IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.211-M of 2003
Date of decision: 27.08.2009
Jasbir Kaur ..Appellant
Kuljit Singh …Respondent
CORAM: HON’BLE MR. JUSTICE VINOD K. SHARMA
Mr.Arun Jain, Sr. Advocate,with Mr.S.S.Dinarpur, Advocate,for the appellant.
Mr.G.S.Bhatia, Advocate,for the respondent.
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in Digest?
VINOD K. SHARMA,J.
Appellant/wife is in appeal against the judgment and decree dated 5.8.2003 passed by the learned Additional District Judge, Patiala allowing the petition filed by the respondent/husband under section 13 of the Hindu Marriage Act, 1955 (for short the Act).
Facts leading to the filing of the present appeal are that the parties were married as per Sikh rites at Chandigarh on 3.4.1990. After the marriage the parties resided together at Patiala with some interval till 10.2.1992 and there were cordial relations between the parties. After 10.2.1992 appellant/wife never came to live with the respondent and deserted the appellant for more than 4 years immediately before the filing of the petition. No child was born from this wedlock. The respondent/husband was working as Sub Divisional Officer in the Punjab State Electricity Board and was posted at Patiala at the time of filing of the petition, whereas the appellant/wife joined as clerk-cum- Cashier on 2.5.1990 in the State Bank of India, Branch Office, Mohali. The appellant used to travel from Patiala to Mohali till December, 1990 in order to attend her office. Thereafter the appellant started visiting Patiala at the end of every week till the date of desertion i.e. 10.02.1992. The case of the respondent further was that he had requested the appellant either to get herself transferred from Mohali to Patiala or take leave for longer period or in the alternative resign, as the appellant had sufficient means to lead a happy married life. Request of the respondent was declined and she continued with her job against the wishes of the appellant. This was said to be cruelty towards the appellant. It was also pleaded case of the respondent that in order to keep matrimonial tie alive he tried to get himself transferred to Chandigarh and submitted an application to his department but his request was declined. In spite of rejection of his request of transfer the appellant continued with the job against the wishes of the appellant. It was claimed that this act of appellant amounted to cruelty and further that the appellant was guilty of desertion. It was also pleaded case of the respondent/husband that even during her stay with the respondent, her attitude towards the respondent was cruel as she used to maltreat and insult the respondent in the presence of his friends and relatives. She used to taunt that the respondent was interested in somebody else and was not interested to keep her. These allegations were said to be false and frivolous. It was also pleaded case that on one occasion the appellant remarked that as respondent did not tie his beard he looked like an owl in the presence of relations and friends. The respondent further alleged that when his friends visited his house during her stay, she never offered even water what to talk of tea and sweets and would start quarreling and calling bad names to the respondent in the presence of relations and friends. The marriage was said to be simple in which no dowry was given by the parents of the appellant, nor it was ever demanded and expected by the respondent. In spite of this the appellant and his father in order to harass the respondent and his parents got registered a false case under Sections 406/498-A/120-B IPC and tried to get him and his parents arrested. On an application moved by the respondent for anticipatory bail he had to deposit a sum of Rs.1 lac as ordered by this Court for payment to the appellant, and it was thereafter, that his application for anticipatory bail was considered and allowed. Amount of Rs.1 lac was deposited by the respondent by taking loan from G.P.F., friends and relations so as to avail concession of anticipatory bail. Respondent claimed that he was still under debt of his friends.
The appellant with the help of police conducted raid on the house of the respondent and all goods lying in the house were removed by the respondent, though the goods belonged to the respondent. The appellant by misrepresentation and concealment of true facts, took away all articles and put respondent under heavy loss and harassment. It was also alleged that behavior of the appellant and his parents was very cruel towards the respondent from the very beginning. The respondent further claimed that he tried to reconcile the matter and took Panchayat to the house of the appellant in the month of February 1992, but the appellant and her parents refused to accede to the genuine request of the respondent. On the occasion of Dussehra in the year 1992, the respondent tried to bring the appellant to her matrimonial home at Patiala with the help of his uncle and other friends, but she refused to accompany them. As such the appellant was guilty of cruelty of desertion.
It was also the allegation of the respondent that in the presence of respectables she levelled false allegations against the respondent that he was impotent. Allegations were said to have been levelled by the appellant in order to torture and humiliate the respondent.
The petition was contested by the appellant by raising a preliminary objection regarding the maintainability of the petition. It was averred that as per the pleadings, the parties had last resided together at Chandigarh and therefore, only Courts at Chandigarh had the jurisdiction to try and adjudicate the petition. It was also the case set up by the appellant that on 10.12.1993, a compromise was arrived at between the parties in a duly convened Panchayat comprising respectable persons, and relatives of both the parties. Meeting of the Panchayat was held in Gurdwara, Sector-34 and Sector-35. In the Panchayat, it was decided that both the parties shall reside at Chandigarh w.e.f. 10.12.1993. This arrangement was arrived at as it was not possible for the appellant to reside at any other place away from Chandigarh, because she was then working as Assistant Manager in the State Bank of India, Local Head Office, Sector-17, Chandigarh. It was also the case of the appellant that compromise was accepted by both the parties and further the father of the respondent assured, that they shall not resile from the compromise in any manner. On the basis of this assertion, it was claimed that Court at Patiala had no territorial jurisdiction. It was also the case of the appellant that petition for divorce was filed as a counter blast to the criminal complaint filed under Sections 406/498-A and 120-B IPC against the respondent and his parents on 18.8.1994. The appellant claimed that she was maltreated with cruelty which ultimately resulted in filing of the complaint. It was the positive case of the appellant that prior to the filing of the criminal complaint, all possible measures to save the matrimonial home were taken and attempts were made by the relations and friends. However, the respondent did not accept the request made by her.
Another preliminary objection was that the respondent was of very quarrelsome nature and his conduct was very suspicious and doubtful. It was averred that before the marriage with the appellant, the respondent was engaged to a Canadian Girl namely Smt.Inderjit Kaur, The engagement and Shagun ceremony with Smt.Inderjit Kaur was performed at Delhi, in which he had received a sum of Rs.2 lacs along with other costly gifts. It was alleged that the respondent and his parents were greedy persons, and just a day prior to the marriage with Smt.Inderjit Kaur, they demanded dowry worth Rs.4 lacs, on account of which the marriage could not take place and engagement was broken. Respondent, however, succeeded in retaining a sum of Rs.2 lacs and other valuable articles. On the basis of above said allegations it was pleaded that the conduct of the respondent showed, that he was habitual in spoiling the lives of girls, after receiving handsome amount.
On merit, factum of marriage was admitted. However, it was denied that parties had cordial relations. The case set by the appellant was that from the very beginning of the marriage the respondent and his parents started maltreating the appellant, as they were not satisfied with the dowry brought by her. It was claimed that father of the appellant had given sufficient dowry beyond his capacity, but the lust of respondent and his family members remained unsatisfied. It was also pleaded case of the appellant that during the first five days of marriage the respondent and his parents continued harassing the appellant for the account of salary of five years service period, prior to marriage. It was alleged that respondent threatened to teach her a lesson, in case she failed to account for the salary of five years period prior to marriage. It was also the case of the appellant that the demand of cash and dowry continued growing with passage of time, which made the life of the appellant miserable with each passing day. It was also case set up by the appellant that after marriage, the parties resided at Patiala for some time and thereafter, they continued residing at Chandigarh upto 31.12.1993 under the compromise. It was pleaded that just after ten days of marriage, the respondent told her that they should adopt a child, rather than having their own child which led to apprehension in her mind that respondent may be suffering from impotency. It was pleaded that appellant had joined the Bank service on 13.5.1985 and was working as Clerk-cum-Cashier in State Bank of India, Mohali Branch, when the marriage was solemnized. After the marriage the appellant remained on leave upto 1.5.1990 and thereafter, she remained on leave for five months. The appellant thereafter continued coming daily from Patiala to Mohali to attend office. It was also averred by the appellant that she tried her level best to maintain her relationship with the respondent and his family members, but the respondent at the instance of his parents continued to harass and humiliate the appellant with utmost cruelty. Even after taking huge amount, on the night of 9.2.1992, the respondent made an attempt to eliminate the appellant, but could not succeed, because of tactful handling by the appellant i.e. that she agreed to sign the LIC papers after some time as demanded.
On 10.2.1992, early in the morning in-laws of the appellant again gave her severe beating to force her to sign the LIC policy, but, the appellant refused to do so. She was thereafter thrown out of her in-laws house in bare three clothes. In spite of this incident, the appellant hushed up the matter, so that relations are not strained. It was also pleaded, that the appellant sacrificed her promotion to the next higher rank, so that the relationship between the parties may not suffer further damage. The appellant claimed that she was eligible for promotion to officer rank in the year 1990, but she did not avail that opportunity, as she always desired to remain in the company of the respondent. The appellant had even applied for her transfer from Mohali to Patiala on 7.5.1990, which showed her bona fide intention to maintain the matrimonial relations intact. It was alleged that the respondent/husband never remained interested in making the married life happy, rather, she was treated with cruelty and humiliation by the respondent and his parents. It was claimed that the respondent was interested in her continuing with job and that was the reason to seek transfer from Patiala to Mohali. It was further alleged that the respondent had married the appellant only with a view to have an earning spouse. It was asserted that the respondent never applied for his transfer from Patiala, nor he ever disclosed this fact to the appellant even during his stay at Chandigarh. The appellant had no knowledge at all about his application for transfer. The appellant denied the allegation of mis- behaviour, and insult in the presence of relations. She claimed that she treated the respondent, his parents, relatives, friends and other visitors gracefully, and in a very appropriate manner. Allegation of simple marriage was denied. It was alleged that marriage was performed with great pomp and show, and various dowry articles like jewellery and cash were given to the respondent and his parents.
It was also pleaded that a case under Sections 406/498-A and 120-B IPC was registered against the respondent and his parents after thorough investigation by the Police. It was also the case set up that the appellant and her parents, had tried their level best to persuade the respondent and his parents not to adopt unwarranted ways. She claimed that on occasion of Dussehra, the appellant along with her parents and uncle met her father-in-law and the respondent so that the dispute could be patched up, as her parents hoped for improvement. It was pleaded that the meeting was held at the House of Shri Malik Singh i.e. No.3392, Sector-19-D, Chandigarh, but no concrete solution was found. It was in the meeting that it came to the knowledge of the appellant, her father and the relatives that Shri Malik Singh and father of the respondent were the main culprits in humiliating and spoiling the relations so that the marriage of the respondent could be arranged with third girl, to fetch some more money. In the replication, averments made in the petition were reiterated whereas averments made in the written statement were denied. On the pleadings of the parties the following issues were framed by the learned Matrimonial Court:-
1. Whether the respondent deserted the petitioner for two years immediately before the presentation of the petition? OPP
2. Whether the respondent treated the petitioner with cruelty? OPP
3. Whether the petition is not maintainable? OPR
4. Whether the petitioner is entitled to the decree for divorce?
In support of his case respondent/husband appeared as PW 5 and also examined Gurinder Singh PW 1, D.K.Kapoor PW 2, Joginder Singh PW 3, Satnam Singh PW 4 besides adducing documentary evidence. To rebut the claim of the respondent/husband, the appellant/wife herself appeared in the witness box as RW 10 and also examined HC Gurmeet Singh as RW 1, Daljit Singh RW 2, Prem Singh RW 3, Taranjit Singh RW 4, SI Jagbir Singh RW 5, Manjit Singh RW 6, Harbhajan Singh RW 7, Bhupinder Singh RW 8, Sardar Singh RW 9 and also led documentary evidence.
Issues No.1 and 2 were taken up together by the learned matrimonial court.
In the background of settled principle of cruelty learned matrimonial court assessed the evidence led by the parties to the effect that the allegations of cruelty are based on the grounds that the appellant continued with her job against his wishes, that the appellant passed taunting remarks that he looked like a owl in the presence of his friends and relatives, that her behavior towards the relatives was not good, as she never served water etc. to guests and lastly that she falsely alleged him to be impotent person.
Learned matrimonial court held that the respondent had pleaded in the petition, that the appellant alleged him to be impotent person in the presence of relatives. This assertion was supported by him while appearing in the witness box. The learned court held that there was no specific denial to these allegations, in the written statement rather the appellant took a stand, that after 10 days of marriage the respondent told her that they should adopt a child, rather than having their own. In this way it was revealed that the respondent may be suffering from impotency. Even while appearing in the witness box as RW 10 the appellant did not deny the allegations of impotency having been made by her. The statement of appellant in examination-in-chief was not challenged in cross-examination. Learned matrimonial court held that the plea of the respondent, in this regard got support from the document relied upon by the appellant. Ex.R.28 was the complaint lodged by the appellant against the respondent and his parents on the basis whereon FIR Ex.R.30 was got recorded, and order of conviction was also passed against the respondent vide Ex.R.31.
Even in the complaint she alleged impotency and unchastity against the respondent. The learned matrimonial court observed that in her statement she stated, that it appeared to her that respondent was impotent, and further that he might have got illegal relationship with another girl either in his office or elsewhere. The learned court held that matter did not end there as during the pendency of the petition the respondent filed an application to undergo medical examination regarding potency to disporve the averments in the written statement. In reply to the application the appellant reiterated that she had rightly pleaded in para No.5 of the written statement that the appellant may be suffering from impotency. It was asserted by the appellant that the allegations were neither frivolous nor vexatious but based on well founded apprehension of the appellant, on the basis of desire of the respondent to adopt a child rather than having their own. The learned matrimonial court on appreciation of evidence came to the conclusion that it stood proved, that the appellant had levelled false allegations of impotency.
The plea of the appellant that it was the respondent who caused cruelty to the appellant by stating that he did not want a child that too only after 10 days of marriage was not accepted. It was held that there was consummation of marriage as it was not the case of the appellant that marriage was not consummated or that she never had any sexual relationship with him.
The learned matrimonial court came to the conclusion that in the absence of plea of non-consummation of marriage, the allegations of impotency were false which definitely caused pain and anguish to the respondent which resulted in mental cruelty.
Plea of the appellant that there was no independent witness produced, to prove these allegations was not accepted, as the learned matrimonial court held that the sole statement was sufficient. Furthermore from the document relied upon by the appellant, it was evident that allegations of impotency were made. The learned matrimonial court, placed reliance on the judgment of Hon’ble Andhra Pradesh High Court in the case of Smt.Padmini Vs. G.Sivananda 2000 (2) CCC 325 wherein it was held that the allegations of impotency of her husband which are conveyed to the brother of the husband created intense mental cruelty, anguish and pain to the husband to come to the conclusion that cruelty stood proved. The learned matrimonial court held that allegations of impotency, did not remain within the family and close circle rather it was made open to the public when the respondent raised these allegations in Ex.R.28, which was addressed to the Chief Minister, Punjab, Inspector General of Police, Union Territory Chandigarh, Senior Superintendent of Police, Chandigarh/Patiala and Chairman Punjab State Electricity Board, Patiala. On the basis of complaint Ex.R.28 proceedings were also initiated under sections 406 and 498-A IPC and Dowry Prohibition Act. The case was decided vide judgment Ex.R.31. The judgment passed by the learned trial court was set aside by appellate court.
Learned matrimonial court also held that even in the judgment Ex.R.31 impotency was one of the basic issue raised by the appellant. The learned court, therefore, held that the respondent faced these allegations throughout the trial and on the basis of these, learned matrimonial court came to the conclusion that allegations of impotency caused great pain and anguish to the respondent.
The respondent also led medical evidence to prove that he was capable of having sexual intercourse and to establish his potency he had examined PW 2 Dr.Joginder Singh, Superintendent Office of Civil Surgeon Patiala who proved the medical examination report qua the respondent Ex.P.6. In the said report a positive finding was recorded that the respondent was not suffering from impotency. Allegations of cruelty i.e. non-preparation of tea etc for his relatives and friends, her misbehaviour were treated to be general and not specific in nature and therefore, not accepted. The allegations that wife had stated that respondent looked like owl in the presence of relations and friends were also not accepted being vague. Evidence of Shri V.K.Kapoor was not accepted in this regard. Other allegations of cruelty were held to be not proved.
Learned matrimonial court also did not accept the version that the appellant was working against the wishes of the respondent. Version of the appellant that the respondent and his family members caused cruelty to her as they were not satisfied with the dowry was not accepted. Learned matrimonial court held that demand of dowry is certainly a cruelty, but these allegations have to be established by specific and trustworthy evidence. In support of these allegations only oral evidence was led by the appellant. The Learned matrimonial court observed that no allegations regarding dowry were levelled till the filing of the complaint Ex.R.28 i.e. on 18.4.1994, when the parties were living separately. The learned matrimonial court further held that even in the criminal case the parents were acquitted vide judgment Ex.R.31. The learned court also did not believe the assertion of the appellant that the money from joint recurring account opened by the parties was taken away by the respondent for buying a plot, in view of her admission, that the recurring deposit amount, was with her and she has invested it in her and her mother’s name. The learned matrimonial court on the basis of evidence also did not accept the plea that the respondent was a greedy person. The learned court also held that the allegations that the respondent had tried to eliminate her on 9.2.1992 and tried to force her sign on LIC papers were not believable, for want of evidence in support thereof.
The learned matrimonial court also did not accept the version of the appellant, that engagement with Smt. Inderjit Kaur was broken on account of demand of dowry. The learned matrimonial court held that after the marriage the parties had last resided at Patiala, and the version of the appellant that after the compromise they resided at Chandigarh was not believed due to the material contradiction in evidence. The learned matrimonial court held that from the evidence it was established that the appellant had not returned to the matrimonial home after 10.2.1992 and was guilty of desertion.
Issues No.1 and 2 were decided in favour of the respondent/husband. Issue No.3 was not pressed. In view of the findings on issues No.1 and 2, issue No.4 was decided in favour of the respondent/husband and against the appellant. Resultantly, the marriage between the parties was ordered to be dissolved by a decree of divorce. Mr.Arun Jain, learned senior counsel appearing on behalf of the appellant vehemently contended that the finding of the learned matrimonial court on the ground of desertion cannot be sustained as there was no evidence on record showing animus deserendi as the appellant was always ready and still ready to join matrimonial home. The respondent himself is not interested to keep her and has remarried in spite of appeal. The contention of the learned senior counsel appearing on behalf of the appellant was that after the separation attempts were made to reconcile the matter and in fact, the parties had compromised the matter and started living together.
It was also the contention of learned senior counsel appearing on behalf of the appellant that in order to succeed on the ground of desertion it was for the respondent to prove the separation and animus deserendi for continuous period of 2 years immediately preceding the presentation of petition.
It was also the contention of the learned senior counsel for the appellant that she was not living separately without reasonable cause as she is a working lady and was required to stay at her place of posting. It was due to the act of cruelty and misbehaviour of the respondent and his family members that it became impossible for her to visit her matrimonial home at Patiala. It was for these reasons that the arrangement was made to stay together at Chandigarh. The arguments raised by the learned senior counsel for the appellant looked attractive on the face of it but when seen in depth it has no substance for the reasons to be stated hereinafter.
The appellant had set up a positive case that compromise was arrived at between the parties on 10.12.1993, where it was decided that the parties were to live at Chandigarh. In pursuance thereto they, in fact, resided at Chandigarh from 30.12.1993.This assertion was tried to be proved on the ground that the stamp paper was also purchased by the respondent to write the compromise arrived at between the parties in the meeting held in Park in Sector 35, Chandigarh, but it was not written. Support in this regard was sought from the statement of Daljit Singh RW 2, Prem Singh RW 3 Harbhajan Singh RW 7 and Bhupinder Singh RW 8. This plea cannot be accepted as it was rightly held by the learned matrimonial court that no explanation was forthcoming as to why no writing was written, if there was actually a compromise, as alleged.
The stand of the appellant stood negatived, by the documentary evidence, that appellant was in fact on tour from 7.12.1993 to 10.12.1993 to attend a court case which was fixed before Hon’ble Delhi High Court. TA Bills were also produced to prove the tour programme by the respondent, therefore, the version of the appellant that there was compromise cannot be accepted. Furthermore, in the pleadings it was said that compromise was arrived at Gurudwara, whereas in the evidence it was stated to be arrived at in the park in Sector-35.
It may further be seen that the learned matrimonial court rightly held that the appellant was not able to give the name of landlord under whom they lived as tenant nor rent receipts were produced, nor any ration card, gas delivery card, voter list or any other document showing their residence was brought on record.
It may also be noticed here that the specific allegations made by the appellant that she was treated with cruelty were found to be false. Taking of false defence leaves no manner of doubt that the respondent succeeded in proving, the separation and animus deserendi, for a period of 2 years preceding the time of presentation of petition. The second marriage was performed after the decree of divorce. The mere offer to live with the husband at the time of reconciliation cannot be a ground to upset the findings on desertion.
To challenge the finding of cruelty, it was vehemently contended, that the allegations were made by the appellant on the basis of reasonable apprehension, in view of the fact that the respondent within first 10 days of marriage, had desired that parties should adopt a chid as he did not want to have their own child.
The contention of the learned senior counsel for the appellant further was, that allegations of impotency were not made in public as is clear from Ex.R.23 i.e. the first complaint made by the respondent in which, no allegation of impotency was made. It was further contended by the learned senior counsel that in the complaint filed on the basis of which FIR was registered no specific allegations of impotency were made, but only apprehension was shown in view of the desire of the respondent to adopt a child.
The contention of the learned senior counsel for the appellant also was that husband cannot be allowed to take benefit of his own wrong by claiming, that this false allegation of impotency was levelled against the respondent so as to cause mental cruelty.
On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant. The allegations of impotency were not denied in the written statement filed by the appellant. Rather the allegations were reasserted in the complaint filed with the police. In reply to the application moved by the respondent for getting himself medically examined to prove his potency those allegations were reasserted. Merely because no allegations were made in the complaint Ex.R.23, cannot be of any advantage to the appellant, as it is the settled law that allegations made during the course of proceedings also amount to cruelty. Hon’ble Supreme Court in the case of Vijay Kumar Ramchandra Bhate Vs. Neela Vijay Kumar Bhate AIR 2003 SC 2462 has been pleased to lay down as sunder:-
” Hindu Marriage Act S.13(1)(ia) – Divorce- Grounds, mental ‘cruelty’ meted out of wife – Allegations made by husband in written statement extensively with enumeration of instances and incidents against wife branding her as an unchaste woman, keeping extra marital relations is a grave assault on the character, honour, reputation, status as well as the health of the wife and viewed in the context of an educated Indian wife and judged by Indian conditions and standards. Allegations amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law. Claim of wife liable to be allowed. Withdrawal of such allegations unilaterally by the husband by filing an application for amendment of the written statement. Do not wipe out complete all those allegations for all purposes and amendments carried out subsequently does not absolve the husband from being held liable for having treated the wife with cruelty. Moreso when such allegations continue to remain on record.
Similar view was taken by the Hon’ble Supreme Court in the case of V.Bhagat Vs. Mrs. D.Bhagat AIR 1994 SC 710.
Hon’ble Kerala High Court in the case of S.Latha Kunjamma Vs. K.Anil Kumar AIR 2008 Kerala 203 has been pleased to lay down that averments, accusations and character assassinations attributed to party in the written statement and during the examination of facts also constitute cruelty.
Similar view was taken by Hon’ble Delhi High Court in the case of Smt.Savitri Balchandani Vs. Mulchand Balchandani AIR 1987 Delhi 52 and Ashok Vs. Santosh AIR 1987 Delhi 63. The allegations of impotency, though respondent was found to be potent in medical examination do amount to cruelty. The plea that these allegations were based on reasonable apprehension, also has no legs to stand, as the parties lived together and marriage was duly consummated.
The respondent was further treated with cruelty as false criminal case was got registered against the respondent and his family members in which they stand acquitted. This act of the appellant itself is sufficient to hold that the appellant had treated the respondent with cruelty. In view of what is stated above, the finding of the learned matrimonial court on the ground of cruelty is also affirmed. Consequently, this appeal is ordered to be dismissed with no order as to costs.