IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
FAO No.M-119 of 2010
Date of Decision: July 24, 2013
CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL, HON’BLE MR. JUSTICE JASPAL SINGH
Present : Mr. Shiv Kumar, Advocate for the appellant.
Mr. Rakesh Nehra, Advocate for the respondent.
JASPAL SINGH, J.
Aggrieved against the judgment and decree dated January 16, 2010 passed by the learned District Judge, Family Court, Faridabad whereby the marriage between the parties was dissolved, the appellant-wife has preferred the instant appeal.
2. The marriage between the parties was solemnized on April 20, 1988 at village Godata, Tehsil Hodal, District Faridabad. The parties cohabited and out of their wedlock, four children namely Ms. Jyoti, aged 16 years, Master Deepak, aged 14 years, Ms. Swati, aged 10 years and Ms. Pooja, aged 7 years were born, who are residing with their mother.
3. It has been alleged by the husband-respondent in this appeal that after the marriage, he found that his wife is a quarrelsome woman and has no respect either for the petitioner/respondent or for his family members or even relatives and friends. Even she used to give severe beatings to his father. She never entertained his any of relatives or friends. Rather, she used to pick up quarrels on petty matters. She also used to shout and create scenes in mohalla while coming out in the street. Though, the parents of the respondent/appellant-wife were asked to make her understand and behave properly but all in vain. She also used to leave the matrimonial home without his consent or the consent of his family members. In March, 2001 at 10.30 p.m. she left the matrimonial home and reached her parental home on the next day at 9:00 a.m. Thereafter, she joined her matrimonial home in October, 2003 after several panchayats were convened but despite that, she failed to mend her ways. There was no sexual relationship between him and the respondent-wife, when she stayed in the matrimonial home. She used to visit her parental house in every six months and return to the matrimonial home after six months. She never stayed continuously in the matrimonial home for a year. He is the only son of his parents and have various immovable properties. Even their land was also acquired by the State Government, which fetched compensation to the tune of ` 7 crores. The respondent as well as her family members have an evil eye on his money and properties as well as of his father. Though, he always behaved with her as a good husband and even in his LIC policies, he always made her as nominee. Yet the respondent and other members of her family pressurized him to deposit the amount of compensation and transfer half of his property in her name. When he showed his inability to do so, the respondent and her family members put pressure upon him to live separately from his father, for which, he did not agree. The respondent and her other family members also started extending threats to implicate him in false dowry case, in case, he fails to fulfill their demands. Mahipal, brother of respondent/appellant alongwith Sham Sunder, Advocate and his son Devender Kumar, Advocate (uncles and cousin of respondent) always instigated the respondent in this regard. False reports have also been got made against him with a view to harass him. It has further been alleged that in 2001, the respondent went to her parental home and refused to return to join his company until and unless, he deposits a sum of `2 crores and transfers half of his share of the agricultural land in her name. On November 24, 2003 at 6:00 p.m., he received a telephone call from the respondent to the effect that she is not feeling well. Accordingly, he reached at her parental house and found her unwell. Immediately, he took her to Escorts Medical Centre, Faridabad where she was got admitted for treatment. At that time, she pretended to be seriously ill and in conspiracy with the hospital staff, remained admitted there till December 26, 2003. Sufficient amount was spent on her treatment which was borne by him. Even he donated his blood and also got donated from his relatives and friends at that time. In fact, the respondent was pressurizing him and his father to deposit a sum of `2 crores and also to transfer some immovable properties in her name. FIR No. 686 dated December 2, 2003 was also got registered by the respondent in Police Station, City, Ballabhgarh alleging that he administered poison to her with an intention to kill her. His father being an illiterate person succumbed to the pressure exercised by her parents and relatives and agreed to transfer whatever amount was in his bank account, in the name of the respondent i.e. `1.67 crore after the meetings in Badram Farm on December 25, 2003 and on November 29, 2003. Due to the transfer of the heavy amount, his father lost his mental balance and finally expired in a road accident on April 28, 2004. It has further been alleged that though this amount was to be deposited in favour of the children but it was misused by the respondent, her brother Mahipal and other members of her family. Even after receipt of such a huge amount, she continued to treat him with cruelty by levelling false allegations. In a case registered against him, he was compelled to surrender before police on August 10, 2004 and had to remain in custody till his acquittal on December 21, 2005 by the Court of learned Additional Sessions Judge, Faridabad. The allegations were found to be false during trial. Not only this, the respondent-wife also levelled charges against him that he is a womanizer to harass him and his family members.
4. The petitioner-husband has further alleged that in fact, he has danger to his life at the hands of the respondent-wife and her other family members as they intend to grab his property and money. Even otherwise, the marriage between the parties has irretrievably broken. Though, Panchayats were convened consisting of respectable persons a number of times, yet the respondent-wife has refused to accede his legitimate request to join the matrimonial home, lastly on May 16, 2006. The respondent-wife has withdrawn herself from his society without any reasonable cause/excuse with effect from December 25, 2003 as she never returned to join his company. So, the respondent-wife has deserted him continuously for more than two years immediately preceding the presentation of the petition. It has further been averred that earlier, he had also filed a petition for divorce on May 25, 2006 which was fixed for hearing on August 31, 2006. Since, he intended to settle the dispute amicably, the petition was withdrawn as a prior condition was laid for withdrawal of the petition. So, he withdrew the petition on June 03, 2006. Even, thereafter, he was treated with cruelty. Ultimately, he was constrained to prefer petition under Section 13(1) of the Hindu Marriage Act for grant of decree of divorce by dissolution of his marriage with the respondent-wife on the ground of cruelty as well as desertion.
5. Upon notice, the respondent appeared and resisted the petition. She filed written statement raising preliminary objections inter alia on the grounds that the petitioner-husband has not come to the court with clean hands and suppressed the material fact with regard to the institution of petition No.39 dated 25.05.2006; that the petition is not maintainable; that there is no cause of action to file the petition and that the petition is false, frivolous and deserves to be dismissed.
6. On merits, the marriage as well as cohabitation and the birth of four children out of their wedlock has been admitted.
However, it has been denied that less dowry was given at the time of marriage. In fact, the petitioner and his family members were not satisfied with the dowry given at the time of marriage, she was subjected to harassment and humiliation for years. The allegations that she is a quarrelsome lady and used to pick up quarrels on petty matters has been denied. It has also been denied that she gave beatings to the father of the petitioner. Rather she performed/discharged all the household duties very well. True facts are that the petitioner disliked her and always desired to get rid of her by all means. She was respectable, obedient and discharged her marital obligations during her stay in her matrimonial home. The Panchayats, which were convened, were only for counseling the petitioner so that he could treat her and children properly. Even the father of the petitioner has more trust in her than that of his son. She never left the matrimonial home without the consent of the petitioner and his family members. Even she did not leave the house of the petitioner in March 2001 as alleged. In fact, she was severely assaulted and turned out from the matrimonial home but due to the intervention of the elders and other respectable of the family when her husband apologized of his conduct or behaviour, she returned to the matrimonial home. It has also been alleged that she had no knowledge about the acquisition of land or receipt of compensation by them or that out of love and affection, she was made as nominee in his LIC policies by the petitioner, which was nothing but for saving the tax. The petitioner-husband was never pressurized or compelled to live separately from his parents or to deposit money or to transfer any share in the property in her name. Similarly, no threats were ever given by her or her family members either to the petitioner or his family members to involve them in false dowry or other criminal case for not fulfilling their demands. It has also been denied that in 2001, she went to her parental home and refused to join her matrimonial home with a pre condition to transfer a sum of `2 crores and half share in the agricultural land as alleged by the petitioner. It has also been denied that she ever pretended that she is seriously ill or remained in the hospital in connivance with the hospital staff from November 24, 2003 to December 25, 2003. Neither the petitioner got treated her in any hospital nor spent any amount on her treatment. The allegations contained in the FIR No.686 of 2003 were true and correct. She has no knowledge that the petitioner remained in custody for one and half year or that he was subsequently acquitted. The petitioner-husband was never treated with cruelty by her. It has further been alleged that there has been no cohabitation after May 16, 2006 after his acquittal, she extended threats to him. The respondent -wife prayed for the dismissal of the petition.
7. On the pleadings of the parties, the following issues were settled for adjudication:-
“1. Whether respondent has caused cruelty to the petitioner?OPP
2. Whether the petition is bad for suppression and concealment of material facts?OPR Sonika 2013.10.04 14:49 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-119 of 2010 ::8::
3. Whether the petition is barred under order 2 rule 2 CPC? OPR
4. Whether the petition is liable to be rejected under the provisions of order 7 rule 11 CPC.
8. Both the parties were afforded ample opportunity to adduce and conclude their evidence in support of their respective claims by the learned trial court and they led oral as well as documentary evidence.
9. In order to substantiate his case, the petitioner-Kesar Dagar, himself stepped in the witness-box as PW-1 and submitted his sworn affidavit Ex.PW1-A, reproducing in the contents of the petition. He also examined Vijay Pal Chaprana, Advocate, District Court, Faridabad as PW-2; Shri Naim Singh as PW-3, who submitted his affidavit Ex. PW3-A. He also placed on record various documents Ex. P-1 to P-25.
10. On the other hand, respondent-Smt. Bimla appeared herself in the witness-box as RW-1 and submitted her sworn affidavit Ex.RW1-A. She also examined Mahipal, her brother as RW-2, Devender Singh as RW-3 and Deepak as RW-4, who have corroborated her version.
11. After hearing learned counsel for the parties and appraisal of the material on record, the decree for dissolution of the marriage on the ground of cruelty was passed in favour of the petitioner-husband and against the respondent-wife.
12. Being aggrieved, the respondent-wife filed the instant appeal, which was admitted for hearing on December 01, 2010. Notice of the appeal was also given to the respondent-husband and Mr. Rakesh Nehra, Advocate represented him.
13. Lower Court record was also requisitioned and received.
14. We have heard learned counsel for the parties at length and have minutely scanned the evidence available on the file.
15. While assailing impugned judgment and decree and the findings recorded by the learned District Judge (Family Court) Faridabad, it has been vehemently argued by the learned counsel for the appellant-wife that the same are absolutely against the evidence available on the file and settled canons of law. Mis-appreciation of the evidence as well as the legal preposition has resulted into miscarriage of justice. In fact, the respondent-husband has miserably failed to prove the ground of cruelty on the basis of which, the impugned judgment and decree for the dissolution of the marriage has been passed by the learned District Judge. Merely, because the appellant-wife did not cook meals, wash the clothes or quarrelsome lady or that she used to pick up quarrels on trivial matters, not only with the petitioner as well as with his parents, cruelty is not established. Such instances can only be termed to be the wear and tear in the family. There is no sufficient evidence available on the lower court records to establish that the respondent-wife treated the petitioner-husband with cruelty or that there was reasonable apprehension in the mind of the husband-respondent arising out of quarrels. Even, there is no specific instance of mental cruelty pleaded or proved by the husband-respondent. To buttress this contention, learned counsel for the appellant has placed reliance on the judgment of the Division Bench of Kerala High Court delivered in case titled as “Chandrasekharan vs. Santhamma”, 1999 (2) RCR (Civil) 180″. He also relied upon the Hon’ble Apex Court judgment rendered in case titled as “Shoba Rani vs. Madhukar Reddi,” AIR (1988) 1 (SCC) 105″. It has been urged by the learned counsel for the appellant that when the cruelty is not admitted then it is required to be proved on the preponderance of probabilities as in the civil cases and not beyond a reasonable doubt as in criminal cases.
16. While developing his further argument, it has been contended that mere registration of the FIR at the instance of the appellant-wife is itself no ground to hold that the appellant-wife has treated the respondent-husband with cruelty. Initiation of legal proceedings for the redressal of the rights or for punishment to the wrong-doer cannot be said to be acts of cruelty especially in the circumstances when no proceedings have been initiated by the respondent-husband against the appellant-wife to the effect that the prosecution by her was malicious. Similarly because the appellant- wife was not able to prove beyond a reasonable doubt so as to warrant the conviction does not mean that allegations have caused cruelty. The judgment of the criminal court is only relevant to the effect that the respondent-husband is acquitted but was acquitted from criminal proceedings by giving benefit of doubt, which cannot be termed as acts of cruelty. To fortify this contention, learned counsel for the appellant has placed reliance on the judgment of the learned Single Bench of this Court titled as “Radha Rani vs. Har Bhagwan”, 2004(3) PLR 335.
17. It has been further argued by the learned counsel for the appellant that there is sufficient evidence on record in the shape of statements of appellant-Bimla as RW-1, Mahipal, her brother as RW-2, Devender Singh as RW-3 and Deepak as RW-4 that appellant-wife had been subjected to dowry related torture from which it can be safely inferred that the wife was treated with cruelty by her husband and his family members. To fortify his contention he has relied upon the pronouncement of the Division Bench of this Court delivered in case titled as “Gurjeet Singh vs. Amarjit Kaur”, 2007(2) (RCR)(Civil)36.
18. As far as amount of `1.67 crore paid by the father of the respondent-husband is concerned, that was paid to the children and the payment of that amount was not made on the basis of any settlement-cum-compromise between the parties. In fact, the respondent-husband has miserably failed to establish that the said amount was extracted by the appellant-wife from his father by exercising pressure and coercion on him. No false allegations with regard to the character of the respondent-husband was ever levelled by the appellant-wife and there is no question of lodging any false complaint or extending threats to implicate the respondent-husband and his family members in a false dowry case and any other type of case. The judgment rendered by the learned District Judge is absolutely based on conjecture and surmises and there is no cogent or convincing evidence to establish the ground of cruelty. So, the impugned judgment and decree are liable to be set aside by way of acceptance of the instant appeal.
19. Per contra, while controverting the arguments put forth by the learned counsel for the appellant, it has been submitted by the learned counsel for the respondent-husband that the impugned judgment dated 16.01.2010 passed by the learned District Judge (Family Court) Faridabad is well reasoned and is absolutely inconsonance of the evidence available on the file and established principle of law. The instant appeal is nothing but an abuse of the process of law and deserves to be dismissed with cost.
20. We have given an anxious consideration to the rival submissions made by the learned counsel for the parties and have scanned the evidence available on the lower court records.
21. Undeniably, the marriage of the parties was solemnized on April 20, 1988. The marriage was cohabited and out of their wedlock four children i.e. three daughters and one son were born, who are residing with the appellant-wife. It is also an undisputed fact that the parties are living separately since December 2003. The instances of cruelty alleged by the respondent-husband are that (i) the appellant-wife got registered an FIR against him bearing No.686 dated 02.12.2003 under Sections 328 and 498-A IPC at police station Ballabhgarh; (ii) that the respondent-husband has developed illicit relations with some other girl; (iii) that the husband-petitioner has received crores of rupees in the year 1992-93 in respect of the acquired land and thereafter, he also developed illicit relations with some other ladies and started assaulting her; (iv) that the respondent-husband was arrested in the criminal case registered against him by the appellant-wife on August 10, 2004 and remained in custody till his acquittal on December 21, 2005; (v) that the appellant-wife also preferred Criminal Revision No.2504 of 2006 challenging the judgment of acquittal, which has since been dismissed by the Hon’ble High Court on August 6, 2009; (vi) that by putting pressure on the father of the respondent-husband, she managed to obtain a sum of `1.67 crore out of which major portion was mis-utilized/misused by her; (vii) that she extended threats to implicate her husband in false case; (viii) and that the appellant-wife has deserted him without any reasonable cause on w.e.f. December 25, 2003.
22. Under Section 13(1)(ia) of the Act, the marriage can be dissolved by a decree of divorce on a petition preferred either by the wife or husband on the ground of cruelty and that the other party after the solemnization of marriage has treated the petitioner with cruelty. In a catena of cases, the Hon’ble Apex Court as well as High Courts have repeatedly stated the meaning and outlined the scope of term ‘cruelty’. Cruelty is evident where one spouse so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. The cruelty may be physical or mental, in “Samar Ghosh vs. Jaya Ghosh, 2007(4) SCC 511”. Hon’ble Apex Court set out some illustrious cases where inference of mental cruelty can be inferred. This pronouncement was relied upon by the Hon’ble Apex Court in case “K. Srinivas Rao vs. D.A. Deepa, 2013 (5) SCC, 226”. Para 11 of this judgment reads as under:-
“11. In Samar Ghosh this Court set out illustrative cases where inference of “mental cruelty” can be drawn. This list is obviously not exhaustive because each case presents its own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case: (SCC pp.546-47, para 101) “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) * * *
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii)- (ix) * * *
(x) The married life should be reviewed as a
whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi)-(xiii) * * *
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
23. To the instances illustrious of mental cruelty listed in Samar Gosh’s case (supra) another circumstance was added by the Hon’ble Supreme Court in para 16 of the judgment, which reads as under:-
“Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to other spouse.”
24. In case “R. Nagarathna and others vs. Dodda Channaiah, 2010(7) RCR (Civil) 1095” the Division Bench of Karnatka High Court also observed to the effect that the evidence disclosed in the criminal complaint given by the wife against the wife in criminal case has not deposed in support of her complaint. The fact of moving false complaint itself amounts to cruelty and the grant of divorce on the ground of cruelty, is sound and proper.
22. Similarly, the Division Bench of Andhra Pardesh High Court while relying upon pronouncement of Hon’ble Apex Court in “K. Radha Raju vs. K. Seetharania Raju, 2001 (6) ALT 350” and “Kotti Veera Ventaka Padmavathi vs. Kotti Sriram, 2003(2) RCR (Civil) 380” had observed that filing of false criminal complaint under Section 498-A IPC by the wife in which the husband was acquitted, itself amounts to cruelty and the husband is entitled to divorce.
23. In case “K. Radha Raju vs. K. Seetharania Raju, 2001 (6) ALT 350” Hon’ble Apex Court was pleased to hold as under:-
“Hindu Marriage Act, 1955 Secs. 13(1)(ia) and 9- Divorce on the ground of cruelty- It is not necessary to establish that cruelty is such as to cause a reasonable apprehension that it would be dangerous for the petitioner to live with his spouse- Though the petitioner could not establish prior to the filing of the petition but subsequent to the filing of the petition, the wife gave false complaints to the police in respect of alleged harassment made one year prior to leaving the matrimonial home, resulting in the arrest of the petitioner- She filed also a complaint with Women Protection Cell in respect of incidents happening one year back and thus maligning and harassing the petitioner – These acts certainly constitute cruelty and the court below is justified in ordering dissolution of marriage- Further, for the same reasons the wife is not entitled to seek restitution of conjugal rights.”
24. Adverting to the facts of the case in hand, it is amply proved from the various documents on record that the parties are living separately since December 2003 and an FIR was got registered by the appellant-wife against the respondent-husband bearing No.686 dated 02.12.2003 under Sections 328 and 498-A IPC at police Station Ballabhgarh. The respondent-husband was arrested in this case and remained in custody for more than 1½ year. Ultimately, he was acquitted on December 21, 2005, vide judgment Ex. P-5. The matter did not end here, the appellant-wife also preferred Criminal Revision No.2504 of 2006 against the judgment of acquittal, which was also dismissed by this Court on August 6, 2009 vide order Ex. P-15. An allegation was also levelled by the respondent-wife that she was forcibly administered poison by her husband to get rid of her and for making the way clear for having extra-marital relations with some other ladies. But no plausible or cogent evidence was adduced by the appellant-wife to substantiate these allegations. Making unfounded, indecent and defamatory allegations against the spouse or his/her relatives in the pleadings or during the course of cross-examination, ultimately, results into mental pain and agony. In case Vijay kumar Ramchandra Bhate Vs. Neela Vijay Kumar, (2003) RCR (Civil) SCC 334, the Hon’ble Apex Court observed that disgusting accusations of unchastity and indecent familiarity with a neighbour were raised in the written statement are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of
“cruelty” in matrimonial law causing profound and lasting disruption and driving the spouse to feel deeply hurt. In the instant case such allegation appears to have been levelled with mala fide intention just to tarnish the image and reputation of the husband. The instances of cruelty proved on record are sufficient to hold that they have caused not only physical but mental cruelty also to the respondent. Not only this, the father of the husband-respondent was also pressurized to part-with a sum of `1.67 crore lying in his account. Only a sum of `50 lakhs (approximately) was utilised for purchasing of property in the name of children and the major portion of the amount was misused/misappropriated. Moreover, allegations of the appellant-wife were only that he disliked her and used to harass or treat her with cruelty on account of insufficient dowry brought at the time of marriage. But these allegations are also not proved on record. Rather, it can be safely inferred that there was no such demand or harassment especially in the circumstances that after the marriage, the parties lived together for a period of 15 years, cohabited and four children were born out of their wedlock. The appellant-wife left the company of her husband/respondent in the month of December 2003.
25. In Shobha Rani’s case it was observed that to determine cruelty mental or physical, intentional or unintentional, it is a question of fact and degree and every case has its own peculiar facts which are to be considered.
26. The authorities relied upon by the learned counsel for the appellant during the course of arguments are distinguishable on facts. In Chander Shekharan’s case (supra), there was only some instances with regard to the quarrel or heated exchange of words between the husband and wife and further no reasonable apprehension in the mind of the husband arising out of quarrel was proved, whereas there are specific instances in the case in hand. In Radha Rani’s case (supra) the judgment was based on its own facts, which is thus distinguishable.
27. No other point was urged by the learned counsel for appellant to assail impugned judgment and decree.
28. In the light of what has been discussed above, we are of the considered view that the husband-respondent has fully established that he was treated with cruelty by the appellant-wife. So, there is no justification to cause any interference either in the findings recorded by the learned District Judge or in the impugned judgment and decree dated 16.01.2010.
29. In the light of the above, findings are affirmed and the impugned judgment and decree dated 16.01.2010 are upheld. Consequently, the instant appeal being without merits is dismissed.
(AJAY KUMAR MITTAL)
July 24, 2013 JUDGE
I attest to the accuracy and integrity of this document Chandigarh