Punjab-Haryana High Court
Sukhwinder Kaur vs Jatinderbir Singh on 19 July, 2006
Equivalent citations: 1(2007)DMC492, AIR 2007 (DOC) 176 (P. & H.)
Author: Mahesh Grover
Bench: Mahesh Grover
JUDGMENT Mahesh Grover, J.
1. The present appeal has been filed by the appellant-wife against the judgment and decree dated 16.8.1999 by which the petition under Section 13 of the Hindu Marriage Act filed by the respondent-husband, had been allowed and a decree of divorce had been granted in his favour.
2. Before this Court embarks upon the facts and controversy of the case, it is important to note here that the parties had been summoned on various dates during the course of proceedings and intensive efforts were made to resolve the matter mutually between the parties. However, the efforts did not fructify and ultimately this Court was left with no other option but to determine the controversy in the appeal.
3. The marriage of the appellant was solemnised with the respondent on 12.10.1990 and out of the wedlock a daughter had been born on 17th November, 1991. The appellant was working as Pharmacist while the respondent was a student of B.A. Part-Ill at the time of marriage. Subsequently, the respondent-husband got commissioned in the Army and is still in service.
4. The petition under Section 13 of the Hindu Marriage Act was filed by the respondent seeking decree of divorce by dissolution of marriage on the grounds of desertion and cruelty.
5. Briefly stated the allegations as set out by the respondent was that the marriage of the respondent was solemnised on 12.10.1990 according to the Hindu Sikh religious rites and the parties cohabited as husband and wife in village Sohal and Chehartta but no child was borne out of the wedlock to the knowledge of the respondent. Thereafter, the case, set by the respondent was that the appellant who was working as a Pharmacist used to go for her job but would not come back to his house for 2 to 3 days without informing the respondent or any member of his family as a result there used to be quarrels and upon which the appellant would remark that she was an earning hand whereas the respondent was a student. Finally the appellant is alleged to have left the matrimonial house in May, 1991. Thereafter the brothers of the appellant threatened the respondent to get him eliminated from terrorists. The respondent thereafter made certain attempts to resolve the dispute but to no avail and finally he came up with the petition on the ground that the appellant had deserted him for the past more than three years and had treated him cruelly, therefore, he would be entitled for a decree of divorce.
6. The appellant contested the petition and submitted that she was earning at the time of marriage whereas the appellant was a student of B.A. Part-Ill and she had to bear the household expenses. She denied that she had often absented herself from matrimonial house and had ignored her duties. It was the respondent-husband who used to quarrel with her because she was earning and he was a student. It is further pleaded by the appellant that immediately after the marriage she had become pregnant and the respondent did not want to have a child and started pressurising her to abort the child. In the month of May, 1991 she was sent with her mother to her parents' house with the clear instruction that she should get the abortion done. The appellant even made an attempt to do so but could not succeed and then, ultimately she gave birth to a girl child on 17.11.1991.
7. The learned Additional District Judge, Amritsar, decided the petition and granted the decree of divorce and held that the appellant was guilty of desertion and cruelty.
8. Mr. Kanwaljit Singh, learned Counsel for the appellant contended that there is no evidence of desertion and in fact there is evidence to the contrary. The appellant was forced out of the house by the conduct of the respondent in May, 1991. She was forced to go to her parents' house with the clear instruction that she should abort the child. Apart from that it was contended that there was absolutely no evidence to show that there was any cruelty on the part of the appellant whereas Mr. Baldev Raj Mahajan, learned Counsel for the respondent contended that the appellant had abandoned the matrimonial house in May, 1991, and had not cared to come back to the matrimonial house and efforts to bring her back proved futile and rather brothers of the appellant threatened to get the respondent eliminated. The said acts were, therefore, intolerable.
9. I have heard the learned Counsel for the parties and have perused the record.
10. The respondent had sought divorce on the ground of cruelty as well as desertion. Perusal of the record, however, shows that no incidents of cruelty were in evidence. The only reason for asking for divorce was that the appellant had abandoned the house in May, 1991 on her own and this amounted to desertion. While regarding cruelty no fact has been pleaded as to how the appellant was cruel towards the respondent.
11. Divorce cannot be granted only on the mere assertion that the husband had been treated with cruelty. There have to be specific allegations to show that there was overt acts indulged into by the other spouse which can be termed as cruel. No such evidence is there on the record to substantiate the plea that there was cruelty either mental or physical. Mere allegation that the wife used to stay away for two to three days is also not supported by any evidence. This in any case cannot be termed as act of cruelty rather it seems, that the shoe is on the other foot. The admitted facts are that the appellant was an earning hand while the respondent was the student of B.A. Part-Ill. It is clear case of male chauvinism which resulted in piquant situation for the respondent. He wanted to utilise her money but his male pride did not permit him to do so and he started finding faults with the appellant.
12. It is observed by Hon'ble the Supreme Court in a judgment reported as , Vinita Saxena v. Pankaj Pandit, as under:
The word 'cruelty' has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The legal concept of cruelty is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger.
The cruelty may be mental or physical, intentional or unintentional. Mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the statutory provision.
The concept of cruelty has varied from time-to-time, from place-to-place and from individual. The cruelty alleged may largely depend upon the type of life and parties are accustomed to their economic and social conditions, their culture and human values to which they attached importance. Judged by the standard of modern civilisation in the background of the cultural heritage and traditions of our society, a young and well-educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony are irrelevant.
Each case depends on its own facts and must be judged on its facts. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. This general rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complain, accusations or taunts. It may be mental attitude such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant be called on to endure the conduct? From the respondent's side, was this conduct execusable? The Court has then to decide whether the sum total of the reprehensible conduct was cruel.
That depends on reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.
As to what constitutes the required mental cruelty for the purposes of Section 13(1)(ia) of the Hindu Marriage Act, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but realty go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Court perhaps need to consider the further question as to whether their continuance or persistence over a period of time render, what normally would otherwise, not be so serious as act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance or matrimonial home is not possibly any longer.
Spouses owe rights and duties to each other and in their relationship they must act reasonably. In every case where cruelty is found to exist it should be possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing an intention where in fact none may exist. Further, in all such matters desires, wishes, intention, motives, perception, obtuseness, persistence and indifference, would remain relevant but merely as a matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.
13. In another case reported as (2005-l)139 P.L.R.710,Ajayachandra Aneel Kaur, it has been observed by Hon'ble the Supreme Court that "Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happened in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be by words, gestures or by mere silence, violent or nonviolent."
14. Adverting to the facts of the case, no such facts have either been pleaded or shown to have existed during the matrimonial alliance of the parties.
15. As for desertion is concerned, there is no evidence to that effect also. A Division Bench of this Court in (2005-2) 140 P.L.R. 196, Rajesh Kumar Madaan son of Dayal Chand Madaan, has held that "Even desertion in the facts and circumstances has also not been established. In order to obtain the matrimonial relief on the ground of desertion two essential considerations are required to be shown that is factum deserendi and animus deserendi that is the factum of separation and the intention to bring the cohabitation permanently to an end. Concededly, the parties did not stay together since May, 1991 and admittedly the appellant was pregnant at that time when it is alleged that she had left the matrimonial home. She gave birth to a daughter in November, 1991 meaning thereby that the conception would have taken place soon after the marriage. It is ironical that the husband refused to acknowledge this fact also. It is not uncommon in this part of the country where a woman is sent to her parents' house for first delivery. The probability that she was sent on this pretext to the house of parents cannot be ruled out. It was thereafter that the respondent refused to take her back. The separation obviously was as a result of the refusal of the respondent to take the appellant back to her matrimonial home.
16. As far as evidence regarding desertion is concerned, there is none except the version of the respondent and his witnesses who are interested witnesses and the statement of the appellant is to the contrary.
17. In view of the fact that there is no evidence to support the plea of the respondent, it cannot be believed that the appellant had abandoned her matrimonial house. Even in the proceedings before the Court below, the appellant had stated that she is willing and ready to go with the respondent and live with him along with her daughter.
18. It may not be out of place to mention here that even before this Court when attempts were being made for re-conciliation between the parties, a specific question was put to the appellant as to whether she was willing to reside with her husband and she had replied in the affirmative. On this the respondent had refused to this by saying that he would rather die than to take her back.
19. In view of this, it is apparent that the husband had deliberately forced the appellant out of the matrimonial house on some pretext and that there is no evidence to establish the facts that the appellant had abandoned her matrimonial house.
20. Since there is no evidence to substantiate the plea raised by the respondent on the ground of desertion and cruelty, the Court below was wrong in granting a decree of divorce in favour of the respondent.
21. For the reasons recorded above, I accept the appeal of the appellant and set aside the order dated 16.8.1999 passed by the learned Additional District Judge, Amritsar, by which the marriage of the appellant with the respondent had been dissolved by a decree of divorce.
22. No order as to costs.