Filing of the petition
within one year from the discovery of the fraud or after the force
has been ceased to operate is mandatory and, therefore, the petition
was rightly filed within time under Section 12. can be entertained
for nullity under Section 12(1)(c). There should not be routine
practice to file a petition for nullity and However, in the said
petition, there is an alternative prayer for divorce on the ground of
cruelty. In the petition, there are averments in respect of the
instances of cruelty and, therefore, alternative relief of divorce is
prayed as the marriage was consummated between the parties.
Alternative prayer of divorce in the petition for nullity is neither
contrary nor inconsistent and can be entertained by the Court. The
Judge, Family Court is not found at fault taking view that the Court
when heard the matter and the evidence of the parties was recorded
found that the parties were residing separately since March2007,
i.e. for more four years so bar under Section 14 will not come in the
way. We are in agreement with the pragmatic approach taken by
the learned Judge, Family Court while entertaining the petition
under Section 13(1)(ia) though it was presented within one year
from the date of the marriage. One important point is also to be
noted that if a party wants to seek an alternative relief for grant of
decree of divorce in a petition for nullity of marriage filed within
one year, then it will be cumborsome for the party to file another
petition for divorce after one year. This leads to multiplicity of the
proceedings. Hence, the prayer for divorce can be made
alternatively in the petition for nullity if filed within one year. If
nullity prayed, itself makes an exceptional hardship. In the case of
Mr.X (Supra), the petition was filed before the expiry of one year
from the date of the marriage on the ground of cruelty. Leave was
granted by the trial Court. In paragraph 7, the Division Bench held
that “the trial Court has rightly granted the leave and it was held
that the appellate Court will not interfere with the trial Judge's
discretion unless he has proceeded on a wrong principle of law, or
failed to have regard to some material consideration or some gross
injustice has occurred”. Needless to mention that after all it is left to
the Judge, Family Court to consider whether the parties have an
exceptional hardship and primafacie the petition put an alternative prayer for
divorce under Section 13 giving a gobye to the statutory provision
under Section 14 of the Hindu Marriage Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FCA 166/14
FAMILY COURT APPEAL No. 166/2014
WITH
CROSS OBJECTION ST. No. 5743/2014
Dr. Rajasi @ Swapna w/o Shashank Dandge V Dr. Shashank s/o Vitthalrao Dandge,
CORAM : B.R. GAVAI AND
MRS.MRIDULA BHATKAR, JJ.
DATE : 6TH JANUARY, 2015.
Citation;2015(3) ALLMR316
This first appeal is directed against the judgment and
order dated 26.08.2011 passed by the Judge, Family Court No.3,
Nagpur in petition No.A263/2007 thereby passing the order of
dissolution of the marriage between the parties on the ground of
cruelty.
The appellantWife and the respondentHusband, both,
2.
Judgment
are Doctors by profession. (hereinafter the appellantwife and the
respondenthusband are referred to as per their marital status, i.e.
Wife and Husband, for the sake of brevity and convenience). Their
marriage was settled on 18.06.2006. It was an arranged marriage.
On 16.12.2006, the marriage was solemnized and both went to Ooty
for their honeymoon thereby the marriage was consummated.
However, there were few clashes at Ooty between the parties and
after their return, the Wife went to her maiden home at Parbhani in
the month of January2007. The Husband and his family members
found abnormal traits in the behaviour of the Wife. There was an
apprehension that she would commit suicide anytime and,
thereafter, he went to Parbhani in the third week of January2007
along with his family members and friends. The Wife gave a written
undertaking that she would behave properly and would not do any
eccentric act. Her parents’ family friends also signed on that
undertaking dated 21.01.2007 and, thereafter, she came and started
residing with the Husband and his family members. The father of
the Husband is a reputed doctor from Nagpur and the family is well
off. In February2007, the behaviour of the Wife was not normal
and in the second week of March2007, she tried to commit suicide
and, therefore, the Husband lodged a report with the police and she
was sent to her maiden home. When she tried to come back in the
month of March2007, she was not allowed by the Husband and his
father and since then, the Wife has been staying with her parents at
Parbhani. The Husband filed a petition for nullity of marriage under
Section 12(1)(c) of the Hindu Marriage Act, 1955 on 24.04.2007 on
the ground of fraud that if he would have been aware of suicidal
traits in the wife, he would not have married her. In the same
petition, he alternatively prayed for grant of a decree of divorce on
the ground of cruelty.
3.
The Wife after service of summons appeared before the
Family Court, Nagpur. She denied all the allegations and the
contentions raised in the petition and she countered that the family
of the Husband had demanded dowry from her father and her father
had paid dowry of Rs.1,25,000/ (Rupees One Lac Twenty Five
Thousand only) at the time of marriage. Moreover, at the time of
honeymoon at Ooty, as all the money was exhausted, the Husband
asked her to take out an amount of Rs.3,000/ (Rupees Three
Judgment
Thousand only) from her account through A.T.M. and at that time,
as she was late due to the rush, however, he shouted at her. It was
further contended that the allegation of having the suicidal tendency
is utterly false and baseless and there is no good ground to allow the
Both the parties entered the witness box and were
4.
petition.
subjected to crossexamination. The Husband examined his father
Vitthalrao Punjaji Dandge and one Ramchandra Namdeorao Patne,
who was a family friend and who went to Parbhani along with the
Husband.
5.
The Wife examined Satish Sambhajirao
Wankhedkar, her maternal uncle, on the point of treatment
given by the family members of the husband to her and the father
of the wife. She also examined one Padmakar Parshuram Babre
as a signatory to Exhibit 37, the Vachanpatra, dated 21.01.2007 that
she was not willing to sign the undertaking but, she signed under
pressure.
Considering the evidence, the learned Judge, Family
6.
Judgment
Court, though rejected the case of the husband on the ground of
nullity of marriage, granted relief of dissolution of marriage on the
ground of cruelty. Hence, this appeal.
Shri Bhide, the learned counsel for the Wife, has
7.
submitted that the learned Judge, Family Court has committed an
error in granting the divorce on the ground of cruelty. He raised a
legal point of the competency of the learned Judge, Family Court of
entertaining the said marriage petition under Section 14 of the
Hindu Marriage Act. The marriage was solemnized on 16.12.2006
and the petition for divorce on the ground of cruelty was filed on
24.04.2007, i.e. within one year from the date of the marriage.
Under Section 14, the petition for divorce is required to be
presented after one year and, therefore, the learned Judge, Family
Court was not competent to entertain such petition for dissolution of
marriage by a decree of divorce. He further submitted that a
petition for divorce can be entertained, if filed within one year of
the marriage under the proviso to Section 14 subject to a separate
application made by the party in accordance with the rules made by
the High Court making out a case of exceptional hardship. In
support of his submissions, he relied on the rules made under
notification of the Bombay High Court, dated 12.11.1955. He relied
especially on rule 10 thereof, wherein an application for leave under
Section 14 of the Hindu Marriage Act is necessary if the petition for
divorce is presented within one year of marriage. He submitted that
the petition is filed in deviation of these rules and the mandatory
provisions in the section and, therefore, it was not maintainable. In
support of his submissions, he relied on the case decided by the
Division Bench of Karnataka High Court in Smt.Jacintha Kamath
Versus K.Padmanabha Kamath, reported in AIR 1992 Karnataka
372 and also on the judgment of Karnataka High Court in Sharma
M. Kashinath Versus Shobha, reported in I (2011) DMC 457 (DB).
8.
The learned counsel for the Wife on merits has
submitted that the learned Judge, Family Court has rightly dismissed
the petition on the ground of nullity of the marriage, however, gave
erroneous finding on the point of cruelty. He submitted that after
the settlement of the marriage in June2006, the Husband met with
an accident in August2006 and at that time, the Wife went from
Parbhani to Nagpur and attended him in hospital as he was
unconscious for long time. She supported him at the time of
recovery. Prior to marriage, the wife and the husband met on
number of occasions especially at the time of purchasing and the
Husband did not observe any abnormal behaviour of the Wife. He
submitted that the Wife does not have suicidal tendency though
admittedly there was an incident of 1996. She tried to commit
suicide after having fight with her mother when she was 1415 years
old. However, that was an incident ten years back and is
unnecessarily capitalized by the Husband in order to get divorce
from the wife. He submitted that at no point of time, the Husband
or his family members took her for medical treatment if at all she
was suffering from psychological disorder. He argued that the Wife
did not make allegations of any nature against the husband as she
really wants to cohabit with him. He further relied on the evidence
of Padmakar Babre, who has deposed that undertaking
(Vachanpatra) Exhibit 37 dated 21.01.2007 was obtained under
coercion. He further pointed out that Exhibit 38 is a police report.
However, there are two dates put on the report. On the front page,
the date is mentioned as 20.02.2007, however, at the end the date is
mentioned as 18.01.2007. He submitted that in the report, it was
mentioned that she left the house in the month of January and she
had been residing at Parbhani. However, on 20.02.2007, she was in
fact residing with the Husband and his family members. Thus, the
say of the Husband is not to be relied as he was not truthful. He
further pointed out that she was ousted from the house on
13.03.2007 and it was an act of cruelty on the part of the Husband.
No ground of cruelty is established in any manner by the husband
against the Wife and, therefore, the judgment of the Judge, Family
Court deserves to be set aside.
9.
Shri Dharmadhikari, the learned counsel for the
Husband, while meeting with the legal submissions on the point of
maintainability of the petition, argued that a relief of divorce was
prayed in the petition filed for nullity under Section 12 of the Hindu
Marriage Act which requires a petition to be filed within one year.
He submitted that though a relief of divorce on the ground of
cruelty was prayed, the learned Judge has rightly held that after
filing of the petition when the judgment was delivered, i.e. on
16.08.2011, a period of nearly five years was passed. The provision
of not entertaining the petition within one year is not mandatory.
He submitted that the learned Judge of the Family Court has
discussed the evidence in correct perspective and the judgment of
dissolution of marriage on the ground of cruelty is legal. In support
of his submissions, he relied on the judgment of the Division Bench
of the Bombay High Court in the case of Mr.X Versus Mrs.Y,
On merit, the learned counsel further submitted that
10.
reported in 2010(1) Mh.L.J. 696.
both the parties have been living separately since March2007.
There was a separation of more than 41⁄2 years when the Judge,
Family Court decided the matter. He submitted that in marriage, a
separation is the vital aspect. Therefore, the findings are not
erroneous. The learned counsel further submitted that the Husband
has deposed that he was living under the threat that his wife is
going to commit suicide. Earlier, there was an incident of 1996
when she attempted to commit suicide. The medical papers to that
effect are produced and relied by the Husband. After the marriage
though there was a short span of their living together, he noticed her
behaviour was hysteric. The Husband was scared of her behaviour
and was continuously under pressure. He further submitted that on
21.01.2007, the Husband and his family members went to Parbhani
and brought her back after she gave written undertaking. However,
again on 13.03.2007, she suddenly locked herself in the bedroom,
tied dupatta to the ceiling fan, arranged a stool and said bye bye to
everybody and did not respond for long time though the family
members were banging the door. The learned counsel submitted
that this behaviour was abnormal and, therefore, these are the
instances of the cruelty. He further submitted that if the earlier
incident of 1996 of the wife trying to commit suicide would have
been informed to the Husband before marriage, then he would not
have married her. He submitted that it is a case of fraud and,
therefore, the Husband in his crossobjection has prayed that the
marriage is to be declared a nullity or alternatively the appeal filed
by the wife be dismissed.
11.
So far as the objection in respect of the competency of
the Court and the maintainability of the petition is concerned,
Section 14 of the Hindu Marriage Act specifically places a bar on
filing the petition for divorce within one year of the date of the
marriage. Section 14 of the Hindu Marriage Act reads as under:
No petition for divorce to be presented
14.
Judgment
within one year of marriage. (1)
Notwithstanding anything contained in this Act, it
shall not be competent for any Court to entertain any
petition for dissolution of a marriage by a decree of
divorce, 28[unless as the date of the presentation of
the marriage:
the petition one year has elapsed] since the date of
Provided that the Court may, upon
application made to it in accordance with such rules
as may be made by the High Court in that behalf,
allow a petition to be presented 29[before one year
has elapsed] since the date of the marriage on the
ground that the case is one of exceptional hardship to
the petitioner or of exceptional depravity on the part
of the respondent, but, if it appears to the Court at
the hearing of the petition that the petitioner
obtained leave to present the petition by any
misrepresentation or concealment of the nature of the
case, the Court may, if it pronounces a decree, do so
subject to the condition that the decree shall not have
effect until after the 30[expiry of one year] from the
date of the marriage or may dismiss the petition
without prejudice to any petition which may be
brought after the 31[expiration of the said one year]
upon the same or substantially the same facts as
ig
those alleged in support of the petition so dismissed.
(2)
In disposing of any application under
this section for leave to present a petition for divorce
before the 32[expiration of one year] from the date of
the marriage, the Court shall have regard to the
interests of any children of the marriage and to the
question whether there is a reasonable probability of
a reconciliation between the parties before the
expiration of the 33[said one year].
In the case of Jacintha (Supra), the Division Bench of
Karnataka High Court observed that the marriage is not to be
allowed to be dissolved hurriedly without giving an opportunity or
minimum time for making the marriage a success. However, the
main issue before the Division Bench was in respect of validity of
filing the petition under Section 13 of the Hindu Marriage Act when
one of the spouses in the said marriage was Christian and it was a
Christian marriage. Thus, the said case is distinguishable. In the
case of Sharma M. Kashinath(Supra), the Division Bench has held
that no petition is to be presented within one year of the marriage
and the provision of leave under Section 14 if it is to be filed within
one year is mandatory. The Division Bench has taken a different
view from the Division Bench of Calcutta High Court in the case of
Ravindranath Mukherjee Versus I.T.I. Mukherjee @ Chatterjee,
reported in 95 CWN 1085.
12.
The learned counsel for the husband pointed out
judgment of the Calcuttta High Court in Smt. Priyanka Maity
(Ghosh)
Versus
Sabyasachi
Maity,
reported
in
Manu/WB/0977/2012, dated 14.05.2012. A principal issue before
the Hon’ble Single Judge of Calcuttta High Court was whether
Section 14 is mandatory or directory especially when the petition is
presented prior to the expiry of period of one year since the date of
marriage. In the said case, the Hon’ble Single Judge has referred
the case of Ravindranath Mukherjee/I.T.I. Mukherjee reported in
Manu/WB 0233/1991 decided by the Division Bench of the Calcutta
High Court, wherein the Division Bench has held that the provision
is directory and not mandatory.
The object of not entertaining the petition presented
13.
within one year of the date of the marriage is laudable discouraging
hasty decision on the part of the spouses. Any relationship cannot
be built up within a short span much less a lifelong relationship of a
marriage, which obviously needs adequate longer time to read,
know and understand each other. A couple should not be impatient
and judgmental about each other and no steps in hurry to be taken.
Therefore, a minimum period of one year treated as a “Probation
Period” and, thereafter the parties are free to take legal steps if they
want against each other. If a petition is filed hurriedly then a
relationship gets spoiled and become worse and some possible
chances of coming together may vanish. If one of the spouses
approaches the Court then the other party is bound to develop a
bitterness, there may be a feeling of humiliation, distrust and the
relationship will be spoiled speedily. Thus, to arrest this damage to
their nuptial relationship, the legislature has put this bar of Section
14. However, this provision is required to be read along with the
proviso to Section 14. Proviso is an exception to the main statute.
Undoubtedly, proviso cannot dilute the spirit of the main statute,
however, it facilitates the parties to act in exceptional circumstances
deviating the section so also creates ground for the Court/Authority
to entertain the prayer of the parties under special circumstances as
mentioned in it. Proviso to Section 14 states that if the party makes
out a case of exceptional hardship or exceptional depravity on the
part of the party, then such petition can be allowed. The proviso
does not stop there but, takes care of the principal statute stating
further that if leave is obtained by any misrepresentation or
concealment of the facts, then the Court if pronounces a decree, do
so subject to the condition that decree shall not have effect until
after the expiry of one year from the date of the marriage or may
dismiss the petition.
14.
In sub Section 2 of Section 14, while deciding the
application for leave, the Court is directed to take into account the
interest of the children if at all born out of the wedlock and also
examine any probability or reconciliation between the parties.
Thus, the bar of one year for presentation of the marriage petition
is made entirely with a view to give time to the parties for
reconciliation and the proviso sufficiently insulates the object of the
Admittedly, in the present petition, no application for
15.
principal statute.
leave was filed because the petition was filed under Section 12(1)
reads as follows:
(c) of the Hindu Marriage Act for nullity of the marriage, which
12(1)(c)
:
Voidable marriages. (1) Any
marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and
may be annulled by a decree of nullity on any of the
following grounds, namely :
12
[(a) that the ......................................................
(b) .......................................................................
(c) that the consent of the petitioner, or where
the consent of the guardian in marriage of the
petitioner 13[was required under section 5, as it
stood immediately before the commencement of the
Child Marriage Restraint (Amendment) Act, 1978],
the consent of such guardian was obtained by force
14[or by fraud as to the nature of the ceremony or
as to any material fact or circumstance concerning
the respondent]; or
A petition was not filed for divorce under Section 13(1)
16.
(d)........................................................................
(ia) of the Hindu Marriage Act on the ground of cruelty. Section 14
is applicable to a petition for divorce which is filed under Section 13
of the Hindu Marriage Act and not a petition for nullity under
Section 11 or 12. Nullity of marriage is altogether of different status
than divorce. Therefore, if there is a prayer for nullity of marriage,
the petition is to be presented within one year as subSection 2 of
Section 12 lays down that no petition for annuling a marriage on
the ground specified in Clause (c) of SubSection 1 shall be
entertained if (i) petition is presented more than one year after the
force has ceased to operate or as the case may be, the fraud has
been discovered. Thus, the petition was filed not under Section 13
for divorce but, for nullity under Section 12. Filing of the petition
within one year from the discovery of the fraud or after the force
has been ceased to operate is mandatory and, therefore, the petition
was rightly filed within time under Section 12. can be entertained
for nullity under Section 12(1)(c). There should not be routine
practice to file a petition for nullity and However, in the said
petition, there is an alternative prayer for divorce on the ground of
cruelty. In the petition, there are averments in respect of the
instances of cruelty and, therefore, alternative relief of divorce is
prayed as the marriage was consummated between the parties.
Alternative prayer of divorce in the petition for nullity is neither
contrary nor inconsistent and can be entertained by the Court. The
Judge, Family Court is not found at fault taking view that the Court
when heard the matter and the evidence of the parties was recorded
found that the parties were residing separately since March2007,
i.e. for more four years so bar under Section 14 will not come in the
way. We are in agreement with the pragmatic approach taken by
the learned Judge, Family Court while entertaining the petition
under Section 13(1)(ia) though it was presented within one year
from the date of the marriage. One important point is also to be
noted that if a party wants to seek an alternative relief for grant of
decree of divorce in a petition for nullity of marriage filed within
one year, then it will be cumborsome for the party to file another
petition for divorce after one year. This leads to multiplicity of the
proceedings. Hence, the prayer for divorce can be made
alternatively in the petition for nullity if filed within one year. If
nullity prayed, itself makes an exceptional hardship. In the case of
Mr.X (Supra), the petition was filed before the expiry of one year
from the date of the marriage on the ground of cruelty. Leave was
granted by the trial Court. In paragraph 7, the Division Bench held
that “the trial Court has rightly granted the leave and it was held
that the appellate Court will not interfere with the trial Judge's
discretion unless he has proceeded on a wrong principle of law, or
failed to have regard to some material consideration or some gross
injustice has occurred”. Needless to mention that after all it is left to
the Judge, Family Court to consider whether the parties have an
exceptional hardship and primafacie the petition put an alternative prayer for
divorce under Section 13 giving a gobye to the statutory provision
under Section 14 of the Hindu Marriage Act.
On merit, we have gone through the evidence of the
17.
Judgment
witnesses, especially the evidence of the wife and the husband. We
have to deal with the following two points on the issue of divorce
under Section 13(1)(ia).
Whether the wife has shown eccentric behavioural traits
1)
2)
and tendency to commit suicide ?
Whether the repeated threat to commit suicide amounts
to cruelty or not ?
The husband has deposed about their stay at Ooty when
18.
they went for honeymoon. He deposed that he noticed a strange
behaviour of the wife. She threw tantrums, abused him screaming
at the top of her voice. There were quarrels during their stay. When
he had taken her for dinner at Koimbtoor, at the midst of the dinner,
she walked off the hotel and did not return for half an hour and she
did not tell what she was doing and where she was. There she
threatened him that she would commit suicide if at all he would
question her more. On his return, he informed about the behaviour
of he wife to his family members. When the husband and his family
members asked her about her behaviour, she was angry and she
threatened if such allegations are made, she would end her life and
for which husband and his family members would be blamed. It is
further deposed by the husband that he and his father both being
doctors, they realised that there was a phychological problem with
the wife so they talked with the parents of the wife. The parents
came to Nagpur and after their meeting, husband found that wife
and her parents have suppressed material facts from him that wife
had behavioural problem in the past. She had tried to commit
suicide in the year 1996. However, there was a constant denial from
the parents and the wife about her abnormal behaviour and they
took her to Parbhani. Thereafter in January2007, they all went to
Parbhani and on her giving written undertaking about her good
behaviour in the presence of the family members of both the parties,
she was brought to Nagpur. However, on 13.03.2007, when the
family members were discussing and chatting, she suddenly got up,
said bye to everybody, went to bedroom and tried to commit suicide
by tying dupatta to the ceiling fan. The husband requested her to
open the door as the door was locked from inside. Finally he broke
open the door and everybody was shocked to see a dupatta was tied
to a ceiling fan and arrangements made by her. She was standing
on the chair to commit suicide. So the husband gave complaint to
the police and thereafter she went to her maternal home and has
been staying there.
Per contra, the evidence of the wife is of total denial.
19.
She denied all the allegations and while refuting these allegations,
she has mentioned that making such allegations itself is a cruelty
and she is a normal person. The husband and his family members
were not happy with her because her father could not give good
gifts at the time of the marriage to the family members of the
husband but, dowry of Rs.1,25,000/ (Rupees One Lac Twenty Five
Thousand only) was paid and she relied on the incident of
exhausting the money when they were on honeymoon and this led
to quarrel between the parties.
20.
In the crossexamination of the husband, a
suggestion was given that the father of the husband paid
Rs.1,00,000/ (Rupees One Lac only) by Demand Draft towards
the marriage expenses which was admitted by the husband.
However, he refused that all the expenses of the marriage
were borne by the father of the wife. The parents of the husband
also shared the expenses. He has admitted that he did not take the
wife to the psychiatrist. However, he volunteered that she was not
ready. In the evidence of the wife, she has deposed that after
their engagement on 18.08.2006, her husband met with a road
accident and was severely injured. So she attended him
throughout when he was in I.C.U. She also stayed there for two
days with husband’s family after his discharge. She deposed that
she went to the husband’s house for purchasing before marriage
and there was a smooth relationship with husband’s family. She
stated that the parents of her husband harassed her by hiding
mobile and they were not allowing her to talk with her husband and
they demanded money and articles from her parents. However, she
opposed and, therefore, they blamed that she has a mental disorder
and she behaves abnormally. In her crossexamination, she was
asked about the earlier incident of suicide on 04.09.1996 and she
stated that she had disclosed this incident to her husband and his
father prior to the marriage.
Thus, the husband has stated in the evidence that there
21.
Judgment
were two incidents of her attempt to commit suicide, one has taken
place in 1996, i.e. ten years prior to the marriage. In corroboration,
the MedicoLegal Certificate and the medical papers marked as
Article ‘A’ were produced. On a perusal of the MedicoLegal
Certificate, we found that the history of suicide was mentioned and
the wife had cut the veins of her wrist and attempted to commit
suicide. So she was admitted in the hospital. There is no justifiable
reason given to lessen the rigour of the act of committing suicide
and, thus, the fact remains that there was one incident of
committing suicide in the past. It is true that this incident has taken
place long back, i.e. ten years prior to the marriage and, therefore, it
is a past which is to be forgotten and it is to be taken into account
that at the relevant time, she was hardly 14-15 years old and was
not mature to understand the consequences of her act. Moreover,
when the husband came to know about this incident and had
experienced her abnormal behaviour at the time of honeymoon,
continued to keep a matrimonial relationship with her for a period
of three months thereafter. Though as per the case of the husband,
the wife went to Parbhani in her maiden home in January2007 due
to the quarrels between the parties, the husband and his family
members went to Parbhani on 21.01.2007 and after taking written
undertaking from her that she would behave properly and would
not be eccentric, they brought her back.
Exhibit 37 is the said written undertaking given by the
22.
wife. It is true that in the said undertaking, there is no whisper
about her traits of committing suicide, however, there is a mention
that she would not be hysteric and would not do any act which
would hurt her body and mind. Thus, it cannot be said that this
undertaking was obtained under coercion. The evidence of a
witness Shri Padmakar Babre that when he was present prior to the
meeting, on that day, he found that the husband was threatening
wife that she should sign the undertaking otherwise he would not
take her to Nagpur, cannot be given weightage in view of the
contents in writing and as he is a relative of the father of the wife.
On the undertaking not only the wife signed but the signatures of
the members of both the family appear. This corroborates the
apprehension in the mind of the husband that the wife would take
any drastic action to harm her body. Two reports made by husband
to the police, i.e. Exhibit 38 dated 20.02.2007 and Exhibit 39 dated
16.03.2007, are placed on record. In these reports, the husband has
informed the police about the behaviour of the wife and especially
her constant threat to commit suicide. The learned counsel for the
wife has pointed out that there is a discrepancy in the date, i.e.
Exhibit 38. On the last page, it is mentioned as 20.02.2007 and
earlier it is mentioned as 18.01.2007. Accordingly, a suggestion was
put to the husband that this report was not written in fact on
20.02.2007 but, on 18.01.2007. After going through the contents of
the said report, though we accept that the said report Exhibit 38
might have been written and prepared on 18.01.2007 by the
husband and his family members, however, it was not handed over
to the police immediately but, it was given on 20.02.2007. At the
most, it will show that on 18.01.2007, the husband wanted to
approach the police, however, he prevented himself taking such
immediate action. In the matrimonial relationship, on many
occasions action of the spouse depends on the reaction of the other
spouse and there cannot be accurate predictions about such
responses. The trial Court has rightly discarded the prayer of nullity
of marriage under Section 12(1)(c) of the Hindu Marriage Act in
view of the evidence tendered and the facts placed on record.
Though it is considered that the fact that she admitted to commit
suicide was suppressed, it was an old incident of 1996. A life flows,
a person grows and his thinking changes. At the time of
honeymoon, when there was a first outburst of the wife and she
expressed that she would commit suicide, though husband was
disturbed he continued the relationship with her as wife and,
therefore, he went to Parbhani on 21.01.2007 and brought her back
after obtaining the written undertaking. He made effort to continue
and save the marriage. This definitely has condoned the force in the
allegations of suppression of the alleged facts and, therefore, the
finding given by the trial Court on nullity need not be disturbed.
23.
The circumstances in this case are peculiar as a time
period spent together is hardly four months. The reason given for
alternative prayer for divorce is that threats were given by the wife
to commit suicide. The husband has tendered oral as well as
documentary evidence to show that the wife has attempted to
commit suicide. As observed earlier, the incident in the past not to
be stuck to the present behaviour of the wife and that is to be
detached. However, the evidence shows that the wife repeated that
she would commit suicide if husband would question her.
Thereafter, in a short period of one month, she threatened him that
she would commit suicide. After marriage, it is expected that the
couple is in happy and good mood and should be caring towards
each other. If such threats of suicide are given by either of the
spouses to the other party then it is definitely shocking and it
shatters the basic foundation of the trust between the two human
beings. When wife tells that she would commit suicide if at all there
is any questioning or opposition to her then it is a more scary
situation for the husband when the penal provisions under Section
498A and 304B of the Indian Penal Code are in force against the
husband. Indeed these are necessary provisions which are
protective in nature and take care of the life and interest of the
women and newly wedded brides against the illtreatment and
harassment at the hands of the husband and his family members.
However, repeated utterance of committing suicide without any
good rhyme or reason pushes the husband under the continuous
mental pressure of possible prosecution under the Indian Penal
Code. We would like to distinguish a behaviour of such type under
Section 13(1)(ia) and under Section 13(1)(iii). Section 13(1)(iii)
speaks about a party, who is suffering from incurable unsound mind
or has continuous or intermittent mental disorder. Mental and
psychopathic disorder both are defined under the explanation
clause. In the present case, there is no such concrete evidence
whether wife was suffering from mental or psychopathic disorder.
However, the instances of repeated utterance of threat to commit
suicide are brought on record. We are aware that if a couple is
illiterate or is not aware of the legal consequences of such
utterances, the husband will not treat these utterances of threat as a
cruelty. However, on the other hand, if the couple is educated then
the wife and husband are presumed to be aware of the legal
consequences of the acts done by either of the parties. If such
repeated threats are given by wife and if the preparations for suicide
are made, though having no intention to commit but, with an
intention to create a pressure or with a view to gain the expeted
result from the husband, then it amounts to cruelty. Such repeated
utterance of committing suicide is a scarecrow to the husband. In
such cases, the impact of the threats or utterances on the husband
matters as he is aware of the legal consequences of such act. The
husband knows that if his wife commits suicide or attempts to
commit suicide, then he will be definitely roped in the offences of
Section Section 304B or 498A of the Indian Penal Code and then
continues to live in a shadow of unspoken fear. A solitary instance
can be considered as a outburst of the anger or frustration.
However, if such threats are given intermittently in short span of one
month and repeatedly thereafter in three months, then the husband
definitely suffers a psychological trauma of remaining under
constant fear that his wife is likely to commit suicide if things go
against her. It is not the case that there was a solitary incident of
threat but, the incident was repeated. No finger print of a human
being is same to the other. Similarly every mind thinks, acts,
responds differently than the other in the same situation. Therefore,
while judging the cruelty, the Courts need to consider the impact of
the act of one party on the mind of the other party. There may be
couples fighting with each other everyday. There may be wives
giving threats intermittently to their husband of committing suicide.
However, if at all the parties love each other and are residing with
each other for a long time then the parties are used to each other
and the impact of such threats may be different. After all, cruelty is a relative term and varies from the class, education, region, financial
24.
status, etc.
The learned Judge, Family Court has analyzed the
evidence in proper perspective and has not committed any error in
holding that there is a cruelty on the part of the wife and has rightly
passed the judgment of dissolution of marriage. It is also to be considered that by way of counter, no satisfactory explanation has
come from the wife. If there was no such ground then as to why the
husband has taken such a drastic step of approaching the Court for
nullity or decree of divorce. If such explanation would have come
forward enumerating probability of circumstances or ground to hold
that the petition is filed on a false ground, then the claim of the
husband for divorce would have been dismissed. Thus, we do not
find any good reason to set aside the judgment and order passed by
the Judge, Family Court.
25.
In the result, the appeal is dismissed. The Cross
Objection is also dismissed. No order as to costs.
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