Punjab-Haryana High Court
Major Singh vs Chhinderpal Kaur on 3 August, 2010
FAO No.200-M of 2006
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IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
FAO No. 200-M of 2006 (O&M)
Date of Decision : August 3, 2010
Major Singh
.......... Appellant
Versus
Chhinderpal Kaur
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. R.S. Rangpuri, Advocate,
for the appellant.
Mr. D.D. Bansal, Advocate,
for the respondent.
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1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not? Yes.
3. Whether the judgment should be reported in
Digest? Yes.
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VINOD K. SHARMA, J.
This appeal by the husband is directed against the judgment and decree dated 22.3.2006, passed by the learned Additional District Judge, Bathinda, vide which petition filed by the appellant under section 13 of the Hindu Marriage Act, 1955 (for short the Act) was ordered to be dismissed.
The appellant filed a petition for divorce on the pleadings, FAO No.200-M of 2006 -2- ****** that the marriage of the parties to the litigation was solemnized in February, 1992 at Kot Fatta, as per Sikh rites and ceremonies. Out of this wedlock, a male child was born in the year 1995. It was the case of the appellant that the marriage was simple and no gifts or dowry articles were accepted except some usual gifts in the shape of gold ornaments given by the parents and family friends of the appellant to the respondent. These articles were also taken away by the respondent/wife while leaving the matrimonial home.
Divorce was sought on the ground of cruelty on the allegations that the respondent is a lady of quarrelsome nature, and she picks up quarrels on triffles especially on the occasions of functions, family gatherings, by using abusive and unfair language towards the appellant and his family members, in the presence of relative and friends, thereby spoiling their reputation in the society, which amounts to mental cruelty. It was also pleaded case of the appellant that the respondent/wife had left the matrimonial home in the year 1998. It was after the efforts made by the respectable, that she was brought back to the matrimonial home after she had apologized in writing. On assurance of the his father and a mediator, that she would behave well in future. The parties thereafter lived together and cohabited till June, 1998 but again she left the matrimonial home in 1998. The other ground of mental cruelty was, that the respondent / wife has involved the appellant and his family members in false criminal case.
FAO No.200-M of 2006 -3- ****** The allegations made in the petition were denied by the respondent. A stand was taken that she was harassed on account of insufficient dowry. Prior to the filing of the present petition, the appellant had earlier filed a petition under section 13 of the Hindu Marriage Act which was dismissed for want of payment of maintenance. The appellant thereafter moved second petition under section 13 of the Act which was again dismissed for non-payment of maintenance pendente lite on 22.10.2003. The appellant made another attempt to get a decree of divorce by moving a fresh petition before the learned Additional District Judge, Bathinda. Again he was unable to pay maintenance pendente lite, the petition was also dismissed on 9.1.2004. In all four petitions were filed by the appellant, which were dismissed on 13.9.1996, 22.10.2003, 9.1.2004 and 22.11.2001.
The petition was also contested, on the ground, that the petition was liable to be dismissed for concealment of facts, as the particulars of previous petitions were not disclosed. It was the case of the respondent/wife that handsome amount was spent on marriage, and the dowry given to appellant, which was recovered by the police. It was denied that the respondent had taken away ornaments or articles with her. The case set up in defence was that she was turned out of the house after giving beating. It was also the case of the respondent that she has been behaving like sober wife and doing household work. It was asserted by her, that FIR was lodged by her FAO No.200-M of 2006 -4- ****** correctly for the misdeeds, to punish the appellant and his family members. She also showed her willingness to accompany the appellant/husband without any condition, but it was the appellant who refused to rehabilitate her.
In the replication the averments made in the written statement were denied and those of the petition were reasserted.
On the pleadings of the parties, the following issues were framed:-
1. Whether respondent treated petitioner with cruelty, if so its effect? OPP
2. Whether petitioner is guilty of concealing material facts, if so its effect? OPR
3. Relief.
Plea of desertion was rejected by the learned matrimonial court for the reason, that it was admitted by the appellant in evidence, that he did not have any permanent place of living, and was staying with his different friends from time to time. The learned matrimonial court, therefore, held that in these circumstances it was not possible for the respondent to join the matrimonial home. Even otherwise, the respondent had shown her willingness to join the company of the respondent. It was the appellant, who did not accept the offer and refused to rehabilitate her. The learned matrimonial court on appreciation of evidence, held that desertion was not proved. Even otherwise, it may be noticed, that mere staying apart FAO No.200-M of 2006 -5- ****** does not amount to desertion, in the absence of animus deserendi.
In the present case, it stood proved, that the respondent was turned out of matrimonial home, and it was the appellant who has refused to rehabilitate her under any condition, therefore, the learned matrimonial court rightly decided the plea of desertion against the appellant.
On the question of cruelty learned matrimonial court came to the conclusion that the allegations qua cruelty were vague and lacked material particulars. Even otherwise, they were of the nature of triffles which were normal in matrimonial home and did not constitute cruelty. For coming to this conclusion the learned Matrimonial Court held, that the allegations levelled were that the wife was guilty of not preparing or serving tea or meal and using abusive language, but specific instances were given in pleadings or in the evidence.
The learned Matrimonial Court, therefore, held that these allegations did not constitute cruelty. The learned Matrimonial Court also rejected the plea of the appellant that the respondent / wife was guilty of cruelty on account of registration of a false criminal case. This finding was recorded in view of evidence of respondents, wherein RW-1 & RW-2 stated in their cross-examination that the acquittal of the appellant and his family members was for the reason that the respondent and her parents did not contemplate conviction of the appellant and his family members.
FAO No.200-M of 2006 -6- ****** The learned Matrimonial Court also held that the FIR under Section 49*-A IPC may have been got lodged for having redressal of grievance of non-return of dowry articles. Therefore, resort to criminal procedure could not be said to be a cause of mental cruelty.
The learned Matrimonial Court also held that mere lodging of FIR or filing of petition under Section 125 Cr.P.C. for getting maintenance, can not be said to be an act of cruelty.
The learned Matrimonial Court, therefore, decided the plea of cruelty also against the appellant and consequently dismissed the petition.
During the pendency of this appeal, the appellant moved an application under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence by placing on record the judgment passed by the learned Judicial Magistrate Ist Class, Bathinda in a criminal case registered under Section 498-A/406 IPC by the respondents. The plea raised in the application was that the judgment passed by the learned Criminal Court is a piece of evidence, which is necessary for this Court to arrive at just and proper adjudication of the case, specially with regard to the allegations of cruelty levelled against the respondent / wife.
The respondent contested this application, however, it was not disputed that the appellant and his family members stood acquitted by the Criminal Court. The stand taken was that as the FAO No.200-M of 2006 -7- ****** appellant and his family members were acquitted as desired by the respondent / wife, therefore, the acquittal of the appellant by the Criminal Court was immaterial, thus, the application deserved to be dismissed.
On consideration of the matter, I find force in the contention of the learned counsel for the appellant / applicant. In the petition filed under Section 13 of the Hindu Marriage act, a specific stand was taken that the appellant was treated to cruelty because of lodging of false criminal case. The pleading in this regard in para 8 of the petition under Section 13 of the Hindu Marriage Act, reads as under :-
"8. That in the implementation of her ill- designed motive, the respondent left the house of the petitioner, about 3 years ago,and then got implicated the petitioner and other family members in a false case under section 498A IPC etc. through police of P.S. Thermal, Bathinda, which is still pending for 28-2-2005 in the Court of Mrs. Jagdeep Kaur, Judicial Magistrate Ist Class, Bathinda. An application under Section 125 Cr.P.C. is also pending in the Court of Shri H.S. Dhaliwal, Addl. Chief Judicial Magistrate, Bathinda, in which the petitioner is paying Rs. 700/- p.m., as maintenance allowance to the respondent."
The judgment passed by the learned JMIC, in view of the specific pleadings, is material piece of evidence, which is necessary FAO No.200-M of 2006 -8- ****** for just and proper adjudication of the case. The application for additional evidence is allowed and the copy of t he judgment passed by the learned Judicial Magistrate Ist Class, Bathinda is taken on record as Ex. 'C'.
The learned counsel for the appellant did not challenge the finding of the learned Matrimonial Court on desertion but challenged the finding recorded by the learned Matrimonial Court holding that the appellant had failed to prove the cruelty by referring to the judgment Ex. 'C' on record.
The reading of the judgment passed by the learned Judicial Magistrate Ist Class, Bathinda showed that the stand of the respondent that they were not interested in prosecuting the appellant and his family members in the criminal case stands belied as the prosecution witnesses were examined to prove the case against the appellant but the case filed was found to be totally false. It will be appropriate to reproduce the operative part of the judgment passed by the learned Judicial Magistrate Ist Class, Bathinda, which reads as under :-
"15. In view of the aforesaid discussion, I am of the considered opinion that as far as offence u/s 406 IPC is concerned, prosecution must satisfy two material ingredients i.e. entrustment of Dowry articles, to accused and misappropriation on the part of accused. In this regard, it is quite important to scrutinize the cross-examination FAO No.200-M of 2006 -9- ****** of prosecution witnesses. PW/1 complainant during cross-examination has stated that gld Karr X.P-2 was given to her husband major Singh and small size Ex.P-3 was given to her father in law Gurdev Singh and gold ring Ex.P-4 was also given to her husband likewise Ex.P-5 Chain was given to her mother-in-law at the time of marriage, by her parents for their own use. This fact led to the inference that said articles were not entrusted to accused persons on behalf of the complainant rather were meant for the user of accused, thus there is no question of mis-appropriation of Ex.P-2 to P-5. Even otherwise if for the sake of arguments, it is assumed that articles Ex.P-2 to P-5 were Istri Dhan of the complainant, then also prosecution has failed to prove the same being articles of dowry. PW1 during her cross-examination has categorically stated that articles i.e. Karra, Ring, chain etc. produced in the court are changed one. Gold ornaments were big in size in comparison to the gold articles produced in the court. She further specified that Ring given to Major Singh was larger in size and name of Major Singh was engraved on it.Chain produced in the court is not identical with the chain given at the time of marriage of her mother in law. Furthermore PW1 stated that scooter which was given to Major Singh was purchased on the name of Major Singh and scoter FAO No.200-M of 2006 -10- ****** produced in the court is not that scooter. It is an old one, whereas a new scooter was given in the marriage. To prove the RC of the scooter in question prosecution has examined PW5 Rajiv Kumar who produced on record the registration copy of the scooter No. PB-61-1219 which was taken into possession in this case by the police. As per the record the scooter in question has been transferred on the name of Darshan Singh s/o Buta Singh i.e. PW 6. Witness has not named the previous owner of the scooter but the perusal of Ex. PW 5/A reveals that Balbir Singh s/o Bhoop Singh r/o Jallalabad was the first owner of the scooter No. PB-61- 1219 who transferred the same to Darshan Singh. Thus recovered the scooter has no connection with accused Major Singh. Any RC of purchase bill etc. of scooter on the name of Major Singh has not been brought on record. Even PW4 I.O. during cross- examination had admitted the fact the scooter No. PN-61-1219 is not the scooter given in dowry. The aforesaid facts leaves no room for doubt that none of the case property produced in the court has been given in dowry. Thus prosecution has failed to prove any recovery of dowry articles.
16. xx xx xx xx
17. As far as offence u/s 498-A IPC is concerned, the material documents are Ex.PA i.e. application of the complainant FAO No.200-M of 2006 -11- ****** affidavit Ex.PB which formed the basis for registration of FIR Ex. PW.4/C. PW1 during her cross-examination has stated that Ex.PA was got scribed by her Massad (husband of her maternal aunt) who is posted as Inspector in Punsup. Complainant /PW 1 further admitted the fact as correct that they before writing Ex.PA have consulted with each other with regard to the fact that as to whose names are to be mentioned and this fact led to the inference that Ex.PA is an after thought document and did not incorporate true facts. As far as the allegations of demand of dowry and beatings given to the complaint by her husband are concerned, no specific time i.e. date, month or year etc. are mentioned either in the complaint Ex.PA or affidavit Ex.PB or during the statement of complainant as PW1 as to when the accused started maltreating her for bringing more dowry. During cross- examination PW1 has stated that she could not tell in which year or month etc. she was given beatings. Even there is no specific date month or year about the demand of Rs. 50,000/- from her. Likewise there is no specific date, time when the complainant was turned out of her matrimonial home. In view of the rulling of Hon'ble Punjab and Haryana High Court reported in 2002(2) RCR Crl. 499 since no specific date, time or year has been mentioned by the complainant FAO No.200-M of 2006 -12- ****** as to when the incidents of cruelty had occurred, omnibus allegations have been levelled against the accused persons and these allegations are vague and general. Thus the version of the complainant is quite unbelievable."
and on the basis of the finding referred to above and other findings recorded, on appreciation of evidence, the learned Criminal Court acquitted the appellant and his family members by recording as under :-
"19. In view of the discussion made above, prosecution has miserably failed to prove its case against the accused persons for offences u/s 498-A/406 of IPC. As such all the accused i.e. Major Singh, Surjit Kaur and Gurdev Singh are acquitted of the offence charged u/s 406/498A of IPC.File be consigned to the Record room."
The learned counsel for the appellant contended, that the prosecution of the appellant and his family members was an extreme case of cruelty and therefore the appeal deserves to be allowed.
This Court has laid down in number of cases that mere registration of a criminal case for redressal of grievances can not amount to cruelty, butat the same time a false prosecution of the husband, and / or his family members is an extreme case of cruelty, which entitlesthe husband to get a decree of divorce.
The appellant has been successful in proving that the FAO No.200-M of 2006 -13- ****** appellant was treated with cruelty by his wife, which entitles the appellant to get a decree of divorce.
It may also be pertinent to notice here that the previous petitions, referred to above, filed by the husband were in fact dismissed for want of maintenance and were not decided on merit. It was always open to the respondent / wife to have recovered the amount of maintenance as fixed in spite of dismissal of petitions. The learned Matrimonial Court held that the petition under consideration was based on a fresh cause of action, therefore, was not barred. The said finding of the learned Matrimonial Court was not challenged by the learned counsel appearing on behalf of the respondent. Therefore, this question whether the petition was competent or not can not be gone into at this stage for want of challenge to findings of the learned Matrimonial Court.
The finding that the appellant was treated to cruelty by filing of criminal case in which the appellant and his family members were acquitted by holding that the filed was false, finds support from the judgment of this Court in the case of Jasbir Kaur @ Pinky Vs. Dr. Harjinder Singh 2008(2) RCR(Civil) 895, wherein this Court was pleased to lay down that filing of a false criminal case against husband and his family members is a case of extreme cruelty.
This Court in the case of Balwinder Kaur Vs. Surjeet Singh 2009(4) CCC 445 (P&H), was pleased to lay down that false prosecution against in-laws and the husband when those allegations FAO No.200-M of 2006 -14- ****** proved to be false, is proof of cruelty, and there can be no other better proof.
In view of the finding recorded above, the findings of the learned Matrimonial Court on issue No.1 is reversed and it is held that the respondent treated the appellant with cruelty, therefore, it is not safe for the appellant to live with the respondent.
In view of the reversal of the finding on issue No.1, this appeal is allowed, the petition filed by the appellant / husband under Section 13 of the Hindu Marriage Act is allowed. The marriage between the parties is ordered to be dissolved by a decree of divorce. However, keeping in view that the respondent / wife has no independent source of income and has a grown up child, born out of the wedlock to look after, she is granted permanent alimony of Rs. 3,50,000/-(Rupees three lac and fifty thousand only), which shall be payable by the appellant / husband within three months from the date of passing of this order. It is further made clear that this permanent alimony shall not affect the right of the respondent / wife to maintenance fixed under Section 125 Cr.P.C. and also right of the child to claim maintenance, in future for his education and other purposes, if permissible under law.
Appeal allowed.
August 3, 2010 (VINOD K. SHARMA) 'sp' JUDGE