Punjab-Haryana High Court
Gurdeep Singh vs Amarjeet Kaur on 1 November, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.91-M of 2005
DATE OF DECISION: October 01,2014
Gurdeep Singh
....Appellant
versus
Amarjeet Kaur @ Kulvinder Kaur
....Respondent
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL HON'BLE MRS. JUSTICE RAJ RAHUL GARG Present: Mr.P.S.Jammu, Advocate for the appellant.
Mr.S.K.Jain, Advocate for the respondent.
RAJ RAHUL GARG This is an appeal by the husband against the judgment and decree of the Additional District Judge, Sirsa dismissing the petition under Sections 12 and 13 of the Hindu Marriage Act, 1955 (for short, `the Act') for grant of decree of divorce.
KAMAL DEEP SEHRA 2015.01.22 16:04 I attest to the accuracy and integrity of this document High Court. Chandigarh FAO No.91-M of 2005 2
2. Briefly, the facts are that the marriage between the parties took place on 11th February 1993 at village Ghukanwali and from the said wedlock, no child was born to them. It is the case of the husband that on the next day of marriage, the wife went to her parental home and after about a week, she returned to her matrimonial home. After few days of the marriage, the wife was found roaming in the house at mid-night without any cause. She was made to lie on the bed with the help of the mother of the apepllant. However, she did not speak to anybody for 4/5 days. After a week, the husband found the wife tearing the clothes of the husband and other family members. The wife gave blows to everybody including the husband who tried to stop her from tearing the clothes. The mother of the husband brought the aforesaid episode to the notice of Smt.Malkiat Kaur and her husband Jagdev Singh and they were invited at the home of the husband. On finding her destroying the clothes, Malkiat Kaur apprised the husband and his parents that she suffered from mental disorder. On the next day, the husband with his uncles and other relatives took the wife to her parental home. According to husband, this mental disorder position is so obvious that even the brother of the wife conceded. On the same day, it came to the notice that the wife is elder than the husband, meaning thereby that the wife is 32 years of age and husband is 24 years of age. With the intervention of the parents and relatives, KAMAL DEEP SEHRA 2015.01.22 16:04 the matter was I attest to the accuracy and integrity of this document High Court. Chandigarh FAO No.91-M of 2005 3 patched up and the divorce petition filed by the husband was allowed to be withdrawn vide order dated 25.4.1994. The company of the wife remained only for a period of one month after the withdrawal of the divorce petition. Her lack of cooperation in establishing cohabitation was there. On a couple of occasions, she threatened to commit suicide. After December 1994, the wife never returned to husband to join him in the matrimonial home. The wife initiated criminal proceedings against the husband and family members. Under these circumstances, the husband wanted a decree of divorce under Sections 12 and 13 of the Act.
Upon notice, the wife refuted the allegations made in the petition. However, the wife did not dispute the factum of marriage. She also did not dispute that no child was born from the said wedlock. The husband harassed her for bringing less dowry. Even the claim of the husband being younger is also denied. There is no denial that the earlier divorce petition filed by the husband on the similar grounds was withdrawn on 25.4.1994, inasmuch as, the matter had been compromised and the husband had given undertaking that he would never raise any demand of dowry and would not maltreat her. It is conceded that after the compromise, the wife resided with the husband together. However, the behaviour of the husband and his family members was cruel towards her.
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On appreciation of evidence, the trial Court came to the conclusion that after getting the earlier divorce petition withdrawn on 25.04.1994, the husband and wife resided together for sometime with their free consent, the plea taken for grant of divorce under Section 12 of the Act is not tenable. It also came to the conclusion that the respondent-wife never treated the husband with such degree of cruelty which amounts to matrimonial offence. Accordingly, the petition filed by the husband was dismissed.
Now the husband has approached this Court through the present appeal challenging the judgment of trial Court.
Learned counsel for the husband, at the threshold, submits that the trial Court did not appreciate the evidence in correct perspective, inasmuch as, it is established on record that the wife caused mental cruelty to the husband and his family members. Elucidating the point regarding concealment, learned counsel submits that the husband was kept in the dark about the age and mental disorder of the wife at the time of marriage which he came to know at a subsequent stage. All the aforesaid facts and circumstances of the case give rise to reasonable apprehension in the mind of the husband that it is not safe to continue matrimonial relationship with the wife.
Learned counsel appearing for the wife submits that the judgment of the trial Court is well reasoned and requires no interference. It is argued that oral and documentary evidence KAMAL DEEP SEHRA 2015.01.22 16:04 I attest to the accuracy and integrity of this document High Court. Chandigarh FAO No.91-M of 2005 5 clearly shows that the wife was forced to leave the matrimonial home, although she was ready and willing to reside with the husband and perform her marital duties and obligations.
Concededly, the marriage was solemnized on 11th February, 1993 and no child was born to them. It is also not in dispute that earlier divorce petition under Sections 12 and 13 of the Act filed by the husband was withdrawn on 25.4.1994. It has come from the mouth of the husband that after withdrawal of the earlier divorce petition, the parties resided together as husband and wife for sometimes. Applicability of section 12 of the Act does not attract simply on two counts, namely, it provides that the marriage can be declared nullity by filing a petition within one year of the discovery of fraud or within one year from the ceaser of force and secondly, the petition is not maintainable if the husband or wife, as the case may be, resided with his or her full consent after the removal of the pressure or force and discovery of fraud. In the present case, the parties to the litigation resided together with free consent for sometime after withdrawal of divorce petition on 25.4.1994. Finding recorded by the trial Court that in the earlier divorce petition similar grounds were taken as it were taken in the present petition, which was withdrawn on 25.4.1994 as the matter was compromised clearly shows that the husband has condoned under Section 23 of the Act the acts of cruelty of wife, if at all those were existing at that time. Now on the same grounds this KAMAL DEEP SEHRA 2015.01.22 16:04 I attest to the accuracy and integrity of this document High Court. Chandigarh FAO No.91-M of 2005 6 petition cannot succeed. In the case in hand, the husband has not brought on record any new circumstance which could show that the wife has committed any fresh act of cruelty towards him. Once it is established on record that the parties to the litigation resided together as husband and wife for some time with their free consent after the compromise dated 25.4.1994 and withdrawal of earlier divorce petition. The fraud, if any, was played by the wife upon the husband that had ceased to exist.
The allegations regarding mental disorder of wife and further that she had been threatening to commit suicide, remained unproved on the file to the hilt. There is absolutely no material on the file to show that wife had ever taken any step towards commission of suicide. Simple allegation is not enough to prove the factum of cruelty. Likewise, there is absolutely no material on the file to show that she has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner-husband cannot reasonably be expected to live with the wife. There is absolutely no medical evidence on the file to show that the wife has been suffering from any kind of mental disorder. Levelling of bare allegations against the wife calling her a woman suffering from mental disorder is not enough to prove the acts of cruelty so as to grant of a decree of divorce.
Analysing the oral as well as documentary evidence, the trial Court came to the conclusion that the wife was forced KAMAL DEEP SEHRA 2015.01.22 16:04 I attest to the accuracy and integrity of this document High Court. Chandigarh FAO No.91-M of 2005 7 to leave the matrimonial home despite the fact that she was ready to join the company of the husband. The trial Court also found that after withdrawal of the earlier divorce petition on 25.4.1994, the parties resided as husband and wife together and the husband again started raising demand of dowry and forced the wife to leave her matrimonial home, constrained her to file complaints for matrimonial offences and maintenance and thereafter the husband again approached the Court by way of divorce petition having more or less similar grounds as taken in the earlier divorce petition which was withdrawn on 25.4.1994. Thus, the trial Court has rightly concluded that the husband has failed to prove that wife has caused cruelty to him, which has not been shown to be contrary to the facts or evidence available on the record.
In view of the aforesaid discussion, we find no merit in the present appeal and the same is accordingly dismissed.
(Raj Rahul Garg)
Judge
October 01,2014 (Ajay Kumar Mittal)
KD Judge
KAMAL DEEP SEHRA
2015.01.22 16:04
I attest to the accuracy and
integrity of this document
High Court. Chandigarh