Punjab-Haryana High Court
Inderjit Mehta vs Smt. Parveen Mehta on 1 June, 2000
Equivalent citations: I(2001)DMC361
Author: A.S. Garg
Bench: A.S. Garg
JUDGMENT A.S. Garg, J.
1. The husband brought a petition for seeking a decree of divorce against the wife on the ground of desertion and cruelty in May, 1996. After a hot contest the petition was dismissed on 14.12.1998 by the learned District Judge, Chandigarh. The husband has filed the present appeal.
2. The husband in this case is a Judicial Officer in the State of Haryana and is a member of Haryana Superior Judicial Service at present. The respondent-wife belongs to Doraha, a Sub-Division in district Ludhiana, The parties were allegedly married on 6.12.1985 at Doraha according to Hindu rites and ceremonies. No child has been born out of this wed-lock. The parties lives together till 28.4.1986 and thereafter never lived together. The allegations of the husband had been that right from the first day of the marriage, he sensed something abnormal in the wife and was unable to consummate the marriage as the respondent-wife could not possibly cooperate because of something lacking in her health for a cohabitation and the marriage virtually remained non-existent. One day, the respondent told that appellant-husband that she was suffering from protracted ailment and her ailment was concealed by her parents from him for which the appellant was shocked but still the appellant claimed that he assured the respondent that he would provide her the best available medical treatment. The respondent herself allegedly told the appellant that she was getting treatment from one Vaid Amar Nath Shastri of Chandigarh and it was on 10.12.1985 that the appellant took her to the said Vaid at Chandigarh. The Vaid told the appellant that respondent's father was his close friend and he was already seized of the health problem of the respondent and he gave some medicines, since he was treating her already. After consulting Vaid Amar Nath Shastri, they returned to Yamuna Nagar where the parents of the appellant were living. However, there were no signs of improvement in her health. The husband left for Panipat where he was posted and used to visit Yamuna Nagar on week-ends. The husband wanted to take the respondent to Panipat at the place of his posting in the middle of January, 1986 and they actually started living at Panipat and continued with the medicines. In the month of February, 1986, the wife agreed to be examined by Dr. B.M. Nagpal of Civil Hospital, Panipat and was advised by the doctor for a thorough checkup and diagnosis but the respondent did not cooperate which was shocking to the appellant. The respondent ultimately told that she was not interested in any medical treatment.
3. In fact, the respondent-wife was losing weight and flesh and had been reduced to a skeleton of. bones. This happened because of the ailment of the respondent. The appellant claimed that he became restless and mentally upset. In the middle of March, 1986, he wrote to his in-laws about the state of the condition of his wife. The father of the respondent visited Panipat. The father of the respondent went back to Doraha after simply meeting them. The health of the respondent continued to deteriorate. She suffered from asthmatic attacks and because of that her behaviour became quarrelsome and irritative on trifle matters she threatened to leave the matrimonial home though the appellant was able to persuade her to return back to the matrimonial home. It was also being claimed that the respondent since did not cooperate and her act of leaving the matrimonial home in April, 1986 was with an intention to never return acted as a desertion on her suit without sufficient cause.
4. The appellant claimed that during her stay at Panipat when Surinder Singh Rao and Virender Jain, his friends visited his place, the respondent refused to prepare tea and started misbehaving in their presence. The respondent started taunting, threatening and using abusive language against the appellant and claimed that he did not have a proper living standard and the appellant could not bear this insult and embarrassment. The parties visited Dorana on 12.4.1986. Parents of the respondent agreed that the respondent would be sent to Panipat after she improved her health. The respondent along with her brother's wife visited Yamuna Nagar and ultimately on 28.4.1986 the brother and Bhabi of the respondent came and took her. So the appellant-husband brought a petition on the grounds that when the appellant's side had seen the girl (respondent) for the first time they had questioned the girl's parents as to why she was so thin and slim ? They were told that she was undergoing dieting and, therefore, they concealed the factum of illness of the respondent. After the appellant discovered that she was unable to perform the sexual intercourse and cohabit, the respondent refused to tell the ailment and ultimately backed out from being treated by her own family Vaid as well as from Dr. Nagpal, these acts of the respondent acted as a matter of great cruelty on his mind. The respondent also did not cooperate in household and domestic matters. She also misbehaved with him and caught his collar of the shirt at the time of Sh. S.K. Jain, Legal Remembrancer Haryana, (later on a Judge of this Court) in whose house a compromise was being effected. Again she took a large number of persons to the Court of the appellant at Kaithal on 30.7.1986 and attacked his house and a report to that effect was dispatched to the superior judicial officer of the appellant. Sh. S.P. Singh, P.W. 8 an Additional District Judge, Kaithal also informed about the said violent attack of the companions of the respondent. Since she was a physical wreck and skeleton and could not cooperate in the sexual intercourse also acted as an act of cruelty. These all acts and conduct allegedly acted as a matter of cruelty to the appellant, as asserted.
5. Obviously, the respondent-wife denied all these allegations and it was pleaded that the husband was never misled regarding the state of health of the respondent. A letter written on 19.12.1985 by the father of the appellant belied the allegations. According to her the marriage was duly consummated and the "Phera ceremony" was performed. After the marriage they stayed at Yamuna Nagar as well as at Panipat and continued to live upto 12.4.1986. The appellant had left the respondent at Doraha on 14.4.1986 and he returned to Yamuna Nagar in a car bearing No. PAP 4499 which was gifted by the parents of the respondent. The appellant had been expressing full love and affection to the respondent and she never suffered from any disease or disability or that she was ever treated by Vaid Amar Nath Shastri. She had been cooking food and cooperating in household affairs. She never taunted nor nagged the appellant or she ever refused to prepare tea for friends of the appellant, namely Surinder Singh, P. W. 5 and Varinder Jain, P.W. 6. She rather claimed that she had become pregnant from this wed-lock but unfortunately there was miscarriage. It was also, inter alia, alleged that the husband-appellant wanted to extort a proposal for dissolution of marriage even by persuading the respondent to come to terms that they should get a decree of divorce by mutual consent. On 13.1.1988 the appellant's father telephonically informed the father of the respondent that they were sending the articles of dowry. No articles have been actually sent back which are still being retained by the husband.
6. The respondent claimed that on 21.6.1987 a meeting of the relations of the two sides took place at the house of respondent's mother's sister Smt Parkash Kapur at Yamuna Nagar in the presence of one Ishwar Sarup Sharma, Advocate and Sat Pal Banda and his wife. However, in the said meeting the appellant claimed that the respondent was slim and weak and must be suffering from some disease and, therefore, was not prepared to take her back. The respondent's parents offered a medical checkup of the respondent but the appellant side avoided such suggestion. Again, there was a meeting on 24,4.1988 at Doraha where the appellant accompanied by his father and Ishwar Sarup Sharma, and Ashwani Kumar Sharma came to Sirhind at the house of Vijay Bector and the appellant moved a proposal for a mutual divorce. On 8.2.1989 the respondent accompanied by her mother and her College Principal Harjinder Kaur Sidhu visited the appellant at Kaithal where the appellant was posted, The appellant did not allow the respondent's mother to enter the house but called Harjinder Kaur Sidhu for discussion and told Mrs. Sidhu that the respondent was slim and was suffering from some disease. Smt. Sidhu replied that though the respondent was slim but was not suffering from any disease.
Again on 5.2.1990, the respondent accompanied by her mother and aunt Dr. Ranjit Kaur and her uncle Atma Parkash Banda visited the place of the appellant at Kaithal. He was holding the Court at that time. These visitors waited for the appellant in his Drawing-room. Atma Parkash Banda brought the appellant from the Court to his house but the appellant shouted at them and asked them to leave his house otherwise he was going to call the police.
Again a meeting was held at the house of S.D. Bhambri, IAS, previously Chief Secretary, Haryana, on 25.2.1990 as claimed by the respondent where father of the respondent and Atma Parkash Banda and the appellant were accompanied by Ishwar Sarup, Advocate but nothing came out of this meeting also.
Again on 4.3.1991, Vijay Bector brother of the respondent went to the house of the appellant at Yamuna Nagar but the appellant's father treated him very rudely.
Another meeting was arranged at the house of Shri Harmohinder Singh Chatha, Advocate and Ex-Minister in the Government of Haryana at Kurukshetra at his residence on 12.3.1991 but there also the appellant allegedly refused to take her back in the matrimonial home. Still on 10.4.1991 the respondent along with her mother, Bhabi Kiran Bector, Harjinder Kaur Sidhu and Bhagwant Kaur came to the residence of the appellant at Kurukshetra but again they were not allowed to enter the house. Again a meeting took place at the house of Harmohinder Singh Chatha and at that place the matter was discussed at length and the appellant described the respondent to be slim and according to him was certainly suffering from some disease.
Again on 16.10.1991, the respondent along with her mother, one Smt. Veena Shastri, Balwinder Kumar Rishi and her brother visited Ambala for a compromise but the appellant kept on "Harping" that she was slim and was suffering from some disease. Respondent used the phrase "Harping" repeatedly in her written statement.
Another meeting was arranged on 6.6.1992 at the house of Shri S.K. Jain (a retired Judge of this Court), in the presence of B.D. Bector, DSP, Chandigarh and Ashok Bector, Advocate, Shri Jain tried to persuade the appellant to accept the respondent.
Yet another meeting was held on 21.6.1992 at the residence of Ishwar Sarup Sharma, Advocate at Yamuna Nagar. Father of the respondent Randhir Singh, a Judicial Officer of Haryana, Ashok Bector, Advocate, a cousin of the respondent and the matter was discussed but on the same frivolous pretext again nothing could materialise. Again on 30.11.1995, the respondent along with her mother visited the appellant when the appellant was posted at Ambala but the appellant allegedly called the police and under the fear that they may not be involved in some false criminal case, they returned home. On 29.7.1996, the respondent, her mother and one Smt. Aruna Verma again visited Kaithal at the official residence of the appellant for a compromise but he turned them out and they had to take shelter in a nearby Rest House. On the next day on receiving the message, father of the respondent, Dr. Ranjit Kaur (sister of Dr. Jagdish Singh and Dr. Amarjit Singh of Patiala), Vijay Bector, Sunil Bector, Vickey Bector, Dhian Chand, Phool Chand, Varinder Sharma, Inder Singh, Tejinder Singh Chug and Pal Singh came to Kaithal and joined the respondent. They found that the house of the appellant was locked. These people jointly met Additional District and Sessions Judge, Mr. S.P. Singh and requested him to intervene. The Judicial Officers at Kaithal expressed their inability to do so.
7. The petition was earlier pending in the Judicial Courts at Panipat. Thereafter it was transferred by this Court to Chandigarh.
8. It was in these circumstances that the following issues were cast by the District Judge to adjudicate upon the matter.
(1) Whether the respondent-wife has deserted the petitioner, if so, its effect? OPP (2) Whether the respondent-wife is guilty of cruelty, if so, its effect ? OPP (3) Whether this petition is barred by laches, in accordance with Section23(la) and (d) of the Act ? OPP (4) Relief.
9. To determine and adjudicate upon the aforesaid issues, the parties led their oral and documentary evidence. Appellant Inderjit Mehta appeared as P.W. 1. At the time his marriage was performed, he was a Judicial Magistrate-cum-Subordinate Judge, i.e. on the lowest rank in the State Judicial Service and he entered service through a competition. Later-on he became the Chief Judicial Magistrate when his part of the statement was being recorded. When the case has been decided he has become an Additional District and Sessions Judge. He deposed on oath that the parties to this marriage met for the first time in Hotel "Palace" in Yamuna Nagar and within half an hour the "Rokna" ceremony was performed in March, 1985. The ring ceremony was performed on 14.4.1985 at Doraha. Engagement was performed on 3.12.1985. Earlier to that the parents of the appellant perhaps went to Doraha on 22.10.1985 on the occasion of Karva Chauth. The appellant has deposed on solemn affirmation that in fact soon after the marriage on the very first night the consummation of the marriage could not take place as the respondent did not show any interest and she told the husband that she was suffering from protracted ailment. The appellant stated further that he noticed that the respondent was unable to bear the strain and was totally unable to converse with the relatives and other people with whom she was supposed to meet customarily on the first day of the marriage and could not tolerate the exercise. The appellant deposed that he thought that it might be due to exertion undergone by her during the marriage ceremonies but when he was told by the respondent herself that she was suffering from protracted ailment he was shocked. Despite that he promised that he was going to get her treated to improve her health and it was, therefore, that they approached Vaid Amar Nath Shastri at Chandigarh on 10.12.1985. The respondent was already getting treatment from him. Vaid Amar Nath Shastri told the appellant that he was an old friend of the father of the respondent. He clarified in cross-examination that he made efforts to consummate the marriage and for sexual intercourse with her for about 10/15 minutes on the first night but was absolutely unable to have the sex and could not perform sexual intercourse because of ailment of respondent. Therefore, the marriage remained unconsummated. Because of the said incapability of the respondent he felt extremely shocked and had to undergo an agony. In the middle of January, 1986, the couple again came to Panipat and the appellant offered her to be treated medically at Panipat. Despite her taking the medicine of Vaid Amar Nath Shastri, her health did not improve. He offered that she be got treated from Dr. B.M. Nagpal at Civil Hospital, Panipat. She did not respond to the same. In the middle of February, 1986 again the appellant claimed that he took her to Dr. Nagpal and he was told that she was suffering from some old disease and suggested some tests to be performed which she refused to undergo and day by day she was becoming more and more weak and was losing flesh from her body. In the middle of March, 1986 he wrote a letter to the parents of the respondent telling about her health and ultimately the respondent became a wreck. She used to suffer from asthmatic attack. The background of this as stated by the appellant is that when initially the father of the respondent was questioned, he claimed that it was the effect of the dieting she was doing before the marriage. The appellant admitted that he got a Maruti car in the marriage bearing No. PAP 4499. He did not show this car in his property statements. As per the grouse of the respondent-wife, she examined Jaswinder Kaur, R. W. 1, a member of the clerical staff of this Court from the Vigilance Branch to reveal this fact. Some conversation of the appellant was recorded contained in cassette Ex. R9, the transcript of which is marked A. This relates to April, 1991 and pertains to the conversation which took place in various other meetings but this conversation does not appear to be of any avail to either side. There used to be conversation as to why there should not be a divorce between the parties. It also came in the transcript that the girl was slim and physically weak but it does not matter much. The appellant during his own statement referred to various meeting which took place between the parties for reconciliation, may be towards seeking a divorce or may be towards patch-up. The statement of the appellant also reveals that once in a meeting on 6.6.1982 at the residence of Shri S.K. Jain, where the respondent during the course of conversation caught hold of the appellant from his collar and threatened him. The appellant also narrated that when he was posted at Kaithal as Chief Judicial Magistrate on 26.7.1996, the respondent came along with a large number of persons, namely father of the respondent, Dr. Ranjit Kaur (sister of Dr. Jagdish Singh), Dr. Amarjit Singh, Vijay Bector, Sunil Bector, Vickey Bector, Dhian Chand, Phool Chand, Varinder Sharma, Inder Singh, Tejinder Singh Chug and Pal Singh in the evening and they wanted to create an ugly situation and wanted to indulge in violence and the appellant had to proceed on leave for the next day, i.e. for 307.1986 apprehending some danger. When the Judicial Officer was not available to the respondent and her companions on 30.7.1996, they approached Sh. S.P. Singh, P.W. 8, Additional District and Sessions Judge, Kaithal and he was told about Inderjit Mehta that "Woh apane nap ko kya samajhta hai". D.D.R. regarding the aforesaid incident was also recorded at Police Station City, Kaithal on 31.7.1996 vide Ex. PW1/B. Shri S.P. Singh, P.W. 8, also felt that this act of the respondent of having collected several persons in such a manner required intimation to the High Court and he dispatched the intimation vide Ex. PW2/ A to the District and Sessions Judge, Kurukshetra, who forwarded the same to this Court vide Letter No. 7239 dated 1.8.1996 Ex. PW2/B.
10. The appellant also forwarded his version Ex. PW1/A to the Superintendent of Police, which reads as under :
"From Inder Jeet Mehta, Chief Judicial Magistrate, KaithaL To The Superintendent of Police, Kaithal.
No. 1706 Dt. 31.7.1996.
Sub : Intimation regarding life threat and report about untoward incident.
Sir, In continuation of my telephonic conversation with you on 30.7.1996 at about 2.30 p.m. 1 want to bring to your notice following facts :
That my marriage was solemnized in December, 1985 with Parveen daughter of Sh. Om Parkash resident of Doraha, District Ludhiana. Unfortunately it did not work due to various reasons. Since April, 19861 have been residing alone at various places of my postings.
As a consequence of my transfer, I assumed as Chief Judicial Magistrate-cum-Addl. Civil Judge (Senior Division), at Kaithal on 4.6.1996. Subsequently Chief Judicial Magistrate's residence situated at Jind Road, Kaithal was allotted to me by learned District and Sessions Judge, Kurukshetra and since 29th June, 19961 am in possession of the same and residing therein.
All of a sudden on 29.7.1996 at about 6 p.m. my estranged wife along with 2/3 persons tried to enter the house with sole aim of terrorising and humiliating me in the estimation of general public. I pleaded with those fellows not to indulge in such type of illegal activities but my polite request fell on their deaf ears. Having no option I had to intimate the matter to you and immediately two police Constables were deployed at my residence to avoid any untoward incident. In spite of that the aforesaid persons continued to create scene by using unparliamentary language while standing in front of the main gate of my house till 2.30 a.m. While going from there, they threatened that next day a large number of people would come from Punjab at my residence to teach me a lesson.
Apprehending danger to my life, I availed the casual leave for 30.7.1996 and remained at my residence. At about 12.30 p.m. on 30.7.1996, 5 cars and one Gypsy carrying about 25/30 persons stopped in front of the main gate of my residential house and they tried to break the main gate of my house. However, the police officials deployed at my residence asked them not to indulge in such unlawful activities. The aforesaid persons remained there for about one hour and at about 1.30 p.m. they left. Subsequently, at about 2.30 p.m. I came to know from my Court officials that they searched for me in Court premises.
In the afore mentioned disturbing circumstances not only I have been restrained from carrying out my duties as a judicial officer, but at the same time. It has caused acute mental agony and this aforesaid incident has come as rude shock to me.
You are, therefore, requested to provide permanent security at my residence situated at Jind Road, Kaithal and also in Court premises to avoid any untoward incident.
Sd/-
Chief Judicial Magistrate, Kaithal.
The appellant was not asked any other suggestion as to if he had ever caused any injury to the respondent or ever abused her or ever humiliated or misbehaved with her or that the appellant had any other woman in view or something like that.
P. W. 3 Raj Pal, proved the entries of the Panchayat Bhawan, a sort of a tourists resort maintained through District Development and Panchayat Officer of the district, Exs. PW3/A and PW3/B which revealed that Parveen Mehta, the respondent and others had stayed in this complex on 30.7.1996 when they created the aforesaid scene in the Court and residence of the appellant.
Shashi Walia, P.W. 7 deposed that 10 to 12 persons were loitering in Kaithal near the Court of Chief judicial Magistrate, on 30.7.1996 and were questioning as to where Mr. Mehta had hidden himself. He had informed Mr. Mehta later-on about this incident.
P.W. 9 Ishwar Sarup Sharma, Advocate, Yamuna Nagar too supported the case of the appellant. He claimed that in fact the respondent was weak in health on account of her physical ailment and the relations of the respondent had met him in Yamuna Nagar in July, 1987 and wanted cash in place of the articles and return of the jewellery and car given in marriage.
P.W, 10 S.K. Jain (now retired Judge of this Court), stated on oath that when he made an attempt for approachment between the parties in May, 1992, the respondent had caught hold of the appellant from his collar and he had to intervene to disperse the meeting.
10. On the other hand, the respondent produced R.W. 6, Dr. Sarla Gopalan, a Professor and Head of the Department of Gynaecology, P.G.I. Chandigarh and she furnished reports Ex. R.W. 6/A and R.W. 6/B. Vide Court order dated 17.4.1998 she was asked to opine only on a limited question as to whether the respondent was a virgin or not. It was reported by a Board of Medical Officers that she was not a virgin. However, she stated in cross-examination that is to say that a person is not suffering from any disease one has to undergo various tests which were not performed upon the respondent. She also stated that there was no evidence nor any symptom discovered that the respondent had undergone any abortion or she was ever pregnant. The Court had put some questions to Dr. Sarla Gopalan as if the respondent was in a state of fit health to participate in an act of sex to which she replied in affirmative. She was cross-examined and the Medical Officer had to say that she was only asked to report regarding the fact whether the respondent was virgin or not. Even the weight of the respondent was not taken. The Medical Officer stated that if the respondent had been pregnant, the bones would have developed. The doctor did not find any evidence of respondent's pregnancy.
Parveen Mehta, respondent, aged about 35 years, appeared as R.W. 7. She reiterated her entire case and referred to at least 15 meetings between the parties after they had departed from each other and that she had stated that she had become pregnant and the child got aborted. She stated that she had sexual intercourse many times with the appellant and the marriage has been consummated. She categorically stated that the appellant in each and every meeting claimed that she was slim and was suffering from some disease. The meetings on the given places by both the sides are almost admitted except that the appellant side put the blame ,on the respondent and vice versa. However, the admitted part of this aspect is that the respondent has admitted that the husband always blamed her for her being absolutely weak and her falling health.
R.W. 2 B.D. Bector, a D.S.P. of Security, posted at Chandigarh deposed that he was also present in a meeting which took place at the house of Hon'ble Mr. Justice S.K. Jain in Chandigarh. In cross-examination he denied that the collar of the petitioner was caught by the respondent. The respondent is a cousin sister of this officer.
PremSingh, R.W. 3 stated that vide receipt Ex. R.W. 3/A some goods were sent by truck from Doraha to Yamuna N-agar. These must be the dowry articles. R.W. 4 Surinder Singh Sandhu, mentioned about the Bank account of the respondent opened at Panipat. R.W. 5 Dinesh Kapoor, a Branch Manager of United India Assurance Company, deposed that Car No. PAP 4499 was involved in an accident and Rs. 2,247/- were paid on that account.
R.W. 8 Harjinder Kaur Sidhu, who was a Principal, Gurunanak Girls College, Model Town, Ludhiana, deposed that she had gone to Kaithal and had been joining the gathering organised for reconciliation between the parties and the appellant told her that the respondent was weak.
R.W. 9 Atma Parkash Banda, deposed that the respondent is the daughter of his cousin. He attended the marriage of the parties being a close relation of the girl. He also joined the various meetings of reconciliation at the house of Shri S.D. Bhambri, the Chief Secretary to the Government of Haryana and at other place.
The next witness Om Parkash, father of the respondent appeared as Court Witness No. 1. He supported the case of his daughter through and through.
11. So, it was in view of this evidence that the learned District Judge, who tried the case and delivered his judgment came to the conclusion that the respondent was in a fit state of health and there was no concealment of the state of health of the respondent. The respondent like a devoted wife always wanted to stay with her husband. The acts and omissions claimed by the husband did not constitute any desertion or cruelty. Therefore, decided Issue Nos. 1 and 2 as well as the issue that the appellant came with utmost delay and the petition was bad for laches, against the appellant and dismissed the petition being devoid of merit.
12. Coming to the crux of the controversy between the parties and the main question to be resolved it is necessary to mention and reproduce some portions of the following paras of the petition :
"Para 3 : That before the marriage of the petitioner as arranged with the respondent, the respondent when seen by the petitioner, seemed to be quite weak and frail from the outward appearance. On the enquiry of the petitioner of her being extraordinary weak, the petitioner was told by the parents of the respondent that her weak health was the result of persistent dieting which she was undergoing for quite some time to reduce her weight and there was nothing wrong with her health.
xxx xxx xxx xxx xxx xxx Para 4 : However, when the petitioner and respondent were together for consummating the marriage, the respondent could not respond to the cohabitation process and her cooperation was absolutely not there in the entire process, as a result of which the cohabitation between the parties was virtually non-existent. The marriage could not be consummated at any stage.
xxx xxx xxx xxx xxx xxx Para 6 : That accordingly, the petitioner and the respondent visited one Shri Amar Nath Shastri, Vaid at Chandigarh on 10.12.1985. The Vaid examined the respondent and conveyed that the respondent was suffering from some protracted ailment and he was already seized of that ailment. He also gave her some medicines.
xxx xxx xxx xxx xxx xxx Para No. 9 : Thus, the only diagnosis that was done during the preliminary examination of the respondent was that she has been losing the weight considerably due to serious internal ailment and her weight at that time has been reduced to only about 40 kgs. She had actually lost all flesh on her body and her health was absolutely incapacitated. The respondent was only looking like a skeleton for all practical purposes."
13. Reply to some portions of the above paras may also be reproduced hereunder from the written statement:
"Para No. 3: That para 3 of the petition is wrong and denied. It was an arranged marriage. The petitioner required parents of the respondent to have an open and free talk with the respondent and the same was arranged. The petitioner was invited with his near and deaf ones whomsoever he liked to have an open and free talk which he had. Every body accompanying the petitioner and petitioner himself expressly showed their satisfaction with the open and free talk and no objection or criticism whatsoever on any point and about the performance of so-called ceremony was made.
xxx xxx xxx xxx xxx xxx Para No. 4 : It is also frivolous concocted version of the petitioner that when the petitioner and the respondent were together for consummating the marriage, the respondent could not respond to the cohabitation process and her cooperation was absolutely not there in the entire process as a result of which the cohabitation between the parties was Virtually non-existent. The whole allegation is a shocking surprise and is bereft of any truth in it......
xxx xxx xxx xxx xxx xxx Para No. 6: It is wrong that on 10.12.1985, the petitioner and the respondent visited one Shri Amar Math Shastri, Vaid at Chandigarh. On 10th December, 1985 the petitioner along with the respondent had gone together to Yamuna Nagar from where they were to go together to Bhathinda to attend marriage of relative of the petitioner.
xxx xxx xxx xxx xxx xxx Para No. 9: That para 9 of the petition is wrong and denied. The story regarding protracted ailment is totally false and concocted. There is no truth in the allegations levelled in this para at all."
14. There appears no sufficient denial of allegations made in the petition regarding the concealing of the state of health of the respondent in the reply. The reply is evasive.
15. R.W. 7 Smt. Parveen Mehta, was put to lot of cross-examination and she was confronted with the position that she had been consulting Vaid Amar Nath Shastri even prior to her marriage regarding ailment. Before proceeding to Bhathinda where they were to attend the marriage she had also taken medicines from Vaid Amar Nath Shastri. Sheclaimed that when she had conceived, she consulted Dr. Ajit Kang of Ludhiana. At that time her weight was 42 kgs. According to Parveen Mehta her weight was recorded in the prescription slip. She admitted in further cross-examination that she was not in possession of any report showing the pregnancy test that she had conceived. She claimed that the pregnancy of four months got aborted by way of miscarriage. The miscarriage took place at the house of her parents on 23.7.1986. D.N.C. test was performed by Dr. Ajit Kang at Ludhiana. The doctor had prepared the record but she did not preserve it. She went to the toilet and miscarriage took place. She produced the prescription slips of her treatment Exhs. R.W. 7/1 to R.W. 7/4. It may also be stated that C.W. 1 Om Parkash, father of the respondent admitted that he knew Vaid Amar Nath Shastri. Rather he claimed that he was not only the friend but was a "Guru" of the family. He claimed that his daughter never got any treatment of any disease from him.
16. The learned Counsel for the appellant in support of his contentions has cited the case, namely V. Bhagat v. Mrs. D. Bhagat, JT1993 (6) 428=II (1993) DMC 568 (SC), wherein it was observed as under :
"This is an unusual case calling for an unusual solution. The husband sued for divorce on the ground that the wife is guilty of adulterous course of life. The wife not only denied the allegation, she attributed the allegation to lack of mental equilibrium of the husband. The husband then amended his petition; he alleged a new ground for divorce viz. mental cruelty. According to him, the allegations made in the written statement per se constitute cruelty which entitle him straightaway to a divorce without going into the original allegation of adultery. He is also relying upon certain questions put to him in cross-examination by the Counsel for the respondent and the said Counsel's explanatory statement made in that connection."
The learned Counsel also cited the authority of the Apex Court in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121=1 (1998) DMC 12, wherein it was held as under:
"The word "Cruelty" has not been defined and could not have been defined. It has been used in relation to human conduct or human behaviour. 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."
Reliance was further placed on the authority of Single Bench of this Court in Bohti Devi v. Karma, 1996 (1) AIJ 129=11 (1996) DMC 574, where it was held that:
"Section 13. Divorce - Irretrievable breaking of marriage-No use of keeping two young persons tied by the matrimonial relationship when they cannot live peacefully - Parties should not be penalised and try to entangle them in legal squabbles in order to deny the appropriate relief - Divorce granted."
The authority of Division Bench of this Court in Pawan Kumar v. Chanchal Kumari, ILR 1992 (2) Punjab and Haryana 23, wherein it was held as under :
"That the parties to the marriage have stayed separately for the last more than 13 years. They have lived together for only a month. They have no child which may bind them together. It appears that the marriage has been dead for more than a decade. It has irretrievably broken. It is an insoluble mess. It would be appropriate to grant the decree of divorce in the circumstances of the case."
The Apex Court in Smt. Saroj Rani v. Sudershan Kumar Chadha, (1984) 4 SCC 90, held that Court's satisfaction about permanent breakdown of the marriage may serve as an additional justification for granting divorce.
16. The learned Counsel for the appellant has argued that the case of the appellant does not depend on anything that the respondent suffers from any particular incurable disease either that of epilepsy or other incurable disease or schizophrenia etc. The case is based on the ground of concealment though it was an arranged marriage and the parties had seen each other before marriage. The parties met at the time of Rokna, ring ceremony and on other occasions but when the father of the respondent was asked by the appellant as to why she was so slim, the answer was that she was undergoing a spell of dieting. Though the fact remains that the respondent was not bulky rather was admittedly having hardly 40/42 kgs. of weight and the appellant described her to be absolutely skeleton and losing flesh and weight and making her incapable of bearing any strain as well as incompetent to cooperate to a sexual act. It is admitted by the father of the respondent that Vaid Amar Nath Shastri was a "Guru" of the family. He was not produced in the witness box. Such a Guru must have been very truthful person, Even the respondent's father was not coming in the witness box and he came as a Court witness. When the father and other relations of the respondent have been so much hankering after to see a patch up between the parties, why the father could not voluntarily enter into the witness box to assert that his daughter was healthy? Dr. Ajit Kang of Ludhiana, who allegedly conducted D.N.C. test on the respondent was also not produced in the witness box. This was a very material piece of evidence. When not produced it would raise the inference that there was in fact no pregnancy. Only the medical prescription slips mentioned above which were suitable to the respondent were placed on the record. There is nothing to suggest that she ever told her husband that she was ever pregnant or there was miscarriage or ever called for husband to Doraha when she had been bed-ridden for 2/3 days if such an event had taken place. Dr. Sarla Gopalan had opined that she did not notice any sign that the respondent was pregnant nor was there any sign of miscarriage. So, the case is of concealment regarding state of health and reasons for the same not told as to why she was too slim. If all this had been known to the appellant he might not have agreed for such a marriage. Now the wife is producing false evidence that she became pregnant and that there was a miscarriage.
17. The learned Counsel for the appellant has urged that the concealment regarding the general state of health of the respondent on the part of the parents as well as on the part of the respondent was an act of deceit and that this alone itself could have been a mental shock to the appellant. He has also urged that it was not necessary for the husband to have reflected his state of mind and about the state of health in writing regarding his own wife to her parents in the letters dated 16.4.1986, 15.4.1986, 3.3.1986, Annexures R14, R15 and R16 respectively. As yet the appellant might have been hoping for cooperation for her treatment it could be so early that he could have thought of divorcing the women unless he had ascertained about the prospects of the treatment. In photographs Ex. P17 and P18, the respondent only looks very slim.
18. The learned Counsel for the respondent has argued and referred to each and every meeting which took place from time to time between the parties for reconciliation at various places mentioned above and are not required to be reproduced. Even if the arguments of the learned Counsel for the respondent are taken to be as such the several efforts have been made but it is clear that it has not ended in positive result rather such meetings have widened the gap between the spouses. The husband has always as per version of the respondent herself being "harping" that she was too slim and unable to cooperate for sexual intercourse and that she was victim of some disease and was asthmatic. So his own argument is suggestive of the fact that despite a large number of meetings between the parties and even the case was taken up in the Lok Adalat at the High Court level and the parties have not been living together for the last 14 years it becomes a totally broken marriage and it is irretrievable. Still the parties can be compelled to live together?
19. Besides the aforesaid circumstances not that the respondent is otherwise in any way unacceptable, rather she appears to be a good lady but because of her failing health she has become the subject of controversy and misfortune that she had to resort to a threat when she caught hold of the collar of the husband at the house of Mr. S.K. Jain. She also called a large number of persons and had virtually to take the law in her own hands and threatened the husband on 29.7.1996 at Kaithal where he was posted and the appellant had to apply for leave to see that the situation is cooled down. So, if a person is told that the one side is ailing the other may not agree for marriage, may be there is some serious ailment with which he or she is suffering. Chances of marriages in such situations are remote. In the case in hand the respondent did not get herself treated, may be there has been some serious health problem which was reducing her in weight. Non-production of any medical evidence with regard to ailment, especially Vaid Amar Nath Shastri, who is stated to be a close friend of her father, casts grave doubt about the truthfulness of her version.
20. There have been consistent meetings right from the beginning till the year,1992 and efforts for approachment were being not given up even after the institution of the petition. To make up one's mind to attribute the allegations of concealment of ill-health again the person who had become relation of the appellant do take time. It is not that a person comes out suddenly and promptly with certain allegations and when particularly in the case in hand, the appellant had no pre plan of any kind to level such allegations despite the fact that he had noticed the ill-health of the respondent. He was trying to improve the situation. He tried to ask the respondent to get treatment from the doctor of her choice or his choice but when situation did not improve, the respondent herself went away and got the ideas that she was going to create some trouble and went to the extent of complaining against the husband that he has not shown the car given by her parents in his property statement. She even tried to create tape record evidence to involve the husband. The learned District Judge, in the judgment as well as the father of the respondent have stated that the respondent worshipped the husband but she has gone to the extent that she had not only claimed consummation of the marriage but also that she was pregnant from his and aborted the child also which is a blatant lie.
21. On the question of desertion, the learned District Judge referred to the authorities, namely, V. Bhagat. Mrs. D. Bhagat, 1994 MLJ1 (SC)=II (1993) DMC568 (SC), wherein it was observed that there is no rule of the thumb to prove cruelty and desertion in every case by leading a particular type of evidence, and whether the acts of the guilty spouse amount to cruelty or desertion depends on the facts of each case. In Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, it was ruled by the Apex Court that for the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) animus deserendi i.e. the intention to bring cohabitation permanently to an end. To the similar effect is the authority in Bharat Lal v. Smt Ram Kali Devi, AIR1984 Allahabad 274; Neelam v. Vinod KumarMidha,AlR1986Punjaband Haryana 253; Smt. Raj v. Dalbir Singh, 1997 (Suppl.) Civil Court Cases 560 (P&H)=II (1997) DMC 511; Khanindra Chandra Das v. Smt. Kusum Das, 1991 Marriage Law Journal 465 (Gauhati)=II (1991) DMC 176.
22. On the question of cruelty the learned District Judge relied upon the authorities in Smt Krishna Rani v. Chuni Lal Gulati, 1981 Marriage Law Journal 1; Arminder Kaur v. Major Harinder Singh Brar, (1993-3) 103 PLR145, wherein it was ruled that conscience of the Court should be satisfied that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without mental agony, torture, or distress. In Brij Lal v. Smt Krishna, (1996-3) 114 PLR 357, it was observed by a Division Bench of this Court that though females usually considered as weaker sex are required to be protected, yet, at the same time one cannot be permitted to adopt Major's policy (sic. dog in the manger policy) i.e. neither the wife would live in the matrimonial home nor she would cease the matrimonial home. N. Sreepadachar v. Vasantha Bai, AIR 1970 Mysore 232, where the wife abused her husband in public in a bus and caught hold of his collar. She made her husband cook food for her and when he served the food, she threw the plate on his head on the ground that the food was not properly prepared and insisted on his asking her forgiveness. She also threatened to burn herself and to give a false complaint to the police so that her husband may come in trouble. When he was starting to his office with his colleagues, she caught hold of his neck and prevented him from taking the instruments used for his work. She also declared that her husband may be killed in an accident so that she may get his insurance and provident fund amount. In the opinion of the Mysore High Court all these acts on the part of the wife made it impossible for the husband to live with her and this amounted to cruelty. Mahabir Singh v. Nirmala Devi, 1981 (1) Marriage Law Journal 189, was also referred to by the learned District Judge.
23. So out of the entire discussion it clearly emerges and comes out to be that the respondent was too slim and was almost underweight at the time of her marriage and it is posed that she was being treated by Vaid Amar Nath Shastri and this fact was kept concealed from the appellant and his parents. This fact should have been revealed by the parents of the respondent to the appellant and his parents so that they could have entered into the matrimonial alliance with their open eyes and without fear and apprehension of the prospects of the good health of the respondent. When they concealed it, they put the future of their own daughter into jeopardy and such a concealment could not be said to be a fair deal when they entered into matrimonial alliance. There has to be a matching spouse in all respects and if there is a mismatching, again there are chances of disharmony and discord. Even until today the respondent as well as her parents have concealed the respondent's as well as her parents have concealed the respondent's state of health. It has already has been referred to above that she was not subjected to any test nor was she referred by the Medical Board headed by Dr. Sarla Gopalan to ascertain her state of health. The other aspect of the matter is about her virginity. The conduct of the respondent has been that she even came with a plea that the marriage has been consummated successfully. By a mere report that she is not virgin would not raise a definite inference that the marriage has been consummated. If the marriage had been consummated why the husband should deny. The appellant has been absolutely courteous to the respondents well as to her parents as reflected from the language used in his letters. Even after knowing about the indifferent state of health of the respondent he tried to make up the mind that he was supposed to get her treated and offered the help and took her to her own Vaid Amar Nath Shastri at Chandigarh. Further the conduct of the respondent has been that she even raised the plea that she was even pregnant from the appellant and had a miscarriage and the medical evidence of Dr. Sarla Gopalan came to be that there was no such evidence after the respondent was examined on the point whether she was virgin or not, So the respondent has taken all the pleas knowingly that these were false so as to deny the story of her inability to have cooperated in sexual act with the appellant. These circumstances cannot be viewed lightly. The concealment of material facts while entering the matrimonial alliance and further conduct of the respondent putting false version regarding consummation of marriage and pregnancy etc. lead to serious inference to cay that the version of the appellant in such a given situation is not only correct but is truthful one. Such a situation that the respondent was unable to sexually cooperate with the appellant that she did not cooperate to even get the medical treatment as well as raising of false defence must have acted as concealments and a matter of great torture and cruelty to the appellant. In fact her non-cooperation towards getting a medical treatment and tests amounts to desertion and it was, therefore, that she left the matrimonial home and wanted to come back without conceding herself for medical treatment and conceals every situation. This shows that she has not come to the Court with clean hands and wants to take advantage of her own wrong and her conduct amounts to that of desertion. The finding arrived at by the learned District Judge, cannot be said to be correct.
24. At the same time to say that the version that the respondent caught hold of the appellant from his collar at a meeting of the respectable and the members of the family of the two sides is an act of aggressive attitude. The attempts made by the respondent side for a patch up did not appear to be bona fide and were not in decent manner. The consistent version of the husband has been regarding the state of health of the respondent, there was no motive in his mind to achieve any other end. There has never been any dispute of dowry that the husband ever expected anything from the respondent side. It is not even the case that the respondent could level any other allegation against the appellant. The letter Ex. PW 2/A forwarded from Kaithal by the appellant and his colleague Ex. PW 2/B is reflective of fact that the respondent did not even desist virtually to put a total undesirable type of pressure on the appellant that he had to fled away from the Court and such acts must have acted as cruelty upon the appellant. However, this Court is alive to the fact that these incidents have happened during the course of an attempt of reapproachement between the two sides and were not at the time the parties were resorting to the discharge of matrimonial obligations but till the marriage is not dissolved or the marriage is not settled such acts would be relevant for the purpose of determining the acts of cruelty on the part of either side to the litigation.
25. It also needs mention that the version of Surinder Singh Rao, P.W. 5 and Shri Varinder Singh Jain, P.W. 6 that the respondent did not cooperate to prepare tea or she was not doing house-hold job is a petty matter and does not count here or there and no importance is required to be attached to such incident.
26. When the efforts of reconciliation were being made till 1992 and the petition for divorce having been brought on 20.8.1996 it would not be taken that the petition was brought with any laches. It needs again mention that it is not easy to make up one's mind to bring a petition for divorce or to take an action by which the life of a person takes absolutely different turn. It is not because that either any act of the respondent was condoned by the appellant, rather it must have been that the appellant being a Judicial Officer is always hesitant to come to the Court of Law himself and would not be happy to even divorce his wife as in the case in hand the officer concerned does not appear to be like an ordinary man who might have ever indulged in undesirable activities. From the reading of the entire record minutely it appears that the appellant has always been having consistently imprint on his mind that the respondent was too thin and slim for him and was unable to provide him sex and to live matrimonial life which could be of even little strain and stress.
27. In a marriage, what is legitimate expectance ? One spouse deserves the other one with whom he is getting married to be reasonably healthy, average looking, cooperating and frankly disclosing if one already has a health or psychological problem. One wants and expects good enjoyable company, also an expectation of normal sexual cohabitation without hindrance and any abnormality. Sexual happiness and pleasure is one of the essential ingredients. Husband has special means of knowledge as to the state of health of the respondent and vice versa about each other. Their evidence is the best evidence. What they have exposed and concealed is decisive. In the case in hand, it is strange that the wife claims that she was satisfied sexually, but husband claims that wife was too thin to perform a sex. Court also has limitation is to discuss. Wife has not levelled any allegations against the husband knowingly or unknowingly or actually there was nothing against him, though the husband was grilled in a long cross-examination. In such a situation there is no need to split and stretch the situation towards an unexpected direction. There was never a danger to the wife that she or her relations could at all be involved in some false case, as stated by the R.Ws. frequently. Respondent's relation is an important police officer in Chandigarh participating in various meetings. Strong inference from this incorrect story of pregnancy and miscarriage can only be that she really suffered from this incorrect story of pregnancy and miscarriage can only be that she really suffered from ailment of the type which reduced the weight of the respondent quickly and made her too slim. If the appellant had been told this fact before marriage, he might not have consented the marriage. So, it is certain in this case that the parties married in haste to repent in leisure. As the marriage took place about 14 years ago and there is no child out of the said wedlock, it would be absolutely in the interest of justice to separate the parties from each other.
28. In view of the discussion as such the only conclusion which can be arrived at is that despite the fact that the respondent is a good lady but has created the aforesaid situation because of her own act and conduct concerning the nondisclosure of her state of health and the concealment by her above, acted as a mental and physical cruelty to the appellant which entitles him to a decree of divorce. Therefore, the findings of the learned District Judge on issue Nos. 1 to 3 are reserved.
29. For the foregoing reasons, the appeal is allowed, marriage between the parties stands dissolved and a decree of divorce on the grounds of desertion and cruelty is hereby granted in favour of the appellant (husband) and against the respondent (wife). In the circumstances of the case, the parties are left to bear their own costs. However, it would be appropriate to ask the husband not to remarry till 30.9.2000. Hence ordered accordingly.