Full Judgment Text
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CASE NO.:
Appeal (civil) 5779 of 2006
PETITIONER:
Sujata Uday Patil
RESPONDENT:
Uday Madhukar Patil
DATE OF JUDGMENT: 13/12/2006
BENCH:
G.P. Mathur & A.K. Mathur
JUDGMENT:
J U D G M E N T
(arising out of SLP (C) Nos. 18502-18503 of 2004)
G.P. Mathur, J.
Leave granted.
2. These appeals, by the special leave, have been preferred against
the judgment and decree dated 9.3.2004 of Bombay High Court
(Aurangabad Bench) by which the second appeals preferred by the
appellant herein were dismissed and the decree of divorce passed by
the learned District Judge, Jalgaon, on 12.11.2002 was affirmed.
3. The marriage of the appellant and the respondent was
performed on 1.3.1994 and a son Charul @ Chaitanya was born out
of the wedlock on 6.2.1995. In the year 1999 the respondent
(husband) filed a petition for a decree of divorce against the appellant
(wife) under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act,
1955 on the ground that the appellant had treated him with cruelty
and had also deserted him for a continuous period of not less than two
years immediately preceding the presentation of the petition. The
petition was contested by the appellant on various grounds. The Joint
Civil Judge (Senior Division) passed a decree for judicial separation
on 10.12.2001. The appellant and respondent both preferred appeals
against the said decree and the learned District Judge, Jalgaon, by the
judgment and decree dated 12.11.2002, dismissed the appeal filed by
the appellant and allowed the appeal filed by the respondent and
dissolved the marriage of the parties by a decree of divorce. He
further directed that the respondent shall pay permanent alimony @
Rs.700/- per month to the appellant and @ Rs.500/- per month to the
son Charul @ Chaitanya. The second appeals preferred by the
appellant against the decree passed by the learned District Judge were
dismissed by the High Court on 9.3.2004.
4. The trial court held that the appellant behaved in a cruel
manner and did not cohabit with the husband; that the husband failed
to prove that the wife deserted him without any reasonable excuse and
that the appellant was ill-treated by the respondent and his parents.
On these findings the trial court came to a conclusion that the
respondent was not entitled for a decree of divorce but had made out a
case for judicial separation and a decree was accordingly passed. The
learned District Judge, after a detailed discussion of oral and
documentary evidence on record, held that the wife had treated the
husband with cruelty; that she had deserted the husband for a
continuous period of not less than two years immediately preceding
the presentation of the petition and that there was no legal
impediment in granting the decree for divorce. On these findings
decree of divorce was granted.
5. The High Court in second appeal, after a careful consideration
of the submissions made by the learned counsel for the parties and the
material available on record, has recorded the following findings: -
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"After giving my thoughtful consideration the
submissions made by the counsel for the parties and also
having gone through the evidence recorded at the trial
and findings recorded by the courts below and reasons
assigned therefore, I am of the opinion that it was a case
where the wife was guilty of deserting the husband
without sufficient cause and the desertion was certainly
with the intention to put an end to the matrimonial
relations. The trial court as well as appellate court have
rightly found that the wife was guilty of conduct
amounting to cruelty. Here as rightly submitted by Mr.
Dixit learned counsel for the respondent, the act of
cruelty was pertinent and grave on account of police
complaints lodged against the appellant and his father
and that too during the period when the marriage of
respondents brother was settled. It was in that
background that the wife voluntarily left the matrimonial
home and desertion on her part stood confirmed by the
fact that she lived separately for over two years and did
not make any efforts to come back to matrimonial home
for cohabitation. The wife having failed to establish the
alleged acts of cruelty on the part of the husband, it is
needless to say that her leaving the matrimonial home
and cause separation was without sufficient cause. .........
...........................................................................................
As against that, one cannot lose sight of the fact that
wife, even after having lodged complaint against the
husband in police station, left the matrimonial home
happily without there being any remorse or repentance
and that too carrying all her belongings with her and
admittedly she did not return though a period of two
years lapsed and the husband issued notice seeking
divorce. Therefore, the appellate court was right in
observing in his judgment that there was no condonation
of cruelty on the part of the husband and that there was
no reconciliation between the parties and that the
husband is not taking undue advantage of his own
wrong."
Holding as above the High Court dismissed the second appeals filed
by the appellant and affirmed the decree of divorce passed by the
learned District Judge.
6. Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred as ’the Act’) lays down the grounds on which a
marriage may be dissolved by a decree of divorce. This sub-section
has several clauses and under clause (i-a) cruelty and under clause
(i-b) desertion for a continuous period of not less than two years
immediately preceding the presentation of the petition, are grounds
for granting a decree of divorce. The following observation made by
this Court in Reynolds Rajamani vs. Union of India AIR 1982 SC
1261, which is a case under Section 10 of the Divorce Act, throw
considerable light on the approach which should be adopted in
dealing with a provision relating to divorce: -
"The history of all matrimonial legislation will show that
at the outset, conservative attitude influenced the
grounds on which separation or divorce could be
granted. Over the decades a more liberal attitude has
been adopted, fostered by a recognition of the need for
individual happiness of the adult parties directly
involved. But although the grounds for divorce have
been liberalized, they nevertheless continue to form an
exception to the general principles favouring the
continuation of the marital tie. In our opinion, when a
legislative provision specifies the grounds on which
divorce may be granted they constitute the only
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conditions on which the Court has jurisdiction to grant
divorce. If grounds need to be added to those already
specifically set forth in the legislation, that is the
business of the Legislature and not of the Courts. It is
another matter that in construing the language in which
the grounds are incorporated the courts should give a
liberal construction to it. Indeed we think that the courts
must give the fullest amplitude of meaning to such a
provision. But, it must be meaning which the language
of the section is capable of holding."
Therefore, a liberal approach has to be adopted in dealing with
various clauses of sub-section (1) of Section 13 of the Act and full
meaning should be given to the words used by the legislature.
7. The word "cruelty" and the kind or degree of "cruelty"
necessary which may amount to a matrimonial offence has not been
defined in the Act. What is cruel treatment is to a large extent a
question of fact or a mixed question of law and fact and no dogmatic
answer can be given to the variety of problems that arise before the
court in these kind of cases. The law has no standard by which to
measure the nature and degree of cruel treatment that may satisfy the
test. It may consist of a display of temperament, emotion or
pervasion whereby one gives vent to his or her feelings, without
intending to injure the other. It need not consist of direct action
against the other but may be misconduct indirectly affecting the other
spouse even though it is not aimed at that spouse. It is necessary to
weigh all the incidents and quarrels between the parties keeping in
view the impact of the personality and conduct of one spouse upon
the mind of the other. Cruelty may be inferred from the facts and
matrimonial relations of the parties and interaction in their daily life
disclosed by the evidence and inference on the said point can only be
drawn after all the facts have been taken into consideration. Where
there is proof of a deliberate course of conduct on the part of one,
intended to hurt and humiliate the other spouse, and such a conduct is
persisted, cruelty can easily be inferred. Neither actual nor presumed
intention to hurt the other spouse is a necessary element in cruelty.
8. We have carefully considered the findings recorded by the
learned District Judge and also by the High Court and in our opinion
they are fully born out from the material on record and cannot be
faulted with on any ground. Therefore, the decree for divorce has to
be maintained.
9. There is another aspect of the case which has a serious bearing
on the outcome of the litigation. It is averred in the counter affidavit
filed by the respondent that after the decree of divorce had been
granted by the learned District Judge on 12.11.2002 he married one
Manisha Patil on 11.1.2003 and a daughter Sejal Uday Patil was born
out of the said wedlock. In the rejoinder affidavit filed by the
appellant it is averred that immediately after the judgment was
delivered by the learned District Judge, an application for certified
copy of the judgment was given and thereafter a notice by registered
post was sent to the respondent on 11.1.2003 that she was taking steps
to file a second appeal in the High Court and this notice was served
upon the respondent on 14.1.2003. The second appeals were filed in
the High Court on 21.1.2003 and it was thereafter that the respondent
married Manish Patil on 25.1.2003. It may be mentioned here that at
the relevant time Section 28 (4) of the Hindu Marriage Act provided a
limitation of 30 days for filing an appeal against all decrees made by
the court in any proceeding under the Act. This provision has been
amended by Marriage Laws (Amendment) Act, 2003 on 23.12.2003
and now the period of limitation for filing an appeal is 90 days.
Therefore, when the respondent entered into wedlock with Manisha
Patil, the period of limitation for filing the appeal against the decree
of divorce granted by the learned District Judge had expired and no
order staying the decree had been obtained by the appellant. We may
clarify here that it should not be understood that this Court is
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expressing any opinion regarding the validity or otherwise of the
second appeals which were filed by the appellant before the High
Court. However, the fact remains that the respondent has married
again and he has a child from the second wedlock.
10. Matrimonial disputes have to be decided by courts in a
pragmatic manner keeping in view the ground realities. For this
purpose a host of factors have to be taken into consideration and the
most important being whether the marriage can be saved and the
husband and wife can live together happily and maintain a proper
atmosphere at home for the upbringing of their offsprings. This the
court has to decide in the fact and circumstances of each case and it is
not possible to lay down any fixed standards or even guidelines.
11. In the case in hand it is an established fact that the respondent
has married again and has a child from the second wife. In such
circumstances even if the decree for divorce granted by the learned
District Judge which has been affirmed by the High Court is set aside,
as prayed by the appellant herein, no useful purpose would be served.
The appellant cannot possibly live with the husband in such a
scenario nor it will be conducive to the upbringing of her son Charul
@ Chaitanya. The learned District Judge has mentioned in the
judgment that he made serious efforts for reconciliation and talked to
the parties in arriving at an amicable solution but the respondent was
reluctant to take back the appellant on account of strained relationship
and at the same time the appellant, who refused to give divorce to the
respondent, was not firm as to whether their union would bring about
happy reunion. He has further mentioned that he suggested to the
parties to take some unanimous decision keeping in mind the future
of their son Charul @ Chaitanya but they failed to come to any such
decision. The case was adjourned several times in this Court also to
enable the parties to arrive at a settlement but it did not bring about
any fruitful result.
12. The appellant had filed an application in this Court claiming
Rs.6,000/- towards maintenance. A reply has been filed by the
respondent and paragraph 4 thereof reads as under: -
"4. It is submitted that the petitioner in her application
has pointed out that the respondent is holding
agricultural land gut No. 34 admeasuring 24 are, gut No.
380/2 admeasuring 96 are and a residential house
admeasuring 45/12.5 feet situated at Shevge, Tehsil-
Pachora, District Jalgaon. It is submitted that the said
properties are joint family properties and same are not
the independent properties of the respondent. However,
with consent of father and brother towards full and final
settlement I am ready to give all the three aforesaid
properties to the petitioner and son Charul in lieu of the
maintenance subject to withdrawal of all the proceedings
and orders obtained by the petitioner against respondent
in various courts below."
In para 5 of the reply it is averred that the learned District Judge has
directed the respondent to pay Rs.700/- per month to the appellant
and Rs.500/- per month to the son Charul @ Chaitanya as
maintenance as per the provisions contained in Section 25 of the Act.
In special civil suit No. 88 of 2000 filed under the Hindu Adoption
and Maintenance Act the trial court has directed the respondent to pay
Rs.1,000/- per month as maintenance for son Charul @ Chaitanya in
addition to the aforesaid amount. Apart from above an ex-parte order
has also been passed in proceedings under Section 125 of Criminal
Procedure Code wherein the respondent had been directed to pay
Rs.1,000/- per month to the appellant and Rs.800/- per month to the
son Charul @ Chaitanya. It is also averred that a criminal case has
also been instituted by the appellant against the respondent under
Section 494 of Indian Penal Code.
13. We are of the opinion that the offer made by the respondent
regarding giving of some immovable properties to the appellant and
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her son Charul @ Chaitanya in lieu of maintenance may not be
workable and may create complications, specially in view of the fact
that the respondent has asserted the said properties to be the joint
family properties and there is no such enforceable document on
record by which the consent of the father and other brothers may be
clearly and unequivocally accepted. We, therefore, consider it proper
that the respondent should pay a lump sum amount to the appellant,
interest income whereof may be enough for her maintenance and also
that of her son Charul @ Chaitanya. It has come on record that the
appellant is living with her father and she is working as a teacher in
some school where she is getting Rs.2,000/- per month. The
respondent is working as a Junior Engineer in Municipal Corporation
of the city of Jalgaon. Though he has produced a salary certificate
wherein his basic salary is shown to be Rs.2,360/- per month and
gross salary as Rs.8,423/- but the same has been seriously challenged
by the appellant on the ground that the respondent has not opted for
the grade which is payable in accordance with the recommendations
of Fifth Pay Commission and is deliberately drawing salary in a lower
grade. However, we do not want to enter into this controversy. In
our opinion, payment of a lump sum amount of rupees eight lakhs by
the respondent to the appellant would meet the ends of justice.
14. In view of the discussion made above the appeals are disposed
of in following terms: -
(i) The decree of divorce passed by the learned District Judge on
12.11.2002 is affirmed.
(ii) The respondent is directed to pay a lump sum amount of rupees
eight lakhs to the appellant as maintenance for herself and her
son Charul @ Chaitanya. The respondent is granted three
months time to pay rupees four lakhs and the balance in the
next three months and thus the entire amount should be paid
within six months.
(iii) The proceedings initiated by the appellant or by her son against
the respondent under (a) The Hindu Adoptions and
Maintenance Act, (b) Section 125 of Code of Criminal
Procedure and (c) criminal case under Section 494 IPC shall
remain suspended for a period of three months and if the
amount is paid as indicated earlier, for a further period of three
months.
(iv) After the entire amount of rupees eight lakhs has been paid by
the respondent to the appellant, the proceedings of the cases
instituted under Section 125 Cr.P.C. and Section 494 IPC shall
stand quashed and the proceedings under Section 18 of the
Hindu Adoptions and Maintenance Act shall be abated.
(v) If the sum of rupees eight lakhs is not paid by the respondent to
the appellant as indicated above, it will be open to the appellant
to execute the decree and recover the said amount from the
respondent in accordance with law.