The Allahabad High Court has ruled that forcing a husband and wife to live together despite their intense hate towards each other will amount to cruelty.
The Division Bench of Justice Saumitra Dayal Singh and Justice Arun Kumar Singh Deshwal passed this order while allowing an appeal filed by Ashok Jha.
The appeal was filed against the order dated 07.11.2019 of Additional Principal Judge, Family Court, Ghaziabad passed in Matrimonial Case, by which application of the appellant under Section-13(1) of the Hindu Marriage Act, 1955 for annulling the marriage of appellant and respondent was rejected.
The facts which give rise to the case are that marriage of the appellant and respondent was solemnized on 19.06.2002. Two children were born out of their wedlock. The appellant filed an application under Section13(1) of the Act, 1955 on 15.02.2014 for dissolving marriage of the appellant and respondent. The application was allowed ex parte by order dated 03.08.2016 and marriage of the parties was dissolved. After the knowledge of the aforesaid ex parte divorce decree dated 03.08.2016, the respondent filed a recall application on 22.11.2017, which was allowed and ex parte order dated 03.08.2016 was recalled by order dated 24.05.2018 and the divorce petition was restored at its original number.
Thereafter, the respondent had also filed her written statement denying the allegation of divorce petition.
Subsequently, the appellant had also filed an amendment application to make amendments in the divorce petition, which was allowed on 27.05.2019 by which the appellant brought on record certain new facts regarding criminal cases lodged by the respondent against the appellant, during the pendency of the divorce petition but respondent did not file any written statement after the amendment of the divorce petition.
After hearing both parties, the Family Judge rejected the divorce petition of the appellant on the ground that the appellant could not prove cruelty on the part of the respondent.
Counsel for the appellant submitted that the Court below failed to consider the evidence on record while passing the impugned order.
The concerned criminal Court acquitted the appellant, and a closure report was submitted by the police and apart from this, the respondent has also filed civil suit for permanent injunction, which was also dismissed on 10.01.2019 by the Civil Judge, Senior Division, Ghaziabad and several false complaints were also sent by respondent to Senior Police and Administrative Officer against appellant.
The above conduct establishes that the respondent, just to harass and defame him, had repeatedly lodged criminal and civil cases against him, this continued act amounts to cruelty.
It was lastly submitted by the counsel for the appellant that the appellant and respondent have been residing separately since 2014, and because of false criminal complaints as well as other complaints to police and administrative officers by the respondent, their relationship has become so bitter that there is a complete irretrievable breakdown of their marriage. There is no chance of reconciliation. Therefore, his divorce petition deserves to be allowed on this ground also.
It is contended by the respondent, who is present in person, that she has never committed any cruelty to the appellant and except the case of 498A, she lodged all other cases against the appellant during the pendency of the divorce petition, and the appellant had also lodged false criminal case against her and also illegally grabbed her property.
The respondent also submitted that till 2013, the respondent had a cordial relationship, but subsequently, on developing the extramarital relation of the appellant with one lady, who was an employee in the firm/company of the appellant, their relationship had become estranged and subsequently, after getting ex parte divorce decree, the appellant also got married to the said lady.
Respondent also submitted, her husband wrongly shifted (on the respondent) the entire liability of service tax that arose on their joint business and grabbed her property; therefore, she also lodged cases against the appellant.
It is also further submitted by the respondent that appellant is having several immovable properties worth crores of rupees and his ITR for the F.Y. 2021-22 is approximately 2 crores. The respondent in her written statement also submitted that he had bad intention to not only cheat her but also to kill her and her children. Now she, along with two children aged about 16 years & 19 years, has been living on her own but she doesn’t want the stigma of divorce.
The respondent lastly submitted that the appellant could not prove cruelty on the part of the respondent; therefore, his divorce petition was rightly rejected by the Court below.
The Court observed that,
After hearing both the parties as well as on perusal of the record, it is clear that though the appellant could not clearly establish the cruelty on the part of the respondent till filing a divorce petition in their day-to-day life, this fact is also undisputed that the respondent had lodged one case under Sections-498A, 420 506 and 507 IPC in 2014, before the filing of the divorce petition by the appellant.
In that case, though police had filed a chargesheet under Section-420 IPC and Section-498A IPC was deleted and subsequently the competent Court also acquitted the appellant under Section-420 IPC.
Similarly, in Case under Section-377 IPC which respondent lodged during the pendency of the divorce petition, the police had submitted a closure report.
Apart from the above criminal cases, the respondent filed several other complaints against the appellant. The record also shows that the property dispute between the appellant and respondent is also pending, and all efforts for conciliation have failed. The Court has also tried to explore conciliation between the parties, but the respondent stoutly refused to consider any settlement.
It is also an undisputed fact that both parties have been residing separately since September, 2013, and there is no chance of reconciliation surviving between them, by way of a realistic possibility.
Even during the hearing, the respondent asserted that as the appellant had grabbed her company, ‘Creative Media’ and by manipulation, the appellant persuaded the service tax department to issue liability of service tax of more than Rs 1 crore against her.
The above facts clearly establish that both parties have lodged criminal cases against each other and have serious disputes about the properties. Apart from this, both parties are also making allegations against each other of having relationships outside of marriage, therefore, forcing them to live together despite their intense hate towards each other will amount to cruelty.
“In the case, both the parties have levelled allegation against each other for not maintaining the sanctity of marriage and their involvement in relationship outside of marriage and they have been living separately for more than ten years and number of complaints including the criminal complaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him. Appellant had also filed a case against the respondent. Even at this stage, the respondent is not ready for any conciliation with the appellant.
It is also an undisputed fact that the appellant got married to another woman after getting an ex parte divorce decree, and for a decade, the parties have been living separately. It also appears from record that the marriage does not survive any longer, and the relationship was terminated otherwise except by a formal divorce decree.
From the analysis and evaluation of the entire evidence, while the respondent may not be claiming cruelty suffered by her, yet she may not thrust that fate on the appellant. To him cruelty remains available and established as a ground to seek dissolution of the marriage. That cruelty stands established. Also, it is clear that the marriage between the parties had broken down irretrievably, and there is no chance of their living together, again”, the Court further observed while allowing the appeal.
Consequently, the Court set aside the judgment dated 07.11.2019 passed by the Additional Principal Judge, Family Court, Ghaziabad in Matrimonial Case and dissolved the marriage between the parties, according to the provision of the Hindu Marriage Act, 1955 on grounds of cruelty suffered by the appellant at the hands of the respondent and also for reason if that marriage having broken down, irretrievably.
“Considering the facts and circumstances of the case, the Court, while dissolving the marriage between the parties, also directs the appellant to pay Rs 1,00,00,000/- (One Crore) to the respondent towards permanent alimony within three months, considering the financial condition of the appellant that he is having several immovable properties worth crore of rupees and having ITR for F.Y. 2021-22 of about 2 crores.
If the appellant fails to pay the amount indicated above within the stipulated period, the amount awarded shall carry interest liability @ 6% from today, till date of payment”, the Court ordered.