Uttarakhand High Court
Smt. Manpreet Kaur vs Devendra Pal Singh on 7 October, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 86 of 2013
Smt. Manpreet Kaur ....... Appellant
Versus
Devendra Pal Singh ....... Respondent
Present: Mr. Siddhartha Shah, Advocate for the appellant.
Mr. Bhupesh Kandpal, Advocate for the respondent.
Coram:- Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on 22.06.2017 Delivered on : 07.10.2017 Per - Hon'ble Sharad Kumar Sharma, J.
It's a wife appeal, seeking quashing of the judgment dated 18.04.2013 passed by the Additional Judge, Family Court, Rishikesh in Matrimonial Case No. 60/2011 titled as "Devendra Pal Singh Vs. Smt. Manpreet Kaur", whereby the Suit filed by husband under Section 13(1)(i-a)(i-b) of Hindu Marriage Act, 1955 (hereinafter to be referred to as the "Act") was decreed, and consequent thereto, the marriage which was solemnized between them on 08.12.2003 was dissolved.
2. The issue of cruelty was agitated at the hand of appellant-wife which was the bone of contention for the proceedings under Section 13(1)(i-a)(i-b) of the "Act", 2 before the family Court, Udham Singh Nagar, where the proceeding was initiated for dissolution of marriage.
3. Admittedly, according to parties to the dispute, marriage between them was solemnized on 08.12.2003 as per Sikh customs and rituals, as both husband and wife were the followers of the said sect. After the marriage traditionally wife joined her husband's home and they started living at Gadarpur, and as case of respondent- husband is and as expected from him and from the in-laws in the husband's place, provided all respect, care and affection to the newly wedded wife.
4. But as per plaint allegation of the respondent- husband, the appellant-wife who was working with the Education Department, is a lady who has her own way of spending life, she was in the habit of her own way of spending unfettered living and did not appreciated the requests of husband and his family members to spend matrimonial life in accordance with family norms and traditions. She never wanted her actions and movements of free living to be restricted in any manner whatsoever. Normally it is expected from a newly wedded wife and even a courtesy requires at least to inform the in-laws, if she had to venture out of home for any of her personal or official work. As per the husband even when the plaintiff husband wanted to make her understand the intricacies of married life, she used to get outraged and atrocious.
35. Husband's case was that he made several efforts to make the appellant-wife understand that they are living in a joint family, at least some respect has to be shown to aged parents, particularly from a newly wedded wife is to discharge. This was not welcomed by the wife.
6. Parents bear and near child so that they can support them when they grown old and feeble. As per the pleading and wishes of the husband, he also catered the same desire and wishes towards his parents, but this was being hampered by the wife who was pressuring him to leave his parent's home and to start living in parent's home of wife at Sitarganj as "gharjamai", to which husband did not agreed. This further aggravated the misunderstanding. Husband's case was that wife was more professional oriented lady and had her priority to it, as compared to her domestic responsibilities. Normally, at least in every Hindu Matrimonial home every wife has to adhere to basic family disciplines that too when in a joint family, however whenever these restrictions were sought to enforced, appellant-wife threaten to commit suicide and rope the entire family in false criminal cases. It was apart from other method adopted by the wife. She started exerting to inflict cruelty on the husband.
7. Despite of all these odds the appellant was blessed with son born in 11.10.2004. As per husband's case, he thought that after the birth of son, things would 4 move in a positive direction and she will improve her attitude towards the in-laws. But the things worsened when the wife after one and half years of marriage she deserted her husband and went to her parent's home with the son, jewelry, all valuable along with her brother Preetpal Singh, as husband case that he thought it was a normal visit by her, to her parent's home. Due to this reason coupled with the fact that the husband expected that she would be coming back to join the family of the husband as well as to protect the tarnishing of family's social prestige, he never lodge any complaint to police or any other authority. Still the husband's case was that he went to his in-laws on 24.12.2004, to bring back his wife and son to his house. But there at Sitarganj the family members of wife including her parents, duressed him to come to Sitarganj and live with them as "Gharjamai", and she refused to come to Gadarpur, and on his declining to live at Sitarganj the family members of wife misbehaved with him.
8. Husband's case was that this attitude of the entire family of wife was due to the reason that wife was employed and an earning member and who had her earning, and as the brother and father of the appellant-wife are unemployed, this was the reason why the parents of appellant were not permitting her to join back husband's home. These attitudes of appellant-wife were too acrimonious. She even tried to emotionally hurt the respondent-husband, because according to him, 5 whenever, being a father, he had presented any gift to his son, same was refused by her to be accepted and given to the son and at times even returned.
9. Plaint contention of husband was that one of such effort to bring back his wife on 25.12.2005, when husband along with Narendra Kohli, Ashok Chauhan and Shashank Tyagi, had gone to the house of appellant-wife at Sitarganj and tried to make the appellant understand to come back and discharge her matrimonial responsibilities but appellant declined to join back the respondent.
10. Husband had further pleaded in the plaint that when he lost hope that wife would not join back the matrimonial home so as to discharge her matrimonial obligations and when all his efforts failed, he instituted proceedings under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights, the said case was decided on merits in favor of respondent-husband by judgment dated 07.01.2008, but the judgment was challenged by wife in Appeal before High Court being First Appeal No. 08 of 2008. The said judgment dated 07.01.2008 passed in Section 9 proceedings has been set aside by the High Court and the First Appeal was allowed.
11. The husband submitted that the atrocity of wife increased so much that she had initiated proceedings under Domestic Violence Act, and Dowry Prohibition Act, 6 which has tarnished the family reputation to a great extent, though the husband submitted that he is continuously complying the interim orders passed in the same. In the proceedings initiated by appellant under Domestic Violence Act, as well as Criminal Proceedings under Section 498-A in which husband was convicted and sentenced jail for one year and fine of Rs. 19,000/- was also imposed. Later, he was released on bail. In the proceedings under Domestic Violence Act, which was decided on 26.05.2009, the appeal of husband has been dismissed.
12. Besides the above situations, husband case was that all this goes to show cruelty and it had tarnished his and his family's image to a great extent thus the marriage has become irretrievable. He also pleaded that wife has lodge complaint before Senior Superintendent of Police, which after investigation was found to be false, despite, the fact that the husband was instrumental in getting the service of the appellant in education department, yet the wife and her parents have complained before Joint Director, Education, to get the services of the appellant dispensed with. Since now she has permanently deserted the husband from 24.12.2004, thus there is no possibility of revival of relationship.
13. Wife on receipt of notice filed her written statement on 26.07.2011, being paper no. 17B denied 7 plaint allegations. She submitted that at the time of marriage as held on 08.12.2003, her family members have given all dowry, but the in-laws were not satisfied with the dowry and were raising demand of dowry of one motorcycle and cash of Rs. 2,00,000/- She submitted in her written statement that her family members have given a sum of Rs. 50,000/- by way of draft as part of demand, thereafter she states that another draft of Rs. 25,000/- was given by way of second installment, to meet demand of husband. Her case before the Court was that due to non- fulfillment of entire demand, the family members of the husband assaulted her on 14.03.2005, when she was beaten and thrown out of the home.
14. She submitted that when in October 2005, the father of appellant with others went to drop her back to the in-laws family they declined to permit her to enter the home without clearing all the balance demand raised by them. Even so much so that as per wife on 25.12.2005, brother of husband with other persons visited Sitarganj and tried to snatch away the son from her, the incident was somehow averted due to interference of the neighbours. She pleaded that on 20.03.2006, she had gone to Rudrapur Family Court to participate in the proceedings before the Court, husband and his brothers had misbehaved with her. Narrating the entire incident she had lodged a complaint to police. To bring to the knowledge of police and authorities about the behaviour of 8 the husband and his family, she submitted that to protect herself and her family from the atrocities, she has initiated following proceedings;-
i) On 04.04.2006 - Complaint to police about the incident
ii) Complaint to Mahila Police Help Line.
iii) Domestic Violence Proceedings registered as Case No. 143/08, in which Order was passed directing husband to stop harassing. Against the order dated 26.05.2009 the husband filed an Appeal No. 63/2009 which was dismissed on 08.09.2009.
iv) Criminal Case No. 717/2008 - lodged on 19.07.2006 in which the husband was convicted under Section 498-A on 29.10.2009 and was convicted for 1 year imprisonment and fine of Rs. 10,000/-.
v) In under Section 9 proceedings decreed for husband on 07.01.2008, was set aside by High Court in Appeal by its judgment 07.08.2008.
vi) High Court in Appeal No. 63/2009 against 26.05.2009 directing to pay maintenance @ Rs. 1000/- p.m. filed by husband was dismissed on 08.09.2009.
vii) Against acquittal of others co-accused in original cases the state has filed appeal before Sessions Judge, which is pending.
15. Appellant further in her written statement submitted that the allegations levelled against her that she was forcing her to stay at Sitarganj was denied, she further 9 denied to have ever threatened to rope the family in false criminal cases.
16. She submitted that the fact is that mother of appellant is a teacher in a government school, and brother, father, younger brothers are already working thus case as developed by the respondent that they are dependent on appellant's salary was denied. The cruelty both mental and physical was levelled at the behest of husband is established from the judgment passed by subordinate Courts.
17. As per the findings recorded by learned family Court it doth made an effort for settlement of the marriage and for that conciliation proceedings were held on 11.10.2011, but no settlement could be arrived at. Consequently, on the failure of the settlement, the learned family Court had framed the issues of controversy, which was arising out of the pleadings raised by the party.
18. Under the aforesaid backdrop, the Court framed the issue to the following effects:-
i) As to whether based on the allegations raised in the plaint, where the husband was entitled to a decree of divorce?
ii) Any other relief?10
19. Though the issues framed by the learned family Court was vague and not specific depending upon the pleadings, but yet the said issue was sufficient enough to cover all the allegations raised by the parties amongst themselves. The parties to the case led their respective evidence. The plaintiff-respondent-husband filed his documentary evidence as paper No. 28 Ga. The judgment passed in the proceedings under Section 9, in the proceedings under Section 31 of the Domestic Violence Act. Proceedings which culminated by way of a criminal case and also paper No. 39 Ga submitted by the appellant on 05.10.2011 to the District Education Officer by way of complaint against the appellant-wife and also the application for collecting the information pertaining to the respondent etc.
20. In response thereto the respondent-husband- plaintiff also produced her respective evidence, apart from examining herself as PW-1 and submitting her affidavit examination in chief as paper No. 26 Ka. In support of her version she filed an affidavit of PW-2 Mr. Vijay Kumar.
21. The appellant-wife, in response to the affidavit in chief adduced by the respondent-husband, submitted her affidavit examination in chief as paper No. 36 Ka and she also recorded her statements before the Court below as DW-2 and also produced Preetpal Singh her brother in examination in chief as DW-1 and Kuldeep Singh and 11 Bhola Dutt Joshi as DW-3 and DW-4 respectively. The learned family Court, while hearing and considering the consolidated issue no.1 dealing with almost all the vital disputes between the parties had wrongly come to the conclusion pertaining to the allegations of cruelty.
22. Because we feel when in the collateral proceedings under the Domestic Violence Act or under the criminal proceedings, it has been found that rather established to that the respondent was instrumental in exercising Domestic Violence against the appellant and that is why he was convicted and as a consequence of the conviction, he was placed in the custody and imposed with the fine also which goes to show that the husband was instrumental in inflicting the cruelty because his theory of retrieving back the relationship by way of a proceedings under Section 9 since was ultimately set aside by the Division Bench of this Court in the judgment rendered on 07.08.2008, it had caused to show that the restitution proceedings initiated by the respondent was just to cover up the allegation of harassment as levelled by the appellant against him.
23. The factum of desertion on 14.03.2005 has wrongly been interpreted by the learned family Court the reason being the fact remains that the appellant was residing at her parents place it is not a bone of contention. Once the fact that she was residing at her parents' home is 12 settled and admitted by a party then the statement as interpreted by the learned family Court as extended in the cross-examination by the witnesses to the effect that the desertion has not taken place in their presence will be of no avail, the reason being that it may not be possible in all the cases of desertion to take place in the presence of the witnesses who are adduced before the Court below.
24. Hence, their statements about lack of knowledge of the desertion will not denounce the factum of desertion more so when it is admitted by the appellant. Thus, the Court below has misinterpreted the cross-examination of the witnesses adduced by the parties before it. It has also borne out from the records while considering the statement of DW-4 Bhola Datt Joshi, he supported the fact of the appellant's marriage and the exchange of dowry which the family members of the appellant has given to the respondent's family. He further made a statement that she was physically assaulted on 14.03.2005 and she was thrown out of the house. Thus, as a matter of fact, DW-4 supported the case of the appellant.
25. As far as the finding recorded pertaining to the proceedings under the Domestic Violence Act, though they are proved from the records but since they are being independent proceedings for redressal of the grievance, under a special act, we feel that the present proceedings under Hindu Marriage Act has to be decided independently 13 will have no bearing as far as the proceedings under Section 13 of the Act.
26. Learned Court below while considering the statement recorded of the appellant, as given, to the effect that she does not want to live with the respondent, as she has got threat to her life from him ought not to be taken as to be so serious in nature to dissolve the marriage for the reason being at that stage of proceedings, both the parties were at the helm of their emotional outrageous whims and the statement might have flown out of emotion, hence much reliance by borrowing a story statement from the proceedings under Section 9 for dissolving the marriage ought not to be taken, for the purpose of dissolving of marriage.
27. The statement as recorded of the appellant in the proceedings under Section 9 which is relief by husband will have no credence for the reason that the proceeding which emanated from Section 9, has since being set aside by the Division Bench of this Court dated 07.08.2008, it implies that the findings as recorded in those proceedings too had merged with the final judgments and thus by drawing a statement from the aforesaid proceedings, it cannot be taken that it was an unequivocal stand taken by the wife to the fact that she does not want to spend her life as wife of the respondent. Thus much reliance on the same ought not to have been 14 placed by the Court below while considering the proceedings under Section 13 filed by the respondent.
28. The story which the husband has developed that the living of wife at her parent's place from 14.03.2005 is also established from the fact that rather stand taken by the husband that he tried to visit the parent's home and to bring her back is also not established because as per his statement recorded by the husband, he had not stated that at any point of time ever the husband has visited the parent's home to bring back his wife. Thus, the conclusion drawn by the Court is absolutely erroneous and without application of mind.
29. The procedure adopted by the Court below was faulty for the reason the allegation which has been derived by the learned family Court as levelled by the wife in the proceedings under Section 9 alleging thereof that the husband has an illicit relationship with other females, cannot be borrowed for the purposes of Section 13 for three reasons:-
i) The factum of illicit relationship was not a pleadings raised by the wife in the written statement filed in the proceedings under Section 13 and hence the Court cannot develop the case on that ground, for any party in proceedings before the Court.
ii) In a statement or a stand taken in the written statement in the proceedings under Section 9, which was 15 not under consideration before the Court, dealing with Section 13, the same ought not to have been borrowed for Section 13 proceedings because both the Sections 9 and 13 are independent to one another requiring all together different parameters and grounds.
iii) Proceedings under Section 9 since has been dismissed by Hon'ble High Court by the judgment of 07.08.2008, all pleadings raised in the proceedings under Section 9 and the statement under the principles of merger stands merged with the final judgment and they cease their life and they cannot be extracted for the purposes of Section 13.
30. The finding yet again which has been derived by the learned family Court for the purposes of decreeing the suit by the impugned judgment, is that what has emanated from proceedings under Section 9 is that the wife has lost her interest in her child is yet again a finding which has been considered in the instant case which was not a subject matter of Section 9, nor it was in the pleadings under Section 13. Furthermore, loves of affection by a spouse for the child is not a ground which has been provided for dissolution of marriage under Section 13 of the Act. The reason assigned by the learned family Court while passing the decree of divorce from the view point that the factum of the date of desertion being contradictory will be of no relevance because truth remains and as proved by the parties that there chanced a desertion and 16 the desertion was because of she being thrown out of the matrimonial home by the respondent. Paper No. 27 ka i.e. the statement of PW2 Vijay Kumar who made a statement pertaining to the demand of dowry which was an allegation raised by the wife against the respondent and his family members wherein Mr. Vijay Kumar has submitted that there was no demand of dowry as ever raised, cannot be relied with for the reason that Devendra was not a direct witness of the demand raised and time when the same was raised his presence at the time when demand was raised is also not specific by the family members of the husband nor he has made a statement based on his personal knowledge.
31. Under the Hindus or invariably, in any relationship of husband and wife, some minor misunderstandings are bound to be there. But these minor misunderstandings ought not to be taken as to be reason for dissolving the marriage, more particularly, when the parties to the matrimony have got minor children towards whom they owe a responsibility to take care rear them to their best, granting of a decree of divorce would also amount to ruining the future of the child. If a party to the marriage under certain whims or at the spur of a moment lodges a complaint before the superiors in the department or makes publication in the newspaper though undoubtedly it affects the image of the person against whom such publication is made. But yet again that could 17 be forgiven looking to the mental state of mind under which the same has been published but that cannot be drawn to such an extent to dissolve a marriage and spoil the life of two families.
32. Even under law, it contemplates that the Court should make all efforts by overlooking the minor issues to ensure that the family lives together and discharge their obligations towards the family. Dissolving of a marriage has to be resorted to as a last resort when all avenues and efforts made by the family members to bring the wife back, together fail.
33. Learned family Court while considering the period of husband and wife have lived together or living separately though it is a wide span of time since they have not lived together but the reason for living separately for the wife was that she was thrown out of the home by the husband and not desertion thus husband cannot take the advantage of his own wrong by getting the marriage dissolved on that pretext of desertion.
34. In a matrimonial case, the circumstances for dissolution of the marriage in each case are independent to one another and there cannot be a uniform yardstick which could be adopted for dissolving the marriage. The magnitude of cruelty, the seriousness of allegations and the actions taken under emotional whims have to be tested 18 by the Court, before it comes to a conclusion that marriage between husband and wife is to be necessarily dissolved.
35. This Court feels that even the judgment on which the Court placed reliance for dissolving the marriage has also to be considered from the view point as what was the actual case and circumstances prevailing in the authority before it is relied by the parties. No unanimous ratio could be followed based on the authorities for dissolving the marriage. For example, in the instant case, learned Court below has taken a view that the wife has issued a publication or issues that she has lodged a complaint to the superiors and taking it as to be the intention of the wife not to continue with the marriage is absolutely dis-coordinated finding recorded by the Court.
36. The complaint to the superior or the publication is as regards to the personal allegations. It may at times reflect the intention to continue or to discontinue a matrimonial relationship. Hence no uniform method could be adopted for the said purpose as it would always be subject to its incriminating contents. The reason drawn by the Court for coming to a conclusion that the cruelty has been committed by the wife is absolutely unsustainable and perverse and contrary to the pleadings and the evidences led by the parties and by adoption of wrongful procedure for passing of decree of divorce on the basis of 19 finding recorded in other proceedings between the same set of parties.
37. Looking to the wider interest of the family including a son, this Court feels that until and unless parties established their case to the criminal proceeding requiring the satisfaction of Section 13 to be satisfied the matrimony between husband and wife, particularly in the instant case ought not to have been dissolved and thus, the appeal deserves to be allowed.
38. The impugned order dated 18.04.2013 is set aside and the parties to the appeal are directed to discharge their matrimonial obligations. Registry is directed to frame the decree accordingly. No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 07.10.2017 Mahinder/