Punjab-Haryana High Court
Amarjit Kaur vs Gursewak Singh on 18 February, 2008
Equivalent citations: (2008)151PLR102
Author: Ranjit Singh
Bench: Ranjit Singh
JUDGMENT Ranjit Singh, J.
1. This appeal is by wife, Amarjit Kaur, against the decree of divorce granted to her husband Gursewak Singh leading to dissolution of marriage between the parties. Respondent-husband had sought divorce on the ground of cruelty, which was accepted by the Additional District Judge, Muktsar. The facts would show that this was the marriage between the couple, who are closely related to each other, but still could not make the marriage to survive. Respondent-husband is serving in Punjab Police and is allegedly leading adulterous life, which seems to have strained this marriage leading to this divorce. In a way the husband seems to be taking advantage of his own wrong. This fact apparently is not properly appreciated by the matrimonial Court.
2. The facts in brief are that this marriage was solemnized on 22.2.1998 by way of Anandkaraj at village Sarawan Bodla, tehsil Malout, District Muktsar. A male child was born out of this wedlock. The couple lived together as husband and wife till December 1998.
3. As per the respondent-husband he learnt that the appellant-wife is greedy lady having hot temper. She was working as a teacher in Aanganwari at village Sarawan Bodla. It is alleged that appellant-wife used to express that she did not like the husband and his parents. She made a demand for transfer of immovable property in her name and indulged in abusing the husband and his parents. Allegation further is that she did not look after the affairs of the family. These aspects were brought to the notice of the family of the appellant-wife but this did not have any effect. Even panchayat was assembled by father of the respondent-husband, which had gone to the parental house of the appellant-wife several times with a request that the appellant-wife be asked to behave properly, but still this did not lead to any positive outcome. On intervention of the respectables of the village and keeping in view the other circumstances, share out of domestic goods and all dowry articles were given to the appellant- wife. Thereafter, the appellant-wife had agreed not to unnecessarily harass the respondent-husband or to falsely implicate him or his family members. She, however, went back on her promise and registered a false FIR on 21.7.2001 under Section 406/498-A IPC at Police Station, Malout against the family of the respondent-husband. This, according to the respondent-husband, was a cause of great mental pain to him. Subsequently this FIR was got cancelled and the cancellation report was accepted by Sub Divisional Judicial Magistrate on 10.4.2002. It is then averred that the appellant-wife deserted the respondent-husband without sufficient cause and had not returned for more than two years despite several efforts made for reconciliation. The act and conduct of the appellant-wife had thus, caused cruelty and mental sufferings to the husband and his family, says the husband, and hence he filed divorce petition seeking dissolution of marriage on the grounds of cruelty and desertion.
4. The appellant-wife appeared in response to the notice and filed a written statement. She raised a preliminary objection urging that the petition was liable to be dismissed as cruelty and desertion were not on her part. It is further pleaded that Sections 5, 9, 10 and 13 of the Hindu Marriage Act are protected under Articles 25 of the Constitution of India. Plea further is that the divorce petition was filed with mala fide intention and the respondent-husband has concealed material facts that he is living in adultery and is having relationship with one Veerpal Kaur, daughter of Natha Singh who is is also employed in Punjab Police. It is further pleaded that the divorce petition is a counter blast to the matrimonial litigation pending between the parties and the petition is neither properly verified nor attested which is otherwise highly vague Apart from the grounds of cruelty and desertion, the respondent-husband has pleaded that the marriage between the couple is within prohibited degree of relationship as the appellant- wife is a daughter of his real aunt (Bua) which would show that this marriage is not legal in the eyes of law. This fact, of course, has been denied by the appellant-wife by stating that there is no spinda relationship between the couple and that they had lived as husband and wife after January 2000. It is further pleaded that the FIR dated 21.7.2001 was wrongly cancelled mainly because of the influence of the respondent-husband, who is a police official serving in the police department. It is stressed that respondent-husband is living an adulterous life and should not be allowed to take advantage of his own wrong.
5. On the basis of the pleadings, the trial proceeded on the following issues:
1. Whether the respondent has treated the petitioner with cruelty? OPP.
2. Whether the respondent has deserted the petitioner without reasonable cause? OPP.
3. Whether the respondent is living in adultery as alleged. If so, its effect? OPR.
4. Relief.
6. Respective sides, thereafter, led evidence in support of their pleas. The trial Court, after appreciating the evidence, came to conclude that there is no chance of couple living together as husband and wife as they are staying separately for the last more than five years and hence thought it better to dissolve the marriage. The trial Court further held that wife has treated the husband with cruelty and has deserted him for the last more than two years and accordingly granted a decree of divorce to the respondent-husband.
7. Mr. J.S. Brar, counsel for the appellant, submits that the allegations of cruelty and desertion are totally vague and are not supported by any reliable evidence or cogent evidence. He would thus attack the finding of the Court being perverse and needing interference in the present appeal. Mr.R.K.Girdhar, appearing on behalf of the respondent husband, however, says that the appellant had lodged false FIR against the husband and his family which was subsequently cancelled and this fact is enough to prove mental cruelty. He also says that the appellant-wife had deserted the husband for the last more than two years and hence the trial Court has rightly dissolved this marriage which otherwise had become unworkable.
8. From the rival contention raised by the parties, it would clearly emerge that main emphasis of the respondent-husband, while seeking divorce, is due to the FIR which was lodged by the appellant-wife. Stating this to be a false allegation, it is pleaded that this resulted in a mental cruelty to the respondent-husband. The separation between the couple is highlighted to say that wife has deserted the husband and hence it is stated that the ground of desertion would also stand established.
9. In support of his case respondent-husband has tendered his evidence by way of an affidavit while appearing as PW-8. The nature of the allegations are to be seen and appreciated from the contents of the affidavit filed by the respondent-husband. After stating that the marriage was performed in a very simple way, the husband has deposed that:
respondent was very short tempered and was of greedy nature. She is serving at Anganwari Department at Village Sarawan Bodla when she returned home she call me and told me that I don't like you and your parents and always demanded immovable property from the beginning to be transfer in her name and abuse me and my parents by using rough language nor she did look after the other affairs of the family which caused great mental pain to me.
10. The respondent-husband then went on to depose that this fact was brought to the notice of the family of the appellant-wife but all in vain. Mention then is made to the Panchayat that was held and it is then stated that one compromise was got effected between husband and wife in the presence of the respectables of the village and relatives of both the sides in the year 1999. In this compromise it was settled between the parties that the father of the husband would transfer the land measuring three acres to the name of wife and two acres on the name of minor son. It is also disclosed that the father executed the sale deed on 18.1.2000 and on 20.1.2000 transferring the land measuring five acres accordingly to the wife and minor son. As per the deposition, the wife had taken share in the house but still left the matrimonial home in January 2000. The respondent-husband has then mentioned about lodging of FIR on 2001 despite the compromise where the appellant-wife had agreed not to torture or unnecessarily harass the respondent-husband. As per the respondent-husband, police used to raid the house which was a cause of mental tension and agony for him and his parents. It is claimed that this lowered their reputation in the locality. This FIR, as per the respondent-husband, was found to be false in investigation leading to submission of the cancellation report. Still the appellant-wife had filed criminal complaint against the respondent- husband, which was pending at the time of submitting the affidavit. Reference is also made to a case filed under Section 125 Cr.P.C. to say that this is done despite having taken the share in the property and in the house etc. as already noticed. In response to questions in cross-examination, the respondent-husband denied that he has contracted a second marriage with Veerpal Kaur or he has a child out of this wedlock. It was suggested to the husband that he has started living separately on his own which he denied. Thus on the basis of this evidence, the Court has held that the husband was able to establish allegations of cruelty and desertion. Rest of the witnesses produced only gave corroborative evidence in regard to the transfer of property or lodging of FIR etc. and have thus, given no independent account of any event to prove cruelty or desertion.
11. It is thus to be seen, if from the evidence as noted, the allegations of cruelty and desertion are made out or not. The respondent-husband has alleged cruelty only on the basis of FIR that was registered. Other averments in regard to cruelty are utterly vague. The version of the respondent-husband is reproduced above.
12. This version is totally vague and is lacking in details. It does not contain any details of incidents of event which can reveal any cruelty. The appellant-wife is stated to be of a very short tempered and greedy nature, without specifying any incident to indicate the behaviour of the wife or the tempers which she would have shown.
13. The wife being of greedy nature is simply averred without specifying it in any manner. Perhaps this allegation, if it may be called so, is sought to be supported by the evidence of transfer of land on her name. Transfer of land on the name of son of the husband and on wife's name was by way of compromise. How could this be a sign of being greedy? It can be noticed that the cruelty is rightly not defined and is left to be determined having regard to the facts and circumstances of each case. Being a greedy in nature or of being a short tempered in itself would not mean that the wife had treated the respondent-husband with cruelty. The respondent-husband is under legal obligation to prove the instances, where the wife had behaved or misbehaved in any particular manner due to fits of her ill temper, for the Court to appreciate the same to see if it would amount to cruelty or not. It is a too vague averment to say that a wife was of short tempered and so it would amount to cruelty. The instances, if any in this regard, again are vaguely worded by the respondent- husband by stating that the wife used to say that she did not like him and his parents and demanded immovable property. Would such vague allegation, if it is so, be enough to say that the wife has treated the husband with cruelty? These vague assertions, in my view, would certainly fall much short of requirement to prove the allegation of cruelty, which, as noticed is not been defined in the statute. Reference can be made to the cases of Dr.N.G.Dastane v. Mrs. S.Dastane , Shoba Rani v. Madhukar Reddy , Savitri Pandey v. Prem Chandra Pandey and G.V.N. Kameshwara Rao v. G.T. Jabilli , in this regard, to notice that the cruelty is required to be appreciated by the Court from the facts proved on record and the allegation made. There is no date, time or year mentioned when the appellant-wife has used the words alleged to prove cruelty saying that she used to express that she did not like the husband or his family which is too vague to prove cruelty. Mere transfer of some land to her name and to the name of her son would not mean that she is a greedy person. This was on the basis of a compromise. To be greedy would not in itself lead to allegation of treatment of cruelty. Except for transfer of land, nothing is shown to allege the greedy nature of wife.
14. During the course of arguments, it is revealed that subsequently the family of the respondent-husband has challenged the sale deeds, transferring this land to the name of the appellant wife. The reasons for which this compromise or demand apparently had come perhaps could be related to the allegation that the husband is living with another female and obviously the appellant- wife would have sought some security for her and her son. The aspect of desertion has again been assumed by the matrimonial Court from a simple aspect of deposition by the husband that the wife had left the matrimonial home in January 2000. This is noticed to say that the couple is living separately for more than five years.
15. This separation has been counted to the date of decision, whereas the petition was filed on 27.4.2002. By then the separation was hardly for a period of two years. The wife, in fact, was willing to go back with the husband, even during the course of the hearing of the present appeal. When asked if she would be willing to stay with the husband who, according to her, was living with other female, she expressed her willingness to do so. Efforts were then made to persuade the husband to take his wife but he was adamant and refused to accept the wife despite persuasion by his counsel. This would be enough to show the hollow nature of his claim and the allegation that the wife had deserted him. Obviously the reluctance shown by the respondent-husband may be an indication of the allegations that the wife has made against him for having relations with another female. He is allegedly having a child out of this alliance.
16. The conduct of the husband apparently is not found above board. The Learned Counsel representing the husband has highlighted the aspect of lodging FIR by the appellant-wife and the same having been cancelled being false. In fact, this is advanced as the main reason in support of the plea of cruelty. Merely lodging of FIR or even cancellation thereof subsequently would not mean that allegations of cruelty are made out. The respondent-husband has simply made a mention to the lodging of FIR and cancellation thereof. He has not otherwise urged that he suffered emotionally inducing fear in him or members of his family. No doubt the FIR was subsequently cancelled but this is explained by the appellant-wife by pointing out that respondent-husband is a police official and, as such, had been helped by the police. From a mere fact of recording FIR, it is not possible to draw an inference that the respondent- husband was subjected to mental cruelty.this Court in the case of Rajesh Kumar Madan v. Mrs.Mamta @ Veena 2005 (2) CCC, 433, noticed that it is not shown as to how mere registration of criminal proceedings would have caused mental or physical cruelty.
17. This was also a case where it was baldly asserting that the registration of FIR itself would amount to cruelty. Nothing was shown as to how registration of the FIR would amount to cruelty. In the instant case also the respondent-husband has not given any evidence to show how he suffered emotionally inducing any fear in him on account of behaviour or behavioural pattern of the wife which could lead to an inference that he was subjected to mental cruelty. In Rajesh Kumar's case (Supra), it is also observed that the conduct of respondent has to be shown to be of such a character so as to cause danger to the life, limb or health ( physical or mental) or to give reasonable apprehension of such danger to the appellant. No such indication is either available or has been so urged. The Learned Counsel for the appellant has also referred to the case of Radha Rani v. Har Bhagwan 2004 (3) CCC 544, where this Court has observed as under:
The learned trial Court has also returned a finding that it is the wife who has deserted the matrimonial home. It has been found that the criminal cases were initiated by the wife vindicating her rights through the process of the courts and therefore, such criminal cases can not be called an acts of cruelty. Once finding on issue No. 1 has been reversed that the wife has not treated the husband with cruelty the husband is not entitled to seek dissolution of marriage on the ground of desertion. The evidence on record suggests that the wife was given severe beatings and was turned out of matrimonial home. She has stated that she is ready and willing to reside with the husband. Therefore, there was no animus deserandi on the part of the wife but it is the husband, who has created such circumstances so as to force the wife to leave the matrimonial home. Thus, the finding on issue No. 2 is also not tenable and are hereby reversed.
18. Here in the instant case also, the wife has stated that she is ready and willing to reside with the husband but he has refused to accept her. There is thus no animus deserandi on the part of the wife to desert the husband. It is thus not possible to hold that the husband has succeeded in proving the grounds of cruelty or desertion.
19. Without much justification the trial Court has observed that there is no chance of the couple living together as husband and wife and it is better that this marriage be dissolved. In a way the trial Court has termed this marriage to be irretrievably broken down. The trial Court was required to inform itself that such a ground is not available under the Act for dissolving a marriage. The Court was to appreciate that it is only grounds of cruelty and desertion which was to be adjudicated by it while deciding the petition instead of observing that this marriage has not worked or is not likely to work. This line of reasoning by the Court can not be appreciated, and can not be sustained to uphold the decree of divorce granted in this case. Having regard to the totality of the facts and circumstances, I am of the considered opinion that the respondent- husband has failed to establish the allegation of cruelty or desertion on the part of wife which could have earned the husband a decree of divorce as granted by the Court. The judgment impugned in appeal, as such, can not be sustained and the same is set aside. The appeal is accordingly allowed.