Seeking help on a case judgement and related citation
Debajit
(Querist) 03 November 2011
This query is : Resolved
I have been searching for the judgement of the following case of the Patna High Court, decided on 13-09-1985
Ratneshwar Misra v.Premlata Devi
1987 (1) HLR 255
The citation has not helped me find the judgement so far so I will be very grateful to anyone who may be able to upload a copy of the judgement.
Also, I would like some help with citation of cases relating to "desertion" and "cruelty". (HMA or Sp. Marriage Act related)
Supreme Court will be very helpful as I want an insight on the law point of the judgement on these issues.
Thanking in anticipation.
Debajit
Sailesh Kumar Shah
(Expert) 03 November 2011
http://www.indiankanoon.org/doc/1871174/
Ratneshwar Mishra vs Smt. Premlata Devi And Anr. on 13 September, 1985
Equivalent citations: AIR 1986 Pat 308, 1986 (34) BLJR 599
Author: R N Prasad
Bench: R N Prasad
JUDGMENT
Ram Nandan Prasad, J.
1. This appeal by the husband is directed against an order of dismissal of his petition under Section 10 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').
2. The appellant and respondent 1 Premlata Devi alias Prem Kumari were married according to Hindu rites sometime in February, 1969 and a son, namely, Ajay Kumar Mishra, was born to them out of this wedlock. Respondent 2 Awadh Kishore Mishra is the father of Premlata Devi.
3. The case of the appellant is that his wife Premlata Devi, who is the youngest daughter of her father, was very much under the influence of her father who did not allow her to live with the appellant even at the cost of disruption of the conjugal life of the appellant and respondent
1. It has also been stated that Premlata Devi has got only two sisters and no brother, but, out of them, she alone was living with her father and was under his influence. Respondent 2, it is said had declared a number of time even before the appellant that he was not going to permit respondent 1 to go to her Sasural or to obey the appellant or any member of his family, as the members of the family of the appellant were illiterates and rustics whereas the respondents 1 and 2 were urbane living in the town of Katihar and were also literate persons respondent 2 being a teacher in a high school and respondent 1 being an M. A. In view of this complex, respondent 1 used to speak ill of every thing and anything of the family of the appellant and even went to the extent of fabricating false and imaginary allegations to defame the members of the appellant's family.
4. Respondent 1 was a student of D.S. College, Katihar, from 1973 to 1975 and for prosecuting her studies she was allowed to remain at her father's place during that period. After her B.A. Examination was over in December, 1975, the appellant wanted to bring her to his place and with that end in view several requests were made to the respondents, but his request was refused on all the occasions on one ground or the other. Ultimately, the appellant personally went to the house of respondent 2 at Katihar for bringing his wife (respondent 1) on 15-2-1976. Respondent 2 was. however, not present when he reached there and in his absence, the appellant succeeded in persuading the mother of respondent 1 to allow his wife to go with him and she somehow agreed and so also respondent 1 agreed to this proposal and the appellant brought his wife as well as his son Ajay Kumar Mishra to his native village Garhia on 15-2-1976. He had, however, to leave his village home on the following morning to resume his duties. It may be stated here that he is a Junior Engineer under the State Government. At the time of leaving his native village, he put his wife and son under the care of his younger brother Nilambar Mishra. It is said that respondent 2 came to the native village of the appellant on the pretext of meeting her. The same night he managed to abduct respondent 1 and her son from that house and all of them were found missing by Nilambar Mishra in the morning of 22-2-1976. It has been alleged that respondent 1 had also taken away a box containing certain valuables. When the appellant came to know about this incident, he asked his brother Nilambar Mishra to file a complaint against his father-in-law, i.e. respondent 2 and as per his direction Nilambar Mishra filed a complaint before the Chief Judicial Magistrate, Saharsa, on 23-2-1976 against respondent 2. Eventually a search warrant was issued by that court for recovery of respondent 1 and her son who were subsequently produced by respondent 2 before Shri B.K. Pandit, Judicial Magistrate, Saharasa, on 15-6-1976. The learned Magistrate, however, allowed both of them to live with respondent 2 in accordance with the wishes of respondent 1. It has been alleged that respondent 1 has never lived with the appellant since 22-2-1976 and all attempts of the appellant to persuade her to lead a peaceful conjugal life with him has failed and thus the appellant has been deprived of the company of his wife for more than two years before the filing of the petition u/s 10 of the Act. Even after the institution of the aforesaid criminal case, the appellant tried to bring respondent 1 to his village home/place of posting from Katihar and with this intention he went to the place of respondent 2, but he was not allowed to stay by respondent 2. On the other hand, he was abused and removed from there by both the respondents with intent to defame and dishonour him and this conduct of the respondents caused serious mental injury to him. It has been asserted by the appellant that respondent 1 has deserted him without any reasonable cause.
5. Both the respondents filed a joint written statement in which they denied all the allegations made by the appellant in his petition under Section 10 of the Act. The factum of the marriage and the birth of a son were, however, admitted as alleged by the appellant. It was, however, stated by them that respondent 1 started living with respondent 2 only after the institution of the aforesaid criminal case against respondent 2, which according to them, was instituted with false allegations. It was also stated that the life and prestige of respondent 1 were in danger. It was further stated therein that respondent 1 had got best of regards, love and affection for her husband and has always been behaving with him like a loyal and faithful wife. It has also been stated that Bidagari of respondent 1 was performed a number of times when she had occasions to live in his Sasural with her husband. It has also been stated in the written statement that the appellant, who was working as a Junior Engineer in the Irrigation Department and was posted at Parbata at the relevant time, had picked up bad company and was addicted to liquor. It was also stated that he was earning good amount of money by foul means and for these reasons he did not like to keep respondent 1 with him. It was alleged that he had no responsible sense to maintain conjugal fidelity and on account of his callous behaviour respondent 1 was staying with her father. It was also alleged that the appellant had on several occasions visited Katihar where he had openly defamed and misbehaved with respondent 2, before his students as well as the general public.
6. It, however, appears that after filing the written statement, the respondents ceased to take any interest in the case. It fact, respondent 1 did not appear in court even when she was called by the court (District Judge) for making endeavour for bringing reconciliation between the husband and the wife which duty has been assigned on the court under Sub-section (2) of Section 23 of the Act. Indeed the court granted a number of adjournments for the purpose but she did not appear before the court and ultimately the court had to give up its endeavour, as it was not possible to bring reconciliation in her absence. Since the respondents did not appear in court after the filing of the written statement, and their learned Advocate made an endorsement on the order sheet that he had no instruction from them to proceed in the matter, the court had no option but to proceed ex parte.
7. In support of his case, the appellant examined himself as A.W. 1. He, however, was not cross-examined, as the learned Advocate for the respondents refused to cross-examine him. No other witness was examined on behalf of the appellant.
8. Although the appellant supported his case on oath, the learned District Judge refused to act on his evidence, as there was no corroboration. The view of the learned District Judge was that in a matrimonial proceeding the petitioner has to prove his case beyond all reasonable doubt and further that the evidence of a spouse who charges the other spouse with a material (marital?) offence, should be corroborated. He felt that it was the duty of the Court to make strict enquiry into such a matter. Since there was no evidence on the record to corroborate the petitioner, the learned District Judge arrived at the conclusion that the appellant had failed to prove that respondent 1 was guilty of desertion or cruelty and accordingly he dismissed his petition under Section 10 of the Act. The submission of the learned counsel for the appellant is that the learned District Judge had a misconception about the standard of proof required in such a case and it is this misconception which has influenced his judgment in the present case.
9. The standard of proof which is required in a matrimonial proceeding under the Hindu Marriage Act has been considered by the Supreme Court in AIR 1975 SC 1534 (Dr. N.G. Dastane v. Mrs. S. Dastane). It is true that in some of the earlier decisions it was held that in a matrimonial proceeding, the Court has to be satisfied beyond all reasonable doubt or shadow of doubt and that only after such satisfaction, it could pass a decree either for judicial separation or for divorce. But this view did not find favour with the highest Court of the land in the case of Dr. Dastane (Supra). The Court has clarified the position with regard to the standards of proof required in such matters, and it is the principle laid down in this decision which holds the field in the matter of standard of proof since 1975. The following observations of the Supreme Court in this decision have finally settled the principle in this regard:
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact as a prudent man, so that court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : 'the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue'. Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191 at P. 210; or as said by Lord Denning, 'the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. Blyth v. Blyth, (1966) 1 All ER 524 at P. 536'. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.
25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.
26. Neither Section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is 'satisfied' on matters mentioned in Clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word "satisfied" must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt". Section 23 does not alter the standard of proof in civil cases."
10. So, the legal position which emerges is that the matrimonial proceedings under the Hindu Marriage Act, being essentially of a civil nature, have to be decided on preponderance of probabilities and the Court is not required to be satisfied beyond reasonable doubt as is required in a criminal trial. In the present case, the position is that the respondents absented themselves after the filing of the written statement and did not appear to contest at the time of hearing. Consequently, the appellant was not cross-examined nor any evidence was led on their behalf. So, there was not much scope for balancing the evidence of the appellant for determining as to whose case was more probable and true. The Court had to decide the matter on the basis of the ex parte evidence of the appellant which stood unrebutted. Ordinarily the Court should accept such evidence unless it is so absurd or improbable that no reasonable man would accept it as true. In a case like this when the respondents do not choose to contest the claim of the appellant either by cross-examining him or by adducing evidence on their-behalf, it would not be proper to insist upon corroboration. On a perusal of the evidence of the appellant, it appears to me that there is nothing inherently absurd, improbable or unbelievable therein for which the Court could have considered it necessary to insist on corroboration. Of course, in case of ex parte evidence, more particularly, in a matrimonial proceeding, the Court should, as a general rule, question the witness to elicit the truth but it cannot refuse to act on the ex parte evidence on the simple ground that there is no corroborative evidence where there is no intrinsic infirmity or improbability therein. In the instant case the learned District Judge failed in his duty to question the appellant and instead refused to act on his evidence simply because of the absence of any corroborative evidence. It is not his stand that the evidence of the appellant is per se unacceptable for any reason. In my opinion, the learned District Judge was not justified on insisting on corroboration when he did not find anything inherently improbable or unbelievable in his evidence. In such a situation, the Court should have proceeded to examine his evidence with a view to find out as to whether it was sufficient to make out a case for judicial separation.
11. On an examination of the evidence of the appellant the following facts emerge :
(i) Respondent 1 was the youngest daughter of her father respondent 2, who had no son, and that she was completely under his influence.
(ii) Respondent 2 wanted to humiliate the appellant and his family members and with that end in view he did not allow respondent 1 to live in her husband's home.
(iii) The appellant was always anxious to bring his wife to his house and to lead conjugal life with her and with this end in view he had sent several communications to the respondents for the purpose, but his efforts never succeeded and, on the contrary, he was hurled with abuses by the respondents.
(iv) Somehow the appellant could manage to persuade the mother of respondent 1 to allow her to go with him to his house when he went to their place on 15-2-1976 and on that very day he took respondent 1 and her son to his village home at Garhaiya. The appellant, however, left the place on the following morning, i.e. in the morning of 16-2-1976 for joining his duties as Junior Engineer. But during his absence respondent 2 came to his place on the pretext of meeting his daughter on 21-2-1976 and abducted respondent 1 as well as her son in the night on 21-2-1976. It is true that nobody saw them going away, but the fact remains that they were not found in the house on the following morning and the appellant had to get a complaint filed by his younger brother Nilambar Mishra against respondent 2 for abducting respondent 1 and her son from his house.
(v) Even thereafter, the appellant once again went to Katihar to bring respondent 1 and her son, but he could not succeed in bringing them, as he was not allowed to stay in the house by respondent 2. Not only that; he was abused and defamed by both the respondents.
(vi) Lastly, the respondent 1 is not living with him since after 22-2-1976 and all the efforts of the appellant to bring her for leading a conjugal life have failed.
12. There appears to be no reason for not accepting the evidence of the appellant on the facts stated above, when the same stands unrebutted and no part of it is impossible or improbable.
13. It is true that the learned District Judge has held that the evidence of the appellant with regard to the abduction of respondent 1 by respondent 2 is based on hearsay, as he was not present in the house when the alleged abduction is said to have taken place, but, on that account his evidence regarding the abduction cannot be rejected in toto as has been done by the learned District Judge, as the glaring fact was that respondent 1 and her son were found missing from the house of the appellant and the appellant was quite competent to depose in this regard. In the present case, it is not necessary to record any finding as to the truth or otherwise of the allegation regarding abduction. This circumstance has been used only to show that respondent 1 left the house of the appellant without his consent and even without his knowledge and since then she has been staying with her father (respondent 2) at Katihar. The fact that she is staying with her father since after the institution of the criminal case has been admitted by both the respondents in their written statement. In fact, it is the undisputed position that after the issuance of a search warrant, respondent 2 produced respondent 1 along with her son from his house in the Court of Sriri B.K. Pandit, Judicial Magistrate, Saharsa, on 15-6-1976 and on her request the learned Magistrate allowed her to live with her father. This circumstance is sufficient to indicate that respondent 1 was living with her father even before 15-6-1976 and further that she refused to go to her husband's place and instead went to her father's place.
14. The main ground taken by the appellant for the relief claimed by him is desertion. The term 'desertion' has not been defined under the Act or under any other Code. It has, however, been settled by a series of decisions that the essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. Indeed, desertion is a matter of inference which has to be drawn from the facts and circumstances of a particular case. There are two important elements of desertion -- (i) factum of separation and (ii) the intention to bring cohabitation permanently to an end, i.e. expulsive conduct manifesting animus deserendi.
15. In the present case, the factum of separation is an undisputed fact. It has been admitted in the written statement by the respondent that respondent 1 is living at her father's place since after the institution of the criminal case on 23-2-1976. So, the first requirement of 'desertion' is fully established. It is the second element which needs consideration. The intention to bring cohabitation permanently to an end is a subjective matter and can be determined only in the background of the circumstances of the case. The appellant has given evidence to show that he made efforts a number of times to bring respondent 1 to live with him, but the efforts did not succeed, as respondent 1 as well as respondent 2 refused to oblige him. Then, it has also come in his evidence that after the B.A. examinations of respondent 1 were over, the appellant went to the house of respondent 2 at Katihar on 15-2-1976 with an intention to bring his wife and son to live with him. Respondent 2 was, however, away from the house at that time and the appellant succeeded in persuading his mother-in-law to allow his wife and son to go with him and, ultimately, he brought the respondent 1 and her son to his native home on the same day. The appellant himself could not live in his native house for long, as he had to join his duties and, so, he left the place on 16-2-1976. Respondent 1 and her son were thereafter found missing from the house on 22-2-1976 and the allegation is that respondent 2 had come there on 21-2-1976 and had succeeded in abducting respondent 1 and her son for which a criminal case, as stated above, was instituted by the brother of the appellant at the latter's instance on 23-2-1976. Then, as stated above, after the issuance of a search warrant by the Court, respondent 2 produced respondent 1 along with her son before the Judicial Magistrate of Saharsa on 15-6-1976 and on her request she was allowed by the learned Magistrate to live with her father. Thus, it is apparent that she refused to live with the appellant and preferred to live with her father, evidently, at the cost of her marital relationship. This circumstance by itself lends weight to the evidence of the appellant that she was completely under the influence of her father and was not prepared to live with her husband. It cannot be said that she did not know at that time that this conduct of hers could disrupt her marriage, as this would deprive her husband of her society and would thereby cause mental and physical harm to him. This conduct of hers assumes importance in the instant case as the allegation of the husband was that she had been abducted from his house by her father and she was produced in Court after the issuance of a search warrant at the instance of her husband. It needs no saying that the obligation of the wife towards her husband is much greater than that towards her father after she is married. But, in the present case, respondent 1 showed no respect for her marital obligation towards her husband and preferred to live with her father, obviously at the risk of causing mental agony to her husband and disruption of her marriage. In spite of all these, and ignoring the probable consequences of her act, the appellant once again went to the house of respondent 2 at Katihar with intent to bring his wife and son, but respondent 2 did not allow him Co stay in his house and, in fact, he as well as respondent 1 abused him publicly.
16. Indeed, respondent 1 appears to have no respect for her husband which would be evident from her statements made in paras 18 and 19 of her written statement. It has been stated by her that the appellant was addicted to liquor and had picked up a bad company at Parbatta. Not only that, she has further stated that he was earning a very good amount of money by foul means. These utterances, undoubtedly, show not only her disregard but also a sense of hatred for the husband. She knew full well that her husband was in Government service and was liable to be dismissed therefrom if the accusations made by her were found to be true. Normally, such an accusation by wife is likely to attract the attention of the public as well as the Government and an enquiry could be instituted against him on the basis of her accusations alone. At any rate, such accusations were quite likely to upset the mental equilibrium of the husband. Evidently, such accusations could be made only when the wife is determined to disrupt the marital ties and separate from him permanently. It is really surprising as to how the learned District Judge felt that these circumstances simply showed incompatibility of temperament and no more.
17. Then, as stated above, she did not appear before the learned District Judge when he had directed her to appear before him for making an endeavour for reconciliation although the husband appeared before him on almost all the dates fixed for the purpose. This conduct of the wife may indicate that she was not interested in reconciliation and had no intention to restart her cohabitation with her husband although the latter showed his eagerness for it by appearing before the District Judge when he called him for reconciliation. In case she had any genuine grievance against the husband, she could have placed the same before the District Judge who, in his turn, would have tried to sort it out. So, it is apparent from her conduct that she was not willing to resume cohabitation and was not interested in restoration of her conjugal life. This may also indicate that she had abandoned her husband for good.
18. From the discussions made above, it is apparent that respondent 1 had separated from her husband with intent to bring cohabitation permanently to end. Her conduct, as discussed above, clearly manifested animus deserendi.
19. Now the question arises as to whether respondent 1 had a reasonable cause for living at her father's place and not living at the place of her husband. She has given an explanation for living with her father in para 19 of the written statement which is as follows:
"19. That the petitioner (appellant) is addicted to liquor and has association with men of bad character and hence he does not like to keep the opposite party 1 (respondent 1) with him and has no responsible sense to maintain conjugal fidelity and due to callous behaviour of the petitioner the opposite party 1 is staying with her father the only asylum for the ill-fated lady (opposite party 1) and her husband turned to be a traitor."
20. So, the reason given by her for not living with her husband is that he is addicted to liquor and has a bad company for which he does not like to keep his wife with him. It has further been stated that he has no responsible sense to maintain conjugal fidelity and on account of his callous behaviour respondent 1 is staying with her father. There is, however, no evidence to prove these allegations. As said above, even respondent 1 did not come to the witness box to prove all these. In the absence of any evidence on the record on behalf of the respondents, this Court has no option but to hold that the allegations made in paras 18 and 19 of the written statement are unfounded.
21. Even though there is no evidence to prove the aforesaid allegations, the learned District Judge has observed :
"It is obvious that she has been compelled to do so only on account of the fact that the relationship between her husband and her father has become strained due to the filing of the said criminal case on the wrong stand taken by the petitioner."
I wonder how in the absence of any evidence, the learned District Judge could come to such a conclusion. To crown all, his observation that the stand of the appellant in the criminal case was wrong is apparently his own imagination which is not based on any material on the record. In fact, such a case was not made out by the respondents even in their written statement. To say the least, the learned District Judge should not have made any observation regarding the criminal case when the case was pending before another Court.
22. In any event, the criminal case was not instituted against respondent 1 and it was too much for a wife to say that she would not live with her husband simply because her husband had instituted a criminal case against her father. As said above, her marital relationship with her husband was more important than her relationship with her father. The mere institution of a criminal case like that stated above against the father of the wife, would not, in my opinion, give a reasonable cause to her to abandon her marital relationship and that also for such a long period. It would be evident from the record that the present petition under Section 10 of the Act was filed by the husband after more than two and a half years of the institution of the criminal case and during this entire period respondent 1 remained away from him in spite of his attempts to bring her to his home.
23. Thus, it is apparent that the respondent 1 had left the home of her husband and is living away from him without any reasonable cause and the circumstances referred to above indicate that she has abandoned her husband permanently without his consent. Indeed, the marriage in question has broken down permanently and the situation has reached such a stage which can be said to be 'irretrievable'. The Law Commission in its 71st Report on the Hindu Marriage Act, 1955 has made the following observation regarding 'irretrievable breakdown of the marriage' which by itself has been recognised by the Court as a good ground for divorce :
"Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage --'breakdown' -- and if it continues for a fairly long period, it would indicate destruction of the essence of marriage -- 'irretrievable breakdown'."
24. In the present case, it is established by the evidence on the record, that the appellant has been deprived of the company of his wife for no fault of his for over 2 1/2 years before the presentation of the present petition under Section 10 and, as observed by the Law Commission, living apart is a symbol indicating the disruption of the essence of marriage and its long continuance would indicate disruption (destruction?) of the marriage itself. In my opinion, there has been irretrievable breakdown of the marriage and there can be no sense in allowing the marriage to survive when the marriage itself has lost its essence for both the spouses.
25. From the discussions made above, it is clear that it was a fit case in which the petition of the appellant under Section 10 of the Hindu Marriage Act, 1955 should have been allowed and it is, accordingly, allowed and a decree for judicial separation is granted to the appellant. The appeal is, therefore, allowed and the judgment and decree of the learned District Judge are set aside. But, since the respondents have not appeared to contest the appeal, there will be no order as to costs.
prabhakar singh
(Expert) 03 November 2011
And Mr.Shah has done it.Be thankful to him.
Shonee Kapoor
(Expert) 03 November 2011
:-)
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Debajit
(Querist) 04 November 2011
Shailesh Sir, I can't thank you enough for this. You have not only provided the AIR citation but have taken the trouble to list the judgement as well. Thank you so much.
