2023 Supreme(Pat) 944

IN THE HIGH COURT OF JUDICATURE AT PATNA
P. B. BAJANTHRI and JITENDRA KUMAR, JJ.
Miscellaneous Appeal No. 295 of 2018
(25.8.2023)
Dinesh Mandal ... Appellant
vs.
Chaitali Majumdar ... Respondent

Headnote:

Civil Procedure Code, 1908 – Order IX, Rules 3 and 4 – Hindu Marriage Act, 1955 – Section 13(1)(i) – Divorce – Ex-parte dismissal of divorce petition – In case a suit is dismissed for non-attendance of both parties, plaintiff has both options - either to file application under Rule 4, Order IX of Civil Procedure Code to get suit restored by getting dismissal order set aside or to file a fresh suit – In case at hand, Appellant/Plaintiff has preferred to file a fresh suit – Suit is not barred – It is maintainable. (Paras 15 and 16)

Hindu Marriage Act, 1955 – Section 13(1)(i) – Divorce – Matrimonial cases are civil in nature and preponderance of probabilities will be standard of proof in trial of Matrimonial cases under Hindu Marriage Act and not proof beyond reasonable doubt which is applicable in criminal trials – Criminal trial involves liberty of subject which may not be taken away on a mere preponderance of probabilities – If probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where preponderance lies, a doubt arises regarding existence of fact to be proved and benefit of such reasonable doubt goes to accused – It is wrong to import such considerations in trials of a purely civil nature – One has to see what are probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as effect on mind of complainant spouse because of acts or omissions of other – Cruelty may be physical or corporeal or may be mental. (Paras 20, 21 and 24)

Hindu Marriage Act, 1955 – Section 13(1)(i) – Divorce – Ex-parte dismissal of divorce petition holding that Appellant /Plaintiff had failed to prove cruelty as allegedly committed by Defendant-wife against Appellant / Plaintiff – Physical violence is not absolutely essential to constitute cruelty – Consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty – Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of other party – Every matrimonial conduct, which may cause annoyance to other, may not amount to cruelty – Mere trivial irritations, quarrels between spouses which happen in day-to-day married life, may also not amount to cruelty – What is cruelty in one case may not amount to cruelty in other case – Instances of cruelty are not to be taken in isolation – Only pleading regarding cruelty in present divorce petition is that Defendant / Respondent is negating company of Appellant / Plaintiff – Conduct and circumstances created by her is humiliating and causing mental cruelty to him – Withdrawal from society of a husband not necessarily means cruelty if spouse withdrawing from society of other spouse has valid reason to live separately – Appellant/Husband has not proved any alleged misconduct of Respondent/Wife which could be considered as something more serious than ordinary wear and tear of married life – No legal cruelty has been committed by Respondent/Wife to him entitling Appellant-Husband to decree of divorce. (Paras 35, 36, 41, 46, 52, 53 and 54)

Hindu Marriage Act, 1955 – Section 13(1)(ib) – Divorce – Desertion by wife – Quality of permanence is one of the essential elements which differentiates desertion from wilful separation – If a spouse abandons other spouse in a state of temporary passion, it will not amount to desertion – For holding desertion as proved inference may be drawn from certain facts which may not in another case be capable of leading to same inference – It is a total repudiation of obligations of marriage – Desertion is not withdrawal from a place but from a state of things – There should be animus deserendi on part of deserting spouse – Appellant/husband has failed to prove that Respondent/wife has abandoned him without his consent and without reasonable cause with intent to bring cohabitation permanently to an end for more than two years at the time of presentation of present petition – There is not even a whisper in pleading regarding adulterous life of Defendant / Respondent, nor alleged adulterer has been impleaded as Defendant before Family Court – Family Court has rightly dismissed matrimonial case of appellant seeking divorce – Appeal dismissed. (Paras 57, 58, 59, 60, 62, 64 and 71)

Civil Procedure Code, 1908 – Order VI Rules 1 and 4 – Pleadings – Evidence adduced beyond pleadings is liable to be rejected and cannot be considered for grant of relief as prayed for by petitioner – If parties are allowed to lead evidence beyond pleadings then sacrosancy of pleadings comes to an end and entire purpose of filing pleadings also stand defeated. (Paras 64, 65 and 67)