Hindu Marriage Act, 1955 – Section 13 – Cruelty – Extra marital affairs – Making a false allegation against the husband of having illicit relationship and extra marital affairs by wife in her written statement constitute mental cruelty of such nature that husband cannot be reasonable asked to live with wife. In such case, the husband is entitled to a decree of divorce.
AIR 2006 All 7 : 2006 (1) AWC 177 : II (2005) DMC 863
R. Misra and K. Murari, JJ.
Sadhana Srivastava Vs. Sri Arvind Kumar Srivastava
6 September, 2005
Krishna Murari, J.
1. This appeal under Section 19 of the Family Courts Act is directed against the judgment and decree passed by the Family Judge, Varanasi in matrimonial suit No. 177 of 1992, whereby the suit for a decree of divorce instituted by the respondent husband Sri Arvind Kumar Srivastava against the appellant wife Smt. Sadhana Srivastava has been decreed.
2. The case set up by the respondent hupband was inter-alia that parties to the suit were Hindu and were married according to Hindu rites on 2.5.1985. Out of the wedlock two sons were born on 10.7.1987 and 15.12.1988 respectively. From the very beginning of the marriage the behaviour and attitude of the appellant-wife towards the respondent-husband, his patents and other family members had been inhuman and intolerable which culminated into separation of the elder brother of the husband from the family. The wife was always on a look-out to remain at her parent’s place more than that at the matrimonial home She had been in the habit of keeping the husband under mental torture either by teasing his parents or spreading frivolous stories in the family which amounted to cruelty. On account of such recklessness behaviour of the wife the life of the husband-respondent became miserable. It was also alleged that in June, 1990 she left the husband’s place along with his younger son under pretext of the illness of her mother. When all persuasion to bring her buck proved futile, proceedings under Section 9 of the Hindu Marriage Act (for short the Act’) for restitution of conjugal rights were initiated which was, contested by her. It was further pleaded that elder brother of the wife who is an advocate lodged an FIR underSections 498A, 120B and 506 I.P.C on 19.1.1991 which was registered as case crime No. 13 of 1991 naming entire family members as accused. They were arrested and ultimately, bailed out by Xth Additional Chief Judicial Magistrate. Varanasi. The bail order was challenged by the brother of the wife before the District & Sessions Judge, Varanasi and the bail was cancelled and the accused were directed to surrender themselves before the court. The order of the District & Sessions Judge canceling the bail was challenged before this court by filing revision which was disposed of vide order dated 17.5.1991 directing the court below to, bail out the accused on the same day and to release them on personal bond. In pursuance to the aforesaid direction, the Chief Judicial Magistrate, Varanasi directed the release on 29.5.1991 on furnishing personal bond of Rs.3000/- each. It has also been alleged that police has submitted a final report in the matter on 25.2.1992. Further allegations made in the petition go to show that proceedings Under Section 25 of the Guardianship and Wards Act for custody of the minor children was also initiated by the wife and the husband both which were being hotly contested by them. It has been alleged that on the intervention of the respectable member of the community a compromise was arrived at between the parties on 4.5.1992. All the proceedings under the Hindu Marriage Act & Guardianship andWards Act between the parties were finally disposed of in terms of the compromise. It has further been alleged that the appellant-wife committed murder of the younger son on 17.6,1992 for which an FIR was lodged by the respondent-husband which was registered as case crime No. 211 of 1992 under Section 302 I.P.C. The appellant-wife was arrested by the police. She was bailed out by this court on 5.11.1992. During the course of the argument, we have been informed that the wife has been acquitted of the said offence. However, criminal appeal filed by the State is pending before this court. It was further pleaded in the petition that the aforesaid acts have cause great mental pain and he was totally broken down and thus a decree be passed on the ground of cruelty.
3. The appellant-wife in her written statement denied the allegations of cruelty made by the husband in the petition for divorce. However, the fact of various litigation both civil and criminal between the parties and the compromise was admitted in the written statement.. In the additional pleas it was pleaded that behaviour of the respondent-husband was utterly dissatisfactory and against the pious relationship of the husband and wife and she was made target of shots of torture mentally, physically by all possible means by the husband, his parents, his elder brother and elder brother’s wife. Allegations of having an illicit and extra marital relation with one Km. Nitu Mehta @ Shalini, the sister of his elder brother’s wife were also made. It was also pleaded that; husband wanted to give elder son in adoption to his brother who’ was issueless. However, because of unwillingness and resistance put by wife, the husband could not succeed. It was further pleaded that husband found the presence of the wife and children as a hurdle in free access to Km Nitu @ Shalini and as such his behaviour became very undesirable to the extent that several times the wife and minor children were assaulted and beaten for no fault and without justification. On 9th June, the wife and children were abused and beaten and thrown out of the house and since then the husband never cared to maintain them. It was further alleged that on 18.1.1991 the husband with the help of softie undesirable elements forcibly took away the elder son. The wife also made allegation in the written statement that the husband himself was responsible for the murder of the younger son.
4. Thus it would be seen that both wife as well as the husband have accused each other for the murder of the younger son. Since the dispute is pending adjudication before criminal appellate jurisdiction of this court, we have refrained ourselves from making any comments with regard to incident as the same may adversely affect the said proceedings.
5. The respondent-husband got himself examined in the proceedings. He stated that after about six months of marriage the behaviour of the wife started becoming bad to worse. She used to pick up fight for no rhyme and reason’ and abused the parents also. She used to extend threat in the name of her brother who was an advocate. The husband denied that his elder brother’s wife had any sister named Nitu and he was not knowing any other girl of that name, He also denied that he ever neglected to take care of the wife or the children or behaved with them in arty cruel manner. He also denied that he ever wanted to give his son in adoption to his elder brother. One Lalji Srivastava, a neighbour of the husband also appeared in the witness box and deposed that after about five to six months of marriage there was frequent fight between the two. He also stated that wife used to beat her children badly and very often did not cook any food as a result, the husband had to go to office without any food.