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ALLAHABAD HIGH COURT
Pramod Kumar Srivastava, J.
Narayan Prasad Saraswat —Appellant
versus
Shaifali @ Muniya —Respondent
Second Appeal No.844 of 2006
Decided on 18.4.2016
(B) Family Law—Matrimonial Discord—Mental cruelty—Mental cruelty and its effect cannot be stated with arithmetical accuracy—It varies from individual to individual, from society to society and also depends on status of persons—What would be mental cruelty in life of two individuals belonging to a particular stratum of society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society—Agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at mental level—Inference has to be drawn from attending circumstances. (Para 16)
(C) Hindu Marriage Act, 1955—Section 13(1) (i-a), (i-b)—Divorce—Cruelty and desertion on part of wife—Allegation of criminal misappropriation of Stridhan, dowry demand and physical torture made by respondent-wife against appellant husband in her written statement, is nothing but mental cruelty of such a nature that appellant husband cannot be reasonably asked to live with wife—Allegation of serious nature and grave assault on character, honour and reputation of husband, allegations amount to cruelty entitling petitioner to decree of divorce—Appellant-husband must have suffered traumatic experience because of criminal proceedings against his father, mother and himself—Arrest and getting bailed out for criminal offences must have resulted in loss of reputation and prestige of husband and his family in society—Mental agony of being arrested and detention in a criminal case resulting into loss of reputation and prestige in society would also amount to cruelty—Appellant having tried all means to sustain marital relations but having found that it was impossible for respondent to gain such relationship, he had chosen to live apart from respondent by moving petition for divorce—There was sufficient ground for husband-appellant to get relief of divorce—Impugned of lower courts set aside and matrimonial original suit for divorce decreed. (Paras 13, 20 to 23)
Result: Appeal allowed.
Pramod Kumar Srivastava, J.—At the time of hearing only counsel for the appellant was present. None was present on behalf of respondent even in cause list was revised. This appeal had already been admitted, but at that time substantial question of law was not framed. Heard arguments of learned counsel for the appellant.
2. Original suit Matrimonial Petition no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was initially filed for the relief of restitution of conjugal rights. After it some criminal case was instituted by opposite-party (wife Smt. Shaifali @ Muniya). Then plaint was amended for the relief of divorce on ground of desertion, adultery and cruelty.
3. In written-statement filed in trial court, O.P.- Smt. Shaifali @ Muniya had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. She had not committed any cruelty. The petitioner had tortured her by beating her and by demanding dowry. So she is not ready to live with her husband-petitioner. The petitioner had evicted her from his house and had filed suit on incorrect facts; therefore petition is liable to be dismissed.
4. After framing issues and accepting evidences of the parties, the Civil Judge, S.D. (J.S.C.C.), Aligarh had dismissed the divorce petition. The trial court had given finding that although it is admitted that criminal case was initiated by O.P. against the petitioner and his family members, who had been released on bail, but said criminal cases did not amount to desertion or cruelty. Trial court had found that in written-statement the O.P. had pleaded that she is not willing to reside with husband-petitioner, and although several attempts of mediation and reconciliation between parties had failed, but learned Civil Judge has also given finding that petitioner had failed to prove the grounds of desertion, adultery or cruelty, therefore divorce petition is dismissed.
5. Aggrieved by the judgment of trial court, Civil Appeal no. 41/2006 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was preferred which was heard and dismissed by the judgment dated 14.08.2006 of Additional District Judge, Court No.-2, Aligarh. Lower appellate court had held in this judgment that during evidence O.P.- wife had file affidavit to the effect that she is willing to continue her matrimonial relationship with her husband, and the petitioner-appellant had failed to prove that irretrievably broken. With these findings, first appellate court had confirmed the finding of trial court and dismissed the first appeal.
6. Aggrieved by the judgment of trial court, as well as of the first appellate court, present second appeal has been preferred by petitioner of the original case.
7. Present appeal has been admitted but at that time substantial question of law was not framed, which is framed as under:
“Whether the marriage of the parties had irretrievably broken due to desertion, adultery and cruelty; and otherwise finding of the lower courts are erroneous and perverse ? If so its effect ?”
8. Learned counsel for the petitioner-appellant contended that in her written-statement she is not ready to live with her husband-petitioner, and several proceedings of mediation and reconciliation between parties, and attempts of courts in this regard had failed. Respondent had committed cruelty by lodging several false criminal cases against the appellant and his family members and by leveling false allegations in her pleading, parties are living separately for last about 15 years and there is no chance of their compromise or living together; therefore appeal should be allowed for the decree of divorce.
9. In present matter petitioner-appellant had filed suit for the relief of restitution of conjugal rights with O.P.-respondent on 01-05-2002, but when summons of this case was served then O.P.-wife had filed several criminal cases for cruelty due to dowry demand and manhandling for offe
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