Punjab-Haryana High Court
Sunil Kumar vs Smt. Reshmi on 12 July, 2006
Equivalent citations: (2006)144PLR755
Author: Ranjit Singh
Bench: Ranjit Singh
JUDGMENT Ranjit Singh, J.
1. Sunil Kumar is in appeal against the judgment dated 2.2.1999 passed by the District Judge, Gurdaspur whereby the petition filed by him seeking dissolution of the marriage has been dismissed. This marriage, which had been solemnised on 10.9.1983, was consummated and continued for some time leading to the birth of a son named Karan and a daughter named Kanika. At the time of filing the divorce petition, the son and daughter named above were aged about nine and seven years respectively. The appellant-husband had filed this divorce petition alleging that the respondent-wife had treated him extreme cruelty. To support of the allegations, he appellant-husband had averred that the respondent-wife did not want to live with his parents stationed at Jammu and running timber business. Appellant complains that the respondent-wife used filthy and insulting language towards him as well as his parents, friends and relations. He has disclosed that in this background he had filed one divorce petition on 26.4.1984. However, on account of the intervention of the mother of the respondent-wife, that petition was got dismissed in default on 23.7.1986. Thereafter, the parties to the marriage lived together at Jammu till 1989, before shifting to Pathankot. It is further disclosed that in 1988, the father of the appellant died and he then started business of ready made garments. As per the appellant, the respondent-wife used to keep the kitchen dirty, which gave wrong impression in the mind of the children. He has stated that she used to leave the house without informing the appellant and was in the habit of using filthy language even in the middle of night. On one occasion, the respondent-wife had approached the police and the local MLA. It was then agreed upon that the children would live with the respondent-wife and rent will be paid by the appellant. A sum of Rs. 1 lac was also deposited in the name of the respondent-wife and children so that the interest amount could be used for maintenance.
2. The respondent-wife, however contested the petition filed by the appellant-husband. She alleged that the appellant-husband had turned her out from the house after maltreating her. She also submitted that she was tortured for bringing less dowry.
3. On these pleadings, the trial followed. The appellant-husband examined four witnesses besides himself appearing in support of the allegations. On the other hand, the respondent-wife appeared herself and examined three more witness in support of her stand. Having regard to the pleadings and the evidence, the main issue framed by the Court was whether the wife had treated the husband with cruelty. The trial Court came to the conclusion that the cruelty was not established. Court had rightly observed that the allegations of cruelty relating to the period prior to the year 1989 was not relevant as the earlier divorce petition filed by the appellant-husband on the basis of said allegations and the grounds had been got dismissed in default. It is on record that thereafter the parties had stayed together and cohabited till 1989. Accordingly, even if there were some instances, which gave indication of cruelty, the same stood condoned by the conduct of the appellant and hence, could not be taken into consideration. These were rightly required to be ignored from the evidence and consideration. The trial Court accordingly dismissed the petition of the husband for grant of divorce, against which he is now in appeal.
4. From the orders passed in this case, it appears that the case was argued earlier on 28.5.2003 and submissions as made by the respective counsel appearing on behalf of the patties were noticed. It would be appropriate to take notice of these submissions, which have been almost repeated before me. It can be seen that the issues were almost appreciated but the case was adjourned to make another effort for reconciliation between the parties. I he case was adjourned from time to time for this purpose but reconciliation failed. The case now would be required to be decided on merits.
5. Having regard to the earlier observations, no detailed reassessment and re-appreciation of the evidence may be called for. Here it would be appropriate to make reference to the said observations, which are reproduced below:
'Cruelty' is a ground for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 but the said expression has not been defined under the Act. It is generally understood to mean acts committed with the intention to cause sufferings to the opposite party. Which acts amount to cruelty is to be assessed having regard to the status of parties in social life, their customs, traditions and other similar circumstances. Court has to see whether conduct of the respondent is such that it has become intolerable to the petitioner to suffer any longer and to live together is impossible. This is to be judged not only from a solitary incident, but on an overall consideration of all relevant circumstances. Mere disharmony or incompatibility does not amount to cruelty. Whether or not inference of cruelty is to be drawn depends on facts and circumstances of individual case. All facts and circumstances have to be taken together to see the cumulative impact. Law in this regard has been clearly laid down inter-alia, in Dr. N.G. Dastane v. S. Dastane , Shoba Rani v. Madhvkar Reddy , Savitri Pandey v. Prem Chandra Pandey , G.V.N. Kameshwara Rao v. G.T. Jabilli .
In the present case, main acts of cruelty are said to be abusive language, making of complaint to the police and filing of complaints in Court. Use of abusive language was a ground put forward in the earlier petition also and after the parties lived together and previous petition was withdrawn and another child was born. From the evidence of the appellant, no specific and adequate material has been put forward in the form of alleged language used by the respondent which by itself can amount to cruelty. When the parties were having strained relations, merely because the wife approached the police at one stage or the other, will also not be enough to hold that the respondent is guilty of cruelty. The husband has willingly separated his wife and though he is paying the rent of the house and the fees of the children. The fact remains that he is not keen to live with the wife and the children who are being brought up by the wife. The wife has alleged that the husband is living with one Kavita and though such a statement is not mentioned in the written statement, the same cannot be held to be an after-thought as her version is corroborated by Smt. Sandhu, R.W-3.
6. Having, so concluded, this Court felt that efforts were required to be made for reconciliation, though these had earlier failed. The case was adjourned in order to ascertain the view point of the children. Thereafter the case was adjourned from time to time and the order requiring production of the children appears to have been lost sight. Subsequently, adjournment was sought on one ground or the other. The case was adjourned for presence of parties but neither the parties appeared nor the Court insisted with such requirement. On 9.2.2005 counsel appearing for the parties sought adjournment to argue the appeal and this is how the same is now being decided on merits.
7. Though the issue and the evidence had been noticed and discussed, it would be advantageous to consider the evidence afresh and see if the allegation of cruelty was established or not as the counsels have been heard once over again. The allegations when examined in totality to see cruelty appear to be far fetched and stretched. The appellant had an objection to the respondent-wife joining a government service. He otherwise has made general allegations against the wife to be short tampered and of quarrelsome nature. The appellant has also alleged that she used to fight with his mother and misbehaved with other relations. In support of the general allegations, he produced AW-1 Chhaju Ram and AW-2 Ashok Kumar, Agreement dated 7.8.1993 (Ex. A1) statedly executed between the parties has been brought on record. Narinder Kalra AW-3 deposed that the attitude of the respondent wife was hostile towards the appellant and his family. As per his witness, the respondent-wife was short tampered and used to abuse the appellant. He also supported the agreement dated 7.8.1993 whereby a sum of Rs. 3 lacs was paid and it was agreed that the wife would stay separately. Other allegations, as already noticed above, about the quarrel-some nature of wife, use of filthy abuses, keeping the kitchen dirty and insulting the appellant before his friends and relations had also been mentioned by the appellant in his evidence. He has also stated about complaint lodged by wife against him, which as per him, was defamatory in nature containing scandalous allegations.
8. On the other hand, the respondent-wife appeared to state that the husband and his parents used to maltreat her on account of demand of dowry. She has further brought out that, in fact, the appellant was interested in remarrying and turned her out from the matrimonial home in the year 1993 in order to achieve that purpose. She also stated that she was still willing to join the company of the husband. Respondent claimed that her relations had made every attempt to reconcile the matter but these failed due to adamancy of the husband. Her version has been corroborated by RW-2 B.K. Puri and RW-4 Dinesh Arora. It has also been brought out by these witnesses that the appellant wanted to get rid of the respondent and was having illicit relations with his servant. Evidence also revealed that the witnesses had seen a lady inside bedroom of the appellant. Manjit Kaur Sandhu, a social worker and who remained member of the Lok Adalat, had also appeared as RW-3 in support of the stand of the respondent-wife. She mentioned about the efforts that she made to rehabilitate the respondent-wife but to no effect because of the approach of the appellant. She also brought out that the appellant had turned out the respondent and children from the matrimonial home.
9. The trial Court after making detailed reference to the evidence as aforementioned came to the conclusion that the allegations of mis-bvehaviour on the part of the respondent-wife were not supported by any cogent and reliable oral or other testimony Accordingly, the Court found that the appellant failed to prove the plea of cruelty by any cogent, or clinching evidence. Discarding the allegations of instances prior to 1989 to prove the cruelty, the trial Court found that these acts alleging cruelty stood condoned as the parties thereafter started living together and that any instance showing cruelty prior to the date of reconciliation cannot be taken into consideration to find cruelty. In this regard, trial Court relied upon various judgments. It was also found as a matter of fact that the appellant had shifted to Pathankot in view of the prevailing condition in Jammu. The trial Court also referred to the compromise arrived at between the parties to conclude that this was an agreement arrangement and could not lead to the allegations of desertion.
10. It would be seen that the allegations made by the appellant husband to show cruelty on the part of the respondent-wife are very general in nature and were normal bickerings arising out of wear and tear of married life. As rightly noticed by the trial Court and this Court in its order dated 28.5.2003 (reproduced above), the cruelty having not been defined is required to be assessed having regard to the facts and circumstances in each case. As observed by Hon'ble Supreme Court in V. Bhagat v. D. Bhagat (Mrs.) , while arriving at conclusion, regard must be had to be the social status educational level of the parties; the society they move in, the possibility or otherwise of the parties even living together in case they are already living apart. In the case G.V.N. Kameshwara Rao v. G. Jabilli , the Hon'ble Supreme Court held:
Cruelty can be said to be an act committed with intention to cause suffering to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty though it may amount to misconduct.
11. Seen in the light of above law laid down by Supreme court, it can be said that the allegations made by the appellant would at the most only show that there were occasional outburst of anger, rude language or austerity of temper, which may amount to a misconduct but cannot be termed as cruelty. Though the parties are living apart but it is with mutual arrangement and the possibility of their living together cannot be ruled out. Rather the wife is willing to live with the appellant-husband.
12. Shri Ashok Aggarwal, learned Counsel appearing for the appellant submitted before me that this marriage had in fact been irretrievably broken down and it would be exercise in futility to allow this marriage to continue. As per the counsel, it would be in the interest of both the parties that this marriage should come to an end. He has drawn my attention to the Supreme Court decision in the case of Naveen Kohli v. Neetu Kohli , in support of his submission. I find that this judgment will not be fully attracted in this case. This was a case where Hon'ble Supreme Court found, having regard to the facts of the case, that wife had treated the husband with cruelty. Court further held that each case has to be decided on its own merits. Commenting upon the aspects of irretrievable breakdown of marriage, the Hon'ble Supreme Court observed that it should be a statutory ground for divorce and parliament was commended to pass such an amendment. These are thus only recommendations made and cannot be a ground to grant the divorce by this Court. Moreover, in the present case, it cannot be said that the marriage has irretrievably broken down. Parties are staying separate with mutual agreement. Wife is still willing to join the husband. The allegations of cruelty levelled by the husband are too general in nature and would not indicate that the wife had treated the husband with cruelty. In short, the appellant has not been able to establish the ground of cruelty 'on the basis of evidence produced by him. On the other hand, wife has succeeded in proving her stand against the allegations made by the appellant husband. Thus, the appellant cannot seek any support from the case of Naveen Kohli (supra). It appears that the appellant somehow is wanting to get rid of his legally wedded wife. The assertion of respondent that appellant is having some relationship outside the marriage also cannot be easily discounted. To hold that the marriage has irretrievably broken down in this background may amount to adding premium to the misconduct of the appellant. As already noticed, irretrievable breaking down of marriage is yet not a statutorily recognized ground of divorce under the Hindu Marriage Act. Accordingly, 1 do not find any substance in the submission of the counsel for the appellant on this count.
13. In view of the above discussion, the appeal fails and is accordingly dismissed. The appellant should pay costs to the respondent, which is qualified at Rs. 10,000/-.