Punjab-Haryana High Court
Mukesh vs Ramesh on 19 September, 2013
Author: Jaspal Singh
Bench: Ajay Kumar Mittal, Jaspal Singh
FAO No.5937 of 2012 -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
FAO No.5937 of 2012 (O&M)
Date of Decision:19.09.2013
Mukesh ... Appellant
Versus
1. Ramesh
2. Krishan Kumar ... Respondents
CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. Ajay Vijarania, Advocate for the appellant.
Mr. Anil Ghanghas, Advocate for the respondents.
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest?
Jaspal Singh, J.
1. The present appeal has been preferred by Smt. Mukesh-Wife feeling dissatisfied against judgment and decree dated September 21, 2012 whereby a petition preferred by her husband-Ramesh under Section 13 of the Hindu Marriage Act 1955 (for short "the Act") as amended upto date, was allowed dissolving their marriage.
2. Succinctly, the case set-up in the divorce petition by Ramesh- husband is that his marriage was solemnized with respondent No.1/Smt. Mukesh-wife on March 1, 2008. The marriage was consummated but no child was born out of the wedlock. As per the allegations unfolded by the petitioner-husband, he noticed the behaviour of his wife-respondent No.1 to be indifferent towards him and she clearly told that in fact she never intended to marry in the village. Her behaviour was not upto the mark not only towards him but also his family members which caused disruption and disharmony in the family since her conduct and attitude was arrogant. She Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -2- did not show any interest in the house hold affairs. She used to talk on mobile phone in suspicious circumstances with someone and even on enquiry in this regard she did not disclose the name of that person. She used to give abuses to him as well as his fellow members of the family. Picking- up quarrels on trivial matters was a routine matter. Not only this, she used to call him "Namard" and "Chhakka" etc. She developed illicit relations with the husband of her sister (Jija). Even she alongwith her Jija was found in his bedroom. On being asked in this regard, she openly stated that she cannot live without him (Jija/respondent No.2) besides admitting her illicit relations with him (respondent No.2) much prior to her marriage with the petitioner. The illicit relations in between the respondents inter se even continued after her marriage with the petitioner. All these facts were narrated by him to Smt. Kamlesh who acted as a mediator in their marriage. Even a meeting was also convened consisting of Smt. Kamlesh, her husband Ram Kumar, uncle of respondent No.1/Sant Lal, father of petitioner and other family members including Dharam Pal at the house of the father of respondent No.1. In that meeting also, she openly confessed about her illicit relations with respondent No.2. Lot of efforts were made to convince her and severe her relations with respondent No.2 but it fetched no fruitful result. Ultimately, she left the matrimonial home on July 14, 2008 while taking away all the dowry articles, valuable clothes and istridhan. Since then, she is living with her parents. Respondent No.1-wife also put forth a demand of Rs.10,00,000/- for dissolution of her marriage and also extended threat that in case they failed to make the payment as desired by her, she will involve him (petitioner) as well as his family members in a false dowry case. She is still leading an adulterous life with respondent No.2. So, it has become Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -3- impossible to live together. All the acts and conducts of respondent No.1- wife amount to mental as well as physical cruelty. She has also deserted him without any reasonable cause since July 14, 2008. Ultimately, the petitioner-husband was constrained to prefer the petition for dissolution of his marriage with respondent No.1 on the ground of cruelty as well as desertion.
3. Upon notice, respondent No.1 appeared through her counsel and resisted the petition. She filed the written statement raising preliminary objection inter alia on the ground that the petitioner has no cause of action to file the present petition and that the petition is false, frivolous and suppression of material facts. On merits, the marriage between the parties has been admitted. However, it has been alleged that Smt. Kamlesh did not act as a mediator in the marriage of the parties to the present petition. Smt. Roshan was the mediator. She denied all the allegations unfolded by the petitioner-husband in the petition. It is alleged that he (petitioner) is a narrow minded person who has now been selected as JBT Teacher, in fact, he wants to remarry with some other working woman and only due to that reason, he has moved the present petition levelling false allegations. Her alleged illicit relations with respondent No.2 have been denied. It has further been stated by her that relations between them are harmonious and cordial. Accordingly, she prayed for dismissal of the petition. On going through the pleadings of the parties, following issues were culled out in order to adjudicate upon the matter in controversy:
"1. Whether the marriage of petitioner/husband is liable to be dissolved with the respondent/wife by way of decree of divorce on the grounds as alleged? OPP.
2. Whether the petitioner has no cause of action to file present petition? OPR.Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -4-
3. Relief."
4. Both the parties were afforded ample opportunity to adduce and conclude their evidence in support of their respective pleadings and they led oral as well as documentary evidence. In order to substantiate his case, the petitioner himself stepped into the witness box as PW-1 and submitted his sworn affidavit Ex.PW-1/A, reproduced in all the facts unfolded by him in the petition. He also examined, Smt. Kamlesh who acted as a mediator in the marriage of the parties to the petition and father's sister (Bua) of respondent No.1 as PW-2, Sant Lal as PW-3 and Mahavir Singh as PW-4 and thereafter closed his evidence.
5. To rebut the evidence adduced by the petitioner-husband, respondent No.1 appeared in the witness box as RW-1 and also examined her brother/Bhoop Singh as RW-2 and Krishan Kumar as RW-3. Thereafter, she closed her evidence.
6. After hearing the learned counsel for the parties and appraisal of the evidence adduced by the parties in support of their respective pleadings, issue No.1 was decided in favour of the petitioner-husband and against the respondent-wife holding that the ground of cruelty as well as desertion stood proved whereas issue No.2 was not pressed during the course of arguments. Resultantly, the petition was accepted and the marriage of the parties was dissolved by a decree of divorce on the grounds of adultery, cruelty and desertion with costs.
7. Feeling disheartened, respondent No.1-wife preferred the instant appeal in which notice of motion was issued, in response to which Shri Anil Ghanghas, Advocate represented respondent No.1-husband in instant appeal. Lower Court record was also requisitioned. Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -5-
8. We have heard the learned counsel for the parties at length.
9. While assailing the findings recorded by the learned trial court especially on issue No.1 and the judgment and decree dated September 21, 2012, it has been ebulliently argued by the learned counsel for the appellant- wife that the same are absolutely against the evidence available on the file. Mis-appreciation of evidence and the legal proposition has resulted into miscarriage of justice.
10. It has been argued by the learned counsel for respondent No.1 that the marriage of the parties was solemnized on March 1, 2008 and the appellant-wife stayed in the matrimonial home only for a period of about four months and then left for her parental home. The marriage was consummated but no child was born out of the wedlock. During her stay in the matrimonial home, the behaviour of appellant-wife was indifferent towards respondent No.1 and his fellow family members and she clearly told that in fact she did not intend to marry in the village which caused disruption and disharmony in the family. In fact, she developed illicit relations with the husband of her sister (Jija). She openly stated that she cannot live without him (Jija/respondent No.2) besides admitting her illicit relations with him (respondent No.2) much prior to her marriage with the petitioner. The illicit relations in between the appellant and respondent No.2 inter se even continued after her marriage with respondent No.1. This fact has been admitted by the appellant before Smt. Kamlesh who acted as a mediator in their marriage. Smt. Kamlesh is the Bua of the appellant and has been examined as PW-2. Ultimately, she left the matrimonial home on July 14, 2008 while taking away all the dowry articles, valuable clothes and istridhan. Since then she is living with her parents. Lots of efforts were Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -6- made to convince her and swear her relations with respondent No.2 but it fetched no fruitful result. In the meeting convened at the house of father of the appellant, she openly confessed about her illicit relations with respondent No.2. The appellant-wife also put forth a demand of Rs.10,00,000/- for dissolution of her marriage and also extended threat that in case they failed to make the payment as desired by her, she will involve respondent No.1 as well as his family members in a false dowry case. She is still leading an adulterous life with respondent No.2 so it has become impossible to live together. All the acts and conduct of appellant-wife amount to mental as well as physical cruelty. She has also deserted him without any reasonable cause since July 14, 2008. It has further been stressed by the learned counsel for respondent No.1-husband that he has also been deserted by the appellant-wife without any reasonable cause. She left the matrimonial home after about 3-4 months of her marriage i.e. on July 14, 2008 and thereafter, she did not turn-up despite the fact that a lot of efforts were made to bring her back to the matrimonial home. She left the company of respondent No.1-husband with an intention to put an end to the matrimonial knot. So, it can be safely inferred that the wife is guilty of constructive desertion.
11. While concluding his arguments, it has been submitted by learned counsel for respondent No.1 that in the given circumstances, it would be harmful or injurious to live with the appellant-wife. Since respondent No.1 has successfully proved that the appellant-wife meted-out him with cruelty and had deserted him with an intention to put an end to the marriage, the present appeal deserves to be dismissed while upholding the impugned judgment and decree dated September 21, 2012. Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -7-
12. These arguments have been controverted by the learned counsel for the appellant-wife contending that admittedly, the marriage of the parties was solemnized on March 1, 2008. In fact, she did not leave the matrimonial home rather she was turned out of the matrimonial home by respondent No.1-husband as her parents could not fulfil the demand of dowry raised by them. The allegations levelled in the petition under Section 13 of the Act moved by respondent No.1-husband are general and vague. Finally, it was submitted by the learned counsel for the appellant that the impugned judgment and decree dated September 21, 2012 is against the evidence available on the file. As such, it requires interference by this Court.
13. We have given our anxious thought to the rival contentions of the learned counsel for the parties besides going through the evidence available on the lower courts record. Undeniably, the marriage of the parties was solemnized on March 1, 2008. The parties lived together and cohabited. The respondent-wife lived with the appellant-husband for a short period after the marriage and ultimately, she left and is residing with her parents. No child was born out of their wedlock.
14. Under Section 13(1)(i-a) of the Act the marriage can be dissolved by a decree of divorce on a petition preferred either by the wife or husband on the ground of cruelty in case, other party after the solemnization of marriage has treated the petitioner with cruelty. In a large number of cases, the Hon'ble Apex Court as well as the High Courts have repeatedly stated the meaning and outlined the scope of term 'cruelty'. In Summer Gosh vs. Jaya Ghosh, 2007 (4) SCC 511, the Hon'ble Supreme Court set out some illustrious cases where inference of mental cruelty can be inferred. This pronouncement was relied upon by the Hon'ble Apex Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -8- Court in case "K. Srinivas Rao vs. D.A. Deepa, 2013 (5) SCC, 226". Para 11 of this judgment reads as under:-
"11. In Samar Ghosh this Court set out illustrative cases where inference of "mental cruelty" can be drawn. This list is obviously not exhaustive because each case presents its own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case: (SCC pp.546-47, para 101) "101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) * * *
(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse.
The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii)- (ix) * * *
(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill- conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -9- and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi)-(xiii) * * *
(xiv) Where there has been a long period of continuous separation, it
may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
15. In V. Bhagat v. D. Bhagat, 1994 (1) SCC 337, the following observations was made by the Hon'ble Supreme Court:-
"Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made".
16. 'Mental cruelty' was also examined by Hon'ble Apex Court in Parveen Mehta vs. Inderjit Mehta, 2002 (3) RCR (Civil) 529, in which following observations were made:
"Cruelty for the purpose of Section 13 (1)(ia) is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -10- continue the matrimonial relationship with the other. Mental Cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
17. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Court observed as under:
"The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal Thakral Rajeev cruelty has to be found out, not merely as a matter of fact, but as the 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -11- effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial dispute."
18. In the light of the principles discussed in the above referred authorities, it is to be determined whether respondent No.1-husband was meted-out with cruelty and is entitled to decree of divorce. As per the facts of the case in hand, the appellant-wife stayed only 3-4 months in the matrimonial home and the parties are living separately since mid of the year 2008 and no child was born out of their wedlock. The allegations levelled by respondent No.1-husband in the divorce petition may be summarized as under:-
(i) that during her short stay in the matrimonial home, the behaviour of appellant-wife was indifferent towards respondent No.1 and his fellow family members and she clearly told that in fact she did not intend to marry in the village which caused disruption and disharmony in the family;
(ii) that she developed illicit relations with the husband of her sister (Jija). She openly stated that she cannot live without him (Jija/respondent No.2) besides admitting her illicit relations with him (respondent No.2) much prior to her marriage with the petitioner;
(iii) that she left the matrimonial home on July 14, 2008 while taking away all the dowry articles, valuable clothes and istridhan. Since then she is living with her parents;
(iv) that lots of efforts were made to convince her and swear Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -12- her relations with respondent No.2 but it fetched no fruitful result. While she openly confessed about her illicit relations with respondent No.2;
(v) that the appellant-wife also put forth a demand of Rs.10,00,000/- for dissolution of her marriage and also extended threat that in case they failed to make the payment as desired by her, she will involve respondent No.1 as well as his family members in a false dowry case;
(vi) that she is still leading an adulterous life with respondent No.2 so it has become impossible to live together. All the acts and conducts of appellant-wife amount to mental as well as physical cruelty;
(vii) that she left the company of respondent No.1-husband with an intention to put an end to the matrimonial knot. So, it can be safely inferred that the wife is guilty of constructive desertion;
19. The aforesaid averments in the divorce petition have been substantiated from the testimonies of witnesses Ramesh (PW-1), Smt. Kamlesh (PW-2)-Bua who was the mediator, Sant Lal (PW-3) and Mahavir Singh (PW-4).
20. So, from the above discussion, it can safely be concluded that respondent No.1-husband has successfully established the ground of cruelty entitling him to a decree of divorce.
21. As far as the ground of desertion for the dissolution of the marriage is concerned, Section 13 (1)(i-b) provided that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition. This section provides that to Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -13- establish desertion seeking the divorce is meant intentionally and permanently forsaking abandonment of one spouse by the other without other's consent and without reasonable cause.
22. In case Bipinchandra Jaisinghbhai Shah vs. Prabhavati, AIR 1957 SC 176, the Hon'ble Apex Court observed that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned; (i) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. While relying upon decision in Bipinchandra Jaisinghbhai Shah's case (supra) the Hon'ble Apex Court again reiterated the legal position in Lachman Utamchand Kirpalani vs. Meena @ Mota, AIR 1964 SC 40 and held that "in essence, the desertion means intentional permanent forsaking and abandoning of one spouse by the other without that other's consent and without any reasonable cause. So far as deserting spouse is concerned, two essential conditions have to be there (i) the factum of separation and (ii) the intention to permanently bring cohabitation to an end (animus deserendi). Likewise, two elements are essential so far as the deserted spouse is concerned, viz., (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid."
23. Adverting to the facts of the case in hand, the appellant-wife left the matrimonial home on July 14, 2008 and did not return to the matrimonial home despite the fact that respondent No.1-husband alongwith Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.5937 of 2012 -14- his fellow members visited her parental home to bring her back. She not only refused to accompany him but also insulted them. This act of the appellant-wife can be said to be her intention to permanently bring cohabitation to an end i.e. animus deserendi. Admittedly, in the case in hand, the parties did not live together under one roof since the date she left the matrimonial home. In this case, it cannot be said that respondent No.1- husband has condoned previous acts of cruelty at the hands of the appellant- wife. Moreover, condonation means forgiveness of the matrimonial offences and the restoration of the offending spouse to the same position as he or she occupied prior to the commission of the offence. To constitute condonation, there must be two things i.e. forgiveness and restoration, but in the case in hand both the things are not proved. Rather, it can be said that there is no evidence in this regard. So ground of desertion also stands proved.
24. In the light of what has been discussed above, we are of the considered view that respondent No.1-husband is successful to establish cruelty as well as desertion. The findings recorded by the learned trial court as well as the judgment and decree dated September 21, 2012 are sustainable in the eyes of law being in consonance with the evidence available on record. So, the findings on the issues do not call for any interference by this Court and are affirmed.
25. As a result of the foregoing discussion, there is no merit in the present appeal and the same is hereby dismissed.
(JASPAL SINGH) JUDGE (AJAY KUMAR MITTAL) JUDGE 19.09.2013 rajeev Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh