Punjab-Haryana High Court
Krishan Kumar vs Smt.Nidhi Arora on 24 September, 2009
Equivalent citations: AIR 2010 (NOC) 441 (P. & H.), 2010 (3) AKAR (NOC) 312 (P. & H.) 2010 AIHC (NOC) 589 (P. & H.), 2010 AIHC (NOC) 589 (P. & H.), 2010 AIHC (NOC) 589 (P. & H.) 2010 (3) AKAR (NOC) 312 (P. & H.), 2010 (3) AKAR (NOC) 312 (P. & H.)
FAO No.267-M of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.267-M of 2005 (O&M)
Date of decision: 24.09.2009
Krishan Kumar ..Appellant
Versus
Smt.Nidhi Arora ...Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present:- Mr.Lokesh Sinhal, Advocate,
for the appellant.
Mr.Ashok Kaushik, Advocate,
for the respondent.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
VINOD K. SHARMA,J.
This appeal by the husband/appellant is directed against the judgment and decree dated 21.7.2005 passed by the learned Additional FAO No.267-M of 2005 2 District Judge, Faridabad vide which petition filed by husband/appellant under section 13 of the Hindu Marriage Act, 1955 (for short the Act) for dissolution of marriage was ordered to be dismissed.
The marriage between the parties was solemnized on 22.8.1997 at Shiv Mandir Dharamshala, Titarpur New Delhi according to Hindu rites and ceremonies. The parties cohabited as husband and wife at Faridabad but no child was born out of this wedlock. The respondent/wife was employed as Steno in the Punjab National Bank at New Delhi. Therefore, she used to go to her office from Faridabad and returned to the matrimonial home after duty hours in the evening. The allegations of the appellant were that after 2 months of the marriage it was found that the respondent was mere inclined to her parents and did not care or bother for the appellant's family or the matrimonial home. She spent weekly nights at parental home alone without the consent of the appellant. The case set up by the appellant was that he tried to make her understand about her matrimonial duties and gave a suggestion that she should avoid weekly stay at her parental home. In response to the suggestion the respondent/wife disclosed that she did not enjoy the company of the family members of the appellant, and for this reason she spent Saturday and Sunday evenings with her parents.
The case set up by the appellant was that he did not take it very seriously with the hope that with the passage of time the things could improve. On 5.10.1997 the respondent asked the appellant and his other family members to visit her Mausi (maternal aunt) for lunch which was accepted by the appellant, where he went along with his elder brother and FAO No.267-M of 2005 3 his family and came back in the evening.
On 5.10.1997 the respondent put up a demand for independent home away from the parents of the appellant. The stand of the appellant was that he could not think of leaving his parents in their old age when his attendance was most required. This stand of the appellant was not liked by the respondent. It was also the pleaded case of the appellant that the respondent was not interested in the marriage, as the appellant was not of her liking. She also disclosed that, in fact, the respondent was only interested in the marriage alliance with a person who was in the banking industry. The appellant also pleaded that he was told by the respondent that in case she had not married him she would have enjoyed life in her own way. The respondent further disclosed that Faridabad is a small place as compared to Delhi where she used to enjoy colourful Delhi in the late hours whereas the life stands still at Faridabad after 9 PM. The appellant made respondent understand that being a Hindu Indian family the parents of the appellant did not like the culture of appellant remaining out in late hours. But instead of this she always requested the appellant to go Delhi and have dinner in different hotels.
It was also the case set up that thinking of the respondent was, that what is use of earning if a person does not enjoy life. On account of this the differences arose between the parties, which widened with the passage of time. It was also pleaded case of the appellant that when the matter was told to the parents of the respondent, in stead of advising her they took her side. The father of the respondent also told the appellant that when the FAO No.267-M of 2005 4 couple was earning handsome amount they must enjoy the life in young age as in the old age or after the passage of time the couple would have to meet other formalities of life, whereas the thinking of the appellant was that it was better to save money in earlier life because with the passage of time the liability of children were likely to come up. According to the appellant this explanation was not effective. The respondent started visiting her parental house directly from working place and started levelling allegations against him, furthermore, the father of the respondent also started misbehaving with the appellant. It was the allegation of the appellant that father of the respondent started writing nasty letters to the father of the appellant, which were baseless.
In the letter dated 20.12.1997 written by the father of the respondent it was mentioned that in order to safeguard the interest of the respondent he proposed to hire a bank locker, and forms were sent to the appellant for his signatures, but he refused to sign them on the plea that gold should be retained at home. It was also the case of the appellant that the fact of taking locker and taking way of jewellery came to the knowledge of the appellant only on the receipt of the letter. It was also the case of the appellant that various allegations were levelled in the letter against the appellant and his family members which caused mental torture and harassment to the appellant. On being asked by the appellant as to the object of the letter dated 20.12.1997, the respondent answered that he should either have a separate matrimonial home as the respondent was not interested to live in the joint family. The appellant thereafter decided to separate the FAO No.267-M of 2005 5 kitchen by shifting on the first floor in the matrimonial home i.e. House No.507 Sector 31 Faridabad but in spite of shifting on first floor the woes of the respondent did not end but increased gradually. After separation from the family, the respondent started harassing the appellant in one way or the other. She even threatened that she would commit suicide either by taking poison or she would burn herself. Parents of the appellant, therefore, convened a meeting at Faridabad with the parents of the respondent and the allegations of threats were disclosed. It was then decided that the appellant and respondent shall take an independent house in Faridabad away from the parents of the appellant's. House No.1206 Sector 37 was taken on rent as per the choice and suggestion of the parents of the respondent.
The respondent initially refused to wash clothes and thereafter she also stopped cooking food for the appellant. The respondent gave deaf ears to the advice of the appellant. The appellant claimed that being a Government employee working in the Institute for System Studies and Analysis, Defence Research & Development Organization, Metcaffe House, Civil Lines, Delhi had respect in the office as well as in the society at large. The case set up was that the attitude of the respondent became adamant and she started misbehaving with him by not allowing him to enter the matrimonial home. The landlady of the house some time helped the appellant in getting door opened from the respondent for his entrance. Father of the respondent also encouraged his daughter to force the appellant to live in the manner as per the wishes of the respondent. The case pleaded, therefore, was that this attempt was made to force the appellant to shift to FAO No.267-M of 2005 6 Delhi as Ghar Jawai whereas he was not interested.
On 22.5.1998 when the appellant was away to Delhi on his official job the respondent put a new lock on the wooden door of main entrance, the key of which was not available with the appellant, whereas the lock on the Jali door, had 2 keys - one with the appellant and other with the respondent. On coming back from Delhi he found the wooden door locked the keys of which were with the respondent. Therefore, he could not enter the matrimonial home. It was pleaded case of the appellant that this was done with a sole motive of harassing and torturing the appellant. On inquiry after 2 hours the appellant was informed by the respondent that she was at her parental place and that the lock had been put intentionally as she was not to come back to Faridabad. The appellant went to his parental house and narrated the entire incident. Father of the respondent asked the appellant to shift to Delhi near the parental house of the respondent but this was not accepted as the appellant as he thought that if this was the attitude of the respondent/wife while staying at Faridabad what would be his fate after he shifts to Delhi.
Father of the respondent thereafter started sending letters and telegrams levelling false allegations against the appellant of beating and of electrocuting besides raising of other demands. The case of the appellant was that the respondent never came back to matrimonial home after 22.5.1995 i.e. the date when she locked the wooden door entrance of the matrimonial home. The goods lying therein remained intact. The case of the appellant was that thereafter a meeting was arranged between the FAO No.267-M of 2005 7 appellant and the father of the respondent on intervention of the landlord at the office of Avdhoof Real Estate Consultants, Sector 37, Faridabad on 27.6.1998 where it was settled that the respondent would come to Faridabad to live on 28.6.1998 but she never came to Faridabad.
The case of the appellant further was that he had to join the M.Sc. Computer Science (Software) at Madurai Kamraj University on being sponsored by the employer of the appellant on 20.7.1998. The appellant was to join the course on 1.7.1998 whereas he reached on 9.7.1998 where he remained up to 14.7.2000. The parents of the respondent visited Madurai with mala fide intention to defame the appellant by levelling false allegation. It was pleaded case of the appellant that the parents of the respondent created a scene at the University Campus Madurai, and also met the Head of the Department of the appellant. The parents of the respondent, thus, lowered the image of the appellant in the eyes of the colleagues, staff and the seniors of the appellant. The case of the appellant was that the allegations levelled against the appellant by the parents of the respondent also caused great humiliation, harassment and mental tension to the appellant The respondent also wrote a letters levelling false allegations against the appellant to Senior Officers of the appellant. On these allegations he was summoned and was put to query. The writing of letters was said to be cause of mental cruelty.
It was pleaded from the act and conduct of the respondent it became impossible for the appellant to keep further relations with the respondent as wife, and that the appellant had not condoned the acts of FAO No.267-M of 2005 8 cruelty on the part of the respondent and prayed for a decree of divorce.
On notice, respondent appeared and filed written statement admitting the marriage but denied all other the allegations. The stand taken by the respondent was that the appellant was not interested in having a child as was pointed out in the letter dated 8.6.1998 addressed to the appellant. Respondent was also not allowed to visit her parents. The case of the respondent further was that she used to behave nicely with the appellant and all other family members including the parents and relations and further that she used to discharge all matrimonial obligations as a pious Hindu wife. The appellant and his family members on the other hand used to insult the respondent's parents in the family gathering, in the presence of respondent. The case of the respondent was that it was difficult to face the situation, when the parents and his family members openly insulted the respondent's parents in front of their relatives, who paid visit to the appellant' house on 26.10.1997 to greet them on Diwali.
The allegation that the respondent wanted to separate residence from the parents of the appellant was said to be quite baseless and cooked up which was clear from the fact that even at the time of filing of petition the respondent was living separate from his parents without any valid reasons and ground. It was also pleaded case of the respondent that the marriage was settled after holding meeting between the appellant and respondent and by her free will, therefore, the question of her disliking him did not arise. She even denied that she desired the appellant to go out by submitting that it was humanly impossible after spending whole day in FAO No.267-M of 2005 9 office, to talk of going outside for loitering or taking dinner etc in Delhi. Faridabad is also a prominent city having modern amenities of restaurants, hotels etc. Allegations were said to be false.
Pleaded case of the respondent was that real issue was dowry demand. It was pleaded that her parents never interfered in the matrimonial affairs as it was for the husband and wife to understand each other and adjust according to the likes and dislikes with a view to have harmony in the family. The case of the respondent further was that the parents of the respondent never interfered in the family affairs of the respondent. The respondent was hardly allowed to visit her parents. It was further pleaded that the appellant and his family members created such situation which compelled the parents of the respondent to raise the issue in black and white to safeguard the family life of the respondent. The respondent pleaded that she was tortured by the appellant and his family members, particularly Mohan Arora. The case pleaded by the respondent was that the appellant had left for Madurai in consultation with his father, with a hanging matrimonial home problem. The respondent took up the matter with the father of the appellant to get the issue resolved, but instead of rendering any cooperation he refused to provide the address of the appellant, nor any action was taken to resolve issue of rented accommodation.
It was further pleaded case of the respondent that by breaking open the lock, her gifts given in the marriage were taken away presumably by the landlord but neither the appellant nor his father bothered to take note of this. It was also denied that the factum of taking of locker came to the FAO No.267-M of 2005 10 notice of the appellant only from the letter dated 20.10.1997. The respondent showed her surprise that even after coming to know about this fact he took no steps to convert the locker in the joint name. The respondent further denied that she wanted to be separate from the family of the appellant. It was the case of the respondent that the allegations were levelled to cover up matrimonial offence committed by the appellant and his family members. The reasoning given for this was that, if there was any threat regarding suicide or burning, then a close relation of the appellant could not have taken a decision to take separate accommodation. It was the case set up by the respondent that the appellant had not disclosed the fact that he was having government accommodation at material time. The allegations that the respondent never used to wash clothes and cooked food were also denied and alleged to be false and baseless. The case of the respondent was that the appellant posed himself to be a simple person, but in fact he was maintaining double standard. Reason for this stand was that action of the appellant in terrorizing the respondent by pretending to take liquor, seeking landlord's help in inflicting cruelty on the respondent, false promise on 27.6.1998 for restarting married life in disputed rented accommodation, moving to Madurai under guarded secret from the respondent with matrimonial house problem hanging and observing silence breaking open of lock of the almirah in matrimonial home, nexus/criminal conspiracy with the landlord in breaking open of the lock of the house, pretending himself to be bachelor with plans to marry class mate, filing of divorce petition during the time sought before Police Authorities for FAO No.267-M of 2005 11 reestablishing matrimonial bond. It was also pleaded case that the appellant used to come late at night. The respondent further pleaded that though the appellant was blaming the father of the respondent but he failed to accept the fault of his father in not providing address when the appellant left for Madurai or even when the lock of the house was broken by the landlord. Request of the respondent's father to initiate action against the landlord were thrown in the dustbin. It was also the case of the respondent that the accommodation of her father was only of one room and there was another girl to be married, therefore, there was no question to keep the appellant as Ghar Jawai. It was also the case of the respondent that four near relatives of her were living near to the respondent's father and therefore, no assistance was required by him. Allegations were said to be totally baseless. It was the case of the respondent that it was the appellant who had expressed his desire to be Ghar Jawai to grab the assets of the parents of the respondent.
It was also the case of the respondent that the appellant was not interested to resolve the dispute as he had secret plan to leave for Madurai to attend educational programme for 2 years. It was further the case of the respondent that settlement arrived at between the parties on 27.6.1998 at Faridabad was also violated by the appellant. She denied the allegation that the appellant could not open the matrimonial home. It was the case of the respondent that settlement on 27.6.1998 was not bona fide as he had already planned to join the educational programme w.e.f. 20.7.1998. It was, thus, pleaded that it was the respondent who was treated FAO No.267-M of 2005 12 with cruelty, as the dispute of rented accommodation resulted in loss of matrimonial assets and Istridhan due to the fault of the appellant. The parents of the respondent had gone to Madurai to find out the whereabouts of the appellant and to find solution to the rented accommodation as he was not responding when the career of their daughter was at stake. This act of the appellant was said to be a cause of great pain, agony and harassment to the respondent and other members of her family. The appellant also refused to make any response in the independent meeting at Madurai. It was for this reason that meeting was sought with the Head of the Department. It was pleaded that the alleged humiliation and mental tension on account of meeting with Head of the Department was his own creation, which was forced by the respondent on her parents. The story was, therefore, said to be totally improbable and unbelievable.
It was further the case of the respondent that the appellant was working in a chalked out plan. The appellant and his family members were said to be greedy for dowry, more particularly, after higher education of the appellant in Madurai. The appellant posed himself as bachelor at Madurai and was working on plan to solemnize second marriage with a class-mate.
All other material allegations were specifically denied. It was also pleaded that the petition lacked locus standi and that the appellant had no cause of action to maintain the petition. Therefore, prayed for its dismissal.
In the replication averments made in the petition were reiterated whereas averments made in the written statement were denied. FAO No.267-M of 2005 13
On the pleadings of the parties the following issues were framed by the learned Matrimonial Court:-
1. Whether the respondent has left the company of the petitioner and therefore whether the petitioner is entitled to get divorce from the respondent on this ground as alleged? OPP
2. Whether the respondent has treated the petitioner with cruelty as alleged? OPD
3. Whether the petition is not maintainable in the present form? OPR
4. Relief.
Both the parties led oral as well as documentary evidence. On appreciation of evidence learned matrimonial court by placing reliance on the judgment of Hon'ble Supreme Court in the case of Laxman Uttam Chand Vs. Meena AIR 1964 SC 40 observed that the offence of desertion commences with factum of separation and animus deserendi co-existing, but it is not necessary that they should commence at the same time but at one point of time the animus deserendi had to co-exist.
The learned matrimonial court also took note of the judgment of Hon'ble Supreme Court in the case of Bipin Chander Jaisinghbhai Shah Vs. Prabhawati AIR 1957 SC 176 to hold that the essential conditions for the offence of desertion, are (i) the factum of separation and
(ii) the intention to bring cohabitation permanently to an end (animus deserendi); and as regards the deserted spouse the elements are (i) absence FAO No.267-M of 2005 14 of consent and (ii) absence of conduct giving a reasonable cause to the spouse leaving the matrimonial home to form the necessary intention.
In this background of the settled proposition of law the facts and evidence were considered by the learned matrimonial court.
After noticing the proven facts the learned matrimonial court held that the dispute between the parties was amicably settled and a compromise was executed which provided that the parties will reside neither at Faridabad nor at Delhi but at Gurgaon but the appellant did not make any arrangement for accommodation at Gurgaon. The learned matrimonial court held that the evidence on record proved the fact that the appellant had left for Madurai on 3.7.1998 and remained there for 2 years till 14.7.2000. The learned matrimonial court also held that the evidence on record showed that the respondent had made correspondence with the employer of the appellant which proved her eagerness to join the matrimonial home, and not to break the matrimonial ties. Rather the appellant immediately on coming back from Madurai filed the present petition. The learned matrimonial court found that the conduct of the respondent did not show intention not to cease cohabitation. The learned court held that plea of desertion was not proved. Issue No.1 was accordingly decided against the appellant.
The learned matrimonial court on issue No.2 held that in order to prove cruelty the appellant examined Rakesh Kumar as PW 1, Constable Surender Singh PW 2 and Umesh Chand Sharma as PW 3 besides appearing himself in the witness box.
FAO No.267-M of 2005 15
Rakesh Kumar PW 1 an official of the court of Judicial Magistrate First Class, Faridabad deposed that challan in the case State Vs. Krishan Kumar and others bearing No.279 of 2001 under sections 498-A IPC was submitted to the court on 5.1.2002. All the three accused in the case were granted and released on anticipatory bail, and thereafter on regular bail. He also placed on record supplementary statement of Ms.Nidhi Arora recorded on 7.6.2001 and the supplementary statement of Pritam Dass recorded under section 161 of the Code of Civil Procedure recorded on 5.8.2001. Photo copy of the FIR was also placed on record as Ex.P.1. However, he showed ignorance of personal knowledge about the case.
Constable Surender Singh PW 2 brought the record of case FIR No.279 registered under section 498-A IPC in Police Station Sarai Khawaja on the statement of Smt.Nidhi Arora on 31.5.2001. FIR was said to have been recorded by ASI Raghbir Singh on the statement of Ms.Nidhi Arora. He also had no personal knowledge about the case.
Umesh Chand Sharma PW 3 deposed that the appellant was serving as Senior Technical Assistant in the Institute of Institute for System Studies and Analysis, Ministry of Defence, and he resigned from service vide letter dated 21.1.2001. Resignation of the appellant was accepted on 15.3.2001. He also proved copies of letter of Nidhi Arora and P.D.Narang, written to the Department Exs.P.6 to Ex.P.25, and copy of letter dated 15.3.2001 Ex.P.26. However, in cross-examination he stated that he had brought the summoned record but was not aware of the date of joining of the appellant. He also could not tell whether the appellant was provided FAO No.267-M of 2005 16 Govt. accommodation in Delhi as he did not deal with the establishment section. He was also not aware of the action taken on these letters. However, he admitted that it was not necessary to surrender Govt. accommodation during the course of study. Mohan Arora, brother of the appellant was also said to be serving in the same department.
Appellant while appearing as PW 4 supported the averments made in the petition as referred to above. He further deposed that he wanted to be Scientist in DRDO, but on account of harassment meted out to him by the respondent and her father, he was not in a position to pursue his career and was forced to resign. He was getting a salary of Rs.13,000/- (Rupees thirteen thousand only) per month at the time of resigning from the service. It was also deposed up by him in evidence that in case he would not have resigned, then he could have attained the post of Director with the passage of time. During his cross-examination he admitted that he was not residing at # 440 Sector 19, Faridabad at the time of filing of the petition, and that Shri S.C. Aggarwal was his landlord. The address given in the petition was said to be only a postal address. He was actually residing at Bangalore and further he was not willing to disclose his address in the presence of the respondent, his father-in-law and her counsel on apprehension that they would adopt old tactics, but he showed his desire to disclose his address in private to the court.
In Bangalore he was serving with a private company and getting Rs.38,000/- (Rupees thirty eight only) per month, but he did not disclose the name of the company. It was also deposed in evidence that he FAO No.267-M of 2005 17 joined DRDO in 1992. His father was also in DRDO as also his brother. He had got Govt. accommodation in January, 1995 and that marriage of the respondent was arranged through matrimonial advertisement. It was also admitted by him that Mohan Arora his brother was living in joint family and head of family was his father.
He also admitted that written settlement was arrived at between the parties in Police Station in October, 2000 and that there was no coercion or pressure at the time of settlement. He also admitted that settlement was not implemented, but it was stated that the respondent went back and refused to abide by the settlement on the very next day, but admitted that he did not issue any notice. He deposed that the respondent had refused to go to Gurgaon and therefore, the question of taking house in Gurgaon did not arise. This was said to be verbal refusal on telephone. He admitted that case under Section 498-A IPC was registered. It was also admitted that he did not tell to the respondent about his departure to Madurai as she was not at home at that time. She was also not informed before he left for Madurai. He also admitted having not disclosed his address. It also came in evidence that he surrendered the Govt. Accommodation on 8.3.1998 and had never stayed in govt. accommodation after April 1996. House No.1206, Sector 37, Faridabad was taken on rent. It was deposed that the respondent was aware of the fact of Govt. Accommodation with him even before the marriage. He admitted that his father-in-law had not written any letter to his office till May, 1998. He admitted that letters were written to the office only after he left for FAO No.267-M of 2005 18 Madurai. Stand of the appellant further was that he did not make any arrangement for the respondent as she was gainfully employed and was staying with her father before he left for Madurai. He also deposed that he was not in a position to vacate the rental accommodation at Faridabad as he had no key but admitted that he never called the respondent to open the lock. The stand taken up by him was that the respondent had promised to come back on 28.6.1998 in the meeting held on 26.6.1998 but she did not come back. He admitted that he never tried to remove the articles from the house with the intervention of the police. He admitted that he did not take any action in spite of notice from Advocate of the landlord, nor he paid any rent to the landlord after he left for Madurai as he did not feel any necessity of paying rent. He also could not tell the particular places where the respondent used to insist for going to Delhi. Haldiram was said to be one of the main places. He admitted that Haldiram did not remain open till late night. He also admitted that there were number of restaurants in Faridabad. He also did not make any complaint to his co-brother about the conduct of the respondent or her father. It was also admitted that he never thought it necessary to take assistance of any neighbour to resolve differences with her father-in-law, but deposed that respondent used to go to Delhi on almost every Saturday. It was admitted that the respondent was getting Rs.5000/- (Rupees five thousand only) per month and had service 6-7 years to her credit. He, however, stated that she never gave her salary to him. He stated he wanted to see the account to know about her salary, but her father retorted that it amounted to demand of dowry. He admitted that he was FAO No.267-M of 2005 19 getting salary during the time he was studying at Madurai University. He was not asked to deposit any amount but was asked to only execute a bond. He, however, took a stand that he was not prepared to join the company of the respondent even if she was willing to join the company on that day itself. However, he denied having made demand of dowry.
The respondent supported the stand taken by her in the written statement. It was deposed by her that the parents of the appellant and his family members started quarreling and thereafter raised demands for cash and kind like, car and flat etc but she could not meet the dowry demands. She deposed that she had come to know that the appellant wanted to marry some relation of T.D.Arora but the marriage was not solemnized because the appellant and his family members expected more dowry in marriage. It was also deposed by her that parents of the appellant insulted her parents when they came on the eve of Dipawali on 26.10.1997 and even doors were closed on them. She further deposed that she went to see her ailing brother on 28.10.1997 when the appellant broke opened the lock of almirah and took out all her ornaments in her absence. She also deposed that her request to open a joint locker in bank to keep ornaments was not accepted by the appellant as he refused to sign the application forms. It was pleaded that the appellant had been saying that he would perform marriage again with some other girl, and his elder brother had also started saying that it was not possible to live jointly, as they were not satisfied with dowry. She also deposed that the parents and his relatives made false complaints against her and her Jeeja and other relations. She took a positive stand that she was FAO No.267-M of 2005 20 subjected to all types of cruelties and forced to undergo Tantrik rituals. She also deposed that scandalous allegations were made against her. The behaviour of the appellant and his family members was said to be not normal as they wanted to get rid of her. She deposed that Smt.Harsh Rani, her sister-in-law had told her about the settlement of earlier engagement and fixation of marriage but the matrimonial alliance was dropped by the appellant for want of good dowry. She deposed that even though the appellant was having Govt accommodation he did not shift to Govt accommodation but secretly arranged to go to Madurai for higher studies whwreras she was shifted to first floor in Sector 31 and thereafter made to shift to House No.1206, Sector 37, Faridabad. She also deposed that the appellant very cleverly shifted Istridhan articles there even though it was taken on rent for 2/3 months only as he had already planned to go to Madurai for higher studies. He also secretly surrendered Govt accommodation. She also deposed that the appellant had treated her with cruelty by giving physical beating, taunting and even tried to electrocute her on 20.5.1998. She deposed that she gave all types of cooperation and discharged matrimonial obligations like cooking food and washing clothes etc. She also deposed that her behaviour towards the appellant and his family members was always good. She, however, admitted that she had left the house after locking, as there was danger to her life. It was on reaching office she came to know that the appellant had surrendered the Govt accommodation on 8.3.1998.
She also deposed that she talked to the appellant that she was FAO No.267-M of 2005 21 go to her parents, but had never changed the lock of wooden door she also requested him to go to his parental house. She further deposed that the appellant informed the landlord that he could take household goods lying in the house of the appellant. The landlord also informed her father to take the articles lying in the house but entire house articles were embezzled. She also placed reliance on the meeting fixed at the premises of Property Dealer on 27.6.1998 wherein it was decided that the parties should live jointly but on the next day the appellant went out and did not attend to her telephone calls. She also deposed that the appellant left without leaving any address and without settling accommodation dispute in the first week of July, 1998 and whereabouts were also not disclosed nor his family members disclosed his address. She also deposed that the landlord in conspiracy with her husband broke opened the lock and took away all articles but in spite of her complaint the family members did not take any action. It was in these compelling circumstances that the parents of the respondents went to Madurai but the appellant avoided to see them and the meeting thereafter could only be arranged with the intervention of the Principal of the Institution. The Principal also agreed to spare the appellant for settling the dispute of rented accommodation but he refused to come to Faridabad. She also took up the matter with the Department to take action against the appellant under the Service Conduct Rules and help her in resolving the issue but the Department did not take any action as the office was under the influence of the brother of the appellant who was also serving with the Department.
FAO No.267-M of 2005 22
She reported the matter to the police on 4.5.2000. Both the families were summoned and settlement Ex.R.1 was arrived at 2.10.2000. Compromise bore the signatures of her husband as well as other relations. The appellant did not act upon the compromise and filed divorce petition. The allegations of dowry were levelled. But she showed her willingness to go with the appellant subject to her safety. Order of the learned matrimonial court showed her apprehension that the appellant could be thinking of getting married but no body tried to clear her doubt. She also deposed that she used to pay her entire salary to her husband and extended full cooperation. Though the appellant was allowed to complete the course with her cooperation but he filed a divorce petition thereafter. She further deposed that she never preferred to have any independent accommodation nor wanted to enjoy late night life. Other averments made in the written statement were also asserted in her statement. However, she admitted that she wrote letters to the employer of her husband that he should not be sent to Madurai to undergo the course. In cross-examination she stuck to the averments made in the examination in chief.
On the basis of evidence referred to above the contention of the learned counsel for the appellant was that due to her conduct the appellant had to resign from permanent job i.e. job with the Institute for System Studies and Analysis, Defence Research & Development Organization, and had to remain unemployed for some time and thereafter seek private job which is neither secure nor has career prospective or pension or provident fund etc. The act of the respondent, therefore was said FAO No.267-M of 2005 23 to an act of cruelty. The contention of the learned counsel for the appellant was that the respondent had treated the appellant with cruelty and prayed for grant of decree of divorce whereas the stand or the respondent before the learned matrimonial court was that there was no evidence in support of cruelty, except the sole testimony of the appellant. It was also the contention that even if it was assumed that the allegations of the respondent were proved it could not amount to cruelty, as the allegations were of trifle nature which could result in apprehension in the mind of appellant, that it would be injurious or harmful for him to live with the respondent. It was also the contention that it was the appellant who was responsible for creating such a situation.
On appreciation of evidence and the allegations levelled as referred to above, learned matrimonial court was pleased to hold that the appellant failed to prove that the respondent treated the appellant with cruelty entitling him decree of divorce. Issue No.2 was also, therefore, decided against the appellant.
However, issue No.3 was decided in favour of the appellant and in view of the findings on issues No.1 and 2 petition filed by the appellant was ordered to be dismissed.
The plea of the appellant that it was irretrievable broken marriage was also rejected. However, application moved by the father of the respondent under section 340 of the Code of Criminal Procedure was dismissed as not maintainable.
Mr. Lokesh Sinhal, learned counsel appearing on behalf of the FAO No.267-M of 2005 24 appellant has challenged the judgment and decree passed by the learned matrimonial court by contending that the learned matrimonial court failed to notice that it was proved that the respondent left the matrimonial house in the absence of the appellant on 22.5.1998 by locking the door and on being asked, she has stated that she was not coming back. Furthermore the act of filing a complaint regarding breaking open of lock was an act which showed that he has no intention to resume matrimonial obligation.
Learned counsel appearing on behalf of the appellant also contended that during the absence of the appellant number of letters were written making serious allegations against the appellant which left no manner of doubt that she had left matrimonial home on 22.5.1998, therefore, on the date of filing of petition, the respondent had deserted the appellant for a continuous period of 2 years and finding on issue No.1 recorded by the learned matrimonial court, therefore, deserved to be set aside. It was also the contention of the learned counsel for the appellant that the act of the respondent in showing her desire to live separately showed that she was not willing to live in the matrimonial home which itself was sufficient to draw an inference of her intention.
On consideration of matter, I find no force in this contention. Learned matrimonial court was right in holding that in order to succeed on the plea of desertion, it is not merely separation but appellant was also required to prove animus deserendi In the present case, it was the appellant who left the matrimonial home on 6.7.1998 without informing about his whereabouts. FAO No.267-M of 2005 25 The respondent during this period made number of attempts and even her parents visited at Madurai to settle the matrimonial home, but it was due to the attitude of the appellant that the matter could not be resolved. It was also proved on record that the appellant had agreed to shift to Gurgaon to set up the matrimonial home but he took no step to acquire the accommodation at Gurgaon. Rather he chose to file divorce petition immediately on coming back from Madurai. Learned matrimonial court, therefore, in the facts and the circumstances of the case rightly held that desertion was not proved as there was no evidence, whatsoever, to come to the conclusion that the respondent had left the matrimonial home with an intention to bring to an end matrimonial alliance between the parties. Finding on issue No.1, is therefore, affirmed.
Mr. Lokesh Sinhal, learned counsel appearing on behalf of the appellant challenged the finding on issue No.2 also by contending that the following facts were duly established by pleading and by leading evidence which constituted cruelty, entitling the appellant to seek decree of divorce on the ground of cruelty i.e.:
(i) That the respondent/wife asked for separate residence and ill-treated the appellant to achieve this object. The contention of the learned counsel for the appellant was that separate residence from the parents was taken by the appellant under the pressure of the respondent and not of his own accord;
(ii) That the respondent by writing letters to the employer of the husband in which allegations were made against him amounted to mental FAO No.267-M of 2005 26 cruelty as she had requested the Head of the Departmnent to cancel the sponsorship of the appellant for higher studies;
(iii) That a false complaint was made to the police alleging therein the demand of dowry by the appellant and his family members, and she also wrongly alleged that the appellant had tired to kill her by electrocuting;
(iv) That during the pendency of the petition the allegations were levelled against the appellant that he has remarried and in spite of denial by the husband she repeated these assertions and therefore, the false allegations constituted cruelty.
In support of the grounds taken the learned counsel for the appellant contended that the mental cruelty has to be considered in the light of social status of the parties, their education, physical and mental condition, customs and traditions and the court is to draw an inference and decide on the basis of probabilities of the case. By taking into consideration the effect it causes on complainant's spouse, because of the acts and omission of other spouse. It was further contended that subsequent conduct of the spouse be taken into consideration to arrive at the conclusion whether the complainant's spouse has been treated with cruelty.
Learned counsel appearing on behalf of the appellant relied upon the judgment of Hon'ble Supreme Court in the case of A.Jayachandra Vs. Aneel Kaur (2005) 2 Supreme Court Cases 22, and the judgment of Hon'ble Supreme Court in the case of Dr.N.G.Dastane Vs. Mrs. S.Dastane (1975) Supreme Court Cases 326.
FAO No.267-M of 2005 27
On the principles referred to above the learned counsel for the appellant contended that the parties belonged to Hindu society and therefore, the demand of the wife to seek separate residence and objecting to live in a joint family is such an act which constituted mental cruelty.
This contention of the learned counsel for the appellant cannot be accepted. It is not in dispute that in the written statement as well as in the evidence a specific stand was taken by the respondent that she was not interested in a separate residence. Furthermore, it is also not in dispute that the parties had, in fact, taken a separate residence to set up their matrimonial home and further appellant compromised to have a residence at Gurgaon. The appellant of his own left matrimonial home without disclosing his whereabouts for his further studies, and admittedly did not pay rent for the premises and further refused to get the matter resolved in spite of the fact that the parents of the respondent had gone to Madurai to meet him in this regard.
Once the appellant had taken a separate residence it can hardly be said that the demand of the wife to have a separate residence amounted to cruelty. Rather the pleadings of the appellant himself shows that the respondent/wife had merely desired that keeping in view their financial position they should live happily, whereas it was the appellant who was interested in saving money for the future. Therefore, keeping in view the status, education and physical and mental condition of the parties and the fact that both the spouses were employed and having independent source of income it could not be said that the demand of the respondent to have a FAO No.267-M of 2005 28 separate residence was such which could cause mental cruelty to the appellant. Even now the appellant is living separate from his family, it is not understood as to how the demand of a separate residence, could amount to mental cruelty.
In support of the allegations that the writing of letters to the employer of the appellant caused mental cruelty to the appellant, learned counsel referred to the letter Ex.P.22 wherein the respondent had asked the Department to safeguard her interest by providing her the information regarding the educational programme of the appellant as also regarding the bond executed by him.
Reference was also made to the letter Ex.P.23, wherein certain information was asked with regard to the whereabouts of the appellant. Reliance was also placed on the letter Ex.P.24, wherein complaint was made regarding harassment metted out to her and she was forced to make a request to cancel educational programme of the appellant.
Learned counsel for the appellant, therefore, contended that these letters wherein false complaints were made to the employer by the respondent was an act which caused metal cruelty to the appellant. It was on account of these letters that the appellant had to resign from his job, therefore, the learned matrimonial court committed an error in deciding issue of cruelty against the appellant.
There is no force in this contention of the learned counsel for the appellant. Reading of these letters would show that these letters were written by a wife under frustration, due to the conduct of the appellant. It is FAO No.267-M of 2005 29 not in dispute that the appellant left for Madurai and failed to disclosed his whereabouts to the wife. Therefore, as per the provisions of Section 23 (1)
(a) of the Hindu Marriage Act the appellant cannot take advantage of his own wrongs, to contend that the writing of letters caused mental cruelty to him.
Even otherwise reading of these letters would show that no serious allegations were made against the appellant, but helplessness of wife was depicted in the letters written to the employer, in view of the situation in which she was put. The allegations otherwise are such trivialities which cannot constitute cruelty of such a nature which could lead to a conclusion that it would not be safe for the appellant to live with the respondent in the matrimonial home.
It was next contended by the learned counsel for the appellant that the respondent made a false complaint to the police alleging demand of dowry, and also levelled allegations of attempt to electrocute her. These false allegations of the respondent amounted to cruelty.
This plea also cannot be accepted. It is well settled law that making of complaint to redress the grievance by the wife cannot amount to cruelty. It is only the false allegations and false criminal prosecution of the spouse which amounts to mental cruelty to entitle a complainant spouse to seek decree of divorce.
It is not in dispute that FIR registered against the appellant is pending, and it is yet to be determined whether the prosecution was launched on true facts or it was false. It was for the appellant to have led FAO No.267-M of 2005 30 evidence before the learned matrimonial court showing that the allegations were false and the complaint was based on false allegations. The evidence produced in the present case, rather shows that in pursuance to the complaint the matter was compromised, without any pressure or coercion. The appellant rather failed to keep his commitment. In the absence of any evidence that the allegations in the complaint were false, it cannot be said that making of complaint to the police amounted to mental cruelty which could entitle the appellant to seek decree of divorce.
The learned counsel for the appellant also contended that mental harassment caused to the appellant was of such an extent that he had to resign from the job and this act was sufficient to hold that the appellant was subjected to mental cruelty. In support of this contention reliance was placed on the judgment of Hon'ble Supreme Court in the case of A.Jayachandra Vs. Aneel Kaur (supra).
This contention again is totally misconceived. The appellant failed to prove by cogent evidence that resignation was on account of act of respondent. It is proved on record that the appellant joined new place at much higher salary.
As already observed no allegations of such nature were levelled or proved which could make it difficult for him to continue with the job as only request made in the letters was to know about his whereabouts, and further assistance of the office was sought for setting up matrimonial home by resolving the dispute. It has also come in evidence that while leaving job of Rs.13,000/- (Rupees thirteen thousand only) per month the appellant had FAO No.267-M of 2005 31 taken up job at a monthly pay of Rs.39,000/- (Rupees thirty nine thousand only) per month. Possibility of appellant having gone for better prospectus cannot be ruled out. This contention of the learned counsel for the appellant, therefore, also deserves to be rejected.
It was finally contended by the learned counsel for the appellant that during the pendency of this appeal the respondent had moved an application alleging therein that the husband has remarried, and in spite of his affidavit denying this assertion it was again reiterated. The plea of cruelty, therefore, stood proved by this act alone. In support of this contention learned counsel for the appellant placed reliance on the judgment of this court in the case of Mohinder kaur Vs. Bhag Ram AIR 1979 Punjab and Haryana 71, wherein this court has been pleased to lay down as under:-
" Where a husband's petition for restitution of conjugal rights under S.9 and a wife's counter-petition for judicial separation under S.10 are tried together and the trial court has recorded a clear finding that the allegations of second marriage of the wife with any other person made by the husband are not proved that itself is sufficient proof of mental cruelty on the part of the husband entitling her to a decree for judicial separation especially when the wife had taken a specific ground in her petition that the husband had made false allegations in his petition under S.9 that she was living in adultery with one B after having contracted a second marriage with him. There is FAO No.267-M of 2005 32 ample authority on the point that the very act of levelling such like allegations tantamount to perpetrating mental cruelty on the other party."
This contention of the learned counsel for the appellant also cannot be accepted. The allegation levelled by the respondent/wife was not with an intention to defame or harass the appellant. The facts and circumstances of the present case show that the respondent/wife was always ready and willing to join the company of the appellant and took all available steps to rejoin the matrimonial home. It is the appellant who avoided the reconciliation, and his conduct in keeping his whereabouts secret caused reasonable doubt in the mind of the respondent/wife to think that the appellant might have remarried, therefore, he might have avoiding to resettle her in the matrimonial home. Allegations cannot be said to be defamatory as the one in the case of Mohinder Kaur Vs. Bhag Ram (supra) wherein allegations were held to amount to mental cruelty.
The application was disposed off without taking a decision on merit. It, therefore, shows that the respondent did not get an opportunity to prove the alleged allegations. As already observed in the earlier part of the judgment the behaviour of the appellant being secret about his address and whereabouts could be a reason for having such an apprehension. The application made showing her apprehension about the second marriage of the appellant cannot, be said to be an act which could result in mental cruelty of the appellant as contended.
For the reasons recorded above the findings of the learned FAO No.267-M of 2005 33 matrimonial court on issue No.2 are also affirmed.
For the foregoing reasons and conclusions, finding no merit in the appeal, it is ordered to be dismissed but with no order as to costs.
(Vinod K.Sharma) 24.09.2009 Judge rp