Allahabad High Court
Smt. Shashi Prabha vs Rakesh Babu Sachan on 18 December, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:198501-DB Court No. - 39 Case :- FIRST APPEAL No. - 476 of 2015 Appellant :- Smt. Shashi Prabha Respondent :- Rakesh Babu Sachan Counsel for Appellant :- Qazi Vakil Ahmad Counsel for Respondent :- ,Kuldeep Singh Parmar,Lallan Prasad Singh Hon'ble Saumitra Dayal Singh,J.
Hon’ble Vikas Budhwar,J.
1. Heard Sri Qazi Vakil Ahmad, learned counsel for the appellant and Sri Kuldeep Singh, learned counsel for the respondent.
2. Present appeal has been filed under Section 19 of the Family Courts Act, 1984 arising from judgment and order dated 31.07.2015 passed by the Principal Judge, Family Court, Kanpur Dehat in Case No.12 of 2003 (Rakesh Babu Sachan v. Smt. Shashi Prabha), whereby the marriage between the parties had been dissolved.
3. The marriage between the parties was solemnised on 07.03.1992. A male child was born to the parties on 04.01.1993. He would be about 31 years of age today. He is disclosed to be a practising MBBS doctor.
4. According to the respondent, the parties separated on 14.10.1996. They have remained separated since then. 28 years have passed without cohabitation. In the meantime, in the year 2000, the respondent first instituted proceedings under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights being Case no.161 of 2000. That was decreed vide judgment and order dated 20.12.2002. Appeal thereagainst was filed by the present appellant being Appeal No.18 of 2003. It was dismissed vide judgment and order dated 16.02.2006 passed by the Additional Principal Judge-V, Kanpur Dehat. No further appeal was filed. Under the judgment and order dated 20.12.2002, the learned Civil Judge (Senior Division), Kanpur Dehat provided for restitution of conjugal rights within 15 days. Before statutory period contemplated under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 (hereinafter referred as “the Act, 1955”) could complete, the respondent instituted divorce suit on 08.01.2003. Within two months therefrom, it was allowed ex parte on 27.02.2003. Within further two months therefrom, the respondent re-married on 14.04.2003.
5. In such circumstances, the present appellant instituted an application for recall of theex parte judgment and order of divorce dated 27.02.2003, on 14.07.2003. That was rejected by the learned court below vide its order dated 21.05.2007. However, appeal thereagainst being Appeal No.36 of 2007 was allowed by this Court vide order dated 15.05.2008. Theex parte judgment and order was set aside. The matter was remitted to the learned court below to pass fresh order. Thereafter, the proceedings have been conducted afresh. Besides written statement filed by the appellant, evidence was also led by the parties. In that the respondent examined himself and two other witnesses whereas the appellant examined herself and one Urmila Katiyaar as DW-2.
6. The grounds pressed for divorce by the respondent were two, namely, desertion and cruelty. As to the desertion, it has been submitted, though it was the case of respondent that appellant had deserted him on 14.10.1996, at the same time, the respondent had instituted a suit seeking restitution of conjugal rights being Case No.161 of 2000 as noted above. That was decreed on 20.12.2000. For reason of restitution of conjugal rights pressed by the respondent himself and further, for reason of relief granted to him on 20.12.2000, the ground of desertion pressed in the divorce suit proceedings instituted by the respondent, before expiry of statutory period provided under Section 13(1A)(ii) of the Act, 1955, never became available.
7. Learned counsel for the respondent would submit, Section 13(1A) provides an additional ground to seek dissolution of marriage if the decree for restitution of conjugal rights is not abided. Therefore, merely because the decree for restitution of conjugal rights had arisen at the instance of respondent on 20.12.2002, he was not to wait till 19.12.2003, before he could be enabled in law to institute the suit for dissolution of marriage, on ground of desertion.
8. As to the other ground pressed in the proceedings as to the mental cruelty, it has been submitted by the respondent that besides the fact that parties had remained separated for 28 years since 14.10.1996, even prior to that they had barely cohabited upon their marriage, in March, 1992. It was the case of the respondent that the appellant never resided with the respondent. To begin, she had a government job of Pharmacist. For that reason she used to travel Bilhaur where she took up a residence within a few days of her marriage. Initially, she used to travel to the respondent’s parental home. Later, she refused that too. In that regard, reliance has been placed on documentary evidence in the shape of legal notice issued to the appellant, dated 13.08.1997. Reliance has also been placed to the fact that after the child was born to the parties, the respondent took up temporary rental accommodation, at Kanpur. The child born to the parties was admitted to a school at Kanpur. However, the appellant walked away from that temporary residence of the parties and got her son admitted to a school near to her place of work, Bilhaur. Thus, it was submitted that in 11 years (on the date of institution of divorce case), the parties may have cohabited for 50 days, only.
9. Only by way of effort to set up a legal defence, upon marriage of the parties being dissolved in terms of ex parte judgment and order dated 27.02.2003, the appellant issued a legal notice. It is marked as Paper 10-Ga. We have perused the same. It makes no recital of any effort made by the appellant to abide by the decree for restitution of conjugal rights dated 20.12.2002 passed in OS No.161 of 2000, at the relevant time. However, in that notice, the appellant has first expressed her desire to revive her matrimonial relationship. Yet, no suit for restitution of conjugal rights was ever filed by her. At the same time, after the decree for dissolution of marriage had been passed, the appellant did institute a criminal case alleging offence under Section 498-A, 504, 494 IPC and section 3/4 of Dowry Prohibition Act being Case No.134 of 2003 on 14.07.2003, i.e. for the first time, 11 years after their marriage.
10. It is an admitted fact position between the parties that police submitted a closure report. On protest petition being filed by the appellant, a Criminal Complaint was registered. After recording of statement of the appellant, that too was dismissed. The Revision filed there against, being Criminal Revision No.25 of 2016 has also been dismissed vide order dated 03.06.2019. At present, the proceeding against that order is engaging the attention of this Court in Application u/s 482 No.26155 of 2019. It is pending.
11. It has thus been submitted that the appellant had committed mental cruelty on the respondent by first refusing to cohabitate and thus denying any possibility of the matrimonial relations between the parties to exist and grow. She voluntarily moved away from the respondent. Despite efforts made by the respondent to live with her at Kanpur, she again moved away from Kanpur, again voluntarily along with child born to the parties, within six months.
12. The witnesses were subjected to extensive cross-examination. The abovenoted facts remained less admitted to the parties, inasmuch as, it could not be disputed by the appellant that the parties had barely cohabited since their marriage. They remained in their marriage for 11 years, but experienced long and repeated separations visited with intermittent cohabitation that may not have exceeded 50 days till they parted company 28 years ago. It also could not be disproved that the appellant had moved away toBilhaur where she has resided since then. Yet, at the same time, it could not be disputed that the respondent tried to maintain relations and perhaps with that object parties cohabited at Kanpur to allow the appellant ease of travel to attend to her work. Even then, it could not be disproved that the appellant walked away from Kanpur six months, along with the child born to the parties.
13. Seen in these facts and circumstances, it is undisputed that the parties did not enjoy a normal or healthy relationship. Their marriage faced discord from beginning. Unfortunately, that experience remained with the parties for long duration of ten years i.e. till institution of divorce suit. Yet, no proceeding was instituted by the appellant either to seek restitution of conjugal rights or to make any allegation of dowry etc. At the same time, once the decree of divorce was passed, though ex parte, that allegation emerged for the first time, eleven years after her marriage. Then as to the real relations between the parties, rather than personal, they are litigious.
14. In the first place, the respondent issued notice to the appellant to re-establish conjugal rights in the year 1997. He followed it up with proceedings for restitution of conjugal rights being suit no.161 of 2000. On that suit being decreed, the appellant instituted an appeal thereagainst which was dismissed. Clearly, the appellant never desired to revive her matrimony. Thereafter, the appellant issued a legal notice dated 23.02.2006 to the respondent. In that she did not make any mention of any effort made by her to seek restitution of conjugal rights upon OS no.161 of 2000 being decreed on 20.12.2000. Four years thereafter, by means of said notice, she first intimated the respondent that she wanted to revive her matrimonial relations, after dismissal of her Appeal No.18 of 2003 on 16.02.2006. That notice came to be issued only three years after the divorce decree had already been passed. Clearly, the intent of the notice and the proceedings was not to revive the marriage or normalise the relations but only an effort for collateral purposes.
15. As to mental cruelty, no clear hard and fast rule exists. The principle to be applied has been considered in N.G. Dastane (DR) v. S. Dastane; (1975) 2 SCC 326, Shobha Rani VS. Madhukar Reddy; (1988) 1 SCC 105, Pawan Kumar Vs. State of Haryana; (1998) 3 SCC 309, Samar Ghosh V. Jaya Ghosh; (2007) 4 SCC 511, Parveen Mehta Vs. Inderjit Mehta; (2002) 5 SCC 706, Savitri Pandey Vs. Prem Chandra Pandey; (2002) 2 SCC 73, Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate; (2003) 6 SCC 334, Vinita Saxena Vs. Pankaj Pandey; (2006) 3 SCC 778, A. Jayachandra Vs. Aneel Kaur; (2005) 2 SCC 22, Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558, Samar Ghosh Vs. Jaya Ghosh; (2007) 4 SCC 511, Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal; (2012) 7 SCC 288, Jaydeep Majumdar Vs. Bharti Jaiswal Majumdar; (2021) 3 SCC 742 and Roopa Soni Vs. Kamalnarayan Soni; (2023) SCC Online SC 1127.
16. Considering the above, in Smt. Abhilasha Shroti v. Rajendra Prasad Shroti; Neutral Citation No. – 2024:AHC:126451-DB, a co-ordinate bench has observed as below:
“Thus, subjective and inherently varied, individual human behaviour in the context of matrimonial relationship may be construed as cruelty to ones spouse, depending on facts of each case and its proven effect on the other spouse. The complete denial of company to ones spouse, without any justifiable reason, may itself amount to cruelty. It is not cohabitation on physical intimacy that may dictate the definition of cruelty. We are aware that that test if imported may be regressive and in any case outdated. At the same time, any person who enters into matrimonial relationship, does undertake a social and personal obligation to enjoy and share his / her company with their chosen spouse. A spouse who out of choice completely deprives the other of his / her company, for no rhyme or reason may be seen to have committed cruelty when that conduct (continuous and unabated over years) is seen through the eyes of other spouse. A Hindu marriage is a sacrament and not just a social contract where one partner abandons the other without reason or just cause or existing or valid circumstance necessitating that conduct, the sacrament loses its soul and spirit, though it may continue to hold its external form and body. Thus to a third party the form may be visible and they may continue to visualize the marriage as exist at the same time to the spouse the sacrament may remain dead. That death of the spirit and soul of a Hindu marriage may constitute cruelty to the spouse who may be thus left alone devoid of not only physical company completely deprived of company of their spouse, at all planes of human existence.”
17. In the present facts, besides active action that may be attributed to the appellant of directly causing mental cruelty to the respondent, at the same time, passive act of complete denial of her company to the respondent for reasons wholly voluntary, as were continuously maintained over a long period exists. That itself amounts to mental cruelty. Though it cannot be denied that the appellant had to attend her work at Bilhaur which was at some distance from her matrimonial home, at the same time though the respondent was always seeking to revive his matrimonial relations, the appellant remained disinclined as she neither instituted any suit for restitution of conjugal rights nor she found any way to revive that relationship despite efforts made by the respondent. Rather, upon the respondent taking up a residence at Kanpur to enable the appellant to continue to work at Bilhaur and allow the marriage to survive, unfortunately, the appellant could not collaborate with the respondent in those efforts. She moved away of her own, within six months. The parties have remained separated ever since. Seen in that light, there is no real love and trust or basis for the marriage between the parties. It is only a legal fiction. Neither the parties could live together before institution of legal proceedings nor they have found any solution after facing legal proceedings.
18. Instead, the appellant instituted a Criminal Complaint against the respondent after 11 years of marriage that too after ex parte decree of divorce has been passed on 27.02.2003. That criminal complaint registered in pursuance to that FIR has been dismissed. The legal notice issued by the appellant on 26.02.2006, itself belies the allegations made in that belated FIR. The legal notice does not make any reference of occurrence of criminal offence against the respondent.
19. Then, we cannot overlook the fact that the marriage between the parties is 32 years old. In that, they may have cohabited for barely 50 days. In any case, they have remained separated for 28 years. Practically, they have become strangers in life as they were before their marriage, that was arranged through families.
20. In view of such fact, we find no justification to interfere in appeal at this belated stage. Therefore, the order passed by the learned court below is sustained.
21. As to alimony, it is noted that between the two spouses, the appellant has remained employed holding a government job whereas respondent claims to be a private homeopathic doctor. In any case, for the facts noted above, where parties may have cohabited for only about 50 days in a marriage of 32 years, and the child born to the parties is about 31 years, no justification may exist to award any amount towards alimony.
22. Accordingly, the appeal is dismissed.
Order Date :- 18.12.2024
P Kesari
(Vikas Budhwar, J.) (S.D. Singh, J.)
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