Punjab-Haryana High Court
Dr.Ashok Kumar Aggarwal vs Smt.Anju Raje on 23 September, 2009
Equivalent citations: AIR 2010 (NOC) 442 (P. & H.), 2010 (3) AKAR (NOC) 313 (P. & H.) 2010 AIHC (NOC) 590 (P. & H.), 2010 AIHC (NOC) 590 (P. & H.), 2010 AIHC (NOC) 590 (P. & H.) 2010 (3) AKAR (NOC) 313 (P. & H.), 2010 (3) AKAR (NOC) 313 (P. & H.)
FAO No.158-M of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.158-M of 2003
Date of decision: 23.09.2009
Dr.Ashok Kumar Aggarwal ..Appellant
Versus
Smt.Anju Raje ...Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present:- Mr.Bhoop Singh, Advocate,
for the appellant.
Mr.Ravinder Rana. Advocate,
for the respondent.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
VINOD K. SHARMA,J.
This appeal by the husband is directed against the judgment and decree dated 9.4.2003 passed by the learned Additional District Judge, FAO No.158-M of 2003 2 Chandigarh dismissing the petition filed by the appellant under section 13 of the Hindu Marriage Act, 1955 (for short the Act) for dissolution of marriage.
The appellant sought a decree of divorce on the ground of cruelty and adultery on the pleadings that the parties were married on 10.6.1994 at Lucknow according to Hindu rites and ceremonies. After the marriage, the parties lived together and cohabited as husband and wife at Pilani (Rajasthan), Guwahati (Assam) and Chandigarh. No child was born out of this wed-lock. The appellant claimed that he is an intellectual and belonged to cream scientific society of the country. Due to indefinite attitude of the respondent, the appellant could not enjoy his happy married life. The respondent was said to be lethargic type of woman who did not take interest in the household affairs and personal comforts of the appellant. She was said to be having her own male friends in her circle. At the time of marriage she was working as a Post Graduate Teacher in Northern East Railway Senior Secondary School, Gorakhpur. Despite the assurance given to the appellant that she will leave her job as she got another job as Post Graduate Teacher at Birla Balika Vidyapeeth, Pillani, she kept accommodation provided to her for a period of 21 months at Gorakhpur just to meet her male friends periodically. It was on account of persuasion of the appellant that she resigned her job in the month of January, 1995 but she retained Govt. Accommodation till the month of March,1996.
In view of the behaviour of the respondent, the appellant left his job at Pilani and joined the institution of Advance Study in Science and FAO No.158-M of 2003 3 Technology as Professor and Head of the Mathematical Science Division at Guwahati. At Pilani the appellant was working as Association Professor in Birla Institute of Technology. He remained in Guwahati from 2.1.1996 to 12.5.1998 and during this period the respondent stayed with the appellant for about half of the time. She was said to be having quarreling habits and continued creating atmosphere for annoyance of the appellant. The appellant joined Punjab University, Chandigarh as Professor of Mathematics on 14.5.1998 and the respondent remained with him at Chandigarh from June, 1998 to 4.11.1998. On 9.11.1998 the respondent left her matrimonial home and started living with her parents at Fatehgarh (UP). During the period the respondent stayed with the appellant he found that the respondent had irregular menstruation period and on medical check up it was discovered that the respondent had tilted uterus which caused blockage of one side of Fallopian tube. All this was to avoid conception. In the month of March, 1995 she conceived but got aborted in the month of May, 1995.
It was the case set up by the appellant that when the parties were residing at Guwahati they were advised by the doctor to be careful regarding direct physical sexual contact it being risky as the respondent had some internal infection problem. On account of this, the appellant started using contraceptives at the time of intercourse. On 24.11.1998 the appellant received a telephone call from the respondent stating that she had become pregnant. The appellant asked her the name of the person from whom she conceived pregnancy. It was the case of the appellant that the respondent FAO No.158-M of 2003 4 conceived pregnancy with physical contact with another person from her male friendly circle. The respondent, however, refused to disclose the secret and she got aborted in the month of January, 1999. The respondent was asked by the appellant to keep a piece of flesh of child for DNA test for expert opinion regarding the character of the respondent. It was the case of the appellant that the respondent developed extra marital relations with other persons from her male friendly circle. On 9.3.1999 the respondent came to the house of the appellant at Chandigarh where she entered the house by breaking open the lock, and removed medical papers concerning her.
On the pleadings referred to above the appellant claimed that he was entitled to a decree of divorce on the ground of cruelty and adultery.
The petition was contested by the respondent wherein a plea was taken that the appellant is in the habit of levelling false allegations. She denied that she was lethargic type of lady or that she used to neglect the appellant. She also denied having developed sexual relationship with other persons. She also denied the allegations that she conceived due to physical contact with any other person. It was pleaded that the appellant suffered from some sort of inferiority complex. She also denied that she has any male friendly circle. The allegations that she used to go to Gorakhpur to meet her male friends was also denied. She also denied that the appellant joined job at Guwahati due to the behaviour of the respondent. Allegations were said to be false to get rid of the respondent. The respondent pleaded that she got aborted on the asking of the appellant. It was also the case of the respondent FAO No.158-M of 2003 5 that in order to prove her chastity, loyalty and honesty towards the appellant she preserved the foetus for DNA test which was deposited in the court for sending the same for DNA test. She also denied the allegations that she had broken up the lock at Chandigarh on 9.3.1997. It was also the case of the respondent that the appellant was a man of suspicious mind. The appellant was divorcee at the time of marriage and this fact was within the knowledge of the respondent. Few years prior to the date of marriage the appellant had filed a petition for divorce against his previous wife Smt.Suman daughter of Shri J.P.Gupta levelling similar type of allegations. He levelled serious allegations regarding her character and ultimately decree of divorce was passed by mutual consent. She also denied having subjected the appellant to cruelty.
In the replication averments made in the petition were reiterated whereas averments made in the written statement were denied.
On the pleadings of the parties the following issues were framed by the learned Matrimonial Court:-
1. Whether the marriage between the parties is liable to be dissolved by a decree of divorce on the grounds mentioned in the petition as alleged? OPA
2. Relief.
In the evidence led, the appellant reiterated the averments made in the petition. Learned matrimonial court took note of the conduct of the appellant with regard to his previous marriage and recorded a finding that the appellant was unable to tell the name of the person with whom the FAO No.158-M of 2003 6 respondent developed sexual relationship. Learned matrimonial court found that suspicion arose in the mind of the appellant on the basis of calculation of menstruation period and fertility period of females. The appellant had not seen any person in the company of his wife nor he was aware of the name of such person with whom she developed sexual relationship, but in spite of that he characterized his wife as characterless. Learned matrimonial court felt that opinion regarding fertility period and calculation on the basis of menstruation period can not always be correct. Learned matrimonial court further found that suspicion in the mind of the husband regarding character of his wife could not be removed by medical test or DNA test, as these results also are not always found to be cent per cent correct. Learned matrimonial court further held that it was for the appellant to have mentioned in clear words the name of person concerned, with whom she developed sexual relationship. Learned matrimonial court further found that except for his own statement no other person appeared in the witness box to corroborate the statement of the appellant. Learned matrimonial court further found that PGI treatment Ex.P.1, on which reliance was placed by the appellant could not lead to the conclusion that the appellant was not capable to have sexual intercourse. The learned matrimonial court also held that his bald statement that he did not have sexual intercourse with his wife after the month of August, 1998 could not be believed. Learned matrimonial court held that as per the stand of the respondent she had kept the Govt. Accommodation at Gorakhpur because her sister was also teacher and being ill, she used to reside in that accommodation. FAO No.158-M of 2003 7 Learned matrimonial court also found that the letter Ex.PF written by B.Kumar before settlement of marriage could not be treated to be an undertaking on the part of the respondent, as the said letter was neither written by the respondent, nor by her father or any other member of her family. Learned matrimonial court held that the respondent committed no fault in not submitting her resignation from the post of teacher at Gorakhpur as she was to keep in her mind her future. Learned matrimonial court also held that after remaining in the company of appellant for few months she might have felt that it might not be possible for her to live with her husband for whole of life. Learned matrimonial court held that merely because the respondent did not resign and kept accommodation could not lead to a conclusion that the accommodation was kept to meet and have sexual relations with her male friends.
Learned matrimonial court also felt that it was not proper for the appellant to have levelled such serious allegations without verification. The suspicion in the mind of the appellant was based on calculation of fertility period of a woman. The version of the appellant was held to be not believable.
Learned matrimonial court further held that the appellant had made these type of serious allegations, even against his first wife. The ground of adultery was rejected.
It is pertinent to mention here, that as per requirement of law it was incumbent upon the appellant to have impleaded the alleged adulterer as party, in the absence whereof the plea of adultery can not be accepted. FAO No.158-M of 2003 8 Furthermore, the requirement of provisions of the Act is that spouse should have sexual intercourse with other person, but no such pleadings were made in the petition but only a presumption was sought to be drawn by the appellant on the basis of his calculation.
The plea of cruelty stood rejected by the learned matrimonial court by holding that it was not alleged by the appellant, that he was ever physically abused or humiliated by the respondent in the presence of other relatives and family members. The stand of the appellant that the act of the respondent in getting aborted twice without his consent amounted to cruelty, on the plea that she was not willing to have birth to a child was not accepted as the appellant himself, pleaded that in medical check up it was discovered that the respondent had tilted uterus which caused blockage of one side of fallopian tube, so it is difficult to conceive, but no medical record was produced in proof thereof.
The plea that medical record was stolen by the respondent or that she entered the house of the appellant at Chandigarh after breaking open the lock was also not believed as the respondent had taken a specific stand that she had not broken the lock.
Learned matrimonial court also found that the plea of the appellant that he had gone to Kurukshetra on the said date could not be accepted in he absence of documentary evidence regarding his stay at Guest House or Rest House. Learned matrimonial court also held that RW 2 brother of the respondent deposed that they reached Chandigarh, and found the house of the appellant to be locked. On inquiry it was relvealed FAO No.158-M of 2003 9 that he had gone somewhere. No suggestion was put to him that the lock was broken by them in the absence of the appellant. Learned matrimonial court found that even if this fact for the sake of argument was accepted still it was not so serious, as respondent being legally wedded wife of the appellant had gone to her matrimonial home.
Learned matrimonial court also found that she had not gone there to take away medical record, as admittedly she stayed there for 2-3 days. The plea that she had come to take away medical record was not believed. Learned matrimonial court also found that the appellant had not raised any objection to her stay in Chandigarh, and no report was made to the police regarding stealing of the medical record. Learned matrimonial court felt that the allegations about stealing medical record could also not be believed.
Learned matrimonial court also held that the version of the appellant stood falsified as the respondent had become pregnant twice during the period she remained in matrimonial home. Learned matrimonial court recorded a positive finding that it could not be believed that the intention of the respondent was not to give birth to the child as alleged. Learned matrimonial court found that it was the appellant who compelled her to get abortion on account of his suspicion, that she got pregnant from some other person. Learned matrimonial court held that the appellant failed to prove that abortion in the month of 1995 was got effected only by the respondent as it was a miscarriage, and not abortion.
The plea of the appellant that he was kept in dark by the FAO No.158-M of 2003 10 respondent in not submitting the resignation from the Government post at Gorakhpur in spite of assurance was held to be not a ground for divorce, as no such assurance was given by the respondent, her parents or brother. Learned matrimonial court felt that the husband cannot legally compel the wife to resign government job and the plea of cruelty to seek divorce was also rejected and petition was ordered to be dismissed.
Mr.Bhoop Singh, learned counsel appearing on behalf of the appellant vehemently contended that the judgment and decree passed by the learned matrimonial court cannot be sustained in view of the proved facts which constitute cruelty i.e.:
(i) that in spite of assurance given before the marriage the respondent did not leave the job at Gorakhpur and even after submitting resignation she withdrew it without the consent of the appellant.
This plea of the learned counsel deserves to be noticed to be rejected. It was not disputed that after the marriage even without submitting the resignation the respondent joined matrimonial home and stayed with him. The plea of the appellant that house was kept by her to meet her male friends could not be proved by leading any cogent evidence whereas the reason for retaining the house were duly explained by the respondent/wife.
(ii) That the respondent conceived in the month of May, 1995 but she got aborted without the consent of the appellant and therefore, this act amounted to cruelty. This allegation again based on the oral evidence of the appellant, whereas the respondent had taken a specific stand that it was a case of miscarriage.
FAO No.158-M of 2003 11
This allegation again cannot amount to cruelty which could entitle the appellant to a decree of divorce. Learned matrimonial court rightly rejected this ground.
(iii) That the learned matrimonial court failed to notice that it was proved fact that on 4.11.1998 a call was received from the respondent about her pregnancy which certainly caused cruelty as the child was not conceived from the loins of the appellant.
The contention of the learned counsel was that in spite of specific instructions that foetus should be retained for DNA test she did not immediately send the foetus but kept it by mixing certain chemical so that no test could be conducted, the act amounted to mental cruelty.
This plea again is baseless. Learned matrimonial court has rightly come to the conclusion that mere suspicion of the husband cannot be a proof of adultery, especially when the appellant had not seen the respondent in the company of any male member, nor he could name anyone.
Mr. Bhoop Singh, learned counsel also contended that in the written statement, a false plea was taken by the respondent that she got aborted child, on the asking of the appellant which was factually incorrect. The contention of the learned counsel was that, this false averment constituted cruelty.
This plea again is totally misconceived. The assertion in the written statement was supported by her in the evidence. Mere bald statement of the appellant that he never asked her to get aborted, could not be taken to be gospel truth as contended.
FAO No.158-M of 2003 12
Lastly, Learned counsel appearing on behalf of the appellant by placing reliance on the judgment of Hon'ble Supreme Court in the case of Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate 2003 (1) Apex Court Judgments 677 contended that mental cruelty does not depend upon numerical count of such incidents or only on the continuous course of such conduct. It goes by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home.
The contention of the learned counsel was that if the averments were taken cumulatively, and the fact of not retaining the foetus for DNA test singly it amounted, to such an act which constituted cruelty. It was also the contention of the learned counsel that the respondent was a total liar and the stand taken in the written statement, and evidence led was of such a nature, which caused mental cruelty to the appellant.
This contention again deserves to be noticed to be rejected. Foetus, in fact, was retained by the wife, it was also brought to Chandigarh. Merely because examination of foetus was not possible could not lead to a conclusion that the plea of the appellant stood proved or that the respondent was a liar.
Hon'ble Supreme court in the case of Smt.Kamti Devi and another Vs. Poshi Ram, AIR 2001 Supreme Court 2226, has been pleased to lay down as under:-
"4.The marriage between appellant Kamti Devi and respondent Poshi Ram was solemnised in the year 1975. For almost FAO No.158-M of 2003 13 fifteen years thereafter Kamti Devi remained childless and on 4.9.1989 she gave birth to a male child (his name is Roshan Lal). The long period in between was marked by internecine legal battles in which the spouses engaged as against each other. Soon after the birth of the child it was sought to be recorded in the Register under the Births, Deaths and Marriages Registration Act. Then the husband filed a civil suit for a decree declaring that he is not the father of the child, as he had no access to the appellant Kamti Devi during the period when the child would have been begotten.
10. But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The FAO No.158-M of 2003 14 raison d'etre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.
11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above." FAO No.158-M of 2003 15
There can be no dispute that parties to the marriage had access to each other. Mere supression of the appellant in calculation of menstrual period of woman, cannot be accepted as proof of adultery or mental cruelty. In view of the law laid down by Hon'ble Supreme Court in the case of Smt.Kamti Devi and another Vs. Poshi Ram (supra) the stand of the appellant deserves to be rejected, as presumption is to be drawn against the appellant in view of Section 112 of the Evidence Act.
For the reasons stated above, finding no merit in this appeal it is ordered to be dismissed but with no order as to costs.
(Vinod K.Sharma) 23.09.2009 Judge rp