Punjab-Haryana High Court
Amrit Pal Kaur vs Roshan Lal on 5 February, 2003
Equivalent citations: (2003)135PLR281
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. Smt. Amrit Pal Kaur (hereinafter referred to as 'the appellant-wife') wife of Roshan Lal (hereinafter referred to as 'the respondent-husband') has field the instant appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') against the judgment and decree passed by Additional District Judge, Faridkot, vide which the petition for divorce filed by the respondent-husband under Section 13 of the Act has been allowed and a decree of divorce has been passed on the ground of cruelty.
2. The brief facts of the case are that the marriage between the parties was solemnized in the year 1984. Two children were born from this wedlock, who are now aged about 11 years and 9 years. After 12 years of the marriage, the respondent-husband filed the instant divorce petition for dissolution of marriage between the parties on the ground that the appellant-wife is treating him with cruelty. In the petition, he alleged that after six months of the marriage, the appellant-wife started misbehaving with him, as she used to leave his house for her parents house without his permission. It was further alleged that she was not having any love and affection for him; she was not doing the house hold work properly; she was not preparing the tasty meals for him; and she used to refuse to bath his clothes and to prepare tea and meals for him. It was further alleged that she never performed her household duties and matrimonial relations properly. Whenever, he asked her to work as a household lady, she refused to work in insulting manner; and whenever any guest visited his house, she used to misbehave with him in presence of those guests. Due to her aforesaid behaviour, his life had become hell. It was further alleged by the respondent-husband that appellant-wife also did not care for the minor children. It was further alleged that about 20 days prior to the filing of the instant petition for divorce, the appellant-wife left her matrimonial house leaving both the minor children unattended and started living with her parents. He tried his best to bring her back with the intervention of the respectables of the village, but she refused to reside with him. It was also alleged that the appellant-wife threatened the respondent-husband that if he compelled her to join his company, she would commit suicide and would get his entire family implicated in a criminal case. On these allegations, the respondent-husband pleaded that it is not possible for him to live with the appellant-wife and her aforesaid behaviour amounts to cruelty and prayed for a decree of divorce.
3. Pursuant to the notice issued, the appellant-wife appeared and filed written statement and contested the aforesaid petition for divorce. She denied all the allegations and further pleaded that in fact the respondent-husband is in the habit of consuming liquor in day time as well as in the evening. He used to come back in the evening daily in a drunken condition and used to beat her mercilessly. It was also alleged that the respondent-husband is maintaining illicit relations with some bad character woman and when she objected to this uncalled behaviour, he used to beat her mercilessly. She further alleged that the respondent-husband is maltreating her without any sufficient cause just to get rid of her and to contact second marriage; and the instant petition for divorce has been filed with said object. She also stated that she was always ready and willing to live with her husband but he has to give up his bad habits. With these averments, she prayed for dismissal of the divorce petition filed by her husband.
4. In support of his petition, the respondent-husband examined three witnesses, namely PW. 1 Paramjit Singh, who was Ex-Sarpanch of Village Machhi Kalan, PW2 Inderjit Singh, a student, aged 12 years, who is son of his brother Roshan Lal and he himself appeared as PW3. On the other hand, the appellant-wife examined herself as RW1, her sister Veeran Rani as RW2, Labh Singh has RW3, Shamsher Singh alias Sharma as RW4, Kuldip Kumar Jain as RW5 and closed her evidence.
5. Learned Additional District Judge, after hearing the parties, allowed the divorce petition filed by the respondent-husband and passed the decree of divorce dissolving the marriage between the parties. Against the decree, the present appeal has been filed by the appellant-wife.
6. During the pendency of the appeal, the appellant-wife filed an application under Section 24 of the Act for grant of maintenance pendente lite and litigation expenses, as she was unable to maintain herself and was having no source of income. While hearing the said application, this Court referred the matter to the Permanent Lok Adalat of this Court for amicable reconciliation between the parties. The Lok Adalat tried its best to reconcile the matter, but it could not be reconciled due to the uncooperative behaviour of the respondent-husband as it clear from the orders dated 24.9.2001 and 11.10.2001 passed by the Permanent Lok Adalat of this Court.
7. Subsequently the aforesaid application for maintenance pendente lite and litigation expenses was allowed by this Court on 27.5.2002 and the appellant-wife was granted an amount of Rs. 1,000/- per month as maintenance pendente Iite from the date of filing of the application i.e., 3.4.2001 and litigation expenses of Rs.5,000/-. Respondent-husband, who is a tempo driver, was directed to pay arrears of maintenance within a period of two months. However, he did not comply with this order. Consequently the appellant-wife filed C.M. No.22545-CII of 2002 for striking off the defence of the respondent-husband, which was listed for hearing with the main appeal.
8. I have heard the arguments of learned counsel for the parties in the main appeal. as well as on the aforesaid application filed by the appellant-wife.
9. Learned counsel for the appellant-wife submitted that the learned Additional District Judge has wrongly passed the decree of divorce when the allegation of cruelty levelled by the respondent-husband have not been proved and established on record. The witness produced by the respondent-husband are neither trustworthy nor they have proved the facts, which constitute cruelty, on the basis of which marriage between the parties can be dissolved. He has further submitted that the learned Additional District Judge has decided the case without properly considering the evidence led by the parties and has wrongly observed that the appellant-wife has deserted the respondent-husband in the year 1995, which is totally contrary to the stand taken by the respondent-husband himself. Learned counsel for the appellant-wife further submitted that the appellant-wife, by her evidence, has categorically established on record that the, respondent-husband used to beat her after consuming liquor and the allegations levelled by him are false; the appellant-wife never refused to live with the respondent-husband and she was always ready and is still ready to live with him, but on the other hand the respondent-husband is not ready to take her to the matrimonial home. According to the learned counsel for the appellant-wife, the learned trial court wrongly came to the conclusion that the appellant-wife is intentionally refusing to join the company of the respondent-husband by putting the lame excuse. He submitted that when the matter was referred to the Permanent Lok Adalat of this Court, the appellant-wife was willing to go and join the matrimonial home with the respondent-husband, but the respondent-husband did not come forward ever after giving the assurance and the matter could not be reconciled and was referred back of this Court. Learned counsel for the appellant-wife further submitted that inspite of the order of maintenance, passed by this Court, directing him to pay maintenance pendente lite within a period of two months, no amount on account of maintenance pendente Iite and the litigation expenses has been paid to the appellant-wife till today. This fact has not been disputed by learned counsel for the respondent-husband. While relying upon the decision of the Hon'ble Supreme Court in Hirachand Srinivas Managaonkar v. Sunanda,1 J.T. 2001(3) S.C. 620, learned counsel for the appellant-wife submitted that the non payment of the maintenance allowance by the respondent-husband constitutes a 'wrong' under Section 23 of the Act and due to that 'wrong' a decree for divorce cannot be granted to him. For that wrong not only his defence is liable to be struck off but the decree of divorce passed in his favour by the learned trial court is also liable to be set aside.
10. On the other hand learned counsel for the respondent-husband supported the decree passed by the learned trial court by canvassing that there is no illegality or infirmity in the impugned decree. Though learned counsel for the respondent-husband could not controvert the non-payment of maintenance allowance as per the order passed by this Court as well as the non-cooperative attitude of the respondent-husband before the permanent Lok Adalat of this Court, but, however, he submitted that the decree of divorce granted in favour of the respondent-husband cannot be set aside on these factors.
11. I have considered the arguments advanced by learned counsel for the parties and am of the opinion that the appeal, filed by the appellant-wife, deserves to be allowed. In my view, on the basis of evidence led by the respondent-husband, it cannot be held that the appellant-wife has committed any cruelty with him on the basis of which the marriage between the parties can be dissolved by a decree of divorce. Much credence cannot be given to the statement of PW. 1 Paramjit Singh, who is the Ex-Sarpanch and has stated that the respondent-husband is a very gentle and nice person, and is not in the habit of consuming liquor or maintaining illicit relations with the ladies. He has also stated that the appellate-wife is a hot tampered lady and she refused to the request of the Panchayat for resuming her matrimonial relations with her husband. From the statement of this witness, it cannot be established that the appellant-wife has treated the respondent-husband with cruelty. PW.2 Inderjit Singh was only 12 years old, when he made deposition in the Court; and he is the son of brother of the respondent-husband. From his statement to the effect that the appellant-wife is of quarrelsome nature and she used to quarrel with the respondent-husband, it cannot be presumed that behaviour of the appellant-wife was cruel towards the respondent-husband. Statement of the respondent-husband himself also does not inspire any confidence. He is stating that after six month of the marriage, the appellant-wife started misbehaving with him, whereas the present petition has been filed after 12 years of the marriage and that too after the birth of two children from this wed-lock who are now aged about 11 years and 9 years. The allegations of the respondent-husband that the appellant-wife used to leave his company by going to her parental house without his permission; that she used to insult him before the guests; or that she did not cook for him, do not amount to cruelty on the basis of which marriage between the parties can be dissolved. These allegations are general in nature and because of these trivial disputes, the marriage cannot be dissolved. No specific instance has been alleged or proved. From the evidence available, on the record, I am satisfied that the findings recorded by the learned trial Court while accepting the divorce petition and granting a decree of divorce dissolving the marriage between the parties cannot be sustained. While recording the findings in favour of the respondent-husband on the point of cruelty, learned trial court has relied upon the decision in Smt. Shakuntala Kumari v. Om Parkash Ghai,2 A.I.R. 1981 Delhi 53, which is not relevant for the present controversy. It was held in that case that normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. A wilful denial of sexual relationship by a spouse when the other spouse is anxious for it would amount to mental cruelty. In the present case,it is not the case of the respondent-husband that the appellant-wife denying the sexual relationship with him.
12. I also find force in the contention of learned counsel for the appellant-wife that non-payment of maintenance pendente lite amount by the respondent-husband in spite of the directions given by this Court amounts to 'wrong' under Section 23 of the Act and on this ground also the respondent-husband is not entitled for a decree of divorce. The Hon'ble Supreme Court in Hirachand Srinivas Managaonkar v. Sunanda (supra) has categorically held that the refusal to pay maintenance by the husband to the wife, as ordered by the Court, amounts to commit a wrong within the meaning of Section 23 of the Act and the trial Court was held to be justified in declining to allow prayer of the husband for dissolution of the marriage. It was held that while considering the matter regarding the divorce between spouses, non-payment of maintenance allowance is one of the relevant considerations. Similarly, this Court in Bani v. Parkash Singh,3 (1996-3)114 P.L.R. 554 has held that when the husband fails to pay maintenance and litigation expense to the wife, his defence is liable to be struck off; and consequently, the appeal filed by the wife was allowed and the decree of divorce granted in favour of the husband by the trial court was set aside. It has been held that;-
''Section 24 of the Act empowers the matrimonial Court to make an order of maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. If this amount is not made available to the applicant, then the object and purpose of this provision stand defeated. Wife cannot be forced to take time consuming execution proceedings for releasing this amount. The conduct of the respondent-husband amounts to contumacy. Law is not that powerless as to not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defence can be struck out. No doubt, in this appeal he is respondent.His defence is contained in his petition filed under Section 13 of the Act.
13. From the evidence on record, it is also clear that the respondent-husband is not willing to keep the appellant-wife on one pretext or the other. From the conduct of the respondent-husband before the permanent Lok Adalat of this Court, it appears that the version given by the appellant-wife is correct.
14. In view of the aforesaid discussion, I allow the appeal and set aside the judgment and decree of divorce passed by learned Additional District Judge and dismiss the divorce petition filed by the respondent-husband with on order as to costs.