JUDGMENT S.B. Sinha, J.
1. This first appeal is directed against the judgment and decree, dated 22.5.1987 passed by Shri Jugal Kishore Prasad, 6th Additional District Judge, Palamau in Title Suit (Matrimonal) No. 3 of 1985 whereby and whereunder he dismissed an application for dissolution of marriage by a decree for divorce filed by the appellant purported to be under Section 13 of the Hindu Marriage Act.
2. The admitted fact is that the marriage between the appellant and the respondent took place on 10.5.1979 in accordance with the Hindu rites. Allegedly, Roksadi ceremony of the respondent was held on 11.5.1979 and she stayed with the appellant at his house in village Pakari till 26.5.1979. Allegedly on 27.5.1979, the respondent came back to her parents and since then had been living with them.
3. It was further alleged that the appellant was not willing to let the respondents go back to her parents but upon a threat having been given by the respondent that she would commit suicide, she was allowed to go. It was further alleged in the plaint that respondent did not render any co-operation with the appellant in building up merital relationship and had all along remained completely indifferent with the affairs of the appellant, his parents and other family members. Allegedly, the appellant wrote various letters to the respondent on 1.10.1979, 3.3.1980 and 5.10.1980 requesting her to return to her marital home. The appellant allegedly had also gone to village Taleya personally to his in-laws' house on 5.3.1981 and 10.10.1981 to bring her back but she finally refused and insisted to live at her parents' house.
4. It was further alleged that on the occasion of Holi Festival in the year 1980, when the appellant had gone to the house of the parents of the respondent, he was asked by them to live there and handover his entire income regularly to which he having not yielded, was pushed out of the house. -It was further alleged that respondent gave birth to a child in the year 1980 and the appellant suspected that the respondent had some illicit connection with one Amresh Singh of village Taleya. Allegedly the respondent had been seen in the company of said Amresh Singh in Jonr mela in 1983 and in a picture hall in 1984. It was further alleged that respondent had undergone a surgical operation so as to make her uterus ineffective. It was further alleged that respondent had also instituted various cases against the petitioner and his family members causing him great mental torture. The appellant, therefore, in his plaint has made out a case for a decree for divorce on the grounds of desertion and cruelty.
5. On the other hand, the respondent filed a written statement refuting the allegations made in the plaint. According to the respondent, after her marriage on 10.5.1.979, she stayed at her in-laws' place for one day and the marriage Was consumated. Thereafter, Roksadi was performed in November 1979 whereafter she had stayed at her in-laws' place at Hindegir where the father of the appellant was employed in a coal mine. According to her she had sexual relation with the appellant even during that period. Allegedly she stayed at Hindegir for one year It was alleged that after 2-3 months, the appellant and his family members began assaulting her. Thus, she was brought back by her parents to their house in the month of Kuar (October and November). It was contended by the respondent that she gave birth to a child and despite information sent to the appellant and his family members, none came to see the child.
6. It was further alleged by the respondent that her parents came to learn that appellant intended to marry some other girl and, thus, the matter was reported to the police and upon intervention of the police authorities, she was again taken to Hindegir and she stayed in her in-laws' place- for two years. But her relationship with the appellant and his family become strained as she was being assaulted and the appellant was also compelling her to ask her father to send a motorcycle which allegedly was to be given by way of dowry. According to the respondent; thereupon she came back to her parents and lodged a criminal case apprehending danger to her life at the hands of the appellant.
7. However, it was stated that she was still willing to live permanently with the appellant if an undertaking is given by him about the security of her life.
8. The learned Court below attempted to effect reconciliation between the parties but the same ultimately failed on 20th November, 1986.
9. The learned Court below upon the aforementioned pleadings of the parties, framed the following issues :-
1. Whether the respondent had wilfully deserted the petitioner since two years prior to the institution of the suit ?
2. Whether the respondent had caused torture to the petitioner as alleged ?
3. Whether the respondent had committed adultery ?
4. Relief, if any.
10. The learned Court below took up all the issues for his consideration together and held :
(i) The allegation of the appellant to the effect that on 27.5.79, the respondent threatened the appellant with dire consequence that she would involve him and his family by committing suicide, is falsified.
(ii) It is also not proved that the appellant was in anyway humiliated or abused by the respondent or by any of her family members at any point of time.
(iii) The statement of the appellant to the effect that during the respondent's stay with him at his house from 11.5.79 to 26.5.79, she did not have any sexual connection with him is contrary to the pleadings of the appellant as in the plaint it was merely alleged that respondent was non-co-operative.
(iv) The allegations of the appellant that he visited his in 'laws' place on 5.3.1981 10.10.81, 15.3.1981 and on the occasion of Holi in 1980 is falsified as allegedly the second marriage had not taken place.
(v) The story made out by the appellant that respondent had illicit connection with one Amresh Singh and that she had been seen in his company once in Jonr Mela in 1983 and in a cinema hall at Daltongaj in 1984 was absurd and the same was made simply to malign the character of his own wife.
(vi) Although an allegation had been made she had undergone an operation for removing her uterus no evidence in this regard has at all been adduced.
(vii) With regard to the parentage of the child, the learned Court below held that the allegation that Amresh Singh is the father of the chlid is false and malicious.
(viii) With regard to the allegation of cruelty on the ground of lodging of various criminal cases, it is stated that the allegations made by the respondents in the first information report were not valid or having no semblance of truth or unfounded.
(ix) The learned Court below further held that appellant had also failed to prove his allegation of desertion by the respondent.
11. Mr. N.K. Prasad learned Counsel appearing on behalf of the appellant did not question the findings of the Court below with regard to the alleged unnatural or abnormal behaviour of the respondent nor did he question the finding that the appellant has failed to prove that the respondent had undergone an operation for removing her uterus.
12. Learned Counsel further did not challenge the finding of the learned trial Court that the appellant has failed to prove the factum desertion of the appellant by the respondent.
Learned Counsel, however, submitted that the learned Court below has approached the case from a wrong angle insofar as he considered the allegation of cruelty as if he had been trying a criminal case. According to the learned Counsel, the learned Court below should have held that in a suit for divorce, the case should be judged on preponderence of probabilities and the same does not require a proof beyond all reasonable doubts. Learned Counsel in this connection has relied upon Dr. N.G. Dastane v. Mrs. S. Dastane and Others reported in AIR 1975 SC 1534.
13. It was further submitted that as in the criminal cases the appellant had been subsequently acquitted, it must be held that lodging of the criminal cases, as a result of which the appellant had to undergo tension, were acts of cruelty. Learned Counsel in this connection has relied upon Smt. Kalpana Srivastava v. Surendra Nath Srivastava, reported in AIR 1985 All.
14. It was further submitted that from the evidence of D.W. 3 it would appear that she admitted that she had sexual relation with the appellant till October-November, 1980 and in view of the evidence of D.W. 6 to the effect that the respondent gave birth to a child in January, 1982, and a telegram to that effect was also sent on 23.1.1982, a presumption must be raised that the appellant was not the father of the child. Learned Counsel in this connection has relied upon the Medical Jurisprudence and Toxicology by H.W.V. Cox, 5th Edition at page 379.
15. Mr. S.K. Chattopadhyay, the learned Counsel appearing on behalf of the respondent, on the other hand, submitted that the learned Court below has rightly found that the appellant has not been able to prove the charges of cruelty and/or desertion on the part of the respondent. Learned Counsel further submitted that from a perusal of evidence brought on records, it would appear that the respondent was not only subjected torture but demand of a motorcycle was also made. It was only on those ground that a criminal case was lodged.
16. Learned Counsel further submitted that another criminal case was instituted when the appellant intended to marry for the second time which fact having not been disputed, it cannot be said that false and frivolous criminal cases were instituted as against the appellant so as to cause mental cruelty to him.
17. In view of the aforementioned rival contentions of the parties, the only question which arises for consideration is as to whether the plaintiff had been able to prove his case for obtaining a decree for dissolution of marriage by a decree for divorce on the ground of cruelty.
"13: Any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has after the solemnization of the marriage had voluntarily sexual intercourse with any person other than his or her spouse;Or (i-a) has, after the solemnization of the marriage treated the petitioner with cruelty."
19. It is not enough to show for the purpose of proving cruelty that the spouse found to live together impossible even if the same results in injury to health. Thus the act of the cruelty must be against the plaintiff's will. The second test of cruelty is that the conduct of the defendant has caused injury to health or mind or there is reasonable apprehension to such injury.
20. In Dr. N.C. Dastane v. Mrs. S. Dastane, reported in AIR 1975 SC 1534, the Supreme Court held that for the purpose of proving cruelty, the standard of proof be applied need not be beyond reasonable doubt which is approved by a higher standard generally governing criminal trial or trials It was held that Section 10 read with Section 23 of the Hindu Marriage Act do not require that the petitioner must prove his case beyond a reasonable doubt; what is necessary is that the Court must be satisfied of a preponderance of probabilities and not satisfaction beyond all reasonable doubts. Although the aforementioned case was of a judicial separation, in view of the phraseology used in Section 10 and also Section 13 of the Act the decision of the Supreme Court will have application also of dissolution of the marriage by divorce.
21. In this case, the appellant has examined only four witnesses. P.W.1 is the maternal uncle of the appellant. He in his deposition alleged that the respondent did not behave well with anybody of her in-laws' place. This witness further stated that the respondent lived at her in-laws' place for only 15-16 days and thereafter she never came back. He further sought to prove that Sushma Devi insisted that should be sent to her in law's place as otherwise she would commit suicide.
22. This witness admitted that in 1979, he was posted as Deputy Superintendent of Police of Bihar, Military Police at Patna and he came on leave only for one week beginning from 8.5.1979. He, therefore, is not a competent with regard to the alleged threatening of Sushma as evidently he was not present at the spot at the relevant time.
23. P.W. 2 is son of P.W.I. This witness alleged that the appellant had gone to his in-laws place twice or thrice for bringing Sushma back, but she did not come back. This witness is also a resident of a different place and is not competent to depose on the point of cruelty.
24. P.W. 4 who is the appellant in this case is the only witness who examined himself to prove his case. This witness stated that the child born to the respondent was not his. In order to substantiate this allegation, merely some suggestions have been given for drawing that the said child might have been begotten by the respondent through the aforementioned Amresh Singh. Only documentry evidence which has been brought on record in order to prove this plea, is Ext. 4, which is information slip.
25. D.W. 5 Dr. Sita Singh stated that she was asked to report if the respondent had given birth to a child at Sadar Hospital, Daltonganj on 24.1.1981 to which she replied in negative. Thus no evidence has been brought on record by the appellant to disprove the assertions of the respondent that the gave birth to a male-child in January, 1981.
26. It is true that D.W. 6 state that the child was born on 21.1.1982 and not in January, 1981. He further stated to have sent a telegram to the father of the plaintiff on 23.1.1982, informing him about the birth of the child.
27. As indicated hereinbefore, it was contended on behalf of the appellant that as the respondent has admitted that she had sexual intercourse with the appellant till October, November, 1980, the birth of a child on 24.1.1982 itself suggests that the appellant was not the father of the child.
28. From a persusal of the judgment of the Court below it does not appear that the said point was raised before it. It does not appear that this point has been raised even in the memorandum of appeal. It is interesting to note that in the plaint a specific case has been made out behalf of the appellant to the effect that a son was born to the respondent in the year 1980. Therefore, the question of the birth of the child having taken place in January, 1982 does not arise. In such a situation, probability of commission of a mistake by D.W. 6 in mentioning 1982 instead of 1981 cannot be ruled out It appears from the evidence of D.W. 6 that he stated that the son of the respondent was born on 21.1.1982 and telegram was sent on 23.1.1982 and the child died on 24.1.1982.
29. Some allowances have got to be given to the human memory. The statement of the D.W. 6 has to be considered along with the evidence of the respondent who categorically stated that a son was born to her after she came back from her in-laws place and that the birth of the child took place about 6 years prior to her deposition. She deposed on 24.4.1987.
30. It is true that in the Medical Jurisprudence and Toxicology by H.W.V. Cox at page 379, it has been stated that the average period of pregnancy is about 280 days. However, for the reasons stated hereinbefore, it is not necessary to dilate on this point.
31. In this view of the matter, in my opinion, no capital can be made out of the mistake in the year committed by D.W. 6 with regard to the dates of birth and death of the child.
32. So far as allegation that the respondent No. 1 had illicit connection with one Amresh Singh is concerned, the only evidence is that P.W. 4. He has not been corroborated by P.W. 1 or P.W. 2 on this point. Thus the evidence on the point of cruelty is that of the appellant alone.
P. W. 4 clearly sought to prove the said fact by stating that the respondent was seen in the company of the said Amresh Singh in a Mela as also in a cinema hall. The said allegations have been denied by defendant No. 3 and supported by other witness namely, Udai Narayan shukla,D.W.1 and Gangadhar Pandey (D.W.2).33. The learned Court below who had the occassion to look to the demenour of the witnesses, disbelieved the evidence of P.W. 4 on this score. 34 So far as the allegation that respondent No. 1 was seen in the company of Amresh Singh in a cinema hall at Daltonganj is concerned the same allegedly took place sometime in 1984.
P.W. 4 himself stated that he went to the cinema hall to see a picture between 9 p.m. to 12 p.m., that is, the night show; whereas the respondent was found in the company of Amresh Singh sitting in the balcony in the first show namely the evening show which commenced at 6 p.m. He further stated that when he entered the hall there was darkness inside and he was sitting in the ground floor and the balcony was in the first floor of cinema hall. It is therefore clear as has been held by the learned Court below and, in my opinion, rightly that false allegations have been made by the appellantas against the respondent.
35. The charge of cruelty is also based upon instition of various criminal cases by the respondent against the appellant and his family members.D.W.3 in her deposition categorically stated thet she had sufferedburn injury on her body. The injury report has been marked as Ext.A and been proved by D.W.5.
36. D.W. 5-Dr. Sita Singh Examined the respondent on 7.5.1984 at 7.30 p.m. and at 12'O clock in the noon of 8.5.1984 and found several burn injuries on her person.
37. Two first information reports (Exts. B and C) have been poved by D.W.7 and D.W.8 respectively. In one of the cases namely G.R. Case No. 644 of 1984, a case Under Section 307, IPC and Section 3/4 of Dowry Prohibition Act was instituted against Mandip Dubey, his brother and perents.
In the first information report which was marked as Ext. B it was alleged that on 6.5.1984 she had been thrown out of her marital home. which cause great mental agony to the husband amount to a mental cruelty, particularly, when he has to undergo harassment therefore.
39. In this case, the evidence adduced on behalf of the respondent is absolutely consistent to the effect that she was being tortured on account of failure on the part of her father to give a motor cycle in Dowry.
40. No document appears to have been brought on record to show that the said criminal cases were found to be false and frivolous although it was stated that the appellant has been acquitted of the criminal charges sometime in 1987. The judgment passed in the aforementioned criminal cases have not been brought on record by way of additional evidence or otherwise.
41. It appears thet the respondent had filed an application Under Section l25 of the Code of Criminal Procedure for her maintenance being miscellaneous case No. 33 of 1984. From the evidence on records, it appears that the said miscellaneous case has been allowed. It is, however, interesting to note that despite the same, P.W. 4 claimed in his evidence that he was all along ready and willing to take back his wife. Respondent (D.W. 3) also stated that she is willing to go back to his husband's place if an undertaking is given about her safety.
42. On 8.5.1987, a petition supported by an affidavit was filed before the Court below stating that the petitioner would take every possible care for the welfare of the respondent and was willing to take her back.
43. However, before me the learned Counsel for the respondent categorically stated that she is ready and willing to go back to her husband's place and live with him; whereas learned Counsel for the appellant that in the changed situation it is not possible for the appellant to live with the respondent.
44. In this situation, I have no other option but to hold that the appellant has not been able to prove the charges of cruelty as against the respondent. This appeal, therefore, must fail.
46. However, in view of the changed situation that now the respondent herself has volunteered to live at her husband's place, I hope that the appellant shall change his mind and the appellant respondent would live together henceforth.
In the facts and circumstances of this, case, there will be no order as to costs.