Punjab-Haryana High Court
Parveen Kumari vs Ramnish Kumar on 18 February, 2015
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO-M-279-2006(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-M-279 of 2006 (O&M)
Date of decision: 18.02.2015
Parveen Kumari
......Appellant
Vs.
Ramnish Kumar
.....Respondent
CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MRS. JUSTICE SNEH PRASHAR
Present: Mr. R.D.Bawa, Advocate for the appellant-wife.
Mr. Rahul Sharma, Advocate for
Mr. Naresh Kaushik, Advocate for the respondent-husband.
Ajay Kumar Mittal,J.
1. This appeal has been filed by the appellant-wife against the judgment and decree dated 4.10.2006 passed by the trial court whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (in short, "the Act") filed by the respondent-husband for dissolution of marriage has been allowed.
2. A few facts relevant for the decision of the controversy involved as available on the record may be noticed. Marriage between the parties was solemnized on 4.4.2002 at Kurukshetra as per Hindu rites and ceremonies. They resided at Village Pabnawa where the marriage was consummated. A daughter was born out of this wedlock on 15.2.2003. As alleged in the petition under Section 13 of the Act filed by the respondent husband, the appellant was having illicit relationship with one Suresh GURBAX SINGH 2015.03.16 11:43 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-279-2006(O&M) 2 Kumar. After a few days of the marriage, the respondent had seen his wife in an objectionable position with him in their bed room in the house of the respondent at Village Pabnawa. On another occasion, he had seen both of them in the same position at the parental house of the appellant wife. On both these occasions, the respondent had raised objection and had a quarrel with her but her family members had intervened. Even then, the appellant continued to meet the said Suresh Kumar. The appellant used to misbehave with the family members of the respondent and threaten to involve them in criminal case. When daughter was born to the appellant, the respondent was not allowed to see the child. Ultimately, the respondent filed petition under section 13 of the Act for dissolution of marriage on the grounds of mental cruelty and desertion besides the allegation that the appellant was living in adultery. Upon notice, the appellant appeared and filed written statement controverting the averments made in the petition. She even made counter allegation that infact the respondent was having illicit relations with his bhabi Usha. When she same to know about this fact, she was advised by the respondent to keep it secret in order to save the reputation of the family. She further alleged that the respondent was impotent and used to take some medicines before having sexual intercourse with her. The trial court after appreciating the evidence on record allowed the petition filed by the respondent-husband vide impugned judgment and decree dated 4.10.2006. Hence the instant appeal by the appellant wife.
3. We have heard learned counsel for the parties and perused the record.
4. The trial court on the pleadings of the parties framed the GURBAX SINGH 2015.03.16 11:43 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-279-2006(O&M) 3 following issues:-
i) "Whether the petitioner is entitled to a decree for dissolution of marriage, on the grounds mentioned in the petition? OPP
ii) Whether the petition is not maintainable? OPR
iii)Whether the petitioner has no locus standi to file the present petition? OPR
iv)Relief."
The respondent in order to prove his case appeared as PW3 and reiterated the averments as made in the petition under Section 13 of the Act. He also examined ASI Multan Singh as PW1, Krishan Kumar as PW2 and Ranjit Singh as PW4. He also produced documents Exs.P.1 to P.9 i.e. Recovery memos prepared in the criminal cases, compromise, statement of the respondent before the Women Cell, statements of Parveen Kumari, Gulab Singh and Suresh Kumar. On the other hand, the appellant wife appeared as RW1 and examined her father as RW2. Suresh Kumar appeared as RW3. The respondent in his statement deposed that his wife was living in adultery with Suresh Kumar and he had seen both of them in objectionable position on two occasions. He further alleged that both of them continued with this relationship inspite of his objection. He had been assaulted by the brother of his wife and Suresh Kumar. The appellant left the matrimonial home without any sufficient cause. PW4 Ranjit Singh deposed that the appellant wife and Suresh Kumar had admitted before the panchayat that they had illicit relations. A compromise was effected to the effect that they will have no relationship with each other in future. On the other hand, the appellant denied the allegations of adultery, cruelty and desertion. She deposed that the family members of the respondent were not happy with the dowry. The GURBAX SINGH respondent had beaten her on many occasions and had even tried to kill her 2015.03.16 11:43 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-279-2006(O&M) 4 daughter. Gulab Singh RW2 supported the version given by her daughter. The trial court examined the entire evidence on record and recorded that the appellant made no efforts to prove the allegation made by her against the respondent. There was a simple suggestion to the respondent in his cross examination that he was having illicit relations with his bhabi Usha. On the one hand, the appellant was stating that her husband was having illicit relations with his bhabi, on the other hand, she was alleging that he was impotent. It was admitted in the cross examination by the appellant that she did not have sex with the respondent since November 2002. The marriage was performed in April 2002 and the petition for divorce was filed on 18.2.2005. Thus, deprivation of a spouse from normal sexual intercourse is by itself a mental cruelty.
5. The question that arises in this appeal is whether a false allegation of adultery levelled by one spouse against the other leads to a conclusion that the said spouse has been treated with mental cruelty or not.
6. Section 13(1)(ia) of the Act empowers the Court to dissolve the matrimonial ties between the parties by a decree of divorce on a petition by either spouse where the other spouse after the solemnization of the marriage, has treated with cruelty. Cruelty has not been defined in the Act but various pronouncements of the Apex Court and other High Courts have outlined the scope of the term 'cruelty'. Cruelty is evident where one spouse treats the other and manifests such feelings towards him or her as to cause reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental. Whether a spouse is inflicted with physical cruelty or not, it can be judged on the basis of direct GURBAX SINGH 2015.03.16 11:43 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-279-2006(O&M) 5 evidence whereas mental cruelty is to be inferred on analyzing the factual matrix of each case and drawing conclusion thereon. The proceedings for dissolution of marriage by a decree of divorce under the Act are of civil nature and its proof is not to be judged on the touch-stone of 'beyond the shadow of doubt' but only on the preponderance of probabilities leading to a fair inference as a necessary conclusion on the evidence and from the circumstances of a case.
7. While setting out illustrative cases of mental cruelty, the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 had held as under:-
"No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.GURBAX SINGH 2015.03.16 11:43 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-279-2006(O&M) 6
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of GURBAX SINGH sterilization without medical reasons and without the 2015.03.16 11:43 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-279-2006(O&M) 7 consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv)Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
In such like situations, it may lead to mental cruelty."
8. False allegation of adultery/illicit relations levelled by one of the spouse against the other is another example of mental cruelty meted out to the spouse. This Court in Smt.Rajbala vs. Sukhbir Singh, 2003(3) RCR (Civil) 182 while dealing with identical issue recorded thus:-
"In Manjit Kaur's case (supra) (2001(2) RCR(Civil) 323 (P&H), it has been held by this Court that unfounded allegations of adultery consists of cruelty. The marriage is a trust between the male and female partner and if irresponsible allegations are levelled by the spouse against each other, it will be held that the spouse when makes reckless allegations without any basis, does so, at his/her own risk and responsibility. It has been further held that levelling of false allegations by the wife to the extent that her husband was leading an adulterous life is an act of cruelty and even a single GURBAX SINGH 2015.03.16 11:43 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-279-2006(O&M) 8 act of cruelty after marriage is a valid ground for divorce."
In K.Srinivas Rao vs. D.A.Deepa, 2013(5) SCC 226, while elaborating mental cruelty on account of false allegation against the character of other spouse, the Apex Court observed in para 14 as under:-
"14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."
9. Examining the factual matrix herein, the appellant-wife had levelled false allegation against the husband of his illicit relations with his bhabhi which she could not prove. This indecent and unfounded allegation of illicit relations attributed to the husband caused mental cruelty to him and it became difficult for him to live with her. The relevant finding recorded by the trial court reads thus:-
"Respondent No.1 made no efforts to prove the aforesaid allegations made by her against her husband. There was a simple suggestion to the petitioner in his cross examination that he was having illicit relations with his Bhabhi Usha. When respondent No.1 had herself appeared in the witness box, she did not utter even a single line in her examination in chief that her husband was having any illicit relations with his Bhabhi or that he was impotent. It is only in the cross examination that the counsel for the petitioner has put to her the contents of the written statement and she admitted that she made these allegations in the written statement.GURBAX SINGH 2015.03.16 11:43 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-M-279-2006(O&M) 9
The father of respondent No.1 has also appeared in the witness box as RW2. He also did not make any such allegations against the petitioner.
The allegations on the face of it lack credibility. On the one hand, it is alleged that the petitioner was having an illicit relation with his Bhabhi and on the other hand, it is alleged that the petitioner is impotent. The said allegations are contradictory. Moreover, admittedly, the Bhabhi of petitioner has three children and her husband is still alive. Admittedly, these allegations have been made for the first time when the written statement was filed by respondent No.1. There is no such evidence and there is not even a suggestion that respondent No.1 had ever complained to any authority or any family member that her husband was having an illicit relation with his bhabhi. It is thus clear from the aforesaid discussion that the said allegations made by respondent No.1 against her husband are false."
10. The findings have been rightly recorded by the trial court taking into consideration the entire evidence on record. Learned counsel for the appellant has not been able to show any illegality or perversity in the said findings which may warrant interference by this Court. Consequently, finding no merit in the appeal, the same is hereby dismissed.
(Ajay Kumar Mittal)
Judge
February 18, 2015 (Sneh Prashar)
gs' Judge
GURBAX SINGH
2015.03.16 11:43
I attest to the accuracy and
integrity of this document
High Court Chandigarh