Denial Of Physical Relationship By Spouse Amounts To Cruelty: Chhattisgarh High Court Grants Divorce Under Hindu Marriage Act
In no uncertain terms, the Chhattisgarh High Court has been very categorical in holding in a learned, laudable, landmark and latest judgment titled Navodit Mishra & Anr. v. Richa Mishra in 2022 LiveLaw (Chh) 16 and FAM No. 24 of 2018 that was delivered finally on February 25, 2022 that denial of physical relationship by one spouse to the other in a matrimonial relationship constitutes cruelty. Holding thus, it allowed the plea of divorce made by the husband in this case. The development ensued in an appeal that was preferred under Section 19(1) of the Family Courts Act, 1984 by the husband, challenging the judgment of Family Court dismissing his plea for divorce on the grounds that are enumerated in Section 13(1)(i-a), (i-b) and (iii) of the Hindu Marriage Act, 1955.
To start with, this brief, brilliant and balanced judgment authored by Justice Parth Prateem Sahu for a Bench of Chhattisgarh High Court comprising of himself and Justice P Sam Koshy first and foremost puts forth in para 1 that, “Plaintiff/appellant preferred this appeal under Section 19 (1) of the Family Courts Act, 1984 challenging judgment and decree dated 13.12.2017 passed in Civil Suit No.1-A/2016 whereby plaint of plaintiff/ appellant for grant of decree of divorce on the grounds enumerated in Section 13 (1) (i-a), (i-b) and (iii) of the Hindu Marriage Act, 1955 (for short ‘the Act of 1955’) was dismissed by learned Judge, Family Court, Bemetara.”
To put things in perspective, the Bench then envisages in para 2 that, “Facts relevant for disposal of this appeal are that appellant got married with respondent on 25.11.2007 according to Hindu rites and rituals. Marriage between two was solemnized at Triveni Hall, Bilaspur. After marriage, respondent wife came to her matrimonial home and started residing there. After few months of marriage, in the month of July, 2008 respondent went to her parental home to celebrate ‘Rakhshabandhan’ and ‘Teeja’ festivals and returned to her matrimonial home after about 8-9 months. On 11.7.2009 father of appellant died due to heart attack. Respondent in August 2009 went to her parents house along with her brother for celebrating her birthday and Teeja festival. In the year 2010 again she went to her parents house, continuously resided there for about four years. She came back to her matrimonial home on 26.7.2014 along with her brother and bhabhi. In August, 2014 respondent again went back to her parents’ house to celebrate Teeja festival. She came back to Bilaspur in month of November, 2014. She again left her matrimonial home on 13.3.2015 and went to her parents’ house. Thereafter, plaintiff/appellant filed an application under Section 13 (1) (i-a), (i-b) and (iii) of the Act of 1955 before Family Court, Bilaspur seeking dissolution of marriage dated 25.11.2007 by way of decree of divorce. Grounds raised in plaint are that within few days of marriage conduct of respondent was of treating appellant with cruelty; she was continuously harassing him mentally saying that he is having bulky physique and he is not good looking; after death of appellant’s father she went back to her parents’ house, resided there continuously for about four years, during this period whenever appellant contacted her on mobile phone and asked her to come back, she used to ask appellant to come and settle in Bemetara, place of residence of respondent’s parents. Appellant was continuously deserted by respondent wife for about four years i.e. from 11.8.2010 to July, 2014. Respondent joined service on the post of Shiksha Karmi Grade-1 in Bemetara District without informing appellant. She got entered name of her parents and brother in her service record as her nominees and not of appellant. Whereas, at the time of marriage, it was informed to parents of respondent that as appellant is only child of his parents, respondent will not do any job or service. However, respondent without informing appellant or his parents, applied for government job and joined service. There was no cohabitation between appellant and respondent for continuous long period; acts and conduct of respondent amount to treating appellant with cruelty. Hence made prayer for grant of decree of divorce.”
Simply put, the Bench then enunciates in para 3 that, “After notice, respondent-wife filed an application under Section 24 of the CPC for transfer of suit from Family Court, Bilaspur to Family Court, Bemetara, which was allowed and suit filed by appellant at Family Court, Bilaspur was transferred to Family Court, Bemetara.”
Be it noted, the Bench then mentions in para 4 that, “Respondent wife submitted her reply to application filed under Section 13 (1) (i-a), (i-b) and (iii) of the Act of 1955 denying facts pleaded therein. It was pleaded that within fifteen days of marriage, plaintiff/appellant started annoying her on trivial issues and treating her with mental and physical cruelty. Unnatural behaviour of her was denied. Even after mental and physical harassment, she resided in her matrimonial home till 11.8.2008 with a hope that one day there will be change in attitude of her husband, but it does not happen. When respondent went to her parents’ house for celebrating her first Teeja festival after marriage, appellant did not come to take her back, she herself came back to her matrimonial home in Bilaspur. It was pleaded that during her stay after 2009 till August, 2010, appellant treated her with cruelty as he did not behave and maintain relationship as husband and wife. Thereafter she returned back to her parental home on 11.8.2010. During stay in her parental home from 11.8.2010 to July, 2014, she made several mobile calls to appellant, but he never responded the same nor made any attempt to contact her. Respondent joined as Shiksha Karmi Grade-1 for the reason that she was continuously treated with physical and mental cruelty by appellant. Appellant objected to respondent’s joining on the post of Shiksha Karmi and pressurized her to resign from service. Objection with regard to maintainability of application under Section 13 (1) (i-a), (i-b) and (iii) of the Act of 1955 was also raised in the reply by respondent stating that no ground of desertion as enumerated under Section 13 (1) (i-b) of the Act of 1955 is made out by appellant for seeking divorce. Respondent was subjected to ill-treatment and harassment by appellant since beginning saying that it could have been better if he would have married with some other girl. It was further pleaded that respondent is still ready to continue her matrimonial relationship with appellant.”
Needless to say, the Bench then enunciates in para 9 that, “From perusal of plaint it is evident that appellant filed suit for grant of decree of divorce on the grounds of ‘cruelty’ and ‘desertion’, as envisaged under Section 13 (1) (i-a), (i-b) and also under Section 13 (1) (iii) of the Act of 1955. Appellant in his plaint in different paragraphs in so many words pleaded that there was no husband and wife relationship from beginning of marriage as respondent does not want to make relationship as husband-wife and also in his evidence. Family Court formulated Issue No.1 of physical and mental harassment and cruelty with appellant-husband and Issue No.2.”
To be sure, the Bench then states in para 10 that, “So far as ground of ‘desertion’ as pleaded in plaint, is concerned, pleadings and evidence of parties reflect that appellant pleaded that respondent lastly resided in his house till 13.3.2015 and thereafter she left her matrimonial home. Application for grant of decree of divorce is filed on 30.6.2015 i.e. within four months from the date when parties last resided under one roof. Section 13 (1) (i-b) of the Act of 1955 envisages that a decree of divorce can be granted on the ground that other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Language used under Section 13 of the Act of 1955 is clear and unambiguous that before filing an application for divorce on the ground of desertion, period of desertion by either spouse should not be less than two years. From the pleadings made in plaint by appellant himself, it is evident that application for grant of divorce is filed within four months of desertion by respondent. As per provisions contained in Section 13 (1) (i-b) of the Act of 1955, application filed by appellant for grant of divorce on the ground of desertion is not maintainable. Hence, the Family Court while dismissing application seeking decree of divorce has rightly held that appellant failed to make out ground of desertion.”
Furthermore, the Bench then reveals in para 11 that, “So far as second ground raised in application that appellant was treated with cruelty by respondent, as envisaged in Section 13 (1) (i-a) of the Act of 1955 is concerned, in the pleadings appellant pleaded that from beginning of marriage there was no relationship as husband and wife between them; respondent wife used to mentally harass appellant by calling him to be fatty and not a good looking person. Pleading with regard to residing separately continuously for about four years by respondent in her parental home i.e. from August 2010 to July 2014, is not disputed. There is admission by respondent in her evidence to this effect. Respondent further admitted in her evidence that during the period of four years, she did not make any attempt to talk to appellant. From this admission of respondent-wife that she continuously resided for four years in her parents’ house without communication is sufficient to show that there was no cohabitation between respondent and appellant during aforementioned period. This admission of respondent is in Paragraph-31 of her evidence. It is also admitted by respondent that on the date of her examination before Family Court, about ten years of their marriage was completed; out of which, she resided only for about 4½ years in her matrimonial home and for remaining period she resided in her parental home. In Paragraph 42 of her evidence, respondent though denied suggestion that there was no physical relationship between them for about four years, but the same is contradictory to her statement made in Paragraph 31 of her evidence, which clearly shows that there was no relationship between the parties for about four years. Respondent came back to her matrimonial home in the month of July, 2014, after long time of four years. She resided only for one month and again went back to her parental home in August, 2014. Respondent came back to her matrimonial home in November, 2014 and resided till 13.3.2015. During this period also there was no cohabitation between the parties, as admitted by respondent herself in Paragraph 46 of her evidence. It is case of appellant that he was treated with cruelty by respondent as she did not permit him to establish relationship with her as husband and wife.”
Quite remarkably, the Bench then holds in para 22 that, “Now if the facts of case at hand are considered in light of aforementioned rulings of Hon’ble Supreme Court, it is apparent that there is admission on the part of respondent wife that within some time of marriage she gave phone call to her parents making allegation against appellant husband and his family members; when her father and brother came to house of appellant, she stated that there is nothing. Marriage between appellant and respondent was solemnized on 25.11.2007. In the month of July, 2008 when she went to her parents house for celebrating festival of Rakshabandhan and Teeja. She resided there continuously for about nine months, as admitted by respondent in Paragraph-9 of her deposition. As per her evidence, she returned back to her matrimonial home in the month of July, 2009. Father-in-law of respondent died on 11.7.2009. In August, 2009 she again went to her parents home. On 11.8.2010 respondent again went to her parents house and resided there continuously for about four years. After marriage, respondent applied for the post of Shiksha Karmi without informing to appellant or in-laws. She joined as Shiksha Karmi Grade-I, without giving information to appellant or any of her in-laws. Respondent did not mention name of appellant as her husband and nominee in service record. Respondent further admitted in her evidence that during her stay in her parents house for about four years, she did not contact appellant, which shows conduct, attitude and behaviour of respondent towards appellant.”
Most significantly, what forms the cornerstone of this notable judgment is then elaborated upon in para 23 wherein it is postulated that, “Marital relationship is a relationship of trust, respect and emotions. After marriage each spouse is having marital responsibilities and duties towards each other. From the facts, as appearing in record, as also evidence of respondent wife, it is apparent that from August, 2010 there was no relationship as husband and wife between two, which is sufficient to draw an inference that there was no physical relationship between them. Physical relationship between husband and wife is one of the important part for healthy married life. Denial of physical relationship to a spouse by other amounts to cruelty. Hence, we are of the view that appellant was treated with cruelty by respondent wife.”
What’s more, it is then disclosed in para 24 that, “Another aspect of the case, as is appearing from evidence of respondent wife, is that respondent joined service in the year 2011 without any information and knowledge of appellant. She admitted that though job and post on which she is working is inter-district transferable post, but she never applied for her transfer from District Bemetara to District Bilaspur. In concluding paragraph of her deposition, she has stated that she does not want to leave her job; appellant could not come to Bemetara after selling his house, land etc., which is one of causes of differences/dispute between them. Respondent also admitted that appellant asked her to do job in Bilaspur and not in Bemetara. In the evidence of respondent it has nowhere come that she wanted to come to Bilaspur and reside with appellant; she had also made all attempts and endeavour for the same. Evidence of respondent reflects that her intention is to live in Bemetara only. Parties are Brahmin by caste, as per social tradition, after marriage it is wife who has to come and reside at the place of her husband along with her in-laws. Respondent also after her marriage came to Bilaspur but now she does not want to leave her parents’ place i.e. Bemetara. Making of one line statement that she wants to continue her marital relationship with appellant husband, will not be sufficient when from her conduct/behaviour it is not appearing that she actually intended for the same.”
Finally, the Bench then concludes by holding in para 25 that, “For the foregoing discussions and in light of above mentioned rulings of Hon’ble Supreme Court, we are of the view that appellant has made out a case for grant of decree of divorce on the ground of mental cruelty. Accordingly, impugned order is set aside. Application filed by appellant under Section 13 (1) of the Act of 1955 is allowed. The marriage dated 25.11.2007 between appellant and respondent stands dissolved. Decree be drawn-up accordingly. No order as to costs.”
In sum, the Chhattisgarh High Court has very clearly ruled that denial of physical relationship by spouse amounts to cruelty. Therefore, it found just no difficulty in very rightly granting divorce to the appellant. The marriage as we see thus stood dissolved.