If Wife Insists To Stay With Husband At His Posting Place, It Cannot Be Said To Be Cruelty By Her
This article has been written by Sanjeev Sirohi, Advocate, Meerut.
While taking a very principled, pragmatic and progressive stand, the Chhattisgarh High Court at Bilaspur in a most learned, logical, laudable, landmark and latest judgment titled Ravishankar Shrivas v. Sarita Sen in FAM No. 237 of 2019 and cited in Neutral Citation 2023:CGHC:23736-DB that was initially reserved on September 19, 2023 and then finally pronounced on September 25, 2023 the Chhattisgarh High Court has minced just no words to make it indubitably clear that if a wife insists to stay with husband at his posting place, it cannot be said to be cruelty upon her. It must be noted that the challenge in the appeal before the court was to the judgment and decree passed by the Judge, Family Court whereby the application/suit preferred by the appellant/husband for grant of decree of divorce was dismissed. Most sagaciously, the Division Bench comprising of Hon’ble Shri Justice Goutam Bhaduri and Hon’ble Shri Justice Deepak Kumar Tiwari said that, “It is obvious that if the wife insists to stay with the husband and without any extraneous reason or official cause, if husband refuses to keep her at the posting place, it cannot be said to be a cruelty by the wife towards the husband for such insistence. During the matrimonial ties, the reciprocal respect and regard to each other and company is necessary.” No denying it!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Shri Deepak Kumar Tiwari for a Division Bench of the Chhattisgarh High Court comprising of Hon’ble Shri Goutam Bhaduri and himself sets the ball in motion by first and foremost putting forth in para 1 that, “Challenge in this Appeal is to the judgment and decree dated 28.6.2019 passed by the Judge, Family Court, Janjgir in Civil Suit No.71-A/2018 whereby the application/suit preferred by the appellant/husband for grant of decree of divorce was dismissed. The husband is in Appeal before this Court.”
To put things in perspective, the Division Bench envisages in para 2 that, “Facts of the case are that the parties were married on 19.5.2005 at village Maro, District Bemetara. After some time of the marriage, behaviour of the respondent/wife was changed and she started raising quarrel on petty issues. She created pressure on the appellant to reside separately from his parents and started neglecting his parents. The respondent/wife was also not discharging the domestic responsibility. When the appellant tried to convince her, she used to become angry and also started behaving rudely. It has been further alleged that without his consent she used to frequently go to her parents’ house and resided there for 3-4 months without any reason. When mother of the appellant called, she also started blaming her as witchcraft and due to her black magic, she had no issues. In the month of June, 2009, she left the matrimonial house voluntarily and refused to return back. After 5 months, when the appellant along with his father and other relatives had gone to take back his wife, on the advise of her father and other relatives, she returned to her matrimonial house. In the month of December, 2009, she again called her brother and expressed that she does not like the appellant and was also not inclined to live with him and left the matrimonial house voluntarily without any cause. Though the appellant has tried several times to bring her back, but she refused to come. When the appellant called his wife to attend the marriage function of his younger brother, she refused to come. In the year 2012 mother of the appellant and in the year 2015 father of the appellant expired, at that time also, the appellant had gone to take back his wife, but she was not willing to return.”
As we see, the Bench discloses in para 3 that, “The respondent/wife has filed an application for maintenance before the family Court, Raipur under Section 125 of the CrPC, in which vide order dated 20th September, 2017, maintenance amount of Rs.5500/- per month was granted to her. The respondent/wife is residing separately since December, 2009 and thereafter no physical relation was made and there was no chance of any reunion. So, it was prayed to allow the suit and decree of divorce be granted.”
Be it noted, the Division Bench notes in para 13 that, “Admittedly, the appellant/husband himself refused to allow his wife to reside with him at the place of his posting and he has not stated any reason therefore in the petition or in his deposition as to for what reasons he is not willing to keep his wife with him at the place of his posting. When the conduct of the appellant was at fault in not allowing his wife to reside with him and in such compelling circumstances, if the wife is living separately at her parental house and the appellant/husband has also not made any effort or called any social meeting and not taken any steps for filing any application for restitution of conjugal rights, mere assertion in the plaint that the wife is residing separately since December, 2009 for any sufficient cause, is not found to be proved. Further, mere submission of the appellant that he had tried to bring back his wife when his father and mother expired and even at the time of marriage of his younger brother, it can be said that the appellant has not discharged his burden to prove the said fact for the reason that in the year 2010, the appellant has categorically refused to bring back his wife. Even in his submission before the Court below he has stated that he is not willing to keep the respondent with him, as he apprehends some threat to his life if he keeps her.”
While citing the most relevant case law, the Division Bench points out in para 14 that, “In Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511, the Hon’ble Supreme Court has indicated illustrative cases where inference of mental cruelty can be drawn. They are reproduced as under:-
“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of one spouse towards the other.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
Most significantly, the Division Bench then very rightly propounds in para 15 stating that, “In the light of aforesaid observations, if we examine the facts of the present case, we find that as per the pleading of the plaint, the appellant himself has stated that after December, 2009, he had tried to bring back his wife, which is belied by the stand taken by the respondent/wife during the counseling proceeding, as in the said proceeding, the respondent/wife had expressed her desire to join the company of the appellant and it was the appellant who refused to keep her. It is obvious that if the wife insists to stay with the husband and without any extraneous reason or official cause, if husband refuses to keep her at the posting place, it cannot be said to be a cruelty by the wife towards the husband for such insistence. During the matrimonial ties, the reciprocal respect and regard to each other and company is necessary.”
It is worth noting that the Division Bench notes in para 16 that, “In the circumstances, this Court is of the considered view that any past relations with the parents and behaviour of the appellant was already condoned by the conduct of the appellant and the finding recorded by the learned family Court is based on material available on record and no interference is called for in the said finding.”
Do note, the Division Bench then notes quite sagaciously in para 17 directing that, “With respect to permanent alimony, it is admitted that the appellant is working as Shiksha Karmi Grade-I and the respondent/wife is getting interim maintenance of Rs.5500/- per month in a proceeding under Section 125 of the CrPC. Considering the present market rates and inflation and to further avoid multiplicity of proceedings, we deem it apposite that Rs.15,000/- be granted as monthly maintenance to the respondent/wife henceforth. Accordingly, the husband shall pay an amount of Rs.15,000/- as monthly maintenance to the respondent/wife. The appellant shall make regular monthly deposit of aforesaid maintenance amount to the account of respondent/wife. The said maintenance amount is inclusive of all other maintenance granted to the appellant/wife and the same shall be set off and adjusted. In every 3 years, there shall be an increase @ 5% on the aforesaid amount.”
Most commendably, most decisively and so also most forthrightly, the Division Bench then directs in para 18 that, “In the result, the Appeal being devoid of any substance deserves to be and is hereby dismissed
In sum, we thus see that the Division Bench of the Chhattisgarh High Court has made it indubitably clear that if a wife insists to stay with the husband at his posting place, it cannot be said to be cruelty by her. The Court also unequivocally stated that during the matrimonial ties, the reciprocal respect and regard to each other and company is necessary. The husband is thus clearly at fault for not keeping the wife with him without any bona fide reasons and so unquestionably his petition was thus very rightly dismissed. No denying or disputing it!
Sanjeev Sirohi, Advocate,