The Allahabad High Court while allowing an appeal said that a ‘free-willed’ wife’s acts of travelling alone or interacting with members of civil society without engaging in any illegal or immoral relationships cannot be considered an act of cruelty against her husband.
The Division Bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh passed this order while hearing an appeal filed by Mahendra Prasad.
The appeal has been filed under Section 19 of the Family Courts Act, arising from the order dated 9.8.2004 passed by Ist Additional District Judge, Ghazipur in Divorce Petition, whereby the Court below has dismissed the divorce suit instituted by the appellant.
In this case, the appellant had pressed two grounds. First ground of mental cruelty has been pressed attributed to conduct offered by the respondent. Also, the ground of desertion has been pressed. Both grounds alleged have not been found established by the Court below.
Parties were married on 26.2.1990. ‘Gauna’ ceremony is described to have taken place on 4.12.1992. On 2.12.1995, a male child was born to the parties. The parties resided together, intermittently. The appellant describes total duration of that cohabitation upto 8 months, from the date of marriage upto December 1996, when the parties last cohabited.
On the other hand, the respondent claims that parties continued to live together, though intermittently, upto August 2001. At the same time, it is admitted to the respondent that parties have not cohabited since then. Even according to the respondent, 23 years have passed. Parties have remained separated. Only child born to them, has now attained the age of majority. He would be about 29 years of age. No proceeding for restitution of conjugal rights has been witnessed, at the instance of the respondent.
The Court observed that,
Though, the issue of cruelty is alleged, the Court unable to accept the submissions being advanced inasmuch as only this much has been stated that the respondent has been a free-willed person, who would go out of her own to the market and other places and did not observe ‘Parda’.
Further, insofar as the such acts and other acts have been attributed to the respondent, it is difficult to accept the same as acts of cruelty committed, inasmuch as both parties are well educated.
The appellant is a qualified Engineer, whereas the respondent is a government teacher. Difference of perception towards life may give rise to different behaviours by individuals. Such difference of perception and behaviour may be described as cruel by the others by observing the behaviour of another.
At the same time, such perceptions are neither absolute nor such as may themselves give rise to allegations of cruelty unless observed and proven facts are such as may be recognized in law to be acts of cruelty. The act of of the respondent being free-willed or a person, who would travel on her own or meet up with other members of the civil society without forming any illegal or immoral relationship, may not be described as an act of cruelty committed, in these facts.
The other act of cruelty attributed to the respondent, is of causing verbal insults to the appellant for reason of his poor economic status. In that regard, it is not disputed to the parties that their marriage was arranged. Thus, families were known to each other. It is not the case of the appellant that his family status was not known to the respondent. Still their marriage was arranged and solemnized.
The respondent has lived with the appellant (for sometime), at the paternal home of the appellant. The respondent has also given birth to a child. Thus, normal relations have also existed between the parties. The acts of insults that were allegedly caused by the respondent have neither been described with details of time or place of occurrence, nor such acts have been proven before the Court below.
To that extent, we find no error in the order of the Court below in not acting on the plea of insults caused by the respondent. As to the act of immoral relations alleged by the respondent, no conclusive evidence could be led by the appellant.
The Court further observed that,
Besides, the allegation of the respondent having formed immoral relationship with a person described as ‘Punjabi Baba’, no other fact was attempted to be proved and no direct or credible evidence could be led. The evidence led was inconclusive. As to the occurrence, the Court below has rightly refused to act on the same, inasmuch as it could not be proven that the respondent had formed adulterous relationship with the said ‘Punjabi Baba’ or that she had lived with that person at his dwelling house.
The fact proven before the Court below was that the said person had lived in the residential colony of the appellant and that he was forced to leave the same, occasioned by protests of the residents of the area. As to the reason of such protests, it could not be established that amongst others, the resident ‘Punjabi Baba’ has formed any immoral or other relationship with the respondent.
At the same time, the case of the appellant that parties have barely cohabited and they remained separated for reason of the respondent having parted company, cannot be doubted. On one hand, the appellant had led clear evidence to establish that the parties barely cohabited for few months between 1990 to 1995, when the (only) male child was born in 1995.
The respondent admitted that the parties had lived separately but that she would visit her matrimonial home intermittently, and stay there for a few days, at a time. She last visited her matrimonial home in 1996, on the occasion of ‘Mundan’ ceremony of the son born to the parties. What happened thereafter i.e between 1996 to 2001, is disputed. While, the appellant claims that parties never cohabited thereafter, the respondent only asserts that she last resided with the appellant in 2001.
However, no credible evidence exists and no other detail was provided as may have led the Court below to believe that the parties had cohabited within two years from the date of institution of the divorce suit, on 14th August, 2001.
Since then i.e institution of the suit, parties have remained separated for a long period of 23 years. Mediation was attempted, but failed. On query made, learned counsel for the respondent states that it is not possible for the parties to reside together. Yet, respondent is not agreeable to divorce.
That being the position, it has to be stated that the parties have lived separately for more than 23 years. In about 35 years of their marriage, they have barely cohabited over few years, that too, intermittently.
As to the reason for separation suffered, in view of the statement made by the counsel for the respondent that the parties are unable to live together, it cannot be denied that the respondent is unable to persuade herself to cohabit with the appellant and revive her matrimonial relationship. The above conduct is attributable to the respondent. She has denied to live with the appellant.
Once such status exists, the conduct offered by the respondent, may itself constitute an act of cruelty to the extent the respondent may only be seeking to keep alive a legal fiction of her marriage, without any reason subsisting with her to keep alive that relationship.
“Keeping in mind the law laid down by the Supreme Court, we find the finding recorded by the Court below as to mental cruelty, may not be sustained.
The appellant may claim mental cruelty committed by the respondent, to the extent she has deserted the appellant, for very long. In any case, the respondent is found to have deserted the appellant and to have sustained that desertion for a long period, which has now exceeds 23 years. That wilful act of the respondent and her refusal (even now) to cohabit with the appellant to revive her matrimonial relationship appears to be an act of desertion committed of degree as may itself lead to dissolution of her marriage. Here, we note, the respondent has not only refused cohabitation with the appellant, but she has also never made any effort to seek restitution of her conjugal rights.
Insofar as the permanent alimony is concerned, both parties are gainfully employed. The only child born to them has remained in the custody of the respondent. He is about 29 years of age. Therefore, neither any prayer has been made nor any occasion exists to provide for permanent alimony,” the Court observed while allowing the appeal.
The Court set aside the order dated 9.8.2004 passed by Ist Additional District Judge, Ghazipur in Divorce Petition.