In one of its judgement, the Supreme Court of India has observed that filing of a criminal case and acquittal therein by default doesn’t become the ground to grant a divorce if the same hasn’t been mentioned in the divorce petition.The High Court had allowed the second appeal for divorce filed by the respondent-husband on the ground that the complaint filed by the petitioner-wife against him resulted in acquittal but in the divorce-petition, such a ground was not the basis of the divorce plea. When the matter was presented to the Top Court, it noted that in the divorce petition the ground is abuse. The application mentions incidents of the petitioner-wife using filthy language in the presence of relatives and friends and respondent husband’s students.
Facts of the case
The husband initiated the petition under Section 13 of the Hindu Marriage Act seeking dissolution of the marriage. The wife on the other hand initiated the petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. The respective petitions were clubbed and the learned Subordinate Judge, Pollachi by the judgment dismissed the petition filed by the husband and allowed the petition filed by the wife. The husband claiming to be aggrieved by the said judgment preferred the appeals in before the Additional District & Sessions Judge, Coimbatore, namely, the First Appellate Court. The First Appellate Court having considered the matter, dismissed the appeals filed by the husband. The husband, therefore, filed the Second Appeal under Section 100 of the Code of Civil Procedure before the High Court of Judicature at Madras. The High Court has through the impugned judgment allowed the appeals, set aside the order for restitution of conjugal rights and dissolved the marriage between the parties herein. It is in that light the appellant-wife is before this Court in these appeals.The undisputed position is that the marriage of the parties was solemnized which in fact was after the parties had fallen in love with each other. As per the averments, the wife is elder to the husband by six to seven years. The parties also have a female child born. During the subsistence of the marriage certain differences cropped up between the parties. The husband alleged that the wife was of quarrelsome character and used filthy language in the presence of relatives and friends and also that she had gone to the college where the husband was employed and had usedbad language in the presence of the students which had caused insult to him. The husband contends that the wife appeared before the Trial Court and on the assurances put forth by her of leading a normal married life the petition was not pressed further. The husband alleges that merely about five days thereafter the wife went to the college and abused him and also left the marital home. In that background on the very allegations which had been made in the first instance, the petition seeking dissolution of marriage in was filed.
Subsequently when the relationship between the husband and his parents were cordial and were living together, it is claimed that the wife had behaved well with the relatives and the visitors. Hence the allegation about her rude behaviour is disputed. In respect of the legal notice issued by the husband it is contended that during the pregnancy, the husband told her that his parents are insisting on issuing the legal notice and the husband did not mean what had been indicated therein. Within about 25 days thereafter the wife had delivered a female child and even in respect of the earlier petition in she was made to appear and submit about her readiness to live with him which she had done unsuspectingly. The said case was also stated to be instigated by his parents. In that light, the wife had denied the allegations and sought for dismissal of the petition. In the petition filed by the wife under Section 9 of the Hindu Marriage Act seeking for restitution of conjugal rights she had referred to the manner in which the marriage has taken place and had indicated that they are living separately without valid reasons and, therefore, sought for the relief. The husband having appeared filed the objection statement referring to the parties belonging to different communities as also the age difference. The further averments made in the petition were denied. The husband also referred to the complaint filed by the wife before the Negamam Police Station in Crime in which the husband was arrested by the police and was in judicial custody for seven days. In that light, it was contended that the marriage between the parties had broken down to a point of no return, hence sought for dismissal of the petition.
Issues before the Hon’ble bench
1. Whether the courts below are correct and justified in failure to dissolve the marriage of the appellant and respondent on the ground of mental cruelty (when particularly the alleged complaint for dowry harassment lodged by the respondent against the appellant and her in-laws) and the consequent arrest by the police would unquestionably constitutes cruelty as postulated in section 13(1)(ia) of the Hindu Marriage Act?
2. Whether the judgments of the court below in dismissing the petition for divorce overlooking the subsequent eventregarding the lodging of false criminal complaint by the respondent-wife for dowry harassment against the appellantand her in-laws are sustainable in law?
3. Whether the judgment of the courtsbelow are correct and justified when particularly the criminal prosecution initiated on the file of the Judicial Magistrate, Pollachi for dowry harassment is ended in Honorary acquittal?
4. Whether the judgment of the courts below are perverse?”
Conclusion
It cannot be in doubt that in an appropriate case the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed to criminal litigation and ultimately if it is found that such allegation is unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstance if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty it could well be appreciated for the purpose of dissolving the marriage on that ground. However, in the present facts as already indicated, the situation is not so. Though a criminal complaint had been lodged by the wife and husband has been acquitted in the said proceedings the basis on which the husband had approached the Trial Court is not of alleging mental cruelty in that regard but with regard to her intemperate behavior regarding which both the courts below on appreciation of the evidence had arrived at the conclusion that the same was not proved. In that background, if the judgment of the High Court is taken into consideration, we are of the opinion that the High Court was not justified in its conclusion.
The learned counsel for the respondent however, contended that ever since the year 2007 the parties have been litigating and were living separately. In that situation it is contended that the marriage is irretrievably broken down and, therefore, the dissolution as granted by the High Court is to be sustained. The learned counsel has relied on the decisions in the case of Naveen Kohli vs. NeeluKohli, in the case of Sanghamitra Ghosh vs. Kajal Kumar Ghoshand in the case of Samar Ghosh vs. Jaya Ghosh to contend that in cases where there has been a long period of continuous separationand the marriage becomes a fiction it would beappropriate to dissolve such marriage. On the position of law enunciated it would not be necessary to advert in detail inasmuch as the decision to dissolve the marriage apart from the grounds available, will have to be taken on case to case basis and there cannot be a strait jacket formula. This Court can in any event exercise the power under Article 142 of the Constitution of India in appropriate cases. However, in the instant facts, having given our thoughtful consideration to that aspect we notice that the parties hail from a conservative background where divorce is considered a taboo and further they have a female child born who is presently aged about 13 years. In a matter where the differences between the parties are not of such magnitude and is in the nature of the usual wear and tear of marital life, the future of the child and her marital prospects are also to be kept in view, and in such circumstance the dissolution of marriage merely because they have been litigating and they have been residing separately for quite some time would not be justified in the present facts, more particularly when the restitution of conjugal rights was also considered simultaneously. In that view, having arrived at the conclusion thatthe very nature of the substantial questions of law framed by the High Court is not justified and the conclusion reached is also not sustainable, the judgment of the High Court is liable to be set aside.
……………….J. (R. BANUMATHI)
…………..J. (S. ABDUL NAZEER)
…………………..J. (A.S. BOPANNA)
New Delhi,
March 03, 2020
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
