Allahabad High Court
Smt. Pushpa Rani vs Vijay Pal Singh on 16 April, 1993
Equivalent citations: AIR1994ALL216, I(1994)DMC345, AIR 1994 ALLAHABAD 216, 1994 ALL. L. J. 765, 1994 (1) CIV LJ 404, 1994 (1) DMC 345, 1994 MATLR 208, 1993 (2) ALL CJ 778, 1994 (1) HINDULR 640, (1995) 1 DMC 233, 1994 (1) CIVILCOURTC 484, 1995 (21) MARRILJ 393
JUDGMENT
1. This appeal arises out of the judgment and decree passed by Civil Judge, Bareilly on 31-8-1988 in a matrimonial case under S. 9 of the Hindu Marriage Act filed by the respondent against the appellant. After trial the suit was decreed and a decree for restitution of conjugal rights was passed in favour of the respondent against the appellant. The appellant who is wife of the respondent prays for setting aside the judgment of the Court below because in her opinion the judgment passed by the Court below is against the evidence on record, and it is contrary to the material documentary evidence on record produced by her. It is, further averred that appreciation of evidence by the trial court is also not proper. Appellant's case is that she has suffered cruelty and mental agony on the part of the respondent and she was justified in refusing to live with the respondent. Appellant's further case is that respondent and his family had dealt with the appellant with cruelty or demanding dowry from the appellant's father. The appellant is said to have obtained an order under S. 125, Cr. P.C. and the present proceedings are likely only to nullify the effect of order under S. 125, Cr. P. C.
2. The trial court's record was summoned and learned counsel for the parties were also heard at length. The leanred counsel for the parties have filed numerous applications for interim reliefs. One of the applications filed was that respondent be permitted to re-marry and his marriage with the appellant be dissolved under the Hindu Marriage Act and other applications pertaining to maintenance, etc. are also on the file. When these applications came up for consideration it was agreed by the learned counsel for the parties that let the appeal be decided finally so that controversy between the parties is settled which will obviate consideration of miscellaneous applications. The request of the learned counsel for the parties was granted and the matter was taken up for final hearing.
3. From the record it is revealed that the appellant was married to the respondent in December 1982 and the parties are said to have lived at Bareilly as husband and wife. It appears that respondent had filed a suit for restitution of conjugal rights in 1983 also and the appellant had filed an application under S. 125, Cr. P.C. for payment of maintenance from the respondent. This suit appears to have been compromised between the parties and parties had agreed that they will discharge their obligations towards each other faithfully. A child is also said to have born to the appellant out of the wedlock. Further, there is some dispute about the appellant's leaving the matrimonial home. Respondent's contention is that appellant's father had come to Bareilly and in the month of December 1985 he took away the appellant and the child along with the valuables such as clothes, ornaments and jewellery on the pretext that he has to do some ceremonial function in connection with the birth of his grand-daughter. The appellant's contention is that respondent's mother and sister have been treating her cruelly and have been demanding dowry which could not be paid to them because the appellant's father had retired from service. The respondent had left the appellant at her father's house on the occasion of Holi in 1983 and after that he never came to take her back. In these circumstances appellant had to file an application under S. 125, Cr. P.C. in a proper Court. She has denied having taken any valuables such as clothes, jewellery or ornaments along with her. It is, further stated that respondent and given in writing that he will behave properly with the appellant in future and will not demand any dowry. On this condition, the appellant is said to have gone to live with the respondent and discharged her matrimonial obligations. When a female child was born to the appellant, respondent and his family is said to have been annoyed with the appellant and they again started tourturing her mentally and physically. Ultimately she had to leave the house of the respondent in December, 1985 with her child and all her jewellery, clothes and ornaments were snatched away by the respondent.
4. Respondent's contention further is that he had gone several times to get the appellant back from her father's house but she was not allowed to come with the respondent. Thereupon a notice was sent to the appellant on 25-3-1986 through an advocate asking her to come and reside with the respondent but the appellant had not shown any willingness to accept the request of the respondent.
5. On the basis of the pleadings, court below has framed the following issues on which the parties were asked to lead evidence.
(1) Whether respondent has withdrawn from the society of petitioner without any sufficient cause as alleged in the plaint? (2) Whether the petitioner and his family members have demanded dowry and treated respondent with cruelty as alleged in the written statement? If so, its effect? (3) Whether the respondent has retained her articles mentioned in the foot of the plaint? If so, its effect? (4) To what relief, if any, the plaintiff is entitled?
6. It may be stated here that during the pendency of the suit appellant had filed an application under S. 24 of the Hindu Marriage Act for payment of pendente lite maintenance and litigation expenditure through a written application. This application after contest was allowed by the court below and some reduced amount was granted to the appellant and not the amount which she had claimed.
7. The respondent got his own statement recorded and the appellant appeared as her own witness and her father also appeared as a witness before the court below. The statement of the appellant and the respondent are at variance. Respondent has denied the allegations of cruelty levelled against him by the appellant. However, appellant has stated that she was being tortured by the respondent as also by his family members and it is alleged by the appellant that she was being forced to bring more dowry by the family members of the respondent.
8. The appellant has stated that even if the respondent undertakes not to treat her with cruelty still I will not live with him because I have no faith in him, If the respondent developes confidence in me then I am ready to live with him. She has stated that for the first time in these proceedings I have levelled allegations against the respondent that he is used to take alcohol and indulges in gambling. At the end of her statement she has stated that she is not at all ready to live with the respondent.
9. Father of the appellant has stated among other things that he had tried to settle the differences between his daughter and son-in-law but he did not succeed. However, he has not stated anything in the examination-in-chief that the respondent's family or respondent was making any demand for more dowry. He has only said that she was not being treated well and the respondent's family was annoyed because the appellant had given birth to a female child and for last three years appellant was living with him. In cross-examination he has stated that respondent's family had demanded Rs.20,000/- in the beginning when the appellant had come to Bareilly. He has not corroborated the allegation of cruelty against the respondent.
10. Respondent's statement is also on the record. He has corroborated the assertion made by him in the petition and has stated that on earlier occasion he had also filed a suit which was compromised. He has also stated that he has never given any threatening to the appellant. Whatever he has stated was with a view to reminding the appellant and her family that if any panchayat is assembled they will be insulted and in this context he has used the words ^^rsjh ukd u dVokbZ rks esjk uke ugh** Earlier suit is said to have been compromised and parties are said to have reconciled, there-after, in 1985 the appellant left the matri-monial home and she did not return. He has denied all the allegations levelled by the appellant. Copy of the compromise which was arrived in the earlier suit is also placed on the file. The respondent seems to have assured the appellant that whatever mistakes were committed by him in the past he will not repeat those. This compromise is construed by the learned counsel for the appellant to be an admission on the part of the respondent that his conduct was unbecoming of a husband. He was torturing his wife, therefore, he has said that he will not repeat the mistakes which he has committed in the past. The learned counsel for the respondent submits that it was an assurance to a disgruntled wife who had, due to some misundertstanding, left the house then. On perusal of this document it is revealed that the respondent had assured his wife that there will be no misbehaviour with her which she has suffered before 7-2-1983 in the house of the respondent. She will be given full respect and her due place. After execution of the compromise the appellant had gone to the house of respondent and lived there up to ending 1985.
11. Assuming that there was some harassment to the appellant before 7-2-1983 in the house of the respondent-husband and assuming that this harassment was due to demand for dowry but after execution of the agreement dated 7-2-198'3, the appellant seems to have condoned the alleged misbehaviour of the respondent and gone to his home on the assurance that she will be treated well. Therefore, for the past alleged misbehaviour appellant cannot make any grievance when she condoned the same and lived in the house of the respondent uptill October or December 1985. During this period a female child is also born to her and her father also does not speak that appellant was being harassed to get more dowry after 7-2-1983. The story of harassment for getting more dowry pertains to the period prior to 7-2-1983. By the compromise the grievance of the appellant seems to have been redressed and she voluntarily went to reside with the respondent. Therefore, any grievance of the appellant pertaining to the period prior to 7-2-1983 cannot be taken to be in existence now and will not afford an excuse to the appellant to refuse to live with the respondent.
12. The appellant seems to have passed her B. A. examination and the respondent-husband is non-matriculate as revealed from the record. Therefore, it seems that the parties have developed some complex which affects their sense of understanding each other.
13. The evidence which is led by the appellant to prove the cruelty is not convincing. She has levelled allegation against her husband that he was alcoholic and was indulging in gambling also. This allegation was levelled for the first time. She has not told this fact to her father also. Nothing is said by the father of the appellant against the respondent's alleged cruel misbehaviour towards the appellant. In case of any cruelty shown by the respondents it was natural for the appellant to have toid to her father that respondent was treating her cruelly and she was suffering . physical or mental torture on that account. Therefore, the appreciation of evidence by the trial court on the question of cruelty does not suffer in any manner. The appellants refusal to live with the respondent is also not justified. However, she has obtained an order for maintenance for herself and for her child under S. 125, Cr. P.C. That order cannot be disturbed in these proceedings. The said order is passed by a competent court of law, therefore, that has to be enforced against the respondent.
14. The learned counsel for the appellant-wife has invited my attention to 1989 (Vol. I) All WC 354 (SC) Gurdip Kaur v. Surendra Singh. In this authority on the facts of the case Supreme Court has said that wife is entitled to refuse to resume co-habitation if she was subjected to cruel treatment and if she feel sun safe. In this case a single Judge of the High Court has appreciated the evidence adduced by the wife and disbelieved the same and thereupon concluded that the plea of cruelty set up by the wife as established. The said plea was set aside by the Division Bench in a Letters Patent Appeal. The Supreme Court in Special Leave Petition observed that the finding recorded by the single Judge of the High Court with regard to the appreciation of evidence was not said to be bad or criticised by the Division Bench, therefore, on the basis of the assessment of the evidence made by the single Judge, wife had proved that she was treated with cruelty and she was not feeling safe to live with the husband, therefore, she had a justifiable excuse to refuse to live with the husband.
15. On the basis of the aforesaid authority it can be very well said that the appreciation of evidence by the trial court is not in any manner bad. If the trial court has found that husband was not treating the wife with cruelty, then the wife cannot refuse to live with the husband. Her refusal to live with the husband is not justified and is unreasonable.
16. If cruelty is proved by wife that can legitimately entitle her to refuse to live with her husbnad. Cruelty is a ground for divorce also and cruelty can be offered as a defence in a suit for restitution of conjugal rights filed by the respondent against the wife. Wife can refuse to live with the husband, if she is able to prove that she was being treated with cruelty or she can also refuse to live with the husband if there is a reasonable apprehension in the mind of wife that it will be harmful and injurious for her to live with the husband. If the wife files the suit for restitution of conjugal rights, husband can also defend the | suit on the ground of cruelty or on the ground of reasonable apprehension of facing cruelty if he is compelled to live with the wife.
17. Hindu Marriage Act does not define the expression "Cruelty". In Russel v. Russel, 1897 AC 395 it was said that the expression "cruelty" must be examined from the point of view of danger to life, limb or health, bodily or mental or a reasonable apprehension of it to constitute cruelty. English decisions are considered to be valuable guide in inter-pretating the expression cruelty. Expression cruelty is used in English Matrimonial Causes Act of 1950 as also in Special Marriage Act of 1954.
18. In the present case there is no evidence that the appellant was treated with physical cruelty. Whether or not she was treated with mental cruelty is to be seen from the evidence in the context of meaning of the expression "mental cruelty".
19. In Shobha Rani v. Madhukar Reddy (1988) 1 ILR 169 : (AIR 1988 SC 121), the Supreme Court observed that the cruelty 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. The categories of cruelty can be money. Persistent demand for dowry by the husband's parents with the support of the husband was held to come within the purview of mental cruelty. The Supreme Court made special reference to S. 498A of I.P.C. that any harassment of the woman with a view to coerce her to meet any unlawful demand for any property or any valuable security also constitutes cruelty. The cruelty need not be proved beyond reasonable doubt. It can be proved on the preponderance of probabilities. Similarly, a threat to commit suicide by the wife would amount to infliction of mental cruelty on the husband but any such threat uttered in a domestic tiff does not amount to cruelty.
20. In Asha Handa v. Baideo Raj Handa, AIR 1985 Delhi 76, it was observed that ordinary wear and tear of married life does not amount to cruelty. If husband is over-bearing, harsh, abusive and resorts to violence, it goes beyond ordinary wear and tear of married life.
21. In Madan Gopal v. Savita (1989) 1 HLR 40 (Raj) it was observed that heavy drunkenness or addiction to drugs resulting in intemperate and violent behaviour and acts tending to injure the health would amount to cruelty. But the Orissa High Court in Sobha-
devi v. Bhima, AIR 1975 Orissa 180 has held that mere drinking habit is not cruelty.
22. Each case in which allegation of cruelty is alleged by one spouse against the other has to be judged on its own facts. In day to day life normal bickerings and occasional fights without disrespecting each other or without causing any physical harm may not amount to cruelty. What would really amount to cruelty is to be judged from the rules of social behaviour of a society and conduct in respect of the status of the woman in the Indian Society of today. Persistent unlawful demand for dowry of any amount- by the parents of the husband to the wife with the support of the husband would amount to mental cruelty. In such a case wife has to prove the plea of cruelty by leading such evidence which may inspire confidence in the mind of the Court.
23. In the present case the alleged demand persistently made for dowry is not corroborated by the father of the appellant. There is no convincing evidence that after 7-12-1983 appellant was tortured to bring more dowry which would amount to mental cruelty by the husband or his parents. What has happened before 7-12-1983 was compromised and condoned. Wife thereupon willingly came to live with the husband, therefore, anything done before the compromise of the earlier suit would not constitute cruelty for purposes of the present suit.
24. A feeble attempt is made by the appellant to make allegation against her husband that he was a drunkard and indulges in gambling. This fact is not told by the appellant even to her father and she for the first time tells it in her statement recorded by the court and not in her written statement. If this fact was true this should have been mentioned in the written statement and its effect also should have been given by the appellant. Therefore, this plea also cannot be accepted. The trial Court has rightly rejected the defence of cruelty set up by the appellant to live with the husband.
25. For the reasons stated above this appeal fails and has to be dismissed. There is no error in the judgment of the court below. The said judgment is affirmed and trial court was right in decreeing the suit for restitution of conjugal rights under S. 9 of Hindu Marriage Act against the appellant.
26. The appeal is accordingly dismissed. No order as to costs. Record of the trial court shall be returned.
27. Appeal dismissed.