Punjab-Haryana High Court
Gurcharan Singh vs Sukhjit Kaur on 21 November, 2014
Equivalent citations: AIR 2015 (NOC) 488 (P.&H.)
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO No.M-2 of 2014 -:1 :-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
FAO No.M-2 of 2014.
DATE OF DECISION: November 21, 2014.
Gurcharan Singh ....APPELLANT.
VERSUS
Sukhjit Kaur ....RESPONDENT.
CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MRS. JUSTICE SNEH PRASHAR
****
Present: Mr. Iqbal Singh Mann, Advocate
for the appellant.
Ms. Divya Sharma, Advocate
for the respondent.
****
SNEH PRASHAR, J.
1. By way of this appeal, Gurcharan Singh-appellant assailed the judgment and decree dated 04.10.2013 passed by learned Additional District Judge, Sri Muktsar Sahib, dismissing H.M.A. case No.39 dated 17.04.2012 filed by him against his wife Sukhjit Kaur-respondent for dissolution of their marriage.
2. The facts garnered from the record are as under:-
The appellant was married to the respondent on 27.09.2006 as per Sikh rites and ceremonies at Muktsar Sahib. After solemnization of JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 -:2 :- the marriage, the parties cohabited as husband and wife at village Sarainaga and a daughter, namely, Ashpreet Kaur was born out of the wedlock, who was presently residing with her mother-respondent.
The appellant pleaded that his marriage with the respondent was solemnized in a simple manner; only 10 persons had gone in the Barat; no dowry was given or demanded; and the respondent was brought in her wearing apparels with two suitcases. Whereas, his family gave 3½ Tolas of gold and valuable clothes to the respondent which are still with her. His father, who was suffering from Cancer, died just 15 days after the marriage.
The allegation of the appellant was that from the very beginning of marriage, the behaviour of the respondent towards him and his family members was rude and insulting. She was short tampered and used to even refuse to prepare or serve food etc. After the death of his father, she pressurized him to live separately from his brother and other family members and when he did not agree she deprived him of his matrimonial pleasures. Due to the turmoil in the family he convened a Panchayat of respectables and as advised by them he constructed a separate room and kitchen in the same house and started living in the same alongwith the respondent. The behaviour of the respondent still did not change. She adopted the habit of leaving the matrimonial home without informing him and would return only on requests made by him. When she was in the 7th month of pregnancy, she was taken to her parental home by her father. While leaving the matrimonial home she was given JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 -:3 :- `10,000/- in cash and gifts etc. After the daughter was born, he alongwith his sister, brother-in-law, mother and brother went to the parental home of the respondent to give 'Panjiri', clothes etc. and to bring her back to the matrimonial home but the respondent and her father openly declared that unless his land was transferred in her name, she would not return. They also abused and insulted them.
It was further alleged that five months thereafter she alongwith the child came to the matrimonial home at the instance of his brothers and Jagjit Singh, Member Panchayat of Village Sarainaga. Still there was no change in her behaviour and she continued to be abusive and harsh towards him and his family without any rhyme or reason. On 28.01.2007, Jagdish Singh son of Pritam Singh of village Kotkaror, District Moga visited his house but the respondent refused to cook dinner for him and also refused to pick up utensils etc. from the cot and on insistence by him she abused and insulted him in the presence of Jagdish Singh. Similarly, on 29.09.2007, when he and the respondent had gone to the market of Mandi Bariwala, they met Boota Singh son of Kehar Singh in whose presence the respondent asked him to purchase clothes for her and when he expressed his inability to do so because of scarcity of money, she started hurling abuses on him and even tried to slap him in the presence of Boota Singh. On several occasions she treated him in most cruel and inhuman manner.
Thereafter, in the month of October, 2007 when he was away to the fields, father of the respondent came and took her with him without JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 -:4 :- his consent. After two days he went to bring her back but he was insulted and the respondent refused to join his conjugal company. A Panchayat was convened but the respondent remained adamant and demanded transfer of land in her name. He filed a petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter to be referred as "the Act of 1955") for restitution of conjugal rights at Shri Muktsar Sahib. The respondent appeared but refused to return to the matrimonial home. She filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter to be referred as "Cr.P.C.") in which maintenance was allowed to her. He then filed a petition under Section 20 of the Hindu Adoption and Maintenance Act whereas the respondent filed a complaint under Sections 307, 406, 498-A and 120-B of Indian Penal Code (hereinafter to be referred as "I.P.C.") against him and his family members which was pending. Alleging that the respondent had treated him with utmost cruelty and had also deserted him without any rhyme or reason, the appellant prayed for dissolution of their marriage by a decree of divorce.
3. The respondent contested the petition. The foremost preliminary objection raised by her was that the instant petition was a counter blast to the complaint under Sections 307, 406, 498-A and 120-B of I.P.C. filed by her against the appellant and other members of his family who had since been summoned vide order dated 21.11.2011. She also mentioned a petition under Section 125 of Cr.P.C. filed by her had been accepted and the appellant had been directed to pay maintenance allowance to her and her daughter vide order dated 21.07.2010. JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 -:5 :-
Replying parawise, the respondent denied all allegations of the appellant and submitted that although her father had solemnized the marriage with great pomp and show and had given sufficient dowry in the form of clothes, cash and gold, yet the appellant and his parents were not satisfied and they always harassed and maltreated her and demanded additional dowry in the shape of a motorcycle and cash etc. After the birth of the daughter as she was unable to fulfil the demand she was turned out of the matrimonial home. Her father convened Panchayat but to no better result. The allegation of the appellant that she was demanding transfer of land in her name had already been rejected by the Court while deciding her petition under Section 125 of Cr.P.C. on 21.07.2010. Submitting that it was the appellant who treated her with cruelty and had deserted her, the respondent prayed for dismissal of the petition.
4. Appellant filed rejoinder controverting the objections raised by the respondent and on the pleadings of the parties, following issues were settled:-
(1) Whether the respondent has deserted the petitioner for a period exceeding two years immediately prior to filing this petition? OPP.
(2) Whether after the solemnization of marriage, the respondent has treated the petitioner with cruelty? OPP (3) Relief.
5. Both the parties adduced evidence in support of their respective contentions.
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6. Considering the arguments addressed, learned trial Court, finding that the appellant had failed to prove that he had been treated with cruelty by the respondent or had been deserted by her, dismissed the petition leaving the parties to bear their own costs by judgment dated 04.10.2013.
7. Feeling aggrieved, the appellant preferred the instant appeal.
8. Heard the submissions made by Mr. Iqbal Singh Mann, Advocate for the appellant and Ms. Divya Sharma, Advocate for the respondent.
9. Learned counsel for the appellant argued that there was ample evidence on file to prove that the behaviour of the respondent towards the appellant and his family members had been rude, harsh and abusive from the very beginning of marriage. Appellant Gurcharan Singh, who stepped into the witness box as PW5 made deposition in the form of affidavit Ex.PE reiterating each and every allegation against the respondent put forth in his pleadings. Two independent witnesses PW1 Jagdish Singh and PW2 Boota Singh came forward to corroborate the version of the appellant that the respondent was in the habit of insulting him in the presence of relatives and friends and very bluntly refused to cook food etc. for him, his family and visitors. It was on her demand that the appellant constructed a separate room and kitchen in his parental house and tried his level best to adjust her with an independent mess yet the respondent did not let him live peacefully and demanded that he should transfer his land in her name. She was in the habit of leaving the JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 -:7 :- matrimonial home without informing the appellant and in October, 2007 she accompanied her father in the absence of the appellant.
Learned counsel asserted that the conduct of the respondent was also apparent from the fact that though she was herself responsible for the marital dispute, yet after she left the matrimonial home she filed complaint levelling false allegations against the appellant and his family members. All efforts made by the appellant including filing of a petition under Section 9 of the Act of 1955 for restitution of conjugal rights, to bring the respondent back to the matrimonial home, had failed which proved that she had intentionally withdrawn from his conjugal company without any reasonable excuse. Relying on the cases reported as Naveen Kohli vs. Neelu Kohli, 2006(2) Recent Criminal Reports 290; and Gurnam Singh vs. Smt. Satwant Kaur, 2007(2) Recent Civil Reports 23, learned counsel urged that when it stands established that the respondent had been levelling false allegations against the appellant and the parties were living separate since long, it was clear that the marriage had wrecked beyond hope as the parties had lost mutual trust in each other. In the said state of affairs, the appellant is entitled to a decree of divorce.
10. The arguments of learned counsel for the appellant do not appear forceful or meritorious in the light of evidence available on record. The marriage between the parties was solemnized in 2006 and a daughter was born out of the wedlock in 2007 who is presently in the care and custody of the respondent. Under Section 13(1) (i-a) of the Act of 1955, JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 -:8 :- one of the grounds on which a spouse can seek dissolution of his/her marriage is that he/she had been treated with cruelty by the other spouse. The word "cruelty" has not been defined in the Act of 1955 but it has become a settled proposition of law that to constitute 'cruelty' the conduct complained of should be grave and weighty so as to come to the conclusion that the complaining spouse cannot reasonably be expected to live with the other spouse. In other words, the act complained of must be something more serious than ordinary wear and tear of a married life.
11. Coming to the petition in hand, a perusal of the pleadings of the appellant would indicate that all allegations levelled by him to elaborate the cruel conduct of the respondent were simply vague and general. No specific incident could be narrated by him which could be accepted as true and supportive of his allegations of cruelty or desertion.
To support his allegation that the respondent refused to prepare/ serve food to him, his family members and visitors, the appellant examined PW1 Jagdish Singh, his maternal uncle, who deposed that he visited the house of the appellant on 28.01.2007 and the respondent refused to cook dinner for him. He stated the mother of the appellant prepared the dinner and when the appellant asked the respondent to pick the utensils etc. from the cot she abused and insulted him.
From the statement of PW1 it does not appear that he had much knowledge about the household affairs/dispute between the parties. He admitted that he did not attend the marriage of the parties. He stated that he retired from Army in the year 2000, whereas the marriage between JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 -:9 :- the parties was solemnized in 2006. Despite being a retired personnel he did not attend the wedding. Though he stated that he was member of a Panchayat convened by the appellant to rehabilitate the respondent but he expressed ignorance that the appellant had filed any petition under Section 9 of the Act of 1955 for restitution of conjugal rights. He also admitted that in the Panchayat no Member of the village of respondent was joined.
12. Similarly, PW2 Boota Singh, who stated that in his presence the respondent insulted the petitioner in the market, could not offer any substantive proof of his presence with the appellant and respondent in the market. Apparently, both PW1 and PW2 were procured witnesses.
13. PW3 Sarabjit Singh was brother of appellant Gurcharan Singh. He narrated the facts as incorporated in the petition but in cross- examination admitted that he was working as a Sewadar in the Gurudwara for the last 15 years. Having said that he proved that what he deposed was tutored to him by the appellant and he had no personal knowledge of the same.
14. Last but not least, PW4 Jagjit Singh whose deposition was verbatim on the lines as was the statement of the appellant, could have no reason to know the general behaviour of the respondent even though he stated that he was a frequent visitor to the house of the appellant. He stated that Panchayat was convened on 3-4 occasions but could produce no proof of the same.
15. Admittedly, the appellant filed a petition under Section 9 of JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 - : 10 : -
the Act of 1955 for restitution of conjugal rights with the respondent. Certified copy of the petition tendered in evidence was Ex.P1 and the reply filed by the respondent was Ex.P2. He did not mention anything about the said petition in his pleading. It was recorded by the learned trial Court in Para No.24 of the impugned judgment that during the course of arguments it came out that the petition had been withdrawn by Gurcharan Singh (appellant). If at all the appellant had a genuine intention to resume cohabitation with the respondent at the relevant time, there was no reason for him to have withdrawn the petition.
16. Importantly, it was deposed and proved by the respondent that after she left the matrimonial home in October, 2007, she filed a complaint under Sections 307, 406, 498-A and 120-B of I.P.C. in which the appellant, his mother and other family members were summoned by the Court to face trial. The said fact was admitted by the appellant in his pleadings and also when he appeared in the witness box.
That was not the end of the matter. The respondent during her evidence tendered copy of the judgment dated 31.07.2013 Ex.RA vide which Judicial Magistrate Ist Class, Sri Muktsar Sahib convicted and sentenced appellant Gurcharan Singh, his mother Mukhtiar Kaur, brother Jaswinder Singh and sister Sukhjit Kaur for the commission of offence under Sections 498-A and 406 of I.P.C.
17. It may be true that the appellant had preferred an appeal against the judgment of conviction and sentence passed in criminal complaint of the respondent, but the fact remains that the allegations JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document FAO No.M-2 of 2014 - : 11 : -
based on which the respondent filed complaint had been found to be true by the learned Judicial Magistrate Ist Class, Muktsar Sahib. Filing of a criminal complaint by the wife against the husband or vice-versa may not by itself be a cruelty towards the spouse, but its outcome/result would certainly have strong repercussion on the act/conduct of the spouse who filed the complaint or against whom it was filed.
In the present case, the stand of the respondent in defence was that she was residing at her parental home under compelling circumstances because she was being harassed and maltreated by the appellant and his family members on account of their demand for more dowry etc. The behaviour of the appellant being unbearable and cruel towards her, the respondent had sought legal action against him and as observed above, her allegations have been found to be true by the learned trial Court.
18. Learned counsel for the appellant argued that RW2 Nand Singh, father of respondent Sukhjit Kaur stated in his cross-examination that no dowry was demanded or given at the time of the marriage. However, we find that the statement of RW2 Nand Singh to the said effect was being wrongly read. Deposing through his affidavit Ex.RW2/A, Nand Singh had step by step supported the version of the respondent and deposed that she was being ill treated by her husband and in-laws because of their demand for dowry. A perusal of the first two sentences of his cross-examination indicates that because of a typographical mistake in putting "stop" in between the two sentences were being read separately. JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document
FAO No.M-2 of 2014 - : 12 : -
At the face of it, replying to the suggestions given to RW2 Nand Singh, he had denied that the marriage of the parties was performed in a simple manner and that no dowry was demanded or given at the time of marriage. Here, it is worthwhile to mention that exactly same suggestion was given at the end of the deposition of RW2, which he again denied. Therefore, the statement of RW2 Nand Singh could not be read in the manner that he deposed that no dowry was demanded or given especially when in his affidavit he specifically levelled the allegation of demand of dowry against the appellant. When under forced circumstances the respondent was residing at her parental home and there is nothing to prove that the appellant had ever made any sincere and genuine effort to bring her back and provide her a happy and peaceful life, it would not amount to wilful withdrawal by the respondent from the society of the appellant-husband.
16. Thus, the finding of learned trial Court that the appellant had failed to prove that the respondent had treated him with cruelty or had deserted him requires no intervention and is hereby affirmed.
17. Accordingly, the appeal filed by the appellant is dismissed.
(AJAY KUMAR MITTAL) (SNEH PRASHAR)
JUDGE JUDGE
November, 21, 2014.
jitender
Note: Whether to be referred to the Reporter or not? Yes/No. JITENDER 2015.01.23 11:18 I attest to the accuracy and integrity of this document