Punjab-Haryana High Court
Shyam Lata vs Suresh Kumar on 19 December, 1985
Equivalent citations: AIR1986P&H383, AIR 1986 PUNJAB AND HARYANA 383
Author: M.M. Punchhi
Bench: M.M. Punchhi
JUDGMENT
1. I had occasion to decide F.A.O. No. 20-M of 1984 on May 22, 1984 between the parties, remanding the case to the Additional District Judge, Bhiwani, for decision on a narrow point. Since the decision has been made by the learned Additional District Judge, Bhiwani, against the wife, she is back again in appeal.
2. The husband-respondent filed a petition for divorce on 30-3-1983 on grounds of cruelty, thereby alleging in the petition four instances. Earlier to the filing of that divorce petition, the husband had sought for a similar relief on the basis of cruelty based on the said four instances but, later, withdrew his petition on 7-1-1983 and got it dismissed as withdrawn without seeking permission to file a fresh petition on the same cause of action. Later, after present petition for divorce was filed on 30-3-1983, another instance of cruelty allegedly became available to the husband. The learned trial Judge did not permit the husband to maintain his petition on the four grounds of cruelty afore-referred but allowed it to be maintained on the newly acquired fifth ground. That ground is mentioned at serial No. (e) in para 1 of the judgment under appeal;
"(e) That the respondent moved an application on 10-8-1982 before the Senior Superintendent of Policy, Bhiwani, levelling false allegations against the petitioners, his parents, brothers and brothers' wives, who were arrested by the police on 12-8-1982 and prosecuted under Ss. 107/151 of the Criminal Procedure Code. Ultimately, the complaint was found baseless and dismissed on 4-2-1983 for want of prosecution. Such act of the respondent has lowered the petitioners in the eyes of his friends and public in general and the petitioners has suffered loss in prestige."
3. The Executive Magistrate had dropped the proceedings under Ss. 107/151, Code of Criminal Procedure, by observing as follows:--
"Respondents 1 to 3 are present. Today this calendar was put up. The witnesses have been summoned twice but they have not put in appearance. Therefore, treating the calendar to be baseless, it is dismissed and the accused are discharged. After necessary action, the file be consigned to the record.
Sd/-
Executive Magistrate, Bhiwani."
4. The learned trial Judge, without framing proper issue in that regard about the falsity or otherwise of the complaint of the wife, ventured to decide against her by observing that she had not cared to substantiate the allegations by any evidence whatsoever. When deciding F.A.O. No. 22M of 1984 and remanding the case, I had directed the learned trial Judge to frame a proper and specific issue with regard to the falsity of the complaint made by the wife and then let the parties lead evidence thereon, whereafter the matter was to be decided afresh in accordance with law.
5. The learned trial Judge then framed the following issue:--
"Whether the complaint date 10-8-1982 made by the respondent-wife under S. 107, Criminal Procedure Code, is false and the allegations made therein amount to cruelty? O.P.P."
6. The learned trial judge summarized the allegations in the complaint as follows:--
"(i) That she has been harassed and ill treated on account of not bringing sufficient dowry. The husband and his family members have been pressurising her to bring television and scooter.
(ii) That they had been mercilessly beating Sushma, the daughter born out of the wedlock.
(iii) That on 26-5-1982 kerosene oil was put on her and attempt was made to burn her alive. The matter was reported to the police and the husband and his family members begged pardon for their actions in the police station and assured not to harass her.
(iv) That Suresh Kumar petitioners is under the influence of other women.
(v) That on 10-8-1982 at about 6.00 A.M. Raj Dulari, wife of Rajinder Kumar, started washing dirty duster when Shyam Lata was taking bath and, on her protest, Raj Dulari abused her saying that they would not allow her to live peacefully and all the respondent named in the complaint, i.e., the husband and his family members, gave beating to her and her husband gave fists and slaps to her. On her alarm, persons living in the locality came to her rescue."
7. The husband and his father stepped into the witness-box as P.W. 1 and P.W. 2 respectively and maintained that the allegations in the complaint were false. The husband further maintained that he had been humiliated and had lost mental balance on account of institution of proceedings under Ss. 107/151, Code of Criminal Procedure, by the wife-respondent and that he had also suffered lot of agony and mental torture on account of humiliation of his relatives. His father Har Chand Rai P.W. 2 also maintained that he had suffered mental torture on account of the false complaint filed by the wife. As against this evidence was the statement of Shyam Lata, the wife, as R.W. 1, who maintained that she had correctly levelled the allegations in the complaint dated 10-8-1982 because that was the culmination of a long series of cruel treatment she had been receiving from her husband and his relatives. She further maintained that, on her application dated 10-8-1982, made to the Senior Superintendent of Police, a Thanedar had come to enquire into the matter and visited their house and that, even in the presence of the Thanedar, her father-in-law and her husband's brother had abused her and were ready to attack her. She further maintained that the Thanedar had sent up her husband and others under Ss 107/151, Code of Criminal Procedure. S.I. Chandgi Ram R.W. 6 was the Thanedar, then posted on 10-8-1982 at the Police Station, Bhiwani, where the complaint of the wife had been received. According to Chandgi Ram, on receiving the complaint, he went to the spot and made enquiries and found the allegations to be correct. He further says that he tried to persuade Har Chand Rai and others but they did not pay any heed and rather abused Shyam Lata, the wife, and remained aggressive. Lastly, he mentioned that, finding apprehension of breach of peace, he arrested Har Chand Rai, Suresh Kumar and Rajinder Kumar under Ss. 107/151, Code of Criminal Procedure, and submitted a calendar against these persons and their women-folk for their being bound down. When cross-examined, he stated that he did not investigate any other allegation except on the point whether Shyam Lata had danger to her life at the hands of Har Chand Rai etc. and that he did not enquire into the other matters whether Har Chand Rai etc. had tried to burn Shyam Lata in the past or not, as he had no concern with that, Shyam Lata had, of course, produced other evidence of R.W. 2 to R.W.4 to support the allegations made in the complaint. The learned trial Judge, when marshalling such evidence, took one by one the incidents summarized above and came to the conclusion that the first and second allegations were not mentioned by the wife in her testimony in Court, the third incident she had failed to establish because Jagdish R.W. 4, who support her, was a convict and hence his statement unbelievable; the fourth allegation cast aspersions on the character of the husband and remained unsubstantiated and, lastly, the incident about 10-8-1982 was unbelievable because of Jagdish R.W. 4 supported it as also S.I. Chandgi Ram not having looked into the other allegations made in the complaint. Thus, it was concluded that the stand of S.I. Chandgi Ram R.W. 6 that there was apprehension of breach of peace at the hands of Suresh Kumar, was not believable. As a result of this conclusion, it was held that the security proceedings in which Suresh Kumar etc. were arrested, were launched by the wife on false and reckless allegations and sequelly finding the issue framed having gone in favour of the husband, he granted a decree for divorce which is the subject-matter of appeal here.
8. I have heard the learned counsel for the parties and have gone through the evidence led in the case. While disposing of F.A.O. No. 22-M of 1984, I had observed:--
"If the allegations of the wife were right, that she apprehended danger from her husband and the members of his family; she had two choices, either to submit and keep quiet or voice her grievance before some authorities. And, in the latter case, for one reason or the other, if the allegations made by her remained unsubstantiated, then it did not automatically mean that her version was untrue. There had to be something more to it before such an instance could be cashed upon as an act of cruelty. Thus, I am of the considered view that the matter had to be thrashed in a proper manner, necessitation now a remand."
The learned trial Judge seems to have missed the point. The fact remains that the wife had, vide application dated 10-8-1982, reported to the police instances apprehending danger to her life from her husband and the members of his family on account of their past conduct revealed in the instances mentioned in the application. This fact is not in dispute that an application was made. Further, this fact is also not in dispute that S.I. Chandgi Ram, R.W. 6 moved into the matter and it is at his instance that a calendar was filed. According to S.I. Chandgi Ram R.W. 6, he had made oral enquiries in the presence of the parties and found the allegations in the application to be correct and that the husband, his father and relatives, instead of seeing reason, had become aggressive towards the wife, which necessitated him to institute the calendar against them under Ss. 107/151, Criminal Procedure Code. It is the behaviour of the parties at the spot which prompted S.I. Chandgi Ram to send up the husband and his relatives under Ss. 107/151, Criminal Procedure Code, and not just the allegations made in the complaint. It is a different matter that the Executive Magistrate, Bhiwani, dropped the proceedings on 4-2-1983 but nowhere did he observe that the complaint was baseless. All what was observed was that the calendar was baseless. The allegations in the complaint were thus never in the forefront. S.I. Chandgi Ram R.W. 6 could have been, in no event, disbelieved when he said that during enquiry he had apprehended that there would be breach of peace in view of the postures of the husband and his relatives. His statement in that regard I find believable and his action for initiating proceedings under Ss. 107/151, Criminal Procedure Code, proper in the circumstances. When his statement is believed, it goes a long way to corroborate the statement of the wife that she had apprehended danger at the hands of her husband and his relatives. The mere fact that the husband and his relatives had to face the enquiry under Ss. 107/151, Criminal Procedure Code, and that the proceedings were dropped by the learned Executive Magistrate, per se does not establish that the prosecution was false or that, during the institution thereof, the husband had been humiliated or lost his mental balance or suffered agony or mental torture. The claim of the husband to have divorce on these premises is thus unsubstantiated.
9. Such a matter, as the present one, has indeed to be viewed on broad on broad probabilities when, in every married life where parties fall apart, they voice loud their grievances, stating one thing at one time and omitting to mention it at another. Everything what a spouse says against another, if remained unproved, is not always wrong and, if wrong, not always deliberately false, and if false not necessarily cruel, and if cruel, not necessarily of such a magnitude so as to come within the ambit of 'cruelty' on the strength of which, divorce can be granted. Legal cruelty, in the context, is far above the cruelty understood in the ordinary sense. See in this connection Raj Kumar Manocha v. Smt Anskuka Manocha, 1983 Cur LJ (Civ & Cri) 134. The alleged cruelty, in the instant case, does not even come up to the standards as laid down in the aforesaid precedent. It is not of such a grave nature as to entail the consequences of causing danger to life, limb, health or to give rise to a reasonable apprehension of such danger. Thus, from all angles, the husband has failed to establish legal cruelty in order to have a decree for divorce. For the view afore-expressed, there is no need to discuss the judicial precedent cited by learned counsel, for they are hardly of any help.
10. For the foregoing reasons, this appeal is allowed, the judgment and decree of the trial judge is set aside and the husband's petition for divorce is dismissed but without any order as to costs.
11. Appeal allowed.