Himachal Pradesh High Court
Sh. Janak Singh vs Smt. Renu Kumari Rt on 25 May, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
FAO (HMA) No. 29 of 2008
Judgment reserved on : 19.5.2016
Date of Decision : May 25 , 2016
Sh. Janak Singh ... Appellant
of
Versus
Smt. Renu Kumari rt ... Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1
Yes.
For the appellant : Mr. N. K. Thakur, Sr. Advocate, with Mr. Rahul
Verma, Advocate, for the appellant.
For the respondent : Mr. Anup Rattan, Advocate, for the respondent.
Sanjay Karol, J.
Since the year 2006, parties have been litigating in various Courts. Attempt made by this Court to have the matter amicably resolved did not find favour with the parties.
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 22. In this appeal filed under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), .
appellant Janak Singh (husband) has assailed the judgment dated 24.10.2007, passed by learned Addl. District Judge, Una, Distt. Una, H.P., in HMA Petition No. 4 of 2006, titled as Janak Singh vs. Renu Kumari, whereby his petition for of divorce filed under the provisions of Section 13 (1a) of the Act, seeking dissolution of marriage on the ground of rt cruelty against his wife Renu Kumari, stands dismissed.
3. Certain facts are not in dispute. Janak Singh married Renu Kumari as per Hindu Customary Rites on 20.11.2003. At the time of marriage, Janak Singh was already having a son through his previous marriage. Also Renu Kumari was divorced. However, from the wedlock one female child was born. Certain disputes having arisen between the parties, since 8.11.2004 parties started residing separately. The girl child is in the custody of the wife and the son is living with the husband.
4. On 1.2.2006 Janak Singh filed a petition for divorce alleging various acts of cruelty which came to be ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 3 opposed by Renu Kumari, inter alia, on the ground of constructive desertion.
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5. Based on respective pleadings of the parties, trial Court framed the following issues:-
1. Whether the respondent has treated the petitioner with cruelty as alleged? OPP of
2. Whether the respondent has deserted the petitioner without any reasonable cause for a continuous period of more than two years? OPP rt
3. Whether the petition is not maintainable?
OPR
4. Relief.
6. Appreciating the testimonies of five witnesses examined by the petitioner-husband and three witnesses examined by the respondent-wife, trial Court answered the issues against the husband and dismissed the petition both on the grounds of cruelty and desertion. Such findings returned by the court below are subject matter of challenge in the present appeal preferred by the husband.
7. Challenge to the findings returned by the trial Court is primarily laid on the ground that the complaint filed by the wife under the provisions of Section 498-A IPC came to be dismissed. Since respondent-wife had made false ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 4 allegations of dowry demands and maltreatment, which never came to be proven, the Court below erred in .
dismissing the petition for divorce.
8. The moot point which arises for consideration in the present appeal is as to whether mere dismissal of the complaint filed under Section 498-A IPC is in itself a ground of for granting divorce to the husband on the ground of cruelty or not. This question is no longer res integra.
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9. The apex Court in Ramchander vs. Ananta, (2015) 11 SCC 539 had an occasion to deal with a case where the wife had withdrawn the petition filed under Section 498-A IPC against the husband who alleged such fact alone to be mental cruelty. While not agreeing with the contention raised on behalf of the husband, the apex Court observed that mere failure to prove the allegations so made in the complainant itself would not entitle the husband to a decree of divorce. The Court, by relying upon its earlier decision rendered in Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 held as under:-
"10. The expression "cruelty" has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 5 one spouse towards the other, which causes a 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. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff.
What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and of circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and rt circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case this Court set out illustrative cases where inference of "mental cruelty" can be drawn and they are only illustrative and not exhaustive."
10. In this backdrop evidence led by the parties needs to be examined.
11. Janak Singh (PW-1) admits that certain differences had arisen between him and his wife. He also admits that his wife had instituted a petition for maintenance under Section 125 Cr.P.C. as also filed a complaint under Section 498-A IPC. He also admits that on the asking of his wife, panchayat was convened. He further ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 6 admits that his wife used to look after the children. In fact, she had got the son admitted in a school at Amb but .
sometime in the month of November, 2004 he himself withdrew him from the school and took him alongwith himself. For doing do, he does not disclose any reason.
Quite apparently it is not his allegation that respondent of maltreated the child. It has also come on record through testimony of this witness that while he was staying in rt Ludhiana, his wife continued to look after the entire family, including his parents, at the matrimonial house at Bhadarkali, Tehsil Amb, Una (HP). In fact, she was treating the son to be her own and the in-laws with compassion.
12. Sudershan Singh (PW-2), brother of the petitioner-husband wants the Court to believe that the entire family came to be falsely impleaded by the respondent-wife on false allegations of dowry demands.
Significantly the witness wants the Court to believe that the respondent was wanting her husband to leave the child in an orphanage and also live separately. But such version stands belied from the admissions made by the husband, apart from their being no proof thereof.
::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 713. An endeavour was made by the petitioner-
husband to establish that the respondent-wife is in a habit .
of lodging false cases. For establishing such fact, he examined Gurdial Singh (PW-3), first husband of the respondent-wife. But from his testimony, no such fact emerges on record. There is no finding by any judicial of authority to the effect that the case filed by the respondent against this witness, was either false or was so done with a rt malicious intent .
14. Through the testimonies of independent witnesses Rachpal Singh (PW-4)and Sudershan Kumar (PW-
5) petitioner-husband wants to establish that he suffered cruelty from the hands of his wife. Having minutely perused their testimonies, such fact cannot be said to have been proven on record. In fact, these witnesses admit that Janak Singh used to work and reside at Ludhiana and in his absence, it was the respondent-wife who used to look after his parents and children. She used to reside in the village.
15. On the other hand, from the testimony of respondent-wife Renu Kumari (RW-1) it is seen that she was prompted to leave the matrimonial house. Firstly the ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 8 husband withdrew the child from the school and got him admitted somewhere else and secondly she was constantly .
subjected to cruelty and harassment. There were dowry demands in the shape of motor-cycle and money. She was beaten up and forcibly asked to leave the matrimonial house in November, 2004. An attempt was made to have of the differences reconciled but none would listen to reason.
In fact, she was left to fend for herself. Her husband did not rt pay any amount towards maintenance either for the child or herself. One finds that she had agreed to the suggestion made by the panchayat of returning to the matrimonial home but however, since the husband failed to pay any maintenance she did not agree for the same.
16. Raman Kumar (RW-2) and Hari Dutt (RW-3) who are respectable residents of the area have corroborated the version of Renu Kumari with regard to the various atrocities, cruelties and constructive desertion.
17. Now if husband fails to maintain his wife or makes various demands of dowry, then the wife cannot be compelled to fulfill her matrimonial obligations. Act and conduct of the husband was such which prompted the wife ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 9 to leave the matrimonial house. She was beaten up and thrown out of the matrimonial house. She continued to bear .
the atrocities of her husband, perhaps in the interest of the children and to keep her marriage alive. Regretfully, husband could not understand her feelings and empathize with her. It is not a case where the husband was subjected of to physical harassment or cruelty. Mental cruelty in the instant case cannot be said to be cruelty at all.
rt
18. It be also observed that the husband refused to maintain his wife and amount towards the same came to be disbursed only when he was goaded by this Court.
19. While making submissions, learned counsel for the appellant seeks reliance on the following decisions of the apex Court: U. Sree vs. U. Srinivas, (2013) 2 SCC 114; K. Srinivas Rao vs. D.A. Deepa, (2013) 5 SCC 226; and Malathi Ravi, M.D. vs. B. V. Ravi, M.D. (2014) 7 SCC 640.
20. Decision rendered in U. Sree (supra), is inapplicable in the given facts and circumstances of the case, for in the said case the Court found the husband to have been consistently ill-treated by his wife who in fact had great dislike for 'sadhna' in music, which the husband ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 10 was interested in. The husband was ridiculed, humiliated and embarrassed in open public, more so, in the presence .
of his disciples. The wife was not supportive of the husband's interest in seriously pursuing his music as a hobby.
21. In K. Srinivas Rao (supra), Court was dealing with of a case where the wife had persistently made scurrilous, vulgar and defamatory statements against the husband and rt his family members which were found to be false in various proceedings initiated including the one under Section 498-A IPC. To similar effect is the decision rendered by the apex Court in Malathi Ravi (supra).
22. Now in the instant case, petitioner-husband has not bothered to place on record either the statements of the complainant-wife or the judgment rendered by the trial Court, holding the allegations levelled against them to be false. Hence the decisions are of no help to the petitioner-
husband.
23. As such, it cannot be said that the findings returned by the Court below are perverse, illegal, erroneous or that the trial Court has failed to correctly and completely ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP 11 appreciate the testimonies of the witnesses or ignored any other material so placed on record by the parties. It also .
cannot be said that the trial Court erred in misapplying or misconstruing the relevant provisions of law.
24. In this view of the matter, no error can be found with the Judgment and decree dated 24.10.2007, passed by of learned Addl. District Judge, Una, Distt. Una, H.P., in HMA Petition No. 4 of 2006, titled as Janak Singh vs. Renu rt Kumari. The appeal is accordingly dismissed.
Pending applications, if any, also stand disposed of accordingly (Sanjay Karol), Judge.
May 25 , 2016 (PK) ::: Downloaded on - 15/04/2017 20:26:11 :::HCHP