Sanjeev Kumar vs Rohini Goel 2010(2) R.C.R.(Civil) 194 on 2 September, 2011

[Cites 11, Cited by 0]

Punjab-Haryana High Court

Sanjeev Kumar vs Rohini Goel 2010(2) R.C.R.(Civil) 194 on 2 September, 2011

1. This appeal has been filed by the appellant-husband, against the judgment dated 30.11.2006, passed by the Additional District Judge, (Adhoc), Patiala, whereby the petition of the appellant filed under section 13 of the Hindu Marriage Act, 1955 (for short the Act) for dissolution of the marriage of the parties was dismissed.

2. In nutshell, the facts are that marriage between the parties was solemnized on 10.5.1998. A female child was born on 11.5.1999. It was alleged by the husband that from the very beginning of the marriage, the relations between them were not cordial on account of her bad temperament and unbecoming attitude towards him and his family members. She always used filthy and insulting language and created scence in front of relatives and friends of the husband. She did not provide food to him and his parents. She was quarrelsome and short-tempered lady. The respondent-wife wanted him to reside at Patiala as live-in husband. On 30.9.1999, she left the FAO No. 13-M of 2007 2 matrimonial home and took away the valuables and gold ornaments worth Rs.50,000/-. She left behind her four months old daughter. The appellant along with his parents went to Patiala, but they were insulted and humiliated. On 7.10.1999, brother of respondent-wife came to the house of the appellant and took with him the minor daughter of the parties in the presence of the village Sarpanch. The efforts were again made to bring back the respondent-wife to the matrimonial home, but all went in vain. Appellant received threats from respondent and her brothers. The Appellant-husband lodged a complaint with the Village Panchayat Sanghol and S.H.O. Police Station, Khamanon. It was the case of the husband that he suffered mental cruelty at the hands of the respondent-wife and filed a petition for dissolution of marriage.

3. On notice, the allegations leveled by the appellant-husband were denied by the respondent-wife. Counter allegations of demand of dowry and ousting from the matrimonial home by the husband were leveled. In the rejoinder filed by the husband, the allegations by the respondent- wife were controverted reiterating the pleas taken in the petition. It was further stated that husband and his parents were harassed by the respondent-wife by lodging FIR No. 252 dated 6.4.2001 against them under section 406/498-A IPC at Police Station Kotwali, Patiala. The matter was enquired into by the police and a cancellation report was filed in the court of Chief Judicial Magistrate, Patiala. Another FIR No. 396 dated 31.5.2001 registered against a friend of the appellant-husband, which was found false and cancellation report was filed in the court.

4. From the pleadings of the parties, the following issues were framed:

FAO No. 13-M of 2007 3

"1. Whether the respondent has treated the petitioner with cruelty and has deserted him without any reasonable cause or excuse? OPP

2. Relief."

5. In order to prove his case, appellant-husband examined Kehar Singh, Lambardar of Village Sanghol as PW1 and Shakuntala Devi, Sarpanch of the Village as PW2. He appeared himself as PW3. The receipt Ex.P2 was produced on record, vide which the brother of the respondent- wife took the minor daughter of the parties. PW1 and PW2 supported the case of the appellant-husband and narrated the misbehaviour and cruel attitude of the respondent-wife towards her husband, in-laws and relatives. Appellant-husband has produced on record the copies of the FIR, cancellation report thereof, communication between the DGP and SSP, Patiala and copy of enquiry report. Krishan Tola, faher of the appellant appeared as PW4 and supported the version of his son.

6. The respondent wife appeared as RW1 and tendered in evidence affidavit Ex. RW1/A, in support of the stand taken by her in the written statement. Her version has been supported by RW2, her father, RW3 Jagdeep Kaur, friend's sister and RW4, Meena Sharma, wife of Naresh Kumar, brother of the appellant-husband, RW7 Bimla Devi is mother of Meena Sharma.

7. After going through the entire evidence produced on record and hearing counsel for the parties, the Additional District Judge observed as under:-

"After hearing the contentions of the Ld. counsel for the parties, I am of the view that the Ld. counsel for the petitioner has no force because there is no cogent evidence that FAO No. 13-M of 2007 4 the respondent treated the petitioner with cruelty. The respondent is still ready and willing to reside with the petitioner and she was earlier also ready. No lady of her own will leave the house of her husband. The respondent and her minor child were turned out by the petitioner from the matrimonial house. The pendency of the litigation between the above referred parties does not amount to cruelty as per citation 2003(3) RCR Civil 514 (supra). The petitioner has not been able to prove that the respondent has treated the petitioner with cruelty. During the course of arguments the counsel for the petitioner stated at the Bar that he did not press the ground of desertion."

8. In view of the above findings of the Ld. Additional District Judge, Patiala the petition filed by the husband under section 13 of the Act failed and dismissed vide order dated 30.11.2006.

9. Aggrieved against the same, the appellant-husband has preferred the present appeal.

10. The matter was referred to the Lok Adalat. Vide order dated 11.7.2011, the following order was passed:

"Parties have settled their dispute and have filed the Compromise Deed duly signed by them. Since Lok Adalat cannot take any steps for the grant of divorce under Section 13- B of the Hindu Marriage Act, the case is returned to the Hon'ble High Court for appropriate orders."

11. The learned counsel for the parties have filed C.M. No. 17444- CII of 2011 praying that the petition filed under section 13 of the Act be FAO No. 13-M of 2007 5 converted under Section 13-B of the Act in view of the compromise deed dated 11.7.2011. Amended petition under section 13-B of the Act is also filed in C.M.No.17745-CII of 2011. Para Nos.6,7,8,9,10 and 15 of the amended petition are reproduced below:-

(6) That petitioner No.2 has filed two complaints one under section 406/498-A IPC and another one under section 494 IPC which are pending in the court of JMIC, Patiala and in the other two cases filed by Suresh Rana under section 182 who is friend of petitioner No.1 and in these cases my husband will be bound to give evidence in favour of respondents.

                           (7)    That with the intervention of elders,

            relatives   and      friends   the   parties     have      entered      into

compromise/Settlement dated 11.7.2011 to amicably settle all pending disputes without any coercion. Since there are no chances of conciliation, the parties have decided to part ways with mutual consent. For the said purpose both the parties have agreed to make a joint request for converting the petition under section 13 of the HMA filed by the petitioner which is subject matter of pending FAO as a Joint petition under section 13-B of HMA 1955 for dissolution of marriage by mutual consent.

(8) That the petitioner No. 1 has agreed to pay a sum of Rs. 5 lacs by way of demand draft No. 350671 dated 9.7.2011 in favour of respondent and another amount of Rs. 7 lacs by way of demand draft in favour of Ms.Shivanjali minor FAO No. 13-M of 2007 6 daughter which would be used for buying some property and to be kept as investment till the marriage of the daughter and the funds coming there from would be utilized for the marriage of the daughter. Custody of the minor daughter will remain with petitioner No.2 and she will maintain and marry the daughter with the funds aforesaid.

(9) That the petitioner No.2 has agreed to withdraw the aforementioned criminal complaints under section 406/498 and section 494 IPC pending in the court of JMIC,Patiala and Criminal revision before this Hon'ble Court in respect of complaint u/s 494 on the next date positively and also to withdraw any other civil or criminal case filed by her and she further undertakes not to file any civil or criminal case against petitioner No.1.

(10) That the amount of Rs. 12 lacs as detailed above is being paid as one time permanent alimony in respect of petitioner No.2 and the minor daughter. This will settle all present and future claims of both the petitioner No.2 as well as minor daughter whose future has been secured by way of payment of Rs. 7 lacs in lump sum. Payments shall be made by petitioner No.1 on the date when divorce is granted.

(15) That since the parties have been living separately for the last 10 years. The marriage between the parties has irretrievably broken down and there is no chance of conciliation as such it would be in the interest of justice that the statutory period of six months under section 13-B may kindly FAO No. 13-M of 2007 7 be condoned as the petition under section 13 of HMA is pending since 5.1.2001."

12. The petition filed under section 13 of the Act converting a petition to under section 13-B of the Act, cannot be entertained by this Court. In the petition under section 13-B(1) of the Act, an order of waiving of statutory period of six months can be passed only by the Hon'ble Supreme Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other Court, as has been held by Hon'ble the Apex Court in Manish Goel vs. Rohini Goel 2010(2) R.C.R.(Civil) 194 (relying upon Anil Kumar Jain v. Maya Jain 2009(4) R.C.R.(Civil) 309.) In view of the above, the prayer of the parties for dissolution of marriage by granting divorce by mutual consent is declined and the C.M.No.17745-CII of 2011 is dismissed.

13. Now reverting back to the facts of the present appeal, the Ld. Tribunal in para 14 of the judgment observed that there is no cogent evidence that the respondent treated the petitioner with cruelty.

14. The factum of cruelty proved from the facts that there are specific instances of misbehaviour of the respondent-wife towards the husband, his parents, relatives and friend. She often used filthy and insulting language; did not provide food to the husband and his parents. She filed two false criminal cases against the husband, his parents and friend. The version of the appellant- husband was supported by PW1 Kehar Singh, Lambardar of the Village and PW2 Shakuntala Devi, Sarpanch of the village at the relevant time. She left the matrimonial home at her own free will after leaving behind her four months daughter, and did not join when the In-laws and husband went to bring her back from her parental house at FAO No. 13-M of 2007 8 Patiala. She did not care for the well being of the minor child, which shows her callous attitude towards her matrimonial obligation. The daughter was taken by the brother of the wife in the presence of the Panchayat against receipt. On investigation, the FIRs were found to be false and cancellation reports were filed in the Court and same were accepted. Filing of criminal cases on false accusation against husband, his family members and relatives is grave kind of unbearable mental cruelty.

15. Learned counsel for the appellant-husband has submitted that the Ld. Additional District Judge, Patiala has passed a non-speaking judgment without going into the evidence produced on record and the case law cited before it. The observations of the Ld. trial Court are without any basis and are not sustainable in the eyes of law.

16. Learned counsel for the respondent-wife submitted that the respondent-wife has not opposed the submissions of the learned counsel for the appellant.

17. I have heard the learned counsel for the parties and gone through the record.

18. In the instant case, appellant-husband has sought divorce on the ground of cruelty. The term 'cruelty' has not been defined in the Act. Hon'ble the Apex Court, while dealing with expression 'cruelty' in Suman Kapur v. Sudhir Kapur 2008(4) RCR (Civil)837 has observed as under:-

"Mental Cruelty The concept of cruelty has been dealt with in Halsbury's law of England (Vol.13,4th Edition Para 1269) as under:-

"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that FAO No. 13-M of 2007 9 rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conducts as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether, one spouse has been guilty of cruelty to the other is essentially a question of facts and previously decided cases have little, if any value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse."

In Gollins v. Gollins AC 644: (1963)2 ALL ER 966, Lord Reld stated:

"No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weakness of the spouses, and FAO No. 13-M of 2007 10 probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health". Lord Pearce also made similar observations:

"It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would considered that the conduct complained of is such that this spouse should not be called on to endure it".

Further, in Vinita Saxena v. Pankaj Pandit, 2006(2) RCR (Civil) 302, their Lordships held-

"It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.

The word "cruelty" has not been defined and it has FAO No. 13-M of 2007 11 been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted."

19. In view of the above, this Court feels that the Ld. Additional District Judge, Patiala, while passing the impugned judgment has not properly appreciated the pleadings of the parties. One of the grounds of cruelty is that the respondent-wife filed criminal cases against the husband and In-laws, which were found to be false and final cancellation reports were submitted. The false cases were filed to insult and humiliate the husband in the society. The respondent-wife left the matrimonial home at her own and even left her four months old daughter. This shows that the wife was a short-tempered, who even did not have love and affection for her own infant. This is not expected of a normal mother that she would leave her four months infant, even if she had problems with her husband or in- laws. When the husband and his parents went to Patiala to bring her back to the matrimonial home, she refused and insulted them. Such behaviour of the wife coupled with other instances, amounts to mental cruelty, which the Ld. trial court failed to assess . There need not to establish direct evidence for proving cruelty. The inference has to be drawn from the facts and FAO No. 13-M of 2007 12 circumstances considered cumulatively.

20. In view of the above discussion, this court feels that the husband was subjected to cruelty at the hands of the wife. Issue No.1 is decided in favour of the husband-appellant and against the wife-respondent.

21. It deserves to be noticed that the parties to the litigation have been living separately since 30.9.1999. All efforts for reconciliation have failed. It is practically broken marriage. Their request for grant of decree of divorce by mutual consent also declined and the amended petition filed under Section 13-B of the Act stands dismissed for the reasons recorded above.

22. At this stage, learned counsel for the respondent-wife brought to the notice of the Court that the wife has no objection to the grant of decree of divorce, as she has received Rs. 12 lacs from the appellant- husband in lieu of permanent alimony, out of which Rs. 7 lacs were deposited in the name of daughter Shivanjli vide FDR of even date and Rs. One lac has been deposited vide FDR of even date in the name of respondent-wife. Photostat copies of the same are Mark(s) 'A' and 'B'. The husband undertakes to deposit the remaining sum of Rs. Four lacs on or before 5.9.2011, the photo-stat copy of the FDR will be taken on record as mark 'C'. The parties are present in Court. Respondent-wife made a statement that the aforesaid amount will settle all her claims against the husband and she will not make any further claim for present, past and future maintenance or Istridhan or dowry otherwise against the appellant.

23. In view of the above, this appeal is accepted. The judgment of Ld. Additional District Judge, Patiala dated 30.11.2006 is set aside and petition under section 13 of the Act filed by the husband is accepted and FAO No. 13-M of 2007 13 the marriage between the parties is dissolved on the ground of cruelty. There is no order as to costs.

(JITENDRA CHAUHAN) JUDGE 2.9.2011 MS

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