Hindu Marriage Act, 1955 – Section 13 – Irretrievable Breakdown of Marriage
When it is obvious that the marriage between the two cannot, under any circumstances, continue any further and the marriage becomes practically dead, then considering the matters of ”irretrievable breakdown of marriage’, or where the repair of broken marriage becomes impossible, it appears appropriate that such grounds may be accepted as ground for divorce. Therefore, this Court suggests the Law Commission of the State to take appropriate steps to consider for incorporating the ground of ”irretrievable breakdown of marriage’ as grounds of divorce in Section 13 of the Hindu Marriage Act.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon’ble Pramod Kumar Srivastava, J.
SECOND APPEAL No. – 258 of 2012
Appellant :- Puja Suri Respondent :- Bijoy Suri Counsel for Appellant :- Vivek Kumar Birla, Shishir Prakash Counsel for Respondent :- Amit Kumar Srivastava, M.K. Gupta
1. This is another case where a marriage has gone sour. The appellant and the opposite party fell in love, had courtship of about four years, got married, lived together for about two months, and thereafter living separately, quarrelling as well as litigating in matrimonial and criminal cases for about 14 years. In meantime four years ago in year 2012, when second appeal was dismissed in default and before its restoration, the the respondent-husband had solemnized second marriage. Parties have no child from their first marriage, but the respondent-husband had two children from his second marriage. The attempts of mediation between the parties had been made several times, which failed. Parties knew that their matrimonial relations had been damaged beyond repairs, but on one hand wife-appellant had prosecuting several criminal cases against respondent for sending him to jail and on other hand she is prosecuting this appeal for restoration of matrimonial bonds.
2. The applicant Bijoy Suri had filed petition (Original suit no. 22/2004 Bijoi Suri v. Puja Suri) under Section-13 of the Hindu Marriage Act in which it was pleaded that parties had friendly relationship from the time of their studies in New Delhi and had agreed for marriage after completion of studies. Their marriage was solemnized on 12.10.2002 and they live together till 27.12.2002 in New Delhi and Mumbai. The O.P.-Puja Suri was employed in Economic Times, New Delhi while petitioner was employed in bank in Mumbai. When petitioner asked his wife to start carrier in Mumbai, then she had threatened to break the matrimonial relationship. She had also treated the petitioner with cruelty and also stopped co-habitation with him. She had threatened and insulted the petitioner before other persons and informed that she cannot live separately from her mother, who is more important than the petitioner’s job. On the ground of cruelty, petitioner had sought relief of divorce in his petition filed after about 2 years of the marriage.
3. The opposite party Puja Suri had filed written statement, in which she admitted her marriage with petitioner, but denied the other allegations made in the divorce petition and further pleaded that she had always being trying to preserve the matrimonial relationship with petitioner and had got her job transferred to Mumbai. Later on, her job was again transferred to Delhi. She had never treated the petitioner or his family members with cruelty. The parents of petitioner were not happy with their marriage and they were willing to break matrimonial bonds of the parties. The petition has been filed on incorrect facts and is liable to be dismissed.
4. After affording opportunity of hearing to parties, the trial court namely, IIIrd Additional Civil Judge, Senior Division (/ACJM), Gautam Buddha Nagar had decreed the divorce petitioner by its judgment dated 22.1.2011. In this judgment the trial court had given finding that petitioner had proved his case, and it is proved from the evidences that O.P.-Puja Suri had treated the petitioner with cruelty in form of screaming and insulting before others, hurting and complaining in police. Trial court had also found there is evidence to the effect that that before filing of the petition, O.P.-wife had admitted her guilt and confessed to have ill treated the petitioner. This confession was made by her through her e-mail. Trial court had also found that reconciliation proceedings between the parties had failed and there is irretrievable breakdown of marriage, which cannot be saved. On these grounds, trial court had allowed the petition of divorce and dissolved the marriage of the parties.
5. Against the judgment of trial court, Civil Appeal No. 12/2011, Puja Suri vs. Bijoy Suri, was preferred by O.P.-wife, which was heard and dismissed by the judgment dated 14.12.2011 of Additional District Judge/Special Judge (SC/ST Act), Gautam Buddha Nagar. In this judgment, lower appellate court had independently appreciated the evidences and held that parties are living separately from year 2002 and during the very short period of living together, their relationship was not normal. During this period, the wife Pu
6. ja Suri had treated her husband with cruelty. First appellate court had held that from 2002 parties have no physical relationship and the appellant-wife had not tried for restitution of matrimonial bonds. Lower appellate court had also held that there is no evidence to show that appellant is forced to live separately from her husband, and that she herself had not discharged those matrimonial duties, which were expected from her and had treated her husband with cruelty. With these findings, the first appellate court had confirmed the judgment dated 22.1.2011 of trial court and dismissed the appeal.
7. Against the judgment of trial court as well as first appellate court, present second appeal has been preferred by the O.P.-wife of the original suit.
8. At the time of admission of appeal, following substantial questions of law were framed:-
“(i) Whether on the basis of the evidence on record the plaintiff was entitled to a decree of divorce on the ground of cruelty?
(ii) Whether the courts below exceeded their jurisdiction in granting a decree of divorce on the ground of irretrievable breakdown of marriage between the parties?”
9. Learned counsel for the appellant contended that that there has been no evidence that any cruelty has been committed by wife against the petitioner-husband or his family members. Even in his statement the petitioner-husband had not pointed out any particular incident of misbehaviour, except one incident of snubbing and saying ‘shut-up’. He contended that alleged apology through forged e-mail was managed by husband-respondent who had knowledge of pass-word his wife, but these facts we facts were not properly appreciated by lower courts. He further contended that criminal case was lodged on correct facts, and in accordance with legal rights of appellant. The exercise of such legal rights cannot be considered against him. He also contended that it is the petitioner-respondent who has deserted her, therefore appeal should be allowed.
10. Learned counsel for the petitioner-respondent contended that petitioner is facing trial for incarceration in criminal case filed against him by appellant-wife. Apart from it she has been publicly insulting and misbehaving with the petitioner which amount to cruelty. He also contended that burden of proving the fact that e-mail sent from the respondent was forged or was managed by respondent was on O.P.-appellant; and such burden to prove this fact which cannot be shifted on respondent. Therefore in absence of any such evidence, the available evidences were rightly appreciated by lower courts. In these circumstances judgment of lower courts are not erroneous and appeal should be dismissed.
11. The word ”Cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ”cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of dowry demand and criminal misappropriation of her property (through criminal cases) made by the appellant-wife against the respondent-husband is nothing but mental cruelty of such a nature that respondent-husband cannot be reasonably asked to live with the wife. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the apprehension of arrest and confinement in prison and the probable loss of reputation and prestige of the husband and his family in the society. The mental agony would also amount to cruelty.