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IN THE HIGH COURT OF JUDICATURE AT PATNA
DINESH KUMAR SINGH, ARVIND SRIVASTAVA, JJ.
Tanmay Jaiswal – Appellant
Versus
Sapna Jaiswal – Respondent
Miscellaneous Appeal No. 645 of 2009
Decided On : 28-09-2020
Hindu Marriage Act, 1955 – Section 13(1)(ia) – Divorce – On ground of cruelty and desertion – Cruelty is human conduct or behavior in respect to matrimonial duties and obligations and such conduct adversely affects the other – Cruelty can be of two kinds - physical or mental – It is easy to prove physical cruelty with direct evidence, but it is really difficult to prove mental cruelty with direct evidence, as, mental cruelty impacts mind of one side of married couple by other side, which is of such a nature that a reasonable conclusion can be reached by affected side that it is not possible or it is not safe to reside in company of other side who has inflicted cruelty – Cruelty can be treated as mental cruelty, when husband or wife who has claimed dissolution of marriage on ground of mental cruelty, has apprehension in his or her mind that it is harmful and injurious to live in company of other side – However, cruelty largely depends on living condition of parties to which they are accustomed to or their economic or social conditions and their culture and human values to which they attach importance – Each case has to be decided on its own merits – Daily wear and tear cannot be treated as mental cruelty. (Paras 18 and 21)
Hindu Marriage Act, 1955 – Section 13(1)(ia) – Divorce – On ground of cruelty and desertion – Only allegation of physical cruelty is of throwing slippers and hot tea but no oral evidence to that effect has been produced – Thrust of pleading of appellant in plaint is misbehaviour of respondent-wife, dressing in a vulgar manner and having relationship with other boys, but none of these alleged misconduct of respondent wife has been proved – Conduct of appellant-husband appears unreasonable that within few days of marriage two boys came and remained in room of respondent wife for 15-20 minutes but he did not inform police nor did he inform anyone – For constituting concept of desertion, two essential conditions must precede, i.e., factum of separation and intention to bring cohabitation permanently to an end – Either spouse who is claiming to be deserted must bring absence of consent and absence of reasonable cause for deserting other side – Admittedly, appellant claims that respondent wife deserted him on 24.4.1995 – As per Section 13(1)(ia), for getting marriage dissolved, other side should have deserted petitioner for a continuous period for not less than two years immediately preceding to presentation of petition – In present case, date of desertion is admitted on 24.4.1995 whereas Matrimonial Case was filed on 16.8.1996, thus, appellant is not entitled to get marriage dissolved on ground of desertion. (Paras 23, 25, 27 and 29)
Hindu Marriage Act, 1955 – Section 13(1) – Patna High Court Hindu Marriage Rules – Rule 16 – Civil Court Rules – Rule 214(16) – Divorce – Irretrievable breakdown of marriage – Section 13 of Act does not stipulate irretrievable breakdown of marriage as ground for dissolution of marriage – However, Supreme Court in exercise of jurisdiction under Article 142 of Constitution of India has dissolved marriage on the ground of irretrievable breakdown of the same but such power cannot be exercised by High Court or Principal Judge, Family Court – As per Rule 16 of Patna High Court Hindu Marriage Rules and Rule 214(16) of Civil Court Rules, adulterer is a necessary party when dissolution of marriage or judicial separation is sought on ground of adultery – However, on certain grounds Court may allow petitioner not to make an adulterer as party if he is dead or if he could not know his name instead of due diligence – When son of appellant and respondent has also become adult, no useful purpose will be served at this stage to allow marriage to be dissolved – Appeal dismissed. (Paras 30 to 35)
JUDGMENT :
DINESH KUMAR SINGH, J.
1. Heard learned counsel for the appellant and learned counsel for the respondent.
2. The present Miscellaneous Appeal is directed against the judgment and decree dated 9.5.2007 and 19.5.2007, respectively, passed by the learned Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 160 of 1996, dismissing the appellant husband’s matrimonial case for a decree of divorce on the ground of cruelty and desertion.
3. The present Miscellaneous Appeal has a chequered history. Initially, for challenging the judgment and decree under appeal, First Appeal No. 157 of 2007 was filed but subsequently, a Division Bench of this Court directed for converting the First appeal into Miscellaneous Appeal vide order dated 11.11.2009. Notices were issued to the sole respondent wife on 11.1.2010. Thereafter, vide order dated 4.7.2011, direction was given to make payment of maintenance amount of Rs. 2000/- to the respondent wife and Rs. 1700/- for the child as per the order of the learned Court below in Matrimonial Case No. 160 of 1996 along with arrears since March, 2007 which comes to Rs. 1,77,600/-.
4. In view of the fact that the appellant and respondent are residing separately since last 21 years and were on litigating terms and also in view of the fact that efforts for mediation failed, this Court vide order dated 20.9.2016 directed to consider the prayer of the appellant husband for dissolution of marriage subject to payment of permanent alimony. Since then, the matter was adjourned for enabling the learned counsels to inform the Court with regard to the terms on which they may consider mutual separation. Thereafter, vide order dated 30.03.2017, the parties were directed to file affidavit in terms of order dated 20.09.2016, pursuant to which on 3.08.2017, the appellant filed supplementary affidavit but the respondent was neither present nor any affidavit on her behalf was filed, and as such the respondent was also asked to file affidavit. The order dated 21.9.2017 reflects that the appellant husband was ready with a draft of Rupees Eighteen Lacs and for payment of one time settlement amount but since the respondent wife did not appear, hence, the issue could not be resolved. The order dated 21.11.2017 reflects that it was submitted on behalf of the respondent wife that she is ready for resolving the issue on payment of one time settlement amount of Rupees Eighteen Lacs when the Division Bench of this Court directed for filing a joint petition. The order dated 21.11.2017 reads as follows:
Let a joint petition be filed by the parties in this regard.
As prayed for, let this matter be posted on 5th December, 2017 in Chambers at 2.15 P.M. On that occasion, let the husband and wife remain personally present before this Court.”
5. Thereafter, neither the affidavit was filed nor the respondent wife appeared before the Court but the order dated 15.12.2017 reflects that both the appellant husband and respondent wife were present in Court and the respondent wife denied that any submission was made in Court that she is ready for divorce rather she is ready to resume the conjugal life. Order dated 15.12.2017 reads as follows:
It appears from the order dated 21.11.2017 that the counsel for the respondent had submitted before us that respondent-wife is ready for one time settlement.
However, today she denied and has submitted that she is not ready for divorce rather she would be willing to live with her husband.
In such a situation, we are left with no option but to hear this matter on merit.
Put up for hearing on 08th of January, 2018.”
6. This appeal travelled to different Courts since last eleven years but the matter could not been disposed of due to some or the other reason, and in particular, as gets reflected, due to the inconsis
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