Punjab-Haryana High Court
Usha Rani vs Rajinder Kumar on 16 February, 2009
F.A.O. No. 99-M of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O. No. 99-M of 2008
Date of decision: 16.02.2009.
Usha Rani ...Appellant
Versus
Rajinder Kumar ...Respondent
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. S.K.Dahiya, Advocate, for the appellant.
Mr. Sanjay Jain, Advocate for respondent
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S.D.ANAND, J.
The respondent-husband filed a petition under Section 13 of the Hindu Marriage Act against the respondent-wife for dissolution of their marriage. The petition was allowed by the learned Trial Court, vide order dated 16.2.2008.
The appellant-wife is in appeal.
The only plea for obtaining dissolution of marriage was cruelty. The averment, in the context, was that the behaviour of appellant-wife was disrespectful towards the respondent-husband and his parents from the very inception of the marriage and that he had to separate in mess and residence from his parents on the insistence of the appellant-wife, who had also forced him to purchase a plot in her name. It was on account of rude behaviour of the appellant-wife that the parents of the respondent- husband disowned both of them. At times, appellant-wife even physically F.A.O. No. 99-M of 2008 -2- ***** belaboured the respondent-husband and she was in the habit of leaving the matrimonial house unannounced. One one occasion i.e. On 18.4.2000, the appellant-wife quarrelled with the respondent-husband and stayed away from the matrimonial house till 28.8.2005. Thereafter, she returned to the matrimonial house and lived with the appellant-wife and lived with the respondent-husband upto 9.6.2006. During that period, she denied sex to the respondent-husband. She again disappeared from the matrimonial house on 9.6.2006. Thereafter, her parents and brother lodged an FIR with the police of Police Station, Ambala City, on the allegation that she had been killed by the respondent-husband; whereas the fact of the matter was that appellant-wife was in hiding at her natal home in village Munda Majra. For a dialogue, the respondent-husband went to his in-laws house on one occasion, he was belaboured by the relatives of the respondent. On yet another occasion, the respondent-husband was brought to Ambala City in a car on the pretext that endeavour would be made for settlement but he was assaulted in Ambala City. He lodged a private complaint in that respect. The parties had three issues (two sons and a daughter born on 8.7.1988, August 1989 and October, 1992 respectively).
The appellant-wife conceded the factum of marriage and the birth of the children but resisted other allegations. It was averred that the respondent-husband separated from the joint family on his own and not under any pressure exerted by her. She denied having ever abused and belaboured the respondent-husband and alleged that, infact, it was the respondent-husband who used to abuse and insult her in the presence of friends and relatives and he had also sold away all her jewellery. Qua the allegation regarding purchase of plot, it was averred that the appellant-wife raised funds for the purchase of that plot by selling her jewellery and that F.A.O. No. 99-M of 2008 -3- ***** is why the plot was purchased in her name. That she was belaboured and forced to leave the matrimonial house in the month of August, 2005 by the respondent-husband. She returned to the matrimonial house only after the respondent-husband begged apology in a Panchayat and fetched her to the matrimonial house. On 28.8.2005, she conceded having stayed at the matrimonial house upto 9.6.2006 but averred that "the petitioner is a drunkard debauch. It was further pleaded that the petitioner is a womaniser and has been keeping extra marital relations."
The trial proceeded on the following issues:-
"1. Whether the respondent has treated the petitioner with cruelty, if so to what effect? OPP
2. Relief."
Learned Trial Court recorded a finding favourable to the respondent-husband under issue no.1. It was held under that issue that the appellant-wife would be deemed to have treated the respondent- husband with cruelty by having levelled (unsubstantiated) above quoted allegations against him in the pleadings at the trial.
I have heard Mr. S.K.Dahiya, learned counsel for the appellant and Mr. Sanjay Jain, learned counsel for the respondent and have carefully gone through the record.
Learned counsel for the appellant argued, at the very outset, that the finding recorded by the learned Trial Court deserved outright invalidation in view of the law laid down in Pushpavathi @ Lalitha Vs. Manickasamy 2001 (1) Apex Court Journal 655 (S.C.), A.(wife) Vs. H. (Husband) 1992 Civil Court Cases 645 (Bombay), Ramesh Chand Vs. Smt. Sushila 1989 Civil Court Cases 124 (Delhi).
In an endeavour of resistance to the plea advocated on behalf F.A.O. No. 99-M of 2008 -4- ***** of the appellant, learned counsel for the respondent relied upon Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate 2003 (2) R.C.R. (Civil) 813, Jasbir Kaur Vs. Beant Singh 2003 (3) P.L.R. 589 and Surinder Mohan Chopra Vs. Smt. Nirmala Chopra 2006 (3) R.C.R. (Civil) 473.
The plea on behalf of the appellant-wife is plainly denuded of merit. The judicial pronouncements relied upon in the context of the averment are inapplicable to the facts and circumstances of this case. The judgments in A.(wife)'s case and Ramesh Chand's case (supra) are inconsequential in view of the fact that those judgments were rendered by a Division Bench and a Single Bench respectively of the Bomaby High Court and the Delhi High Court (in that order); whereas the law to the contrary was authoritatively pronounced by the Apex Court in Vijaykumar Ramchandra Bhate's case (supra). In that case, the categorical point for adjudication was whether the accusations and averments regarding character assassination of the husband made by the wife in the course of the written statement constituted mental cruelty or not. The Apex Court responded in affirmative. It further held that even the fact that deletion of the accusations had been ordered in pursuance of the allowance of a plea for that purpose would also not absolve the party making the allegations of the charge of having treated the party complained against with cruelty "by making earlier such injurious reproaches and statements due to their impact when made and continued to remain on record." A similar view was taken by a Division Bench of this Court in Surinder Mohan Chopra's case. That was a case in which the wife had made allegations in the course of pleadings that her husband was having illicit relations with another woman and those allegations remained unsubstantiated. This Court held that the F.A.O. No. 99-M of 2008 -5- ***** act of the wife (in making those unsubstantiated allegations against the husband in the pleadings at the trial) itself amounted to cruelty against the husband. In that case, this Court relied upon the judgment rendered by the Apex Court in Vijaykumar Ramchandra Bhate's case (supra). In Jasbir Kaur's case (supra) too, a Single Bench of this Court obtained that very view.
The reliance placed by the learned counsel for the appellant upon Pushpavathi @ Lalitha's case (supra) is inappropriate. In that case, the Apex Court held that unfounded allegations in the written statement cannot be said to constitute mental cruelty because no plea to that effect had been taken in the Memo of Appeal before the High Court. The husband had filed divorce petition in that case on a plea of cruelty and desertion. The petition was allowed by the Trial Court on both counts. In appeal, however, the decree was reversed by the Ist Appellate Court and the petition was dismissed on the plea of cruelty. The plea of desertion was, however, negatived. In second appeal, the Apex Court noticed that the divorce petition had been filed on an averment that wife was not freely moving with the husband and his family members. She was leading secluded life and that her father and mother used to visit husband's house frequently. The Apex Court held that the High Court had not reversed the judgment and decree of the Ist Appellate Court by coming to the conclusion that the aforesaid facts "as held by the Trial Court constitute cruelty and findings of the trial Court were wrongly reversed by the District Judge. The High Court by impugned judgment passed in the second appeal has granted the decree of divorce by coming to the conclusion that the unfounded allegations made by the wife constitute mental cruelty."
That judgment cannot be applied to the present case because F.A.O. No. 99-M of 2008 -6- ***** the appeal before this Court had been filed by the wife. There was, thus, no occasion for the respondent-husband to take up the relevant plea of cruelty in the Memo of Appeal.
It will be relevant to notice here that the allegations levelled by the appellant-wife remained unsubstantiated at the trial. In the course of her statement as RW-1, she conceded as under:-
"It is correct that my father lodged a report with the police regarding my dis-appearance having suspicion that my husband had turned me out of my matrimonial home. I had gone to Beas when my father lodged a report regarding my disappearance. ............... I do not know the names of those women with whom, the petitioner has illicit relations. I have not seen any such woman but my son has seen. My son has seen that woman in the workshop of my husband."
That son of her's was, obviously, the best witness to depose in the context but he was not examined at the trial. Her information in the relevant respect being derivative cannot be said to be substantive in character on account of non-examination of her son. Further, she conceded (as correct) as a suggestion that my father lodged a report with the police regarding my dis-appearance having suspicion that "my husband had turned me out of my matrimonial home. I had gone to Beas when my father lodged a report regarding my disappearance". The present is, thus, a case in which the appellant-wife is proved on record to have made absolutely unsubstantiated allegations against the husband on point off is having illicit relations with a woman and there was further an allegation that he is a drunkard debauch. This was the worst character assassination which could be endeavoured by a spouse against another. F.A.O. No. 99-M of 2008 -7-
***** As already noticed, these allegations had remained unsubstantiated. Apart therefrom, the parents of the appellant-wife also filed a false FIR against the respondent-husband levelling an allegation that he had killed their daughter; whereas on her own showing, she was away to Beas. If a spouse leave the matrimonial house unannounced and her parents notify the police that their child had been killed by her spouse, there could be no worse case of cruelty on their part vis-a-vis the complained-against spouse.
It is, thus, evident that a spouse who makes reckless character- related allegations against the other in the pleadings and those are unsubstantiated, would be deemed to have committed an act of cruelty vis-a-vis the latter.
In the light of the foregoing discussion, I have no hesitation in holding that the finding recorded by the learned Trial Judge deserves affirmation and it is so ordered accordingly. The appeal is held to be denuded of merit and is ordered to be dismissed.
February 16, 2009 (S.D.Anand) Pka Judge