Jammu & Kashmir High Court
Brij Bala vs Surinder Kumar on 8 April, 2008
Equivalent citations: AIR 2008 J K 63, 2008 (2) JKJ 209
Author: M A Mir
Bench: M A Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. This civil first appeal is directed against the judgment and decree dated 20th of October, 2005, for short the impugned judgment, passed by Additional District Judge, (Matrimonial Cases), Jammu, whereby and where under suit of the respondent-plaintiff came to be decreed and marriage between the parties came to be dissolved.
2. Respondent-plaintiff filed a petition of divorce under Section 13 of the Jammu and Kashmir Hindu Marriage Act, 1980, for the short the Act, on the grounds of cruelty and desertion.
3. Appellant-defendant appeared and resisted the petition on the grounds taken in the written statement. Following four issues came to be framed:
1. Whether the respondent has been treating the petitioner with cruelty as a result of which living of petitioner with respondent is dangerous to his life? OPP
2. Whether the respondent has deserted the petitioner two years preceding to the presentation of petition in hand? OPP
3. Whether the petition in hand is not sustainable, if so, how? OPR
4. Respondent-plaintiff was directed to lead evidence at the first instance and he besides himself examined Sudha Rani, Ashok Kumar and Shakuntla Devi as his witnesses. Appellant-defendant besides herself examined Rash Pal Sharma, Rattan Chand, Om Parkash, Sham Lal, Ram Lal, Ashok Kumar and Ram Krishan.
5. After hearing the learned Counsel for the parties, the trial court decreed the suit in terms of the impugned judgment and marriage between the parties came to be dissolved by the decree of divorce. Trial Court also granted Rs. 2.5 lakhs as permanent alimony in favour of the appellant-defendant.
6. Feeling aggrieved the appellant-defendant preferred this appeal and questioned the impugned judgment and decree on the various grounds detailed in the memo of appeal.
7. It is necessary to give brief resume of the evidence of the parties herein:-Evidence of respondent-plaintiff:
8. Surinder Kumar-plaintiff-respondent has deposed that marriage in between the parties was solemnized as per “Dharm Shaster” on 3rd of March, 1994. But appellant – defendant slept on the said night with his mother and did not sleep in his bed room and also on the second night of the marriage she refused to sleep with him. Subash-brother of the appellant-defendant, came to their house with “Bhaji” just after the marriage and he was offered biscuits etc., but surprisingly she-appellant-defendant removed the plate of dainties in front of her brother and also snatched “paneer” from the hands of his “Bhabi” which she had to prepare/cook for him and she said that her brother is not the Prime Minister. On the first day of marriage she-defendant-appellant after spending at least one and half an hour in the bath room went to the roof top of their house clad in night dress and went to the house of Milky Ram on her own, took tea in that house and came back with Rs. 21 /- which were offered to her by Milky Ram as “Shagan”. He has also deposed that defendant-appellant was not supposed to work for a month as per the custom but she broomed the street and collected cow dung. She also refused to wear new clothes as per the custom. She insisted her husband to visit her parental house but he requested her that they would visit next day but she did not accede to her request and after losing tamper caught hold of him by shirt and was forced to accompany her. While traveling in the bus she misbehaved with one Kuldeep and caught hold of his shirt’s collar in presence of the passengers, it shocked him and co-passengers. When she was asked for reasons for such unbecoming behaviour she replied that foot of Kuldeep was touching her foot. She humiliated Kuldeep. The co-passengers managed his release. From Satwari, they had to board another Matador. She d ragged him in presence of so many people. He narrated the entire story to her father and her father consoled him and assured him that she would not repeat such behaviour and conduct. They came back from her parental house to their home and in the dead of night at 12 O’clock she asked him to return her handkerchief. She created a scene and entered into the room of his mother and asked his mother to get a new handkerchief for her in the morning and also paid Rs. 100/- to her. She neither slept herself nor allowed others to sleep. In the morning, she again demanded the handerchief and caught hold of his shirt’s collar and all the buttons fell down, which constrained him to change the shirt because he had to attend the office. In the evening, he again visited her parental house and informed her parents about the conduct and behaviour of their daughter. They again assured him that she will desist from repeating the said acts. Her two sisters, namely, Dolly and Babli visited their house with silver “Pazeb” for her but she refused to take “Pazeb” and abused them. He has further deposed that after ten days of their marriage she demanded soap from sister-in-law in the middle of night. She was not taking any meals or tea for days together and would leave the house without informing any of the family members. One day his elder brother asked her the cause for not eating, she replied that her sister-in-law had concealed her underwear. In 1996, her parents visited the house and were abused by her, her father objected and asked her for reasons for such un-becoming behaviour, attitude and conduct. She replied that she was given in marriage forcibly without her consent. After noticing her behaviour she was got examined by Dr. Chander Mohan and she was also examined in the Psychiatric Hospital, Jammu. Dr. Surinder Mohan examined her in the hospital and advised them to get her admitted in the hospital but she and her parents refused to do so and then doctor prescribed medicines for one and half year or two years but later on she refused to take medicines also. PWs Sudha Rani, Ashok Kumar and Shakuntla Devi have corroborated the statement of the plaintiff in material particulars and have also proved the averments/contents contained in the plaint.
Evidence of appellant-defendant:
9. Appellant-defendant -Brij Bala has deposed that just after 3/4 days of their marriage her husband and his family members started beating her and abusing her for not bringing dowry, scooter and coloured TV and she was also turned out of the matrimonial home by them. She was asked to return with Rs. 50,000/-. She was brought back to the matrimonial home by her father who handed over Rs. 10,000/- to the respondent-plaintiff. He, father, expressed his inability to pay more dowry being poor. Plaintiff, elder sister-in-law and mother-in-law were offenly beating her. After two months she was again thrown out of the matrimonial home and was asked to get Rs. 50,000/- and is living in her parental house right from January, 1996. A “Baradari” was arranged after 1996 in her parental house which was attended by relations from both the sides. She has also deposed that she had marital intercourse with the plaintiff. She was never taken to any doctor/psychiatrist but was taken to Dr. Vijay Gupta’s clinic. She was neither treated by Dr. Chander Mohan nor Dr. Surinder before her marriage. She also deposed that she is ready to live with the plaintiff provided he and his family members will refrain from beating her and, making demands of dowry. She has never caught hold Kuldeep Raj by collar in any bus or Matador and also denied other allegations made by the plaintiff-respondent.
10. The appellant-defendant has failed to produce her brother and father as witnesses.
11. RW Rash Pal Sharma has deposed that she was told about beating by respondent. She has neither knowledge about beating or about the treatment of Chander Mohan nor any FIR was lodged by her or her parents against plaintiff.
12. RW Rattan Chand, has also deposed on the same lines as deposed by RW Rash Pal Sharma.
13. RW Om Parkash has deposed that the appellant – defendant told him about beating/cruelty came to know about the litigation recently.
14. RW Sham Lal deposed that her father is his good friend but he has never visited his plaintiff’s house and nor witnessed any quarrel/beating. He was told about dowry demands/beating by the defendant and not by her father.
15. RW Ram Lal has also deposed that he has never visited the matrimonial home of the parties. Neither the cash was given either by the defendant or by her parents to plaintiff in his presence nor any demand was made by the plaintiff.
16. She-defendant is living with her parents for last 9/10 years.
17. RWs Ashok Kumar and Ram Krishan have also deposed on the same lines.
Issue No. 1:
18. Respondent-plaintiff has proved by leading evidence that the behaviour of defendant-appellant was cruel. She not only humiliated him but also refused to, share the bed from the very first day of marriage and, sleep in his bed room.
19. PWs Sudha Rani and Ashok Kumar have specifically stated that appellant-defendant was continuously sleeping with the mother of the respondent-plaintiff in his mother’s room despite they requested her and made efforts to share the bed and to sleep in the bed room of the respondent-plaintiff.
20. PW Shakuntla Devi, who is nearest neighbour of the plaintiff-respondent has stated that she has seen appellant-defendant(wife) sleeping on the roof top (Kotha) all along and that too in winters.
21. The defendant-appellant has not rebutted the evidence of the plaintiff-respondent. There is ample evidence on the file that from the first day of marriage appellant-defendant has denied marital obligation and also created scene(s) right from the first day of the marriage. She from the first day of marriage restored to abnormal behaviour by, refusing to eat and creating atmosphere of unrest in the marital house on very trivial matters. She also humiliated the plaintiff by leaving the marital house without his and his family members knowledge.
22. The question is whether the conduct and attitude of the appellant-defendant amounts to cruelty and is a ground for divorce?
23. Delhi High Court in case titled Anil Bhardwaj v. Smt. Nirmlesh Bhardwaj reported as , has held that failure or refusal to effectuate sexual intercourse by wife without any reason would amount to subjecting the husband to cruelty. It is profitable to reproduce relevant portion of para-6 of the said judgment herein:
25. A normal and health sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married.
24. Apex Court in case titled Praveen Mehta v. Inderjit Mehta reported as , has held that when wife is non-cooperative in having sexual intercourse with her husband from the first day of marriage that amounts to mental cruelty. Further observed that abusing and mis-behaving with husband and leaving matrimonial home within few months from the date of marriage deprives husband of her company amounts to cruelty.
25. The cruelty is to be inferred from the facts of the case. Apex Court in case titled, Sujata Uday Patil v. Uday Madhukar Patil reported as 2007 AIR SCW 896, has held that cruelty may be inferred from the facts and matrimonial relations of the parties and evidence led by the parties. It is apt to reproduce para-7 of the said judgment herein:
7. The word “cruelty” and the kind or degree of “cruelty” necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kind of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view of the impact of the personally and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty.
26. Apex Court also in a case titled Sanghamitra Ghosh v. Kajal Kumar Ghosh reported as 2006 AIR SCW 5983, that how a marriage breaks down irretrievably because of incompatible temperament.
27. Apex Court in case titled Dr. N.G. Dastane v. Mrs. S. Dastane reported as , has held that court have to see and observe that whether the petitioner/plaintiff was treated by the defendant with such cruelty as to cause reasonable apprehension in his/her mind that it will be harmful and injurious for him/her to live with the defendant. Applying the test to the instant case, the plaintiff/ defendant has proved, as discussed above, that the behaviour, attitude and conduct of defendant/appellant was such which caused reasonable apprehension in his mind that it will be harmful and injurious for him to live with her. Further, there is ample evidence on the file that the petitioner was humiliated in presence of her family members, neighbours, relations and friends. Not only he was humiliated but he was deprived to enjoy the marital relations.
28. In the given circumstances, I am of the considered view that finding returned by the trial court on issue No. 1 needs no interference.
Issue No. 2:
29. There is ample evidence on the file that defendant-appellant deserted the plaintiff-respondent from more than two years.
30. Apex Court in a case titled Bipinchandra Jaisinghbai Shah v. Prabliawati reported as define the desertion. It is apt to reproduce relevant portion of para-19 of the said judgment herein:
19 In most cases of desertion the guilty partly actually leaves the other, but it is not always or necessarily the guilty party who leaves the matrimonial home. In my opinion, the party who intends bringing the cohabitation to an end, and whose conduct in reality causes it termination, commits the act of desertion : See also Graves v. Graves 1864.3 Sw. & Tr.350 (1); Pulford v. Pulford 1923-PMJ) Jackson v. Jackson 1924 P19(K); where Sir Henry Duke P. explains the same doctrine, You must look at the conduct of the spouses and ascertain their real intention.
31. Plaintiff has proved by leading ample evidence that wife-appellant left matrimonial home on her own and never made an effort to come back and settle in matrimonial home. Even, she was requested to have treatment but she refused to it. She has stated frankly that she never made an endeavour to return to matrimonial home. Admittedly, a “Baradari” was held in his house and plaintiff-respondent attended that meeting and was present in their house which suggests that he was all along willing to settle the issue, but the appellant-defendant had not, at any point of time, made any effort.
32. In order to constitute desertion within the meaning of the Explanation to Section 13(1) of the Hindu Marriage Act, there must be two elements present on the side of the deserting spouse, namely, the factum of his or her withdrawal and the accompanying animus deserendi, there must also be two elements present on the side of the spouse claiming to be deserted, namely, absence of his or her consent and the absence of conduct on his or her part giving the deserted spouse reasonable cause to form the animus deserendi.
33. Keeping in view the ratio laid down the aforesaid judgment read with the facts of the present case, I am of the considered view that she has brought cohabitation to an end, and she has withdrawn from the company of husband and left matrimonial home of her own. Having glance of the pleadings and evidence of the parties, plaintiff has proved that the appellant-defendant deserted him.
34. In the given circumstances of the case, I am of the considered view that finding returned on issue No. 2 needs no interference.
35. The trial court has directed plaintiff-respondent-husband to pay Rs. 2.5 lakhs as permanent alimony. He has not challenged that part of the judgment. Thus merits to be upheld.
Issue No. 3:
36. The appellant-defendant has failed to discharge the onus. However, the petition-plaint is maintainable. Issue No. 3 is decided accordingly.
37. In view of the above discussion, I am of the considered view that this appeal merits to be dismissed. Accordingly, the appeal is dismissed and the impugned judgment and decree upheld.
38. Registry to prepare a decree sheet and send down the record along with a copy of this judgment and decree.