Delhi High Court
Sudha vs Mahesh Chand Jhamb on 31 October, 1986
Equivalent citations: AIR1987DELHI174, 31(1987)DLT166, 1987(12)DRJ107, AIR 1987 DELHI 174, (1987) 31 DLT 166, 1987 (1) HINDULR 141, (1987) 12 DRJ 107, (1987) MARRILJ 170, (1987) 1 CURCC 667, (1987) 1 DMC 73, (1987) MATLR 47, (1987) 1 HINDULR 123
JUDGMENT S.S. Chadha, J.
(1) The appellant before me filed a petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). The allegations of the matrimonial offence of cruelty are contained in paras 4 to 9 of the petition. One of the issues framed was as to whether the respondent has treated the petitioner with cruelty as alleged. The petition was tried and dismissed upon the finding on this issue against the appellant. The learned Additional District Judge found that the allegations made in paras 4 to 8 are vague and not in conformity with Rule 7(iv) in the absence of disclosure of date, month, time and also the place of the commission of the matrimonial offence of cruelty. The incident of cruelty as mentioned in para 9 of the petition was found as unsubstantiated. The petition was dismissed by the order dated 19/10/1985. The present appeal under Section 28 of the Act seeks the reversal of the decree of the trial Court and for grant of the decree of dissolution of marriage.
(2) The respondent is appearing in person and, therefore, it has taken three hearings in going through the records of the trial urt including the pleadings and the evidence adduced by the parties and the documents placed on the record. For the reasons given below, I find that the learned Judge has gone wrong in returning the finding on paras 4 to 8 of the petition. I . am not inclined in the first appeal to go for the first time into the merits of the incidents of cruelty as alleged in paras 4 to 8 of the petition and would leave it to the trial Court for its determination.
(3) The allegations made in paras 4 to 8 in the petition are reproduced hereunder :-
"4.That right from the day of marriage, the behavior of the respondent was abnormal and cruel towards the petitioner. Immediately after the marriage, the respondent told the petitioner that he had no mind to marry and he will never have any marital relations with her. He caught hold of the petitioner from her neck and told her in threatening tone that he will kill her if she talked to any other person, even to her relatives and friends. He made the petitioner sleep separately from him and did not allow the marriage to consumate.
5.That the respondent treated the petitioner with cruelty. Whenever the petitioner requested the respondent to have matrimonial relations with her, he used to threaten her with death. He used to say "you give me poison-start hating me-give me divorce-I want to die-I look like a mad man-1 am going to sleep Along with my mother". This cruel behavior of the respondent caused mental torture and adversely affected her health. Inspite of best efforts and persuation by the petitioner the marriage could not be consummated and the respondent told her every time in a threatening tone that he will not allow her to bear child and become mother and while threatening so, he used to catch hold of the neck of the petitioner with force. During her stay of two months, the marriage could not be consummated and she continues to be virgin.
6.That the respondent used to call the petitioner folish, illiterate, stupid and insulted her even in the presence of mother and others. Sometimes he used to ask meaning or spelling or definition of difficult words of English language. On the petitioner's inability to tell he used to get infuriated and used to scold the petitioner for hours altogether. He used to say that the petitioner has got all fake degrees and she is a fool and stupid.
7.That the petitioner is working in a bank as a clerk. The respondent used to ask her to take loan from Bank to buy a scooter so that he could squanders the money. Similarly he used to ask the petitioner to claim leave fare concession from Bank on fake travel tickets but he never wanted to go out of station. On the refusal of the petitioner to do so, the respondent used to beat her mercilessly.
8.That apart from the above-mentioned cruel and inhuman behavior the respondent made false allegation against the petitioner and cast aspersions on her character saying that she is of loose character and characterless and that the petitioner had illicit affairs with her office colleagues and brother-in-law. The respondent wrote a letter dated 16/2/1983 to Mr. Vijay Bahl, her brother-in-law after she was turned' out from her matrimonial house."
(4) Rule 7(iv) of the Hindu Marriage Act Rules, 1979 provides that in the case of alleged desertion, the date and the circumstances in which it began in the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed should be stated in the petition in addition to the particulars required to be given under Order Vii Rule I of the Code of Civil Procedure. The object of those provisions and the function of the particulars is to present a full picture with sufficient details of the cause of action so as to make the opposite party understand the case It is to define and limit the issues to be tried. The allegations made in paras 4 and 5 of the petition, in my view, are not vague. In para 4 of the petition there is a categorical allegation that immediately after the marriage, the respondent told the appellant that he had no mind to marry and he would never have any marital relations with her and that he made the appellant sleep separately from him and did not allow the marriage to consumate. In para 5 there is again the allegation that the appellant requested the respondent to have marital relations with her for which he used to threaten her with death. This conduct, if proved, would lead to an inference that the marriage bed instead of being a source of pleasure, became a source of frustration and misery for the wife. It is for this reason the appellant alleges that the respondent treated the appellant with cruelty. The requirement of the rule is only to give specific acts of cruelty and the occasion when and the place where such acts were committed. There is a specification of the place in both paras 4 and 5 being the matrimonial home. The occasion mentioned in para 4 is immediately after the marriage which was performed on October 20,1982. In para 5 the appellant states that during her stay of two months in the matrimonial home the marriage could not be consummated. The pleas contained in paras 4 & 5 have not to be construed as statute. They have not to be read in a pedantic manner. The object of the Rule calling upon the appellant to give specific acts of cruelty by giving occasions and the place where the said acts were committed is only with a view to enable the respondent to know what case he had to meet and thus to prevent a surprise at the the trial. In my view the petition contains averments indicating with reasonable definiteness the primary facts of the alleged cruelty and they were wrongly brushed aside by the trial Court as Vague.
(5) In para 8 of the petition, the averments are made that the respondent made false allegations against the appellant and cast aspersions on her character saying that she is of loose character and characterless and had illicit affairs with her office colleagues and brother-in-law. A specific reference is made to the respondent's letter dated 16/2/1983 (wrongly typed as 'petitioner') to Mr. Vijay Bahl. In the corresponding paragraph of the written statement the writing of letter to Shri Vijay Bahl is admitted as also reference has been made to the incidence of 10/2/1983 and certain insinuations have been made therein. Para 8, therefore, contains sufficient particulars of cruelty.
(6) So far as the allegations in paras 6 and 7 are concerned, they are mere in the nature of outburst of the appellant showing incompatibility rather than any acts of alleged cruelty. The appellant does allege that the respondent used to beat her but this allegation is without material particulars. The trial Court, therefore, rightly did not go into those allegations.
(7) The respondent has supported the finding of the trial Court that the allegations of cruelty were vague. Reliance was placed on "Bhim Sen Sharma v. Smt. Krishna Devi", 1983M.L.R. 215. In that case there were allegations that the misbehavior of the respondent had reached such a stage when it had become impossible for the appellant to live with her due to tension created in his mind. There were allegations relating to earlier acts of cruelty i e. before 1978 but there the parties admittedly lived together and cohabited from 1978 to 1980 for a period of two years That case is based on an admission by the parties' counsel that the requirement of the Rules framed under the Act as also form prescribed, make it mandatory for the petitioner to state the acts of cruelty in separate paragraph with dates and time. The requirement under the Rules framed had admittedly not been fulfillled inasmuch as not even a single date or time is stated in that petition or in the evidence. It is on those facts that the Court took the view that the general allegations are not sufficient to substantiate the cruelty, it was rendered on the peculiar facts of that case.
(8) I am not persuaded to give my own finding in this appeal on the allegations and evidence of the parties on the various acts or cruelty for another reason. The allegation is that the marriage between the parties has riot been consummated. The respondent states that it was duly consummated and the appellant is no longer a virgin. He further stated in the written statement that in order to ascertain the facts, the appellant may be directed to undergo a medical test to determine the truth or falsity of these allegations by a Board of doctors/specialists, constituted for the purpose of determining the virginity of the appellant. In the replication the appellant stated that she has no objection for the test of her virginity. In her examination-in-chief in the trial Court, she stated that she is prepared to undergo virginity test and that she got herself examined before filing the petition also from a Nursing Home. In the cross-examination she stated that she got her virginity test done on 13/12/1983 from Gupta Medical Centre, Moti Bagh Part II. New Delhi and the medical report marked 'A' was shown to the counsel for the respondent and is on the record. No initiative was taken either by the appellant or the respondent for medical examination by any independent Board of doctors. The respondent made a statement in the trial Court that during the time the appellant stayed with him up to 20/12/1982, almost on all dates he was having sex with her. Not only it is the duty of the parties to produce best evidence, the law also enjoins on the Court under Section 23 to be satisfied about the existence of any of the grounds for the granting of the relief. The intention of the legislature in that the public interest requires that the marriage bond be not set aside lightly or without strict enquiry. It is only on the satisfaction of the Court that a relief can be granted. The medical evidence of an independent Board of doctors would have determined the falsity or truth of the case of the parties. Both the parties are young and they had the privacy of a bed room in the matrimonial home. It is the common case that the parties slept on one bed for a period of about two months. The appellant alleges that there was no consummation of marriage whereas the respondent states that he was having sex with her almost every day in those two months. The falsity or the truth of the case of either of the parties would best be established by the medical evidence. Mr. K. B. Andley, the learned counsel for the appellant offered the appellant for medical examination if ordered by this Court. The respondent also insisted that the medical examination be ordered by this Court and in fact he even offered to bear the expenses incurred for this examination. I am not inclined to adopt this course but leave the parties to go to the trial Court where they may, if so desired, offer or seek an opportunity. It will also enable the parties to subject the doctors to cross-examination, if permitted or to lead independent evidence. This course will also 'enable the parties to have a finding by the trial Court on the allegations of cruelty mentioned in paras 4, 5 and 8 in addition and which may be tested in appeal.
(9) The findings have been recorded by the trial Court on the allegations of cruelty contained in para 9 of the petition. Considerable arguments have been addressed by the counsel for the appellant and the respondent in person. In my view, cruelty cannot be found on the basis of several acts so seen in isolation but have to be treated and construed in its entirety. Since the allegations of cruelty contained in paras 4, 5 and 8 have not been gone into, it would be in the interest of parties to set aside the findings of allegations of cruelty contained in para 9 also The trial Court will reappraise the evidence and construe the cruelty on the basis of several acts of cruelty.
(10) For the above reasons the order under appeal is set aside and the case is remanded back to the trial Court, for determination afresh of the petition of the appellant after giving an opportunity to the parties to produce additional evidence.
(11) The parties should appear before the trial Court on 27/11/1986. The record of the case be sent back immediately.