Husband and Wife Lived Together for Period of 11 Months and after Desertion by Wife Disassociation of Husband
Court:ANDHRA PRADESH HIGH COURT
Bench: JUSTICE D.S.R. Verma & G.V. Seethapathy
B. SRINIVASULU @ SRINIVASACHARI Vs. VEENA KUMARI @ LATHASREE On 2.7.2007
Law Point:
Husband and Wife lived together for period of 11 months and after desertion by wife disassociation of husband continuing since 1994 for about 13 years. This is absolutely sufficient to grant divorce .
JUDGEMENT
1.Heard both sides.
2. All the four appeals are closely inter-twined, hence they are being disposed of by this common judgment.
3. The appeal CMA No. 1103 of 2003 is directed against the order and decree, dated 13.11.2002, passed by the Judge, Family Court, Hyderabad in dismissing O.P. No. 8 of 1999 filed by the petitioner therein (husband) seeking to dissolve the marriage held between him and the respondent (wife) on 24.4.1994 by a decree of divorce.
4. The appeal FCA No. 58 of 2007 is directed against the common order and decree, dated 28.12.2006, passed by the Judge, Family Court, Hyderabad in allowing FCOP No. 753 of 2004 (along with FCOP No. 752 of 2004) directing the respondent (husband) to pay a sum of Rs. 1,68,000 to the petitioner (wife) together with interest at the rate of 6 (six) per cent per annum from the date of petition.
5. The appeal FCA No. 59 of 2007 is directed against the common order and decree, dated 28.12.2006, passed by the Judge, Family Court, Hyderabad in allowing FCOP No. 752 of 2004 (along with FCOP No. 753 of 2004) directing the respondent (husband) to pay a sum of Rs. 1,500 per month to petitioner No. 1 therein (wife) and a sum of Rs. 2,000 per month to petitioner No. 2 (daughter) towards past maintenance and also at the same rate from the date of filing of the O.P.
6. And, the appeal FCA No. 70 of 2007 is directed against the common order and decree, dated 28.12.2006, passed by the Judge, Family Court, Hyderabad in allowing FCOP No. 752 of 2004 (along with FCOP No. 753 of 2004) directing the respondent (husband) to pay a sum of Rs. 1,500 per month only to petitioner No. 1 therein (wife) and a sum of Rs. 2,000 per month only to petitioner No. 2 (daughter) towards past maintenance and also at the same rate from the date of filing of the O.P., and seeking to enhance the said maintenance amount to Rs. 6,000 each leaving the maintenance already granted Rs. 500 each in M.C. No. 640 of 1995.
7. For convenience, the parties herein are referred to as ‘the husband’, ‘the wife’, and ‘the daughter’, respectively.
8. The whole litigation had its genesis from O.P. No. 8 of 1999 filed by the husband for divorce.
9. The facts, which are not in dispute, are that the marriage between the spouses had consummated and subsequently the wife suspected the character of the husband. It appears, it is the specific grievance of the wife that her husband was very close to his sister-in-law (his younger brother’s wife). Some instances have been cited in the counter filed by the wife in O.P. No. 8 of 1999, filed by the husband, which will be dealt with separately. Because of this dispute, the husband and the wife came out of their ancestral house and started living separately. Even during the said period also there was some harassment. But the details of the harassment are not mentioned in the O.P., filed by the husband. The averments in the O.P., are made by way of punctuating the events in an indirect manner. But one expression, which is appealing to this Court, is that “the amount of torture, harassment that was perpetuated could be too little to be narrated one has to go through such sufferings”. It is also not in dispute that the wife made a complaint against the husband to the Bar Council of Andhra Pradesh, Hyderabad, since he is a practising Advocate.
10. In the meanwhile i.e., in a span of 11 months the wife conceived a child but allegedly much against the will of the husband and further allegedly because of this, she left the company of the husband and went away separately and started living with her parents. It is the allegation that such desertion was because of the torture meted out to her by the husband in the short period of 11 months. The rest of the events are not very clear, but, however, forced the husband to file the O.P., seeking divorce on account of the desertion and cruelty, as contemplated under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (for brevity ‘the Act’).
11. It is settled law that the burden of proving the desertion and cruelty lies heavily upon the person who makes the allegation. Therefore, in the present, it is for the husband to prove such desertion and cruelty. There is no much evidence on record except the testimony of the husband.
12. The most intriguing aspect is that a counter has been filed by the wife in the O.P., filed by the husband stating inter alia that:
“…………This respondent submits that the petitioner’s behaviour with his sister-in-law is like husband and wife, because for each and everything the petitioner used to consult his sister-in-law, take for example, the petitioner was insisting the respondent by saying that his sister-in-law advised him to take the respondent to the doctor for abortion, because the petitioner’s sister-in-law has got two sons, and the petitioner advised the respondent to treat the said children as his children only………………. This respondent submits that though the petitioner married this respondent, but his hopes, expectations and dreams all on his sister-in-law only……….”
13. It is the further averment in the counter that:
“……… This respondent submits that though the petitioner has got three sisters-in-law but the petitioner attached with the third sister-in-law namely Varamma only, but the petitioner’s behaviour with the said sisters-in-law is routine and normal, but his behaviour with this sister-in-law namely Varamma abnormal, and anybody would find fault with them. Further the petitioner and the said Varamma are same age group……….”
14. The further allegation in the said counter is that:
“………This respondent submits that the petitioner threatened the respondent by saying that his sisters-in-law’s father is a noted criminal and he had undergone imprisonment for seven years, in a murder case and even if he murdered this respondent, he would came out with clean hands………”
15. Similarly, there are some other allegations made by the wife aiming at the sister-in-law of the husband.
16. It is the contention of the learned Counsel appearing for wife that she deserted her husband only because of the torture and the alleged treatment as narrated above. It is further contended by the learned Counsel that having tortured her in the above manner, it is not open to the husband to contend that he was subjected to mental torture and harassment at the hands of the wife, and that no specific instances have been mentioned about the cruelty on the part of the wife warranting divorce as prayed for in the O.P. Therefore, the learned Counsel for wife makes a strong attempt to justify the said desertion and thereby contending that such a desertion on the part of the wife cannot be treated as a desertion as contemplated under Section 13(l)(ib) of the Act.
17. As regards the contention of the learned Counsel appearing for wife that the wife having been allegedly subjected to cruelty resulting in desertion, it is to be seen and as already noticed it is the wife, who filed a counter in the O.P., making several allegations including the allegation of unholy connection between the husband and his youngest sister-in-law.
18. From the above, it is obvious that the wife was audacious to disclose these internal and in-house problems, which, in normal course, ought not to be disclosed to the general public, particularly before the Courts, more particularly when the husband did not make such categorical allegations.
19. As already noticed by us, the husband in the O.P., had only said that he was subjected to harassment and cruelty, which cannot be put on record. The said expression would only indicate that he was shy and putting on record the kind of the allegations levelled by his wife, which are not only harmful and derogatory to him in the society but also to the family of his sister-in-law. This shows his modesty.
20. If we put it in a different way also, had the wife did not disclose and detail these problems or ill-feelings to the notice of the Court by way of counter, perhaps it would have been to the husband to establish his case.
21. But, things have been now made easier for the husband. The true conduct and the ill-will, which are crystallised and in a concealed manner hirtherto, have been blown up by the wife only in the counter filed by the husband in the O.P., for divorce.
22. Therefore, we are of the view that this is a peculiar case where the wife, who has no need to elaborate, made some unnecessary attempts to elaborate the events much to the dislike of every one and are capable of tarnishing the image of the husband and his other family members.
23. We are further of the view that making such elaborate allegations and some unethical and unholy allegations linking up the character of the husband with the character of the sister-in-law and thereby bringing down the reputation of the family of sister-in-law of the husband only indicates the amount of abhorrence the wife gathered against her husband. Her thought process was absolutely going wrong in a short span of 11 months of marital life instead of understanding the husband or correcting the husband, if at all he is at fault and thereby make a good family by herself and for herself, the wife had resorted to demolish her own family and her future and the future of other family members of the husband. This is palpable from the very quality of the averments made by the wife in the counter. It is rather the quality of her perception about her husband, in spite of he coming out of his family and preparing to lead an independent family life with his wife, is at the lowest ebb.
24. Furthermore, the marriage has been performed and consummated on 24.4.1994, the spouses hardly lived together for 11 months. After that, there was no need to meet. However, as per the averment made by the wife, there was only once that too in connection with the cradle ceremony of their child. Except that, there was never an eye-to-eye meet let alone their meeting in person with each other.
25. Hence, we are of the view that though the desertion and cruelty have not been elaborated in the petition, but the conduct on the part of the wife is such that her desertion was not justified and the cruelty if at all is to be attributed to the wife only.
26. It is further on record that subsequently she made a complaint to the Bar Council of Andhra Pradesh, Hyderabad again making the same allegations targeting the husband and the sister-in-law of the husband.
27. At this juncture, we may say that she can have grievance against the husband for any reason but has absolutely no right to demolish or to destroy the family fabric of the sister-in-law of the husband.
28. Another thing to be seen is that the sister-in-law of the
husband is not a party to any of the proceedings. We may not be at fault if we say that the eventual damage would be to the sister-in-law of the husband and her family.
29. The said complaint made to the Bar Council of Andhra Pradesh, Hyderabad is made part of the record as Ex. A-10. Hence, we are forced to express our comprehensive view, taking into consideration Ex. A-10 and the averments made in the counter in the O.P., on the conduct of the parties. What the husband hesitated to speak or to write or to do had been spoken to, written and done by the wife.
30. In other words, the gaps, which could not be filled up by her husband in order to substantiate his case, have been successfully filled up by the wife and these attempts, which are on record, in our view, are totally self-destructive.
31. As already noticed, after the desertion by the wife the disassociation of the husband has been continuing since 1994 till today sprawling for about 13 years, which is absolutely sufficient to grant divorce. Even today, the wife is not regretful of her past or thoughtful of her future.
32. In this regard, we are fortified with the decision of a Division Bench of Calcutta High Court in Santana Banerjee v. Sachindra Nath Banerjee, AIR 1990 Cal. 367. In that case also, the wife made certain unethical disparaging allegations touching upon the character of the husband. In that context, Their Lordships observed at para 13 of the said judgment in the following terms:
“……… It may also be noted here that in the written statement and in her deposition, the wife made such disparaging remarks and it is quite likely that she made such remarks before the husband and other members of the family. We have indicated hereinbefore that the wife made imputation against the character of the husband, made allegation of engaging anti-socials against the wife and threatening her with dire consequences and also alleged that the husband engaged a stranger to get the wife kidnapped and made false complaint to the police against the husband. Such acts cannot be treated as mere austerity of temper, petulance of manner, rudeness of language or want of civil attention to the needs of the husband. In this connection, we may refer to the inimitable expression made in Dastane’s case (supra), that passion and petulance have perhaps to be suffered in silence as the price what turns out to be an injudicious selection of a partner. But if such passion and petulance as persist and assume such a proportion which become unbearable to the husband or any reasonable man in the society of the husband, such passion and petulance cannot but amount to cruelty. The cruelty meted out to the husband must be held to be of a very grave nature not expected to be borne out by the husband or any man in the society of the husband……….”
33. It was further observed in the said judgment that:
“………That apart, the wife even after the institution of the
suit indulged in making reckless, false and motivated allegations against the husband and his close relations not only in her written statement but also in her deposition as indicated earlier. Such facts undoubtedly constitute cruelty of a very grave nature. In our view, the Court not only can take into consideration of the subsequent events after the institution of the suit but also should take note of such subsequent events if the same have a bearing on the lis between the parties and consideration of such facts may lead to proper justice in the case and shorten the course of litigation……….”
34. In the context of the observations of the Division Bench of Calcutta High Court, it is to be seen that the petition O.P. No. 8 of 1999 was filed by the husband for ‘divorce’ in the year 1999. The other two petitions F.C.O.P. No. 752 of 2004 for maintenance to the wife and daughter, and F.C.O.P. No. 753 of 2004 for recovery of the dowry amount were filed much after filing of O.P. No. 8 of 1999. This is another clear and suggestive fact that the wife is bent upon initiating proceedings against the husband in different ways and from all angles. These facts coupled with the other aspects, as we discussed above, would strengthen our view that the husband deserves to have a decree of divorce.
35. Furthermore, we put on record another factor that the proceedings initiated by the wife under Section 498A, IPC against the husband and his parents, brothers and sisters, eventually ended in acquittal of all of them.
36. This aspect by itself may not be a ground in all cases for a decree of divorce, but, in our view, would reflect the conduct of the wife and her continuous hostile attitude towards her husband.
37. Therefore, for the aforementioned, having taken stock of the entire situation and the surrounding facts and circumstances, we are of the view that the order and decree dated 13.11.2002, in O.P. 8 of 1999, rendered by the Court below is liable to be set aside and accordingly set aside, and the appeal CMA No. 1103 of 2003 arise out of O.P. No. 8 of 1999 seeking a decree of divorce is allowed.
38. As regards the appeals CMA Nos. 58 and 59 of 2007, arise out of F.C.O.P. Nos. 753 and 752 of 2004 seeking return of dowry amount and maintenance to wife and daughter, respectively, we are of the view that there is no substantial evidence on record as regards the non-receipt of dowry by the husband at the time of marriage. We need not dilate this issue much as we have expressed our view that this is fit case to grant divorce.
39. Therefore, keeping that in mind, we want to resolve the controversy for good by granting a just and reasonable sum of Rs. 6,00,000 (Rupees six lakh only) in all towards ‘permanent alimony’ to the wife particularly keeping in view the fact that the maintenance that was granted by the Court below was being paid at the rate of Rs. 1,000 (Rupees one thousand only) per month is being paid by the husband all through. Both the appeals FCA Nos. 58 and 59 of 2007 are disposed of accordingly.
40. Insofar as CMA No. 70 of 2007 which arose out of F.C.O.P. No. 752 of 2004 seeking enhancement of maintenance to the wife and daughter, in view of the consolidated ‘permanent alimony’ granted by us having taken into consideration all the facts and circumstances is concerned, we do not feel it appropriate to pass any orders in this appeal. Accordingly, the appeal CMA No. 70 of 2007 is disposed of.
41. It is clarified further that the husband shall continue to pay at the rate of Rs. 2,000 (Rupees two thousand only) per month as directed by the Court below towards maintenance to the daughter, respondent No. 2 in O.P. No. 752 of 2004 and corresponding CMA No. 70 of 2007.
42. As requested, the said amount of Rs. 6,00,000 (Rupees six lakh only) granted by this Court to the wife towards ‘permanent alimony’ is hereby directed to be paid by the husband in two instalments; a sum of Rs. 3,00,000 (Rupees three lakh only) is to be paid in 3 (three) months from today and the remaining Rs. 3,00,000 (Rupees three lakh only) will be paid in 3 (three) months thereafter.
43. In the result, the appeal CMA No. 1103 of 2003 is allowed and a decree of divorce is granted by dissolving the marriage held on 24.4.1994 between the husband and the wife; and the appeals FCA Nos. 58, 59 and 70 of 2007 are disposed of, directing the husband to pay a sum of Rs. 6,00,000 (Rupees six lakh only) towards ‘permanent alimony’ to the wife, and shall continue to pay a sum of Rs. 2,000 (Rupees two thousand only) per month to the daughter.