Criminal proceedings against husband and not wearing sindhoor tiltes the case in favour of husband.

 

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Review.Pet. 73/2020

SMTI RENU DAS D/O LATE RAKESH CH. DAS,

R/O BORBARI RAILWAY COLONY, P.O. AND P.S. DIBRUGARH, DIST. DIBRUGARH, ASSAM, PIN 786001

VERSUS

SRI BHASKAR DAS S/O LATE HARIPADA DAS, R/O NO. 1 GOLAI GAON, P.S. DIGBOI, P.O. GOLAI, DIST. TINSUKIA, ASSAM, PIN 786171

Advocate for the Petitioner : MR. S R GOGOI

Advocate for the Respondent : MR. N HASAN

BEFORE

HONOURABLE THE CHIEF JUSTICE

HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

JUDGMENT & ORDER

Date : 17-09-2020

For the Petitioner: Mr. H. Baruah, Advocate.

For the Respondent: Mr. N. Hasan, Advocate.

Date of Hearing: 17.09.2020

Date of Judgment:17.09.2020

(Soumitra Saikia, J.)

This review application has been brought by Smti. Renu Das for review of judgment dated 19.06.2020 rendered in Matrimonial Appeal No. 20/2019 (Shri Bhaskar Das –Vs- Renu Das).

2. The skeleton of facts necessary for addressing the issue raised by virtue of this review application are that Bhaskar Das, the appellant filed Divorce Case TS(M) No.9/2014 In the Court of District Judge, Dibrugarh, essentially taking the ground of cruelty and desertion against his wife Smti. Renu Das. The suit was dismissed by judgment & decree dated 15.12.2018. Aggrieved thereby, the husband Bhaskar Das filed the matrimonial appeal.

3. Essentially it appears that review is sought on the ground that not wearing or refusal to wear ‘sindoor’ by wife cannot constitute cruelty so as to justify dissolving the marriage. Further it was urged by the learned counsel for the review petitioner that the agreement entered between the parties was at the instance of the family members of both the parties to sort out the misunderstanding between them. The learned counsel for the review petitioner urged that as per the agreement no family members of either the husband or the wife were to visit them. As such, the finding of the judgment in this Court under review, the wife had compelled the husband from performing his statutory duties towards his aged mother under the provisions of the 2007 Act will amount to an error apparent on the face. Since this order is being rendered in a review application, we are not referring to the facts in detail. Suffice it to say that the grounds for allowing the matrimonial appeal, setting aside judgment dated 15.12.2018 (supra) and dissolving the marriage essentially are –

(a) It is the admitted case of the wife that three proceedings of criminal nature had been initiated against the husband and his family members. In Digboi P.S. Case No.159/2013, under Section 498(A) IPC, acquittal had been recorded by a court of law. It thus stood established in law and facts that the wife indulged in making irresponsible and false accusations against her husband and his family members. This justified dissolution of marriage and grant of divorce in terms of judgment rendered by the Hon’ble Supreme Court of India in Rani Narasimha Sastri –Vs- Rani Suneela Rani, (2019) SCC Online SC 1595.

(b) The relations between the wife and the husband had become so strained that written agreement was executed with a stipulation that the husband Bhaskar Das shall maintain his wife the review applicant Smti. Renu Das in a separate rented accommodation where family members of the husband shall not be allowed to come.

Depriving the husband of the company of his family members certainly does not indicate a successful marriage. Rather, it would be an act of cruelty if the husband is bound by an agreement to not meet his family members. Rather, the wife Smti. Renu Das went to the extent of initiating criminal proceedings vide Digboi P.S. Case No.230/2013, under Sections 471/420 IPC for non-compliance of conditions incorporated in the agreement. At the point in time when the appeal was decided the proceeding was still pending.

(c) The Court also took judicial notice of the fact that the wife Smt. Renu Das in the witness box on oath stated "That I am not wearing/putting sindoor right now because I don’t consider him as my husband”. This portion of the statement/cross-examination and other important portions of the statement given by the wife on oath have been extracted in para 12 of the judgment under review. From the said portions, this Court concluded that in the given circumstance when the wife states that she is not wearing ‘sindoor’ because she does not consider Bhaskar Das as her husband, the marriage was irrevocably broken. Surely, if the wife takes a plea on oath that she is not wearing ‘sindoor’ because she does not consider the husband as her husband, it does not indicate a surviving and a happy marriage. Such stand of the wife would hurt the husband’s feelings to a great extent. By making such a statement, the wife has repudiated the marriage. In such circumstances, it would be inequitable for a court to force the husband to live with the wife. It would be considered as an incident of cruelty, however might not be sufficient in itself, and in isolation as a ground of cruelty for grant of divorce.

The circumstances can be considered differently if the wife never wore ‘sindoor'. In such circumstances, the husband would not be justified in pleading not wearing ‘sindoor’ as an incident of cruelty. In this case, however the circumstances appear to be different. On considering the evidence cumulatively and on plain reading of the statement given by the wife, it appears that the wife earlier used to wear ‘sindoor’ however when she stopped considering him as her husband, she stopped wearing ‘sindoor’. Surely, when the facts and circumstances and evidences are considered collectively, such statement given by the wife can also be considered for concluding that the marriage had irrevocably broken. It is in this sense that the evidence has been read.

It appears that the review applicant is reading the statement in regard to the wife not wearing ‘sindoor’ out of context. The review application has been argued as if this was the only ground considered by the Court for dissolving the marriage, however as explained herein above it is not so. The Court has essentially relied on the circumstance of cruelty caused by initiating false criminal proceedings. The Court has relied on judgment rendered by Hon’ble Supreme Court of India in Rani Narasimha Sastri’s case (supra). The other facts and circumstances, as mentioned in the judgment under review, convinced the Court that the marriage was irrevocably broken on account of various acts done by the wife. Learned counsel for the review petitioner, in reference to the facts and circumstances emanating from the evidence available on record, admits that there was no matrimonial harmony left between the husband and wife, and the matrimonial relations had fractured.

4. We having again carefully gone through the judgment under review in the context of the evidences available on record, are of the view that the husband was treated with cruelty which justifies dissolution of marriage by grant of divorce. The judgment does not call for review.

Review application is accordingly dismissed.

JUDGE

CHIEF JUSTICE

No Maintenance is ordered to be given to a Deserted Wife

Supreme Court of India

Rohtash Singh vs Smt. Ramendri And Ors on 2 March, 2000

 

Bench: S. Saghlr Ahmad, D.P. Wadhwa

 

           CASE NO.:

 Special Leave Petition (crl.)  2763 of 1999

PETITIONER:
ROHTASH SINGH

RESPONDENT:
SMT. RAMENDRI AND ORS.

DATE OF JUDGMENT: 02/03/2000

BENCH:
S. SAGHlR AHMAD & D.P. WADHWA

JUDGMENT:

JUDGMENT 2000 (2) SCR 58 The Judgment of the Court was delivered by S. SAGHER AHMAD, J. This Special Leave Petition was dismissed by us on 10.9.1999. We, hereinbelow, give our reasons for dimissing the Special Leave Petition.

The petitioner who is a member of the Indian Army was married with the respondent on 10th of May, 1990. Since the petitioner was posted away from his home, he left the respondent with his parents living jointly with his elder brother and his family at the family house in Village Kota, Police Station Galaoti, Tehsil and District Meerut. This, according to the petitioner, was not liked by the respondent who insisted that the petitioner should take leave from Army and stay with her at her parent's house. It is said that in 1991, the respondent left the petitioner's family house and went away to her father's house. She refused to come back to the family house of the petitioner in spite of petitioner's father and elder brother having gone to the respondent to persuade her to come back. On her refusal to come back, a notice was sent to the respondent on 5th of August, 1991 for restitution of conjugal rights but the respondent still did not come back to the petitioner's family house in District Meerut and, therefore, in 1993, the petitioner filed a petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage on the ground of desertion. The respondent in her defence raised various pleas including mal-treatment and cruelty as also a demand by the petitioner for a sum of Rs. 21,000 and a scooter. It was pleaded by her that she was always prepared to come back to the petitioner but she was ill-treated by the petitioner's parents who used to lock her up in a room as the demand for a cash amount of Rs. 21,000 and a scooter was not met by the respondent. The Family Court, Meerut, decreed the suit of the petitioner on 15th of July, 1995 and passed the decree of divorce on the ground of desertion by the respond-ent.

During the pendency of the suit for divorce, the respondent had filed an application for maintenance under Section 125 of the Code of Criminal Procedure on 28th of May, 1993 which was allowed by the Family Court, Meerut on 13th of March, 1997 in spite of the fact that the judgment by which a decree for divorce was passed in favour of the petitioner on the ground of respondent's desertion was brought to the notice of the Family Court. The Judgment passed by the Family Court, Meerut was challenged by the peti-tioner in a Revision tiled in the High Court but the Revision was dismissed on 23rd of March, 1999. It is against this judgment that the present petitioner has been filed.

The principal contention raised by the learned counsel for the petitioner is that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act on the ground of desertion by the respondent, an order for maintenance could not have been passed in favour of the respondent on account of Sub-section (4) of Section 125 Cr. P.C.

Sub-section (4) of Section 125 Cr. P.C. provides as under :-

"(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

Under this provision, a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matri- monial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circum-stance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure.

The second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. "Sufficient reasons" have been interpreted differently by the High Courts having regard to the facts of indivisual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125 Cr. P.C. and how far can the plea of desertion be treated to be an effective plea in support of the husband's refusal to pay her the Maintenance Allowance.

Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be "wife" within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under :-

"Explanation. - For the purposes of this Chapter -

(a) ...................................................................

(b) "wife" includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried."

On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others, AIR (1978) SC 1807, observed as under :-

"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Art. 39. We have no doubt that, sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts."

Claim for maintenance under the first part of Section 125 Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125 Cr. P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125 Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. See : Sukumar Dhibar v. Smt. Anjali Dasi, (1983) Crl. L.J. 36. The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.

Learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to and end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whome she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her.

Learned counsel for the petitioner then contended that the Maintenance has been allowed to the respondent from the date of the application. The application under Section 125 Cr.P.C. was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, learned counsel appears to be correct. But for that short period, we would not be inclined to interfere.

It was for these reasons that the Special Leave Petition, being without merit, was dismissed on September 10, 1999.