Punjab-Haryana High Court
Tarun Kumar vs Smt. Bimla on 23 September, 2009
FAO No. M-109 of 1999 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
FAO No. M-109 of 1999
Date of Decision : 23.9.2009
Tarun Kumar
.......... Appellant
Versus
Smt. Bimla
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Sandeep Vermani, Advocate
for the appellant.
Mr. Sanjay Vij, Advocate
for the respondent.
****
VINOD K. SHARMA, J.
This is husband's appeal against the judgment and decree dated 27.5.1999, passed by the learned Addl. District Judge, Gurgaon vide which petition filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 ( hereinafter referred to as 'the Act' ) seeking decree of divorce was ordered to be dismissed.
The petitioner / appellant sought dissolution of marriage on the ground of cruelty and desertion, on the pleadings that, the marriage between the parties was solemnized on 12.2.1991 at Sohna, District Gurgaon, as per Hindu rites and ceremonies. A male child was born out of this wedlock on 10.11.1991, who is in custody of respondent / wife, who is staying with her parents since 13.5.1995.
FAO No. M-109 of 1999 2
The facts pleaded in support of the cruelty were :-
i) That the parents of the respondent / wife were interfering in the matrimonial life of the parties and wanted that, the appellant should hand over his entire earning to the respondent instead of giving to his parents, whereas the respondent / wife never paid her salary to the appellant or his parents but used to hand over the same to her parents.
ii) That the parents of the respondent wanted the appellant to live with them at Sohna, which was not acceptable to the appellant, as he had old parents and two of his sisters were unmarried, and needed to be looked after.
iii) That the respondent / wife misbehaved with the appellant, his parents and other family members.
iv) That the respondent refused to serve the parents of the appellant and other family members.
v) That on refusal of the appellant to shift to Sohna she slapped him 2-3 times.
vi) That the respondent / wife, as a routine, used to stay at her parental home after finishing her duty at School and stay with the appellant only for 2-3 days in a month.
vii) That the respondent / wife used to come home late, though the school used to close at 1.30 P.M. and she used to stay at Sohna with her parents. When questioned, she threatened that she was not answerable to him and in case she was checked she would involve the appellant and his family members in some criminal FAO No. M-109 of 1999 3 case of demand of dowry.
viii) That the respondent / wife left the matrimonial home on 14.5.1991 without notice, knowledge or consent of the appellant and went to her parents.
ix) On 16.5.1991 the appellant went to her parents at Sohna to bring her back but she claimed that unless he would leave his parental home to start living at Sohna and would not stop giving his pay packet to his parents, she would not accompany him.
x) In July, 1991, the appellant again went to his in-laws house with respectables to take her back. The matter was compromised and it was agreed that, they would reside at Punhana i.e. the place of posting of the appellant, to which the appellant agreed.
xi) That on 17.7.1991, the respondent came with the appellant and started living at Gurgaon with his family. She also gave an undertaking qua her good conduct. The parties started residing at Punhana and they had also taken the house-hold and dowry articles with them. The receipt in this regard was also issued to the appellant.
xii) Even at Punhana she did not change her behaviour and she used to insult the appellant. She even went to his bank and used to insult him in presence of his colleagues.
xiii) That respondent / wife used to take away her house-hold and dowry articles to her parents without the consent and FAO No. M-109 of 1999 4 knowledge of the appellant and also used to hand over her salary to her parents.
xiv) That the brother and parents of the respondent / wife used to insult and harass the appellant badly, making his life a hell.
xv) That the appellant spent a lot on the delivery of a male child on 10.11.1991, but on 26.11.1991 father of the respondent took the respondent and her son from Punhana, when the appellant was away on duty, without giving any information to him. The keys of the house were handed over to the neighbourer. Father of the respondent was in the habit of keeping the respondent with him with ulterior motive of harassing the appellant. xvi) The efforts of the appellant to bring back the respondent / wife to the matrimonial home failed, as she refused to join his company.
xvii) That the respondent / wife refused to join the Chola ceremony of their son, which was fixed on 7.12.1991. On 2.3.1992 with the intervention of the relatives and respectables, the respondent / wife accompanied the appellant to Punhana but on 10.3.1992 she again left the matrimonial home along with household articles to her parents. The request of the appellant in a letter was not accepted. On 29.6.1992 the appellant suffered a gun shot injury in the bank in his finger and he wrote a letter to the respondent and her father on 30.6.1992 but she did not come back to the matrimonial home.
xviii) That the respondent / wife got herself aborted without the FAO No. M-109 of 1999 5 consent, knowledge and notice of the appellant. xix) The meeting fixed by the appellant with the District Grievances Committee at Gurgaon, on 11.12.1992 was cancelled and fresh meeting was fixed for 28.12.1992, where the appellant went but respondent did not turn up.
xx) That from 11.3.1992 to 26.2.1995 the respondent remained with her parents and did not perform her matrimonial obligations.
xxi) That on 27.2.1995 the appellant went to Sohna with some friends and relatives, and the matter was reconciled. The respondent came back to matrimonial home and they lived together at Gurgaon. On 13/14.5.1995, the respondent / wife along with her minor son and household belongings and ornaments went to her parents house and continued to reside there.
xxii) That on 17.5.1995, the appellant went to Sohna to see his son but he was beaten up by the respondent, her parents and brothers with the help of local police and was made to sit in Police Station, Sohna.
xxiii) That the respondent, her parents and brothers falsely involved the appellant and his family members in a criminal case under Section 498-A IPC read with Section 34 IPC.
xxiv) That the respondent / wife at different occasions threatened the appellant that, she would commit suicide along with minor son and would involve the appellant and his family members in a FAO No. M-109 of 1999 6 criminal case.
xxv) That on 11.3.1992. the respondent made an attempt on the minor son but he was saved by the appellant. The life of the minor was said to be in danger.
That an application under Section 26 of the Act for custody of the minor son was also made on the plea that, the respondent had once attempted to kill him and has been further threatening to kill the minor son and also commit suicide, therefore, it was claimed that, life and limb of the minor son was not safe in the hands of the respondent and that, she was not in a position to look after him properly. It was pleaded that the minor son loves the appellant and not the mother and minor was mentally disturbed at Sohna while living with his mother.
On notice, the petition was contested. It was pleaded that, income of the appellant was low and he was always demanding the money, whereas the respondent was interested to live in harmony with her husband. It was also pleaded that in order to avoid any bitterness the writing was got written from her under pressure. It was also pleaded case of the respondent that she had been living nicely and with peace and there was no question of insulting or harassing the appellant or going to his bank or taking away the dowry articles or handing over her pay to her parents.
It was also denied that, she insulted or harassed the appellant or gave threat of involving them in criminal cases.
It was also stated that, the son was born through caesarean operation, there was nobody to look after her and the newly born child and on request of the appellant the parents of the respondent took her and the FAO No. M-109 of 1999 7 child to Sohna for providing proper care and education.
It was the case of the respondent that she of her own had gone to Punhana on 21.1.1992 along with her son when her father had accompanied her to drop her there. On 10.3.1992, her mother fell seriously ill, her father came to her informing about the ailment. She accompanied him to see her mother. It was claimed that appellant had given severe beating in presence of her father and turned her out of the matrimonial home. It was denied that, she had left the matrimonial home without informing the appellant.
It was also the case set up by the respondent that, appellant was a greedy person and used to spend more than his income, therefore, remained short of funds and on this account, quarrelled with her. The allegations made in the petition were specifically denied.
The case set up by the respondent was that, there was no interference from her parents in the matrimonial home. The FIR No. 356 dated 30.6.1995 was lodged by her in Police Station City Gurgaon, as the appellant had given her severe beating and she was thrown out of the matrimonial home.
As already observed above, all the allegations mentioned in the petition qua cruelty were specifically denied. It was claimed that, both the spouses were serving at Punhana and were commuting daily from Gurgaon. As the doctors advised her not to undertake journey, as she was in a family way, they shifted to Punhana with the consent of his parents.
She specifically denied the allegations of beating given by her or her brother and parents. It was also denied that, her parents were FAO No. M-109 of 1999 8 interfering in the matrimonial obligations. While denying the allegations levelled in the petition it was averred that, the writings were obtained regarding her behaviour under pressure and coercion. She also denied the allegations of abortion by asserting that, she was not pregnant. While denying the allegations in the petition, respondent admitted that she stayed with her parents from 11.3.1992 to 26.2.1995 but denied that, any household or belongings were taken or that she had gone to Sohna without notice and knowledge of the appellant. The case set up was that appellant had given her severe beating and turned out of the matrimonial home on 13/14.5.1995.
As regards the allegations of his visit to Sohna on 17.5.1995, the pleaded case of the wife was that, he along with five gundas and one Harish, came on vehicle No. CHK-8864 with a mala fide intention to forcibly abduct the minor child. The appellant quarrelled with respondent / wife and her brother there, when the neighbourers came out of their houses, the appellant along with his accomplices ran away from there. The allegation that, the appellant was given beating and made to sit in the police Station was denied. However, it was admitted that, FIR was lodged against the appellant and his family members. It was denied that, she made an attempt to kill minor child as alleged. It was pleaded that, this plea was set up to claim custody of the child. Thus, it was prayed that application be dismissed.
The application for custody was also contested, by taking a plea that, the welfare of the child was safe in the hands of the respondent, as they had better means to provide good education being a Teacher. It was denied FAO No. M-109 of 1999 9 that, the child was mentally disturbed at Sohna.
In the replication, the averments made in the application were reasserted and those made in the written statement were denied.
On the pleadings of the parties, the learned Matrimonial Court was pleased to frame the following issues :-
"1. Whether the petitioner is entitled to a decree of divorce on the grounds mentioned there in ? OPP
2. Whether the petitioner is entitled to have custody of the minor child namely Sahil ? OPP
3. Relief."
On appreciation of evidence on record, the learned Matrimonial Court was pleased to observe that, the evidence led by the appellant at some places was in direct contradiction with the pleadings. The Court observed that though it was pleaded case of the appellant that he was pestered by the parents of the respondent to live at Sohna and offer the earning to them but nothing was said in support thereof in the evidence. Even with regard to the salary of the respondent in the evidence it was stated that, respondent used to either deposit the salary in the bank or give to her parents.
The learned Matrimonial Court held :-
i) That, the respondent withstood the cross-examination by denying the allegations. She even stated that, she was not even aware of the salary being earned by the appellant. The stand of the respondent was duly supported by her father. The learned matrimonial Court, therefore, found that, there was no evidence to support the allegation that, the respondent FAO No. M-109 of 1999 10 used to claim his entire salary and refused to join the matrimonial home in absence thereof. The learned Matrimonial Court also found that, there was no evidence to support the allegation that, he had to shift to Punhana from his parent's house at Gurgaon from where they used to commute together.
ii) that, there was no evidence in support of the meeting of the brotherhood, as pleaded in the petition.
The plea that, he was insulted in front of his colleagues was also not accepted, as the evidence of Surinder Kumar PW-2 was not believed, as it was a sweeping statement without material particulars.
The learned Matrimonial Court did not find him to be trustworthy witness.
The learned Matrimonial Court did not find any force in the allegation that, he was given beating when he visited the house of the respondent for the reason that, there was no explanation forthcoming why Harish and 5-6 persons were taken in official Car to her house.
The learned Matrimonial Court did not find the evidence of Amarjit Singh PW-4 as trustworthy, as he could not disclose that on whose instance he had gone to settle the quarrel between the parties. This witness was, therefore, found to be a procured one.
The learned Matrimonial Court held that, the statement of respondent that she was given beating in a bid to abduct the child could not be effectively countered by the appellant.
The learned Matrimonial Court held that, the respondent had convincingly explained as to why she had gone along with her child to her parent's house after delivery by caesarean operation. The learned FAO No. M-109 of 1999 11 Matrimonial Court also found that, the appellant had failed to disclose the name of the neighbourer to whom the keys were said to have been given by the respondent while leaving the matrimonial home, in the complaints filed, which were produced on record as Ex. P-1 to P-3. The learned Matrimonial Court also found that, there was no evidence that, the appellant had gone to bring her for Chola ceremony whereas the respondent convincingly proved that, she did not know the date of Chola ceremony.
The learned Matrimonial Court held that, evidence on record proved that an attempt was made by the appellant to take away the child, which could be restored after much of melodrama.
The learned Matrimonial Court also held the evidence of the respondent to be trustworthy with regard to her stand. The respondent had even denied the receipt of letter, which was said to have been written to her. The learned Matrimonial Court also found that, there was no convincing evidence with regard to the injuries having been received by the appellant, as claimed in the pleadings.
The learned Matrimonial Court also held that, the plea that the respondent had not attended the District Grievances Committee was also not proved, as nothing was put on record to show issuance of notice to the respondent.
The learned Matrimonial Court also held that, there was no evidence in support of the allegation that, respondent had got aborted without his consent and that, she was pregnant at the time when she left the matrimonial home. The self suffered statement of the appellant was not accepted.
FAO No. M-109 of 1999 12
The learned Matrimonial Court further held that it was proved that as an attempt was made by the appellant to snatch the child from her on 17.5.1995 and it was on account of constant torture she was forced to file an FIR Ex. DX.
The learned Matrimonial Court held on the basis of the evidence on record that, it was proved that the couple used to commute from Gurgaon to Punhana where both were residing. Thereafter they shifted at Punhana and started living together.
The learned Matrimonial Court also held that, there was no evidence on record that family of the appellant had given any supporting help to the respondent when she was pregnant and delivered the child.
The learned Matrimonial Court found as a fact that, the appellant had never gone to his in-laws to bring the respondent back in spite of support given by them to help her when she was in dire need. The evidence on record showed that, the father of the respondent had gone to Punhana to bring her back where the appellant created a scene. The learned Matrimonial Court found that, she was brought to her in-laws by her husband / appellant, again members of the family of the appellant including Narain Dass, uncle of the appellant misbehaved with the respondent.
It was proved that, when the respondent had gone to her parent's house to see her ailing mother the appellant misbehaved with her by directing her not to come back. It was an the attempt by the respondent that she was brought back to the matrimonial home.
The learned Matrimonial Court found that, the evidence on record proved that, the respondent continued living with her husband and FAO No. M-109 of 1999 13 had shown her genuine concern and intention to join the matrimonial home despite odds created against her.
The learned Matrimonial Court did not find that, the allegations of cruelty, as alleged, were proved and decided issue No.1 against the appellant.
The learned Matrimonial Court found that, the allegations of cruelty, which though not proved, were not of such nature to cause reasonable apprehension in the mind of the appellant so as to endanger his limb and life bodily or mentally rather it was the respondent, who was subjected to cruelty by the appellant and his family members.
The learned Matrimonial Court also found that, it was the appellant who has forced her to leave the matrimonial home, therefore, could not take advantage of her living separately to claim desertion. Thus, the Court found that, even plea of desertion was not available to him. The petition was accordingly dismissed.
Mr. Sandeep Vermani, learned counsel appearing on behalf of the appellant has challenged the judgment and decree passed by the learned Matrimonial Court by contending that, it was proved on record that the respondent had insisted on the appellant to live separately from his aged and sick parents and further had filed a criminal case under Section 498-A of the Indian Penal Code, therefore, the cruelty stood proved. In support of this contention he placed reliance on the judgment of the Hon'ble Rajasthan High Court in the case of Smt. Santosh Devi Vs. Prem chand Saini 2008 (2) RCR ( Civil) 713, wherein the Hon'ble Rajasthan High Court was pleased to lay down as under :-
FAO No. M-109 of 1999 14
"9. Having perused the evidence and the statements on record and in view of the totality of the facts and circumstances of the case, this Court is of the opinion that there is no force in the appeal filed by the respondent-wife and the applicant-husband has succeeded in proving the case of cruelty and desertion against the respondent-
wife. Undue insistence on the husband to live separately from the old aged parents, particularly when one of the parents is ill and countering the filing of divorce petition by a case under Section 498-A of Cr.P.C., during which the applicant-husband had to remain in custody and then leaving the matrimonial home ever since February, 1995. These facts which have been proved by the various witnesses before the Court are sufficient indication, in the opinion of this Court, of acts of cruelty by wife towards the husband.
Leaving matrimonial home without informing the parents and the applicant-husband and not coming to matrimonial home ever since February, 1995 shows that the respondent-wife was not at all interested in living with the applicant husband as wife and had deserted the husband, therefore, the learned Family Court has rightly FAO No. M-109 of 1999 15 granted the decree of divorce on the ground of cruelty and desertion.
10. In view of this, we uphold the decree of divorce granted in favour of the applicant-husband and dismiss the appeal of the wife. At the same time, the cross objections filed by the husband against the award of alimony of Rs. 800/- per month in favour of the wife and Rs. 400/- per month in favour of the minor child are also found to be devoid of any merit and accordingly the cross objections are also dismissed. There shall be no order as to costs."
On consideration of matter, I find no force in this contention of the learned counsel for the appellant. The allegation that, the respondent was insisting on the appellant to live away from his parents was not proved on record, rather the evidence of the appellant was found to be not trustworthy, therefore, the judgment relied upon by the learned counsel for the appellant is of no help to him.
It is not in dispute that in FIR registered under Section 498-A IPC the appellant and his family members have been convicted though given benefit of probation. The judgment relied upon by the appellant, therefore, is of no help to the appellant. It is well established law that, mere lodging of a criminal case by the wife to redress her grievances cannot be said to be an act of cruelty. It is only a false criminal prosecution which can amount to cruelty. The conviction of the appellant and further lack of any independent evidence to prove the false prosecution before the learned FAO No. M-109 of 1999 16 Matrimonial Court can not lead to a conclusion that, appellant was treated with cruelty, as contended.
The learned counsel for the appellant thereafter contended that, it was proved on record that, the respondent was living separate from the appellant, therefore, it amounted to cruelty, as this act resulted in damage to health of the husband. In support of this contention the learned counsel for the appellant placed reliance on the judgment of this Court in the case of Jasbir Kaur @ Pinky Vs. Dr. Harjinder Singh 2008(2) RCR ( Civil) 895 wherein this Court was pleased to lay down that continuous long separation by wife without reason amounts to cruelty, as it damages health of husband and filing a criminal case against the husband and his family members is an act of cruelty. The judgment relied upon by the learned counsel for the appellant is also of no help to him. In the present case it was proved by evidence that, it was the appellant who had turned the respondent out of the matrimonial home, therefore, cannot be said that wife was living separately without any reason to constitute separation to be an act of cruelty. The conviction of the appellant further leads to a conclusion that the complaint was not false.
The learned counsel for the appellant thereafter by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Suman Kapur Vs. Sudhir Kapur 2008(4) RCR ( Civil ) 837 contended that, termination of pregnancy without the knowledge and consent of husband amounted to mental cruelty, therefore, the appellant was entitled to decree of divorce on this ground. This plea again deserves to be noticed to be rejected, in view of the evidence on record showing that, the appellant had FAO No. M-109 of 1999 17 failed to prove the fact that, the respondent was pregnant or that she had undergone abortion without consent and knowledge of the appellant, as was pleaded in the petition.
For the reasons stated above, finding no merit in this appeal, it is ordered to be dismissed but with no order as to costs.
23.9.2009 ( VINOD K. SHARMA ) 'sp' JUDGE