Manindra Mohan Shrivastava, J.
This appeal is directed against impugned judgment and decree dated 08.08.2014 passed by Family Court, Kawardha, District Kabirdham (CG), by which learned Family Court has dismissed appellant's application for grant of decree of divorce.
2. An application under Section 13 of the Hindu Marriage Act was filed by the appellant against respondent/husband before the Family Court Kabirdham praying for decree of divorce on the pleadings inter alia that appellant was married to respondent on 1st of July, 2002 according to Hindu rites and customs. It was further pleaded that on 23.11.2011, respondent/husband was taken into custody by the Police on the allegation of commission of murder of one Bhavini Sahu and offence has been registered under Section 302 IPC and trial is pending. It was further pleaded that after institution of criminal case appellant came to know that the respondent had been maintaining illicit relation with the deceased Bhavini Sahu and from their illicit relation a girl child was born who is now 11 years of age. It was further pleaded that later on the appellant came to know that against respondent number of criminal cases have been registered and pending before the Court in which he is an accused. The appellant pleaded that after having come to know that her husband has been arrested and is facing criminal case, the appellant is suffering from serious mental agony and is adversely affecting her reputation in public office. Respondent, it was pleaded, is a person of criminal antecedents whereas appellant is government servant and is occupying a high post in public service and because of the criminal activities of the respondent, the appellant is suffering mental agony and this has adversely affected her reputation in the society. Attempts have been made to implead her also in those criminal cases and she may face adverse proceedings in her employment and this may further adversely affect her minor daughter. It is also pleaded that the criminal activities of the respondent has also caused apprehension of life and limb of the appellant. The appellant further pleaded that, later on, appellant came to know that the respondent/husband, has been taking recourse to extra legal methods to collect money in her name which has caused serious mental tension and she is not keeping well. On such pleadings of cruelty and respondent maintaining illicit relation, prayer for grant of decree of divorce was made.
3. The respondent denied the allegations made in the application. Respondent denied that he had any illicit relation with Bhavini Sahu and also denied that he committed any offence. All the allegations were denied.
4. On the basis of the pleadings of the parties learned Family Court framed as many as six issues which are as below.
5. The learned Family Court framed three important issues. Firstly, as to whether the respondent entered into marriage with the appellant by practicing fraud; Secondly, whether the respondent was maintaining illicit relation with Bhavini Sahu and a daughter was born with their illicit relation and thirdly, whether the appellant is suffering from mental agony because of the criminal act of the respondent which is continuously affecting her marital life as well as employment and because of that, it has become impossible for the appellant to continue marital relationship with the respondent.
6. After allowing the parties to lead oral and documentary evidence, learned Family Court came to the conclusion that the appellant has failed to prove any of the grounds urged by her in the application and dismissed the application.
7. Assailing legality and validity of the impugned judgment and decree passed by the Family Court, learned counsel for the appellant contended before us that the appellant not only proved that the respondent have been maintaining any illicit relation with one Bhavini Sahu but has also led specific evidence with regard to initiation of the criminal proceedings against respondent on the allegation of commission of offence of murder of that Bhavini Sahu. He would also submit that the appellant clearly stated that because of the criminal activities of the respondent, the appellant is suffering mental agony since long and many a times she has found herself in an embarrassing situation where it has been discovered that respondent had been extracting money from people in the name of the appellant as she is occupying senior executive position in the government service. Relying upon the decision of the Delhi High Court in the case of Swati Vs. Arvind Mudgal decided on 29.01.2015 in Mat. App.5/2013 and also in the case of Rajasthan High Court in Smt. Mayadevi Vs. Jagdish Prasad, Civil Appeal No.877 of 2007 (2007 AIR SCW 1803), learned counsel for the appellant would argue that the institution of criminal case for commission of a heinous offence of murder which has resulted into conviction, the appellant has suffered serious mental agony which entitles her to grant of decree of divorce on the ground of cruelty. In support of this submission, learned counsel for the appellant is also relied upon in decisions of this Court in the cases of Vijay Kumar Gupta Vs. Smt. Kiran Bala in FAM No.138 of 2012 decided on 29.11.2019; Smt. Prisha Verma Vs. Amit Singh in FAM No.132 of 2017 decided on 05.07.2018; Prabir Kumar Das Vs. Smt. Papiya Das in FAM No.97 of 2014, decided on 21.01.2018 and also Anidi Mukharjee Vs. Shraboni in FAM No.129 of 2016, decided on 15.09.2016.
8. On the other hand, learned counsel for the respondent would submit that the appellant is presently occupying a senior position in an executive post of the government and only on the ground that an offence was registered, the appellant somehow wants to get rid of the marital life with the respondent. He would argue that at the time, when the application was made, the allegation of cruelty was based only on allegation that against the husband offence punishable under Section 302 IPC has been registered but no conviction had taken place. He would further argue that even though, the bald allegations have been levelled that the respondent being involved in various criminal activities, no evidence has been led by the appellant to substantiate that in addition to registration of offence under Section 302 IPC, other criminal cases have also been registered against respondent. The allegation of extracting money from others in the name of appellant is not supported from any clinching evidence and only vague pleadings in that regard have been made.
Learned counsel for the respondent further argues that conviction has been ordered only subsequently and not at the time of filing of the application and even if, there would have been conviction, it could not be made a ground to grant decree because no such ground has been provided under Hindu Marriage Act. According to him at that time, when Hindu Marriage Act was enacted there were other legislation in force which provided conviction as one of the grounds for divorce but in the Hindu Marriage Act, no such provision has been made, therefore, on this ground, no decree can be granted. Learned counsel for respondent also contended that the conviction has not become final because against the judgment of conviction an appeal has been preferred before this Court which has been admitted and pending consideration therefore, in view of (2007) 3 SCC 136, Maya Devi (Smt.) Vs. Jagdish Prasad, decree on the ground of conviction could not be granted.
9. As far as allegation of maintaining illicit relation with Bhavini Sahu is concerned, learned counsel for respondent would argue that this allegation, is also not supported from any clinching evidence. The learned Family Court has scrutinized the evidence on record and has come to the conclusion that except bald allegation, there is no specific evidence that appellant had voluntary sexual intercourse with said Bhavini Sahu after solemnization of marriage with the appellant. Mere statement of maintaining illicit relation is not sufficient to make out the case for grant of decree of divorce on the ground stated in Section 13 (1) (i) of the Hindu Marriage Act.
10. We have Heard learned counsel for the parties and perused the material available on record.
11. The appellant/wife sought decree of divorce on two grounds:
(a) That, after solemnization of marriage, the respondent had voluntary sexual intercourse with Bhavini Sahu and out of this relation, a girl child was born who was 11 years of age as on the date of the filing of divorce application.
(b) That, the respondent has treated the appellant with cruelty inasmuch as his criminal activities including involvement in murder of Bhavini Sahu has caused mental agony and further his act of extracting money from others in the name of the appellant has resulted in serious mental agony and has lowered self esteem of the appellant.
12. Though an allegation was made from the pleadings of the appellant which also reflected that an allegation was made that respondent entered into marriage by practicing fraud on her and keeping her in dark with regard to various material aspects, there is no relief sought for annulment of marriage but the appellant has only prayed for grant of decree of divorce.
13. As far as cruelty aspect is concerned, the pleadings, as made in the application filed before the Family Court, are that because of the involvement of the respondent in criminal activities and registration of a criminal case for alleged commission of offence punishable under Section 302 IPC, the appellant has suffered mental agony, harassment and embarrassment. It is not in dispute that the till the date of filing of the application, the status of the criminal case was that offence under Section 302 IPC was registered against the respondent and trial was pending but no conviction had taken place. The alleged cruelty was based only on registration of a criminal case and not on the basis that the respondent was convicted for commission of offence. Whether the conviction of the respondent has resulted in cruelty, will arise for consideration only after conviction. The alleged ground of the cruelty as stated in the application is not based on conviction but only on the basis of registration of criminal case. State of mental agony, his degree and impact of conviction are all aspects of specific pleading and evidence. Only on a pleading of conviction, without specific pleading and evidence as to how and in what manner it has resulted in mental agony, a ground of cruelty may not be made out. In the present case, the mental state of agony is said to be created only on the basis of registration of a criminal case under Section 302 IPC and not on the basis of conviction. Various judgments which have been cited before us, including the decision of the Delhi High Court in case of Swati Vs. Arvind Mugdal (Supra), also that of the High Court of Rajasthan in Smt. Mayadevi Vs. Jagdish Prasad (Supra) and are all cases where application for grant of decree of divorce was filed after conviction and not the stage where criminal case was pending. True it is that during the pendency of the case now, the respondent stands convicted under Section 302 IPC. But then only on this ground decree cannot be granted because in none of the provisions contained in Section 13 of the Hindu Marriage Act conviction alone, without anything more, has been provided as a ground for seeking decree of divorce by one spouse against the other spouse, who has been convicted. It is relevant to taken into consideration that at the time when Hindu Marriage Act was enacted under Act number 25 of 1995, there were at least two legislations dealing with divorce. The Parsi Marriage and Divorce Act, 1936 contained specific ground of conviction to seek decree of divorce under Section 32 (f). Under that provision, any married person may sue for divorce on the ground that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code provided that the divorce shall not be not granted on this ground unless the defendant has, prior to the filing of the suit, undergone at least one year's imprisonment out of the said period.
A provision has also been made in the Special Marriage Act providing for grant of decree of divorce on the ground of conviction in Section 27(1) (c) it has been provided that a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code.
14. It would thus be seen that even before enactment of Hindu Marriage Act, at least two legislations provided for divorce on the ground of conviction of the other spouse. But while enacting Hindu Marriage Act, the legislature, in his wisdom, did not include conviction of the other spouse as one of the grounds for grant of decree of divorce. A provision for divorce on the ground of conviction is also incorporated in the Dissolution of Muslim Marriages Act, 1939 which is legislation prior to the enactment of the Hindu Marriage Act 1955. In Section 2 (iii) thereof it is provided that a married woman shall be entitled to obtain a decree for dissolution of her marriage on the ground that the husband has been sentenced to imprisonment for a period of seven years or upwards.
15. From the examination of statutory scheme of various acts providing for grounds for grant of decree of divorce, it is clearly discernible that as and when legislation intended to include conviction of the other spouse as a ground for decree of divorce, it was specifically incorporated in the legislation itself. As has been observed herein above, at the time of enactment of Hindu Marriage Act, there were other legislations which were in force which provided for grant of decree of divorce on the ground of conviction but then no such ground was incorporated in the Hindu Marriage Act. Therefore, we are of the view that in the absence of specific provision contained in the Hindu Marriage Act, no decree for divorce can be granted only on the ground of conviction of the other spouse.
16. However, judicially evolved principles as has been laid down by the different high courts are that in appropriate cases, conviction of the other spouse may give rise to mental agony and it may be treated as a case of mental cruelty. These principles will apply only in a case where a decree of divorce is sought after conviction with proper pleadings and evidence establishing before the Court that the conviction in the circumstances of the given case has resulted in serious mental agony, embarrassment and harassment of the aggrieved spouse. For this purpose specific evidence is also required to be led.
17. In the present case, at the time when the application was filed, no conviction had taken place and only a criminal case was registered. We also find that except brining in evidence, the fact of registration of criminal case for alleged commission of murder by respondent, no other criminal case has been found registered against the respondent. No evidence in this regard has been led by the appellant to prove that apart from registration of case of commission of offence under Section 302 IPC, many other criminal cases were registered against the respondent. As to what would be the effect and impact of a situation where one of the spouse is a habitual offender and undergoing trial on allegation of commission of several offence, need not be gone into the present case because herein the only evidence is of registration of only one criminal case and no other cases.
Though it has been pleaded and even in the evidence the appellant has stated that she came to know that the respondent is extracting money from others in the name of the appellant, the pleadings and evidence are as vague as it could be. No specific evidence in this regard has been led by the appellant as to when and from whom, and how much money was demanded and in what manner the respondent sought to take undue advantage of the official position of the appellant.
18. In view of the above consideration, we have to hold that the appellant has failed to prove the case of cruelty on the ground of registration of criminal case against her husband on the basis of which, she moved application for grant of decree of divorce.
19. However, as far as the other ground that after solemnization of marriage with respondent, respondent had entered into sexual relations with the third party, are find that there is not only specific pleading but also evidence led by the appellant.
20. In the plaint itself, specific pleadings have been made by the appellant in paragraph 3 that after registration of criminal case, on the allegation that the respondent committed murder of one Bhavini Sahu the appellant came to know that respondent was maintaining illicit relationship with that Bhavini Sahu and out of their illicit relation, a girl child was also born. Though this has been denied by the respondent, from the evidence of the appellant we find that clinching evidence in this rega
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rd has not only been made but what has been extracted in the cross-examination proves her case. In her affidavit under Order 18 Rule 4 CPC in paragraph 4, she clearly stated that the respondent has been maintaining illicit relations with Bhavini Sahu. In her cross-examination a suggestion has been given which has been admitted that the respondent had illicit relation with Bhavini Sahu which came to the knowledge of the appellant only after registration of criminal case for commission of offence under Section 302 IPC. From such admission on suggestion given to the witness, the evidence of the appellant that the respondent was maintaining illicit relations is proved. The evidence of other witness of the appellant Indraman Lahre also it is borne out that respondent was maintaining illicit relation, this is what this witness has stated in his affidavit under Order 18 Rule 4 CPC. The evidence of this witness has not been controverted in cross-examination as nothing has been extracted in the cross-examination, therefore, the evidence of this witness on this aspect goes unconverted. 21. We therefore, have no hesitation to hold that as far as the ground of respondent having sexual intercourse with another lady after solemnization of the marriage with the appellant is clearly made out. 22. In the result though we hold that the appellant could not establish cruelty as one of the ground for seeking decree of divorce, appellant is entitled to decree of divorce on the ground enumerated in Section 13(1) (i) that the respondent had illicit relation and sexual relation with Bhavini Sahu even after solemnization of marriage. In the result this appeal is allowed. Impugned judgment and decree is set aside and the appellant's application for grant of decree of divorce is allowed on the ground enumerated in Section 13(1) (i) of the Hindu Marriage Act. Let appellate decree be accordingly drawn.