R.S. Jha, J. - This appeal has been filed by the appellant being aggrieved by judgment dated 12-8-2015 passed by Principal Judge, Family Court, District Satna in H.M. Case No. 525/2014 whereby the application under section 13 of the Hindu Marriage Act, filed by the respondent for divorce has been allowed on the ground of adultery and cruelty.
2. The brief facts leading to the filing of the appeal are that the appellant and respondent were married as per Hindu rights on 12-5-2007 at Maihar and thereafter, she went to Bhopal for pursuing her computer course and returned in December, 2007. On 1-1-2008 when the respondent was on duty at Katni the appellant ran away with one Imtiaz Khan and was discovered along with him at Dashmesh Hotel, Satna where after her maternal uncle Ashok Soni and Brijesh Soni were informed who reached the spot. Subsequently on 2-1-2008 the respondent was also informed of the fact that the appellant had run away on her own and the matter was also reported to the Police Station on 2-1-2008 and to the Superintendent of Police on 3-1-2008. On account of the incident that occurred at Dashmesh Hotel, a case was also registered against the said Imtiaz Khan at Police Station Nagod on 11-4-2008 under section 456 of Indian Penal Code. On 2-1-2008 the appellant lodged a report against the respondent under sections 498-A. 323 and 325/34 of Indian Penal Code read with section 3/4 of the Dowry Prohibition Act, at Police Station, Nagod in which an enquiry was conducted by the S.D.O.P. Nagod who found that no offence had been committed and submitted a final report to the Court in that regard on 20-10-2008 and in the said report it was suggested that a case under sections 334 and 335 of Indian Penal Code, be registered against the appellant''s maternal uncles, Ashok Soni and Brijesh Soni for having used force against the appellant.
3. The appellant also filed an application under section 125 of Criminal Procedure Code, claiming maintenance before the Principal Judge, Family Court, Bhopal which was rejected by order dated 8-4-2009 on the ground that the appellant had failed to establish that she was staying away from her husband for sufficient reasons. The appellant had also filed a case under section 12 of the Protection of Women from Domestic Violence Act, 2005, which was dismissed by the Chief Judicial Magistrate, Bhopal on 30-4-2010 and the appeal filed by the appellant against the dismissal of this case has also been dismissed by order dated 31-10-2013 by the Thirteenth Additional Sessions Judge, Bhopal. On the basis of the aforesaid allegations the respondent filed an application under section 13 of the Hindu Marriage Act, seeking divorce.
4. Initially the case for divorce filed by the respondent was allowed ex parte by order dated 23-11-2010 as the appellant failed to appear before the Court. However, the said ex parte decree of divorce was set aside in appeal and the matter was remitted back to the Court for re-adjudication after giving due opportunity of hearing to the appellant where after the impugned judgment and decree has been passed by the Court below allowing the application seeking divorce filed by the respondent. It is also brought on record by the respondent that after the application for divorce was allowed ex parte by the trial Court the respondent has entered into a second marriage with one Priyanka Soni on 29-6-2012 and has also been blessed with a daughter on 21-4-2013.
5. The learned counsel appearing for the appellant has assailed the order on the ground that the findings recorded by the Court below regarding adultery is perverse inasmuch as the Court below has failed to take note of the fact that the respondent did not file any case before the police authorities in respect of the fact that the appellant was found at hotel Dashmesh along with Imtiaz Khan. It is submitted that had such an incident occurred, the respondent would naturally have filed a police complaint and as he has not done so, the finding recorded by the Court below merely on oral evidence adduced by the respondent is perverse and unsustainable. It is also submitted that the appellant was subjected to physical abuse and demand of dowry by the respondent but the Court below has not taken into consideration the evidence adduced by the appellant in that regard and has thereby committed perversity. It is also stated that though a final report had been submitted by the S.D.O.P on the complaint filed at the instance of the appellant under section 498-A of the Indian Penal Code. However, subsequently on a complaint being filed by the appellant before the Judicial Magistrate First Class the matter has been re-opened and the Police has been directed to conduct an investigation which fact is evident from a perusal of the documents that had been filed by the respondent himself before the Court below along with which he had filed the order sheet of the Chief Judicial Magistrate, Satna dated 1-2-2012 passed in Case No. 552/2012. It is submitted that the impact of the aforesaid aspect has also not been considered by the Court below and hence the impugned judgment be set aside and the appeal be allowed.
6. The learned counsel for the respondent per contra submits that after marriage the appellant hardly stayed with the respondent for a few days and in fact has admittedly never stayed with the respondent after 2-1-2008. It is stated that on 1-1-2008 when the respondent was away on duty at Katni the appellant ran away from the house along with one Imitiaz Khan which fact was established by the witnesses of the village who saw the appellant leaving the village in a jeep. It is stated that the driver of the jeep has himself stated and affirmed the aforesaid aspect and it was he who informed the persons that the appellant along with Imtiaz Khan were staying at Dashmesh Hotel where after members of the respondent''s family reached the hotel and found the appellant with Imtiaz Khan in an objectionable position. It is stated that the maternal uncles of the appellant were informed immediately who reached the spot and beat up the appellant for her act and thereafter, the appellant was taken away by her maternal uncle and was handed over to her mother with whom she is staying since then. It is submitted that the respondent was also informed about the fact that the appellant had run away on 2-1-2008. It is stated that this adulterous act on the part of the appellant has duly been established by the witnesses whose statements have been analysed by the Courts below extensively and thereafter a finding has been recorded to the effect that the conduct of the appellant was adulterous.
7. The learned counsel for the respondent states that after the incident on 1-1-2008 for the first time the appellant lodged a report regarding demand of dowry against the respondent and his family members under section 498-A of the Indian Penal Code and also filed an application under section 12 of the Protection of Women From Domestic Violence Act, 2005, and under section 125 of the Criminal Procedure Code. It is stated that the application under section 125 of the Criminal Procedure Code was dismissed by the Court below on the ground that the appellant was staying away from the respondent on her own without any justifiable reason and the case under section 12 of the Protection of Women From Domestic Violence Act, 2005, was dismissed by the competent Court and the appeal against the same was also dismissed by recording a finding to the effect that the respondent or his family members had not committed any domestic violence upon the appellant. It is submitted that the appellant has also filed a case against the respondent under section 498-A of Indian Penal Code and therefore, lodging of repeated false cases against the respondent amounts to cruelty. It is submitted that the Courts below on the basis of the aforesaid facts regarding lodging of false cases against the respondent has recorded a finding of cruelty and has therefore, rightly allowed the application under section 13 of the Hindu Marriage Act granting divorce to the respondent which does not call for any interference.
8. Having heard the learned counsel for the parties and having perused the record of the appeal, we are of the considered opinion that the Courts below from Paragraphs 6 to paragraph 28 has extensively discussed the statements of Mithlesh Kumar Soni (PW1), Ramesh Soni (PW2), Purshottam Mishra (PW3), Ramdev Kushwaha (PW4) as well as the statements of Jyoti (DW1) i.e. the appellant, Kedar Patel (DW2) who is a resident of village of the maternal uncles of the appellant and Mira Soni (DW3) mother of the appellant and has thereafter recorded a finding in paragraphs 27 and 28 to the effect that the respondent has conclusively established, on the basis of the oral and documentary evidence available on record, that the appellant has run away with one Imtiaz Kahn on 1-1-2008 and was discovered at Hotel Dashmesh in Satna and therefore she has committed adultery; that the cases under section 125 of the Criminal Procedure Code, 1973 section 12 of the Protection of Women From Domestic Violence Act, 2005, and section 498-A of the Indian Penal Code read with other sections had been lodged by the appellant against the respondent and that the case under section 125 of the Criminal Procedure Code and section 12 of the Protection of Women From Domestic Violence Act, 2005, has dismissed by the competent Court by recording a finding in favour of the respondent. The Court has also held that in view of the aforesaid proceedings being initiated against the respondent by the appellant under section 125 of the Criminal Procedure Code and section 12 of the Protection of Women From Domestic Violence Act, 2005, which were found to be false and a case under section 498-A of Indian Penal Code filed by the appellant against the respondent and his family members the respondent had been subjected to cruelty by the appellant and has consequently granted a decree of divorce.
9. The Court below has also recorded a finding to the effect that though the parties were married on 12-5-2007, and the allegations regarding demand of dowry and cruelty have been made by the appellant before the Court below but admittedly and apparently no complaint or FIR was ever lodged by her against the respondent in this regard till 1-1-2008. The Court below has recorded a finding that the cases under section 498-A of the Indian Penal Code, 125 of Criminal Procedure Code and section 12 of the Protection of Women From Domestic Violence Act, 2005, was filed by the appellant against the respondent on 4-12-2008 and on 15-7-2008 i.e. after the incident of 1-1-2008 when the appellant ran away from the house of the respondent and was caught along with Imtiaz Khan at Hotel Dashmesh, Sagar.
10. We have carefully gone through the judgment of the Court below as well as the record of the case. On a perusal of the record, it is clear that after the marriage between the parties on 12-5-2007 the appellant stayed in the house of her in-laws till 21-6-2007 as the marriage ceremony of the sister of the respondent and sister-in-law of the appellant was to be performed and thereafter she went to the house of her parents. On the basis of the facts on record it is also clear that the appellant returned to the house of her in-laws on 1-12-2007 and that thereafter, the incident of her running away with Imtiaz Khan occurred on 1-1-2008. It is also apparent from the undisputed facts on record that on 1-1-2008 the appellant was on duty elsewhere and was not at home. It is also an undisputed fact and a concurrent finding that has been recorded by the Court below that since 1-1-2008 the parties have not stayed together as husband and wife.
11. From the aforesaid facts it is clear that the appellant, after her marriage on 12-5-2007, has hardly stayed with her in-laws for a period of two months. It is also an admitted fact that though the appellant has made allegations of demand of dowry and cruelty on non-fulfilment of the same since the day of her marriage on 12-5-2007, no complaint or report in that regard was filed by her and that the case under sections 498-A, 223 and 225/34 of Indian Penal Code and section 3/4 of the Dowry Prohibition Act were lodged by the appellant on 2-1-2008 after the incident of her eloping with Imtiaz Khan had occurred on 1-1-2008 and on the basis of which Crime No. 186/2008 was registered against Imtiaz Khan under section 456 of Indian Penal Code on the report lodged by maternal uncles of the appellant herself as well as the missing person report lodged by the father of the respondent. It is also an undisputed and admitted fact that the appellant had also filed a case under section 12 of the Protection of Women From Domestic Violence Act, 2005 and the Chief Judicial Magistrate, Bhopal, while dismissing the said application, has recorded a finding to the effect that the appellant had failed to establish her allegations of cruelly and domestic violence as well as the allegation of demand of dowry whereas the respondent had clearly demonstrated and established his contention that the appellant had eloped with Imtiaz Khan on 1-1 2008 and was caught in a compromising position in Dashmesh Hotel in the night thereof by the father and other persons of the respondent''s family as well as her two maternal uncle who had lodged a report against Imtiaz Khan in respect of the incident which was registered as Crime No. 186/2008 and that subsequent thereto the maternal uncles of the appellant had taken the appellant to her maternal house and handed her over to her mother Mira Soni and obtained a written acknowledgment in that regard which had also been filed and established before the Magistrate. The Magistrate, while dismissing the case under section 12 of the Protection of Women from Domestic Violence Act, 2005, has also taken note of the fact that the appellant, before the said Magistrate, had stated that she did not wish and had no desire to stay with the respondent. The Magistrate, after recording the aforesaid finding, had rejected the case of the appellant by stating that she had in fact eloped with Imtiaz Khan. The aforesaid finding of the Magistrate has been affirmed in Criminal Appeal No. 327/2010 decided on 31-10-2013 by the Third Additional Sessions Judge, Bhopal who has reiterated the finding recorded by the Magistrate.
12. It is also apparent from a perusal of the order dated 8-4-2009 passed by the Second Additional Principal Judge, Family Court, Bhopal in M.J.C. No. 434/2008, dismissing the application filed by the appellant under section 125 of the Criminal Procedure Code, that similar and identical finding, on the basis of the same documents, has also been recorded by the said Court while dismissing the appellant''s application with a further finding against the appellant to the effect that she is staying away from the respondent without any justifiable reason. It is also apparent and admitted fact that the appellant has also instituted cases against the respondent under section 498-A and other provisions of the Indian Penal Code. However, the current status of the same has not been informed to this Court by either of the parties.
13. From a perusal of the impugned judgment as well as the record of the case it has also been established in the present case that the incident regarding eloping of the appellant with Imtiaz Khan on 1-1-2008 has been duly established by the respondent on the basis of the statement of independent witnesses Purshottam Mishra (PW3) and Ramdev Kushwaha (PW4) as well as the statement of Ramesh Soni (PW2). In fact the independent witnesses Purshottam Mishra (PW3) and Ramdev Kushwaha (PW4) have clearly stated that on 1-1-2008 Ramayan was going on in the village and most of the residents of the village had collected there and that during the said ceremony the father of the respondent discovered that the appellant was missing and a hue and cry was raised in that regard, as a result of which several persons started searching for the appellant upon which one Mulchand Kushwaha informed Purshottam Mishra (PW3) and Ramdev Kushwaha (PW4) that the appellant had gone away in a hired jeep in which another boy was sitting and as the driver of the jeep was known to Mulchand Kushwaha and the mobile number of the said driver was known to him, he was contacted who informed them that he had dropped the boy and girl at Dashmesh Hotel pursuant to which they informed the maternal uncles of the appellant and thereafter rushed to Dashmesh Hotel whereupon the appellant was caught in a compromising position with Imtiaz Khan by the persons accompanying the father of the respondent as well as the maternal uncles of the appellant and that the maternal uncles were so agitated on their discovery that they beat up the appellant and also lodged a criminal case at Police Station Nagod which was registered as Crime No. 186/2008 against Imtiaz Khan whose PAN Card, driving license and photo was also discovered and were seized by the police authorities of Nagod Police Station.
14. On the basis of the aforesaid documents and evidence on record, specifically lodging of the report against Imtiaz Khan by the maternal uncles of the appellant, the Court below has recorded a finding against the appellant that she has committed adultery. It is also apparent from a perusal of the record that the appellant has not produced any witness who could dislodge the aforesaid allegation against her. It is pertinent to note that though her maternal uncles were the one who lodged the report against Imtiaz Khan and were the best persons to clarify the position, they have not been summoned as witnesses by the appellant nor have their statement been recorded in support of her claim.
15. In view of the aforesaid facts and circumstances, we are of the considered opinion that the finding regarding adultery on the part of the appellant has rightly been recorded by the Court below and does not deserve to be interfered with.
16. We are also of the considered opinion that the fact that the appellant lodged repeated false cases against the respondent, firstly under section 12 of the Protection of Women From Domestic Violence Act, 2005 section 125 of the Criminal Procedure Code and section 498-A of the Indian Penal Code, in which the appellant had sought to implicate as many as seven members of the respondent''s family, resulted in subjecting the respondent to mental cruelty and, therefore, he has rightly been granted a decree of divorce on that count by the Court below.
17. The view taken by us regarding mental cruelty on account of filing repeated cases against the respondent and his family members, find support from the decision of this Court rendered in the cases of Smt. Kavita v. Harish Raisen, First Appeal No. 214/2005 decided on 13-4-2006 and Anurag Jain v. Smt. Vandana Jain, First Appeal No. 186/2010 decided on 20-3-2012, wherein this Court has allowed the application seeking divorce filed by the husband on account of the fact that the wife had filed criminal cases against the husband and his family members under section 498-A, Indian Penal Code.
18. The law in this regard has also been laid down by the Supreme Court in the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal, 2012(4) M.P.L.J. (S.C.) 265 : (2012) 7 SCC 288, wherein the Supreme Court in paras 46 and 47 (Paras 34 and 35 of MPLJ) of the judgment has extensively considered the concept of mental cruelty and has held that lodging of criminal cases against the respondent amounts to mental cruelty.
19. The Supreme Court, in para-16 of the judgment, in the case of K. Shrinivas Rao v. D.A. Deepa, 2013(3) M.P.L.J. (S.C.) 567 : (2013) 5 SCC 226, has held that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings and filing repeated false complaint and cases in the Court against the spouse amongst other grounds, amounts to causing mental cruelty to the other spouse." Similar view has also been taken by the Supreme Court, in paras 43 and 44 of the judgment, in the case of Malathi Ravi, M. v. B.V. Ravi, M.D. 2015(1) M.P.L.J. (S.C.) 53 : (2014) 7 SCC 640, and it has been held that the conduct of prosecuting the husband by the wife in repeated Criminal cases amounts to mental cruelty.
20. In view of the aforesaid facts and circumstances of the case, we are of the considered opinion that as the allegations of adultery and cruelty are duly established, therefore, the finding regarding adultery and cruelty recorded by the Court below and the consequent decree of divorce granted to the respondent deserves to be and is hereby affirmed and is accordingly upheld.
21. We are also of the considered opinion that looking to the short period for which the parties have stayed together and the conduct of the appellant, she is not entitled to any other relief or claim or any other benefit from the respondent. The claim of the appellant for maintenance pendent lite is also unsustainable and is hereby rejected.
22. The appeal filed by the appellant is, accordingly, dismissed.
