IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO No. 233-M of 2001 (O&M)

Date of decision: 18.2.2015

Charanjit Singh                              //Appellant
Versus

Harkiran Kaur                                //..Respondent

CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL
HON’BLE MRS. JUSTICE SNEH PRASHAR

Present: Mr. BBS Sobti, Advocate and
Mr. Ram Pal Verma, Advocate for the appellant.

Mr. Arihant Jain, Advocate for the respondent.

Ajay Kumar Mittal,J.

This is an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for producing on record the certified copy of judgment dated 14.11.2009 passed by the Judicial Magistrate Ist Class, Ludhiana in FIR No. 103 dated 1.8.1996, under Sections 406, 498-A of the Indian Penal Code, registered at Police Station Division No.2, Ludhiana by way of additional evidence as Ex.AX and certified copy of judgment dated 9.9.2011 passed by the Additional Sessions Judge, Ludhiana as Ex.AY.

Notice of this application was issued. Short reply opposing the prayer has been filed.

After hearing learned counsel for the parties, the application is allowed as these judgments were passed after the decision of the trial court in 2001 and the certified copies of the judgments dated 14.11.2009 as Ex.AX and dated 9.9.2011 as Ex.AY are taken as additional evidence on record.

FAO No. 233-M of 2001

1. This appeal has been preferred by the appellant-husband against the judgment and decree dated 16.10.2001 passed by the Additional District Judge, Ludhiana, whereby the petition filed by him under section 13 of the Hindu Marriage Act, 1955 (in short, “the Act”) for dissolution of marriage by a decree of divorce, was dismissed.

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 17.10.1987 at Ludhiana by way of Anand Karaj ceremony, i.e. Sikh religious rites and ceremonies. After the marriage, the parties cohabited at Ludhiana as husband and wife and out of the said wedlock, a male child, namely, Karan was born on 21.9.1988. The marriage was a simple affair and no dowry was given or taken. From the beginning of the marriage, the attitude of the respondent was not good and she used to create trouble on trifles. She used to insult the appellant and his family members and abused them in the presence of relatives and friends. The appellant tolerated all this with a hope that good sense would prevail upon her with the passage of time but her behaviour went from bad to worse. In the month of April, 1990, the respondent left the matrimonial home after taking gold ornaments and other precious household articles without informing the appellant and his family members. The appellant and his mother convened a panchayat and went to the parental house of the respondent and after great persuasion, the respondent came back to the  matrimonial home. After a few days, she again started creating troubles. Her behaviour towards the minor was also cruel and she used to give severe beatings to him. On 14.9.1991, the respondent sprinkled kerosene oil on herself and minor Karan for committing suicide. The appellant lodged a report in this regard with the police. The family members of the appellant stopped the respondent from doing so but she threatened that she would repeat such acts and would implicate them in criminal cases. On 25.3.1992, she again left the matrimonial home without informing the appellant and his family members. The appellant convened a panchayat and went to the parental house of the respondent on 8.4.1992 and brought her back to the matrimonial home. On that very day, she gave in writing that she would not repeat threat of suicide and would live like an ideal wife. After a few days, the respondent again started harassing the appellant. She left the matrimonial home early in the morning without informing the appellant or his family members and returned late at night. Such acts of the respondent caused mental cruelty to the appellant and it was difficult for him to live with the respondent. She left the matrimonial home last on 14.5.1993 and was residing in her parental house since then. The appellant lodged a report with the police in this regard. The appellant convened a panchayat again on 17.5.1993 and went to the parental house of the respondent but she refused to accede to their request and insulted them and also threatened that she would implicate the appellant and his family members in criminal cases. Accordingly, the appellant filed a petition under Section 13 of the Act for dissolution of marriage by a decree of divorce. Upon notice, the respondent appeared and filed written statement controverting the averments made in the petition. Besides raising various preliminary objections, it was pleaded that she had been residing in House No. 2460, Ajit Nagar, Near Amarpura, Ludhiana with the respondent since the date of her marriage. Minor son was also residing there with them. However, the appellant had deliberately given a false address of the father of the respondent, i.e. House No. 2870- 2305/2, Jattanwala Chauntra, near Sanari Adda, Mohalla Roop Chand, Patiala with a view to obtain exparte decree of divorce. After filing of the divorce petition, the appellant attempted to turn her out and her minor child from the matrimonial house but with the timely help of certain respectables, said attempt was foiled. Even in her application for maintenance pendente lite, the respondent had given her address as House No. 2460, Ajit Nagar, near Amarpura, Ludhiana. The respondent also filed a suit for a decree of permanent injunction restraining the appellant and his family members from interfering in her peaceful possession over the room and verandah situated on the first floor with common right to use the room, kitchen, bathroom, verandah, open space on the ground floor and open space on the first floor and also staircase from ground floor leading to first floor forming part of House No. 2460, Ajit Nagar, Issa Nagar, Pulli, Ludhiana. The said suit was pending and interim injunction was granted in favour of the respondent and her minor son. The local commissioner appointed by the court went to the spot on 7.6.1999 and found the respondent and her minor son to be in possession of the aforesaid premises. The appellant had been treating the respondent with cruelty. He along with his mother and other relations had been creating such a situation so as to get her out of the matrimonial home. It was the result of strong will and conviction on the part of the respondent that she was putting up in that house with a hope that with passage of time things might improve and the appellant might accept her and the minor son giving him fatherly love. The divorce petition was filed by the appellant to take advantage of his own wrongs. The parents of the respondent besides giving a sum of ` 21,000/- in cash had also given various other articles including gold items. However, before the marriage, the brother of the appellant demanded an amount of ` 50,000/- in cash from the father of the respondent. Her father after arranging a sum of ` 40,000/- had paid the same to him. After marriage, on reaching the matrimonial home, the appellant and his family members demanded ` 1 lac in cash and a car. On her refusal to fulfil the said demands, her life was made a hell. She had to work from early hours of the day till late night and no proper food was offered to her, therefore, she was reduced to a skeleton. The appellant was joined by his sister to torture the respondent. When she was in a family way, she was not looked after properly. On the birth of a male child, her parents had given gifts and cash amount but the appellant and his family members raised a demand of ` 1 lac and a car. She was turned out from the matrimonial home and with great persuasions of her parents, other relations and friends, she was rehabilitated in the matrimonial home. In 1988, the father of the respondent paid ` 32,000/- to the appellant. The appellant along with his relations maltreated and misbehaved with the respondent so as to commit suicide or to cause grave injury or danger to life, limb or health. According to the respondent, she never attempted to commit suicide but it was her mother-in-law who attempted to kill her by sprinkling kerosene oil and a report in this regard was lodged with Police Station, Division No.2, Ludhiana on 17.9.1991. The other averments made in the petition were denied and a prayer for dismissal of the same was made. The averments made in the written statement were controverted by the appellant by filing replication. From the pleadings of the parties, the trial court framed the following issues:-

1. Whether the respondent has treated the petitioner with cruelty after the solemnization of the marriage as alleged? OPA

2. Relief.

3. The trial court on appreciation of evidence led by the parties, decided issue No.1 against the appellant holding that the appellant had failed to prove the grounds of cruelty and desertion. Accordingly, the trial court vide judgment and decree dated 16.10.2001 dismissed the divorce petition. Hence the present appeal.

4. We have heard learned counsel for the parties and perused the record.

5. Learned counsel for the appellant submitted that the trial court erred in law in dismissing the petition under section 13 of the Act filed by the appellant. Her behaviour towards the appellant and his family members was not good from the very beginning. She had no intention to live with the appellant. The behaviour of the respondent caused mental cruelty to the appellant. It was further contended that the appellant and his family members were acquitted by the trial court vide judgment dated 14.11.2009, Ex.AX in FIR No. 103 dated 1.8.1996, under Sections 406/498-A of the Indian Penal Code, Police Station, Division No.2, Ludhiana got lodged by the respondent. The appeal filed against the said judgment dated 14.11.2009 was also dismissed by the learned Additional Sessions Judge, Ludhiana vide judgment dated 9.9.2011, Ex.AY. With these contentions, learned counsel prayed for a decree of divorce on the ground of cruelty.

6. On the other hand, learned counsel for the respondent supported the impugned judgment and decree.

7. 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 said spouse has been treated with cruelty after the solemnization of the marriage. 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 evidence whereas mental cruelty is to be inferred on analyzing the factual matrix of each case and drawing conclusion thereon.

8. In Vidhya Vishwanathan vs. Kartik Balakrishnan, 2014(4) RCR 563, it was held by the Apex Court as under:-

“13. In Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC 778 regarding legal proposition on aspect of cruelty has made the following observations:
“31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
32. The word “cruelty” has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”
9. In K.Srinivas Rao vs. D.A.Deepa, (2013) 5 SCC 226, similar view was taken.
10. A perusal of the record shows that the marriage of the appellant with the respondent was solemnized in the year 1987. Due to disputes between the parties, the respondent finally left the matrimonial home on 14.5.1993. The respondent had lodged FIR No. 103 dated 1.8.1996 under sections 406, 498A of the Indian Penal Code against the appellant and his family members at Police Station Division No.2, Ludhiana. The trial in this FIR had resulted in acquittal of the appellant and his family members vide judgment Ex.AX dated 14.11.2009. An appeal filed against the aforesaid order was also dismissed by the lower appellate court vide judgment Ex.AY dated 9.9.2011. It has been authoritatively held by the Apex Court in K. Srinivas Rao’s case (supra) and a Division Bench of this Court in Imlesh v. Amit, AIR 2014 Punjab and Haryana 89 that where the wife files false criminal complaint against the husband and his family members under Sections 406, 498A of the Indian Penal Code which results in their acquittal, this act of the wife causes mental cruelty and the husband is entitled to a decree of divorce under Section 13(1)(ia) of the Act. The trial court, thus, was not right in dismissing the petition filed by the appellant-husband. Considering the overall facts and circumstances of the case, we do not find any ground to uphold the findings recorded by the trial court. As a result, we set aside the impugned judgment and decree dated 16.10.2001 passed by the trial court relating to cruelty. The appeal filed by the appellant stands allowed. The appellant is granted decree of divorce on the ground of cruelty caused by the respondent-wife.

(Sneh Prashar)(Ajay Kumar Mittal)
February 18, 2015

GURBACHAN SINGH
2015.03.10 10:43
I attest to the accuracy and authenticity of this document High Court Chandigarh