The Allahabad High Court while allowing an appeal observed that if the allegations of cruelty in a dispute between husband and wife are not proved, the subordinate court cannot grant a decree of divorce on the ground of cruelty.
The Division Bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh passed this order while hearing an appeal filed by Kavita.
The appeal has been filed under Section 19 of the Family Court Act, 1984 arising from the order dated 4.9.2015 passed by Principal Judge, Baghpat, whereby the marriage between the parties was dissolved without making provision for permanent alimony.
The Hindu marriage between the parties was solemnised on 15.12.2011. There are no children born to the parties. Accordingly, respondent filed divorce suit on 1.2.2013 i.e within two years of the marriage. In that, he disclosed that the appellant was quarrelsome from the beginning and that she offered rude behaviour towards the family (including the parents) of the respondent.
Then, of his own, the respondent narrated an incident of the date 16.4.2012 wherein the appellant was shot at and was grievously wounded while she was on a way to her parental home in the company of the cousin brother of the respondent.
According to the respondent, she was admitted to a hospital by the respondent and treatment was provided to her. Upon being discharged from the hospital, the appellant returned to her matrimonial home but she did not change her ways. She remained quarrelsome and rude. She also did not restrain herself from using an abusive tongue towards the family members of the respondent. While those general/generic allegations were made as to cruelty committed by the respondent, only one specific allegation of cruelty was made.
It was alleged, on 3.1.2013, while the respondent was away on duty, the appellant was alone at her parental home in the company of her aged mother-in-law. At that time, certain close relatives of the appellant including her father, brother and two other persons visited the parental home of the respondent and engaged in squabble with the mother of the respondent. Not only was she assaulted but she was attacked with a sharp edged weapon causing grievous injuries to her person.
It is also a fact that a criminal case was registered with respect to that occurrence and the appellant and her family members were tried. At the same time, it is not disputed to the respondent that the criminal trial being Case under Section 323 I.P.C resulted in acquittal of all accused persons, by judgement dated 13.3.2020 passed by Civil Judge (S.D)/F.T.C/A.C.J.M Baghpat. Though a certified copy of that judgement is not on record, at the same time, on query made, counsel for the respondent fairly admits that the said judgement does exist and that it was not challenged in revision/appeal itself.
While the above criminal case was pending, the divorce suit was instituted on 01.02.2013 with the allegations as described above. Those were disputed by the appellant.
The Court noted,
The court below has accepted the plea of cruelty on the strength of evidence led. In that, it has observed that the appellant had offered very cruel behavior and assaulted her mother-in-law along with some other close relatives (of the appellant) on a day when other members of the family of the respondent were not at home to attend the thirteenth day rites of another close relative.
Further, the court below has taken note of the other criminal case lodged by the appellant against the respondent being Case under Sections 498-A, 323, 506, 307 I.P.C read with Section 3/4 Dowry Prohibition Act, 1961 and other criminal cases. However, it is a fact that those criminal cases were lodged after the institution of the divorce suit proceedings on 1.2.2023. In any case, the plaintiff in the divorce suit proceedings did not make mention of such facts. It was not amended, either during pendency of the divorce case or during pendency of this appeal. While the respondent never pleaded cruelty arising from the institution of any criminal case by the appellant, the only act of cruelty alleged remained – the alleged assault committed on the mother of the respondent.
The Court observed,
Having heard counsel for parties and having perused the record, in the first place, irretrievable breakdown of marriage is not available as a statutory ground to dissolve a Hindu marriage. Therefore, it is not open to us to consider that as a ground to dissolve a marriage. The proceeding being a proceeding of statutory appeal, we may look to exercise our jurisdiction only in accordance with the statute. Therefore, we also do not intend to test the limits of the jurisdiction of that ground. As to the ground for divorce disclosed in the plaint, as noted above, the same was confined to a single act of cruelty alleged – being incident dated 3.1.2013. As to the other facts pleaded in the plaint, they did not bring out any ground of cruelty. The fact that the appellant suffered a firearm injury at the hands of an unknown assailant remained wholly extraneous to the ground of cruelty alleged.
As to the further allegation that the appellant tried to trouble her father-in-law, no date, time and place of such occurrence is disclosed in the plaint. Therefore, the same can never be acted upon.
As to the occurrence dated 3.1.2013, if true, it may constitute an act of extreme cruelty. However, the same was denied by the appellant in her written statement. The burden to prove the fact remained on the respondent. Though, during his examination-in-chief, he did give details of the occurrence and did mention that the medical injury report had been prepared on 8.1.2013. Neither such report was filed nor proven. In his cross examination statement, the respondent fairly admitted that he had only filed a photo-copy of that medical report. We have gone through the entire oral statement of the respondent.
At the same time, during his examination-in-chief, he did not make any effort to prove that document. Besides the above conclusion drawn by us, the respondent was cross-examined in detail on the issue of injuries allegedly received by his mother. In the first place, the police authorities did not register any case. On the own say of the respondent, the police authorities treated it to be a petty family squabble.
Then, the alleged medical report was prepared four to five days after the occurrence, on 8.1.2013. No evidence whatsoever was led to establish that the mother of the respondent received any medical attention during that long period of time. Even as to the medical attention received (if at all), on his cross examination, the respondent admitted that he was not aware of the same and that he was not aware that there were any stitch marks received by his mother of any treatment offered to her. Thus, the fact of grievous injuries suffered by the mother of the respondent on being assaulted by sharp edged weapon was not proven, to any extent. What may have occurred may therefore, continue to be described as a family squabble which may never acquire the degree or status of an act of cruelty as may lead to dissolution of a Hindu marriage.
“As to the allegation of offence under Section 307 I.P.C. that may be treated as a wrong allegation made. At the same time, peculiar facts of the present case where it is not denied to the respondent that the appellant was shot at few months before the matrimonial relationship between the parties suffered stress and further since it is not disputed to the respondent that the FIR was lodged against unknown assailants, the allegation made against the respondent under Section 307 I.P.C even if found untrue, may not encourage the Court to reach any premature conclusion of false and malicious prosecution lodged by the respondent. Such an allegation made in the totality of the circumstances noted above, may continue to be described as wrong.
Consequently, we find no ground of cruelty exists as it may allow us to dissolve the marriage between the parties. Recognizing the fact that the parties have lived separately for long, we required them to remain present in Court on earlier dates. We interacted with the parties in the presence of their counsel. No room for settlement could be reached. Accordingly, that course is also not open,” the Court further observed while allowing the appeal.
The Court set aside the order dated 4.9.2015 passed by Principal Judge, Baghpat passed by the court below.