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Divorce, Rape claim on father-in-law cruelty

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No.849/2015

Smt.Savita aged about 32 years W/o Shri Pankaj Meel, D/o Shri Banwari Lal Jat, by caste – Jat,
R/o 47, Surya Nagar, Murlipura Scheme, Jaipur (Raj.).Appellant

Versus

Pankaj Meel aged about 34 years S/o Shri Ramlal Meel R/o Shri Gulzari Lal Punia,
Plot No.170, Shiv Nagar IInd, Murlipura Scheme, Jaipur (Raj.).Respondent

For Appellant : Ms.Namita Parihar
For Respondent : Mr.Anshuman Saxena

HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE G R MOOLCHANDANI

Judgment

Judgment reserved on : 16/05/2018
Judgment pronounced on : 24/05/2018

BY THE COURT (Per : Hon’ble the Chief Justice)

The appellant is aggrieved by the judgment dated 13/02/2015 granting decree of divorce in favour of the respondent holding that the evidence brings out that both spouses committed acts of mental and physical cruelty against each other.

The facts in brief are that the respondent-husband filed Divorce Petition No.464/2011 in the court of learned Judge Family Court No.1, Jaipur City, Jaipur seeking divorce from the appellant- wife u/S.13 of the Hindu Marriage Act, 1955 on the ground of cruelty.

Respondent Pankaj Meel in his plaint has stated that their marriage was solemnised according to Hindu rites on [CMA-849/2015] (2 of 17) 11/07/2008. After marriage the reception was organised on 12/07/2008 at Plot No.47, Surya Nagar, Murlipura Scheme, Jaipur. The respondent has obtained a Bachelor’s Degree, Master’s Degree followed by a Bachelor Degree in Education, MBA, M.Phill and Ph.D. He is a Lecturer in Rajasthan Institute of Engineering and Technology in Jaipur. After marriage, parents of the appellant took the appellant with them at Baroda on 15/07/2008. On 16/08/2008 when he reached Baroda to fetch her, the appellant told him that since birth she had lived in Gujarat and her parents were residing in Baroda and she was unhappy living with him in Jaipur and desired to live in Baroda. She forced him to get a job in Baroda. The respondent counselled the appellant telling her that he is the only son and he has to look after his parents in Jaipur to which the appellant retorted that she was not desirous of becoming a part of his family. That as time passed the attitude of the appellant turned hostile. She started using abuses and taunting such as calling him eunuch, of low mentality and that he was not born to his parents. That she would call his mother a prostitute. On 17/08/2009 he brought the appellant to Jaipur. In November 2008 she quarreled with her parents and insisted to go to Gujarat. Respondent’s father informed the appellant’s father over the telephone about the appellant’s attitude, and he took the appellant to Gujarat because of some marriage in their family. After eight days the appellant returned to Jaipur with her parents. He reached the bus stand to bring the appellant and her parents to his house. On reaching the bus stand appellant told respondent in anger why he reached late. She went back to Baroda. In January 2009 he reached Baroda to fetch appellant. Initially she refused but on persuasion came to Jaipur. On 03/08/2009 she fought with him and inflicted scratch marks on his body. The next day i.e. on 04/08/2009 Jaipal Singh, respondent’s paternal uncle visited the house. The appellant came out of her room abusing generally and slapped respondent’s mother in kitchen. On 05/08/2009 appellant’s father accompanied by 5-6 relatives came to hold a meeting. Nothing fruitful emerged at the meeting. Due to tension created by the appellant in the family, on 13/08/2009 respondent’s father suffered a heart attack and had to be admitted at Tongia Hospital, Jaipur. When he brought his father back to the house the appellant fought. The appellant lamented as to why his father did not die due to heart attack. On 21/11/2009 appellant’s father visited the matrimonial house without any prior intimation. He said that he would be taking the appellant with him. The appellant packed her clothes in three suitcases. She was in the family way at that time. The respondent asked the appellant as to why she was carrying three suitcases with her because as per her she was going to her parental house for few days. He told her that the delivery should take place in Jaipur. A male child was born on 16/02/2010. Marriage of appellant’s cousin brother was to be solemnised on 10/12/2010 at Jhunjhunu and on 09/12/2010 she told the respondent to accompany her to the marriage but he told her that upon leave being granted he would attend the marriage else she would have to go alone; at this, the appellant got annoyed and kept abusing his parents throughout the day. When he came to [CMA-849/2015] (4 of 17) the house in the evening she fought with him and pulled his hair. As his parents intervened the appellant bit his father on the thigh. On 12/01/2011, she inflicted a ‘musli’ blow on the face of his father. Ghasi Ram Poonia, a neighbour intervened and tried to convince them but to no avail. On 22/04/2011, the respondent’s family returned the dowry articles in presence of Ghasiram, Jaipal Singh, Ram Singh, Sukhveer Singh and Gulzari Poonia. On 30/05/2011 at 9-9.30 p.m. the appellant physically assaulted him and called the police and got him arrested on the same day. His medical check was done at Kanwatia Hospital on 31/05/2011 and thereafter he was granted bail.

In the reply filed appellant Smt.Savita denied the assertions as made in the petition. She admitted holding a degree in BCA as well as in MCA and employed as a Lecturer Computer Science in NIMS University in Jaipur. She admitted that son Shomanshu was born out of their wedlock and after marriage for some time they lived under the same roof i.e. at Flat No.47 as husband and wife during which period no dispute arose and hence petition for divorce was filed on concocted grounds. The entire delivery expenses was borne by her parents and neither her in- laws came to meet the child nor expressed happiness. She came to the matrimonial house on 17/08/2008 giving respect to her in- laws and behaving with them in well manner. Her in-laws are un- civilized persons. Bald allegations were levelled against her, which she is bearing for a long time to maintain her married life. No ring was given on her birthday nor her in-laws persuaded the respondent to do so. When she told her-laws that she was in the [CMA-849/2015] (5 of 17) family way they got annoyed and beat her saying as to from whose permission she went out and whose child she has brought in their house. She should abort the child otherwise they will not allow her to live in the house. She informed her parents and they tried to talk to his in-laws but despite this, on 08/08/2009 her in- laws beat her by kicking on her abdomen. They called her a prostitute and told her parents to take back their daughter with them. Thereafter, her father and other relatives came to her matrimonial house to resolve the issues, but her in-laws remained adamant. They demanded money deposited in the name of the appellant in a Fixed Deposit in the bank for purchasing a flat threatening that in case the demand is not fulfilled, the respondent will divorce her. Her father is engaged in the business of money lending and when on 13/08/2009, her father asked one loanee to return 2 lacs borrowed to him, he refused to return the same. Resultantly, her father-in-law suffered heart attack. No medical care was taken at the time of her pregnancy. Proper food was also not given to her. Despite complaint made by her to his parents, nothing fruitful came out. Rather, her in-laws stated that it would be better if premature delivery is done so that unwanted child may not be born in the family and saying this, she was thrown out of the matrimonial house. Her parents then took her with them to their house. On 16/02/2010 she gave birth to a male child. She alleged that her in-laws used to tease her about the legitimacy of the son born to her. On 10/10/2010, the respondent and her in-laws beat her. When she asked the respondent to accompany her to the marriage of her cousin brother he told her [CMA-849/2015] (6 of 17) that upon half day leave granted he would accompany her but he did not take leave and did not attend the marriage and when she asked over the phone the reason of not attending the marriage, she was subjected to beatings. Her father-in-law attempted to commit rape upon her. He demanded a sum of20 lacs threatening that in case demand is not fulfilled they would kill her child. On 12/01/2011 her child got seriously ill but he was not brought to the hospital nor any money was given to her for his treatment. Rather, she was subjected to beatings by ‘musli’ by her in-laws and called the police. Police saw that her child was vomiting and rather scolded her in-laws saying that how inhuman persons they are and tried to advise them to take care of the child but to no avail. A meeting was organised at the house of Ghasiram Poonia at the instance of her father-in-law and Tau Jaipalji, wherein it was resolved that Savita, daughter-in-law of Ramlalji will stay in Flat No.47 but her father-in-law stated that they will not allow her child to stay at the house. In such a situation she was left with no other alternate except to leave the child at her parental house for the day. The dowry articles were also not returned to her. When she purchased Fridge and Cooler on her own and brought them at the matrimonial house she was subjected to maltreatment and beating. They also beat her child aged 1½ years. Police also witnessed this incident; thereafter arrested the respondent. In March 2009 when appellant’s father retired, her in-laws built pressure upon her to bring her share from her father otherwise they will kill her. On 23/05/2009 when appellant’s father came to Jaipur, her in-laws started demanding [CMA-849/2015] (7 of 17) dowry saying that the appellant is entitled to receive her share from the property of her father. Threat was given that in case the demand is not fulfilled the appellant will be divorced and they will get the second marriage of their son performed so as to get the dowry of 1 crore from this second marriage. On 24/05/2009, in the presence of her father, her mother-in-law Kaushalya Devi started maltreating her. On 07/06/2009 she returned to her matrimonial house and on the very next day i.e. on 08/06/2009 when her parents were about to return to Baroda, the respondent abused her by using the word ‘prostitute’ and demanded more money. He demanded50,000/- on the expenses incurred in the premature delivery. When she refused to fulfill the demand, her in-laws subjected her to beating. When she made complaint to her parents, they returned from Phulera to Jaipur and tried to convince her in-laws but they remained adamant on the demand of dowry. On 28/06/2009 her father, Bhagirathji and Prashant Meel also came to her matrimonial house to convince her in-laws but they were insulted and were told that they will divorce this prostitute. Presently she is residing at Flat No.47 along with her son, which was purchased in the name of the respondent. on 18/10/2010 the patta thereof was got returned in the name of his mother Kaushalya Devi depriving them from their inherited property rights. A civil suit in this regard has also been instituted in the competent court, wherein an injunction has also been granted. She lived with the respondent in the matrimonial house till 25/06/2011. On 25/06/2011 her in-laws shifted to Flat No.121, Shiv Apartment at Vidhyadhar Nagar. On 09/07/2011 at the [CMA-849/2015] (8 of 17) askance of her mother-in-law electricity connection of the house wherein the appellant was living was got disconnected. She instituted a case under the Domestic Violence Act. She apprised her father and brother Ramesh vide letters dated 21/09/2009 and 23/09/2009; thereupon, her uncle Laxminarayan ji came to her matrimonial house on 28/09/2009 and requested her in-laws not to ill-treat her because she was pregnant and further requested them to get her medical check up done but they refused to do so saying that they do not have enough money to incur on the medical treatment of this prostitute. Her father-in-law told her uncle that he will kick her out. The respondent demanded 20 lacs out of1 crore received by her father after his retirement.

To prove his case respondent Pankaj Meel as PW-1 in his statement stated that he was married to the appellant on 11.07.2008 as per Hindu Customs at Jhunjhunu and during the wedlock a son named Somanshu was born. After marriage the appellant went back to Baroda. On 15.08.2008 when he went to Baroda to bring her back the appellant said that she is a literate lady and wants to live at Baroda and also tried to persuade him to live with her, whereupon he told her that his parents are very old and he cannot live at Baroda leaving them alone. The appellant returned with him to Jaipur. But said that she does not intend to become a member of his family. She used to quarrel with his parents and insisted to be sent her back to Baroda. She oftenly used to abuse him calling him eunuch and his mother to be a prostitute. In November the father of the appellant took her back and eight days thereafter when he went to the home of his in-laws [CMA-849/2015] (9 of 17) she started quarreling with him saying why he has come so late. In November, 2009 he went to Baroda on the occasion of birthday of the appellant and gifted her a golden ring. She again asked him to live at Baroda and her father also insisted for the same, upon which he declined to do so. The appellant again accompanied him to Jaipur and once again started quarreling with him. She scratched him with her nails. She was behaving in such a way only to return back to Baroda. Looking to the seriousness of the issue he called his uncle (tau) and when his uncle reached home his mother was in the kitchen making tea where the appellant slapped her calling her prostitute etc..On 05/08/2009 they called appellant’s father and her other family members. Appellant’s father again insisted upon him to live with them at Baroda if he wants to live a happy life. Due to such a tensed atmosphere his father suffered heart attack and was rushed to Tongia Hospital. After discharge from hospital when they came back to home the non-applicant lamented as to why his father did not die due to heart attack. Despite all this she was living with them. He further stated that on 21/11/2009 appellant’s father visited their house and requested to take his daughter back to Baroda for 10 days, whereupon respondent said that she is pregnant and should deliver a child at Jaipur but she refused to do so and went back to her paternal house. She again returned back to Jaipur on 10.10.2010 along with her father and 10-15 other persons. The appellant and her father gave beating to him and his mother and threatened to kill them. On 10.12.2010, on the occasion of marriage of her cousin, they insisted him to [CMA-849/2015] (10 of 17) accompany her whereupon he stated that he would accompany her if leave is granted to him, otherwise she should go alone. When he returned to the house in the evening she hit him with helmet, pushed his mother and father and also bit his father on the thigh. She started quarreling saying that she would live here only if they transfer their property in her name. On 12.01.2013, when his Fufa Ram Singh came to persuade the appellant she again insisted to live separately and not with his parents. Thereafter she inflicted an injury with ‘musli’ (an iron small rod being used in the kitchen for crushing the spices) on his father’s face. On 18.01.2011, their neighbor Ghasiram also came to persuade her but she insisted that she would live separately in half portion of their house and would not allow her husband to talk to his parents. On 18.01.2011 she shifted to said half portion of the house along with their son. The respondent returned all dowry items on 22.04.2011. In the evening of 30.05.2011 when he returned to the house the appellant again started quarreling and abusing him. On the asking of her father she got him arrested. That in these circumstances he suffered mental cruelty and does not want to live with the appellant. He stated that in support of his averments he also produced the photos and medical reports on record.

In his cross-examination, PW1 stated that it is wrong to say that non-applicant intends to live at Jaipur. It is also wrong to say that on 03.02.2009 a quarrel took place between them on the issue of FD ATM. The appellant does not intend to live with him and wants to go back to Baroda and on account of [CMA-849/2015] (11 of 17) this she scratched him with her nails. He denied that appellant does not intend to go Baroda forcibly. He denied the suggestion that there was understanding between the appellant and his mother that in the morning the appellant and in the evening his mother would cook the food.

Ramlal, father of the respondent as PW2 stated that in August, 2008 his son got married with the appellant. Since beginning appellant started calling his son to be eunuch and his wife to be a prostitute. She oftently used to abuse them. He and his brother always tried to persuade her but failed. On 03.08.2009 she scratched his son with nails. On 04.08.2009 when his brother was at their home the appellant slapped his wife in the kitchen. She called her father, who came to their house on 05.08.2009 along with 5-6 other persons. That he narrated the incident of 3 rd and 4th August to her father who admitted to the guilt of his daughter. Her father threatened them to send the entire family to jail. He also suffered heart attack on 13 th August due to such a tense atmosphere and when he returned back from hospital appellant said why he did not die due to heart attack. (He has also placed on record the documents regarding heart attack suffered by him). On 01.11.2009 father of the appellant came to their house and took her back with all personal clothes. In February, 2010 the appellant gave birth to a child in Ashoka Hospital and when he and his son went to the hospital to meet the appellant’s father demanded the money spent on her delivery whereupon he given `20,000/- to him. In October, 2010, the appellant, her father along with 15-16 other persons came to their house and [CMA-849/2015] (12 of 17) abused them and also broke the gates. They also lodged a report about this incident. In December, 2010 when the respondent returned from college she hit him with helmet and when his wife intervened the appellant gave beating to her also. When he tried to intervene she bit him on his thigh. In January, 2011 when his sister’s husband (jijaji) and his wife were sitting the appellant started abusing them and also inflicted a blow with ‘musli’ on his face which resulted in bleeding. On 18.01.2011, appellant’s father pressurised him and his son that she would live separately and also insisted upon his son not to contact his parents. On 30.05.2011 appellant scratched his son with nails and made a false report to the police and got his son arrested. She threatened them that with the help of ‘Gundas’ she would throw them out from their house. The appellant is presently living in their house. Due to cruel behaviour of the appellant they have separated our son.

With respect to the cross-examination of this witness we find that except for giving suggestions as per her written statement, no serious attempt has been made to discredit the witness and needless to state the suggestions made by the appellant have been denied by the witness.

Guljari Lal, a neighbour, who appeared as PW3 deposed that he resided near the house of the parties. Often as he passed by the matrimonial house of the parties he heard appellant abusing her in-laws. He had witnessed the incident where appellant accompanied by 15-16 persons came to the house where the couple resided and abused the in-laws of the appellant. One day appellant hit her husband with a helmet and when his father heard, he tried to intervene. But refrained from doing so. During cross-examination he admitted that he was present at some meetings held between the parties and denied the general suggestions made to him.

Appearing as defence-witness appellant deposed facts as pleaded by her in her written statement. She denied the suggestions put to her with respect to the incident pleaded by the respondent in the petition seeking divorce.

Appellant examined one Bhagirath Meel who is the father-in-law of the elder sister of the appellant. As per him, dowry was the sole reason behind the dispute between the parties. As per him, after appellant’s father retirement, respondent’s family demanded more money. He attended various meetings to resolve the issue but failed. General suggestions made to the witness during cross-examination have been denied by him. Hanuman Singh a family friend appeared as DW3. His testimony only brings out that he was a part of the team which tried to mediate but failed.

Prashant Meel a relative of the appellant appeared as PW4 and said that at the time of marriage appellant’s parents spent nearly `30 lacs. As per him, on 03/08/2009 appellant’s father rang from Baroda requesting him to reach the appellant’s house immediately because appellant had informed her father that she was being beaten. When he reached the matrimonial house he saw that the respondent and his mother were beating the appellant. He deposed that he attended 8-10 meetings held [CMA-849/2015] (14 of 17) towards reconciliation at which meetings the respondent and his father admitted to their guilt and assured not to repeat the behaviour. As per him, after appellant gave birth to a child her father informed him. He reached the hospital. Information of the birth was given to the respondent and his father. They did not visit the hospital. That respondent and his parents used to call the appellant as a prostitute and used to raise issue of legitimacy of the child born. At the meeting held at Ghasi ji Punia’s house it was decided that a fixed deposit in the name of the appellant would be given to the respondent’s father who would return the jewelry to the appellant. The settlement was reduced in writing. Respondent’s father did not accept the cheque which was returned by Mr.Punia that it was decided that couple will live in the same house by having a separate kitchen.

Relevant would it be to highlight that general suggestions given to the witness in cross-examination have been denied by him.

Banwari Lal, father of the appellant deposed as DW5 and deposed facts in support of his daughter. General suggestions made to her during cross-examination have been denied by the witness.

The learned Judge Family Court has returned a finding that the evidence establishes both the parties indulging in mutual bickering and inflicting cruelty against each other. In cases of the kind oral depositions of the parties tends to be full of exaggerations. In the instant case no bickering cross-examination of any witness as cause of handicap for the reason we have our basis to mass of oral evidence giving the rival version. But we [CMA-849/2015] (15 of 17) want to highlight certain facts which in our opinion would clinch the issue.

In para 15 of the petition seeking divorce the respondent pleaded that on 09/12/2010 when he returned home in the evening his wife injured his mother and when his father intervened she bit him on right thigh. Ramlal as PW2, respondent’s father has corroborated this version. In support of the version he has placed on record a photo of his right thigh as also the medical prescription. With respect to this incident appellant has pleaded that on said date her father-in-law attempted to rape her by removing his pant. She managed to free herself from her clutches. It is apparent that same incident took place on 09/12/2010 and it is difficult for the Court to believe that her father-in-law would attempt to rape his daughter-in-law and that too when his wife was present in the house. In this connection, it would be relevant to highlight that in her examination-in-chief the appellant has not uttered a word on oath that her father-in-law attempted to rape her. This raises a finger of doubt about the correctness of her version in her pleadings. It brings out a false allegation of serious nature being made by the appellant against the respondent’s father.

We find that in para 19 of the petition respondent pleaded facts pertaining to he being booked in the police station implicated in a case after he was beaten and he being arrested at the behest of the appellant and her father. In examination-in-chief he deposed too this incident which took place on 30/05/2011. Arrest Memo dated 30/05/2011 and proceedings initiated under Section 107/116 Cr.P.C. establish the same but we have the [CMA-849/2015] (16 of 17) respondent’s medical examination report when he was examined at Kanwatiya Hospital, Jaipur on 31/05/2011 as an outdoor patient which shows that respondent was the victim of an assault. It also assumes importance to note that in her written statement the appellant stated that she was subjected to beating many times before 30/05/2011 but during cross-examination stated that for the first time she was beaten on 30/05/2011. It is also relevant to note that in her reply the appellant claimed dowry demands when she came to her matrimonial house in Jaipur after marriage but in her statement on oath deposed that dowry demand was made over telephone when she was in the house of her parents. Concerning no injury suffered by her on 12/01/2011, when as per the written statement filed the appellant claimed to be injured by ‘musli’ by her father-in-law we find that in cross-examination she admitted that she was not injured by a ‘musli’ and said that the reason was because she warded off the attack. This once again a variation in what the appellant pleaded and what she deposed. Pertaining to the incident dated 12/01/2011 a photograph and police report as well as the injury report dated 13/01/2011 show injury with a blunt object given on the face of the respondent- husband and tends to establish the version of the respondent.

Assuming the witnesses of the appellant are to be believed, it would be a case where even the witnesses of the respondent who have been believed to be truthful witnesses would lead to the conclusion that both parties were in mutual recremation with each other and were inflicting cruelty, both mental and physical upon each other. Though irretrievable break [CMA-849/2015] (17 of 17) down of marriage is not a ground for divorce but the judgments reported as 2006 (2) Mh.L.J. 307 : Madhvi Ramesh Dudani Vs. Ramesh K.Dudani, 2007(4) KHC 807 : Shrikumar Vs. Unnithan Vs. Manju K.Nair, (1994) 1 SCC 337 : V.Bhagat vs. D.Bhatgat and (2006) 4 SCC 558 : Navin Kohli Vs. Neelu Kohli provide that the concept of cruelty has been blended by the courts with irretrievable break down of marriage. The ratio of law which emerges from the said decisions is that where there is evidence that the husband and wife indulge in mutual bickering, leading to remonstration and therefrom to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason, the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatize the other. The marriage between the parties was rocky from the very beginning. Evidence brings out that rather the two sharing each other company for a happy married life, the days were spent in turbulence.

Accordingly, the appeal is dismissed and the impugned judgment is affirmed.

(G R MOOLCHANDANI), J. (PRADEEP NANDRAJOG), CJ Anil Goyal-PS

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