Punjab-Haryana High Court
Uma Rani vs Dr. Krishan Dev on 13 December, 2013
Equivalent citations: AIR 2014 (NOC) 280 (P.&H.)
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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F.A.O. No. M-164 of 2010 Date of Decision: 13.12.2013 Uma Rani ....Appellant v.
Dr. Krishan Dev ....Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MS. JUSTICE NAVITA SINGH
Present: Mr. Rai Singh Chauhan, Advocate for the appellant.
Mr. Vijay Rana, Advocate for the respondent.
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Navita Singh J.
This appeal is filed by the appellant - wife challenging the judgment dated 1.2.2010 passed by the then Additional District Judge, Jalandhar whereby the divorce petition filed by the wife was dismissed.
The allegations in the petition filed by the appellant were that the marriage between the parties was solemnised on 25.9.2006 at Jalandhar as per Hindu religious rites and no child was born out of the wedlock. Reasonable amount had been spent on the marriage besides cash and gold ornaments having been entrusted to the respondent as Istridhan of the petitioner - appellant.
The `Doli' was taken to Village Tohlu but to the utter surprise of the appellant, the respondent had not made arrangement even for food when they reached. Thereafter, he left the appellant and went to the house of his uncle and returned very late. He took some medicine and entered the bedroom but did not talk to the appellant. She tried to know the reason but he failed to explain anything. He suddenly got excited, apparently due to Renu 2013.12.18 12:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-164 of 2010 -2- the medicine taken by him and dragged the appellant to his side and consummated the marriage without caring for her feelings on the first night. Thereafter, he turned his back to her. He then, all of a sudden, became hysteric and started shouting and jumping on the bed. The appellant passed the night in a frightened condition. On the next day, the respondent left for Muktsar leaving her behind at Jalandhar bus stand without saying anything to her. She went to the house of her parents with the help of the mediators to the marriage and after that respondent never talked to her properly. However, on the instance of the appellant, he took her to the matrimonial home in December, 2006 as she was having vacations during those days, but on 31.12.2006 he told her that he was to leave for Muktsar and could not take her with him. Ultimately, he agreed to take her but did not keep her properly in Muktsar and picked up quarrel over trifles. In May 2007, the respondent took the appellant to Village Tohlu for about three weeks but he did not improve his behaviour. He did not allow the appellant to wear good clothes and ornaments and he remained under the influence of one lady namely Usha and his cousin Mohan Lal and the latter's wife Meena, who were living in the neighbourhood in Village Tohlu. Even in Muktsar, the respondent was living in `Bara' type of house in the fields and did not agree to arrange for proper accommodation on the asking of the appellant.
In June, 2008, there was `Ramayan Path' and `Yagya' at Village Tohlu for which the respondent compelled the appellant to arrange an amount of `25,000/-. She paid the same to him. After that, he demanded the details of all her bank accounts and other properties which she may have been holding and all sources of income and savings. When she denied, he Renu 2013.12.18 12:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-164 of 2010 -3- became aggressive and tried to strangulate her. In `Jagran', the respondent with the help of Mohan Lal etc., named above, created hindrance in the function for which the appellant had to cut a sorry figure before the people gathered there. Even when she fell ill in July, 2008, no proper care was taken.
The appellant was serving in Himachal Pardesh and the respondent was serving at Muktsar and he did not want the appellant to join his company. Only when the respondent so desired, he established physical relations forcibly with the appellant after taking medicine without caring for her feelings and without waiting for any response from her side. All efforts on the part of the appellant to make the relationship cordial, failed. After August, 2008, the respondent did not allow the appellant to join his company and she was completely deserted by him. A Panchayat was convened on 6.1.2009 by the appellant where her brother and other persons were present. The respondent admitted his guilt but refused to rehabilitate her and called her `Pishachini' (evil spirit). The respondent also refused to return the articles of Istridhan.
In May, 2009, the appellant went to Village Tohlu during summer vacations to make last effort for her rehabilitation with the respondent but the latter told him that the doctors had debarred him from going near her and that in case she insisted to live with him, she would have to face dire consequences. The life of the appellant was ruined by the respondent as she was subjected to utmost cruelty.
The respondent contested the petition denying the allegations made by the present appellant. He stated that rather the attitude of his wife Renu 2013.12.18 12:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-164 of 2010 -4- was haughty, overbearing and contemptuous as she used foul language and was always tried to belittle him. He was the victim as the wife had subjected him to cruelty. He wanted to make all kinds of adjustments and tried to give proper love and affection and respect to her but to no avail.
Admitting the marriage and the period for which the parties lived together, the respondent denied that he used to take any medicine to facilitate physical relations with the appellant and totally denied that he had deserted her or treated her with any kind of cruelty. All allegations made by the appellant in that regard were denied.
Regarding the `Jagran', the holding of the same was admitted but it was denied that he had taken any money from his wife and further pleaded that the `Bhajan Mandali' was led by a Tantrik who indulged in indecent and magical games to bewitch the respondent and other members of his family due to which `Jagran' was put to an end somewhere near midnight. He denied that he was in league with Mohan Lal and others as alleged. He rather stated that if the `Jagran' had not ended, there would have been blood shed.
The respondent denied that any panchayat was held where brother of the appellant and other relatives were present. He stated that Anil Kumar, brother of the appellant with one Prem Kumari had visited Muktsar on 6.1.2009 and misbehaved with him. He was insulted by the appellant and others in his college and outside. He, on the other hand pleaded that the appellant had threatened to eliminate him when she was living with him in May, 2009. Resultantly, the respondent filed a complaint with the Panchayat and after hearing the parties on 30.5.2009, the Renu 2013.12.18 12:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-164 of 2010 -5- Panchayat referred the complaint to the police to avoid any untoward happening. He prayed for dismissal of the petition.
Rejoinder was filed by the appellant in which she denied the allegations of the respondent and reiterated those made in the petition. The trial Court framed the following issues:-
"1. Whether the respondent has treated the petitioner with cruelty after the marriage? OPP
2. Whether petitioner is entitled to decree of divorce? OPP
3. Whether the petition is not maintainable in the present form, if so its effect? OPR
4. Relief."
The trial Court was not convinced with the evidence led by the petitioner and held that her case was not proved. The petition was dismissed.
The appellant came up in appeal stating that the trial Court failed to appreciate the evidence in the right perspective and dismissed her petition on unfounded reasons.
Learned counsel for the appellant argued that the trial Court failed to look into the evidence which the appellant had led for proving the misbehaviour of the respondent and the kind of cruelty meted out to her regarding physical relationship. He contended that whatever was pleaded in the petition was categorically stated by the appellant in her evidence by way of affidavit Ex.PW1/A produced before the trial Court and no proper cross- examination was conducted. The appellant had stated about the incident on the first night when after taking medicine, the respondent had become Renu 2013.12.18 12:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-164 of 2010 -6- aggressive; she spoke about the influence of Usha, Mohan Lal and Meena; she also spoke about the jagran etc., and about the efforts made by the appellant to somehow settle in the matrimonial home and the intolerable attitude of the respondent.
In her cross-examination, lot of stress was laid on the points as to where the marriage took place and what was the money spent and the dowry given and lesser part of it was directed towards the allegations of the appellant regarding cruelty. No specific question was put to the appellant regarding physical incapability of the respondent nor it was suggested to her that he was fit for normal physical relationship. Even in the cross- examination, the appellant categorically stated that the respondent had taken medicine in the kitchen and then had come to the bedroom and she has requested him for taking treatment. It was suggested to her that he was physically fit and that he never became hysteric and aggressive but the suggestions were denied. When pointed out by us, learned counsel for the respondent could not deny that there was not even a suggestion put to the appellant that the respondent was fit for normal physical relationship or that he had got himself medically examined at any time and was found fit. The only suggestion that he was physically fit would not necessarily mean that he was fit in context of the allegations made by the appellant.
Major stress was laid by learned counsel for the respondent on the admission of the appellant that she had lived with the respondent at different times during her vacations and contended that when the parties lived together, there was a presumption that they led a normal marital life including conjugal obligations. This however, cannot, by any stretch of Renu 2013.12.18 12:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-164 of 2010 -7- imagination, be accepted that merely because the appellant went to live with respondent at different times, she was happy with him and that the respondent was performing the normal duties of husband physically and otherwise.
Learned counsel for the respondent then argued that there was only the statement of the appellant (PW1) and one Dr. Prem Sharma (PW2) and both of them were rightly disbelieved by the trial Court and that the judgment of the Court below did not suffer from any infirmity. He also referred emphatically to Annexure R.1 attached by the appellant with the grounds of appeal stating that it was the complaint made by the respondent which was referred to the police, as pleaded by him in para 12 of his written reply to the petition and stated that before this complaint, which was of 29.5.2009, there was no dispute between the parties. Only when respondent made that complaint, the appellant became agitated and after a few days filed the divorce petition on 8.6.2009.
Learned counsel for the respondent, however, could not deny that despite making a mention of the complaint in the written statement, nothing was stated about it in the statement made by the respondent before the Court. He appeared in the witness box as RW1 and produced his affidavit Ex.RW1/A by way of examination-in-chief where he did not state anything about the incident which happened according to him during the `Jagran' nor he made even a whisper about the complaint (on which lot of insistence was placed by learned counsel for the respondent during arguments). Many things were pleaded by the respondent in the written statement but even half of those were not spoken about by him when he Renu 2013.12.18 12:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-164 of 2010 -8- entered the witness box. It is, therefore, to be taken that all such allegations were false.
Even otherwise, if the document Annexure A.1 be taken into consideration as requested on behalf of the respondent, the averments of the latter would be further belied because in the complaint he himself mentioned that he apprehended danger to his life at the hands of the appellant and her associates and that she wanted divorce from him for which she should knock the door of the competent Court. It is not believable that if he apprehended danger to his life from the appellant, he would want to live with her. He thus contested the petition only to harass her though he actually did not want to live with her. Also it cannot be believed that before the date of the complaint, there was no dispute between the parties. Had the relations prior to that been normal, there was no question that the respondent would have made a complaint that the wife was threatening to kill him. The respondent is caught in his own net.
The appellant having categorically pleaded her case and having stuck to her stand in evidence, there is no reason to disbelieve her. Her statement is more to be believed especially when no effective cross- examination was conducted on her regarding the physical incapability of the respondent and other atrocities on his part.
Learned counsel for the respondent also argued that the appellant should have asked the Court to subject the respondent to medical examination so that it could be proved that there was erectile dysfunction and since she could not prove it, such serious allegations against the respondent rather amounted to cruelty extended to him. He however, could Renu 2013.12.18 12:16 I attest to the accuracy and integrity of this document Chandigarh F.A.O. No. M-164 of 2010 -9- not give any reason as to why the respondent did not subject himself to medical examination and lead evidence when his turn came, to show that he was fit enough for normal physical relationship and that the allegations of the respondent were false. While leading evidence, he was not aware that the petition would be ultimately dismissed and so, in order to dislodge the case of the petitioner, he could have very well gone for medical tests. Though legally speaking, the party who comes to the Court has to prove its case, yet there was no bar on the part of the respondent to have led proper evidence so as to prove that the petitioner had based her case on falsity. The appellant was able to prove her case as discussed above. She made her own statement in detail and no cross-examination was conducted on material aspects. Rather the respondent pleaded numerous things but at the time of his deposition in Court, he chose only to limit his evidence to the allegations of cruelty stated by the appellant regarding physical incapability and other maltreatment. He opted to leave all the other allegations aside which he made in the written statement showing that he had no proof of the same.
For the detailed reasons given above, the appeal is allowed and judgment and decree dated 1.2.2010 is set aside. The marriage between the parties is dissolved by granting a decree of divorce.
( NAVITA SINGH )
JUDGE
December 13, 2013 ( S.S. SARON )
renu JUDGE
Renu
2013.12.18 12:16
I attest to the accuracy and
integrity of this document
Chandigarh