Wednesday, 6 January 2016

Divorce on ground of Mental cruelty.

On the basis of the evidence discussed here in above, the learned Trial court refused to accept thecase of physical cruelty but decreed the suit by granting divorce by accepting the case of mental cruelty.
Learned advocate Mr. Bhattacharya appearing on behalf of the appellant contended that learned Trial Court was perfectly justified in rejecting the case of respondent/husband with regard to the ground of physical cruelty in as much as the learned Trial Court did not find any evidence on that score. Learned advocate appearing on behalf of the appellant further contended that the respondent/husband could not adduce cogent and clinching evidence to prove that the appellant was guilty of treating the respondent in cruel manner and thereby the learned Court was perfectly justified in rejecting such claim.
The appellant/wife also tried to justify such allegations while deposing before learned Trial Court.
The appellant/wife specifically admitted before the learned Trial Court that she had made such allegations being fully aware about the contents there of.
In the given facts and circumstances we find that learned Trial Court was perfectly justified in decreeing the suit for divorce accepting the case of mental cruelty on the basis of such unfounded allegation contained in the written statement as well as in the additional written statement.
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 IN THE HIGH COURT AT CALCUTTA
                        CIVIL APPELLATE JURISDICTION
                                   Appellate Side



P R E S E N T:-
The Hon'ble Justice Jyotirmay Bhattacharya
                      And
The Hon'ble Justice Debi Prosad Dey

                                       F.A. No. 312 of 2007

                                          Rita Bandopadhyay
                                                 -vs-
                                         Abhik Bandopadhyay


For the Appellants              : Mr. Sabyasachi Bhattacharya, Sr. Adv,
                                : Mr. Shaikh Kamaluddin, Adv.,
                                : Mr. Swadhin Pan, Adv.


For the Respondent              : Mr. S.P.RoyChowdhury,Sr.Adv.,
                                : Mr. Bhaskar Ghosh, Sr.Adv.,
                                : Mr. Anit Kumar Rakshit, Adv.


Heard on                        : 03.06.2015, 04.06.2015 & 05.06.2015


Judgment delivered on : 15th June, 2015

Debi Prosad Dey, J.
This first appeal is directed against the judgement and decree passed by the learned Additional District Judge, Second Court, Hooghly in Matrimonial Suit no. 70 of 1994 whereby and where under the learned Trial Judge has been pleased to decree the suit for divorce in favour of respondent/husband.
Being aggrieved by and dissatisfied with such judgment and decree passed by learned Additional District Judge, Second Court, Hooghly, this appeal has been preferred by the wife/appellant on amongst other grounds that the learned Trial Judge could not properly appreciate the evidences on record and that learned Trial Judge erroneously placed reliance on the decisions referred to by learned advocate for the husband/respondent and thereby came to an erroneous conclusion causing mis-carriage of justice.
The respondent/husband filed a matrimonial suit in the Court of the learned District Judge, Hooghly praying for a decree of divorce alternatively for a decree for judicial separation on the ground of cruelty.
Learned District Judge, Hooghly ultimately transferred the case to the Court of learned 2nd Additional District Judge, Hooghly for trial.
Avik Bandopadhyay was married to Smt. Rita Bandopadhyay on 17.06.1990 according to Hindu Rites and Customs and the Marriage between the parties was duly consummated.
After such marriage Rita/appellant started residing in her matrimonial home i.e. at the residence of Avik at Bangur park, Rishra within PS.-Srirampur, Hooghly. Dispute cropped up between the parties and as such Rita returned to her father's place on 12.09.1990. At that time Rita was pregnant. Admittedly, the pregnancy of Rita was terminated for some reasons, exclusively known to Rita. Rita ultimately returned to her matrimonial home in the month of January 1992 and thereafter she started residing together with Avik. Rita again returned to her father's house at Chinsurah on 26.05.1993 and at that time she was pregnant. Rita gave birth to a male child on 31.12.1993.
Admittedly, Rita thereafter never returned to her matrimonial home. In the month of march, 1994 respondent/husband filed a matrimonial suit against Rita under section 13(1) (ia) of theHindu Marriage Act thereby praying for divorce. The case made out by the husband/ respondent may be summed up as follows:-
(a) While attending a party in the paternal residence of the appellant, the husband/respondent found that the name of his father has been printed in the menu card at the place of the name of the bridegroom. The matter was pointed out to the appellant's family members but they did not tender any apology instead they burst into laughter and teased the husband/respondent by cutting cruel jokes on him over the issue under reference.
(b)Despite persistent request from the respondent/husband the appellant did not transfer her card for employment from Chinsurah Employment Exchange to Srirampur Employment Exchange.
(c)The appellant/wife got her pregnancy aborted on 21.09.1990 without having any consultation with the respondent/husband and without his knowledge.
(d)The respondent/husband did not claim any dowry in his marriage from the father of the appellant/wife and he never received any such dowry from the family of appellant/wife. Nevertheless, the father of the appellant/wife raised allegations against the respondent/husband about demand of dowry and valuables from the family of appellant/wife.
(e)The appellant /wife habitually remained absent from taking up domestic work and during the absence of maid-servant only on one occasion, she telephoned her parents. The father of the appellant/wife sent a menial to the house of the respondent/husband to work in the place of the absentee maid-servant.
(f)The appellant/wife without any reason and without the consent of the respondent/husband stayed in the house of her father from 12.09.1990 to 21st Day of January 1992. Despite best effort of the respondent/husband, the appellant wife refused to return to her matrimonial home.
(g)On 11.09.1990 during the absence of the respondent/husband at about 11 p.m. the appellant/wife was proceeding towards railway station presumably in order to return to her father's house at Chinsurah by train but she was intercepted on the way to the station by some young man of the locality and then she divulged that she was proceeding to the railway track to commit suicide. However, somehow she was pursued to return to her matrimonial home on that night.
(h)The appellant/wife never helped the mother of the petitioner in domestic work and used to abuse the husband/respondent and his mother in filthy languages.
(i)The husband/respondent named his son as Avijit Banerjee and the said name was incorporated in the birth register of Chandannagar Municipal Corporation but the appellant/wife changed the name of his son as Sourish Banerjee only in order to humiliate the husband/respondent.
(j)Appellant/wife prevented the respondent/husband from meeting his own son and she even flouted the Court's order by denying the visitation right of the husband/respondent in respect of his son. Ultimately, the appellant/wife refused to return to her matrimonial home for ever on 21.01.1994.
(k)On 17.03.1994 the appellant/wife had been to Srirampore office of Calcutta Electric Supply Corporation at Mahesh i.e. the work place of the respondent/husband and abused her husband/respondent in filthy language even questioning the chastity of his mother in presence of the colleagues of the husband/respondent.
(l)The appellant/wife was very much reluctant to do any domestic work and she used to abuse her husband and mother- in - law in filthy language by calling them "Rascal, Bastard" etc. One day she threw a broom stick towards the petitioner which ultimately struck her mother and thereby the wife/appellant used to misbehave with her husband in a cruel manner.
The respondent/husband thus prayed for a decree of divorce on the aforesaid grounds against the wife appellant.
The appellant/wife contested the suit in the Trial Court by filing written statement and additional written statement. The appellant/wife specifically denied the material allegations contained in the plaint.
Per contra, the case of the appellant/wife is that she had to undergo the process of abortion in view of inhuman torture meted out to her by the respondent/husband and his mother. Admittedly, the appellant/wife did not stay in her matrimonial home from 12.09.1990 to 21.01.1992.
The specific case of the appellant/wife is that she was prevented from entering into her matrimonial home and ultimately she was allowed to enter into her matrimonial home with an undertaking that she would abide by all the conditions of her husband and mother-in-law. The appellant wife stayed happily with her husband and the marital status was revived on and from January 1992 between the parties. The wife became pregnant again and she returned to her father's house in the month of May 1993. Thereafter she gave birth to a male child. Admittedly since 26.05.1993 the wife has been residing in her father's house and thereafter she never returned to her matrimonial home at Rishra. In para 25 of her written statement the appellant wife has specifically stated that her husband is a very mean minded person and her husband has got no personality of his own. The further case of the appellant wife is that the mother of her husband used to say that she would fetch more dowry had she been able to get her son married with some other lady. The wife further noticed that one Mithu Mukherjee was instigating her husband in commission of such torture on the person of the wife/appellant. Even Mithu Mukherjee had been to the father's house of the wife/appellant and told her that her husband was not willing to keep any relation with the appellant/wife. The wife/appellant has further stated in her written statement that there was some sort of relationship between her husband and Mithu Mukherjee even to the knowledge of the family members of Mithu Mukherjee. The mother of the respondent/husband is a very quarrelsome lady and their house is known in their locality as the house of phantom/veritable hell. In para 3 of her additional written statement, the appellant/wife described her husband as a spoilt child of his father at the latitude given by his mother since his boyhood and that the respondent/husband picked up all the virtues, if not the vices, from his mother. Unfortunately, the appellant wife has further stated that her husband/respondent developed illegal and immoral relationship with many a girl, wife of some other person and even with his own sister and thereby described her husband as a beast and that he has lost his character. The appellant wife further besmirched the character of the mother of her husband by saying that her husband in collusion with his mother took away all the savings including the last copper of his father who brought him up. The husband/respondent is a mean- minded person who even filed a civil suit against his father claiming maintenance through his mother knowing fully well that his father is without any means. The wife/appellant thus prayed for dismissal of the suit. The Learned Trial Court after recording the evidence of both the parties was pleased to grant decree of divorce in favour of the husband/respondent on the ground of mental cruelty meted out to him by the appellant/wife.
The legality of the said judgement and decree passed by Ld. Trial Court is under challenge before us.
It would not be out of place to mention here in brief about the evidence adduced by the parties to the case under reference. Plaintiff's witness No. 1, Avik Bandopadhyay has supported the contents of the plaint in his deposition. He has categorically denied all the allegations levelled by his wife in her written statement as well as in additional written statement. PW 1 stated in his evidence that on 17.03.1994 when he was posted at the office of Calcutta Electric Supply Corporation, Srirampur at Mahesh, the appellant/wife visited his office and insulted him touching his character and even the chastity of his mother. PW 1 tried to pacify his wife with the help of his colleagues but in vain. The aforesaid action of his wife has virtually lowered him in the estimation of his colleagues as well as his superior in the office. PW 1 vehemently denied the allegations levelled against him in his examination in chief. It has been elicited in the cross examination of PW1 that Mithu is the daughter of the sister of his father. That goes to show that Mithu Mukherjee is in fact a sister of Avik.
Plaintiff's witness No. 2 Bikash Ghosh used to work as chief clerk at Calcutta Electric Supply Corporation at Srirampore in the year 1994 and he could remember that the wife of Avik Bandopadhyay had been to their office who stated about the immoral character of Avik and his mother. This witness has been cross examined at length. It is apparent from such cross examination that in fact the wife of Avik had been to the office of Avik on some day in the year 1994.
Plaintiff's witness No:3 Asit Kumar Guha, another employee of the self-same office categorically stated that the wife of Avik abused Avik and his mother in filthy languages in their presence in the office of Avikbabu. It is also apparent from the cross examination of PW3 that virtually the presence of the appellant /wife in the office of Avik in the year 1994 was confirmed.
In fact from the evidence of PW 2 and PW3, it is apparent that the appellant/wife had been to the office of Avik/husband and abused him and his mother in their presence.
Plaintiff's witness No. 4 is an employee of Allahabad Bank, Rishra branch and he has deposed about existence of one locker in his branch in the name of the appellant/wife. The evidence of PW 4 has had no bearing in the given facts and circumstances of this case.
Plaintiff's witness No. 5 Monica Banerjee is the mother of respondent/husband. Admittedly, she has been suffering from high blood sugar and blood pressure and that's why she could not even do the household work. She has categorically stated that she was badly treated by the appellant/wife of Avik. The further evidence of PW 5 is that the wife of Avik used to abuse her by raising question about her chastity and she used to say that Avik has got illicit relationship with his own younger sister and thereby she used to torture them mentally and some times physically. PW 5 has virtually supported the evidence given by PW 1. It has been specifically suggested to PW 5 in the cross examination that the character of her son, youngest daughter and Mithu were not good and even being aware of such relationship she did not object to their conduct.
The appellant/wife has examined herself as defendant's witness No. 1. She has corroborated the statements made by her in the written statement as well as in the additional written statement and also in her examination in chief. In cross examination, she has specifically admitted that the written statement and additional written statement were filed on her behalf as per her instruction and she had signed on the verification after going through the same and after being aware of the contents thereof. She has admitted in her cross examination that she last visited her husband's house about 14 years ago. She has admitted in her cross examination that there was some relationship between Mithu and her husband and house of her husband used to be described as phantom house by the local people. She has admitted in her cross examination that she stated in her written statement that her husband was a spoilt child and that her husband picked up all the virtues, if not, vices of her mother and her husband developed illicit and immoral relationship with many a girl, wife of other person and even with his own sister and is more than a beast as he has lost his character. She further admitted about the statement made by her in her written statement to the effect that her husband in collusion with his mother virtually made her father in law a beggar by extracting all his money. She has admitted that her husband opened savings bank account in her name at Allahabad Bank at Rishra branch with the facility of having one locker and the said locker still stood in her name. The gold ornament of the appellant/wife has been kept in the said locker. She has also admitted that since 26.05.1993 she has been living separately and that her husband is a mean-minded person.
On the basis of the evidence discussed here in above, the learned Trial court refused to accept the case of physical cruelty but decreed the suit by granting divorce by accepting the case of mental cruelty.
Learned advocate Mr. Bhattacharya appearing on behalf of the appellant contended that learned Trial Court was perfectly justified in rejecting the case of respondent/husband with regard to the ground of physical cruelty in as much as the learned Trial Court did not find any evidence on that score. Learned advocate appearing on behalf of the appellant further contended that the respondent/husband could not adduce cogent and clinching evidence to prove that the appellant was guilty of treating the respondent in cruel manner and thereby the learned Court was perfectly justified in rejecting such claim.
Learned Advocate appearing on behalf of the appellant however vehemently argued that the learned Trial Court erroneously relied on the decisions reported in AIR 2005 SC 534, AIR 1994 SC 710 and AIR 1990 Calcutta 367. Learned advocate appearing on behalf of the appellant took us through the aforesaid decisions and submitted that the facts and circumstances stated in the aforesaid decisions are not at all similar to the given facts and circumstances of the case under reference and the learned Trial Court has failed to appreciate the proposition of law enunciated/propounded by Hon'ble Court in the decisions referred to here in above.
Learned Advocate Mr. S.P. Roy Chowdhury, appearing on behalf of respondent/husband vehemently argued that the learned Trial Court was perfectly justified in taking into consideration the unfounded allegations levelled by the appellant/wife in the written statement as well as in the additional written statement and thereby the appellant/wife has definitely treated the husband/respondent in a cruel manner. Learned senior Advocate Mr. Roy Chowdhury took us through the evidences on record and submitted that the respondent/husband has been able to prove the cruelty to it's hilt and the learned Trial Court correctly relied on the decisions referred to here in above.
Learned senior Advocate Mr. Roy Chowdhury pointed out the relevant paragraphs in the written statement as well as additional written statement wherein the appellant/wife made disparaging remarks touching the character of the respondent/husband as well as his mother. Learned senior Advocate Mr. Roy Chowdhury has drawn our attention to section 20(2) of the Hindu Marriage Act wherein it has been incorporated that the statements made in the pleadings may be accepted as evidence for the purpose of deciding the lis.
Learned Senior Advocate Mr. Roy Chowdhury further pointed out that the first appellate Court has had every jurisdiction to look into the subsequent events that cropped up even after the disposal of the suit by the Trial Court. Learned Advocate has drawn our attention to the order passed by other Division Bench on 28th day of February, 2009 wherein specific direction was given that the order of alimony is subject to the condition that the only child of the parties to this lis, who was then studying in class IX would go to his father's house at Rishra on every Saturday after school hours and would come back to his mother in the evening of Sunday. It is submitted by the learned Advocate that such uncommon order was passed by other Division Bench of this Court since the appellant/wife prevented the husband/respondent from visiting his own son. Learned advocate further drew our attention to the order dated 14.05.2014 wherein it has been clearly stated that even the order dated 25.02.2009 was not complied with by the appellant/wife and the husband/respondent could not exercise his right of visitation in terms of such order. Learned Advocate vehemently submitted that the appellant/wife not only withdrew herself from the association of the respondent/husband for last 22 years but she also did not permit the husband/respondent to meet his own son. Learned Advocate Mr. Bhattacharya, appearing on behalf of the appellant/wife drew our attention to the application filed by the respondent/husband in the Trial Court dated 18.08.2001 wherein the respondent/husband himself had filed such application before learned Trial Court for exemption of the order wherein he was permitted to see his son at Hooghly Bar Library on every first and third Saturday of a month. On careful scrutiny of the Lower Court Record we find that (order No.101 Dt. 2797) that the wife/appellant did not produce the son at the Bar Library as per the order of the learned District Judge, Hooghly and the learned Trial Court's attention was also drawn regarding such non-compliance of Court's order by the appellant/wife. Order No.199 Dt. 18.08.2001 reveals that the appellant/wife received Rs. 130/- from the respondent/husband. That goes to show that the husband had tried to comply with the order passed by learned District Judge, Hooghly with regard to exercise of his visitation right but ultimately being frustrated about the non-compliance of such order by the appellant/wife, he submitted such application stating inter-alia that the order of visitation may be revoked.
On careful scrutiny of the materials on record as well as from the evidences on record, it transpires that the wife appellant stayed for only 3 months in her matrimonial home immediate after her marriage and she returned to her father's house after 3 months of her marriage. Thereafter she stayed in the house of her father for 1-1/2 years. In the month of January 1992 she returned to her matrimonial home. In the meantime either she terminated her pregnancy or she went through miscarriage of her pregnancy.
She returned to her father's house being impregnated by her husband and gave birth to a male child in the month of December, 1993. Admittedly for the last 22 years she has been residing in the house of her father without asking for any sort of re-conciliation in respect of her so called dispute with her husband. On the contrary, she made disparaging remarks against her husband touching the character and integrity of her husband. She even had been to the place of work of her husband and abused her husband with filthy languages touching the character of her husband as well as the chastity of his mother. It is, therefore, apparent that the wife has had no intention to return to her matrimonial home or to revive her marital status with her husband. The son has by this time become major. It is apparent from the facts and circumstances of this case that the respondent/husband has had no connection with his own son and the son of the respondent/husband has been staying with his mother at Chinsurah since his childhood.
The appellant/wife did not adduce any evidence to prove that her husband has got illicit relationship with his own sister or Mithu Mukherjee or with the wife of any other person or with any other lady. The wife/appellant has failed to prove that her husband is a spoilt child and that he has exploited his own father in collusion with his mother. The appellant wife has also failed to adduce any evidence to show that the house of her husband used to be described by the local people as house of phantom/veritable hell. Section 20(2) of Hindu Marriage Act may be reproduced to appreciate the contentions of the learned Advocate for the respondent.
"Section 20(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence." Therefore, in a matrimonial suit the pleadings assume importance and, the Court may act upon on the basis of such unfounded allegations in the pleadings treating the same as evidence. Section 20(2) of the Hindu Marriage Act thus provides that pleadings may at times be accepted as evidence.
Let us now consider as to how far the learned Trial Court was justified in accepting the unfounded allegations contained in the written statement as well as in the additional written statement as the basis for accepting the case of the respondent/husband or as the basis towards mental cruelty. It is well settled principle of law that there cannot be any precedent on factual aspect. The proposition of law, which is being enunciated in the decision of the Apex Court, has to be accepted as precedent. The Hon'ble Supreme Court in the decision reported in AIR 2005 SC 534 (Ajoy Chandra, appellant Vs. Anilo Kaur) has been pleased to observe in para 12 of such decision that it is difficult to lay down a precise definition or to give extensive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
In the decision referred to hereinabove simply suspicion has been raised by other party with regard to the fidelity of her spouse and such suspicion has been accepted as infliction of mental cruelty upon the other spouse.
In the given facts and circumstances of this case, it is apparent that the appellant/wife has prevented the husband/respondent from exercising his right of visitation despite having specific order from the learned District Judge, Hooghly as well as from the other Division Bench of this Court.
Admittedly the wife/appellant made disparaging remarks with regard to the character of the husband/respondent to the extent that the husband has got sexual relationship with his own sister, with the daughter of the sister of his father, with very many other girls and even with the wife of some other person. These allegations have been levelled in the written statement as well as in the additional written statement of the appellant/wife and she has categorically admitted during her cross examination that she has made such allegations being aware of the contents there-of.
In view of section 20(2) of the Hindu Marriage Act such allegations may safely be admitted and accepted as evidence of the appellant/wife. These unfounded allegations against the respondent/husband have not been proved by the Appellant/wife. A man of ordinary prudence would definitely be humiliated in the estimation of his family members as well as his associations in terms of such allegations. The holy relationship of brother and sister has been maligned by the appellant/wife to such an extent that it definitely pricks to the conscience of the Court to accept that the appellant/wife is guilty of treating the respondent/husband with mental cruelty. Moreover the appellant/wife has also raised question about the chastity and character as well as the behaviour of the mother of her husband and thereby has definitely made an indelible mark on the mind of the husband/respondent. It would, therefore, be not only difficult for the respondent/husband to swallow such filthy allegations but also impossible for him to continue his marital tie with the appellant/wife.
The foundation of a sound marriage is tolerance, adjustment and mutual respect between husband and wife. It appears from the allegations levelled by the appellant/wife that she has had no tolerance or adjustment towards her husband far to speak of respect. The wife/appellant has been residing separately for last 22 years without any effort of re-union with the respondent/husband. In such circumstances, it may safely be stated that such unfounded allegations with regard to the character and chastity of the respondent/husband and his mother have had telling effect in the disposal of the lis. In our considered view, the learned Trial Court was perfectly justified in relying on the decision reported in AIR 2005 SC 534 to hold that decree of divorce may be granted wholly on the ground of mental cruelty.
Learned senior Advocate Mr. Roy Chowdhury appearing on behalf of the respondent /husband has relied on the decision reported in AIR 2006 SC 1675(Naveen Kohli Vs. Neelu Kohli) in support of his contentions. In para 78 of the said decision the Hon'ble Supreme Court has observed as follows:-
"We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is broken beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties."
It is apparent from the discussions made in the forgoing paragraphs that the marital tie between the parties to this case has virtually become non-existent since January 1994 and thereafter the parties have involved themselves in a long standing lis on the issue of continuation of their relationship. The nature of allegations raised by the appellant / wife has definitely made it impossible on the part of the respondent/husband to continue their relationship with each other as husband and wife. The appellant /wife did not even spare the character and chastity of the mother of husband/respondent. She has also made serious allegations against the character of her husband/respondent. She did not even spare the sisters and other relations of her husband while making such obnoxious allegations against her husband. In such circumstances in our considered view, it may safely be stated that the husband/respondent would in no way be interested to revive his marital status with the appellant/wife and the marital status in between the parties has broken down beyond repair in view of such mental cruelty meted out by the appellant /wife to her husband.
In the decision reported in AIR 1994 SC 710 (V. Bhagat, appellant Vs. M.D. Bhagat, respondent), the wife/ respondent made some disparaging remarks against the husband/appellant in the written statement but failed to prove the same in evidence. The matrimonial suit was decreed holding inter-alia that the husband was treated with mental cruelty by the wife. In the aforesaid decision (para 17), the Hon'ble Supreme Court has observed that unfounded allegations made by wife in a written statement against her husband and other members of the family being lunatic constitute mental cruelty. The said decision is squarely applicable in the given facts and circumstances of this case.
In the decision reported in AIR 1990 Calcutta 367(Smt. Santana Banerjee Vs. Sachindranath Banerjii), the Hon'ble High Court at Calcutta has accepted that persistent making of disparaging, derogatory remarks by the wife against husband and his close relations about their character in written statement as well as making false allegations by wife against husband that he was having illicit sexual relation with office colleague and false allegation by wife against husband of sexual perversity and bestiality amounted to mental cruelty justifying a decree of divorce.
After careful consideration of the decision referred to here in above we do hold that the appellant wife raised unfounded allegations against the respondent/ husband and his mother to such an extent that it would be impossible on the part of the husband of the respondent to continue with the marital tie and such unfounded allegations of the appellant /wife may safely be accepted as evidence in view of section 20(2) of Hindu Marriage Act.
To sum up the discussions made in the forgoing paragraphs, it is crystal clear that learned Trial Court was perfectly justified in holding that the respondent/husband was meted out with mental cruelty by the appellant/wife. The evidences on record at least justify that the appellant/wife had been to the office of respondent/husband and abused him in presence of his office colleagues.
Secondly the appellant/wife obviously with some oblique purposes prevented the respondent/husband from meeting his own son.
The appellant/wife raised serious allegations against the character and integrity of her husband and while doing so she did not even spare the sister of her husband.
The appellant/wife also did not spare the sister father and mother of her husband while raising such unfounded allegations against them in her written statement as well as in additional written statement.
The appellant/wife also tried to justify such allegations while deposing before learned Trial Court.
The appellant/wife specifically admitted before the learned Trial Court that she had made such allegations being fully aware about the contents there of.
In the given facts and circumstances we find that learned Trial Court was perfectly justified in decreeing the suit for divorce accepting the case of mental cruelty on the basis of such unfounded allegation contained in the written statement as well as in the additional written statement.
It would be impossible on the part of the respondent/husband to continue with the marital tie in view of such allegations levelled against him by the appellant/wife. The appellant/wife has virtually damaged the very basis of her marital tie to such an extent that the same cannot be repaired in any view of the matter.
We therefore, find no reason to interfere with the judgment and decree passed by the learned Trial Judge. The appeal therefore fails and is dismissed without cost.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
Jyotirmay Bhattacharya, J                                       Debi Prosad Dey, J.



I agree

                                                             Jyotirmay Bhattacharya, J



Saturday, 21 November 2015

Women can claim stridhan even after separation from husband.

As per Hindu law, stridhan is whatever a women receives during her lifetime including all movable, immovable property, gifts etc received prior to marriage, at the time of marriage and during child birth.

A bench of Justices Dipak Misra and Prafulla C Pant quashed the order of a trial court and Tripura High Court which had held that a woman cannot claim her stridhan after separation from her husband and criminal proceedings cannot be initiated against husband and in-laws for not handing over the properties.

It pulled up the courts for dismissing the plea of a woman on the ground that she lost the right over stridhan after judicial separation with husband. The court said that the Protection of Women from Domestic Violence Act was meant to provide an effective protection to a woman and the court should adopt sensitive approach towards such complaints.

The bench clarified that separation under court order is different from divorce and the couple remains as husband and wife, although living separately. It said under judicial separation a couple can keep their status as wife and husband till their lifetime and a wife is entitled to invoke the Act during that period if her rights are violated.

"It is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped.

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                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO.    1545       OF 2015
                       (@ SLP(Crl) No. 10223 OF 2014)


Krishna Bhatacharjee                   ...   Appellant

                                Versus

Sarathi Choudhury and Anr.             ...   Respondents



                               J U D G M E N T


Dipak Misra, J.


      Leave granted.

2.    The appellant having lost the battle for  getting  her  Stridhan  back
from  her  husband,  the  first  respondent  herein,  before   the   learned
Magistrate on the ground that the claim preferred under Section  12  of  the
Protection of Women from Domestic Violence Act, 2005 (for short,  ‘the  2005
Act’) was not entertainable as she had ceased to be  an  “aggrieved  person”
under Section 2(a) of the 2005 Act and further that the claim as  put  forth
was barred by limitation; preferred an appeal before the learned  Additional
Sessions Judge  who  concurred  with  the  view  expressed  by  the  learned
Magistrate, and being determined to get her lawful claim, she,  despite  the
repeated non-success, approached the High  Court  of  Tripura,  Agartala  in
Criminal Revision No. 19 of 2014 with the hope that she will  be  victorious
in the war to get her own property, but the High Court, as  is  perceivable,
without much analysis, declined  to  interfere  by  passing  an  order  with
Spartan austerity possibly thinking lack of reasoning  is  equivalent  to  a
magnificent virtue and that had led  the  agonised  and  perturbed  wife  to
prefer the present appeal, by special leave.

3.    Prior to the narration of facts which are essential  for  adjudication
of this appeal, we may state that the 2005 Act has been legislated,  as  its
Preamble would reflect, to provide for  more  effective  protection  of  the
rights of the women guaranteed under the Constitution  who  are  victims  of
violence of any kind occurring within the family and for  matters  connected
therewith or incidental thereto.  The  2005  Act  is  a  detailed  Act.  The
dictionary clause of the 2005 Act, which we shall advert to  slightly  at  a
later  stage,  is  in  a  broader  spectrum.  The  definition  of  “domestic
violence” covers a range of violence which takes within its sweep  “economic
abuse” and the words “economic abuse”, as  the  provision  would  show,  has
many a facet.

4.    Regard being had to the nature of the legislation,  a  more  sensitive
approach is expected from the courts where under the 2005 Act no relief  can
be granted, it should never be conceived of but, before throwing a  petition
at the threshold on the ground  of  maintainability,  there  has  to  be  an
apposite discussion and thorough deliberation  on  the  issues  raised.   It
should be borne in mind that helpless and hapless “aggrieved  person”  under
the 2005 Act approaches the court under the compelling circumstances. It  is
the duty of the court to scrutinise the facts  from  all  angles  whether  a
plea advanced by the respondent to nullify the grievance  of  the  aggrieved
person is really legally sound and correct.  The principle “justice  to  the
cause is equivalent to the salt of ocean” should be kept in mind. The  court
of law is bound to uphold the truth which sparkles  when  justice  is  done.
Before throwing a petition at the threshold, it is obligatory  to  see  that
the person aggrieved under such a legislation is not faced with a  situation
of non-adjudication, for the 2005 Act as we have stated is a  beneficial  as
well as  assertively  affirmative  enactment  for  the  realisation  of  the
constitutional rights of women  and  to  ensure  that  they  do  not  become
victims of any kind of domestic violence.

5.    Presently to the narration of the  facts.  The  marriage  between  the
appellant and the respondent No. 1 was solemnised  on  27.11.2005  and  they
lived as husband and wife. As the allegations proceed, there was  demand  of
dowry by  the  husband  including  his  relatives  and,  demands  not  being
satisfied, the appellant was driven out from the matrimonial home.  However,
due to intervention of the elderly people of the locality,  there  was  some
kind of conciliation as a consequence of which  both  the  husband  and  the
wife stayed in a rented house for two months. With the efflux of  time,  the
husband filed a petition  seeking  judicial  separation  before  the  Family
Court and eventually the said prayer  was  granted  by  the  learned  Judge,
Family Court. After the judicial  separation,  on  22.5.2010  the  appellant
filed an application under Section 12 of  the  2005  Act  before  the  Child
Development Protection  Officer (CDPO), O/O the District  Inspector,  Social
Welfare & Social Education,  A.D.  Nagar,  Agartala,  Tripura  West  seeking
necessary help as per the provisions contained in the 2005 Act.  She  sought
seizure of Stridhan  articles  from  the  possession  of  the  husband.  The
application which was made  before  the  CDPO  was  forwarded  by  the  said
authority to the learned Chief Judicial  Magistrate,  Agartala  Sadar,  West
Tripura by letter dated 1.6.2010.  The learned Magistrate issued  notice  to
the respondent who filed his written objections on 14.2.2011.

6.    Before the learned Magistrate it was contended by the respondent  that
the application preferred by the wife was barred by limitation and that  she
could not have  raised  claim  as  regards  Stridhan  after  the  decree  of
judicial separation passed by the competent court.  The  learned  Magistrate
taking  into  consideration  the  admitted  fact  that  respondent  and  the
appellant had entered into wedlock treated her  as  an  “aggrieved  person”,
but opined that no “domestic relationship” as defined under Section 2(f)  of
the 2005 Act existed between  the  parties  and,  therefore,  wife  was  not
entitled to file the application under Section 12  of  the  2005  Act.   The
learned Magistrate came to  hold  that  though  the  parties  had  not  been
divorced but the decree of judicial separation would be  an  impediment  for
entertaining the application and being of  this  view,  he  opined  that  no
domestic relationship subsisted under the 2005  Act  and  hence,  no  relief
could be granted.  Be it stated here that  before  the  learned  Magistrate,
apart from herself, the appellant examined three witnesses and  the  husband
had examined himself as DW-1.  The learned  Magistrate  while  dealing  with
the maintainability of  the  petition  had  noted  the  contentions  of  the
parties as regards merits, but has really not recorded any finding  thereon.

7.    The aggrieved wife preferred criminal appeal No. 6(1)  of  2014  which
has  been  decided  by  the  learned  Additional  Sessions  Judge,  Agartala
holding, inter alia, that the object of the 2005 Act is  primarily  to  give
immediate relief to the victims; that as per the decision of this  Court  in
Inderjit Singh Grewal v. State of Punjab[1] that Section 468 of the Code  of
Criminal Procedure applies to  the  proceedings  under  the  2005  Act  and,
therefore, her application was barred by time.   Being  of  this  view,  the
appellate court dismissed the appeal.
8.    On a revision being preferred, the  High  Court,  as  is  demonstrable
from the impugned order, after referring to the decision in  Inderjit  Singh
Grewal (supra), has stated that the wife had filed  a  criminal  case  under
Section 498(A) IPC in the year 2006 and the husband had  obtained  a  decree
of judicial separation in 2008, and hence, the proceedings  under  the  2005
Act was barred by limitation.  That apart, it has also in  a  way  expressed
the view that the proceedings under the 2005 Act was not maintainable.
9.    In our prefatory note, we have stated  about  the  need  of  sensitive
approach to these kinds of cases. There can be erroneous perception of  law,
but as we find, neither the learned Magistrate nor the appellate  court  nor
the High Court has made any effort to understand and  appreciate  the  stand
of the appellant. Such type of cases and at such stage should not travel  to
this Court. We are compelled to say so as we are of the  considered  opinion
that had the appellate court and the High Court been more vigilant,  in  all
possibility, there could have been adjudication on merits.  Be  that  as  it
may.
10.   The facts that we have  enumerated  as  regards  the  “status  of  the
parties”, “judicial separation” and “the claim  for  Stridhan”  are  not  in
dispute.  Regard being had to the  undisputed  facts,  it  is  necessary  to
appreciate the scheme of the 2005  Act.   Section  2(a)  defines  “aggrieved
person”  which  means  any  woman  who  is,  or  has  been,  in  a  domestic
relationship with the respondent and who alleges to have been  subjected  to
any act of domestic  violence  by  the  respondent.   Section  2(f)  defines
“domestic relationship” which means a relationship between two  persons  who
live or have, at any point of time, lived together in  a  shared  household,
when they are related by consanguinity, marriage, or through a  relationship
in the nature of marriage, adoption or are family  members  living  together
as a joint family.  Section 2(g) defines the term “domestic violence”  which
has been assigned and given the  same  meaning  as  in  Section  3.     Sub-
section (iv) of Section 3 deals with “economic abuse”.  As in the  facts  at
hand, we are concerned with  the  “economic  abuse”,  we  reproduce  Section
3(iv) which reads as follows:-
“Section 3. Definition of domestic violence.
(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to  which  the
aggrieved person is entitled under any law or custom whether  payable  under
an order of a court or otherwise or which the aggrieved person requires  out
of necessity including, but not limited to, household  necessities  for  the
aggrieved person and her children, if any, stridhan,  property,  jointly  or
separately owned by the aggrieved person, payment of rental related  to  the
shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether  movable
or immovable, valuables, shares, securities, bonds and  the  like  or  other
property in which the aggrieved person has an interest  or  is  entitled  to
use by virtue of the  domestic  relationship  or  which  may  be  reasonably
required by the aggrieved person or her children  or  her  stridhan  or  any
other property jointly or separately held by the aggrieved person; and

(c)  prohibition  or  restriction  to  continued  access  to  resources   or
facilities which the aggrieved person is entitled to use or enjoy by  virtue
of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether  any  act,  omission,
commission or conduct of  the  respondent  constitutes  "domestic  violence"
under this section, the overall facts and circumstances of  the  case  shall
be taken into consideration.”

11.   Section 8(1) empowers the State Government to appoint such  number  of
Protection Officers in each district as it may consider necessary  and  also
to notify the  area  or  areas  within  which  a  Protection  Officer  shall
exercise the powers and perform the duties conferred on him by or under  the
2005 Act. The  provision,  as  is  manifest,  is  mandatory  and  the  State
Government  is  under  the  legal  obligation  to  appoint  such  Protection
Officers.  Section 12 deals with application  to  Magistrate.   Sub-sections
(1) and (2) being relevant are reproduced below:-
“Section 12.  Application  to  Magistrate.-(1)  An  aggrieved  person  or  a
Protection Officer or any other person on behalf  of  the  aggrieved  person
may present an application to the Magistrate seeking  one  or  more  reliefs
under this Act: Provided that before passing any order on such  application,
the Magistrate shall take into consideration any  domestic  incident  report
received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may  include  a  relief  for
issuance of  an  order  for  payment  of  compensation  or  damages  without
prejudice to the right of such person to institute a suit  for  compensation
or damages for  the  injuries  caused  by  the  acts  of  domestic  violence
committed by the respondent: Provided that where a decree for any amount  as
compensation or damages has been passed  by  any  court  in  favour  of  the
aggrieved person, the amount, if any, paid or payable in  pursuance  of  the
order made by the Magistrate under this Act shall be  set  off  against  the
amount payable under such  decree  and  the  decree  shall,  notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or  any
other law for the time  being  in  force,  be  executable  for  the  balance
amount, if any, left after such set off.”

12.   Section 18 deals with passing of protection orders by the  Magistrate.
Section 19 deals with  the  residence  orders  and  Section  20  deals  with
monetary reliefs.  Section 28 deals with procedure and stipulates  that  all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences  under
Section 31 shall be governed by the  provisions  of  the  Code  of  Criminal
Procedure, 1973. Section 36 lays down that the provisions of  the  2005  Act
shall be in addition to, and not in derogation  of  the  provisions  of  any
other law, for the time being in force.
13.   Having scanned the anatomy of the 2005 Act, we may now refer to a  few
decisions of this Courts that have dealt with the  provisions  of  the  2005
Act. In V.D. Bhanot  v. Savita Bhanot[2]  the  question  arose  whether  the
provisions of the 2005  Act  can  be  made  applicable  in  relation  to  an
incident that had occurred prior to the coming into force of the  said  Act.
Be it noted, the High  Court  had  rejected  the  stand  of  the  respondent
therein that the provisions of  the  2005  Act  cannot  be  invoked  if  the
occurrence had taken place prior to the coming into force of the  2005  Act.
This Court while dealing with the same referred to the decision rendered  in
the High Court which after considering the constitutional  safeguards  under
Article 21 of the Constitution vis-√†-vis the provisions of Sections  31  and
33 of the 2005 Act and after examining the Statement of Objects and  Reasons
for the enactment of the 2005 Act, had held that it was  with  the  view  of
protecting the rights  of  women  under  Articles  14,  15  and  21  of  the
Constitution that Parliament enacted the 2005 Act in order  to  provide  for
some effective protection of rights guaranteed  under  the  Constitution  to
women, who are victims of any kind of violence occurring within  the  family
and matters connected therewith and incidental thereto, and  to  provide  an
efficient and expeditious civil remedy to them and further that  a  petition
under the provisions of the 2005 Act is maintainable even  if  the  acts  of
domestic violence had been committed prior to the coming into force  of  the
said Act, notwithstanding the fact that in the past she had  lived  together
with her husband in a shared household, but was no more living with him,  at
the time when the Act came into force. After analyzing the  verdict  of  the
High Court, the Court concurred with the view expressed by  the  High  Court
by stating thus:-
“We agree with the view expressed by the High Court that in looking  into  a
complaint under Section 12 of the PWD Act, 2005, the conduct of the  parties
even prior to the coming into force of the PWD  Act,  could  be  taken  into
consideration while passing an order under Sections 18, 19 and  20  thereof.
In our view, the Delhi High Court has also  rightly  held  that  even  if  a
wife, who had shared a household in the past, but was  no  longer  doing  so
when the Act came into force, would still be entitled to the  protection  of
the PWD Act, 2005.”

14.   In Saraswathy  v.  Babu[3]  a two-Judge Bench, after referring to  the
decision in V.D. Bhanot   (supra), reiterated the  principle.  It  has  been
held therein:-
“We are of the view that the act of the respondent  husband  squarely  comes
within the ambit of Section 3 of the  DVA,  2005,  which  defines  “domestic
violence” in wide terms. The High Court made an apparent  error  in  holding
that the conduct of the parties prior to the coming into force of  the  DVA,
2005 cannot be taken into consideration while passing an order.  This  is  a
case where the respondent husband  has  not  complied  with  the  order  and
direction passed by the  trial  court  and  the  appellate  court.  He  also
misleads the Court by giving wrong statement before the High  Court  in  the
contempt petition filed by the appellant wife.  The  appellant  wife  having
being harassed since 2000 is entitled for  protection  order  and  residence
order under Sections 18 and 19 of the DVA, 2005 along with  the  maintenance
as allowed by the trial court under  Section  20(1)(d)  of  the  DVA,  2005.
Apart from these reliefs, she is also entitled for compensation and  damages
for the injuries, including mental torture and  emotional  distress,  caused
by the acts of  domestic  violence  committed  by  the  respondent  husband.
Therefore, in addition to the reliefs granted by the courts  below,  we  are
of the view that the appellant wife should be compensated by the  respondent
husband. Hence, the respondent is hereby directed to  pay  compensation  and
damages to the extent of Rs 5,00,000 in favour of the appellant wife.”

15.   In the instant case, as has been indicated earlier, the  courts  below
as well as the High Court have referred to the decision  in  Inderjit  Singh
Grewal (supra).  The said case has to be understood regard being had to  the
factual expos√® therein.  The Court  had  referred  to  the  decision  in  D.
Velusamy v.  D.  Patchaiammal[4]  wherein  this  Court  had  considered  the
expression “domestic  relationship”  under  Section  2(f)  of  the  Act  and
judgment  in  Savitaben  Somabhai  Bhatiya  v.  State  of   Gujarat[5]   and
distinguished  the  said  judgments  as  those  cases  related  to   live-in
relationship without marriage.  The Court analyzing  the  earlier  judgments
opined that the couple must hold themselves out to society as being akin  to
spouses in addition to fulfilling  all  other  requisite  conditions  for  a
valid marriage. The said judgments were  distinguished  on  facts  as  those
cases related to live-in relationship without marriage.   The  Court  opined
that the parties therein had got married and the decree of the  civil  court
for divorce  subsisted and that apart a suit to declare  the  said  judgment
and  decree  as  a  nullity  was  still  pending  consideration  before  the
competent court.  In that background, the Court ruled that:-
“In the facts and circumstances of the case, the submission made  on  behalf
of Respondent 2 that the judgment and  decree  of  a  civil  court  granting
divorce is null and void and they continued to  be  the  husband  and  wife,
cannot be taken note of at this stage unless the suit filed by Respondent  2
to declare the said judgment and decree dated 20-3-2008 is  decided  in  her
favour. In view thereof,  the  evidence  adduced  by  her  particularly  the
record of the telephone calls, photographs attending a wedding together  and
her  signatures  in  school  diary  of  the  child  cannot  be  taken   into
consideration so long  as  the  judgment  and  decree  of  the  civil  court
subsists. On a similar footing, the contention advanced by her counsel  that
even after the decree  of  divorce,  they  continued  to  live  together  as
husband and  wife  and  therefore  the  complaint  under  the  2005  Act  is
maintainable, is not worth acceptance at this stage.”
                                                         [Emphasis supplied]

16.   It may be noted that a  submission  was  advanced  by  the  wife  with
regard to the applicability of Section 468 CrPC.   While  dealing  with  the
submission on the issue of limitation, the Court opined:-

“...... in view of the provisions of Section 468 CrPC,  that  the  complaint
could be filed only within a period  of  one  year  from  the  date  of  the
incident seem to be preponderous in view of the provisions  of  Sections  28
and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women  from
Domestic Violence Rules, 2006 which make the provisions of  CrPC  applicable
and stand fortified by the judgments  of  this  Court  in  Japani  Sahoo  v.
Chandra Sekhar Mohanty, (2007) 7 SCC 394,  and NOIDA Entrepreneurs Assn.  v.
NOIDA,  (2011) 6 SCC 508.”

17.   As it appears, the High Court has referred to the same  but  the  same
has really not been adverted.  In fact, it is not  necessary  to  advert  to
the said aspect in the present case.
18.   The core issue that is  requisite  to  be  addressed  is  whether  the
appellant has ceased to be an “aggrieved person” because of  the  decree  of
judicial separation.  Once the decree of divorce is passed,  the  status  of
the parties becomes different, but that is not so when  there  is  a  decree
for judicial separation. A three-Judge Bench in Jeet Singh  and  Others  Vs.
State of U.P. and Others[6] though in a different context, adverted  to  the
concept of judicial  separation  and  ruled  that  the  judicial  separation
creates  rights  and  obligations.  A  decree  or  an  order  for   judicial
separation permits the parties to live apart. There would be  no  obligation
for either party to cohabit with the other. Mutual  rights  and  obligations
arising out of a marriage are suspended. The decree however, does not  sever
or dissolve the marriage. It affords an opportunity for  reconciliation  and
adjustment. Though judicial separation after a certain period may  become  a
ground for divorce, it is not necessary and the parties  are  not  bound  to
have recourse to that remedy and the parties can live keeping  their  status
as wife and husband till their lifetime.
19.   In this regard, we may fruitfully refer to the authority in  Hirachand
Srinivas Managaonkar  v.   Sunanda[7]  wherein  the  issue  that  arose  for
determination was whether the husband  who  had  filed  a  petition  seeking
dissolution of the marriage by a decree of divorce under Section  13(1-A)(i)
of the Hindu  Marriage Act, 1955 can be declined relief on the  ground  that
he had failed to pay maintenance for his wife and daughter despite an  order
of the court. The husband was appellant before this Court and had  filed  an
application under Section 10 of the Hindu Marriage  Act,  1955  for  seeking
judicial separation on the ground of adultery on the part of the  appellant.
Thereafter,  the  appellant  presented  the  petition  for  dissolution   of
marriage by decree  of  divorce  on  the  ground  that  there  has  been  no
resumption of cohabitation as between the parties  to  the  marriage  for  a
period of more than one year  after  passing  of  the  decree  for  judicial
separation. The stand of the wife was that the appellant  having  failed  to
pay the maintenance as ordered by the court, the petition for divorce  filed
by the husband was liable to be rejected  inasmuch  he  was  trying  to  get
advantage of his  own  wrong  for  getting  the  relief.    The  High  Court
accepted the plea of the wife  and  refused  to  grant  the  prayer  of  the
appellant seeking divorce. It was contended before this Court that the  only
condition  for  getting  divorce  under  Section  13(1-A)(i)  of  the  Hindu
Marriage Act, 1955 is that there has  been  no  resumption  of  cohabitation
between the parties to the marriage for a period  of  one  year  or  upwards
after the passing of the decree for judicial separation in a  proceeding  to
which both the  spouses  are  parties.   It  was  urged  that  if  the  said
condition is satisfied the court is required to pass a  decree  of  divorce.
On behalf of the wife, the said submissions were resisted on the score  that
the husband had been living in continuous adultery  even  after  passing  of
the decree of judicial separation and had reasonably failed to maintain  the
wife and daughter.  The Court proceeded to analyse Section             13(1-
A)(i) of the Hindu Marriage Act, 1955. Analysing the  provisions  at  length
and speaking about judicial separation, it expressed that after  the  decree
for judicial separation was passed on the petition filed by the wife it  was
the duty of both the spouses to do their part for cohabitation. The  husband
was expected to act as a dutiful husband towards the wife and the  wife  was
to act as a devoted wife towards the husband. If this concept  of  both  the
spouses  making  sincere  contribution  for  the   purpose   of   successful
cohabitation after a judicial separation is ordered then it  can  reasonably
be said that in the facts and circumstances  of  the  case  the  husband  in
refusing to pay maintenance to the wife failed to act as a husband.  Thereby
he committed a “wrong”  within  the  meaning  of  Section  23  of  the  Act.
Therefore, the High Court was justified in declining to allow the prayer  of
the husband for dissolution of the marriage by divorce under  Section  13(1-
A) of the Act.
20.   And, the Court further stated thus:-
“... The effect of the decree is that certain mutual rights and  obligations
arising from the marriage are as  it  were  suspended  and  the  rights  and
duties prescribed in the decree are substituted  therefor.  The  decree  for
judicial separation does not  sever  or  dissolve  the  marriage  tie  which
continues  to  subsist.  It  affords  an  opportunity  to  the  spouse   for
reconciliation and readjustment. The decree may fall by  a  conciliation  of
the parties in which case the rights of the respective parties  which  float
from the marriage and were suspended are restored. Therefore the  impression
that Section 10(2) vests a right in the petitioner  to  get  the  decree  of
divorce notwithstanding the fact that  he  has  not  made  any  attempt  for
cohabitation with the respondent and has even acted in a  manner  to  thwart
any move for cohabitation does not flow from a reasonable interpretation  of
the statutory provisions. At the cost of repetition it may  be  stated  here
that the  object  and  purpose  of  the  Act  is  to  maintain  the  marital
relationship between the spouses and  not  to  encourage  snapping  of  such
relationship.”

21.   It is interesting to note that  an  issue  arose  whether  matrimonial
offence of adultery had  exhausted  itself  when  the  decree  for  judicial
separation was granted and, therefore, it cannot be said that it  is  a  new
fact or circumstance amounting to wrong which will stand as an  obstacle  in
the way of the husband to obtain the relief which he claims in  the  divorce
proceedings.  Be it stated that reliance  was  placed  on  the  decision  of
Gujarat High Court in Bai Mani v. Jayantilal Dahyabhai[8].  This  Court  did
not accept the contention by holding that living in adultery on the part  of
the husband is a continuing matrimonial offence, and it does not get  frozen
or wiped out merely on passing of a decree  for  judicial  separation  which
merely suspends certain duties and obligations of the spouses in  connection
with their marriage and does not snap the matrimonial tie. The  Court  ruled
that the decision of the Gujarat High Court does not lay  down  the  correct
position of law. The Court approved the principle stated by the Madras  High
Court in the case of Soundarammal v. Sundara Mahalinga Nadar[9] in  which  a
Single Judge had taken the view that the husband who continued  to  live  in
adultery even after decree at the instance of the wife could not succeed  in
a petition seeking decree for divorce and that Section 23(1)(a)  barred  the
relief.
22.   In view of the aforesaid pronouncement, it is quite clear  that  there
is a distinction between  a  decree  for  divorce  and  decree  of  judicial
separation; in the former, there is a severance of status  and  the  parties
do not remain as husband and wife, whereas in the  later,  the  relationship
between husband and wife continues and the legal relationship  continues  as
it has not been snapped.  Thus  understood,  the  finding  recorded  by  the
courts below which have been concurred by the High Court  that  the  parties
having been judicial separated, the appellant  wife  has  ceased  to  be  an
“aggrieved person” is wholly unsustainable.
23.   The  next  issue  that  arises  for  consideration  is  the  issue  of
limitation. In the application preferred by the wife, she  was  claiming  to
get back her stridhan.  Stridhan has been  described  as  saudayika  by  Sir
Gooroodas Banerjee in “Hindu Law of  Marriage  and  Stridhan”  which  is  as
follows:-
“First, take the case of property obtained by gift.  Gifts  of  affectionate
kindred, which are known by the name of  saudayika  stridhan,  constitute  a
woman’s absolute property, which she has at all times independent  power  to
alienate, and over which her husband has only  a  qualified  right,  namely,
the right of use in times of distress.”

24.   The said passage, be it noted, has been quoted Pratibha Rani v.  Suraj
Kumar and Another[10]. In the  said  case,  the  majority  referred  to  the
stridhan as described in “Hindu Law” by   N.R.  Raghavachariar  and  Maine’s
“Treatise on Hindu Law”. The  Court  after  analyzing  the  classical  texts
opined that:-
”It is, therefore, manifest  that  the  position  of  stridhan  of  a  Hindu
married  woman’s  property  during  coverture  is   absolutely   clear   and
unambiguous; she is the absolute owner of such property and  can  deal  with
it in any manner she likes — she may spend the whole of it or give  it  away
at her own pleasure by gift or will without any reference  to  her  husband.
Ordinarily, the husband has no  right  or  interest  in  it  with  the  sole
exception that in times of extreme distress, as in famine,  illness  or  the
like, the husband can utilise it but he is morally bound to  restore  it  or
its value when he is able to do so. It may be further noted that this  right
is purely personal to the husband and the property so  received  by  him  in
marriage cannot be proceeded against even  in  execution  of  a  decree  for
debt.”

25.   In the said case, the Court ruled:-
“... a pure and simple entrustment of stridhan without creating  any  rights
in the husband excepting putting the articles in  his  possession  does  not
entitle him to use the same  to  the  detriment  of  his  wife  without  her
consent. The husband  has  no  justification  for  not  returning  the  said
articles as and when demanded by the wife nor can he burden her with  losses
of business by using the said property  which  was  never  intended  by  her
while  entrusting  possession  of  stridhan.  On  the  allegations  in   the
complaint, the husband is no more  and  no  less  than  a  pure  and  simple
custodian acting on behalf of his wife  and  if  he  diverts  the  entrusted
property elsewhere or for different  purposes  he  takes  a  clear  risk  of
prosecution under Section 406 of the IPC. On a parity of  reasoning,  it  is
manifest that the husband, being only a custodian of  the  stridhan  of  his
wife, cannot be said to be in joint possession thereof and  thus  acquire  a
joint interest in the property.”

26.   The decision rendered in the said case was referred for a  fresh  look
by a three-Judge Bench. The three-Judge Bench Rashmi Kumar (Smt)  v.  Mahesh
Kumar Bhada[11] while considering the issue in the said case, ruled that :-

“9. A woman’s power of disposal, independent of her  husband’s  control,  is
not confined to saudayika but extends to other properties  as  well.  Devala
says: “A  woman’s  maintenance  (vritti),  ornaments,  perquisites  (sulka),
gains (labha), are her stridhana. She herself has  the  exclusive  right  to
enjoy it. Her husband has no right to use it except in distress….”  In  N.R.
Raghavachariar’s Hindu Law — Principles and Precedents,  (8th  Edn.)  edited
by Prof. S. Venkataraman, one of the renowned Professors of Hindu  Law  para
468 deals with “Definition of Stridhana”. In para 469 dealing with  “Sources
of acquisition” it is stated that the sources of acquisition of property  in
a woman’s possession  are:  gifts  before  marriage,  wedding  gifts,  gifts
subsequent to marriage etc. Para 470 deals with “Gifts to  a  maiden”.  Para
471 deals with “Wedding gifts” and it  is  stated  therein  that  properties
gifted at the time of  marriage  to  the  bride,  whether  by  relations  or
strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana.  In
para 481 at page 426, it is stated that ornaments presented to the bride  by
her husband or  father  constitute  her  Stridhana  property.  In  para  487
dealing with “powers during coverture” it is stated that  saudayika  meaning
the gift of affectionate kindred, includes both Yautaka  or  gifts  received
at the time of marriage as well as its  negative  Ayautaka.  In  respect  of
such property, whether given by gift or will she is the absolute  owner  and
can deal with it in any way she likes. She may spend, sell or give  it  away
at her own pleasure.

10. It is thus clear that the properties gifted to her before the  marriage,
at the time of marriage or at the time of giving farewell or thereafter  are
her stridhana properties. It is her absolute property  with  all  rights  to
dispose at her own pleasure. He has no control over her stridhana  property.
Husband may use it during the time of his distress but nonetheless he has  a
moral obligation to restore the same or its value to  his  wife.  Therefore,
stridhana property does not become a joint property  of  the  wife  and  the
husband and the husband has  no  title  or  independent  dominion  over  the
property as owner thereof.”

27.   After so stating the Court proceeded to rule that  stridhana  property
is the exclusive property of the  wife  on  proof  that  she  entrusted  the
property or dominion over the stridhana  property  to  her  husband  or  any
other member of the family, there  is  no  need  to  establish  any  further
special agreement to establish that the property was given  to  the  husband
or other member of the family.  Further,  the  Court  observed  that  it  is
always a question of fact in each case as to how the  property  came  to  be
entrusted to the husband or any other member of the family by the wife  when
she left the matrimonial home or was driven out therefrom.  Thereafter,  the
Court adverted to the concept of entrustment and eventually  concurred  with
the view in the case of Pratibha Rani (supra). It is necessary to note  here
that the question  had  arisen  whether  it  is  a  continuing  offence  and
limitation could begin to run everyday lost its relevance in the said  case,
for the Court on scrutiny came to hold that the complaint preferred  by  the
complainant for the  commission  of  the  criminal  breach  of  trust  under
Section 406 of the Indian Penal Code was within limitation.
28.   Having appreciated the concept of Stridhan, we shall  now  proceed  to
deal with the meaning of “continuing  cause  of  action”.   In  Raja  Bhadur
Singh v. Provident Fund Inspector and Others[12]  the  Court  while  dealing
with the continuous offence opined that the expression “continuing  offence”
is not defined in the Code but that is because the expressions which do  not
have a fixed connotation or a static import are difficult to  define.    The
Court referred to the  earlier  decision  in  State  of  Bihar  v.  Deokaran
Nenshi[13] and reproduced a passage from the same which is to the  following
effect:-
“A continuing offence is one which is  susceptible  of  continuance  and  is
distinguishable from the one which is committed once and for all. It is  one
of those offences which arises out of a failure to obey  or  comply  with  a
rule or its requirement and which involves  a  penalty,  the  liability  for
which continues until the rule or its  requirement  is  obeyed  or  complied
with. On every occasion that such disobedience or non-compliance occurs  and
reoccurs, there is the offence committed. The distinction  between  the  two
kinds of offences is  between  an  act  or  omission  which  constitutes  an
offence once and for all  and  an  act  or  omission  which  continues,  and
therefore, constitutes a fresh offence every time or occasion  on  which  it
continues.  In  the  case  of  a  continuing  offence,  there  is  thus  the
ingredient of continuance of the offence which is absent in the case  of  an
offence which takes place when an act or omission is committed once and  for
all.”

29.    The Court further observed :-
“This passage shows that apart from saying that a continuing offence is  one
which continues and a non-continuing offence is one which is committed  once
and for all, the Court found it difficult to explain as to when  an  offence
can be described as a continuing offence. Seeing that difficulty, the  Court
observed that  a  few  illustrative  cases  would  help  to  bring  out  the
distinction between a continuing offence and a non-continuing  offence.  The
illustrative cases referred to by the Court  are  three  from  England,  two
from Bombay and one from Bihar.”

30.    Thereafter, the Court referred to the  authorities  and  adverted  to
Deokaran Nenshi (supra) and eventually held:-
“The question whether a particular offence  is  a  continuing  offence  must
necessarily depend upon the language  of  the  statute  which  creates  that
offence, the nature of the offence and, above  all,  the  purpose  which  is
intended  to  be  achieved  by  constituting  the  particular  act   as   an
offence...”

31.   Regard being had to the aforesaid statement of law,  we  have  to  see
whether retention of stridhan by the husband or any other family members  is
a continuing offence or not.  There can be no dispute that wife can  file  a
suit for realization of the stridhan but it does not debar her  to  lodge  a
criminal complaint for criminal breach of trust.  We  must  state  that  was
the situation before the 2005 Act came into force.  In  the  2005  Act,  the
definition of “aggrieved person” clearly postulates about the status of  any
woman who has been subjected to domestic violence as defined  under  Section
3 of the said Act.  “Economic abuse” as  it  has  been  defined  in  Section
3(iv) of the said Act has a large canvass.  Section 12, relevant portion  of
which  have  been  reproduced  hereinbefore,  provides  for  procedure   for
obtaining orders of reliefs.  It has been  held  in  Inderjit  Singh  Grewal
(supra) that Section 498 of the Code of Criminal Procedure  applies  to  the
said case under the 2005 Act as envisaged under Sections 28 and  32  of  the
said Act read with Rule 15(6) of  the  Protection  of  Women  from  Domestic
Violence Rules, 2006.   We need not advert to the same  as  we  are  of  the
considered opinion that as long  as  the  status  of  the  aggrieved  person
remains and stridhan remains in the custody of the  husband,  the  wife  can
always put forth her claim  under  Section  12  of  the  2005  Act.  We  are
disposed to think so as the  status  between  the  parties  is  not  severed
because  of  the  decree  of  dissolution  of  marriage.  The   concept   of
“continuing  offence”  gets  attracted  from  the  date  of  deprivation  of
stridhan, for neither the husband nor any other family members can have  any
right over the stridhan and they remain the custodians.  For the purpose  of
the 2005 Act, she can submit an application to the  Protection  Officer  for
one or more of the reliefs under the 2005 Act.  In  the  present  case,  the
wife had submitted the application on 22.05.2010 and the said authority  had
forwarded  the  same  on  01.06.2010.  In  the  application,  the  wife  had
mentioned that the husband had stopped payment of monthly  maintenance  from
January 2010 and, therefore, she had been compelled to file the  application
for stridhan. Regard being had to the said concept of  “continuing  offence”
and the demands made, we are disposed to think that the application was  not
barred by limitation and the courts below as well  as  the  High  Court  had
fallen into a grave error by dismissing  the  application  being  barred  by
limitation.
32.   Consequently, the appeal is allowed and the orders passed by the  High
Court and the courts below are set aside.  The matter  is  remitted  to  the
learned Magistrate to proceed with the application under Section 12  of  the
2005 Act on merits.


                                             .............................J.
                                                               [Dipak Misra]



                                             ..........................., J.
                                                          [Prafulla C. Pant]
New Delhi
November 20, 2015

-----------------------
[1]    (2011) 12 SCC 588
[2]    (2012) 3 SCC 183
[3]    (2014) 3 SCC 712
[4]    (2010) 10 SCC 469
[5]     (2005) 3 SCC 636
[6]    (1993) 1 SCC 325
[7]    (2001) 4 SCC 125
[8]    AIR 1979 Guj 209
[9]    AIR 1980 Mad 294
[10]   (1985) 2 SCC 370
[11]   (1997) 2 SCC 397
[12]   (1984) 4 SCC 222
[13]   (1972) 2 SCC 890