Striking off defence in Maintenance case

In the High Court of Punjab and Haryana at Chandigarh

FAO No. M- 187 of 2012

Date of Decision: April 3rd, 2013

Sanjay Kumar—Appellant
versus
Bhateri—Respondent

Coram: Hon’ble Mr. Justice Rajive Bhalla

Hon’ble Mrs. Justice Rekha Mittal

Present:
Mr. A.S.Syan, Advocate, for the appellant
Mr. Ashish Yadav, Advocate,for the respondent.

REKHA MITTAL, J.

The present appeal lays challenge to the judgment and decree dated 11.2.2012 passed by the Additional District Judge, Narnaul, whereby the petition filed by respondent-wife, Bhateri for dissolution of marriage of the parties under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the HMA”) has been allowed and the marriage of the parties is dissolved by a decree of divorce.

The facts relevant for disposal of the present appeal are that the parties entered into wedlock on 1.5.2001. As per averments of the petitioner-wife (respondent herein), she stayed in her matrimonial home for two days after marriage but the marriage was not consummated. She was maltreated by her husband and he never shared bed with her. She came back to her parental house and narrated her story. She was sent back to the matrimonial home after persuasion that the things may improve. During her stay in the matrimonial house, the respondent (appellant herein) never treated her as a wife. The appellant had not been coming to the house for many nights and if he came back to the house at night time, he came in a drunken condition and abused her. All efforts made by the respondent to make him understand, proved futile as he proclaimed that he had many girls in his life and in case the respondent wanted, she would be sent to his friends for sexual relationship. The respondent, on enquiry learnt that the appellant is a man of loose character and indulges in bad habits of drinking alcohol, consuming intoxicants and roams around here and there. She was given beatings by the appellant after consuming alcohol. She stayed in the matrimonial home for more than four years but the appellant did not mend his ways or cohabit with the respondent. She was turned out of the matrimonial home in June 2005 and since then she is living at her parental place. The appellant filed reply, controverting the allegations of the petition and in turn, raised the plea that the respondent was given proper treatment during her stay with him. She told the appellant that she did not want to stay in the village and they should shift to a city. As he was unemployed and did not have any experience of city life, he could not accede to the illegal demand of the respondent. The respondent left the matrimonial home without any valid reason and took away jewellry and other articles of her Istridhan. She refused to come back to the matrimonial home despite his best efforts. He filed a petition under Section 9 of the HMA for restitution of conjugal rights which was decided in his favour without any contest by the respondent-wife but she did not return. All other material averments of the petition have been denied with a prayer for dismissal of the petition with costs.

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The controversy between the parties led to framing of following issues by the learned trial Court:-

1. Whether the petitioner is entitled to get dissolved her marriage by way of a decree of divorce under Section 13 (1) A of Hindu Marriage Act on the grounds as mentioned in the petition? OPP.

2. Whether the petition is not maintainable? OPR

3. Whether the petitioner has no cause of action and locus standi to file and maintain the present petition? OPR

4. Relief

The petitioner herself appeared in the witness box and examined Ramchander PW-2 and Raghubir Singh Lambardar PW-3. The appellant-husband did not lead any evidence as his defence was struck off for want of payment of interim maintenance allowed to the respondent-wife under Section 24 of the HMA. Counsel for the appellant submits that the respondent-wife has raised vague and general allegations which do not constitute cruelty of the kind and severity as to become basis for grant of divorce. It is further argued that the appellant wanted to live with the respondent but she left the matrimonial home as she could not adjust there being well educated and found it difficult to stay in a village. It is further argued that the appellant filed a petition for restitution of conjugal rights which was allowed by the Court but even thereafter the respondent did not resume conjugal rights. The respondent herself is a guilty spouse for depriving the appellant of his conjugal rights, therefore, the respondent cannot be allowed to take advantage of her own wrong. The last submission made by counsel is that as the respondent did not resume cohabitation after the decree of conjugal rights, she is not entitled to get any maintenance during her stay away from the matrimonial home and the order passed by the trial Court granting maintenance allowance and striking off defence for failure to pay maintenance, are illegal and liable to be set aside and the matter needs adjudication afresh after providing an opportunity to the appellant, to lead evidence.

Counsel for the respondent submits that the appellant has not challenged the version of the respondent-wife, reiterated in her affidavit filed by way of examination-in-chief, which amounts to an admission by the appellant. It is further argued that the appellant husband is guilty of causing mental cruelty to the respondent-wife who, failed to consummate the marriage and to permit the respondent-wife to enjoy conjugal rights. It is further argued that the learned trial Court, on a correct and detailed appreciation of the pleadings and evidence adduced has rightly held in favour of the respondent thus, the judgment and decree passed by the trial Court is liable to be affirmed. We have heard counsel for the parties and perused the records of the trial Court.

Before we proceed to appreciate the merits of the case, it is necessary to recapitulate the legal position in respect of, what type of cruelty can form the basis for dissolution of marriage. Cruelty and the degree of cruelty necessary to constitute a matrimonial offence has not been defined under the HMA, may be for the reason that no comprehensive definition may cover all cases. However, there is no quarrel with the settled position of law that cruelty includes both physical and mental. Equally true is that unlike in the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from the cumulative effect of facts and circumstances of each case and not from an isolated instance. However, it can be said as a principle of law that cruelty contemplated is conduct of such type that the aggrieved spouse cannot reasonably be expected to live with the other spouse. Cruelty may consist of a single act or conduct of the guilty spouse or it may consist of a series of acts. The existence of cruelty depends not on the magnitude of acts or conduct but on consequence they produce on the other party. The harm apprehended may be mental suffering for pain of mind may be more severe than bodily pain.

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On an analysis of the pleadings, the respondent staked her claim for seeking divorce inter alia alleging, (i) the appellant-husband did not develop/maintain physical relationship and the marriage was not consummated, (ii) she was subject to maltreatment and beatings as and when the husband came back to the house at night in a drunken condition.

The respondent, in her statement on oath, asserted her plea set out in the petition by way of an affidavit tendered in chief examination. She was subject to cross examination by opposite counsel. However, during her cross examination, there is no challenge to her testimony to the effect that there was no sexual relationship between the parties and their marriage remained unconsummated during her stay in the matrimonial home for a period of about four years. The inability and failure of the appellant to assail her version in this regard is deemed to be an admission of the appellant. A normal and healthy sexual relation is one of the basic ingredients of a happy and harmonious marriage. Willful or intentional denial of sexual relation by a spouse, in our considered opinion, amounts to mental cruelty, particularly when parties are young and newly married. As the appellant-husband did not allow the respondent- wife to enjoy her conjugal rights and satisfy her biological need, the respondent-wife has suffered mental trauma which constitutes mental cruelty and can form the basis for divorce.

It has been proved on record that two sisters of the respondent, younger to her, namely Kiran and Saroj are married to real brothers of the appellant and they are leading a happy married life. It is difficult to believe that had the respondent been happy, there could be any reason for her to complain much less to seek divorce knowing fully well that her other sisters are enjoying their matrimony. The appellant-husband neither could challenge the correctness of the averments brought forth by the respondent-wife nor lead any evidence in affirmative to controvert the allegations of the petition or testimony of the respondent. The defence of the appellant was struck off by the trial Court as he failed to pay maintenance allowance in compliance with an order passed under Section 24 of the HMA. There is no material on record which can create even a slightest doubt in the version set out by the respondent or to impeach her credibility and veracity. The duly sworn testimony of the respondent remains altogether unchallenged and unrebutted. Her statement finds corroboration from the witnesses examined by her and even their testimony, on material points, has not been challenged during cross examination. The learned trial Court has rightly relied upon the evidence adduced by the respondent to record a finding that the appellant is a guilty spouse for subjecting his wife to mental cruelty which can validly constitute a ground for divorce. To be fair, counsel for the appellant has made a faint attempt to argue that as the appellant-husband obtained a decree of restitution of conjugal rights and the respondent-wife did not resume cohabitation after the decree, she was not entitled to get any maintenance allowance, therefore, the order with regard to payment of maintenance is null and void and the order striking off defence of the appellant on account of his failure to pay maintenance allowance, is liable to be set aside and thereafter the case is liable to be remanded to the trial Court for adjudication afresh after providing an opportunity to lead evidence by the appellant.

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The respondent during her examination has admitted that the appellant-husband filed a petition seeking restitution of conjugal rights and the same was allowed ex parte on 28.4.2011. A photo copy of order dated 28.4.2011 is mark “A”. There is neither any plea nor any evidence on record to prove that the appellant ever informed his wife of the ex parte decree much less called upon her to resume cohabitation. This apart, the appellant-husband, did not challenge the order, allowing the application of the respondent granting her maintenance pendente lite. As the husband did not challenge the order of maintenance allowed to his wife, he cannot be heard to say that either he was not liable to pay maintenance or his defence was wrongly struck off. The appellant-husband also did not challenge the order striking off his defence. Even otherwise, the mere grant of a decree for restitution of conjugal rights in favour of a husband cannot create a legal bar to claim maintenance by a destitute wife who has no income to maintain herself. We would hasten to add that disobedience of a decree for restitution of conjugal rights is not a ground in terms of Section 24 of the HMA to deny a claim for maintenance to a party who otherwise satisfy the ingredients of the said provision. Reference in this context can be made to a judgment of this Court in Shyama vs. Sanjay Chopra 2000(1) RCR (Civil) 126. In this view of the matter, the contention of counsel is untenable. We find no reason to interfere in the judgment and decree passed by the trial Court. In view of what has been discussed hereinabove, finding no merit in this appeal, the same is accordingly dismissed. No order as to costs.

( REKHA MITTAL)

JUDGE

( RAJIVE BHALLA)

JUDGE

April 3rd, 2013

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