Punjab-Haryana High Court
Raghbir Chand Sofat vs Narinder Kaur on 22 December, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO-M-164-2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO-M-164-2013
Date of decision: 22.12.2014
Raghbir Chand Sofat
...Appellant
Versus
Narinder Kaur
...Respondent
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL
HON'BLE MRS.JUSTICE SNEH PRASHAR
Present: Mr.Rishav Jain, Advocate for the appellant
Mr.Varun Garg, Advocate for the respondent
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AJAY KUMAR MITTAL, J.
1. The present appeal has been filed by the appellant- husband, for setting aside the impugned judgment and decree dated 8.3.2013, passed by the learned Additional District Judge, Patiala, vide which, the petition filed by the respondent-wife under Section 13 of the Hindu Marriage Act, 1955 (in short 'the Act'), for dissolution of marriage between the parties by a decree of divorce, was allowed.
2. The facts in brief for adjudication of the case as narrated therein are that the respondent-wife filed a petition under Section 13 of the Act for dissolution of marriage between the parties by a decree of divorce on the ground of cruelty. She averred that she is a Govt. Teacher. Her marriage was solemnized with the appellant on 18.5.1997 as per Hindu rites and ceremonies. It was her second marriage and from GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -2- the previous marriage, she was having a minor daughter. Her previous husband died due to cancer in the year 1996. The appellant agreed to treat the minor daughter of the respondent-wife of his own daughter. The respondent-wife averred that her mother had given dowry articles worth ` 3 lacs and after marriage, both appellant and respondent lived together in the house of the appellant at Patiala. From the said wedlock, no child was born out. After some time of the marriage, the appellant started beating to the wife as well as her daughter for bringing more dowry. He used to take the entire salary of the respondent-wife. The daughter of the respondent-wife, namely Raisa was seventeen years of age and a student of 12th standard. The appellant is stated to be a man of bad character and used to take liquor. He tried to outrage the modesty of Raisa and threatened her to kill. On 25.1.2004, the appellant had beaten the respondent-wife and her daughter and thrown out from the matrimonial home. She lodged a complaint against the appellant, but with the intervention of the respectables of the society on 26.1.2004, the matter had been compromised. On 10.9.2004, after doing her duty when she came back at home, her daughter was sitting outside the house and was weeping. She told her mother that the appellant had tried to outrage her modesty by touching her breast. When the respondent- wife asked him about the same, he started beating her as well as her daughter and threatened them to kill, if they disclose the same to the others. They were thrown out of the matrimonial home. A petition under Section 10 of the Act was filed against the appellant-husband, later on which was withdrawn as the matter had been compromised. The appellant send many false applications against the respondent-wife and her daughter to the various authorities only to defame them in the eyes GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -3- of the society. On 4.5.2006, she was deserted by the appellant. It was further averred that sister of the appellant Kamlesh and her husband Bhag Chand obtained signatures of the respondent-wife on some blank papers regarding her transfer, but later on, these papers were handed over by them to the appellant. The appellant in order to dupe the respondent-wife had fabricated an agreement of sale of 650 sq. yards land of the respondent-wife situated in Village Sullar in connivance with Ramshewar Dass Puri and Tara Devi. The appellant filed a false application under Section 420, 120-B of IPC against the respondent- wife, later on, on the direction of the Court, FIR No.105 dated 21.5.2008 was registered. During investigation, the allegations levelled in the application were found to be false and a cancellation report was filed. The appellant had also moved several false complaints against the respondent-wife to the police, which were inquired into by the police and the same were found to be false.
3. In pursuance to the notice, the appellant-husband contested the petition by filing a written statement. Various preliminary objections were raised therein. In his written statement, he admitted that the factum of earlier marriage of the respondent-wife was in his knowledge and agreed to treat her minor daughter as his own daughter. He submitted that he was doing his best for the benefit of the respondent-wife and her daughter. He never demanded any dowry. It was denied by him that he takes liquor and under its influence, he beats the respondent-wife and her daughter. He never outrage the modesty of her daughter. On a complaint filed by the respondent-wife, he was arrested and was medico legally examined and it was found false that he was under the influence of liquor. On found false allegations, the learned Executive Magistrate GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -4- discharged him on the next day. He further submitted that she is a clever lady and always moves with notorious person. She had also moved various false complaints against the appellant to the various authorities, which were inquired by the concerned authorities and were found to be false. He further submitted that other litigations are also pending between them, therefore, she levelled these allegations only to get divorce.
4. Respondent-wife filed a rejoinder controverting the averments made in the written statement and reiterated those made in the petition. From the pleadings of the parties, the learned trial Court framed the following issues:-
"1. Whether the petitioner is enttiled to decree of divorce on the grounds mentioned in the petition?OPA.
2. Whether the petition is false and frivolous and the petitioner has got no locus standi to file the present petition?OPR
3. Relief."
5. In support of her case, the respondent-wife examined herself as PW1 and tendered into evidence her duly sworn affidavit Ex.PW1/A alongwith other documents i.e. copy of statement dated 24.12.2004, copy of order dated 24.12.2004, copies of applications dated 17.2.2007, 13.1.2007, report dated 24.2.2007 etc. To controvert the evidence, the appellant appeared as RW1 and tendered into evidence his duly sworn affidavit Ex.RW1/A alongwith other relevant statements and copies of orders.
6. On evaluation of the facts and the evidence led by the GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -5- parties, and hearing the arguments of the learned counsel for both the parties, the learned trial Court allowed the divorce petition and passed a decree of divorce by observing that the appellant moved several complaints and on enquiry, these were found to be false and the allegations levelled against the respondent-wife were to be treated cruelty.
7. Feeling dissatisfied with the impugned judgment and decree dated 8.3.2013, passed by the learned Additional District Judge, Patiala, appellant-husband has preferred the present appeal.
8. We have heard learned counsel for the parties and perused the record.
9. Learned counsel for the appellant contended that the learned trial court committed a grave error while allowing the divorce petition, as nothing is proved on record that the appellant husband treated her with any cruelty. The appellant had never beaten up the respondent and her daughter. He never demanded any dowry. It was urged that he himself was a divorcee and it was very much in the knowledge of the respondent-wife. He treated her daughter as his own daughter and never outraged her modesty. The allegations levelled in the divorce petition are totally false and vague. It was also contended that he never deserted the respondent-wife and her daughter.
10. On the other hand, the learned counsel appearing for the respondent submitted that the appellant treated the respondent and her daughter with cruelty. He tried many times to outrage the modesty of the daughter of the respondent. The appellant was in the habit of moving complaints against the respondent to defame her character in the eyes of the society as well as her superior officer. All the complaints moved by GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -6- the appellant were inquired into by the authorities and the same were found to be false. He further contended that the learned trial Court has rightly evaluated the evidence and granted a decree of divorce in favour of the respondent-wife. He prayed for dismissal of the appeal.
11. On thoughtful consideration of the matter, we find no force in the contentions raised by the learned counsel for the appellant.
12. Cruelty has not been defined under the Act but various pronouncements of the Apex Court and other High Courts have outlined the scope of the term 'cruelty'. 'Cruelty' is evident where one spouse treats the other and manifests such feelings towards him or her as to cause reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.
13. The Apex Court in Parveen Mehta v. Inderjit Mehta 2002 (3) RCR (Civil) 529 had very elaborately analyzed the expression 'cruelty' as a ground of divorce under the Act. The relevant portion thereof reads thus:-
"Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been 'conduct of such character as to GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -7- have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger.
XX XX XX
XX XX XX
21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioural pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -8- be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
14. Further, setting out illustrative cases of mental cruelty, the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 had held as under:-
"No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -9- reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -10- the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -11- becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
15. It is admitted fact that the appellant was a divorcee and the respondent-wife was a widow and she was having a daughter from her previous marriage. It was known to both the parties. The respondent- wife was a Govt. teacher. From the record, it emerges that the appellant moved several complaints against the respondent-wife. He moved a complaint against the respondent-wife under Sections 420, 467, 468, 471, 474, 198, 199, 120-B of IPC and on the directions of the Court, FIR No.105 of 2008 was registered against her. But during investigation, the allegations levelled by the appellant against the respondent were found to be false and the police filed a cancellation report in the said FIR, which was accepted by the trial Court on the ground that the appellant had failed to prove that any birth certificate was got forged by the respondent-wife. It is further inferred from the record that the appellant moved an application Ex.P4 to the Inspector General of Police stating therein that the respondent is a notorious woman and has gone to the extent of levelling false allegations against the police officials also. On inquiry Ex.P7, the said application was recommended to be filed. In another inquiry report Ex.P9, conducted on the application moved by the appellant against the respondent, wherein he levelled the allegation against the respondent wife with wrong people, it was averred that the said application has been filed only to harass the respondent-wife. The GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -12- allegation of taking the possession of the plot forcibly was also found to be false as per the inquiry report of SSP Patiala.
16. The learned trial Court on appreciation of the evidence led by the parties has held that the appellant was habitual in moving complaints against the respondent-wife by levelling false allegations only to harass and defame her in the society. Further the appellant tried to rope her in a false case of forgery to sell the plot. The relevant findings of the learned trial Court read thus:-
"Thus, it is clear that the respondent has been making false complaints against the petitioner which were later on found to be false. Though the learned counsel for the respondent submitted that these enquiry reports have not been proved on record but the said argument is totally devoid of any merit. The respondent has not denied that he had not filed complaint against the petitioner regarding fabrication of documents nor he denied that there is no dispute regarding the plot. Even otherwise there is no material on record to disbelieve the enquiry reports. It is well settled principle of law that filing of false complaints also amount to cruelty. The authorities relied by learned counsel for the respondent are not applicable to the facts and circumstances of the present case. Keeping in view above it is held that the respondent has treated the petitioner with cruelty by levelling the false allegations."
GURBACHAN SINGH 2015.02.05 12:15 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-164-2013 -13-
17. Learned counsel for the appellant was unable to demonstrate that there was any error or perversity in the findings recorded by the trial court being based on misappreciation or misreading of evidence which may warrant interference by this Court. Accordingly, finding no merit in the appeal, the same is hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
December 22, 2014 (SNEH PRASHAR)
gbs JUDGE
GURBACHAN SINGH
2015.02.05 12:15
I attest to the accuracy and
authenticity of this document
High Court Chandigarh