|Court||High Court of Judicature at Bombay|
|Subject||Civil Appeal, Family Law|
|Judgment||18th August 2009|
|Citation||AIR 2010 Bombay|
|Bench||Justice P.B Majumdar & R.V More|
Marriage forms a very foundation of social organization.The husband and wife perform the marriage ceremony with a fond hope that they will stay together for the rest of their life and both of them will have love and affection amongst each other and if any issues are born out of the said wedlock they will be looked after by them. Therefore, the said ceremony is a sacred ceremony which is not required to be treated lightly by either spouse treating it as a child’s play. It is said that marriages are made in heaven but they are broken on earth.
Hindu Marriage Act, 1955 makes Hindu Marriage a sacrament as well as a contract which manages to establish society in a sound manner. Without the institution of marriage, the society cannot exist and there would not be any civilization. A successful marriage demands some adjustment and tolerance. The early connotation of Hindu law was that the marriage is indissoluble but the HMA introduced the grounds of divorce and Special Marriage Act, 1954 also defined the grounds for divorce in section 13 and 27, respectively.
The marriage between the parties concerned took place on 5th December, 1992. Out of the said wedlock a child named; Yogesh is born on 27th August, 1993. The petition thereafter was filed on 18th October, 1995 for dissolution of the marriage by the husbandin Family Court, Mumbai. It is the case of the appellant that the conduct of the respondent is abnormal and she is having pugnacious nature and she did not give any love and respect to the appellant and use abusive language. In order to substantiate the case for cruelty, various instances were cited in the petition. The husband was seeking decree of divorce under section 13 (i) (i-1) of HMA. The trial court dismissed the petition and stated that the cruelty as alleged by the appellant is not established. And the court came to the conclusion that the respondent is entitled to claim maintenance from the appellant for herself as well as for the minor son Yogesh at the rate of Rs. 1,000/- each. It is the aforesaid order of the Family Court which is impugned at the instance of the appellant in this appeal. The present appeal is directed against the order passed by the Principal Judge, Family Court, Mumbai.
It was ordered by the court the appeal filed by the appellant (husband) was decided at the admission level itself.
The appellant wanted decree of divorce on the basis of cruelty because the respondent has quarrelling nature, she threatened the appellant that she would commit suicide, she didn’t attend her son’s first birthday and one day on an occasion she quarrelled with the appellant and stripped her clothes for which the appellant filed a complaint in the Police Station. And thereafter, for days she continued to quarrel with the husband and did not respect him.Since, she was always making grievance about the relationship of the appellant with a woman prior to the marriage. The appellant want decree on the ground of irretrievable breakdown because by now more than fifteen years have passed since the appellant and respondent are not staying together.
On the other hand, the respondent denied such claims and said that the trial court has come to the conclusion that it is not a case wherein it can be said that any act of cruelty is committed by the wife to the appellant, this Court, therefore, may not grant such decree in the appeal.
It is submitted by her that the appellant has never taken care of the respondent or of the minor child for all this period and reluctantly he paid maintenance after the Family Court judgment which, according to her, is also not complied with fully as the appellant is still in arrears of Rs. 18,000. According to her, the appellant had a relationship with one lady which fact is not in dispute. When the respondent tried to make enquiry about the same, the appellant did not like the same. A false bogey is created by the appellant regarding certain instances for which there are no independent witnesses and only on false premises alleged act of cruelty is attributed to her. And she doesn’t want divorce and simply because her husband is not ready and willing to keep her is no ground for passing a decree on the ground that the marriage is irretrievably broken down.
Whether from the evidence on record, can it be inferred that the respondent has committed an act of cruelty towards her husband and whether the marriage is required to be dissolved on the aforesaid ground?
Section 13(1) (i-a) of HMA:
Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, treated the petitioner with cruelty.
Section 13B of HMA:
It deals with Divorce by mutual consent means when both parties are ready to dissolve the marriage, they file petition in the court under Section 13B of HMA.
In the case of Sujata Uday Patil v. Uday Madhulkar Patil[i] wherein it has been held that a cruelty is a mixed question of law and fact. Cruel treatment can be inferred from the entire course of conductand incidents showing display of temperament, emotion and perversion by one spouse causing hurt and humiliation to the other spouse.
In the case of Vinita Saxena v. Pankaj Pandit[ii] wherein it has been held that cruelty and mental disorder are two different grounds for grant of divorce. The cruelty, may be physical or mental, intentional or unintentional, varies from time to time, place to place and individual to individual depending upon socio-economic conditions and status, cultural and human values, educational standard, individual temperament, etc.
In the case of Naveen Kohli v. Neelu Kohli[iii] wherein it has been held that when parties are living separately for a sufficient length of time and if one of them brings a petition for divorce decree, it can be presumed that marriage has broken down irretrievably.
The court was of the view that in evidence provided by the husband, the appellant has merely narrated certain instances. There is no satisfactory evidence in this behalf that the respondent had acted in a particular manner which makes cruelty by her to the appellant in this behalf. The court after analysing the evidence and facts realised that on flimsy grounds the appellant has tried to create a case that the respondent has treated him with cruelty. Further the learned judge of the High Court said that Husband and wife both shares equal responsibility to see that the matrimonial home runs in a peaceful manner, more so when a child is born out of the said wedlock. Simply because in a given case wife makes some grievance in a louder voice, such act can never be treated as an act of cruelty as, on marriage, the right of freedom of speech of wife cannot be said to have been taken away in any manner, otherwise after marriage the wife will have no right to speak at all in any manner in the family. It is not expected that a lady should remain like a maid-servant and only to prepare food and look after the children. The wife is not executing a slavery bond in favour of the husband or in favour of her in-laws.
On the argument of the appellant that the marriage is irretrievably broken, the court said that it is required to be noted that till the filing of the petition, the appellant and the respondent had not separated in any manner. Simply because the Family Court took more than fourteen years in deciding the case is no ground for dissolving the marriage. No party to the litigation can take benefit on the ground that the court proceedings are taken long time.
In the instant case, mutual divorce is not possible because one party is not ready, this Court is required to go through the statutory ground available i.e. cruelty and according to the evidence discussed above, it cannot be said that the respondent has committed any act of cruelty and, therefore, no decree can be passed on the said ground. Therefore, the court accordingly did not find any substance in the appeal and appeal is accordingly dismissed.
In the aforesaid case, the appellant had falsely accused the wife that she did cruel treatment to her, and tried to seed the decree of divorce on this ground. After the marriage, a lady joins the husband with high hope that she will be treated as a family member. The cruelty may be mental or physical, intentional or unintentional. In law, the cruelty has to be of one spouse to the other. Normal wear and tear of marriage do not amount to cruelty. And as far as, the irretrievable breakdown of a marriage is concerned, in the instant case, it would not be appropriate to apply the doctrine of irretrievable breakdown of marriage as a straight jacket formula for dissolving the marriage. They should consider this aspect only the background of the other facts and circumstances of the case. The said ceremony is a sacred ceremony which is not required to be treated lightly by either spouse treating it as a child’s play. It is said that marriages are made in heaven but they are broken on earth. Appropriate care is required to be taken to see that such marriages are not broken lightly.
[i](2006) n13 SCC 272
[ii](2006) 3 SCC 778
[iii](2006) 4 SCC 558