Cohabitation is an essential part of a matrimonial relationship and if the wife declines to cohabit with the husband by forcing him to live in a separate room, she deprives him of his conjugal rights, which will have an adverse impact on his mental and physical well being and which will amount to both physical and mental cruelty. The plaintiff’s allegation of being wrongfully deprived of his conjugal rights has not been controverted by the defendant-respondent and the same has been admitted by implication. {Para 20}
21. In view of the aforesaid facts, we are of the considered view that there was sufficient evidence to prove the grounds of cruelty pleaded by the plaintiff-appellant for grant of a decree of divorce the plaintiff has successfully proved by his ex-parte evidence that the defendant was treating him with cruelty.
ALLAHABAD HIGH COURT
Case :-FIRST APPEAL No. - 32 of 2023
Jitendra Kumar Srivastava Vs Smt. Sweta Srivastava
Coram: Hon’ble Rajan Roy J & Hon’ble Subhash Vidyarthi J.
Neutral Citation No. - 2024:AHC-LKO:57446-DB.
Date: 22.08.2024.
1. Heard Sri Rajesh Kumar Pandey, the learned counsel for the appellant
and perused the material placed on record.
2. By means of the instant appeal filed under Section 19 of the Family
Courts Act, the appellant has challenged the validity of a judgment
and decree dated 19.01.2023, passed by the VI Additional Principal
Judge, Family Court, Lucknow, in Suit No.1198 of 2018: Jitendra
Kumar Srivastava versus Smt. Sweta Srivastava, under Section 13 of
Hindu Marriage Act, 1955.
3. The appeal was admitted by means of an order dated 16.02.2023,
notice was issued to the respondent and the trial court record was
summoned. The office has reported that the respondent declined to
receive notice and, therefore, it was affixed on the gate of her house in
presence of a witness. The service of notice on the respondent is
sufficient but she has not put in appearance before this court to oppose
the appeal and, therefore, the appeal is being decided ex-parte.
4. In the plaint filed on 07.05.2018 before the Family Court the plaintiffappellant pleaded that the parties got married on 23.11.2016 at
Lucknow. It was the first marriage of the defendant-respondent and
the second marriage of the appellant. The relations between the parties
remained normal merely for a period of 4-5 months and thereafter the
respondent started harassing the appellant by various means. She used
to abuse the appellant and to threaten to leave him. She used to start a
quarrel whenever some friends or relatives visited the plaintiff and she
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used to insult the plaintiff and damage the household goods in their
presence. She forced the plaintiff to live in a separate room and
threatened that in case the plaintiff entered her room, she would
commit suicide and entangle his entire family in a criminal case. The
respondent works as a receptionist in a private hospital at Lucknow.
The plaintiff had filed his affidavit in support of the plaint.
5. The Family Court issued summons of the suit to the defendant. The
defendant appeared before the Family Court on 05.04.2019 and the
matter was referred to the Mediation and Conciliation Centre.
Thereafter the suit was transferred to the Court of Additional Principal
Judge, Family Court No.6, Lucknow and on 25.01.2021 the Family
Court issued fresh summons to the defendant through registered post
as well as courier. On 22.09.2021 the Family Court passed an order
holding service of summon of the suit on the defendant to be
sufficient but as the defendant did not appear before the Family Court,
on 15.11.2021 the suit was ordered to proceed ex-parte.
6. The plaintiff examined himself as PW-1 by filing his affidavit as his
examination-in-chief, wherein he reiterated the plaint averments and
he further stated that the defendant had appeared before the Family
Court on 05.04.2019 and the matter was referred for mediation.
During mediation proceedings the defendant declined to enter into any
settlement and she also declined to live with the plaintiff. The
plaintiff’s father Dakshini Prasad Srivastava was examined PW-2 and
in his affidavit filed as his examination-in-chief, he stated that the
defendant used to harass the plaintiff by insulting him in presence of
friends and relatives and she compelled the plaintiff to live in a
separate room by threatening him that in case he entered her room,
she would commit suicide and will entangle his entire family in a
criminal case.
7. Written submissions were filed on behalf of the plaintiff before the
Family Court inter alia stating that the defendant has deserted the
plaintiff since April, 2017 i.e., merely five months after the parties got
married and she is not performing her matrimonial obligations since
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then. A period of five years had elapsed since the defendant stopped
performing her matrimonial obligations towards the plaintiff and that
she continuously behaved in a cruel manner.
8. The Family Court has framed following issues in the suit:
a. Whether the defendant is plaintiff’s wife?
b. Whether the defendant has treated the plaintiff in a cruel manner?
And
c. To what relief the plaintiff is entitled?
9. During the course of hearing of the suit, the Family Court had directed
the plaintiff to file the documents relating to the litigation between
him and his first wife. The plaintiff filed a copy of an order dated
10.03.2011 passed by this Court in Application Under Section 482
No.1210 of 2010, wherein this court has recorded as follows: -
“In terms of report submitted by the Mediation and Conciliation
Centre of this court, it is evident that the parties have settled the
dispute as they have decided to be separate from each other and
also not to press any criminal proceedings against each other.
In the light of the aforesaid report, I hereby quash the charge
sheet No.260 of 2009, filed in case No. 2212 of 2010, arising out
of crime No.582 of 2009, under Sections 323, 498-A IPC and 3/4
D.P.Act, Police Station, Mahanagar, district Lucknow, pending
before the Additional Chief Judicial Magistrate, IV, Lucknow.
The petition is disposed of finally.”
10. A Copy of the settlement agreement dated 26.03.2010 entered into
between the plaintiff and his first wife in the Mediation and
Conciliation Centre of this Court was also brought on record wherein
it was recorded that the parties had filed a suit for divorce by mutual
consent under Section 13-B of Hindu Marriage Act and the
proceedings of criminal case instituted by the plaintiff’s first wife
have been quashed on the basis of agreement between the parties. A
copy of the judgment and order dated 20.09.2010, passed by the
Principal Judge, Family Court, Lucknow in Regular Suit No.515 of
2010 was also filed by the plaintiff whereby the plaintiff’s first
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marriage was dissolved by mutual consent between him and his first
wife.
11. The Family Court decided the first issue in favour of the plaintiff by
holding that the defendant is plaintiff’s wife. While deciding issue
no.2 the Family Court held that the defendant has not appeared in
spite of service of summons and the suit was proceeding ex-parte
against her and, therefore, the responsibility of the court had increased
and it had to examine the entire pleadings and evidence minutely. The
Family Court held that from the documents filed by the plaintiff it
appears that a dispute had occurred between the plaintiff and his first
wife also, which had culminated in their divorce. The Family Court
further held that although the plaintiff has stated that the defendant
used to say that she wanted a divorce it is the plaintiff himself who
had filed a suit for divorce. The plaintiff has not stated as to whether
the defendant has gone away from her home. PW-2 is the plaintiff’s
father and he will naturally support the plaintiff’s case. The plaintiff
has not given the detailed particulars of the threats extended by the
defendant and such incidents can occur whenever there are quarrels
between a husband and wife. The plaintiff has not adduced any
evidence to establish that such incidents were occurring continuously.
12. In view of the aforesaid facts and circumstances of the case, the
following points arise for determination in this appeal: -
a) Whether there was sufficient evidence to prove the ground of
cruelty pleaded by the plaintiff-appellant for grant of a decree of
divorce?
b) Whether the judgment and decree of dismissal of suit passed by the
Family Court is sustainable in law?
13. In Parveen Mehta v. Inderjit Mehta: (2002) 5 SCC 706, the
Hon’ble Supreme Court has explained the term Cruelty as used in
Section 13 of the Hindu Marriage Act, in the following words: -
“21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken
as a behaviour by one spouse towards the other, which causes
reasonable apprehension in the mind of the latter that it is not
safe for him or her to continue the matrimonial relationship with
the other. Mental cruelty is a state of mind and feeling with one
of the spouses due to the behaviour or behavioural pattern by the
other. Unlike the case of physical cruelty, mental cruelty is
difficult to establish by direct evidence. It is necessarily a matter
of inference to be drawn from the facts and circumstances of the
case. A feeling of anguish, disappointment and frustration in one
spouse caused by the conduct of the other can only be
appreciated on assessing the attending facts and circumstances
in which the two partners of matrimonial life have been living.
The inference has to be drawn from the attending facts and
circumstances taken cumulatively. In case of mental cruelty it
will not be a correct approach to take an instance of
misbehaviour in isolation and then pose the question whether
such behaviour is sufficient by itself to cause mental cruelty. The
approach should be to take the cumulative effect of the facts and
circumstances emerging from the evidence on record and then
draw a fair inference whether the petitioner in the divorce
petition has been subjected to mental cruelty due to conduct of
the other.”
14. The plaintiff has pleaded that relations between the parties remained
normal merely for a period of 4-5 months and thereafter the defendant
started harassing him by various means, she used to abuse him and to
threaten to leave him, she used to start a quarrel whenever some
friends or relatives visited the plaintiff and she used to insult him and
to damage the household goods in their presence. She forced the
plaintiff to live in a separate room and threatened that in case the
plaintiff entered her room, she would commit suicide and entangle his
entire family in a criminal case. Although the defendant had put in
appearance before the Family Court on 05.04.2019, she did not file a
written statement to controvert these pleadings and, therefore, she
impliedly admitted the plaintiff’s pleadings. It is a well established
principle of law that admission is the best evidence and the admitted
facts need no proof.
15. The plaintiff examined himself as PW-1 by filing his affidavit as his
examination-in-chief, wherein he reiterated the plaint averments and
he further stated that during mediation proceedings the defendant
declined to enter into any settlement and she also declined to live with
the plaintiff. The plaintiff’s father Dakshini Prasad Srivastava was
Page 5 of 8
examined PW-2 and in his affidavit filed as his examination-in-chief,
he stated that the defendant used to harass the plaintiff by insulting
him in presence of friends and relatives and she compelled the
plaintiff to live in a separate room by threatening him that in case he
entered her room, she would commit suicide and will entangle his
entire family in a criminal case. As the suit was proceeding ex-parte,
there was no occasion for any of the witnesses being cross examined
and any discrepancy having come to light in their statements given in
examination-in-chief and cross-examination.
16. It was submitted in the written submissions filed on behalf of the
plaintiff before the Family Court that the defendant has deserted the
plaintiff since April, 2017 i.e., merely five months after the parties got
married and she is not performing her matrimonial obligations since
then. A period of five years had elapsed since the defendant stopped
performing her matrimonial obligations towards the plaintiff and that
she continuously behaved in a cruel manner.
17. The Family Court has wrongly discarded the evidence of PW-2
because he is the plaintiff’s father and he would obviously support the
plaintiff’s case. In matrimonial disputes, the events in question take
place between the parties within the four walls of their house, and the
family members are the most natural witnesses of those events. The
testimony of family members cannot be discarded on the assumption
that they will only support the plaintiff’s case. The Family Court lost
sight of the fact that the entire evidence of the plaintiff – appellant has
remained unrebutted. The civil suits are required to be decided on the
basis of preponderance of probabilities and the standard of proof
beyond reasonable doubt, which is applicable in criminal cases, does
not apply to civil suits.
18. The Family Court has wrongly been influenced by the fact that a
dispute had occurred between the plaintiff and his first wife also,
which had culminated in their divorce. When the earlier marriage was
dissolved by a decree of divorce by mutual consent and the defendant
also did not level any allegations against the plaintiff, the Family
Court was not justified in making assumptions against the plaintiff on
the ground that his earlier marriage had failed.
19. One of the reasons mentioned by the Family Court for dismissing the
suit is that the plaintiff has not stated as to whether the defendant has
gone away from her home. When the plaintiff has categorically stated
that the defendant did not allow him to enter her room and she
declined cohabitation with the plaintiff and did not perform her
matrimonial obligations, it was apparent that the defendant had
abandoned the matrimonial relationship between herself and the
plaintiff and the fact of the defendant residing in the plaintiff’s house
or away from it is not of any significance.
20. Cohabitation is an essential part of a matrimonial relationship and if the wife declines to cohabit with the husband by forcing him to live in a separate room, she deprives him of his conjugal rights, which will have an adverse impact on his mental and physical well being and which will amount to both physical and mental cruelty. The plaintiff’s allegation of being wrongfully deprived of his conjugal rights has not been controverted by the defendant-respondent and the same has been admitted by implication.
21. In view of the aforesaid facts, we are of the considered view that there was sufficient evidence to prove the grounds of cruelty pleaded by the plaintiff-appellant for grant of a decree of divorce the plaintiff has successfully proved by his ex-parte evidence that the defendant was treating him with cruelty.
22. Although the ground of the plaintiff’s desertion by the defendant is
also established from the material available on record, since the
Family Court did not frame any issue on this point, and the ground of
cruelty alone is sufficient for allowing the appeal, there is no need go
into this question in this appeal.
23. In view of the aforesaid discussion, we answer the points involved in
this appeal as follows: -
a) There was sufficient evidence to prove the ground of cruelty
pleaded by the plaintiff-appellant for grant of a decree of divorce.
b) The judgment and decree of dismissal of suit passed by the Family
Court is unsustainable in law.
24. Accordingly, the appeal is allowed. The ex parte judgment and decree
dated 19.01.2023, passed by the VI Additional Principal Judge,
Family Court, Lucknow, dismissing Suit No.1198 of 2018: Jitendra
Kumar Srivastava versus Smt. Sweta Srivastava, under Section 13 of
Hindu Marriage Act, 1955 is set aside and the suit is decreed. A
decree of divorce is granted in favour of the plaintiff dissolving his
marriage with the defendant-respondent, which was solemnized on
23.11.2016.
25. Costs of the litigation made easy.
26. Let a copy of this judgment be sent to the Presiding Officer who had
passed the judgment under challenge for his information.
(Subhash Vidyarthi J.) (Rajan Roy J.)
Order Date: 22.08.2024
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