Punjab-Haryana High Court
Sunita vs Sushil Kumar on 20 November, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO-M-414-2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-M-414 of 2014 (O&M)
Date of decision: 20.11.2014
Sunita
......Appellant
Vs.
Sushil Kumar
.....Respondent
CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MRS. JUSTICE SNEH PRASHAR
Present: Mr. V.K.Sandhir, Advocate for the appellant.
Ajay Kumar Mittal,J.
1. This appeal has been filed by the appellant wife against the judgment and decree dated 16.10.2014 passed by the trial court whereby the petition filed by the respondent husband under Section 13 of the Act for dissolution of marriage has been allowed.
2. A few facts relevant for the decision of the controversy involved as available on the record may be noticed. Marriage between the parties was solemnized on 23.2.2007 according to Hindu rites and ceremonies at Village Kheri Masania. After the marriage, they lived together as husband and wife at Village Jhanj Khurd. From the very beginning, the appellant was not happy with the respondent as she wanted to marry an employed person. After three days of marriage, the appellant went to her GURBAX SINGH 2015.01.12 16:32 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-414-2014 (O&M) 2 parental house as per customary rituals and came back after 15 days. The appellant stayed with the respondent for about 5 to 7 days till 15.10.2007. During the said period, the relations between the parties were not good. Ultimately, the appellant left the house of the respondent and did not come back. On 30.11.2008 at about 9 PM, father of the appellant alongwith her other family members forcibly entered the house of the respondent and threatened the respondent and her family members with dire consequences on gun point. The respondent reported the matter to the police and as a counter blast, the appellant made a complaint against the appellant levelling false allegations of demand of dowry resulting into registration of FIR No.15 dated 12.1.2009 under Sections 498A/406 IPC against the respondent and his family members. Earlier also, the respondent filed a petition under Section 13 of the Act against the appellant which was dismissed in default on 16.7.2009 but the said petition was not decided on merits and did not become final. Upon notice, the appellant appeared and filed written statement controverting the averments made in the petition. The trial court after examining the entire evidence on record granted divorce to the respondent-husband vide impugned judgment and decree dated 16.10.2014. Hence instant appeal by the appellant wife.
3. We have heard learned counsel for the appellant and perused the record.
4. The trial court on the pleadings of the parties framed the following issues:-
i) "Whether the petitioner is entitled to decree of divorce on the grounds as alleged in the petition? OPP.
ii) Whether the petition is not maintainable?OPR.GURBAX SINGH 2015.01.12 16:32 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-414-2014 (O&M) 3
iii)Relief."
In order to establish his claim, the respondent husband appeared as PW1 and reiterated the averments of petition under Section 13 of the Act by way of his affidavit Ex.PW1/A. He also tendered in evidence copies of orders dated 21.3.2012 and 19.8.2013, Exs.P.1 and P.2 by which the appellant and his family members were acquitted in the criminal case and appeal against the said judgment was dismissed. PW2 Satyapal corroborated the case of the respondent by his affidavit Ex.PW2/A. He further stated that the respondent had convened panchayat so as to rehabilitate the appellant. On the other hand, the appellant appeared as RW1 and reiterated the averments made in the written statement.The trial court after examining the entire evidence and documents on record allowed the petition vide judgment and decree dated 16.10.2014 impugned herein. The relevant finding recorded by the trial court reads thus:-
"It is nowhere disputed by the parties that a case FIR No.15 dated 12.1.2009 under Sections 406/498-A IPC, PS Uchana was got registered by the respondent against the petitioner and his mother, wherein they were acquitted by the court vide judgment dated 21.3.2012 Ex.P.1. Thereafter, the respondent preferred an appeal against the said judgment dated 21.3.2012 which was also dismissed vide judgment dated 19.8.2013 Ex.P.2. The earlier divorce petition was filed by the petitioner on 18.12.2008 whereas the above said FIR against him was got registered on 12.1.2009. Thus it is clear that the wife filed a criminal case under Section 498-A IPC against the husband petitioner and his mother after filing of earlier divorce petition by the husband. Ultimately the said case ended in acquittal and the allegations made by the wife were unfounded. From the fact GURBAX SINGH 2015.01.12 16:32 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-414-2014 (O&M) 4 that the wife filed a criminal case against the husband- petitioner after institution of the earlier divorce petition, it must be held that the wife filed an unfounded case as a counter blast to the divorce petition filed by the petitioner and that itself amounts to cruelty by filing a criminal case. It is now well settled that mere initiation of criminal proceedings may not amount to cruelty, but false allegations which result in prosecution of the husband and his family members would certainly amount to mental cruelty. The act of filing a false criminal prosecution is sufficient to hold that the petitioner was treated with cruelty by the respondent. In view of the proven fact that the petitioner and his family members were prosecuted on the basis of false allegations, leaves no manner of doubt that the petitioner was treated with cruelty by the wife. The above said view of this court stands fortified by the law laid down in case law authorities reported as Sanjay Lata vs. Amrit Lal Gautam, 2010(2) LJR 354 (P&H); Poonam Devi vs. Narinder Kumar, 2010(2) LJR 69 (P&H) and Smt.Sadhana Srivastava vs. Arvind Kumar Srivastava, 2006(1) LJR 463 (Allahabad)."
5. A perusal of the findings recorded by the trial court shows that the appellant left the matrimonial home on 15.10.2007 without the consent of the respondent with no intention to join him again. She was not discharging matrimonial obligations even during the short period of five to seven days in a stretch with the respondent. She roped the respondent and all his family members in a false and frivolous case in FIR No.15 dated 12.1.2009 but they were acquitted by the court vide judgment dated 21.3.2012 Ex.P.1. Even appeal against the said judgment was also dismissed vide order dated 19.8.2013, Ex.P.2. The earlier divorce petition was filed by GURBAX SINGH 2015.01.12 16:32 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-414-2014 (O&M) 5 the respondent on 18.12.2008 whereas the FIR was got registered on 12.1.2009 which means that the wife filed an unfounded case as a counter blast to the divorce petition filed by the respondent. The trial court recorded that the act of filing false criminal prosecution is sufficient to hold that the respondent was treated with cruelty by the appellant. The Apex Court in K.Srinivas Rao vs. D.A.Deepa, (2013) 5 SCC 226 held that if a false criminal complaint is preferred by either spouse, it would invariably and indisputably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce. Learned counsel for the appellant could not dispute the applicability of the said pronouncement. He has also not been able to show that the findings recorded by the trial court are erroneous or perverse in any manner. Further, the contention of the learned counsel for the appellant that the earlier divorce petition on similar grounds filed by the husband was dismissed for non prosecution and, therefore, the present petition was not maintainable also loses significance as the acquittal in the FIR was subsequent to the dismissal of the earlier petition in default on 18.12.2008. Consequently, finding no merit in the appeal, the same is hereby dismissed. In view of the dismissal of the appeal on merits, CMM No.172 of 2014 for grant of pendente lite maintenance is also dismissed.
(Ajay Kumar Mittal)
Judge
November 20, 2014 (Sneh Prashar)
gs' Judge
GURBAX SINGH
2015.01.12 16:32
I attest to the accuracy and
integrity of this document
High Court Chandigarh