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IN THE HIGH COURT OF JUDICATURE AT PATNA
P. B. BAJANTHRI and JITENDRA KUMAR, JJ.
Misc. Appeal No.114 of 2017
(25.8.2023)
Savita Mandal ... Appellant
vs.
Nakshtra Kumar Mandal ... Respondent
Hindu Marriage Act, 1955 – Sections 13 (1)(I-B) and 26 – Divorce – Cruelty and desertion by husband – There is averment in regard to alleged cruelty committed by Respondent-Defendant against Appellant-Plaintiff and desertion of Appellant-Plaintiff by Respondent-Defendant – Averment has been also made in regard to entitlement to custody of two minor children – Family Court has wrongly found that Appellant-Plaintiff had failed to plead cause of action to file petition seeking divorce and custody of minor children – Having cause of action by petitioner to file petition does not mean that petitioner is bound to succeed to get relief as prayed for – For succeeding and getting relief, petitioner is required to prove his or her case as claimed and only having cause of action bereft of any evidence to prove grounds does not entitle petitioner to get relief – It is wrong to say that once there is finding against petitioner in regard to relief as prayed for, she has no cause of action to file divorce petition. (Paras 26 and 27)
Civil Procedure Code, 1908 – Order VII Rules 10 and 11 – Maintainability of a petition – Cause of action – To see whether plaint discloses any cause of action, Court is only required to look into averment made in plaint and document filed in support of plaint – Reading of plaint should be meaningful and not formal – Clever drafting creating illusion of cause of action can not be permitted – Clear right to sue must be shown in plaint – Essentially, whether plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of averments made in plaint in its entirety taking those averments to be correct – Cause of action is a bundle of facts which are required to be proved for obtaining relief. (Paras 16 to 19)
Hindu Marriage Act, 1955 – Section 23 – 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 – Considering that proceedings under the Act are essentially of a civil nature, word "satisfied" must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt" – Section 23 does not alter standard of proof in civil cases. (Paras 33 and 35)
Hindu Marriage Act, 1955 – Sections 13 (1)(I-B) and 26 – Divorce – Cruelty and desertion by husband – Appellant wife is working on post of Lady Constable – What is cruelty in one case may not amount to cruelty in other case – Concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system – It would not make any difference in law whether denial of sexual intercourse is the result of sexual weakness of the respondent disabling him from having a sexual union with appellant, or it is because of any wilful refusal by respondent – Whether husband is cruel to his wife or wife is cruel to her husband has to be ascertained and judged by taking into account entire facts and circumstances of given case and not by any pre-determined rigid formula – No instance has been proved by Plaintiff/Appellant-Wife, which may be construed as cruelty – There may have been ordinary wear and tear in matrimonial life of parties but no cruelty is found to have been committed by Respondent/Husband towards Appellant/Wife – If a spouse abandons other spouse in a state of temporary passion, it will not amount to desertion – There should be animus deserendi on part of deserting spouse – Plaintiff/Appellant has failed to prove ground of desertion to get decree of divorce – Major children are at liberty to decide where and with whom to live – Question regarding custody of children becomes infructuous – Appeal dismissed. (Paras 53, 54, 57, 67, 70, 73, 80 and 81)
Jitendra Kumar, J.—The present appeal has been filed impugning the judgment dated 12.01.2017, passed by learned Additional Principal Judge, Family Court, Katihar, in Matrimonial (Divorce) Case No. 413 of 2013. This petition was filed under Section 13 (1)(I-B) of the Hindu Marriage Act, 1955 praying for divorce and custody of two minor children born out of wedlock. However, the petition was dismissed on contest.
2. The case of the Appellant-Plaintiff, as per the pleadings is that the marriage between the Appellant-Plaintiff and the Respondent-Defendant was solemnized on 25.09.1998 as per the Hindu rites and customs. After marriage, the Appellant-wife joined the matrimonial home of the Respondent-husband. It is further pleaded that at the time of marriage, lavish gifts besides cash of j 1.5 lacs towards expenses of the marriage were given to the Respondent-husband. After the marriage, the conjugal life between the parties was cordial and two male children, namely, Priyansu Kumar and Saket Kumar were born out of the wedlock, who were 12 years and 10 years old respectively at the time filing of the divorce petition. It is further pleaded that after the birth of younger child, the Respondent-husband developed intimacy with another lady of the same village and he was living adulterous life with her. It is further pleaded that while she was living with her husband, there was complaint of insufficient payment of dowry and ornaments by the husband and his relatives, for which, she was subjected to physical and mental cruelty. Ultimately, she was driven out from the matrimonial home after keeping her belongings and ornaments. It is further pleaded that on account of ill treatment and adulterous life of the Respondent-husband, the Appellant- Plaintiff felt uncomfortable to live with Respondent-husband along with his family members and children. It is further pleaded that the Appellant-Plaintiff joined District Police on monthly salary and she scarcely spared time to meet the Respondent-husband at his parental home on account of his posting at different places. It is further pleaded that at the end of every month, the Respondent-husband used to visit her place of posting to take her salary under threat and coercion, leaving the Appellant-wife hand to mouth. It is further pleaded that both the minor sons are living with the Respondent-husband on the pretext of better guardianship and academic career, but reliably it is learnt that they are subjected to ill treatment by the Respondent-husband. As the Appellant-Plaintiff has got government quarter for her residence, she is capable to maintain the academic career of her children. The Appellant-Plaintiff has strong apprehension of untoward incident at the instance of the Respondent-husband. Hence the Appellant-Plaintiff is no longer willing and ready to proceed further with her matrimonial relationship with the Respondent-husband. It is further pleaded that on account of ill treatment at the hands of the Respondent-husband and his family members, the Appellant-Plaintiff has lodged criminal case, bearing Complaint Case No. 203 of 2013 before the Ld. S.D.J.M., Katihar. It is further pleaded that in view of the above facts and circumstances, the matrimonial life of the Appellant-Plaintiff with the Respondent-husband was very tense and no reliance can be placed by the Respondent-husband to continue the matrimonial relationship further and hence, she has filed the present petition with a prayer for divorce under Section 13(1)(1-B) of the Hindu Marriage Act, 1955.
3. On notice, the Respondent-Defendant-husband appeared and filed his written statement, wherein he has claimed that the matrimonial suit as framed was not maintainable. He further claimed that the Appellant-Plaintiff did not plead any lawful ground for decree of divorce. He has admitted the marriage with Appellant-Plaintiff, but he denied the allegation of demand of dowry. It is also claimed by the Respondent-husband that the matrimonial li
Grounds for divorce under Hindu Marriage Act must be substantiated by convincing evidence; mere allegations of cruelty or adultery without proof do not warrant decree of divorce.
Cruelty and abandonment constitute valid grounds for divorce under the Hindu Marriage Act, where neglect and long separation are treated as factors leading to irreversible breakdown of the marriage.
Cruelty and desertion must be proven with specific evidence; irretrievable breakdown of marriage is not a statutory ground for divorce under the Hindu Marriage Act.
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