Court: Rajasthan High Court
Bench: JUSTICE M Singh, A Parihar
Nathu Lal vs Nathi Bai on 1 March, 1997
Abusing Husband Time and Again is Cruelty Divorce Granted.
1. This is an appeal against the judgment dated 24.2.1993 passed by Family Court, Kota by which application filed by the appellant Under Section 13 of the Hindu Marriage Act, 1955 has been rejected with cost of Rs. l,000/-.
2. The case of the appellant-husband is that he married respondent in Village Mandaward, Distt. Kota on 24.7.1979. After marriage the respondent never lived with the appellant continuously and ultimately left his house in February, 1983. She did not return back for three years and six months inspite of persuasion and, as such, he had to file an application Under Section 13 of the Act of 1955 before the Family Court. With some efforts of the family members the respondent agreed to come back to her matrimonial home and also came back in August, 1986. Under the circumstances the appellant-husband withdrew his application Under Section 13 and the same was dismissed as withdrawn by the Family Court.
3. It has been further averred that though the respondent started living with the appellant from August, 1986, but her behaviour did not change and remained quarrelsome not only with the appellant-husband, but also with his family members. Ultimately, the appellant had to file a fresh application Under Section 13 of the Hindu Marriage Act before the Family Court on21.8.1989 on the ground of cruelty in which various instances of cruelty were narrated. The Family Court, after receiving reply on behalf of the respondent framed four issues. First two issues were in regard to cruelty by the respondent-wife. The third issue was in regard to cruelty by the husband and the fourth issue was in regard to relief/interim maintenance. The Family Court, after taking evidence of both the sides decided all the three issues in favour of the respondent-wife and, thus rejected the application with costs vide order dated 24.2.1993, hence this appeal.
4. On 14.5.1993 this Court had called for the record from the Family Court, Kota. The record was not received by the Registry. The explanation from the office of Registry as well as the office of Family Court, Kota was called for. From the office report, it was revealed that the concerned record was sent by the Family Court, Kota by registered post, however, the same was not received so far. Under these circumstances, vide order dated 5.8.1996 this Court directed the parties to reconstitute the file of the Family Court. The file was accordingly reconstituted on the basis of material available with the parties. Thereafter, the appeal was admitted on 9.9.1996.
5. Mr. Ravi Kasliwal, appearing on behalf of the appellant, has submitted that the learned Family Court has not considered the whole material on record properly so far as finding of cruelty on the part of respondent-wife is concerned. He has further Submitted that there is ample evidence, oral as well as documentary, to prove the cruelty on the part of the respondent-wife.
6. The main contention of Mr. Kasliwal is that the behaviour and conduct of the respondent-wife was not proper, right from the beginning as is evident from the fact that she never lived with appellant continuously and left his house without any reason and did not come back for more than three and half years. Admittedly, the appellant had to file an application Under Section 13 before the Family Court which was withdrawn only because with some efforts of the family members the respondent-wife agreed to come back to her matrimonial home in August, 1986. Just after few days of her coming back to her matrimonial house of 10th of August, 1986, the respondent-wife filed a false complaint against the father and brothers of the appellant on 28.8.1986 with the allegations of beating and demanding dowry. However, after investigation the police filed a final report and the same was accepted by the competent Court.
7. Thereafter, the respondent continued to harass the appellant as well as his family members. The appellant had to file complaints against the respondent-wife with the police. Mr. Kasliwal has drawn our attention to letter dated 5.10.1989 written by Vikas Adhikari, Panchayat Samity, Sultanpur, wherein he complained that respondent went to the office of Panchayat Samiti, where the father of the appellant had been working and tried to create nuisance by which working of the office was disrupted. There was yet another complaint made by one Dwarka Lal that the respondent tried to destroy the crop in his field by discharging canal water in his field without any rhyme and reason.
8. Counsel for the appellant has further submitted that on 21.5.1990 the respondent-wife came to the factory gate where the appellant was employed and started quarrelling with the appellant in front of so many workers. The police was called and both the parties were arrested by the police u/Secs. 167 and 151, Cr.P.C. However, subsequently they were released on bail by ADM (City), Kota.
9. Mr. Kasliwal has drawn our attention to yet another incident where on 12.3.1991 the respondent alongwith her brothers came to the house of appellant and misbehaved with the father and the mother of the appellant, even tore clothes of his mother and even disrobed her. On a FIR being lodged, a challan has already been filed by the police against the respondent and her brothers before the competent Court. Mr. Kasliwal has further submitted that in many criminal complaints the respondent had been bound down by the Court of Law to behave well with the appellant.
10. It has also been mentioned by Mr. Kasliwal that respondent is not living with the appellant since May, 1989 and looking to the entire facts and circumstances of At present case, the Family Court was not justified in dismissing the application without properly appreciating not only the oral evidence but documentary evidence also and, as a matter of fact, the Family Court has not considered the documentary evidence at all.
11. Mr. Bhargava, appearing on behalf of the respondent, on the other hand, has raised certain preliminary objections. Main contention of Mr. Bhargava is that after dismissal of the Divorce Petition Under Section 13 on 24.2.1993 by the Family Court, the appellant had filed an application Under Section 10 of the Act for judicial separation on 10.3.1993 itself, as such, the present appeal has become infructuous. He has further submitted that even the application Under Section 10 as filed by the appellant has been dismissed by the Family Court on 5.12.1995 against which the appellant has also filed an appeal before the Hon’ble Court and the same is also listed today for hearing.
12. The contention of Mr. Bhargava is that two different Presiding Officers of the Family Court have given fending of cruelty in favour of the respondent-wife, as such. no interference is called for by this Hon’ble Court in the present appeal. Mr. Bhargava’s main contention is that as a matter of fact the cruelty by husband has been held to be proved by the Family Court and in view of finding of fact, the appeal is liable to be dismissed. He has relied upon judgments of this Court in the case of Rajendra Prasad Pareek v. Smt. Krishna Devi Pareek, reported in RLR 1987(1), page 459; Meera v. Vijay Shankar Tachidia, reported in I (1994) DMC 215; Teerath Ram v. Smt. Paruati Devi, reported in AIR 1995 (Raj.) page 86=I (1995) DMC 414, and decision of Apex Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane, reported in AIR 1975 SC 1534.
13. Mrs. Shashi Jain was appointed by Legal Aid Board to assist the respondent has supported the submissions made by Mr. Bhargava. However, she has contended that in view of the findings given by the Family Court, where the cruelty on the part of husband has been proved, the appellant deserves no sympathy in any manner and the appeal is liable to be dismissed.
14. After hearing both sides, we have carefully gone through the judgment of the Family Court and also the record available on the file.
15. The learned Judge, Family Court has taken great pains in discussing the whole oral evidence submitted on behalf of the appellant at length whereas the evidence led by the respondent was considered in a very cursory manner. Moreover, the learned trial Judge has not at all discussed the documentary evidence produced by the appellant. It is evident from the discussion made by the learned trial Judge that he was trying to look for loop holes in the evidence led by the appellant.
16. The procedure in such matters under the Act of 1955 is more or less of summary trial. The Court is bound to take into consideration the entire material on record.
17. As has come on record the respondent never lived with her husband peacefully. She left her matrimonial home and came back after more than three and half years only when petition Under Section 13 was filed by the appellant. The petition had to be withdrawn. However, immediately after coming back she lodged a criminal complaint against her in-laws in which after investigation, final report was submitted by the police. Thereafter, the conduct of the respondent was never proper as is evident from the criminal complaints and the reports filed by the independent persons against her behaviour so as to gain sympathy of any person. After having carefully gone through the entire material on record, the oral evidence as well as the documents, we are of the view that allegation of cruelty is proved against the respondent-wife.
18. So far as preliminary objections, raised by Mr. Bhargava in regard to filing of application Under Section 10 for judicial separation are concerned, we are of the opinion that the same will not affect the present appeal at all. Section 13 and Section 10 are altogether different remedies though, co-relative, but not dependent upon each other. There is no bar under the Act that once Divorce Petition having been dismissed/ the party cannot file application Under Section 10 for judicial separation, more so, the appeal also does not become infructuous. The objection in this regard is wholly misconceived.
19. So far as finding of Trial Court on cruelty is concerned, after having carefully gone through the judgments, cited by Mr. Bhargava, we are of the view that none of the judgments are applicable in the facts and circumstances of the present case. Each case has to be seen considered and adjudicated on its own facts and circumstances. However, we would like to refer to the judgment of Apex Court in the case of N.G. Dastane (supra), as cited by Counsel for the respondent. In that case the Apex Court though held that the respondent-wife was guilty of cruelty, but the husband having condoned her actions earlier subsequent conduct have to be seen while deciding such matters.
20. The Apex Court observed that proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quassi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.
21. The Court further observed that the Act of 1955 does not require that the petitioner must prove his case beyond reasonable doubt. Section 23 confers on the Court the power to pass a decree if it is satisfied on matters mentioned in Clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word ‘satisfied’ must not mean ‘satisfied beyond a reasonable doubt’. The Court further observed that under the provisions of the Act the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. The enquiry, therefore, has to be whether conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful and injurious for him to live with the respondent.
22. As in the present case, looking to the entire facts and circumstances where the respondent has been threatening that she will put an end to her own life, abusing the husband time and again and threatening that she will make him loose his job, insulting the husband, not only in front of others, but his parents also, complaints of independent persons regarding her quarrelsome and uncalled for behaviour, tarnishing not only the image of husband, but also his parents, are almost so grave an order as to imperil the appellant’s sense of personal safety, mental happiness, job satisfaction and reputation, in our view, the respondent is guilty of cruelty. Moreover, admittedly, there has been great enmity between both sides where criminal-complaints have been filed against each other and the same have been still pending before the competent Courts. The Trial Court having not considered the entire facts and circumstances and in true perspective, we are of the view that the divorce petition, filed by the appellant-husband is liable to be accepted.
23. Accordingly, the present appeal is allowed. The judgment dated 24.2.1993, passed by the Family Court, Kota, is set aside and the decree for divorce is hereby granted in favour of the appellant. There will be no order as to costs.