2020 Supreme(Pat) 730

IN THE HIGH COURT OF JUDICATURE AT PATNA
DINESH KUMAR SINGH and ARVIND SRIVASTAVA, JJ.
Misc. Appeal No. 262 of 2016
(25.9.2020)
Smt. Suman Mandal – Appellant
vs.
Rajesh Kumar Mandal – Respondents

Headnote:

Civil Procedure Code, 1908 – Order VII Rule 11 – Cause of action is a entire set of facts that give rise to an enforceable claim – It must include some act done by defendant since in absence of such an act, no cause of action can possibly accrue – It is not limited to actual infringement of right sued on but includes all material facts on which it is founded – Law cannot permit clever drafting which creates illusions of a cause of action – What is required is that a clear right must be made out in plaint. (Paras 18 and 19)

Hindu Marriage Act, 1955 – Section 13 – Divorce – Cruelty by spouse – Day-to-day wear and tear cannot be treated as cruelty – Cruelty can be mental or physical – It is easy to prove physical cruelty by means of direct evidence but it is difficult to prove mental cruelty by direct evidence – Cruelty can be a ground for dissolution of marriage which is willful and justifiable conduct to the extent that it causes danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. (Para 22)

Hindu Marriage Act, 1955 – Section 13 – Civil Procedure Code, 1908 – Order VI Rule 1 – Divorce – Irretrievable breakdown of marriage – Alleged Cruelty, desertion and adultery by wife not established before Family Court – Cause of action of respondent husband in matrimonial case, was adultery, desertion and cruelty – It is for respondent husband who claimed relief to produce evidence in support of his pleading/cause of action – Respondent husband has only examined himself – Merely because there are allegations and counter allegations, a decree of divorce cannot follow nor on mere delay in disposal of divorce proceeding by itself is a ground for dissolution of marriage – Though allegations of cruelty has been levelled with regard to closing doors of bedroom, throwing chilli powder on respondent husband and mixing salt in water and other food materials and apart from that, allegation that appellant wife was having illicit relationship but no evidence to that effect has been led to prove such allegations and as such the cause of action does not stand proved – Similarly, respondent husband has not produced any evidence to prove desertion, rather appellant wife has brought evidence on record that she was compelled to leave matrimonial house due to torture inflicted by respondent husband – Section 13 of Act does not stipulate irretrievable breakdown of marriage as ground for dissolution of marriage – Power under Article 142 of Constitution of India cannot be exercised by High Court or Principal Judge, Family Court to dissolve a marriage on ground of irretrievable breakdown of marriage – Irretrievable breakdown of marriage can be a relevant factor to decide issue of cruelty and desertion, but that cannot be a sole ground – In present case, Principal Judge, Family Court, even after coming to a finding that respondent husband has failed to prove ground of cruelty, desertion or adultery, has dissolved marriage – Court cannot grant relief which has not been prayed for – Court cannot make out a third case contrary to pleadings and evidence on record – In absence of pleading, evidence, if any, produced by party cannot be considered – Impugned judgment is bad in law and facts as well – Judgment and decree under appeal is absolutely perverse and set aside. (Paras 20, 24, 26, 28 to 31 and 41)

Protection of Women from Domestic Violence Act, 2005 – Sections 26 and 36 – Relief under the Act can be claimed in any legal proceeding in civil court, family court or a criminal court – Only rider under Section 26(3) of Act of 2005 is that if any relief has been obtained by aggrieved person in any proceeding other than a proceeding under this Act, then she has to disclose it to Court where application under Act of 2005 has been filed – Act of 2005 is not in derogation of provision of any other law. (Paras 37 and 38)

Patna High Court Rules, 1916 – Rule 16 read with Rule 214(16) of Civil Court Rules – Petition for dissolution of marriage – Adulterer is a necessary party when dissolution of marriage or judicial separation is sought on the 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. (Para 35)