said scrutiny can only be done if the findings are perverse, unreasonable, against the material record or based on non-consideration of relevant materials. We may note here that the High Court has, in a singular line, declined to interfere with the judgment and decree of the courts below stating that they are based on concurrent findings of fact. The plea of perversity of approach though raised was not adverted to.”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4905 OF 2012
(Arising out of S.L.P. (Civil) No. 16528 of 2007)
Vishwanath S/o Sitaram Agrawal .....……..Appellant
Sau. Sarla Vishwanath Agrawal ………Respondent
J U D G M E N T
DIPAK MISRA, J.
2. The marriage between the appellant and the respondent was solemnized on the 30th of April, 1979 as per the Hindu rites at Akola. In the wedlock, two sons, namely, Vishal and Rahul, were born on 23.9.1982 and 1.11.1984 respectively. As the appellant-husband felt that there was total discord in their marital life and compatibility looked like a mirage, he filed a petition for divorce under Section 13(1) (ia) of The Hindu Marriage Act, 1955 (for brevity ‘the Act’).
3. It was the case of the appellant before the court of first instance that the respondent-wife did not know how to conduct herself as a wife and daughter-in-law and despite persuasion, her behavioural pattern remained unchanged. The birth of the children had no impact on her conduct and everything worsened with the efflux of time. The behaviour of the respondent with the relatives and guests who used to come to their house was far from being desirable and, in fact, it exhibited arrogance and lack of culture and, in a way, endangered the social reputation of the family. That apart, she did not have the slightest respect for her mother-in-law. Despite the old lady being a patient of diabetes and hyper tension, it could not invoke any sympathy from the respondent and hence, there was total absence of care or concern.
4. As pleaded, in the month of March, 1990, there was a dacoity in the house where the appellant was staying and, therefore, they shifted to the ginning factory and eventually, on 17.3.1991, shifted to their own three storeyed building situate in Gandhi Chowk. Even with the passage of time, instead of bringing maturity in the attitude of the respondent, it brought a sense of established selfishness and non-concern for the children. Whim and irrationality reigned in her day-to-day behaviour and frequent quarrels became a daily affair. As misfortune would have it, on 23.1.1994, the mother of the appellant died and the freer atmosphere at home gave immense independence to the respondent to make the life of the appellant more troublesome. The appellant and his father were compelled to do their personal work as the entire attention of the servants was diverted in a compulsive manner towards her. Her immature perception of life reached its zenith when on certain occasions she used to hide the keys of the motorcycle and close the gate so that the appellant could not go to the office of the factory to look after the business. Frequent phone calls were made to the factory solely for the purpose of abusing and causing mental agony to the appellant. As asserted, the appellant and his sons used to sleep on the second floor whereas the respondent used to sleep in the bedroom on the third floor and their relationship slowly but constantly got estranged. As the cruelty became intolerable, the appellant visited his in-laws and disclosed the same but it had no effect on her behaviour. Eventually, on 1.5.1995, the respondent was left at the house of her parents at Akola and the appellant stayed in his house with the two sons. As the factual matrix would unveil, on 24.7.1995, a notice issued by her advocate was published in the daily “Lokmat” stating, inter alia, that the appellant is a womaniser and addicted to liquor. On 11.10.1995, at 4.00 p.m., the respondent came to the house of the appellant at Gandhi Chowk and abused the father, the children and the appellant. She, in fact, created a violent atmosphere in the house as well as in the office by damaging the property and causing mental torture to the appellant and also to the family members which compelled the appellant to lodge a complaint at the Police Station, Chopda. It was alleged that she had brought gundas and certain women to cause that incident. The said untoward incident brought the A.S.P., Jalgaon, to the spot. The publication in the newspaper and the later incident both occurred during the pendency of the divorce petition and they were incorporated by way of amendment. On the aforesaid basis, it was contended that the respondent had treated the appellant with cruelty and hence, he was entitled to a decree for divorce.
5. The asseverations made in the petition were controverted by the respondent stating that she was always respectful and cordial to her in- laws, relatives and the guests as was expected from a cultured daughter-in- law. They led a happy married life for 16 years and at no point of time she showed any arrogance or any behaviour which could remotely suggest any kind of cruelty. She attended to her mother-in-law all the time with a sense of committed service and at no point of time there was any dissatisfaction on her part. She disputed the allegation that she had hidden the keys of the motorcycle or closed the gate or repeatedly called the appellant on phone at the office to abuse him or to disturb him in his work. It is her stand that the appellant owns an oil mill, ginning factory and a petrol pump at Chopda and had sold certain non-agricultural land by demarcating it into small plots. The appellant, as alleged, joined the computer classes which were run by one Neeta Gujarathi in the name and style of “Om Computer Services” and gradually the appellant started spending much of his time at the computer centre instead of attending to his own business in the factory. When the respondent became aware of the intimacy, she took serious objection to the same and therefrom their relationship became bitter.
6. It was alleged by the respondent that she was disturbed after knowing about the involvement of the appellant with another lady despite having an established family life and two adolescent sons and, therefore, she was compelled to make phone calls to make enquiries about his whereabouts. As the interference by the respondent was not appreciated by the appellant, he took the respondent on 1.5.1995 to Akola and left her at her parental house and never cared to bring her back to her matrimonial home. Her willingness to come back and stay with the husband and children could not get fructified because of the totally indifferent attitude shown by the appellant. Her attempts to see the children in the school became an exercise in futility, as the husband, who is a trustee of the school, managed to ensure that the boys did not meet her. It was further alleged that the said Neeta lived with him as his mistress and when the respondent came to know about it, she went to Chopda to ascertain the same and coming to know that Neeta was in the house of the appellant, she made an effort to enter into the house but she was assaulted. This resulted in gathering of people of the locality and the appellant-husband, as a counter-blast, lodged a complaint at the police station. The Deputy Superintendent of Police arrived at the scene and found that Neeta was inside the house and thereafter she was taken back to her house by the police. Because of the involvement of the appellant with the said Neeta, he had concocted the story of cruelty and filed the petition for divorce.
7. The learned trial Judge framed as many as four issues. The two vital issues were whether the appellant had been able to prove the alleged cruelty and whether he was entitled to take disadvantage of his own wrong. The appellant, in order to prove the allegation of cruelty, examined ten witnesses and on behalf of the respondent, eight witnesses were examined. The learned trial Judge, analysing the evidence on record, came to hold that there was conjugal relationship till 1.5.1995; that there was no substantial material on record to demonstrate that the respondent had behaved with immaturity immediately after marriage; that in the absence of cogent evidence, it was difficult to hold that the respondent had troubled the husband and his parents; that the evidence of PW-3, Ramesh, was not worthy of acceptance as he is close and an interested witness; that the allegation that whenever she used to go to her parental home, she was granting leave to the servants was not acceptable; that the appellant should have examined some of the servants including the maid servant but for some reason or other had withheld the best evidence; that the plea that the respondent was not looking after her mother-in-law who was suffering from paralysis from 1984 has not been proven; that the allegation that the respondent was hiding the uniforms of the children and not treating them well had not been proven because the version of Vishal could not be accepted as he was staying with the father and, therefore, it was natural for him to speak in favour of the father; that the stand that the respondent was hiding the keys of the motorcycle and crumpling the ironed clothes of the appellant did not constitute mental cruelty as the said acts, being childish, were enjoyed by the appellant-husband; that the factum of abuse by the respondent on telephone had not been established by adducing reliable evidence; that the respondent and the appellant were sleeping on the third floor of the house and hence, she was sleeping with him in the bedroom and the allegation that he was deprived of sexual satisfaction from 1991 was unacceptable; that from the witnesses cited on behalf of the respondent, it was demonstrable that her behaviour towards her sons and in-laws was extremely good; that even if the allegations made by the appellant were accepted to have been established to some extent, it could only be considered as normal wear and tear of the marital life; that the plea of mental cruelty had not been proven as none of the allegations had been established by adducing acceptable, consistent and cogent evidence; that the notice published in the daily “Lokmat” on 28.7.1995 and the later incident dated 11.10.1995 being incidents subsequent to the filing of the petition for divorce, the same were not to be taken into consideration.
8. The learned trial Judge further returned the finding that the appellant was going to learn computer and taking instructions from Neeta Gujarathi and the plea that she was engaged as a Computer Operator in his office was not believable as no appointment letter was produced; that the stand that she was paid Rs.1200/- per month was not worthy of any credence as she was operating a computer centre; that from the evidence of the witnesses of the respondent, namely, RW-3 to RW-5, it was clear that Neeta Gujarathi was living with the appellant in his house and he had developed intimacy with her and, therefore, the subsequent events, even if analysed, were to be so done on the said backdrop; that the allegation that there was a gathering and they were violent and broke the windows was really not proven by adducing credible evidence; that the testimony of the witnesses of the respondent clearly reveal that Neeta was inside the house of the appellant and effort was made to bring her out from the house and no damage was caused to the property; that on that day, the police had come in the mid night hours and taken out Neeta from the house of the appellant and left her at her house; that the notice which was published in “Lokmat” was to protect the interest of the sons in the property and basically pertained to the appellant’s alienating the property; that the public notice was not unfounded or baseless and the question of defaming him and thereby causing any mental cruelty did not arise; that the allegations made in the application for grant of interim alimony that the appellant is a womaniser and is addicted to liquor cannot be considered for the purpose of arriving at the conclusion that the husband was meted with cruelty; that the allegations made in the written statement having been found to be truthful, the same could not be said to have caused any mental cruelty; that the cumulative effect of the evidence brought on record was that no mental cruelty was ever caused by the respondent; and that the husband could not take advantage of his own wrong. Being of this view, the learned trial Judge dismissed the application with costs and also dismissed the application of the respondent-wife for grant of permanent alimony.
9. Grieved by the aforesaid decision, the appellant-husband preferred Civil Appeal No. 23 of 1999. The first appellate court appreciated the evidence, dealt with the findings returned by the trial court and eventually came to hold that the cumulative effect of the evidence and the material brought on record would go a long way to show that the appellant had failed to make out a case of mental cruelty to entitle him to obtain a decree for divorce. The aforesaid conclusion by the appellate court entailed dismissal of the appeal.
10. Being dissatisfied with the judgment and decree passed by the learned appellate Judge, the husband preferred Second Appeal No. 683 of 2006 before the High Court. The learned single Judge of the High Court came to hold that there were concurrent findings of fact and no substantial question of law was involved. However, the learned single Judge observed that the sons of the parties had grown up and have been married; that the parties had no intention to patch up the matrimonial discord; and that the marriage had been irretrievably broken but that could not be considered by the High Court but only by the Apex Court under Article 142 of the Constitution. Expressing the aforesaid view, he did not admit the appeal and dismissed the same.
11. We have heard Mr. Arvind V. Sawant, learned senior counsel for the appellant-husband, and Mr. Vivek C. Solshe, learned counsel for the respondent-wife.
12. At the very outset, we would like to make it clear that though the learned single Judge of the High Court has expressed the view that the parties are at logger heads and have shown no inclination to patch the matrimonial rupture and the sons have grown up and got married and with the efflux of time, the relationship has been further shattered and hence, the marriage is irretrievably broken and only this Court can grant divorce in exercise of power under Article 142 of the Constitution, yet we are not going to take recourse to the same and only address ourselves whether a case for divorce has really been made out.
13. At this juncture, we may note with profit that the learned senior counsel for the appellant exclusively rested his case on the foundation of mental cruelty. It is his submission that if the evidence of the husband and other witnesses are scrutinized in an apposite manner along with the stand and stance taken in the written statement, it will clearly reveal a case of mental cruelty regard being had to the social status of the appellant. It is urged by him that the trial court as well as the appellate court have not given any credence to the evidence of some of the witnesses on the ground that they are interested witnesses though they are the most natural witnesses who had witnessed the cruel behaviour meted to the appellant.
14. It is the submission of the learned senior counsel for the appellant that the court of first instance as well as the appellate court have failed to take into consideration certain material aspects of the evidence and the appreciation of evidence being absolutely perverse, the High Court would have been well advised to scan and scrutinize the same but it declined to admit the appeal on the ground that there are concurrent findings of fact. It is canvassed by him that this Court, in exercise of power under Article 136 of the Constitution, can dislodge such concurrent findings of facts which are perverse, baseless, unreasonable and contrary to the material on record.
15. The learned counsel for the respondent, resisting the aforesaid submissions, contended that the view expressed by the High Court cannot be found fault with as the courts below have, at great length, discussed the evidence and appreciated the same with utmost prudence and objectivity and there is nothing on record to show that any material part of the evidence has been ignored or something extraneous to the record has been taken into consideration. It is highlighted by him that the stand put forth by the wife in her written statement having been established, the same cannot be construed to have constituted mental cruelty. Lastly, it is put forth that the appellant has created a dent in the institution of marriage and made a maladroit effort to take advantage of his own wrong which should not be allowed.
16. First, we shall advert to what actually constitutes ‘mental cruelty’ and whether in the case at hand, the plea of mental cruelty has been established and thereafter proceed to address whether the courts below have adopted an approach which is perverse, unreasonable and unsupported by the evidence on record and totally unacceptable to invite the discretion of this Court in exercise of power under Article 136 of the Constitution to dislodge the same.
17. The expression ‘cruelty’ has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. In Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and another, a two-Judge Bench approved the concept of legal cruelty as expounded in Sm. Pancho v. Ram Prasad wherein it was stated thus: -
“Conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used.
Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife.”
It is apt to note here that the said observations were made while dealing with the Hindu Married Women’s Right to Separate Residence and Maintenance Act (19 of 1946). This Court, after reproducing the passage, has observed that the learned Judge has put his finger on the correct aspect and object of mental cruelty.
18. In Shobha Rani v. Madhukar Reddi, while dealing with ‘cruelty’ under Section 13(1)(ia) of the Act, this Court observed that the said provision does not define ‘cruelty’ and the same could not be defined. The ‘cruelty’ may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. Thereafter, the Bench proceeded to state as follows: -
“First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”
19. After so stating, this Court observed about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that when a spouse makes a complaint about treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. Their Lordships referred to the observations made in Sheldon v. Sheldon wherein Lord Denning stated, “the categories of cruelty are not closed”. Thereafter, the Bench proceeded to state thus: -
“Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.
These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Ried observed in Gollins v. Gollins :
In matrimonial affairs we are not dealing with
objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.”
20. In V. Bhagat v. D. Bhagat (Mrs.), a two-Judge Bench referred to the amendment that had taken place in Sections 10 and 13(1)(ia) after the Hindu Marriage Laws (Amendment) Act, 1976 and proceeded to hold that the earlier requirement that such cruelty has caused a reasonable apprehension in the mind of a spouse that it would be harmful or injurious for him/her to live with the other one is no longer the requirement. Thereafter, this Court proceeded to deal with what constitutes mental cruelty as contemplated in Section 13(1)(ia) and observed that mental cruelty in the said provision can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. To put it differently, the mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was further observed, while arriving at such conclusion, that regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances. What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations have to be scrutinized in the context in which they are made. Be it noted, in the said case, this Court quoted extensively from the allegations made in the written statement and the evidence brought on record and came to hold that the said allegations and counter allegations were not in the realm of ordinary plea of defence and did amount to mental cruelty.
21. In Praveen Mehta v. Inderjit Mehta, it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.
22. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, it has been opined that a conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot be so lightly ignored or brushed aside.
23. In A. Jayachandra v. Aneel Kaur, it has been ruled that the question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. If from the conduct of the spouse, it is established and/or an inference can legitimately be drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse about his or her mental welfare, then the same would amount to cruelty. While dealing with the concept of mental cruelty, enquiry must begin as to the nature of cruel treatment and the impact of such treatment in the mind of the spouse. It has to be seen whether the conduct is such that no reasonable person would tolerate it.
24. In Vinita Saxena v. Pankaj Pandit, it has been ruled that as to what constitutes mental cruelty for the purposes of Section 13(1)(ia) will not depend upon the numerical count of such incident or only on the continuous course of such conduct but one has to really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home.
25. In Samar Ghosh v. Jaya Ghosh, this Court, after surveying the previous decisions and referring to the concept of cruelty, which includes mental cruelty, in English, American, Canadian and Australian cases, has observed that the human mind is extremely complex and human behaviour is equally complicated. Similarly, human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances.
26. In Suman Kapur v. Sudhir Kapur, after referring to various decisions in the field, this Court took note of the fact that the wife had neglected to carry out the matrimonial obligations and further, during the pendency of the mediation proceeding, had sent a notice to the husband through her advocate alleging that he had another wife in USA whose identity was concealed. The said allegation was based on the fact that in his income-tax return, the husband mentioned the “Social Security Number” of his wife which did not belong to the wife, but to an American lady. The husband offered an explanation that it was merely a typographical error and nothing else. The High Court had observed that taking undue advantage of the error in the “Social Security Number”, the wife had gone to the extent of making serious allegation that the husband had married an American woman whose “Social Security Number” was wrongly typed in the income-tax return of the husband. This fact also weighed with this Court and was treated that the entire conduct of the wife did tantamount to mental cruelty.
27. Keeping in view the aforesaid enunciation of law pertaining to mental cruelty, it is to be scrutinized whether in the case at hand, there has been real mental cruelty or not, but, a significant one, the said scrutiny can only be done if the findings are perverse, unreasonable, against the material record or based on non-consideration of relevant materials. We may note here that the High Court has, in a singular line, declined to interfere with the judgment and decree of the courts below stating that they are based on concurrent findings of fact. The plea of perversity of approach though raised was not adverted to.
28. It is worth noting that this Court, in Kulwant Kaur v. Gurdial Singh Mann (dead) by L.Rs. and others, has held that while it is true that in a second appeal, a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. An issue pertaining to perversity comes within the ambit of substantial question of law. Similar view has been stated in Govindaraju v. Mariamman.
29. In Major Singh v. Rattan Singh (Dead) by LRs and others, it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.
30. In Vidhyadhar v. Manikrao and another, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board & Ors. .
31. Having stated the law relating to mental cruelty and the dictum of this Court in respect of the jurisdiction of the High Court where concurrent findings of fact are assailed, as advised at present, we will scan the evidence whether the High Court has failed to exercise the jurisdiction conferred on it despite the plea of perversity being raised. Any finding which is not supported by evidence or inferences is drawn in a stretched and unacceptable manner can be said to be perverse. This Court in exercise of power under Article 136 of the Constitution can interfere with concurrent findings of fact, if the conclusions recorded by the High Court are manifestly perverse and unsupported by the evidence on record. It has been so held in Alamelu and another v. State, Represented by Inspector of Police and Heinz India Pvt. Ltd. & Anr. v. State of U.P. & Ors.
32. Presently, to the core issue, viz, whether the appellant-husband had made out a case for mental cruelty to entitle him to get a decree for divorce. At this juncture, we may unhesitantly state that the trial court as well as the first appellate court have disbelieved the evidence of most of the witnesses cited on behalf of the husband on the ground that they are interested witnesses. In a matrimonial dispute, it would be inappropriate to expect outsiders to come and depose. The family members and sometimes the relatives, friends and neighbours are the most natural witnesses. The veracity of the testimony is to be tested on objective parameters and not to be thrown overboard on the ground that the witnesses are related to either of the spouse. Exception has been taken by the courts below that the servants of the house should have been examined and that amounts to suppression of the best possible evidence. That apart, the allegations made in the written statement, the dismissal of the case instituted by the wife under Section 494 of the Indian Penal Code, the non-judging of the material regard being had to the social status, the mental make-up, the milieu and the rejection of subsequent events on the count that they are subsequent to the filing of the petition for divorce and also giving flimsy reasons not to place reliance on the same, we are disposed to think, deserve to be tested on the anvil of “perversity of approach”. Quite apart from the above, a significant question that emerges is whether the reasons ascribed by the courts below that the allegations made in the written statement alleging extra marital affair of the appellant-husband with Neeta Gujarathi has been established and, therefore, it would not constitute mental cruelty are perverse and unacceptable or justified on the basis of the evidence brought on record. These are the aspects which need to be scrutinized and appositely delved into.
33. The appellant-husband, examining himself as PW-1, has categorically stated that the wife used to hide the pressed clothes while he was getting ready to go to the factory. Sometimes she used to crumple the ironed clothes and hide the keys of the motorcycle or close the main gate. In the cross-examination, it is clearly stated that the wife was crumpling the ironed clothes, hiding the keys of the motorcycle and locking the gate to trouble him and the said incidents were taking place for a long time. This being the evidence on record, we are at a loss to find that the courts below could record a finding that the appellant used to enjoy the childish and fanciful behaviour of the wife pertaining to the aforesaid aspect. This finding is definitely based on no evidence. Such a conclusion cannot be reached even by inference. If we allow ourselves to say so, even surmises and conjectures would not permit such a finding to be recorded. It is apt to note here that it does not require Solomon’s wisdom to understand the embarrassment and harassment that might have been felt by the husband. The level of disappointment on his part can be well visualised like a moon in a cloudless sky.
34. Now we shall advert to the allegation made in the written statement. The respondent-wife had made the allegation that the husband had an illicit relationship with Neeta Gujarathi. The learned trial Judge has opined that the said allegation having been proved cannot be treated to have caused mental cruelty. He has referred to various authorities of many High Courts. The heart of the matter is whether such an allegation has actually been proven by adducing acceptable evidence. It is worth noting that the respondent had filed a complaint, RCC No. 91/95, under Section 494 of the Indian Penal Code against the husband. He was discharged in the said case. The said order has gone unassailed. The learned trial Judge has expressed the view that Neeta Gujarathi was having a relationship with the husband on the basis that though the husband had admitted that she was working in his office yet he had not produced any appointment letter to show that she was appointed as a computer operator. The trial Judge has relied on the evidence of the wife. The wife in her evidence has stated in an extremely bald manner that whenever she had telephoned to the office in the factory, the husband was not there and further that the presence of Neeta Gujarathi was not liked by her in-laws and the elder son Vishal. On a careful reading of the judgment of the trial court, it is demonstrable that it has been persuaded to return such a finding on the basis of the incident that took place on 11.10.1995. It is worth noting that the wife, who examined herself as RW-1, stated in her evidence that Vishal was deposing against her as the appellant had given him a scooter. The learned trial Judge has given immense credence to the version of the social worker who, on the date of the incident, had come to the house of the appellant where a large crowd had gathered and has deposed that she had seen Neeta going and coming out of the house. The evidence of the wife, when studiedly scrutinized, would show that there was more of suspicion than any kind of truth in it. As has been stated earlier, the respondent had made an allegation that her son was influenced by the appellant-husband. The learned trial Judge as well as the appellate court have accepted the same. It is germane to note that Vishal, the elder son, was approximately 16 years of age at the time of examination in court. There is remotely no suggestion to the said witness that when Neeta Gujarati used to go to the house, his grandfather expressed any kind of disapproval. Thus, the whole thing seems to have rested on the incident of 11.10.1995. On that day, as the material on record would show, at 4.00 p.m., the wife arrived at the house of the husband. She has admitted that she wanted to see her father- in-law who was not keeping well. After she went in, her father-in-law got up from the chair and went upstairs. She was not permitted to go upstairs. It is testified by her that her father-in-law came down and slapped her. She has deposed about the gathering of people and publication in the newspapers about the incident. Vishal, PW-5, has stated that the mother had pushed the grandfather from the chair. The truthfulness of the said aspect need not be dwelled upon. The fact remains that the testimony of the wife that the father-in-law did not like the visit of Neeta does not appear to be true. Had it been so, he would not have behaved in the manner as deposed by the wife. That apart, common sense does not give consent to the theory that both, the father of the husband and his son, Vishal, abandoned normal perception of life and acceded to the illicit intimacy with Neeta. It is interesting to note that she has deposed that it was published in the papers that the daughter-in-law was slapped by the father- in-law and Neeta Gujarathi was recovered from the house but eventually the police lodged a case against the husband, the father-in-law and other relatives under Section 498A of the Indian Penal Code. We really fail to fathom how from this incident and some cryptic evidence on record, it can be concluded that the respondent-wife had established that the husband had an extra marital relationship with Neeta Gujarathi. That apart, in the application for grant of interim maintenance, she had pleaded that the husband was a womaniser and drunkard. This pleading was wholly unwarranted and, in fact, amounts to a deliberate assault on the character. Thus, we have no scintilla of doubt that the uncalled for allegations are bound to create mental agony and anguish in the mind of the husband.
35. Another aspect needs to be taken note of. She had made allegation about the demand of dowry. RCC No. 133/95 was instituted under Section 498A of the Indian Penal Code against the husband, father-in-law and other relatives. They have been acquitted in that case. The said decision of acquittal has not been assailed before the higher forum. Hence, the allegation on this count was incorrect and untruthful and it can unhesitatingly be stated that such an act creates mental trauma in the mind of the husband as no one would like to face a criminal proceeding of this nature on baseless and untruthful allegations.
36. Presently to the subsequent events. The courts below have opined that the publication of notice in the daily “Lokmat” and the occurrence that took place on 11.10.1995 could not be considered as the said events occurred after filing of the petition for divorce. Thereafter, the courts below have proceeded to deal with the effect of the said events on the assumption that they can be taken into consideration. As far as the first incident is concerned, a view has been expressed that the notice was published by the wife to safeguard the interests of the children, and the second one was a reaction on the part of the wife relating to the relationship of the husband with Neeta Gujrathi. We have already referred to the second incident and expressed the view that the said incident does not establish that there was an extra marital relationship between Neeta and the appellant. We have referred to the said incident as we are of the considered opinion that the subsequent events can be taken into consideration. In this context, we may profitably refer to the observations made by a three-Judge Bench in the case of A. Jayachandra (supra) :-
“The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct.”
37. We may also usefully refer to the observations made in Suman Kapur (supra) wherein the wife had made a maladroit effort to take advantage of a typographical error in the written statement and issued a notice to the husband alleging that he had another wife in USA. Thus, this Court has expressed the opinion that the subsequent events can be considered.
38. Keeping in view the aforesaid pronouncement of law, we shall first appreciate the impact of the notice published in the “Lokmat”. The relevant part of the said notice, as published in the newspaper, reads as follows: -
“Shri Vishwanath Sitaram Agrawal is having vices of womanizing, drinking liquor and other bad habits. He is having monthly income of Rs.10 lacs, but due to several vices, he is short of fund. Therefore, he has started selling the property. He has sold some properties. My client has tried to make him understand which is of no use and on the contrary, he has beaten my client very badly and has driven her away and dropped her to Akola at her parent’s house.
In the property of Shri Vishwanath Sitaram Agrawal my client and her two sons are having shares in the capacity of members of joint family and Shri Vishwanath Sitaram Agrawal has no right to dispose of the property on any ground.”
Immense emphasis has been given on the fact that after publication of the notice, the husband had filed a caveat in the court. The factual matrix would reveal that the husband comes from a respectable family engaged in business. At the time of publication of the notice, the sons were quite grown up. The respondent-wife did not bother to think what impact it would have on the reputation of the husband and what mental discomfort it would cause. It is manifest from the material on record that the children were staying with the father. They were studying in the school and the father was taking care of everything. Such a publication in the newspaper having good circulation can cause trauma, agony and anguish in the mind of any reasonable man. The explanation given by the wife to the effect that she wanted to protect the interests of the children, as we perceive, is absolutely incredible and implausible. The filing of a caveat is wholly inconsequential. In fact, it can decidedly be said that it was mala fide and the motive was to demolish the reputation of the husband in the society by naming him as a womaniser, drunkard and a man of bad habits.
39. At this stage, we may fruitfully reminisce a poignant passage from N.G. Dastane v. S. Dastane wherein Chandrachud, J. (as his Lordship then was) observed thus: -
“The court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures.”
40. Regard being had to the aforesaid, we have to evaluate the instances. In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent-wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicised in the newspapers that he was a womaniser and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious. It can be stated with certitude that the cumulative effect of the evidence brought on record clearly establish a sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband miserable. The husband felt humiliated both in private and public life. Indubitably, it created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity. Thus analysed, it would not be out of place to state that his brain and the bones must have felt the chill of humiliation. The dreams sweetly grafted with sanguine fondness with the passage of time reached the Everstine disaster, possibly, with a vow not to melt. The cathartic effect looked like a distant mirage. The cruel behaviour of the wife has frozen the emotions and snuffed out the bright candle of feeling of the husband because he has been treated as an unperson. Thus, analysed, it is abundantly clear that with this mental pain, agony and suffering, the husband cannot be asked to put up with the conduct of the wife and to continue to live with her. Therefore, he is entitled to a decree for divorce.
41. Presently, we shall deal with the aspect pertaining to the grant of permanent alimony. The court of first instance has rejected the application filed by the respondent-wife as no decree for divorce was granted and there was no severance of marital status. We refrain from commenting on the said view as we have opined that the husband is entitled to a decree for divorce. Permanent alimony is to be granted taking into consideration the social status, the conduct of the parties, the way of living of the spouse and such other ancillary aspects. During the course of hearing of the matter, we have heard the learned counsel for the parties on this aspect. After taking instructions from the respective parties, they have addressed us. The learned senior counsel for the appellant has submitted that till 21.2.2012, an amount of Rs.17,60,000/- has been paid towards maintenance to the wife as directed by the courts below and hence, that should be deducted from the amount to be fixed. He has further submitted that the permanent alimony should be fixed at Rs.25 lacs. The learned counsel for the respondent, while insisting for affirmance of the decisions of the High Court as well as by the courts below, has submitted that the amount that has already been paid should not be taken into consideration as the same has been paid within a span of number of years and the deduction would affect the future sustenance. He has emphasised on the income of the husband, the progress in the business, the inflation in the cost of living and the way of life the respondent is expected to lead. He has also canvassed that the age factor and the medical aid and assistance that are likely to be needed should be considered and the permanent alimony should be fixed at Rs.75 lacs.
42. In our considered opinion, the amount that has already been paid to the respondent-wife towards alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the courts. It is not expected that the respondent-wife has sustained herself without spending the said money. Keeping in view the totality of the circumstances and the social strata from which the parties come from and regard being had to the business prospects of the appellant, permanent alimony of Rs.50 lacs (rupees fifty lacs only) should be fixed and, accordingly, we so do. The said amount of Rs.50 lacs (rupees fifty lacs only) shall be deposited by way of bank draft before the trial court within a period of four months and the same shall be handed over to the respondent-wife on proper identification.
43. Consequently, the appeal is allowed, the judgments and decrees of the courts below are set aside and a decree for divorce in favour of the appellant is granted. Further, the husband shall pay Rs.50 lacs (rupees fifty lacs only) towards permanent alimony to the wife in the manner as directed hereinabove. The parties shall bear their respective costs.
Sourcess: with Thanks to :http://www.indiankanoon.org/doc/180502059/
Saturday, January 5, 2013
Divorce by Mutual consent:
“Whether consent once given in petition for divorce by mutual consent - Can subsequently withdrawn by one of the parties - Yes - Whether Court can grant a decree of divorce by mutual consent ?”
IN THE SUPREME COURT OF INDIA
CIVIL APPEALATE JURISDICTION
CIVIL APPEAL NO. 6288 OF 2008
Hitesh Bhatnagar .............. Appellant versus
Deepa Bhatnagar ..............Respondent J U D G M E N T
H.L. Dattu, J.
1) Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us.
2) The appellant-husband and the respondent-wife got married according to the Hindu Marriage Act, 1955 [hereinafter referred to as `the Act'] in 1994, and are blessed with a daughter a year thereafter. Some time in the year 2000, due to differences in their temperaments, they began 1
to live separately from each other and have been living thus ever since. Subsequently, in 2001, the parties filed a petition under Section 13B of the Act before the District Court, Gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. However, before the stage of second motion and passing of the decree of divorce, the respondent withdrew her consent, and in view of this, the petition came to be dismissed by the Ld. Addl. District Judge, Gurgaon, though the appellant insisted for passing of the decree. The appellant, being aggrieved, has filed appeal No. F.A.O. No. 193 of 2003, before the High Court of Punjab and Haryana. The Learned Judge, by his well considered order, dismissed the appeal vide order dt. 08.11.2006. Being aggrieved by the same, the appellant is before us in this appeal.
3) We have heard the learned counsel for the parties and since the parties wanted to ventilate their grievances, we have heard them also. 4) The issues that arise for our consideration and decision are as under: (a) Whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act.
(b) Whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 5) In order to answer the issues that we have framed for our consideration and decision, Section 13B of the Act requires to be noticed :-
13B. Divorce by mutual consent. - (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
6) Admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. However, before the 3
stage of second motion, the respondent withdrew her consent by filing an application dated 22.03.2003. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent, appearing in-person, submits that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She states that she never wanted divorce and is even now willing to live with the appellant as his wife.
7) The appellant, appearing in-person, submits that at the time of filing of the petition, a settlement was reached between the parties, wherein it was agreed that he would pay her `3.5 lakhs, of which he states he has already paid `1.5 lakhs in three installments. He further states in his appeal, as well as before us, that he is willing to take care of the respondent's and their daughter's future interest, by making a substantial financial payment in order to amicably settle the matter. However, despite repeated efforts for a settlement, the respondent is not agreeable to a decree of divorce. She says that she wants to live with the appellant as his wife, especially for the future of their only child, Anamika.
8) The question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash,(1991) 2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the field.
9) In the case of Sureshta Devi (supra.), this Court took the view: "9. The `living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they `have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.
10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue 5
influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce." On the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this Court held:
"13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties. ... if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". What is significant in this provision is that there should also 6
be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."
10) In the case of Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226, this Court in passing reference, observed:
"16. We are of opinion that in the light of the fact-situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant's counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13-B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi case or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi case, certain observations therein seem to be very wide and may require reconsideration in an appropriate case. In the said case, the facts were: The appellant (wife) before this Court married the respondent therein on 21-11-1968. They did not stay together from 9-12-1984 onwards. On 9-1-1985, the husband and wife together moved a petition under Section 13-B of the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15-1-1985, the wife filed an application in the Court stating that her statement dated 9-1- 1985 was obtained under pressure and threat. She prayed for withdrawal of her consent for the petition filed under Section 13-B and also prayed for dismissal of the petition. 7
The District Judge dismissed the petition filed under Section 13-B of the Act. In appeal, the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. It was found that the appellant (wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that consent. The issue that came up for consideration before this Court was, whether a party to a petition for divorce by mutual consent under Section 13-B of the Act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the date of filing of the joint petition under Section 13-B. It was within the time-limit prescribed under Section 13-B(2) of the Act. On the above premises, the crucial question was whether the consent given could be unilaterally withdrawn. The question as to whether a party to a joint application filed under Section 13-B of the Act can withdraw the consent beyond the time-limit provided under Section 13-B(2) of the Act did not arise for consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In the light of the clear import of the language employed in Section 13-B(2) of the Act, it appears that in a joint petition duly filed under Section 13-B(1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B(1) and still pending shall be adjudicated by the Court as provided in 8
Section 13-B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact-situation herein. The decision in Sureshta Devi case may require reconsideration in an appropriate case. We leave it there."
11) These observations of this Court in the case of Ashok Hurra (supra) cannot be considered to be ratio decidendi for all purposes, and is limited to the facts of that case. In other words, the ratio laid down by this Court in the case of Sureshta Devi (supra) still holds the field. 12) In the case ofSmruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view :-
"40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court did not express any view contrary to the views of this Court in Sureshta Devi. We endorse the views taken by this Court in Sureshta Devi as we find that on a proper construction of the provision in Sections 13-B(1) and 13-B(2), there is no scope of doubting the views taken in Sureshta Devi. In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.
41. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi.
42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.
43. In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent."
13) The appellant contends that the Additional District Judge, Gurgaon, was bound to grant divorce if the consent was not withdrawn within a period of 18 months in view of the language employed in Section 13B(2) of the Act. We find no merit in the submission made by the appellant in the light of the law laid down by this Court in Sureshta Devi's case (supra).
14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub- section (1) and not later than 18 months;
b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and
c. The petition is not withdrawn by either party at any time before passing the decree;
15) In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a 11
complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression `divorce by mutual consent' would be otiose. 16) In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant. 17) In the light of the settled position of law, we do not find any infirmity with the orders passed by the Ld. Single Judge.
18) As a last resort, the appellant submits that the marriage had irretrievably broken down and prays that the Court should dissolve the marriage by exercising its jurisdiction under Article 142 of the Constitution of India. In support of his request, he invites our attention to the observation made by this Court in the case of Anil 12
Kumar Jain v. Maya Jain, (2009) 10 SCC 415, wherein though the consent was withdrawn by the wife, this Court found the marriage to have been irretrievably broken down and granted a decree of divorce by invoking its power under Article 142. We are not inclined to entertain this submission of the appellant since the facts in that case are not akin to those that are before us. In that case, the wife was agreeable to receive payments and property in terms of settlement from her husband, but was neither agreeable for divorce, nor to live with the husband as his wife. It was under these extraordinary circumstances that this Court was compelled to dissolve the marriage as having irretrievably broken down. Hence, this submission of the appellant fails.
19) In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, a Bench of three learned Judges (of which one of us was a party), took the view:
"25. Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or 13
ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties."
20) Following the above observation, this Court in the case of Manish Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the marriage on the ground of irretrievable breakdown of marriage, held: "19. Therefore, the law in this regard can be summarised to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy."
21) In other words, the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction.
22) This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 held that irretrievable breakdown of a marriage cannot be the sole ground for the dissolution of a marriage, a view that has withstood the test of time.
23) In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, this Court took the view:
"17. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses......."
24) This Court uses its extraordinary power to dissolve a marriage as having irretrievably broken down only when it is impossible to save the marriage and all efforts made in that regard would, to the mind of the Court, be counterproductive [See Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].
25) It is settled law that this Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably. We may make it clear that we have not finally expressed any opinion on this issue.
26) In the present case, time and again, the respondent has stated that she wants this marriage to continue, especially in order to secure the future of their minor daughter, though her husband wants it to end. She has stated that from the beginning, she never wanted the marriage to be dissolved. Even now, she states that she is willing to live with her husband putting away all the bitterness that has existed between the parties. In light of these facts and circumstances, it would be travesty of justice to dissolve this marriage as having broken down. Though there is bitterness amongst the parties and they have not even lived as husband and wife for the past about 11 years, we hope that they will give this union another chance, if not for themselves, for the future of their daughter. We conclude by quoting the great poet 16
George Eliot "What greater thing is there for two human souls than to feel that they are joined for life - to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting."
27) Before parting with the case, we place on record our appreciation for the efforts made by Shri. Harshvir Pratap Sharma, learned counsel, to bring about an amicable settlement between the parties. 28) In the result, the appeal fails. Accordingly, it is dismissed. No order as to costs.
[ D. K. JAIN]
[ H. L. DATTU]
April 18, 2011.
KULDIP SINGH (J)
KANIA, M.H. (CJ)
Ex -Parte Divorce Decree
Supreme Court of India
Mrs. Payal Ashok Kumar Jindal vs Capt. Ashok Kumar Jindal
1992 SCR (3) 81 1992 SCC (3) 116
JT 1992 (4) 28 1992 SCALE (1)1079
Family Court's Act, 1984 : Section 10.
Hindu Marriage Act, 1956 : Section 13.
Code of Civil Procedure, 1908 Or 5. Rule 9, 10 and 9 rule 6.
Constitution of India, 1950 : Articles 136 and 142. Divorce proceedings against wife Family Court Pune- Petition for transfer in Supreme Court by wife for transfer of proceedings from Family Court Pune to Family Court Delhi- Petition dismissed-Notices by Registered Post and substituted service by Newspaper publication made for appearance of wife-Non appearance of wife-Set ex parte- Divorce decree granted to husband-Application by wife for setting aside ex parte decree-Dismissed-High Court confirming the dismissal order-Appeal by wife to Supreme Court-Allowed-Held sufficient cause for non appearance- Exparte decree set aside-Case transferred to Family Court, Bombay.
The parties to the appeal were married on January 24, 1988 at Noida near Delhi. They hardly lived as husband and wife at Pune for about seven months when on August 16, 1988 the husband-Respondent filed a petition under Section 13 of the Hindu Marriage Act, 1956 for dissolution of the marriage on the ground of cruelty. He alleged that the wife had a habit of smoking and drinking and even once came drunk to the house and abused everybody. The wife vehemently denied the allegations and claimed that she was a homely, vegetarian, non-smoking, teetotaler and faithful house-wife.
During the pendency of the aforesaid divorce-proceeding before the Family Court,Pune, the wife filed a petition, on May 1, 1989, before this Court seeking transfer of the case from the Family Court, Pune to Delhi. This Court granted ad interim stay of the proceedings which remained operative till September 11, 1989 when the Transfer Petition was dismissed
and the stay become vacated.
Thereafter, the husband appeared before the Family Court on September 15, 1989 whereas the wife remained absent. Notice were sent by registered post to the wife on her address at Noida and also at her Delhi address given in the proceedings before this Court. The notices having come back with the remarks "not found", the Family Court ordered sub-stituted service, and a notice was published in a Delhi daily newspaper asking the wife to appear before the Family Court on November 16, 1989. The wife not having appeared on the said date the Family Court ordered ex-parte proceedings. The issues were framed on November 21, 1989, evidence of the husband was recorded on November 25,1989 and the judgment was pronounced on November 30, 1989, granting the husband a divorce decree.
The wife filed an application dated December 18, 1989 for setting aside the ex-parte divorce-decree. She contended that she was forced to leave the matrimonial home at Pune and was residing with her parents at Noida, and that in October/November, 1989 she had gone to reside with her brother at Delhi, that she applied to the Army Authorities claiming maintenance out of her husband's salary, and that the Army Authorities sent a letter dated December 14, 1989 to her father informing that the application for maintenance could not be entertained as the husband had already obtained a divorce decree from the Court. She further contended that for the first time on or about December 14, 1989 she came to know from her father that her husband had been granted an ex-parte divorce decree by the Family Court. The Family Court dismissed the application for setting aside ex-parte divorce-decree, and the High Court upheld the reasoning and conclusions reached by the Family Court and dismissed the appeals filed by the wife. In the appeal to this Court by the wife it was contended that: (1) The Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex-parte proceedings; (2) the divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act as the Statutory period of one year had not lapsed since the date of marriage, (3) even on merits the divorce-decree is based on no evidence, the allegations in the divorce- petition
being wholly vague, and (4) the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation.
Allowing the Appeal, this court,
HELD: 1. The appellant filed written statement before the Family Court,Pune denying the allegations made against her by the respondent. She also raised preliminary objections regarding the maintainability of the divorce petition. Though her transfer petitions before this Court were dismissed in September, 1989 and on April 12, 1990 and that she did not approach the High Court for transfer of her case, the fact remains that she has been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately chose to abstain from the Family Court, and was intentionally avoiding the summons.
2. In the facts and circumstances of this case, the appellant was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. Fair-play and the interest of justice in this case required the issuance of a fresh notice to the parties after the stay order was vacated by this Court.
3. The Family Court, sent two Registered notice to the appellant at her Noida address and also at the address given by her in the proceedings before this Court. Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses. On the record there is no material to reach a conclusion that the appellant refused to receive the notices, or to show whether the postal authorities made any efforts to deliver the registered letters to any of the appellants' relations at the given addresses. The Courts below are therefore wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses.
4. After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was not stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying . Under the circumstances resort to the
substitute service by way of publication in the newspaper was not justified. There was, therefore,sufficient cause for the non-appearance of the appellant in the matrimonial petition before the Family Court.
5. With a view to do complete justice between the parties it is directed that this case be transferred from the file of the Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay, and the parties are directed to appear before the Principal Judge, Family Court Bombay.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2446 of 1991.
From the Judgement and Order dated 11.10.1990 of the Bombay High Court in F.A. No. 649 of 1990. Mrs. C.M. Chopra for the Appellant.
Respondent in person.
The Judgment of the Court was delivered by KULDIP SINGH, J. His parents advertised for " homely non-medico" bride. Her parents responded. Marriage took place on January 24, 1988 at Noida near Delhi. They hardly lived as husband and wife at Pune for about seven months when on August 16, 1988 the husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of Marriage on the ground of cruelty. He alleged "she had a habit of smoking" and "it was found that she was in the habit of drinking and even once came drunk to the applicant's house and abused everybody". He further alleged " it was found by the applicant that she was working as a model prior to marriage and he found few pictures of the respondent in bikini and semi-nude clothes in magazines". She vehemently denied the allegations and claimed that the she was a homely, vegetarian, non-smoking, teetotaller and faithful house-wife. The Family Court at Pune proceeded ex- parte and granted divorce-decree by the order dated November 30, 1989. Wife's application for setting aside the ex-parte decree was dismissed by the Family Court on June 24, 1990. The High Court by its judgment dated October 10/11, 1990 unheld the findings of the Family Court with the modification that in place of decree for dissolution of marriage it granted a decree for judicial separation. This appeal by way of special leave is by the wife against the judgments of the courts below.
During the pendency of the divorce-proceedings before Family Court, Pune, the wife filed a petition, on May 1, 1989, before this Court seeking transfer of the case from the Family Court, Pune to Delhi. This Court granted ad interim stay of the proceedings before the Family Court, Pune. The stay remained operative till September 11, 1989 when this Court dismissed the transfer petition and vacated the stay. Thereafter the husband appeared before the Family Court on September 15, 1989 whereas the appellant-wife remained absent. Notices were sent by registered post to the wife on her address at Noida and also at her Delhi address given by her in the proceedings before this Court. The notice came back with the remarks "not found". The Family Court ordered substituted service and a notice was published in the "Times of India" New Delhi of dated October 24.1989 asking the wife to appear before the Family Court on November 16, 1989 or the proceedings would be taken ex-parte. On November 16, 1989 the Family Court ordered ex- parte proceedings. The issues were framed on November 21, 1989, the evidence of the husband was recorded on November 25, 1989 and the judgment was pronounced on November 30, 1989.
The appellant filed an application dated December 18, 1989 for setting aside the ex-parte divorce-decree wherein she stated that after she was forced to leave her matrimonial-home at Pune, she was residing with her parents at Noida. She further stated that in October/November, 1989 she had gone to reside with her brother at Delhi. According to her she applied to the Army Authorities claiming maintenance out of her husband's salary. Respondent-husband is an Army officer. The Army Authorities sent a letter dated December 14, 1989 to her father wherein it was mentioned that his daughter's application for maintenance allowance could not be entertained because the husband had already obtained a divorce-decree from the court. A copy of the Family Court Judgment granting divorce-decree to the husband was also annexed to the letter. The appellant claims that for the first time, on or about December 14, 1989, She came to know through her father that the respondent had already been granted an ex-parte divorce- decree by the Family Court. The appellant in her application inter alia stated as under:- "The applicant submits that the applicant did not receive any notice/letter/summons or communication from this Hon'ble Court's office. Even there was no intimation given by postal
authorities and the applicant honestly states that till the receipt of the letter from the Army H.Q. New Delhi, she was not aware of the date of proceeding. The applicant submits, the applicant was under bona fide belief that she will receive a notice from this Hon'ble Court. As such and being far from Pune, either in Noida ( U.P.) or at New Delhi, it was not possible for her to approach this Hon'ble Court for any enquiry since she was also not permitted to appear through the lawyer.......At any rate and in any event, the applicant also did not come across the public notice published in Times of India, New Delhi on 24th October 1989 as stated in the decree. The applicant submits, the applicant had every intention to resist the marriage petition filed by the opponent since the same was absolutely false, frivolous and out and out false, and has been resisted by the applicant by filing written statement, preliminary objection including to approach the Supreme Court of India. The intention of the applicant was clear. The applicant submits, the applicant was also advised by her Advocate that she will receive a fresh notice in due course of time after the stay was vacated by the Hon'ble Supreme Court of India from this Hon'ble Court. The applicant states, she resides at a far long distance from Pune. She was also refused any assistance of lawyer. The applicant has no relation or any representative who can look after her in the present proceeding in Pune. It was in these circumstances, the applicant was prevented by sufficient cause from appearing in the marriage petition proceeding No.561/89 and as such the said decree is required to be set aside ..... The applicant states, the applicant is unable to maintain herself, she has no source of income ..... The applicant submits because of the passing of ex-parte decree, she has been refused maintenance allowance. The applicant also prays for granting of maintenance allowance pending final disposal of this application."
The Family Court dismissed the application for setting aside ex-parte divorce-decree on the following reasoning:- "But where the party itself knows that stay obtained by it has been vacated, there appears no warrant for the proposition that again a notice is required to be given to the said party. I do 87
not think that such advice was really given to the applicant. The applicant has not produced any evidence to the effect that she received such advice from a lawyer. It is her own statement. It is a self-serving statement and can hardly be believed. I think that if the applicant was really keen and desirous to contest matrimonial petition, she would have at once made enquiries to find out as to when the next date for hearing in this court was fixed after her application for transfer of the case was dismissed by the Supreme Court and the stay obtained by her was vacated. The order of vacating the stay was passed on 11th September 1989 by the Hon'ble Supreme Court and the applicant knew fully well about it. The opponent who had also appeared in the Supreme Court in connection of that matter did appear in this Court on 15.9.1989. The record of P.A. No. 561/89 shows that opponent applied for issuing of notice to the present applicant. The notice was issued by registered post on two separate addresses. One of the address was the one shown by applicant herself in Supreme Court petition and the other address was the one which was admitted to be her address in the matrimonial petition (which was address of her father at Delhi). Both these notices were sent by registered post in due course. The court waited till return of this notice. On both these envelops postal authorities have endorsed that the present applicant was not found on these addresses. The opponent had, therefore, made application that the applicant was avoiding to take notice and hence substituted service by publishing in Times of India be made. Accordingly, a notice was published as per order of the Court on opponent's application......Thus the contention of the respondent that she had no notice of the further proceeding in marriage petition does not appear convincing. As stated already in the first instance, there was no necessity for her to wait for receipt of the notice in the circumstances of the present case. The notices sent to her were obviously evaded, otherwise there was no reason why the applicant was found on either of the addresses which she admits to be the correct addresses. Even if she was not present, there was no reason why other major members of the family did not accept these notices. And lastly the publication of the notice
in one of the most widely circulated newspaper at Delhi was sufficient notice to the applicant." The High Court upheld the reasoning and the conclusions reached by the Family Court and dismissed the appeals filed by the wife.
The respondent appeared before us in person and himself argued his case. The learned counsel for the appellant raised the following points for our consideration:- (a) That the Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex-parte proceedings; (b) That the divorce-petition was filed hardly seven months after the marriage. Section 14 of the Hindu Marriage Act provides "it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage". The divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act;
(c) that even on merits the divorce-decree is based on no evidence. The allegations in the divorce-petition are wholly vague. In any case the evidence of Major Ved Prakash being wholly interested and contrary to the record the courts below fell into grave error in accepting serious allegations against the appellant on the basis of his evidence;
(d) that the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation. The High Court should have dismissed the divorce-petition.
We may take-up the Fist Point.
The appellant filed written statement before the Family Court, Pune vehemently denying the allegations made against her by the respondent. She also raised preliminary objections regarding the maintainability of the divorce petition. She filed a transfer petition before this Court which was dismissed in September, 1989. She filed another transfer petition which was dismissed by this Court on April 12,1990 with the following observations:- 89
"It is open to the petitioner to move the High Court under Section 24, Code of Civil Procedure for consideration of her prayer that the case be transferred to another Judge. On the merits of this prayer, we decline to make any observation. It would appear that the case is now listed before the Family Judge at Pune on 13.4.90. It will be appropriate that having regard to the apprehension expressed by the petitioner the Court should not proceed with the matter until her prayer for transfer is considered by the High Court. We accordingly direct the Family Court, Pune to stay further proceeding in the case, a period of 60 days from today to enable the petitioner to approach the High Court."
It is no doubt correct that the appellant did not approach the High Court for the transfer of the case but the fact remains that she was been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately choose to abstain from the Family Court and was intentionally avoiding the summons.
The Family Court and the High Court have held that after the dismissal of the transfer petition and vacation of stay by this Court the appellant-wife should have, on her own, joined the proceeding before the Family Court. According to the courts below no notice for appearance was required to be sent to the parties after the stay was vacated.
It is not necessary for us to go into the question as to whether a fresh notice to the parties is necessary where the superior Court vacates the stay order and as a consequence the proceeding recommence before the court below. We are of the view that in the fact and circumstances of this case the interest of justice required the issue of such a notice. The admitted facts in this case are as under:-
(i) While dismissing the transfer petition and vacating the stay order this Court did not fix any date for the appearance of the parties before the Family Court, Pune
(ii) The Family Court had permitted the assistance of a lawyer to the appellant-wife in the following terms: "As applicant is from Delhi and it would cause hardship, permission is granted
for engaging an Advocate for pleading her case only for the purpose of presenting applications or serving notices and noting the orders of the Court."
(iii) The appellant did not engage a lawyer to represent her before the Family Court, Pune. (iv) The appellant-wife was residing with her parents at Noida (Delhi).
Even the distance between Noida and Pune was a big hassle for the appellant especially when she had no counsel to look after the proceedings before the Family Court, Pune. We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. We are of the view that in this case fair-play and the interest of justice required the issuance of a fresh notice to the parties after the stay order was vacated by this Court. We do not, therefore, agree with the findings of the Courts below to the contrary.
In any case-realising the requirements of natural justice-the Family Court, sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before this Court. Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses. There is no material on the record to reach a conclusion that the appellant refused to receive the notices. There is also nothing on the record to show as to whether the postal authorities made any efforts to deliver the registered letters to any of the appellant's relations at the given addresses. The courts below are wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses. After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was no stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying. Under the circumstances, resort to the substitute service by way of publication in the newspaper was not justified.
We are, therefore, of the view that there was sufficient cause for the non-appearance of the appellant in the matrimonial petition before the Family Court. The view we have taken on the first point, it is not necessary to deal, with the other points raised by the learned counsel for the appellant.
We, therefore, set aside the order of the Family Court dated June 24, 1990 and allow the appellant's application dated December 18, 1989 and set aside the ex-parte decree passed against the appellant in Marriage petition No. A- 561/89. As a consequence the judgment of the Family Court, Pune dated November 30, 1989 and the judgment of the High Court in First Appeal No. 649/90 dated October 10/11, 1990 are also set aside.
The appellant had asked for transfer of her case from the Principal Judge, Family Court, Pune to some other court and this Court gave liberty to the appellant to move the High Court for the said purpose. We are satisfied that the reason given by the appellant for such transfer and the apprehensions entertained by her are wholly unjustified. We ar, however, of the view that the Principal Judge, Family Court Pune, has taken the grievances made by the appellant before this Court rather seriously and has commented adversely about the same. With a view to do complete justice between the parties we direct that this case be transferred from the file of Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay. The parties are directed to appear before the Principal Judge, Family Court, Bombay on June 22, 1992.
Before concluding we wish to place on record that we tried to persuade the parties to live together and in the alternative to settle their dispute amicably but with no result.
We allow the appeal in the above terms with no order as to costs.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : F. A. O. No. 3477 of 2006
Date of Decision : April 19, 2012
Surjit Kaur alias Sito .... Appellant
Harmesh Pal .... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Sudhir Pruthi, Advocate
for the appellant.
Mr. Padam Jain, Advocate
for the respondent.
* * *
L. N. MITTAL, J. (Oral) :
Surjit Kaur alias Sito has filed this First Appeal assailing order dated 07.02.2006 passed by learned Additional District Judge, Jalandhar, thereby dismissing application moved by the appellant for setting aside ex- parte judgment and decree of divorce dated 27.09.1999. Respondent Harmesh Pal, who is a police Constable, filed divorce petition under Section 13 of the Hindu Marriage Act, 1955 (in short - the Act) against the appellant-wife. Perusal of the divorce petition file F. A. O. No. 3477 of 2006 2
reveals that notice thereof was issued to the wife for 10.06.1999. The notice was received back with the report of refusal. The wife was then summoned by publication in Newspaper Daily (Punjabi Edition) namely Chardi Kalan, Patiala, for 04.08.1999. Notice was published in Newspaper and since the wife did not appear, she was proceeded ex-parte on 04.08.1999. After recording ex-parte evidence of the husband (respondent herein), the said divorce petition was decreed vide ex-parte judgment and decree dated 27.09.1999.
The wife moved application on 31.05.2000 for setting aside the ex-parte judgment and decree of divorce alleging that she was never served with summons in the divorce petition nor she ever refused to accept the summons. The husband had been treating her with cruelty and demanding more dowry and was also levelling allegations of adultery. The wife moved application to Senior Superintendent of Police, Kapurthala in May 1999 for taking action against the husband. However, no action was taken on account of influence of the husband being police official. Again, the wife moved application dated 03.04.2000 to Chief Minister and application to Senior Superintendent of Police, Kapurthala on 24.04.2000. Thereupon, the husband was summoned to Women Police Station, where he produced photocopy of ex-parte judgment and decree dated 27.09.1999 and thereupon, the wife, for the first time, learnt of the divorce petition and F. A. O. No. 3477 of 2006 3
decree passed therein, in the first week of May 2000. After obtaining certified copies of judgment and decree, the wife filed this application. The husband, in his reply, controverted the allegations made by the wife. It was also alleged that the application is time barred. Various other pleas were also raised.
Learned Additional District Judge, vide impugned order dated 07.02.2006, dismissed the wife's application for setting aside ex-parte judgment and decree of divorce. Feeling aggrieved, wife has filed this appeal.
I have heard learned counsel for the parties and perused the case file including file of the trial court.
Perusal of divorce petition file reveals that the address of the wife, as given in the divorce petition, was of Village Uchha Boharwala. However, summons of divorce petition issued to the wife for 10.06.1999 was allegedly served on the wife in Village Jainpur i.e. native village of the husband himself, when the wife allegedly refused to accept the summons. Then she was served by publication in Newspaper. The report of refusal was allegedly thumb marked by Banta Chowkidar. The husband has examined Tarsem RW-3, who is son of Banta Chowkidar. In his affidavit of examination-in-chief, Tarsem stated that he identified the signatures of his father on the refusal report as he had been seeing his father signing during F. A. O. No. 3477 of 2006 4 his life time. This entire evidence has been procured by the husband because the report of refusal was not signed by Banta, but purports to bear his thumb impressions and not signatures. The reason for Tarsem to depose falsely in favour of husband is not far to seek. He admitted that the husband is his nephew. It is thus apparent that false report of refusal of summons by the wife was procured. It is also significant to notice that according to Tarsem, the wife, at the time of refusal of summons by her, was residing in the house of Ramesh Pal, who is none else, but real brother of the husband. On the one hand, the husband had filed divorce petition against the wife alleging that she had deserted him and was residing in her parental house and on the other hand, she was sought to be served at the address of real brother of the husband himself in his own native village. It exposes the manipulations of the husband in procuring the ex-parte judgment and decree.
Service by publication in Newspaper cannot be said to be sufficient service. The trial court, while ordering substituted service by publication in Newspaper, did not even observe that the wife was intentionally evading service or that she could not be served in the ordinary course. Without recording such satisfaction, substituted service could not be ordered. Even otherwise, the wife, who is a rustic illiterate villager, could not have read the Newspaper in which the notice for her service was F. A. O. No. 3477 of 2006 5 published.
For the reasons aforesaid, I am satisfied that the wife-appellant was not served properly in the divorce petition, and therefore, ex-parte judgment and decree in question are liable to be set aside. As regards limitation, the wife has categorically asserted that she learnt of the ex-parte judgment and decree in question only in first week of May 2000, and therefore, application filed on 31.05.2000 for setting aside the ex-parte judgment and decree is within limitation. The wife has explained that she learnt of ex-parte judgment and decree when the husband produced copy thereof in Women Police Station, where he was summoned pursuant to complaint made by the wife. The husband, in his reply, has admitted that he had produced the copy of ex-parte judgment and decree in the Women Police Station. Consequently, the application moved by the wife is also proved to be within limitation.
Counsel for respondent-husband contended that after ex-parte decree of divorce, the husband re-married on 30.09.1999 and now has one child from the second marriage. Relying on judgment of Hon'ble Supreme Court in the case of Parimal vs. Veena @ Bharti reported as 2011 (2) RCR (Civil) 155, counsel for the respondent contended that in view of re- marriage of the husband and birth of a child from the second marriage, ex- parte decree of divorce should not be set aside. The contention is F. A. O. No. 3477 of 2006 6 completely misconceived and meritless. There is neither any pleading nor any evidence on record to substantiate the aforesaid contention raised by counsel for the respondent-husband. Judgment in the case of Parimal (supra) is not applicable to the facts of the instant case at all. In that case, the wife did not put in appearance despite service of summons by Process Server as well as by registered post and substituted service. In the instant case, however, there was no service of summons in the divorce petition on the wife at all. Secondly, in the case of Parimal (supra), the wife moved application for setting aside ex-parte decree of divorce after four years of passing of the ex-parte decree. In the instant case, the application was moved by the wife just eight months after the passing of ex-parte decree of divorce and within 30 days of acquiring knowledge thereof. Thirdly, in the case of Parimal (supra), the husband contracted second marriage two years after the ex-parte decree of divorce, whereas in the instant case, as per assertion of counsel for the respondent-husband, he contracted second marriage just three days after the ex-parte decree of divorce. The said second marriage is also hit by Section 15 of the Act, which stipulates that after decree of divorce, a spouse may re-marry after limitation for filing appeal has expired and no appeal has been preferred or appeal has been preferred and dismissed. In the instant case, however, the husband performed second marriage just three days after ex-parte decree of divorce, F. A. O. No. 3477 of 2006 7 without waiting for limitation period for filing appeal against ex-parte decree of divorce. It rather shows mala fide and misconduct of the respondent-husband. Thus, judgment in the case of Parimal (supra) has no applicability whatsoever to the facts of the case in hand. For the reasons aforesaid, I find that the appellant-wife has made out sufficient ground for setting aside ex-parte judgment and decree of divorce dated 27.09.1999. Finding of the trial court to the contrary is perverse and illegal and is based on misreading and misappreciation of evidence and is difficult to sustain. Accordingly, the instant First Appeal is allowed. Impugned order dated 07.02.2006 passed by learned Additional District Judge, Jalandhar is set aside. Application moved by appellant-wife for setting aside ex-parte judgment and decree of divorce dated 27.09.1999 is allowed and said judgment and decree are set aside. The trial court shall now proceed with the divorce petition in accordance with law. Record of the court below be sent back at once.
Parties are directed to appear before the trial court on 10.05.2012.
April 19, 2012 ( L. N. MITTAL ) monika JUDGE