Punjab-Haryana High Court
Anil Kumar Chawla vs Pamela Chawla on 23 February, 2018
Author: Augustine George Masih
Bench: M.M.S. Bedi, Augustine George Masih
{1}
FAO-M-196-2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-M-196-2009
Date of Decision: 23rd February, 2018
Anil Kumar Chawla
...Appellant
Versus
Ms. Pamela Chawla
...Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. R.S. Bains, Advocate, for the appellant.
Mr. Raman Mahajan, Advocate, for the respondent.
*****
AUGUSTINE GEORGE MASIH, J.
This appeal has been preferred by appellant-Anil Kumar Chawla, whose petition under Section 13 (1) of the Hindu Marriage Act, 1955, for dissolution of his marriage on the ground of cruelty, has been dismissed by the Additional District Judge, Chandigarh, vide judgment and decree dated 12.05.2009.
2. As per the pleadings, marriage between the parties took place on 15.10.1983 at Roorkee, according to the Hindu rites. Respondent-wife, from the very beginning, was of very hysterical nature and would get agitated on small issues such as if someone visited the house, for making food, the food being not cooked in a particular manner to her liking, crying uncontrollably and threatening to commit suicide. Within a period of one year of marriage, position became so bad because of misbehaviour, harassment and cruelty at the hands of the respondent because of her 1 of 21 ::: Downloaded on - 05-03-2018 08:37:12 ::: {2} FAO-M-196-2009 abnormal behaviour and the parties decided to separate from each other in the year 1984 but on an assurance given by the in-laws of the appellant regarding the good behaviour of the respondent in future, the matter was settled with a hope that the things would improve. Two children were born out of the wedlock, elder being son Anupam Chawla, born on 15.01.1987 and the younger daughter Sakhsi Chawla on 17.06.1989. However, She continued to show disrespect to the appellant and his family members.
3. Respondent started working on part time basis in Punjab Engineering College, Chandigarh and also worked in CISO on ad hoc basis. Thereafter, in the year 1997, she took up a job at Sukhmani Institute of Technology as teacher of Electronics Engineering at Dera Bassi. She was thereafter promoted as a Vice Principal of the said institute and it is, at that stage, she became very rude and headstrong, openly abusing everyone in the house and stopped doing any house-hold work. She started misbehaving with the shopkeepers and vendors etc. Behaviour of the respondent with her in-laws was pathetic especially towards her mother-in-law Smt. Kamla Chawla and her younger sister-in-law Neena Sawhney, who was married in the year 1986 but unfortunately, lost her husband in December, 1991 and was left with three children. Appellant taking it to be his responsibility to take care of his younger sister and her three children being the elder brother, when shared this with the respondent, she became hysterical and started hating her instead of helping a woman in distress. Even the elder sister of the appellant, Veena Ahuja, who lives in Canada, had not been treated properly rather respondent had misbehaved with them.
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4. In April, 2002, respondent got an offer from Mullana Engineering College, near Ambala (Haryana), where she joined, which further inflated her ego leading to further arrogant and intolerant behaviour. When the things became further bad, father of the appellant had to seek the indulgence of the parents of the respondent, who came to the house of the appellant on 28.12.2003, when it was decided that both the parties would live separately from each other for some time. A suitable house was being sought to be located when on 30.12.2003, father of the respondent, suffered a heart attack and he had to be hospitalized and procedure for coronary angiography was got done in INSCOL hospital and thereafter, he was discharged on 03.01.2004. On 04.01.2004, appellant asked, if they have organized an apartment for shifting of the respondent as agreed upon, on which, the respondent and her parents started shouting and accusing the appellant and his parents of being responsible for the heart attack of the father of the respondent. After that, at night on 04.01.2004 itself, she called up a close friend of the appellant Rajen Verma and asked him for his help, who came in the next morning and took away the respondent, her parents and the children along with their luggage and goods, which they took along to his house. Thereafter, Rajen Verma alongwith respondent arranged for a flat in Shikhar Apartments, Mani Majra, where the respondent and their children shifted on 06.01.2004 and started staying there. Appellant had been supporting the respondent all through in the education of the children and even purchased a Maruti Zen car for the respondent in 2004.
5. Instances of cruelty have been highlighted by the appellant by 3 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {4} FAO-M-196-2009 asserting that in the year 1997, a trip for 11 days to Rajasthan was arranged together for the families of the appellant and his friend Rajen Verma (PW-
5), who were very close to each other but the respondent became very irritated and wanted to terminate the trip at Udaipur and wanted to hire a separate car to return but the appellant controlled the situation and was able to persuade the respondent to finish the trip as planned, however, after the return from trip, the relations between the families did not become normal for more than two years as Rajen Verma's family did not meet the appellant's family for two years.
6. In the year 2004, when appellant's elder sister Veena Ahuja came to reside with the appellant, they had visited the flat where the respondent and the children were residing in Mani Majra, but were met with blank faces as nobody talked with her and her children and they had to come back within a period of five minutes. It has further been asserted that his cousin brother Satish, while he was going from Rudrapur to Shimla after his marriage, came to his house and wanted to stay there for a night with them but had to leave the house at 9 PM without any food and stayed in the hotel due to the scene created by the respondent in the house.
7. It has also been asserted that the respondent always remained busy in her kitty parties and shopping or on the mobile talking for hours, thus, overlooking her responsibilities towards the house, spending lavishly upon her and did not contribute towards the expenses of the house. Apart from this, the words which have been spoken by the respondent to the parents of the appellant and to his younger sister Neena Sawhney (PW-4) 4 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {5} FAO-M-196-2009 have been mentioned in the petition, which have been reiterated by them in their affidavits tendered in the evidence. With these pleas, a decree of divorce was sought on the grounds mentioned herein above.
8. On the other hand, the respondent, in her reply, has denied all the allegations which have been levelled against her in the petition, however, the basic facts with regard to the marriage, birth of the children, another factual matrix with regard to the visit of Rajasthan in the year 1997 along with the family of Rajen Verma, visit to the house of the appellant by her parents in 20.12.2003, suffering of the heart attack by her father, her call on 04.01.2004, incident of 2004 and her journey so far as her professional life is concerned, stand admitted, however, there is a different perspective and point of view projected by her.
9. Respondent asserts that there is no dispute between the appellant and the respondent rather because of disharmony and vicious atmosphere created by the mother-in-law and younger sister-in-law, who had been inventing dubious designs to project the respondent as the one who had damaged the family and did not want to stay with her in-laws. Respondent had been adjusting to the situations despite of all the lies, abuses, allegations and acquisitions levelled against her despite her emotions as also of their children being scuttled by the appellant as well as the grand-parents on every step. He, instead of giving priority to their own children, had been giving precedence to three children of her sister-in-law Neena Sawhney, who unfortunately became a widow. The appellant although realizes and feels the shortcomings in private while confiding with 5 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {6} FAO-M-196-2009 the respondent but did not have the courage to take a stand in the presence of his mother Kamla Chawla and sister Neena Sawhney. In these circumstances, respondent was forced to take up firstly a part time assignment and thereafter, different assignments in different institutions as have been highlighted above.
10. Another aspect which has been highlighted by the respondent is that the twin children of her elder sister-in-law, who resides in Canada, were left with them for some years in the matrimonial house at the time when the marriage of the appellant and the respondent took place in the year 1983. Since she was also pregnant and suffering from ailments relatable to child birth such as nausea, she was unable to take care of these children as was expected of her, which was projected as an intentional shirking from the responsibility.
11. After the unfortunate death of the husband of her sister-in-law Neena Sawhney in the year 1991, with three children, adding up to their two children making it to five, brought to their house to be taken care of by the respondent, it was practically impossible for the respondent to look after five children. Her in-laws wanted all these three children to be brought up by the respondent with an intent to make it convenient to re-settle of their daughter Neena Sawhney, which was opposed by the respondent, which has been treated as rude and cruel behaviour on the part of the respondent. Relating to the incident during the Rajasthan trip in the year 1997, it has been asserted that the situation was not her creation rather it was the appellant who was the sole cause of the whole episode.
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12. As regards the allegation of non-devoting time to the house- hold works and spending lavishly on herself, it has been replied by asserting that she was not supported by the husband and she had been spending out of her own earnings upon the children to fulfill their daily needs and requirements. It has been denied that she had not been contributing towards the expenses of the house.
13. The respondent has asserted that the appellant has not been able to arrange for a decent house for the children despite he being a successful businessman for 20 years, whereas, he had made provisions for a decent house for his sister at Baddi. Whenever it came to the things and requirements of the children and the wife, the appellant would shirk away from the responsibility and refuse to pay, whereas, he would fulfill all demands of the sister and her children.
14. As regards the incident on 04.01.2004 is concerned, it has been asserted that the appellant himself in his pleadings has categorically stated that after the suffering of the heart attack and the discharge of her father on 03.01.2004, on the very next day i.e. on 04.01.2004, the first thing the appellant had asked was 'whether an arrangement has been made for putting up the respondent and the children'. This was done by the appellant at the instance and instigation of his parents, who wanted and were eager that the respondent should leave the house immediately. Above all, on the next day, when the respondent and the children had to move out of the house along with her parents, appellant left the house in the early morning and intentionally switched off his mobile phone so that no one else could 7 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {8} FAO-M-196-2009 contact him. She asserts that this clearly indicates that he could not bear this separation and did not have a courage the witness the exit of his family from the matrimonial house but had to compromise with the situation and leave it to so happen as the same was beyond his control. On various places in the pleadings, it has been asserted by the respondent that it is because of the interference of sister-in-law Neena Sawhney and the mother- in-law, their family life got shattered and the appellant-husband is not the cause rather he was concerned for the respondent and the children but could not take a stand in this regard.
15. On the basis of the pleadings of the parties, the following issues were framed by the trial Court:-
(i)Whether the respondent has treated the petitioner with cruelty? OPP
(ii)Relief.
16. Both the parties led evidence in support of their respective claims.
17. Learned trial Court, after considering the evidence led by the parties and hearing both the parties, found no merits in the petition and dismissed the same vide impugned judgment and decree dated 12.05.2009. Feeling aggrieved by the said judgment and decree, the appellant-husband has filed the present appeal.
18. Learned counsel for the appellant asserts that the cruelty which the appellant had been facing from the beginning and all through his married life had culminated into the filing of petition under Section 13 (1) 8 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {9} FAO-M-196-2009 of the Hindu Marriage Act and that too, after realizing that the respondent wanted to live an independent life and did not want to cohabit with him. Appellant had been adjusting to all circumstances which he was forced into because of the conduct of the respondent and had been withstanding the rude behaviour, hysterical attitude and unbearable taunting and words uttered to him and his parents as also his sisters. Counsel asserts that from the pleadings and the evidence, which have been led by the appellant, it is apparent that the respondent had, out of her free will and desire, deserted the appellant and left his company on 05.01.2004 and the petition for divorce has been filed after a period of approximately one and half year of such moving out of the house by the respondent i.e. on 25.05.2015, when he could not bear any further and came to a conclusion that there was no possibility of their coming together to reside as husband and wife, the appellant approached the Court on the ground of cruelty and desertion.
19. Another arguments which has been put forth by the counsel for the appellant is that the parties have been living separately since 05.01.2004 and by now, both the children have become majors i.e. son Anupam Chawla being more than 30 years of age, working in Taj Group of Hotels since 2008 and daughter Saakshi Chawla, being more than 28 years of age, working in Bharti Airtel since 2013 and both of them are married and settled now but appellant was neither informed nor called for the marriages of the children. Respondent, at present, is working as a Professor and Controller of Examinations in Lingaya's University, Faridabad, drawing salary of `1,25,000/- per month and living in her own house in Faridabad, whereas, 9 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {10} FAO-M-196-2009 the appellant, after having sold his 20 years' old business in 2006, has retired from the job which he took up and is now living with his aged parents. He contends that there is no possibility of the appellant and the respondent for cohabiting as husband and wife and therefore, the marriage be dissolved.
20. In support of his contentions, learned counsel for the appellant places reliance upon the judgments of Hon'ble Supreme Court in K. Srinivas Rao Vs. D.A. Deepa 2013 (5) SCC 226, Satish Sitole Vs. Smt. Ganga 2008 (7) SCC 734 and Durga Prasanna Tripathy Vs. Arundhati Tripathy 2005 (7) SCC 353.
21. He, on the basis of the above submissions, prays that the impugned judgment and decree passed by the trial Court is not in accordance with the pleadings and the evidence on record and therefore, deserves to be set aside and the petition under Section 13 (1) of the Hindu Marriage Act, be allowed and decree of divorce be granted, as prayed for.
22. Counsel for the respondent, on the basis of the pleadings and the evidence of the appellant, referring to the cross-examinations of the witnesses and the statement of the respondent, who appeared as RW-1, asserts that the impugned judgment and decree as have been passed by the learned Additional District Judge, Chandigarh, on reaching to a conclusion that there was no cruelty meted out to the appellant, there is no cruelty at the hands of the respondent, does not call for any interference and the allegations made in the petition are without any basis. He asserts that the respondent is still ready and willing to cohabit with the appellant provided 10 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {11} FAO-M-196-2009 appellant will give proper respect, love and affection to her and the children and treat them at least equal, if not better than the other members of his parental family.
23. We have considered the submissions made by the counsel for the parties and have gone through the pleadings and the evidence available on record.
24. Appellant appeared before the trial Court as PW-1 and reiterated his pleadings and denied all suggestions. Kamla Chawla, mother of the appellant, appeared as PW-2 and stated that the respondent had spoken to her that she is an illiterate lady and that the family had a low background and she did not know how to talk, whereas, she is educated, well-behaved and of a responsible family, whereas, mother of the appellant had been residing in a village all along and therefore, does not have any etiquette nor does she know how to behave. Mr. M.R. Chawla, father of the appellant, appeared as PW-3, who, in his affidavit, stated that the respondent would always say that he and his wife were good for nothing and were living on her and her husband's income. Both his daughters (sisters-in-law of respondent) were insulted on number of occasions because of which they stopped visiting him. He has also detailed about the incidents taken place on 04th, 05th and 06th of January, 2004.
25. Neena Sawhney, sister of the appellant, appeared as PW-4 and supported the assertions of her mother with regard to the utterances. She stated that the respondent is not used to live a life in joint family as she has always lived in a nuclear family and the members of the joint family were 11 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {12} FAO-M-196-2009 liabilities. Respondent never wanted to live with her in-laws. Non- existent issues were picked up by the respondent blowing it out of proportion. Respondent was very rude and used to pass sarcastic comments. She further stated that neither she nor her children were welcomed in the parental house. To her mother (mother-in-law of respondent), the respondent would say that house-hold jobs are meant for maids and not for highly educated lady like her. Respondent would project the sister of the appellant to be an evil person in front of her children because of which they did not respect her and would also make fun of her children because of the clothes and studies which made them feel inferior.
26. Rajen Verma appeared as PW-5 and supported the incident which had taken place in the year 1997 when they had gone to Rajasthan. He also stated that he had received a call on the night of 4/5th of January, 2004, from the respondent when she stated that she did not want to stay any longer in her husband's house and she be immediately taken to his house. Thereafter, he took them to his house and then arranged a flat on rent where they shifted on 06.01.2004.
27. After completion of the petitioner's evidence, respondent has appeared as RW-1 and denied all the allegations of cruelty and supported her reply.
28. Appellant has filed petition for divorce asserting cruelty as a ground for granting decree of divorce apart from desertion. Dealing first with the plea of desertion, the same cannot be granted for the reason that for this plea to be available for being applicable, period of two years 12 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {13} FAO-M-196-2009 immediately preceding the presentation of the petition had to expire for the spouse who have deserted the petitioner, whereas, in the present case, admittedly, respondent moved out of the matrimonial house on 05.01.2004, whereas, petition for divorce was filed on 25.05.2015, which period is less than one and half year. That apart, as has come in the pleadings, the agreement, which was entered into by the appellant and his parents on one hand and the respondent and her parents on other, was that the parties would live separately for some time. If that be so, explanation of the term 'desertion' would come into play which means desertion of the petitioner by the other party to the marriage without reasonable cause and without consent or against the wishes of such party. According to this explanation of desertion, two conditions are mandated simultaneously (i) it should be without any reasonable cause and (ii) without consent or against the wishes. Both these conditions are not fulfilled in this case. Firstly, respondent-wife moved out of the matrimonial house with the consent of the appellant as per the agreement between them and thus, cannot be termed as against the wishes of the appellant-husband. Secondly, it was intended to be temporary phase for relieving the tension and to give time to the families to placate and pacify and, therefore, cannot be said to be without reasonable cause. The plea of desertion, as has been pressed by the counsel for the appellant for grant of decree of divorce, therefore, cannot be accepted.
29. Other ground which has been pressed into service which is the main ground is 'cruelty'. Cruelty is dependent upon various and varied factors and circumstances which would fall back upon the social strata, their 13 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {14} FAO-M-196-2009 way of life, temperament, emotions, relationship, social status etc. It could be of various types such as physical violence, mental torture/cruelty, subtle or even brutal and may be gestures and words rather its concept may differ from person to person which includes the level of sensitivity, educational qualifications, cultural backgrounds, upbringing and financial position of family, customs, traditions, religious beliefs, human valuations and their value system which also cannot be static and varies according to the changes, which come up in the society and its thinking process. Conduct of the spouse has to be assessed in the given facts and circumstances when seen in conjunction with the other related above factors to come to a conclusion as to whether it would be termed as cruelty or not.
30. To prove the allegation of cruelty, no specific dates or instance have been pointed out, although specific words and sentences have been attributed to the respondent either during communication using them as taunts or during the family talk or dispute amongst them. The important sentences/words used and as have come into evidence have been referred to or reproduced in the earlier part of the judgment. It is a known and accepted fact that there are, at times differences during a matrimonial relationship with certain ups and downs in that which are the normal wear and tear of life including relationship(s) and family but none of the expressions or words including terms and sentences alleged to be used by the respondent would fall within the impression of cruelty. Those words and sentences cannot be termed to be cruelty in the sense which would lead this Court to reach a conclusion to be of such nature which can be termed as enough for 14 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {15} FAO-M-196-2009 the purpose of fulfilling the mandate of the statute to grant a decree of divorce.
31. The instances, on the basis of which the allegation of cruelty is asserted to be proved and established, need to be referred to here and dealt with. The first instance is within the period of one year of the marriage i.e. in the year 1984, when because of the alleged hysterical behaviour of the respondent where small issues were blown out of proportion leading to crying uncontrollably with threat to commit suicide, when in-laws of the appellant intervened and the matter was settled, cannot be pressed as a ground as the same was condoned by the appellant when they continued to cohabit and had children.
32. The incident of the year 1997, where the appellant, respondent and their children had gone for a trip to Rajasthan along with Rajen Verma and his family, again would not be of any help although initially it is asserted that for two years after the return from the trip, theirs families did not visit each other but thereafter, the relations became cordial and Rajen Verma was the person who was called by the respondent on the night of 04/05th of January, 2004, who did come along with his wife in the morning on 05.01.2004 to take her, her parents as also the children firstly to his house and thereafter, arranged a flat on rent where the respondent and the children ultimately shifted on 06.01.2004. This shows that the said incident stood condoned although allegations were made that the respondent was the cause of the incident where she became hysterical at Udaipur and because of that, the trip was on the verge of being called off midway, which fact is 15 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {16} FAO-M-196-2009 denied by the respondent and in any case, with the condoning of the same, the plea of cruelty would not be available for being pressed into service.
33. The next incident is when the elder sister of the appellant, Veena Ahuja, who resides in Canada, visited her parents in the year 2004 and had gone to meet the respondent and the children in the flat where they had started living separately after moving out of the matrimonial house on 06.01.2004 but she was not welcomed in the house nor did anyone talk to her. The said incident has not been proved as Veena Ahuja has not appeared as a witness before the trial Court nor has any other person appeared who had accompanied her.
34. The incident with regard to the visit of cousin brother Satish, while he was going from Rudarpur to Shimla after his marriage and wanted to stay in the matrimonial house along with the appellant and the respondent but had to stay in hotel, this fact was admitted by the respondent but she has denied that it was because of the unwelcome attitude of the respondent. Satish has not been produced in trial Court to depose and therefore, the same also cannot be taken note of.
35. As the sequence of event unfurl, on 28.12.2003, on the asking of the father of the appellant, parents of the respondent came to the matrimonial home in Panchkula to discuss the circumstances in the family, it is, in that discussion, it was decided that the respondent along with the children would shift to a different accommodation for the time being. Some heated arguments had taken place on a subsequent date resulting in the father of the respondent suffering heart attack, who was admitted in hospital 16 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {17} FAO-M-196-2009 on 30.12.2003. On 2nd January, 2004, coronary angiography was done in INSCOL hospital and was discharged on 03.01.2004. As per the affidavit of the appellant himself, in the evening of very next date i.e. 04.01.2004, when he came back from work, he enquired about the health of his father- in-law and thereafter, enquired about the arrangement of accommodation for shifting of the respondent. During discussion, heated arguments took place where certain words are alleged to have been spoken by the respondent and her parents such as 'I wish you all death, misery will be on you and your family'. The affidavit itself indicates that it was in the heat of the moment that such words were uttered and that too when seen in the context of the fact that a day earlier, i.e. 03.01.2004, father-in-law of the appellant had been discharged from the hospital after treatment in hospital being suffered a heart attack and cannot be said to be intentionally meant the same and thus, cannot be termed as cruelty.
36. As regards the words, phrases, terms and sentences which are alleged to have been uttered by the respondent to the in-laws i.e. father-in- law, mother-in-law and sister-in-law, which have been referred to in the pleadings and the evidence brought on record and mentioned above, cannot be seen in isolation but has to be considered keeping in view the pleadings and the evidence of both the parties. When seen as a whole, it cannot be said that the words as attributed to have been uttered by the respondent, were totally out of context or were of such nature, which would fall within the term of 'cruelty' but can at the most be said to be hard and harsh words. Language used in a house may be termed as unacceptable, whereas, in 17 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {18} FAO-M-196-2009 another house depending upon the culture, the normal language and dialect as well as the norms of the society amongst other factors, it would be normal and acceptable. When seen in the context of the pleadings and the evidence, it could be termed to be reactive behaviour which the respondent resorted to while responding to the treatment being meted out to her. Human relations and behaviour are dependent upon the various factors which vary from person to person and while assessing such behaviour and utterances in the light of the requirement of the provisions of the statute, the words, phrases and sentences attributed to the respondent, cannot be said to be fulfilling the requirement of expression of 'cruelty'.
37. Learned counsel for the appellant has placed reliance upon the judgments namely K. Srinivas Rao, Satish Sitole and Durga Prasanna Tripathy (supra), which were the cases where the Hon'ble Supreme Court had found that the marriage between the parties to have been irretrievably broken down and was beyond the repair on account of bitterness created by the acts of the parties. The Court has also come to a conclusion that there was hardly any chance for them to be living happily because of the bitterness created by the conduct of both or one of the parties, which is not the position in the present case. The Hon'ble Supreme Court, in the case of K. Srinivas Rao (supra), has noted that the irretrievable break down of marriage is not a ground to grant divorce under the Hindu Marriage Act, 1955, but still had proceeded to pass a decree of divorce on the said ground exercising its extraordinary powers to do justice between the parties.
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38. The contention of the learned counsel for the appellant based on the above referred to judgments of the Hon'ble Supreme Court that the marriage between the appellant and respondent has broken down irretrievably because it is the respondent, who had left the house on 05.01.2004 on her own, cannot be accepted nor can it be said to be correct rather as is apparent from the pleadings, it was an arrangement which was consented and agreed to between the parties for a temporary period as has been referred to and discussed in the earlier paragraphs.
39. As per the allegations and the story projected by the respondent, on the night of 04.01.2004, the in-laws were the ones who were insisting upon the respondent on leaving the house immediately and not the appellant. It is under these circumstances that the respondent telephoned the best friend of the appellant Rajen Verma (PW-4) at night, who came in the morning on 05.01.2004 along with his wife. They took her, the children and her parents along with them to their house and thereafter, arranged a flat on rent for them, where they shifted on 06.01.2004 with their belongings. It is pointed out that on the day of shifting of the belongings from the matrimonial house i.e. 06.01.2004, appellant got up early in the morning, went out of the house and switched off his mobile phone. These circumstances point to a situation where it cannot be said to be the wish and desire of either the appellant or the respondent to stay away from each other but it was the family situation as prevalent them which is attributed to the fact that the house belongs to the father of the appellant, and the appellant could not assert himself. As the appellant was unable to face the children 19 of 21 ::: Downloaded on - 05-03-2018 08:37:16 ::: {20} FAO-M-196-2009 when they would leave the house along with respondent, he moved out the house and switched off his mobile phone. This depicts his affection for respondent and his children and there was always hope of revival of the matrimonial cohabitation. Love and affection towards the children and the wife is apparent from the subsequent conduct and behaviour of the appellant towards the children and the respondent as he continued paying the fees of the children and also bought a Zen car for the respondent in the year 2004. This is also depicted from the reply, which has been filed by the respondent who has not blamed her husband for the situation where they have come to.
40. Thus, the argument of the counsel for the appellant that the marriage has broken down irretrievably cannot be accepted and in any case, this is not a ground provided for grant of decree of divorce under the Hindu Marriage Act, 1955. This Court cannot travel beyond the grounds enumerated in the statute i.e. the Hindu Marriage Act, 1955. The Hon'ble Supreme Court, in the judgments, which have been relied upon by the counsel for the appellant referred to above, has exercised its extraordinary powers under Article 142 of the Constitution, for grant of decree of divorce keeping in view the peculiar facts and circumstances of the cases to do complete justice as it had come to the conclusion that it was not possible for the parties to come together because of the bitterness created due to the acts of one or both the parties. There was no chance of their cohabitation and their relationship was beyond repair which is not the position in the present case as discussed above.
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41. In view of the above, finding no merit in the present appeal, we dismiss the same by upholding the impugned judgment and decree dated 12.05.2009 passed by the learned Additional District Judge, Chandigarh.
(M.M.S. BEDI) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE
23rd February, 2018
Harish
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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