HIMACHAL PRADESH HIGH COURT
FAO(HMA)29 of 1994
Bench: JUSTICE Lokeshwar Singh Panta Arun Kumar Goel
CHUNI LAL On 10 Apr 1997
This interest is destined opposite a visualisation and direct antiquated 10.12.1993 inspected by District Judge, Kangra during Dharamshala in H.M.A. No. 16-D/III/93, whereby matrimony between a parties has been dissolved by a direct of divorce underneath Section 13 of a Hindu Marriage Act.
2. Parties to a box were married on 9.3.1994 during encampment Sidhpur, Mauza Khanyara, Tehsil Dharamshala District Kangra and they have a son who was innate on 24.7.1987. Cruelty was pleaded to be a belligerent for retraction of matrimony by a respondent (hereinafter referred to as a ‘husband’) opposite a appellant (hereinafter referred to as a ‘wife’). According to a husband, after a matrimony for someday parties lived cordially, however, after 5-6 months a poise of a mother became indifferent towards a father and his family members as she would collect adult argue on tiny stratagem and would also leave a chateau though a agree of a husband. Not usually this, a mother would also play dirty abuses. Father of a mother was sensitive of such poise when he took her away, though with a involvement of a family and friends allotment was brought around when a mother concluded to act scrupulously and lived peacefully with her husband. Still a mother resumed her aged poise immediately after this allotment and above all she also withdrew from a multitude of a father besides carrying refused to perform her matrimonial obligation. At this indicate of time when a allotment was about to be brought around by a husband, a mother refused and left for her parental house. In those resources a petition for divorce came to be filed by a father that was however compromised between a parties as is transparent from a duplicate of a sequence antiquated 6.11.1986 inspected in H.M.A. No. 80/86 by District Judge, Kangra during Dharamshala. This sequence was inspected on a statements of a parties that have also been placed on record, pursuant to that sequence a parties went home together. Despite this, a mother did not mend her ways, nonetheless she had been supposing with a apart chateau and kitchen. In a year 1989 after carrying picked adult argue with a husband, mother left her matrimonial home henceforth and all efforts finished by a father in this interest valid futile. Further box of a father was that he has been tormented by a mother who indulged in creation fake allegations in petition for maintain unsuccessful by her in propinquity to explain of dowry by him, mal-treatment as good as second marriage. According to father he was threatened by a mother that he would be finished to death. This explain of a father was contested and resisted by a mother who denied all a averments finished opposite her.
3. On a other hand, it was pleaded by a mother that it is she who has been subjected to cruelty and maltreatment since of her carrying brought deficient dowry. Case of a mother serve was that she was thrown out of a chateau by a father after carrying been administered bloody beatings and during no indicate of time she left her matrimonial chateau of her possess accord. It was privately pleaded that a father has remarried on 7.2.1992 with one Baby.
4. On a aforesaid pleadings a parties went to conference on a following issues :
(1)Whether a respondent has treated a postulant with cruelty as purported ?
5. Trial Court after examining a justification and conference a parties motionless Issue No. 1 in foster of a postulant and so postulated him a use of retraction of matrimony by a direct of divorce by means of impugned visualisation that commentary are questioned by a mother in a benefaction appeal.
6. Mr. R.K. Sharma, schooled Counsel for a mother has urged that a belligerent of cruelty purported by a father has not been valid as there was no sufficient justification to settle a same, visualisation is mysterious and assigns no reason. It was serve submitted that a justification of a mother had not been discussed by a Trial Court and emanate relating to cruelty as pleaded by a mother per second matrimony of a father had not been framed, therefore, his customer has been prejudiced. In these circumstances, it was submitted by Mr. R.K. Sharma that a impugned visualisation and direct was probable to be set aside and differently a box needs to be remanded behind after framing compulsory emanate and job for uninformed preference in suitability with law.
7. On a other palm Pt. Om Parkash, schooled Counsel for a father has inspected a visualisation of a Trial Court while controverting all a pleas lifted on interest of a wife. It was serve forked out by a schooled Counsel for a father that creation groundless and fake allegations not usually in her pleadings though also sustaining with those during a march of justification and in this Court tantamount to cruelty on a partial of a mother and on this belligerent a father in entitled to a direct of divorce in serve to a drift pleaded by him. So distant a defence of non-framing of emanate in concerned, dual overlay acquiescence was finished by Pt. Om Parkash; firstly that non-framing of emanate is vaporous as a parties were alive to their sold pleas lifted in their pleadings and a mother has left on record to give justification in support of her such defence of second marriage. Therefore, she can't be available to titillate that non-framing of emanate has materially biased her; secondly it was forked out that a emanate carrying not been claimed during a time of framing of issues before a Trial Court, a party, mother in a benefaction case, shall be deemed to have waived that plea. According to schooled Counsel for a father there is enough, arguable and infallible justification on record to means a explain of his customer and in support of his this plea, it was forked out that a mother has finished whimsical complaints opposite a father to police, his dialect and other Authorities ensuing in obscure his customer in a determination of public.
8. It might be suitable to indicate out here that cruelty has not been tangible underneath a Hindu Marriage Act (hereinafter referred to as a ‘Act’) and there can be no strait-jacket regulation so as to conclude a cruelty as it would count on on series of resources and contribution of a case. At a sold indicate of time an indignant demeanour or a sold gesticulate a suacy amiable fun or an mocking over tinge might continue cruelty than a celebration being indeed physically manhandled. Similarly, day-to-day poise of one celebration is another means that might lead to unfortunate a mental assent and harmony. When these tiny incidents get piled adult a weight thereof becomes complicated to bear for a celebration concerned. Similarly, sex is an critical partial of a married life between a father and a mother that in fact keeps a parties together. Refusal to liberate matrimonial requirement of that sex is a really critical and critical couple leads to mental cruelty some-more quite where a parties are young. In such a box though there being any earthy cruelty, still it would be a box of sum cruelty on a partial of a associate denying to contention to sex. Cruelty, serve has to be dynamic on factors, viz. amicable standing of a parties, credentials from that they come and upbringing of a parties and open opinion about them in a locality. In these resources it has to be judged possibly a cruelty is of such a impression so as to means risk to life or health. Where a mother alleges beatings from her husband, in a amicable set adult of a multitude it would not be approaching of a Hindu mother to furnish a medical certificate to infer her defence of her carrying been beaten adult by her husband.
9. In a new preference of a Hon’ble Apex Court in box V. Bhagat v. Mrs. D. Bhagat, II (1993) DMC 568 (SC)=1994 (1) HLR 74 (SC), a Hon’ble Apex Court explained that mental cruelty is that control that inflicts on such celebration such mental pain and pang as would make it not probable for that celebration to live with a other. It contingency be of such a inlet that a parties could not pretty be approaching to live together. Regard contingency be had to a amicable standing educational turn of a parties and a multitude they pierce in. These are some of a broader class of a cruelty and a benefaction box has to be seen possibly a cruelty pleaded by a father is valid or not.
10. So distant a defence per non-framing of emanate about second matrimony of a father with one Baby is concerned, it might be suitable that it does not in any proceed influence a mother for dual reasons. Firstly notwithstanding there being no emanate while appearing as RW1 she led justification in support of her this defence and secondly small non-framing of emanate is of no stress since a parties had left to conference meaningful their box entirely well. In this interest superintendence can be taken from box Kunju Kesavan v. M.M. Philip Ors., AIR 1964 SC 164. In a face of this position it can't be pronounced by any widen of imagination that simply since emanate per second matrimony of a father was not framed that has resulted possibly causing any influence to a mother or has resulted in disaster of justice. Secondly, no doubt it was a avocation of a Court to have framed compulsory issues on a basement of a pleadings underneath Order XIV of a Code of Civil Procedure. In any eventuality parties are also approaching to be observant during such time and in box there was any repudiation on a partial of a Court it could have been insisted on framing other/ serve issues that a Court wanting to frame. In box of non-framing of an emanate by a Court, a defence in that interest shall be deemed to have been given adult by a parties concerned. If any attestation in support of this tender is compulsory a anxiety can be usefully finished to box Union of India Anr. v. M/s. Gozwrdhan Dass, P.A., 1973 Revenue LR 14. In this perspective of a matter, a defence lifted by a schooled Counsel for a mother on comment of non-framing of emanate is hereby rejected.
11. So distant a defence per a visualisation being mysterious and a justification of a mother carrying not been discussed by a Trial Court is concerned, it frequency needs to be emphasised that in box a visualisation of a Court can't be inspected for a reasons given therein, afterwards a appellate or re visional Court is not precluded from examining possibly a preference arrived during is tolerable for reasons other than those that were available by a Court while flitting a judgment. When this exam is practical to a contribution of a benefaction box it was safely be pronounced that small non-elaborate contention of a justification of a mother can't by itself be finished a belligerent to set aside a impugned visualisation and direct as urged on interest of a schooled Counsel for a wife. There is adequate justification constructed by a father to uncover that a poise on a partial of a mother is of such a inlet that leads to one and overwhelming end that she had treated a father with such cruelty as it had turn formidable for him to live with a wife. Persistent withdrawal of a chateau though any rhyme or reason, regulating filthy/abusive language, as good as repeated contravention on a partial of a mother stands duly valid that clearly establishes a defence of cruelty on a partial of a wife. In this interest matter of PW 1-husband and interrogate of RW2 Amar Singh clearly shows that a cause, control and poise of a mother was of such a inlet that amounts to cruelty opposite a husband. No doubt mother while appearing as RW 1 as good as her father as RW 3 have finished an try to chase a explain of a husband. After weighing a justification led by a parties we are of a perspective that a mother has unsuccessful to chase justification of cruelty placed on record of a file. Here it might be suitable to take into comment Ex. RW 2/A a typed essay constructed by Amar Singh RW 2 who is a nephew in collateralship of a husband. It is not accepted as to what stirred this declare to have brought this request duly typed that he has brought from Dharamsala after carrying it typed out during his possess expense. It is serve not accepted as to possibly this was got typed by him before a occurrence purported in this request or after his carrying left to Dharamsala and afterwards got this request typed. Another business is that this request is sealed by Amar Singh RW 2, Chuni Lal Pradhan and Des Raj, though this was not got sealed from RW 1-wife. In box there was any such thing, afterwards usually this request would have been sealed by a mother also. Besides this other dual signatories, namely, Chuni Lal Pradhan and Des Raj have not been examined nonetheless it was suggested to a PWs in interrogate that Chuni Lal was a President of a Panchayat In box this request was genuine afterwards usually a mother would have examined possibly both or during slightest one of them.
12. A schooled Single Judge of this Court in box Nimrat Preet Singh Bhullar v. Kamaljit Bhullar, II (1991) DMC 87=1990 (2) Sim.LC 137, has celebrated that while last cruelty a whole matrimonial attribute is to be deliberate and has serve hold that a Court should make an comment of tellurian inlet and poise and a domestic life of a spouses to be surveyed as a whole before assessing their destiny relations. This preference of a schooled Single Judge was inspected by a Division Bench of this Court per visualisation reported in box Kamaljit Bhullar v. Nimrat Preet Singh Bhullar, we (1991) DMC 490 (DB)=1991 (1) Sim.LC 156. While determining a interest filed by a mother opposite a visualisation of a schooled Single Judge, a Division Bench placed faith on a preference of a Apex Court reported in box Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, that has also been relied by a Trial Court.
13. As already forked out cruelty is a gold of facts, if valid would capacitate a celebration to ask for retraction of matrimony by a direct of divorce. There can be so many acts that might eventually lead to mental cruelty. In this interest it might be serve forked out that if a allegations finished in allege by a contesting spouses sojourn unproved, they will also consecrate cruelty. In a benefaction box it has come on a record of this box that Criminal Case No. 150-11/93 patrician as Pawna Devi v. Chuni Lal Anr., underneath Sections 494, 498-A and 506, IPC was tentative in a Court of Chief Judicial Magistrate during a instance of a wife, and a parties were not during opposite with this censure had been discharged by a Trial Court opposite that a mother had filed a interest before this Court. Making of a fake explain that too an unproved one by a mother opposite a father per his purported second matrimony with one Baby according to schooled Counsel for a father tantamount to an act of grave cruelty opposite his client. Besides this a filing of whimsical complaints to his office, military and other Authorities are also such vicious acts on a partial of a mother on comment whereof a cruelty got aggravated. No idea was put in interrogate to a father that a mother had not filed such complaints.
14. It being well-settled that false, defamatory, scandalous, malicious, groundless and up-proved allegations finished opposite a spouses in letters and complaints lodged opposite such associate to superiors or to persons in management are cruelty; in these circumstances, there does not seem to be any good reason to contend that unproved fake and groundless assertions finished in a created matter do not tantamount to cruelty. Besides this, in this context it might be also suitable to indicate out that indictment saying that a father has remarried by a mother in her created matter as good as while appearing as RW1 though any substructure prima facie creates out a box of mental cruelty set adult by a father and therefore, a defence per cruelty lifted by a father stands established.
15. In a benefaction box a matrimonial family between a parties in a background, contribution and resources besides a transparent cut un-proved assertions on a partial of a mother per father carrying married one Baby, establishes over any shade of doubt that a matrimony between a parties has irretrievably damaged down. In fact this defence and a complaints finished by a mother in a office, to a military as good as to other chairman in management serve shows a mental torture, flaw and nuisance by that a father had undergone. In these circumstances, there can be frequency any error that can be found with a visualisation of a Trial Court. According to a schooled Counsel for a husband, a censure lodged by a mother underneath Section 494, etc. IPC was totally fake and whimsical wherein in sequence to urge himself he had to seem in Court, get himself bailed out and after a prolonged conference his customer and other chairman decorated as indicted in a pronounced censure has been acquitted, therefore Pt. Om Parkash submits that this also adds to a acts of cruelty on a partial of a wife.
16. So distant as poise of a mother is concerned, a anxiety to a matter of her possess declare RW 2 speaks volumes in that interest that serve demolishes a defence lifted by a mother opposite a husband. Similarly, a defence that a father finished explain for dowry opposite a mother has also not been proved. Looking to a benefaction day difficult supplies of law per explain of dowry and orthodox hypothesis lifted by operation of law, a allegations if valid lead to really critical consequences opposite a perfectionist spouses, father in a benefaction case. But during a same time if these allegations sojourn unproved afterwards a averments finished in this interest would be serious acts of mental cruelty. On this belligerent also a father has been means to make out a box of cruelty opposite his wife.
17. Faced with a aforesaid facts, schooled Counsel for a mother persisted with vehemence that a box needs to be remanded after framing emanate on a defence of a mother per second matrimony of a father with Baby and afterwards to inspect a outcome of such second remarriage. In perspective of a commentary available in this interest in a physique of a judgment, this justification has been lifted simply to be rejected. Regarding a aforementioned proposition, anxiety might be finished to cases Mrs. Suresh Bala, Dehradun v. Major Gurmohinder S. Bala, New Delhi, AIR 1983 Del. 230; Smt. Kalpna Srivastava v. Surendra Nath Srivastava, AIR 1985 All. 253; Nemai Kumar Ghosh v. Smt Mita Ghosh, AIR 1986 Cal. 150; Vinod Kumar Sharma v. Nutan Sharma, we (1986) DMC 484; and Smt. Savitri Balchandani v. Mulchand Balchandani, AIR 1987 Del. 52.
18. In this perspective of a aforesaid discussion, there is no consequence in this interest that is discharged accordingly.
19. Now stays a doubt to be seen possibly this Court while deliberation a matter in interest can also extend some use towards permanent subsistence to a mother as good as to a teenager son of a parties. We are of a perspective that looking to a resources wherein a mother is placed as well, as a predicament of a postulant in a amicable set up, she would be put in a really difficult position after carrying been divorced and as such sustenance needs to be finished for her maintain compartment she remarries as good as in honour of a teenager son of a parties, who is admittedly staying with a wife. This can be finished in a perspective in practice of a powers vested in this Court underneath Order 41, Rule 33, CPC as good as by carrying chance to a supplies of Sections 24 and 25 of a Hindu Marriage Act. During a march of arguments, schooled Counsel appearing for a father really sincerely settled that if such a conditions comes up, his customer would be some-more than peaceful to compensate permanent subsistence to a mother compartment she remarries and to a son compartment he attains infancy so that they are not dragged to another turn of lawsuit for a pronounced purpose. Even differently flitting of such an sequence would be in accord with a open process and avoiding another turn of lawsuit between a parties. Further, it would yield some amicable confidence to a mother and a child. Needless to indicate out that not usually implicitly though it is a authorised avocation of a father to yield for adequate maintain for his mother and a child. For this reason also we cruise it only and correct to sequence remuneration of permanent subsistence to a mother as good as to a child. It was settled during bar that a income of a father is approximately between Rs. 5,000/- to Rs. 6,000/-, besides this, it has also come in justification that a father owns 50/60 kanals of land. Husband is a immature male of 33 years and has a prolonged proceed to go in his use career in a open zone endeavour i.e. Life Insurance Corporation of India.
20. In perspective of a aforesaid circumstances, it is systematic that he shall compensate Rs. 700/-p.m. to a mother compartment she remarries and in box she does not marry, a father is probable to compensate this volume to a mother compartment her death. In serve to this, a sum of Rs. 500/- p.m. will be payable by a father to a teenager son by a mother with whom a child is admittedly staying and who is fending for a pronounced child. It is finished transparent that this sequence of permanent subsistence shall be user with outcome from 1.4.1997. It is serve systematic that this volume will be remitted possibly by a bank breeze or by a income sequence by a father during his possess losses to a mother frequently by 10th of any month commencing from May, 1997; a sum of Rs. 1,200/- for a month of April, 1997 will be remitted in a aforesaid demeanour by a father before 30.4.1997 to a wife, who will utilize a volume authorised to a teenager son for his education, gratification and upkeep. It is serve finished transparent that in box a father fails to subtract a volume as aforesaid, afterwards a mother shall be entitled to govern this sequence being a direct of Civil Court opposite a father though her being dragged to any serve lawsuit in this behalf. In holding this perspective we are inspected by Division Bench visualisation of this Court reported in box Smt. Rachan Kaur v. Shri Bhag Singh, II (1996) DMC 70 (DB)=1996 (1) Sim.LC 413, as good as Smt. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90. It is serve destined that any other maintain awarded in any other record by any Court to a mother or to a teenager son, a same shall be probable to be deducted out of a sum of Rs. 1,200/- as authorised by this visualisation to both mother and a son. If during a after stage, mother needs serve volume for a preparation of a son during a duration of his minority, autocracy is indifferent to her to proceed this Court for alteration of a sequence of maintain qua a son.
21. Costs on a parties.