Court:Orissa High Court
Bench: JUSTICE P Naik, P Mohanty
Smt. Sandhya Gupta And Anr. vs Saibal Prasad Gupta on 12 May, 1999
Equivalent citations: II (1999) DMC 756, 1999 II OLR 110
False Allegation That the Husband was a Drunkard
1. This is an appeal under Section 19 of the Family Courts Act against the order of the learned Judge, Family Court, Rourkela passing a decree for dissolution of the marriage between the appellant No. 1 and the Respondent.
2. Sri K.C. Lenka, learned counsel for the appellants assails the order for dissolution of the marriage inter alia on the ground of maintainability of the petition under Section 13 of the Hindu Marriage Act and on the ground that there was no sufficient material before the learned Judge, Family Court to hold that the appellant-wife was guilty of cruelty towards the husband and that the marriage has become irretrievable. It is his submission that the admitted case of the parties that they being in love, their marriage was registered under the Special Marriage Act at the first instance whereunder it was solemnised at Calcutta in accordance with the Hindu customs and rites, a petition under the Special Marriage Act could only be filed for dissolution of the marriage and as such, the petition under Section 13 of the Hindu Marriage Act was not maintainable nor could the learned Judge, Family Court entertain the same. It is further submitted that in view of the pleadings of the parties and on appreciation of the evidence on record, the learned Judge, family Court could not have come to a finding that the petitioner-Respondent had proved mental cruelly against the appellant-wife to call for a dissolution of the marriage. Sri Ashok Mukherjee, learned Senior Advocate appearing for the Respondent husband however, contends that the marriage could only be consummated after it was solemnised under the Hindu rules and customs as admitted by both the parties and not after it was registered under the Special Marriage Act and us such, the application under Section 13 of the Hindu Marriage Act was maintainable and rightly entertained by the learned Judge, Family Court. The learned Senior Counsel has further contended that on a consideration of evidence on record, there being ample evidence to show that the appellant-wife was guilty of cruelly and the marriage and the relationship of the panics had become irretrievable and as such, the decree for divorce is legal and valid.
3. In view of the rival contentions of the teamed counsel for the parties, the question that needs determination is whether a petition under Section 13 of the Hindu Marriage Act was maintainable and whether in the (act situation of the case, the finding of the learned Judge, Family Court that the appellant wife was guilty of cruelty, rendering the relationship between the parties and the marriage irretrievable, calling for the extreme order of dissolution of marriage could be sustained in law.
4. The first point raised with regard to the maintainability of the petition in the Court below would not detain us long. The divorce was sought for by the Respondent-husband on the ground of cruelty of the wife as contemplated under Section 13(1)(ia) of the Hindu Marriage Act. However, under Section 27 of the Special Marriage Act, the marriage thereunder could also be dissolved on the ground of cruelty. The Judge. Family Court under the Family Courts Act, 19-84 is vested with the powers to decide the matrimonial matters both under the Hindu Marriage Act as well as under the Special Marriage Act. The issue, therefore, docs not relate to jurisdiction of the Court, but the applicability of the law to the case and as to whether such an application was maintainable in the facts and circumstances pleaded in the petition. It reveals from the pleadings of the parties and the evidence on record that the marriage was first registered under the Special Marriage Act in 1975 at Calcutta. It further reveals from the pleadings that even though the marriage was registered under the Special Marriage Act, the parties being involved with each other, it could only be consummated after the same was solemnised on 3rd March, 1976 at Barasat in Bihar according to Hindu rites and customs.
5. A petition for divorce can be maintained before the District Judge under Section 27 of the Special Marriage Act, 1954 either by the husband or the wife on the ground that the Respondent since the solemnisation of the marriage has treated the petitioner with cruelty. Such a petition is to be presented before the Judge, Family Court after coming into force of the Family Courts Act. Similarly, under Section 13 of the Hindu Marriage, Act, a petition for dissolution of the marriage can be maintained before the Judge, Family Court either by the husband or by the wife on the ground that the other party has after solemnisation of the marriage treated the petitioner with cruelly. In either case, a petition for dissolution of marriage is maintainable before the Judge, Family Court on the ground of cruelty and, therefore, it is not a case, where the Court did not have jurisdiction to entertain and pass a decree, but the question is whether the petition was to be presented under the Hindu Marriage Act or undo the Special Marriage Act.
6. Law is well-settled that filing of a petition mistakenly under a wrong provision of law or giving a wrong nomenclature would not oust the jurisdiction of the Court, if the relief sought in the petition can be granted otherwise under some other provision of law. If the Court was vested with the power to deal with the application and grant relief, only because the application or petition has been filed under a misconception quoting a wrong provision of law, a party cannot be non-suited.
7. A Bench of Calcutta High Court in Prabir Chandra Chatterji v. Kaveri Guha Chatterji, AIR 1987 Cal 191 has taken the view that when the marriage was solemnised in terms of Hindu Marriage Act and, thereafter registered under the Special Marriage Act, it cannot affect the maintainability of the petition for divorce nor the jurisdiction of the Court to grant divorce, if any case therefor is eventually made out. The issue therefore, does not relate to the jurisdiction of the Court or bar of law for maintainability of the petition which is required to be decided. We arc in agreement with the views of the Calcutta High Court in Prabir Chandra Chatterji’s case supra. The contention of the appellant to the effect that the petition was not maintainable and as such the decree is a nullity, has to be rejected. In any event, a decree for divorce on the ground of cruelty is available to either party to the marriage both under Section 13(1)(ia) of the Hindu Marriage Act as well as Section 27(ii) of the Special Marriage Act and the Judge, Family Court in both the cases had the jurisdiction to decide the matter. Therefore, on a hypertechnical view that the petition having been filed under a wrong provision of law and entertained by the Court will vitiate the proceeding, cannot be accepted.
8. The next point that needs consideration is as to whether, in the fuels and circumstances of the case and the evidence on record, the plaintiff has been able to establish that the conduct and action of the wife comes within the scope and ambit of “cruelty” defined under the Act. The learned Judge, Family Court exhaustively considered the evidence on record and has come to the finding that the appellant-wife is guilty of cruelty and as such has directed dissolution of the marriage. Let us consider the evidence to find out whether or not such a finding is sustainable in law.
9. The Respondent-petitioner in his evidence has stated that their conjugal life was quite happy. Originally, he was at Goa and was subsequently transferred to Calcutta and then to Barasuan. Since there was no schooling facility, their son was being put up in Hotel, but his wife was living at Goa and Calcutta. But after he was transferred to Barasuan, his wife did not agree to come to Barasuan although a suitable quarters was allotted to him. He had to take permission of his authorities to retain the quarters at Calcutta on the ground of his wife’s illness. The quarters at Calcutta was retained till the end of March, 1995 with the permission of the authorities, which according to the husband was obtained with much difficulty. On his transfer to Rourkela as Deputy General Manager, he was shifted to Rourkela in the first week of March, 1995 and his belongings were shifted from Calcutta to Rourkela. Inspite of his repeated requests, his wife was not willing to come to Rourkela, for which he had to obtain a declaration from his wife that even if a quarter is allotted to the husband, she is not going to Rourkela on her own accord. It is stated that on 11-3-1995, his wife’s two brothers along with the wife of her younger brother came to his official residence at Calcutta and took his wife in an Ambassador Car with all her belongings and belongings of his son saying that she was feeling insecured with his company. He felt seriously for such objectionable attitude. On 12-3-1995, he went to the residence of his brother-in-law and requested his wife to join the matrimonial home, but he was misbehaved by them and his wife shouted at him. On 15-6-1995, which was the 1st day of Baisakh, he requested his wife to stay with him but she did not agree. In spite of several letters to the wife requesting her to come to Rourkela and join the matrimonial home, she did not respond. On 5-5-1996, his wife and son came to Rourkela since his son was to appear at an examination and they left Rourkela on 10-5-1996. It is stated by the husband, P.W. 1 that till then he was meeting all the expenses by kind and by cash for his wife and son. His repeated persuasion to his wife to join the matrimonial home at Rourkela was of no effect. Again in August, 21, 1995, his wife, son and his wife’s brother came to his residence at Rourkela when all his three brothers and two sisters persuaded his wife and requested her to join the matrimonial home, so that he would live happily, but it was of no effect. On 23rd August, 1995 his wife did not enter into his room making wild allegations that some other lady was with him and his wife, son and her brother took rest in the Drawing Room. It is stated that all the times his wife was making allegations against him that he was a womaniser and drunkard. Not only that, she also did not hesitate to make such complaint before the husband’s official head, the Director. In the meantime, he received a caveat notice from the Court of Additional District Judge, Barasat bearing Caveat No. 539 of 1995, which was received on or about 24-9-1995, From 27-8-1995 there was no talk between him and his wife nor any correspondence. It is stated that he filed this case for dissolution of the marriage, so that his wife may stop making any allegations against him before anybody imputing his character. It is further stated that he heard that his wife has made application to his head of office for monetary help which has hurt his feelings. In cross-examination, P.W. 1, the husband has said that their conjugal life was very peaceful, till 1995. His wife was not separated till 27-8-1995. He has further stated that Lipika Roy is the wife of late Tarunkanti Roy, who was his friend and was murdered at Goa and, therefrom, a compassionate appointment was given to Lipika by the Company in January, 1993.
10. P.W. 2, an official colleague of the petitioner-Respondent stated that he was acquainted with the petitioner since last five years and came to know his wife only in August, 1995, when she came to Rourkela. According to this witness, P.W. 1 was residing at Rourkela and that his wife was at Calcutta and in spite of persuasion, she did not join the matrimonial home. P.W. 3 is another witness who knew the parties since 1993 and to his knowledge, the family life of the parties was not congenial, since they did not live together. According to him, he felt that P.W. 1 was mentally tortured since 1995. P.W. 4 is a business man of Rourkela who has stated that he knows the parties and that when the petitioner was at Barasuan, the defendant No. 1 was also at Barasuan and they were living happily there. According to him, both the husband and wife were living together happily in Sector-111, Rourkela. However, he has candidly stated that he has no knowledge about the misunderstanding between the plaintiff and his wife prior to filing of the suit. P.W. 5 is the servant of P.W. 1. He has no knowledge about the relationship between the plaintiff and his wife during his period of service in his house. According to him the plaintiff remains alone in his house. His wife might have come twice and thrice to the house during his stay. The plaintiff is addicted to liquor and makes hullah always in the house. He denied knowledge about Lipika Roy.
11. On the other hand, it is the evidence of the appellant-defendant No. 1 that it was originally a love marriage under the Special Marriage Act on 27-2-1975. Subsequently, both of them married according to Hindu rites and customs on 3-2-1976 whereafter they consummated the marriage. Her husband was transferred to Calcutta and was allotted with a quarter at the Salt Lake by the Company, where both of them lived happily, whereafter her husband was transferred to Barasuan and she accompanied him to Barasuan and remained at the Guest House for 15/20 days.
She has stated that she used to come to Barasuan on intervals of one or two months, living with her husband for 15 or 20 days and was returning back to Calcutta. She asserts that on the advice of her husband, she was putting up at Calcutta. She had to undergo a surgical operation and was advised to remain at Calcutta by the doctor. The operation was conducted on 5-1-1995 and after coming back from the hospital, a love letter was found from the suit-case of her husband written by Lipika Roy and there was exchange of correspondence between them. In the meantime though her husband had already been transferred to Rourkela but was frequently coming to Calcutta. She states that her husband developed illicit love affairs with Lipika and concealed it from her, she felt that her husband had neglected her and, therefore, she went away to her parents’ house out of grief. It is her allegation that instead of requesting her to join the matrimonial home, her husband insisted for separation and divorce. She states in her evidence that between June to August, 1995, her husband’s brother and sister came to her house and suggested for a divorce. But she wanted to talk to her husband. She requested her mother-in-law to take her to Jhargram to the house of her father-in-law, she agreed but without informing they all went to Jhargram. She complains of her ill-treatment and neglect. But she however stales that she is not prepared to divorce after 20 years of married life. She has stated that in August, 1995 as well as in December, 1995 when she was at Rourkela in her husband’s house, she surrendered before her husband, but as he was under the influence of liquor, he did not receive her. It is her statement that her son has become a major. She however states that their relationship being very cordial at this age their conjugal life being happy, she cannot think of a suit for divorce by her husband. In cross-examination, she has stated that she had filed a suit for restitution of conjugal rites in the Court of District Judge, Barasat bearing Matrimonial Suit No. 1005 of 1996 under Section 22 of the Special Marriage Act. It is her statement that even though she is agreed to accompany her husband to his quarter at Barasuan, he did not take her. The quarter was allotted till 30-6-1996. She admitted that the plaintiff had requested her to accompany him, since he had to face some insult for retention of the quarter, but since she had undergone an operation she could not accompany him. It is further stated that the plaintiff got her admitted to the hospital for undergoing the operation. She states that in the morning and in the afternoon, her husband was coming to the hospital where she was an indoor patient to look after her and after her discharge from the hospital, her husband had brought her from the hospital to the residence. D.W. 2 is the younger brother of defendant No. 1. D.W. 3 in the sister and D.W. 4 is the childhood friend. D.W. 2 has stated about the relationship of the plaintiff with Lipika. In view of the evidence on record discussed in the foregoing paragraphs, the finding recorded by the learned Judge, Family Court on discussion of evidence that action of the appellant-wife would amount to mental torture in the mind of the husband within the meaning of cruelty as defined under the Act, cannot be doubted.
12. Sri Mukherjee, learned Senior Advocate for the Respondent has referred to several decisions including the case of V. Bharat v. Mrs. D. Bhagat, AIR 1994 SC 710 and Rajan Vasant Revankar v. Mrs. Shobha Rajan Revankar, AIR 1995 Bom 246, to contend that the marriage has become irretrievable and, therefore, the decree in divorce passed by the Judge, Family Court is not vulnerable. It is submitted that on a reading of the evidence on record, it amply proves that the wife in spite of repeated requests and cajoling by the husband and the husband’s sustained financial, physical and mentaly support to the wife and his son, has not treated the Respondent-husband with care and love and, therefore, is guilty of mental cruelty and as such the decree of divorce should be affirmed. Having gone through the evidence on record and the findings recorded by the learned Judge, Family Court, we do not find any reason to differ from it that the appellant-wife was guilty of cruelty towards her husband-Respondent.
13. Now the question that arises for consideration is, as to whether a decree of divorce as granted by the learned trial Court should be affirmed or any other alternative order in the facts and circumstances of the case should be passed giving an opportunity to the parties to have a further chance of reconciliation. It transpires from record that the appellant-wife is aged about 52 years and the Respondent is aged about 49 years and they have long life ahead of them. They also have a son who has become major and has been prosecuting his post-graduate studies.
The couple have been married for last 20 years and admittedly had lived happily till mid 1995. The conciliation tried at the trial Court and in this Court have failed. But however, it transpires from the evidence of the appellant-wife that she had led a happy married life with her husband for more than 20 years, tried a conciliation by surrendering herself before the husband, but for some reason or other, it could not be materialised, and therefore, in the interest of the parties, we are of the considered opinion that an opportunity should be given for a reconciliation which may take place at a future stage. Human mind is subject to change in the surrounding circumstances and may be, given some time, the couple who have lived happily so long together and consummated their married life, may change their minds, specialty keeping in view the interest of their only son Sandipan, and therefore, we are of the considered opinion that on the facts and circumstances of the case, instead of a decree for divorce, an alternative decree for judicial separation as contemplated under Section 13A of the Hindu Marriage Act should be allowed.
14. In the result, while affirming the findings of the learned Judge, Family Court with regard to cruelty of the appellant wife, we modify the decree of divorce to one for judicial separation under Section 13A of the Hindu Marriage Act.
The appeal is allowed in part.
P.C. Naik, J.
15. I agree.