Rajasthan High Court - Jaipur
Smt. Pooja W/O Dharmendra Sankhla D/O ... vs Dharmendra Sankhla S/O Late Shri ... on 9 September, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No.4772/2018
Smt. Pooja W/o Dharmendra Sankhla D/o Pooran Chand, Aged
About 34 Years, R/o 705/29, Behind Mayo College, Gehloton Ki
Doongri Ajmer.
----Appellant
Versus
Dharmendra Sankhla S/o Late Shri Heeralal Sankhla, Aged About
35 Years, R/o 12/115, Laxminarayan Mandir Ki Gali, Hathi Bhata,
Ajmer.
----Respondent
Connected With
D.B. Civil Miscellaneous Appeal No.4814/2018
Smt. Pooja W/o Dharmendra Sankhla D/o Pooran Chand, Aged
About 34 Years, R/o 705/29, Behind Mayo College, Gehloton Ki
Doongri, Ajmer.
----Appellant
Versus
Dharmendra Sankhla S/o Late Shri Heeralal Sankhla, Aged About
35 Years, R/o 12/115, Laxminarayan Mandir Ki Gali, Hathi Bhata,
Ajmer.
----Respondent
For Appellant(s) : Shri Reashm Bhargava
For Respondent(s) : Shri Sanjay Gangwar
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
ORDER RESERVED ON 27/08/2019
ORDER PRONOUNCED ON 09/09/2019
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BY THE COURT : (PER HON'BLE DHADDHA, J.)
1. Since both the appeals are arisen out of a common order, they are being decided by this common order.
2. Both these appeals have been preferred by the appellant wife against the order of the learned Family Court, Ajmer passed on 23.8.2018 whereby the learned Family Court allowed Matrimonial Application No.76/2011, dissolving the marriage, filed by the respondent husband u/s 13(1)(ia) of the Hindu Marriage Act, 1955 (for short "the Act") and dismissed the Application No.260/2011 filed by the appellant wife against respondent husband u/s 9 of the Act for restitution of conjugal rights.
3. Brief facts giving rise to these appears are that the marriage of the appellant was solemnized with respondent as per Hindu rites and customs on 14.2.2009 at Ajmer. The spouses are blessed with son; namely, Pratham on 1.1.2010. Respondent husband filed divorce petition u/s 13 of the Act on 10.2.2011. During pendency of the divorce petition, the appellant wife filed an application u/s 9 of the Act for restitution of conjugal rights on 10.6.2011. Divorce petition had been filed by the respondent on the ground of cruelty. In this petition, the respondent stated that on very first night of their marriage the appellant told him that she wanted a separate house in which she, respondent and their children would live. She did not do the household work and threatened them. If compelled to do the household work, she would register false case of divorce against them. She also threatened them that if her wishes were not fulfilled, she would commit suicide. She also used to abuse his mother and grand- (Downloaded on 11/09/2019 at 09:09:44 PM)
(3 of 12) [CMA-4772/2018] mother. She leave matrimonial home in June, 2009. After birth of child, she had not joined him after several requests.
4. The appellant in her reply denied all the allegations levelled against her. In her reply, she stated that due to adamant behaviour of respondent and his mother, she was compelled to live in her father's house. She had fulfilled the duties & liabilities as a legally wedded wife. She had not abused her mother-in-law and grand-mother-in-law. She had not demanded separate house. She wanted to live with respondent, so she had not made any criminal case against them. After delivery of male child, the respondent had not taken her to matrimonial home. Respondent deserted her without any cause, so she had filed petition for restitution of conjugal rights under Section 9 of the Act.
5. On the pleadings of the parties, learned Family Court framed five issues for adjudication :
"1- vk;k vizkfFkZ;k dk O;ogkj izkFkhZ ds lkFk ;kfpdk esa of.kZr vk/kkjks ij dwzjrkiw.kZ jgk gS ?
2- vk;k izkFkhZ] vizkfFkZ;k ds fo#) mDr vk/kkjksa ij fookg foPNsn dh fMdzh ikus dk vf/kdkjh gS ?
3- vk;k ;kfpdk la0 260@11 vUrXkZr /kkjk 9 fgUnw fookg vf/kfu;e] iwtk cuke /kesZUnz esa of.kZrkuqlkj vizkfFkZ;k us izkfFkZ;k dk fcuk fdlh ;qfDr;qDr lsa oafpr dj j[kk gS ?
4- vk;k ;kfpdk la0 260@11 esa of.kZr vk/kkjksa ij izkfFkZ;k iwtk] vizkFkhZ /kesZUnz ds fo#) nkEiR; laca/kksa ds iquLFkkiuk dh fMdzh ikus dh vf/kdkjh gS ?
5- vuqrks"k ?"
6. The appellant examined herself as NAW-1. Respondent examined himself as AW-1 and two other persons - Indira Sankhla AW-2 and Praveen Sankhla AW-3.
7. After hearing both the parties, the learned Family Court decided all the Issues in favour of the husband. (Downloaded on 11/09/2019 at 09:09:44 PM)
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8. Counsel for the appellant submitted that the order of the learned Family Court dated 23.8.2018 is illegal, arbitrary, malafide and contrary to the facts and law. Learned counsel for the appellant submitted that the learned Family Court had failed to appreciate the issue of cruelty in its right perspective and also failed to consider the fact that the wife had given a birth of a male child on 1.1.2010 while she left the matrimonial home for delivery in June, 2009. As such, the respondent husband deemed to have condoned the alleged act constituting cruelty. Learned counsel for the appellant submitted that the learned Family Court had failed to consider the evidence of AW-1 to AW-3 in its right perspective as they are relatives and interested witnesses. Learned counsel for the appellant submitted that the learned Family Court erred in overlooking the documentary evidence of NA-1 to NA-4 which reflects that the appellant did not want to leave the respondent. Learned counsel for the appellant submitted that the appellant had not demanded their own separate house in which she, respondent husband and their children would live as such these are concocted stories to get divorce from the appellant. Learned counsel for the appellant submitted that the respondent had not pleaded any specific date and month for cruel behaviour by the appellant. Learned counsel for the appellant submitted that the appellant had not registered any criminal case against the respondent and his family members because the appellant wanted to reside with them.
9. Learned counsel for the appellant submitted that the allegations levelled by the respondent against the appellant, are mostly of mild manner, that could not constitute the cruelty. Learned counsel for the appellant submitted that occasionally out (Downloaded on 11/09/2019 at 09:09:44 PM) (5 of 12) [CMA-4772/2018] burst of anger, rude language or austerity of temper, which may amount to a misconduct, but that cannot be termed as cruelty. Learned counsel for the appellant submitted that the learned Family Court passed the impugned order in technical manner. Normal wear and tear of life cannot be termed as cruelty. Learned counsel for the appellant submitted that the appellant had not misbehaved with the respondent and his mother and grand- mother. He submitted that the learned Family Court without any documentary evidence, held that the appellant had caused injuries to the respondent's grand-mother. Learned counsel for the appellant submitted that on this fact, neither oral nor documentary evidence was produced from the respondent side. Learned counsel for the appellant submitted that the learned Family Court while appreciating the evidence, picked up few sentences and over-looked the entire tune of reply of the appellant as well as the intention of the appellant. Learned counsel for the appellant submitted that the appellant wife wanted to live with respondent, so she never initiated any criminal action against him and his family members. Learned counsel for the appellant submitted that the learned Family Court wrongly came to the conclusion that the appellant had not specifically denied the averments of the respondent. Learned counsel for the appellant submitted that once the trial court framed issues and put the parties for trial, then the provisions of O.8 R.5, CPC could not be invoked to decree a suit. The parties are required to prove their allegations by cogent evidence.
10. Learned counsel for the appellant submitted that the appellant had filed petition for restitution of conjugal rights. She in her petition and oral evidence, clearly stated that she wanted to (Downloaded on 11/09/2019 at 09:09:44 PM) (6 of 12) [CMA-4772/2018] live with respondent, but respondent and his family members by their adamant behaviour compelled her to live in her father's house. The respondent deserted her without any cause, so the appeal be allowed and the divorce decree awarded against her be set aside and decree for restitution of conjugal rights should be passed.
11. Learned counsel for the appellant placed reliance in Kiran Devi (Smt.) Versus Vinod Kumar Gupta; 2007(3) RLW 2093, Sumar Nahar Versus Abhay Kumar Nahar; II (1992) DMC 573 (DB), Chaitali Dey Versus Shri Badal Kumar Dey; AIR 2005 Jharkhand 83, Avadhesh Mani Mema Versus Saroj Amita Mema; I (1990) DMC 327, Raj Kaur Versus Trilok Singh; II (1987) DMC 46, Devidas Versus Gyanwati alias Sheel Rani; AIR 1993 Madhya Pradesh 14, Bhanupratap Singh Bordiya Versus Sangeeta Bordiya; 2002(1) WLC 405, Sunil Kumar Versus Smt. Reshmi; 2006(2) HLR 744, Tejinder Vohra (Mrs.) Versus Manmohan Singh Vohra; 2001(2) HLR 382, Bharti Devi Versus Sheonarayan; I (1984) DMC 150, Smt. Vimlesh Versus Sri Prakash Chand Sharma; AIR 1992 Allahabad 260, Rajani Versus Ramesh and Another; II (1989) DMC 428, Kuldip Singh Versus Smt. Shawinder Kaur; 2009(2) HLR 448, Kiachaparambil Kanakavalli Versus Melekollankandy Krishnankutty; III (2017) DMC 492 (DB) (Ker.), Mirchumal Versus Devi Bai; 1976 WLN 704, Ren Prakash Versus MST. Sneh Lata; 2001 (4) WLC 628, Nisha Rani Versus Sohan Singh Nehra; 2017 MLR 190, Sunil Sehgal Versus Chhaya Sehgal; II (2004) DMC 755, Praveen Etta Versus Savithri Etta; 2017 MLR 588, P. Malleswaramma Versus P. Prathap Reddy; 2006(1) HLR (Downloaded on 11/09/2019 at 09:09:44 PM) (7 of 12) [CMA-4772/2018] 188, Smt. Gurbachan Kaur Versus Sardar Swaran Singh; AIR 1978 Allahabad 255, Magghi Devi Versus Kedar Chand Swamy; RLW 1996(3) Raj.95, Vinita Saxena Versus Pankaj Pandit; AIR 2005 Delhi 243, Satish Kumari Versus Ranjit Singh; AIR 1997 Himachal Pradesh 16, Amarjit Paul Singh Versus Kiran Bala; AIR 1985 Punjab and Haryana 356, Krishan Kumar Versus Smt. Nidhi Arora; 2010 (1) HLR 91, A. Versus H.; AIR 1993 Bombay 70, Paras Ram Versus Kamlesh; AIR 1982 Punjab and Haryana 60, Zora Singh Versus Gurmel Kaur; 1994(2) CLJ (C, Cr & Rev.) 307, Homeshwar Singh Versus Smt. Mira Singh; AIR 2007 Chhattisgarh 27, Suman Singh Versus Sanjay Singh; (2017) 4 SCC 85.
12. Learned counsel for the respondent submitted that there is no illegality or infirmity in the learned Family Court's order. He submitted that on very first night of the marriage, the appellant demanded a separate house in which she, respondent and their children would live. She did not do household work and threatened the respondent and his family members that if they compelled her, she would register a false case of dowry against them. She also threatened that if her wishes were not fulfilled, she would commit suicide.
13. Learned counsel for the respondent submitted that the appellant used to abuse his mother and grand-mother and stated that house of appellant was not home but looked like a "Widow Aashram". Due to her adamant behaviour, she had left the house in June, 2009. After delivery of male child, she refused to join the matrimonial home for six months. The appellant and her family members abused the respondent and told him to live as house (Downloaded on 11/09/2019 at 09:09:44 PM) (8 of 12) [CMA-4772/2018] husband (Ghar Janwaee). After delivery, respondent husband requested several times her to join matrimonial home but she refused by saying that after separate house, she would join.
14. Learned counsel for the respondent submitted that the appellant had not specifically denied the allegations levelled by the respondent in his divorce petition, so the learned Family Court rightly concluded that they were proved without evidence. So, the appeal be dismissed.
15. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties, perused the impugned order and the material available on record.
16. The appellant and respondent were married on 14.2.2009. The appellant had left the matrimonial home on account of her pregnancy in June, 2009. The appellant in her statement clearly stated that her mother-in-law and grand- mother-in-law were not in a position to look after her, so she had to proceed her father's house for delivery. The appellant and respondent lived together for hardly four months. The respondent in his petition as also in his statement had not specifically mentioned any date or month regarding cruelty done by the appellant. The learned Family Court had not appreciated the issue of cruelty in right perspective and also failed to consider the fact that the appellant had given birth of a male child on 1.1.2010. As such, the respondent husband deemed to have condoned the alleged act constituting cruelty. The respondent in his petition stated that the appellant had caused injury to the respondent's grand-mother, but in oral evidence the respondent and his witnesses had not uttered single word about it. But the learned Family Court wrongly interpreted the provisions of O. 8 R. 5, CPC (Downloaded on 11/09/2019 at 09:09:44 PM) (9 of 12) [CMA-4772/2018] in this behalf. After framing of the issues, parties had to prove their allegations by cogent evidence not just by pleadings. In our view, the learned Family Court had erred in overlooking the documentary evidence of Ex. NA-1 to Ex. NA-4 which is clearly reflected from the fact that the appellant would not want to leave respondent's house. For cruelty and misbehaviour of the appellant, the respondent had not examined any neighbour of the vicinity. The learned Family Court while appreciating the evidence picked up a few sentences from the statement of the witnesses from here and there and overlooked the entire tune of reply submitted by the appellant as well as the intention of the appellant. It is crystal clear that the appellant had not initiated any criminal action against the respondent and his family members because she wanted to live with them.
17. Learned Family Court has not appreciated the evidence in right perspective. Respondent Dharmendra in his statement stated that the appellant from very first night of their marriage demanded a separate house in which she, respondent and their children would live. The respondent in his statement stated that the appellant did not want to do the household work and threatened them. If they compelled her, she would lodge a false criminal case against them. The respondent also stated that the appellant used to abuse his mother and grand mother but he had not specifically mentioned the date and month in which cruelty done by the appellant. The respondent's mother Smt. Indira Sankhla AW-2, in her statement, stated that the appellant did not want to do household work. She, solely concentrated on her service. Parveen Sankhla AW-3, in his statement, stated that Pooja did not want to do household work and she did not respect (Downloaded on 11/09/2019 at 09:09:44 PM) (10 of 12) [CMA-4772/2018] elders. But, in his cross-examination he stated that these facts were known him by respondent's mother and grand mother. The appellant, in her statement, clearly stated that she did not demand for separate house. Due to adamant behaviour of her mother in-law, she had to live with her parents' house. She had filled examination form for Nurse Grade-II in which she mentioned the address of respondent's house as 12/115, Laxminarayan Mandir Ki Gali, Hathi Bhata, Ajmer. It shows that she wanted to live with respondent. For this reason, she had filed a petition under Section 9 of the Act for restitution of conjugal rights.
18. The Supreme Court in the case of Shobha Rani v/s Madhukar Reddi, AIR 1988 SC 121 observed as under:
"Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been denied. It has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First the inquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases whether the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or (Downloaded on 11/09/2019 at 09:09:44 PM) (11 of 12) [CMA-4772/2018] considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea- change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with us and the parties. It would be better if we keep aside our customs and manners. It would also better if we less depend upon precedents."
19. The Supreme Court in the case of V. Bhagat v. Mrs. Bhagat, AIR 1994 SC 710 has defined mental cruelty in the following manner:
"Mental cruelty in Section 13(1)(ia) 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 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 (Downloaded on 11/09/2019 at 09:09:44 PM) (12 of 12) [CMA-4772/2018] 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."
20. Analysis of the facts in the light of law afore- discussed, both the appeals succeed and are allowed. The impugned judgment and decree dated 23.8.2018 is set aside. As a result, the petition filed by the respondent-husband under Section 13(1) of the Act seeking dissolution of marriage is dismissed. As a consequence thereof, the marriage between the parties is held to subsist whereas the petition filed by the appellant against the respondent under Section 9 of the Act seeking restitution of conjugal right is allowed. A decree for restitution of conjugal right is, accordingly, passed against the respondent. (NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J RAJ KUMAR CHAUHAN /17 (Downloaded on 11/09/2019 at 09:09:44 PM) Powered by TCPDF (www.tcpdf.org)