Punjab-Haryana High Court
Yash Pal Alias Bittu vs Kanta Alias Chander Kanta Alias Ravina on 22 December, 2009
FAO No. M-77 of 1999
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No. M-77 of 1999 (O&M)
Date of decision: 22.12.2009
Yash Pal alias Bittu
....Appellant
Versus
Kanta alias Chander Kanta alias Ravina
....Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: -Mr. D.S. Keer, Advocate,
for the appellant.
Mr. Deepak Arora, Advocate,
for the respondent.
VINOD K. SHARMA, J.
This appeal by the husband is directed against the judgment and decree dated 10.3.1999 passed by the learned District Judge, Bathinda, on a petition filed for dissolution of marriage by decree of divorce under Section 13 of the Hindu Marriage Act, 1955.
The marriage between the parties was solemnized on 13.12.1994 at Goniana Mandi. The parties of the marriage cohabited as husband and wife at Bathinda and Kapurthala till 7.7.1996. Out of the wedlock, one female child named Nivia, was born, who is residing with the respondent-wife.
The divorce by the appellant is sought on the ground, that marriage between the parties could not be consummated on the date of marriage, as the respondent-wife started shouting upon the appellant- husband on his visit to the bedroom, that she did not want to marry him. The respondent claimed that she had love affairs with some other person. According to the appellant, entire episode was told to the parents of the respondent, when he visited at Goniana Mandi on the next day of the marriage, with a request to enquire from the respondent FAO No. M-77 of 1999 -2- as to whether she wanted to live with the appellant or not.
It is also the pleaded case of the appellant, that on the date of marriage, at the time of departure of barat, Mrs. Mamta wife of Darshan Kumar of Bathinda was seated in the car with the appellant and the respondent, but respondent asked her to leave the car and instead asked her cousins Bedi and Vicky to sit with her. It is also pleaded, that when at night time, the respondent told the appellant about her love affairs with some other person at that time, both Bedi and Vicky came to the bedroom of the appellant in a drunkard condition, and at the instance of the respondent, they slept in the same bedroom, which caused great mental as well as physical shock and agony to the appellant, which constitutes mental cruelty.
It is the case set up by the appellant, that parents of the respondent called the appellant and assured him that the respondent has realized her mistake and agreed to live with him and perform all obligations of marital life, and that appellant may take her with him. However, in the house of the appellant, respondent again started misbehaving with the appellant, his parents, relations and friends. She caused mental shock and agony to the appellant on one pretext or the other, as she used to refuse to cook meals for the appellant, his parents and other relations, and also refused to serve tea etc. to the visiting guests and friends of the appellant It is also alleged, that the respondent used to maltreat the appellant on the one pretext or the other, and after some time of the marriage, the respondent started compelling the appellant to take her to Kapurthala so that she may live independent life without any hindrance or obstacle from any of the family members. On refusal by the appellant, respondent attempted to take poison on 3.9.1995 at night time, but due to timely intervention, she was saved. On 4.9.1995, mother of the respondent was called by the FAO No. M-77 of 1999 -3- appellant and his parents, but the respondent and her mother compelled the appellant to take the respondent to Kapurthala along with him on 5.9.1995. On 30.9.1995, the appellant along with respondent came to Bathinda at his parental home. On a message by the respondent, father of the respondent visited Bathinda on 2.10.1995 and took her on the pretext of fast of karva chauth and promised to leave her at Bathinda after karva chauth, but she did not turn up.
It is the case of the appellant, that on 28.11.1995, on receipt of information about the birth of Nivia, the appellant went to Goniana to see the respondent and newly born baby, but he was turned out of the house after insulting and snatching his money purse by the respondent. On 23.1.1996, the appellant convened a panchayat at the parental house of the respondent. At the instance of the panchayat to resolve the dispute, the respondent accompanied the appellant and he took her to Kapurthala on 25.1.1996. On 6.7.1996, the appellant came to Bathinda all alone. When the appellant returned to Kapurthala on 7.7.1996, his colleagues disclosed him that one man, namely, Bedi remained in his house with the respondent for all the time on 6.7.1996 and 7.7.1996, and they saw them in compromising position. On being questioned, the respondent slapped the appellant in presence of his colleagues i.e. Mukesh Kumar and Enamel Haque. It is also pleaded, that thereafter both, the husband and wife, went back to Bathinda and at that time respondent took all her gold ornaments and valuables with her. The respondent forcibly alighted from the train on Goniana railway station.
The appellant, therefore, sought decree of divorce on account of mental cruelty and adulterous act. It is also pleaded that it was not possible for the appellant to live in the company of the respondent or to keep her as his wife in his house.
FAO No. M-77 of 1999 -4- On notice, the petition was contested. The allegations made by the appellant, referred to above, were specifically denied. The respondent-wife denied, that no consummation had taken place on the day of marriage, as alleged. It is also denied, that on the visit of the appellant to the bedroom, she shouted or told him that she did not want to marry him or, that she had love affairs with other person. The allegation, that the appellant had disclosed this episode to the parents of the respondent during his visit to Goniana Mandi, was also denied. The story was said to be false and concocted by the appellant in order to cover up his own wrongs and misdeeds. The story put up by the appellant, that Mrs. Mamta wife of Darshan Kumar was asked to leave the car, and that Bedi and Vicky were asked to sit with her, was also denied. It is also denied, that Bedi and Vicky had come to bedroom of the appellant in drunkard condition or, that they slept in the same room. The allegations were said to be false and baseless. It was also denied, that any mental/physical shock or agony was caused to the appellant, as claimed. It is the case of the respondent, that it is the respondent, who suffered great physical torture and mental set back at the hands of the appellant. It is also denied by the respondent, that the parents of the respondent assured the appellant about the respondent having realized her mistake, and that she had agreed to live with the appellant and perform all matrimonial obligations, as claimed by the appellant. She denied having misbehaved with the appellant, his parents, relations or friends. The respondent specifically denied the allegation of not serving the meals etc. to the appellant, his visiting guests and friends. It is the pleaded case of the respondent, that whole sequence of events has been concocted by the appellant, which is beyond the scope of truth. The case of the respondent is, that she was always ready and willing to reside and cohabit with the appellant, but it is the appellant , FAO No. M-77 of 1999 -5- who wants to get rid of her by hook or crook. The allegations regarding mental cruelty/shock or agony were said to be false, vague and baseless. The respondent-wife also denied the allegations that she was forcing the respondent to shift to Kapurthala to live an independent life. It is also denied, that she ever tried to take poison on 3.9.1995. This allegation was again said to be concocted story. It is also denied that the respondent compelled to take her to Kapurthala. The allegation that on her message, she was taken to her parental house for karva chauth was also denied. It is rather the case of the respondent, that she along with minor daughter was turned out of the matrimonial home in July, 1996, and that they had to go to Goniana in traumatic condition.
Rejoinder was filed, wherein the averments made in the petitioner were reiterated and those in the written statement were denied.
On the pleadings of the parties, the learned Matrimonial Court framed the following issues: -
"1. Whether the petitioner is entitled to the divorce on the ground of cruelty, as mentioned in the petition? OPP
2. Whether the petition is not maintainable in the present form? OPR
3. Whether the petition is liable to be dismissed for want of affidavit as mentioned in Paras 2 of the reply? OPR
4. Whether the respondent is entitled to special costs? OPR
5. Relief."
The appellant in support of the case set up appeared as his own witness as PW1 and in addition examined PW2 Chunna Ram, PW3 Veena, PW4 Satish Kumar, PW5 Krishan Lal, Surjit Kaur PW6 and PW7 Satish Kumar.
FAO No. M-77 of 1999 -6- The respondent-wife appeared as her own witness as RW5 and examined Mamta Devi as RW1, Tarlok Singh as RW2, Paramjit Singh RW3 and Subhash Chander as RW4, and closed her evidence.
The learned Matrimonial Court on issue No. 1 held, that the appellant had given up the ground of adultery and, therefore, considered the case only on the ground of cruelty. The reason given by the learned Matrimonial Court reads as under: -
"It is crystal clear from the facts quoted above that it is pleaded in the petition that on the wedding night, respondent wife with her cousin brothers, namely Vicky and Bedi remained in the Bed Room and evidence was also led by the petitioner in order to show that she had voluntary sexual intercourse with Vicky and Bedi meaning thereby, that the petition revolves around the acts of adultery, but at the same time, it is ipso facto clear from the rejoinder submitted by the husband that he has given up his right for seeking divorce on the ground of adultery or in other words that his wife after the solemnization of the marriage had voluntary sexual intercourse with any person other than his spouse. Before proceeding further, I would like to reproduce Paras No. 2 and 3 of the rejoinder for the appreciation of the point involved in the present petition: -
"Legal objection No. 2 is incorrect hence denied. The petitioner has filed this petition on the basis of cruelty only and has not sought divorce on the basis of adultery. The facts of adultery have been mentioned to seek grounds for cruelty, thus there is no need for filing any affidavit, as alleged. Legal objection No. 3 is incorrect, hence denied. The petitioner has not sought divorce on adultery, as such there is no need for impleading the adulterer as party to this petition."
FAO No. M-77 of 1999 -7- In support of the allegation, that at the time of departure of barat from brides place, Mrs. Mamta was asked to alight and the respondent-wife had asked Vicky and Bedi to sit with her. The statement recorded was reproduced by the learned Matrimonial Court in the judgment, which reads as under: -
"My wife got Mamta removed from the Car and made request to Vicky and Bedi to sit in the Car along with her. My wife made a request to bring a glass of water and when I broughnt water, I was surprised to see Vicky and Bedi in one quilt along with my wife. I did not utter any word any my wife Kanta bolted the door from inside. When first time I entered into the room, my wife Kanta told that she did not like to marry with me, rather she had love affairs with some other person. I went back on 7.7.1996 to Kapurthala an my friends, namely, Mukesh Kumar and Enamul Haq told me that Vicky again said Bedi came there and he stayed there during night with Kanta. When I enquired from Kanta about this episode, she gave a slap to me. My friends also told me that Bedi was kissing to Kanta and she was also reciprocating in the same manner. It is correct that Vicky and Bedi performed the necessary ceremonies as brothers of my wife at the time of marriage. I came back to my bed room at about 10.00 P.M. along with my wife. We remained all alone in the bed room. I was asked by my wife to fetch water and thereafter Vicky and Bedi entered the room and they remained inside the room throughout the night. I asked Vicky and Bedi to leave the room. During those 10-15 monutes we talked to each other. We I came back after fetching water, I found Vicky and Bedi under one quilt with my wife. They had covered themselves with the quilt upto their chest. I objected to the presence of Vicky and Bedi in such a manner, but in spite of my objection, they did not leave the room. I did not raise FAO No. M-77 of 1999 -8- any alarm, but I narrated the incident to my parents immediately thereafter. All my relatives requested Vicky and Bedi to leave the room, but they did not accept their request. They left my house next day at about 11.00 A.M. They also enjoyed breakfast in the morning at my residence. They accompanied us on that day since we had gone to visit the house of my in-laws, as per the custom. No fight took place on our journey and we travelled in the same vehicle. When my wife slapped me, my friends were present there at that time."
The learned Matrimonial Court also reproduced the statement of PW3 Veena, who was examined to corroborate this stand, which reads as under: -
"Mamta felt bad. Yash Pal and Kanta were sent to their Bed Room, but at that time Bedi and Vicky were also present in that Bed Room. We asked Vicky and Bedi to leave the room, but they refused to come out. Kanta did not ask Bedi and Vicky to go out of her bed room. Both of them were under the influence of liquor. About 100 persons at that time were present in our house. I also asked them to go out of the room, but they refused. Vicky and Bedi never occupied the seat in the Car in my presence nor I travelled with them. Yash Pal could not sleep in his bed room on the wedding night. Yash Pal slep in the room of Raj Kumar in our house."
With regard to the stand of the appellant that Vicky and Bedi stayed in the bedroom of the parties, and that they slept with Kanta, PW4 Satish Kumar was examined who is elder brother of the appellant. He deposed, that next day also Vicky and Bedi remained in their house and on the second day they took the respondent and the appellant from Bathinda to Goniana to the house of Kanta. He also supported the version of the appellant, that assurance was given by the parents of the FAO No. M-77 of 1999 -9- respondent, that Vicky and Bedi will not behave in such a manner in future.
Father of the appellant also deposed on the same terms with regard to Vicky and Bedi being in the bedroom on the first night.
It was, however, the admitted case of the appellant and the witnesses, that about 40-50 persons were present in their house on the wedding night, and they asked the Vicky and Bedi to leave the room but they refused to go out of the room.
Father of the appellant deposed, that they they did not try to send them out forcibly and they remained with the respondent on the wedding night, whereas Yash Pal remained outside the room. It was also deposed by the father of the appellant, that the room had been bolted from inside, therefore, they could not enter the room.
The appellant examined Surjit Kaur in order to prove that he remained as tenant of this witness. However, she could not tell the name of the person, who was said to be visiting the house in the absence of Yash Pal. She deposed, that one person came to meet the respondent and she disclosed him to be relation of her sister. She deposed about seeing the respondent in compromising position with that person, as the windows and the door of the house were open. She recollected the name of the person to be Bedi. She had asked the appellant to vacate the tenanted premises.
The Court noticed that during the cross-examination, she admitted that rent deed was executed but she could not produce the rent deed. She further admitted, that she had accompanied Yash Pal to the Court from Kapurthala.
PW7 Satish Kumar disclosed that he arranged the tenanted premises for Yash Pal in the house of Surjit Kaur and on 6.7.1996, he visited the house of Yash Pal and called for him. When no response FAO No. M-77 of 1999 -10- came, he peeped inside and found some other person in the room and he along with Mukesh Kumar and Emanul Haq saw through the window, that Bedi and Kanta were lying naked and were in compromising position. He is said to have narrated entire incident to Yash Pal.
PW2 Chunna Ram deposed as a member of the panchayat. He disclosed that no talk of dowry items took place during the panchayat proceedings, and the respondent never complaint regarding maltreatment given to her by Yash Pal. During cross-examination, he could not specify the actual dispute between the parties. He disclosed the date of panchayat to be 23.1.1996.
Against the witnesses examined by the appellant, the respondent examined RW1 Mamta Devi, who had attended the marriage. She categorically deposed that she was not asked to alight from the car and further disclosed that Vicky and Bedi never visited Bathinda in the car, in which Yash Pal and Kanta were sitting. She is said to have accompanied the respondent with Raj Kumar in the said car. She also disclosed that she remained in the house of Yash Pal in Bathinda after doli had come there and for the night, but Vicky and Bedi never visited the house and no incident took place in the house of Yash Pal on the wedding night.
RW2 Tarlok Singh disclosed to the Court, that Surjit Kaur was known to him and her house consists of three rooms, and that she had not rented out any portion of her house to anybody. He further disclosed, that the appellant never remained tenant of Surjit Kaur.
Paramjit Singh RW3 was examined to prove the allegations of dowry.
The learned Matrimonial Court did not accept the allegations of adultery for the reason that it was categorically pleaded in the petition, that adulterers were Vicky and Bedi, who were not made FAO No. M-77 of 1999 -11- respondents in the case. Therefore, the appellant waived his right, for seeking divorce on the ground, that after solemnization of marriage on the wedding night, his wife had voluntary sexual intercourse with Bedi and Vicky, or that she acted in such a manner, which could spell out that she is having illicit relations with them. The learned Court observed that for the reasons best known to him, the appellant gave up this ground for seeking decree of divorce. The learned Court found, that giving up of this plea and not impleading of adulterers, as party, showed the weakness of the case of the appellant.
The learned Matrimonial Court thereafter proceeded to consider the plea of cruelty on the ground of adulterous life of the wife and came to the conclusion, that the appellant had failed to prove the plea of cruelty also. The reason for arriving at this conclusion was, that the allegations of the appellant that Mrs. Mamta was asked to alight from the car to make space for Bedi and Vicky stood belied from statement of Ms. Mamta. The learned Court further held, that Vicky and Bedi being cousin brothers of the respondent their visit could not amount to mental agony or cruelty to the appellant. The plea that Vicky and Bedi slept in the bedroom of the appellant and respondent on the wedding night was not believed as there were hundred persons in the house, who were present on the wedding night. The story set up being so improbable was not believed. The learned Court found, that even if for the same of arguments presumption is drawn that the respondent had some relationship with Vicky and Bedi, it could not be believed that Vicky and Bedi would act in a manner which is narrated by the appellant. The story, therefore, was found to be totally false, as no lady could be expected to take a chance of enjoying a sexual relationship, that too on the wedding with other person particularly when number of guests were present in the house. The learned Matrimonial Court also FAO No. M-77 of 1999 -12- held, that if any such incident actually takes place then the persons would be thrown out of the room. But strangely the stand taken by the appellant was, that both of them stayed in the room throughout the night. The Court found the story to be cock and bull story having no legs to stand. The learned Matrimonial Court also found, that it was not acceptable that any lady would like to disclose about her love affairs after few minutes of meeting with her husband on the wedding night.
The learned Court further held, that statements of PW6 and PW7 did not inspire any confidence, as according to Surjit Kaur she got up during midnight and heard Kanta talking with someone with windows and doors open. She found her in compromising position with Bedi and further that the lights were on in the room. The learned Court found that such statement could not be accepted, as no body would take risk of committing this act while keeping the windows and doors open, and that too by switching on the lights of the room. The learned Matrimonial Court held, that it was not proved that the appellant had taken the premises on rent, as no rent deed or rent receipt was placed on record, in spite of the admission by Surjit Kaur that rent deed was executed.
Similarly, the statement of PW7 was not believed for the reason, that he did not narrated the incident to landlady Surjit Kaur nor he raised any alarm. Though he also claimed to be tenant of Surjit Kaur and residing in the same house. He also failed to produce any documentary evidence of his tenancy.
The learned Court held that in the pleadings, the appellant had specifically named Mukesh Kumar and Enamel Haq to have told him about the incident, but they were not examined. The learned Court further found, that no evidence was led to prove the allegations of slapping by the respondent.
The learned Matrimonial Court found that with regard to the FAO No. M-77 of 1999 -13- allegations of suicide, no evidence was led except the bald statement. The learned Court found, that the entire version put forward by the appellant was based on falsehood and it was for the said reason that the appellant had no courage to implead the adulterers as party at the time of filing of the petition.
The other allegations of cruelty were held to be too general in nature and further appellant had not proved the same.
In view of the findings recorded above, issue No. 1 was decided against the appellant.
Issue No 2 was decided against the respondent and in favour of the appellant and the petition was held to be maintainable, as the appellant had given up the ground of adultery.
Issues No. 3 and 4 were decided in favour of the appellant being not pressed.
In view of the findings recorded above, the petition filed by the appellant was ordered to be dismissed.
Mr. D.S. Keer, learned counsel, appearing on behalf of the appellant, contended, that the appellant was entitled to decree of divorce on the ground, that the marriage between the parties had been irretrievably broken down, and there was no chance of reconciliation between the parties.
The learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in Naveen Kohli Vs. Neelu Kohli, 2006(2) RCR (Civil) 290, wherein divorce was granted on the ground of marriage being irretrievably broken down. The learned counsel for the appellant had also placed reliance on other judgments but no notice of the said judgments is being taken for the reason, that the Hon'ble Supreme Court in Anil Kumar Jain Vs. Maya Jain, 2009 FAO No. M-77 of 1999 -14- (4) RCR (Civil) 310, has been pleased to lay down, that ground of irretrievable marriage is not a ground under Section 13 of the Hindu Marriage Act, therefore, the High Court cannot dissolve marriage by decree of divorce on this ground.
Therefore, this plea of the learned counsel for the appellant deserves to be noticed to be rejected.
Learned counsel for the appellant contended, that the findings recorded by the learned Matrimonial Court cannot be sustained, as the act of the respondent in allowing Vicky and Bedi to stay with her on the first night of the marriage was such, which amounted to physical and mental cruelty, there was no reason to disbelieve this in view of the positive evidence led by the appellant in this regard.
It was also the contention of the learned counsel for the appellant, that the learned Matrimonial Court did not believe the story merely on the ground of it being not probable. The contention of the learned counsel for the appellant was, that now-a-days everything was possible and, therefore, the ground of mental cruelty was proved beyond any doubt, therefore, the finding recorded by the learned Matrimonial Court on issue No. 1 deserves to be reversed.
This plea of the learned counsel for the appellant deserves to be noticed to be rejected. As already observed above, the learned Matrimonial Court had taken note of the evidence, and on appreciation of evidence has recorded positive finding that the appellant has failed to prove the ground of adultery or mental cruelty.
The reasons recorded by the learned Matrimonial Court inspire confidence. Ms. Mamta, who was said to have been asked to leave the car to make place for Vicky and Bedi in her statement stated that she had accompanied the appellant, and the respondent in the same car with Raj Kumar, furthermore that she had stayed in the house FAO No. M-77 of 1999 -15- of the appellant on the said night and the incident, as alleged, did not happen. She is one of the witnesses whose presence cannot be disputed, as it was the case of the appellant himself that she was the lady who was asked to move out of the car, therefore, it cannot be said that the finding recorded by the learned Matrimonial Court was based on presumptions.
The contention of the learned counsel for the appellant, that plea of the appellant had been rejected on probabilities by the learned Matrimonial Court, is also without any merit. It cannot be believed that a newly married bride on reaching the matrimonial home for the first time would allow somebody to be with her in the bedroom on the first night when all the guests of the appellant were present. Such a bold lady, in that eventuality, would not accept the marriage or would not go to the matrimonial home at all. It again cannot be believed that hundred persons present would be mute spectators to such an incident. The learned Matrimonial Court had disbelieved the version by using mild word which otherwise deserves to be rejected by holding, that the allegations are outcome of a sick mind, which cannot be believed even by a man of ordinary intelligence.
The allegations of adultery while the respondent was at Kapurthala, were also rightly rejected. The evidence led by appellant and the story set up did not inspire any confidence.
The Matrimonial Court was right in coming to the conclusion that the version given by the witnesses was such, which again cannot be believed. Even otherwise, Surjit Kaur had even failed to prove the tenancy.
It may further be noticed, that the persons named in the petition, who told the appellant about adulterous life of the respondent, were not examined by the appellant, therefore, the learned Matrimonial FAO No. M-77 of 1999 -16- Court rightly drew adverse inference against the appellant, with regard to allegations levelled by him.
Finding of the learned Matrimonial Court, therefore, on issue No. 1 is affirmed.
Findings on issues No. 2 to 5 were not challenged before this Court.
For the reasons recorded, the judgment and decree passed by the learned Matrimonial Court, dismissing the petition moved by the appellant under Section 13 of the Hindu Marriage Act, is upheld, and the appeal is ordered to be dismissed, but with no orders as to costs.
(Vinod K. Sharma) Judge December 22, 2009 R.S.