Whether unsubstantiated criminal proceeding against other spouse which results in acquittal amounts to cruelty?

 The Appellant made

unsubstantiated allegations of unchastity against the respondent for

having extra marital affair. There can be no two opinions that the

allegation was very serious. Such an allegation not only disturbs the

tranquility of a marriage but more importantly is character

assassination of a person which certainly has to be placed on a

higher pedestal than merely other grounds for a failed marriage.

In 1995/96 she filed a criminal prosecution under

Section 498A of the Indian Penal Code/3 and 4 of the Dowry

Prohibition Act.

The respondent was convicted but came to be

acquitted in Criminal Appeal No. 16 of 2001. It cannot be lost sight

of that in view of the institution of a criminal prosecution under

Section 498A of the Indian Penal Code/3 & 4 of the Dowry

Prohibition Act and the inability to substantiate the same leading to

acquittal in Appeal itself amounts to cruelty in the eyes of law.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.852 of 2011

 Usha Devi  Vs  Ashok Kumar Mishra 

CORAM:  MR. JUSTICE NAVIN SINHA

and

 MR. JUSTICE JITENDRA MOHAN

SHARMA

Order dated;19-06-2014

The two Appeals arise from judgment and decree

dated 6.9.2011 granting divorce under Section 13(1) of the Hindu

Marriage Act in Matrimonial Case No. 26 of 2005 passed by the

Principal Judge, Family Court at Buxar and judgment and decree

Patna High Court MA No.852 of 2011 (7) dt.19-06-2014

dated 6.9.2011 dismissing the suit for restitution of conjugal rights

under Section 9 of the Hindu Marriage Act passed by the Principal

Judge, Family Court at Buxar in Matrimonial Case No. 36 of 2008.

The former was filed by the respondent and the latter by the

Appellant.

Learned counsel for the Appellant in both the Appeals

submitted that she is and always was ready and willing to live in the

matrimonial home. The institution of a criminal case under Section

498A of the Indian Penal Code/3 and 4 of the Dowry Prohibition Act

registered as G.R. No. 1097 of 1996 by her was itself evidence of the

circumstances under which she had left the matrimonial home.

Earlier also the respondent had moved for restitution of conjugal

rights which ended in a compromise. The repondent had also filed

Maintenance Case 16(M) of 2004 which was also compromised in the

same proceeding. It cannot be said that the Appellant left the

matrimonial home without reasonable cause on account of the cruel

behaviour against her. In view of her willingness to still revive the

marriage, the divorce application ought not to have been allowed and

her suit for restitution of conjugal rights on the contrary should have

been allowed.

Counsel for the respondent submitted that in a

marriage as early as on 13.5.1989 till filing of the present suit for

divorce in 2005, the marriage had never been consumated due to

non cohabitation by the parties.

The Appellant levelled wild

unsubstantiated allegations against the character of the respondent

for having extra marital affairs. He was convicted in the proceeding

Patna High Court MA No.852 of 2011 (7) dt.19-06-2014

under Section 498A of the I.P.C. but ultimately acquitted in Appeal.

The parties have not been living as man and wife for an

unreasonably long period of time and in the facts and circumstances

of the case the question for revival of matrimonial harmony simply

does not arise.

We have considered the submissions on behalf of the

parties. The marriage was solemnized on 13.5.1989. The Appellant

went to the matrimonial home in 1992.

Trouble started soon

thereafter but was assuaged at the intervention of well wisher due to

compromise in the earlier proceedings between the parties. The

Family Judge has recorded a finding after examination of the

pleadings and evidence that there was never any cohabitation and

consequent consummation of the marriage. The Appellant made

unsubstantiated allegations of unchastity against the respondent for

having extra marital affair. There can be no two opinions that the

allegation was very serious. Such an allegation not only disturbs the

tranquility of a marriage but more importantly is character

assassination of a person which certainly has to be placed on a

higher pedestal than merely other grounds for a failed marriage.

In 1995/96 she filed a criminal prosecution under

Section 498A of the Indian Penal Code/3 and 4 of the Dowry

Prohibition Act.

The respondent was convicted but came to be

acquitted in Criminal Appeal No. 16 of 2001. It cannot be lost sight

of that in view of the institution of a criminal prosecution under

Section 498A of the Indian Penal Code/3 & 4 of the Dowry

Prohibition Act and the inability to substantiate the same leading to

acquittal in Appeal itself amounts to cruelty in the eyes of law. It is

not difficult to appreciate the submission on behalf of the respondent

that in view of these developments the question of his considering

revival of matrimonial harmony does not arise. In matrimonial

matters, the sensitivity required in dealing with what are humane

issues cannot always be tested on the arid principles of law.

Furthermore, we find that it was the case of the

Appellant herself that she was not interested in staying in the

matrimonial home but only desired maintenance. We are informed

that maintenance has already been awarded in Case no. 16(M) of

2004.

In conclusion, we do not find any reason to interfere

with the judgment and decree dated 6.9.2011 in Matrimonial Case

No. 26 of 2005 and M.A. No. 852 of 2011 is dismissed.

Consequently,

the

judgment

and

decree

dated

6.9.2011

in

Matrimonial Case No. 36 of 2008 also requires no interference and

M.A. No. 853 of 2011 is also dismissed.

(Navin Sinha, J)

(Jitendra Mohan Sharma, J)

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