Punjab-Haryana High Court
Pardeep vs Smt. Beena Devi on 10 December, 2013
Author: Jaspal Singh
Bench: Ajay Kumar Mittal, Jaspal Singh
FAO No.6031 of 2013 (O&M) -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
FAO No.6031 of 2013 (O&M)
Date of Decision:10.12.2013
Pardeep ... Appellant
Versus
Smt. Beena Devi ... Respondent
CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. Lokesh Sinhal, Advocate for the appellant.
1. To be referred to the reporters or not? yes
2. Whether the judgment should be reported in the digest?
Jaspal Singh, J.
1. This appeal has been filed by the appellant-husband against judgment and decree dated September 2, 2013 passed by the learned District Judge, Family Court, Gurgaon, whereby his petition under Section 13 of the Hindu Marriage Act 1955 (for short "the Act") as amended upto date, for dissolution of marriage by way of a decree of divorce, was dismissed.
2. Shortly put, the averments contained in the petition are that the marriage of the appellant-husband was solemnized with the respondent-wife on March 8, 1999 according to Hindu rites and ceremonies at village Ghumanhera, Najafgarh, New Delhi. After the marriage, they lived together as husband and wife and out of their wedlock, a son namely Dhoom was born in the year 2005, who has been living with the respondent. It has been alleged that after some months of the marriage, the respondent started misbehaving with the appellant-husband as well as his family members and used to pick up quarrels on trivial matters and even she did not use to Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -2- prepare meals. She used to leave for her parental home without informing him. Even at the instance of his in-laws, the appellant-husband separated from his family members but despite that there was no change in the behaviour of the respondent. Her brothers were called by him to persuade her to mend her ways but with no fruitful result. Once the respondent was found in the company of some unknown person and she alongwith that person was nabbed and produced before the police at Police Station Sector- 4, Gurgaon where her brother namely Rohtash was also called. He took her sister (respondent) along to his village. After the said incident, some persons from the side of the respondent while approaching the appellant felt sorry and the respondent was brought back to matrimonial home. However, after about 15 days, she again left for her parental home. In the year 2010, the appellant-husband fell ill but nobody from the side of the respondent came to him to enquire about his health. Even on the day of institution of divorce petition, he rang-up the respondent and persuaded her to join his company but she refused to accede his request. Even in the mediation proceedings, she was advised to live with him in the matrimonial home for a period of one month but during that period, she neither talked to him nor allowed him to talk to the child. They have been living separately for the last about five years. Since, there was no likelihood of living together, the husband-appellant preferred the petition seeking dissolution of marriage.
3. In response to the notice of the divorce petition issued by the learned lower Court, the respondent-wife appeared and resisted the divorce petition. She filed the written statement controverting all the averments contained in the petition and submitted that her parents had given sufficient dowry articles besides ` 51,000/- in cash and a motorcycle but the appellant Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -3- and his family members were not satisfied with the dowry articles brought by her and they subjected her to cruelty in connection with demand of dowry. She had done all house hold chores at her matrimonial home. Her behaviour towards the appellant and his family members was good. It has also been submitted that false allegation has been levelled against her that she was found in the company of some unknown person or produced before the police. She stayed with her husband and discharged her matrimonial obligations. She is still ready to go to her matrimonial home with the appellant from the court premises itself. Till date, she has not filed any case against the appellant and his family members because she wants to save her marriage. She was turned out of her matrimonial home in the year 2007 when she was in a family way. Since then, she has been residing with her mother at her parental home. The appellant or any other member of his family did not visit to see her child. He did not pay any amount towards the maintenance either to her or her minor son, who are otherwise, unable to maintain themselves. She, accordingly, prayed for dismissal of the divorce petition.
4. On going through the pleadings of the parties, following issues were culled out in order to adjudicate upon the matter in controversy:
"1. Whether the petitioner is entitled for a decree of divorce on the grounds mentioned in the petition, as alleged? OPP
2. Relief."
5. Both the parties were afforded ample opportunity by the learned lower Court to adduce and conclude their evidence in support of their respective pleadings and they led oral as well as documentary evidence. In order to substantiate his case, the petitioner himself stepped into the witness box as PW-1 and reiterated the averments contained in the Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -4- petition. On the other hand, respondent herself stepped into the witness box as RW-1 and controverted the averments contained in the petition.
6. After hearing the learned counsel for the parties and appraisal of the evidence adduced by the parties in support of their respective pleadings, issue No.1 was decided in favour of the respondent-wife and against the petitioner-husband holding that the ground of cruelty as well as desertion stood unproved. It was observed that the appellant has failed to prove on record that he was treated with cruelty by the respondent or he was deserted by her. Resultantly, the petition was dismissed.
7. Feeling disheartened, the appellant-husband preferred the instant appeal which came up for hearing today.
8. We have heard the learned counsel for the appellant at length and have perused the case file minutely.
9. While assailing the findings returned by the learned lower Court with regard to cruelty as well as the impugned judgment and decree dated September 2, 2013, it has been vehemently argued by the learned counsel for the appellant that the misinterpretation and mis-appreciation of the evidence brought on record by the appellant-petitioner has resulted into miscarriage of justice. The marriage of the parties was solemnized on March 8, 1999 according to Hindu rites and ceremonies and one son was born out of their wedlock. In fact, after the marriage, the conduct and behaviour of the respondent-wife was in-different and abnormal. She frequently used to leave for her parental home without informing the appellant. Even she used to pick-up quarrels on trivial issues not only with her husband but also with other family members. Even she did not cook meals and serve the appellant. The in-laws of the appellant-petitioner used to interfere and instigate the Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -5- respondent-wife which also caused lot of harassment to the appellant. She was also found in the company of some unknown person and produced before the police. Due to such acts of the respondent-wife, the appellant- petitioner suffered a great humiliation, mental and physical torture. So, all the circumstances coupled with each other constitute cruelty. As such, the findings returned by the learned lower Court are absolutely against the evidence available on file and the settled cannons of law and the same are not sustainable. The impugned judgment and decree is liable to be set aside by way of acceptance of the instant appeal and the divorce petition deserves to be accepted.
10. We have given an anxious thought to the aforesaid submissions made by the learned counsel for the appellant besides going through the impugned judgment.
11. Under Section 13(1)(i-a) of the Act, on a petition preferred either by the husband or the wife, the marriage could be dissolved by a decree of divorce on the ground that the either party has, after the solemnization of the marriage, treated the petitioner with cruelty. "Cruelty" is not defined in the Act. The instances of cruelty depend upon case to case and no straight jacket formula can be laid.
12. In case of "Samar Ghosh v. Jaya Ghosh; 2007(4) SCC 511", Hon'ble the Supreme Court has observed that the prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking certain factors in consideration. Para 70 is relevant which is reproduced and it runs as under:
"70. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instance of human behaviour which may be relevant in dealing with the Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -6- 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.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spuse 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, sustained and weighty.
(vii) Sustained reprehensible conduct, studied neglect in difference 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 thant 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 Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -7- 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 and longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent of knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent of 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. "Applying the said principles to the facts of the case, were are of the opinion that the respondent has not made out a case for both mental and physical cruelty."
13. Now in the light of the aforesaid observations, it is to be seen whether the appellant-petitioner is successful to make out a case or Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -8- circumstances which constitute cruelty. The circumstances or the allegations levelled by the appellant-petitioner have been reflected in para 09 of this judgment and it would be of no use to reproduce the same. There are no serious or specific allegations which are otherwise vague, indefinite and general. No date, month or year of any of the alleged incidents has been unfolded by the appellant-petitioner either in the pleadings or in the statement. Though, the appellant-petitioner has levelled allegation that the respondent-wife was found in the company of some unknown person but he has not brought on record any evidence to prove this fact. Such an unfounded and false allegation otherwise amounts to cruelty qua respondent-wife. Here, it would be pertinent to mention that appellant- petitioner has appeared in the witness box as PW-1 in support of his case and there is no other oral or documentary evidence to corroborate his version. The statement of the appellant-petitioner as PW-1 can only be termed to be self-serving one which otherwise stands rebutted by the statement of the respondent-wife who appeared in the witness box as RW-1. Though, it has been pleaded by the appellant that the respondent has deserted him for the last about five years prior to the filing of the divorce petition but to the utter surprise, he did not opt to file any petition seeking Restitution of Conjugal Rights under Section 9 of the Act. Not only this, there is an admission on the part of the appellant that he has not paid even a single penny towards maintenance either to his wife or to his minor son except some amount paid during the pendency of the divorce petition as maintenance and litigation expenses. Rather from the evidence, it is clear that the respondent-wife is willing to reside with the appellant-petitioner and to discharge the matrimonial obligations but it was the appellant- Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -9- petitioner who refused to it. Acts attributed to the respondent-wife by the appellant-petitioner which are otherwise not proved can only be termed to be normal wear and tear of marriage and do not amount to cruelty. It is well settled that mere trivial irritations, quarrels, lack of affection, frequent rudeness of language and petulance of manner do not amount to cruelty and cannot be made basis for dissolution of marriage.
14. In this context, the judgment of Madras High Court in the case of R. Sudha v. V. Senthil; 2010 (3) MLJ 91 can be referred to. Similar observation was made in cases of Bhavna Sharma v. Devendra Kumar Sharma; 2008(1) R.C.R. (Civil) 893; Chaitali Dey v. Shri Badal Kumar Dey; 2005 AIR (Jharkhand) 83 and Arunjyoti Dutta v. Rupali Buragohain; 2012(7) R.C.R. (Civil) 2671.
15. Apparently from the evidence available on record, it appears that there were some quarrels between the appellant-husband and respondent-wife coupled with some allegations and counter allegations between themselves which are not more than normal wear and tear of family life and are not sufficient to grant a decree of divorce. The learned lower Court has rightly concluded that the appellant-petitioner has failed to prove that he was treated with cruelty by the respondent wife.
16. In the light of the above discussion, we find no ground for disagreeing with the decision of the learned lower Court. Accordingly, the judgment and decree of the learned lower Court dated September 2, 2013 is affirmed and the appeal is dismissed but with no order as to costs. C.M. No.24783-CII of 2013 This application moved by the applicant-appellant under Section 5 of the Limitation Act for condonation of delay in filing the appeal Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.6031 of 2013 (O&M) -10- against judgment and decree dated September 2, 2013 passed by the learned District Judge, Family Court, Gurgaon, is left open.
(JASPAL SINGH) JUDGE (AJAY KUMAR MITTAL) JUDGE 10.12.2013 rajeev Thakral Rajeev 2014.01.14 11:38 I attest to the accuracy and integrity of this document High Court Chandigarh