Court: HIMACHAL PRADESH HIGH COURT
CASE NO.321 of 1998
Bench: JUSTICE R.L. Khurana M.R. Verma
MAJOR ATUL MEHTA On 16 Jul 1999
This seductiveness underneath Section 28 of a Hindu Marriage Act, 1955 (hereinafter referred to as a ‘Act’) is destined conflicting a visualisation and direct antiquated September, 1, 1998 upheld by a schooled District Judge, Solan, whereby a petition of a husband/respondent underneath Section 13 of a Act has been authorised and a matrimony between a parties has been dissolved.
2. The contribution heading to a display of this seductiveness are as follows. The matrimony between a parties was solemnised on Sep 28, 1984 during Shamli (Uttar Pradesh) in suitability with a Hindu rites and ceremonies. The parties afterward cohabited as father and mom during Delhi, Belgaum, Chandigarh and lasty during Subathu. Out of a nuptials son Karan and daughter Nidhi were innate respectively on Oct 23, 1986 during Delhi and on Nov 25.1990 during Chandimandir. The respondent/husband filed a petition underneath Section 13 of a Act praying for a direct for retraction of a matrimony on a belligerent of cruelty in a Court of a schooled District Jucge, Solan on Aug 6, 1993. His case, as done out in a petition, is that right from a commencement a opinion and poise of a appellant/wife has been formidable and unaccommodating and with a thoroughfare of time her opinion became some-more assertive and whinging and she grown a habits of lifting quarrels yet any basement and constantly humiliating, scornful and badgering a respondent/husband. The respondent in his petition has mentioned several instances to uncover that a appellant has been treating him in a demeanour that constitutes mental cruelty. It is averred that a father of a appellant firm their matrimony during “Sharad” that a respondent and his kin wanted to equivocate yet in vain. After matrimony while on honeymoon during Sikkim, a appellant sensitive a respondent that she did not marry him given of adore yet on a seeking of her father and did not like him. On a genocide of grandmother of a respondent on Oct 23, 1984, a appellant reluctantly came to Solan to weep a genocide given zero from a parental side came to weep a genocide nor sent any upraise minute etc. In a year 1985 a appellant started avoiding and disliking a kin of a respondent and started lifting quarrels. When Karan was innate on Oct 23, 1986, a mom a respondent could not be benefaction on this arise for wish of leave. The appellant combined a stage and incited a pleasing impulse into nauseous one. In 1989 a respondent was posted to a non-family station. The appellant afterwards elite to stay with her kin and stayed during Chandigarh with her parents. When a respondent came on annual leave in November, 1989, he visited her during Chandigarh and asked her to accompany him to Solan as he wanted to stay there with his kin during a leave period, yet a appellant refused to abet and quarrelled with him with a outcome that he had to ensue to Solan alone. While returning to his place of posting after availing a leave, a respondent again visited a appellant during Chandigarh and came to know that she had taken a pursuit in D.A.V. Public School, Chandigarh for that she never took a respondent into confidence. He suggested a appellant to stay during Solan instead of Chandigarh yet she retorted by observant that he had to make a choice between a appellant, their son Karan and his parents. The insult and chagrin met out to a respondent led to growth of psychiatric commotion and had to sojourn certified in Command Hospital during Chandigarh and he was diagnosed to be a box of depression. The illness of a respondent was taken by a appellant accidentally and visited him in a sanatorium usually once or twice. In March, 1993 a respondent was posted during Subathu and a appellant assimilated him there yet her scornful and degrading attitue aggravated and she could insult and disparage him even in a participation of his superiors and juniors. In a deficiency and yet a believe of a respondent, a appellant took roughly all his effects and shifted them to her kin residence during Panchkula. The respondent reported a blank of his critical articles to a military yet meaningful that a appellant had taken them away. Since after this occurrence a appellant is staying in her parental residence in Panchkula. While during Panchkula, a appellant on Apr 8, 1993 lodged a fake censure conflicting a respondent to a GOC, Headquarters Delhi Area with a duplicate to COAS. The pronounced censure contained allegations of direct for dowry, earthy attack on a appellant and children and their non-maintenance by a respondent. It was serve purported that he had extra-marital affairs with abounding women and one lady was even named therein and a ask to yield financial assistance was made. The respondent had to contention replies to a authorities in this courtesy and such allegations were false. The conditions so combined by a appellant finally led a respondent to find beforehand retirement. The appellant who is staying during Panchkula given March, 1993, is not needing a respondent to revisit his children. It has, therefore, been claimed that a appellant has treated a respondent with cruelty that she has not condoned.
3. The appellant/wife in her respond denied a allegations of cruelty as averred in a petition and claimed that a poise of a respondent and his kin in fact has been really vicious and uncivilised and a censure underneath Section 6 of a Dowry Prohibition Act, 1961 review with Sections 406/34 of a Indian Penal Code is tentative in a Court of a Chief Judicial Magistrate, Solan. It is also pleaded that while posted during Sabathu, respondent grown affinity and cognisance with a bank officer and is so bewitched by her resources and standing that he is focussed on to divorce a appellant so that he might marry pronounced bank officer. Taking a pursuit of a clergyman by a appellant has been certified yet it is claimed that for this a respondent was a consenting party. It is also certified that a respondent grown some psychiatric commotion for that he remained certified in Command Hospital, Chandigarh. It is, however, claimed that a appellant attended on a bum respondent day and night and that her poise and control has always been normal. Making of a ask to yield financial assistance to a authorities has been certified yet it is claimed that a ask was formed on loyal facts. It has also been certified that given March, 1993 a appellant is staying with her kin in Panchkula.
4. The respondent filed retort to a respond of a appellant thereby denying a drift of counterclaim in a respond and re-affirming a explain as in a petition.
5. The schooled hearing Judge led a parties to hearing on a following issues :
“1. Whether a respondent treated a postulant with cruelty, as alleged?
2. If emanate No. 1 is valid in foster of a petitioner, possibly he is entitled to a direct of divorce by retraction of matrimony ?
6. Earlier a petition was authorised by a schooled District Judge vide visualisation antiquated Mar 27, 1996 yet on seductiveness by a appellant, that visualisation was set aside by a Division Bench of this Court as a whole justification on record was found to have not been discussed and appreciated therein and a box was remanded for uninformed preference according to law. The petition has now been expected of by a impugned visualisation whereby emanate Nos. 1 and 2 have been hold in foster of a respondent and hence direct dissolving a matrimony between a parties has been granted.
7. We have listened a schooled Counsel for a parties. To attain in a petition underneath Section 13 of a Act on a belligerent of cruelty, a celebration seeking retraction of matrimony on such ground, has to infer :
(i) that there is a subsisting attribute of father and mom between a parties;
(ii) that a associate conflicting whom a use is claimed has treated a postulant with cruelty, mental and/or physical;
(iii) that there is no collusion between a parties in presenting a petition;
(iv) that a respondent has not condoned a acts and omissions forming such cruelty; and
(v) that a postulant is not holding advantage of his/her possess wrong or disability.
8. In this box there is no brawl about a attribute of father and mom between a parties and it is also certified box of a parties that there is no collusion between them in presenting a petition.
9. The retraction of matrimony in this box has been claimed on a belligerent of cruelty. The authorised visualisation of cruelty and a kind or grade of cruelty compulsory to volume to a matrimonial corruption have not been tangible by any government of a Indian Legislature relating to matrimony and divorce; nor has a countenance been tangible in a Matrimonial Causes Act, 1950. The supposed authorised clarification of this expression, that is rather formidable to define, had been “conduct of such impression as to have caused risk to life, prong or health (bodily or mental), or as to give arise to a reasonable confinement of such danger. “In Dr. N.G. Dastane v. Mrs. Dastane, AIR 1975 SC 1534=1975 HLR 111 (SC), a Supreme Court critically examined a matrimonial belligerent of cruelty and celebrated that a exploration in any box had to be possibly a control charged as cruelty is of such a impression as to means in a mind of a postulant a reasonable confinement that it will be damaging or damaging for him to live with a respondent. It was also forked out that it was not necessary, as underneath a English Law that a cruelty contingency be of such a impression as to means risk to life, prong or health or as to give arise to a reasonable confinement of such a risk though, of course, mistreat or damage to health reputation, a operative impression or a like would be an critical care in last possibly a control of a respondent amounts to cruelty. What was required, was that a postulant contingency infer that a respondent has treated a postulant with such cruelty as to means a reasonable confinement in his mind that it will be damaging or damaging for him to live with a respondent.
(See : Kamaljit Bhullar v. Nimrat Preet Singh Bhullar, 1991 (1) HLR 231 (HP).
10. The countenance ‘cruelty’ when applicable to a family inter se a father and mom have been tangible usually in one Indian legislation that is, underneath Section 494-A of a Indian Penal Code, 1860 wherein a pronounced territory had been extrinsic by Act No. 46 of 1983. The countenance “cruelty” as tangible therein reads as follows :
Explanation—For a purpose of this section, “cruelty” means—
(a) any determined control that is of such a inlet as is expected to expostulate a lady to dedicate self-murder or to means grave damage or risk to life, prong or health (whether mental or physical) of a woman; or
(b) nuisance of a lady where such nuisance is with a perspective to coercing her or any chairman associated to her to accommodate any wrong direct for any skill or profitable confidence or is on comment of disaster by her or any chairman associated to her to accommodate such demand.”
11. The above clarification is for a purpose of Section 498-A of a Code and is so worded as to cover such acts and control as might be “cruelty” vis-a-vis a married woman, amounting to an corruption punishable underneath a pronounced section. It radically embarrasses a act and control of a father and his family and not of a wife. Thus, this clarification is not usually biased yet is also dictated to move certain acts and control of a father and his kin within a range of penal law and to retaliate a offender. It can't be doubtful that it is usually an offending control of critical inlet that entails a rapist guilt given even an offending control of obtuse grade might give arise to a means of movement for a polite action.
12. Against a aforesaid background, in a box underneath Section 13 of a Act, it has to be judged exclusively of a above clarification of “cruelty” as to possibly a acts and control imputed to a conflicting celebration in a petition underneath Section 13 of a Act amounts to cruelty or not. Therefore, a Courts have to interpret, analyse and conclude what would consecrate “cruelty’ in a given box depending on many factors such as amicable status, background, customs, traditions, standing and community, upbringing, open opinion prevalent in a locality etc. The act and control as purported and valid contingency be of a form that satisfies a demur of a Court that it had led a attribute between a parties to an border that there is risk to life, prong or health, corporeal or mental, or a reasonable confinement thereof and it has turn unfit for them to live together yet agony, woe or distress. The conclusions in this courtesy might be formed on a instances of purported cruelty in siege or collectively.
13. In this box all pleaded instances of cruelty solely a one per allegedly fake claim of unlawful cognisance between a respondent and a Bank Officer namely, Vanita Kapur, describe to a duration before to March, 1993. Two of such instances are, (i) that a father of a appellant insisted on arranging a matrimony of a parties in ‘Sharadh’ and (ii) that a kin of a appellant did not come to acquit nor sent any upraise summary on a genocide of a grandmother of a respondent. None of these instances, even if valid to be correct, are acts of cruelty by a appellant. Other pre-March, 1993 allegations, as pleaded, are not valid for wish of consistent, reasoning and arguable evidence. There is no brawl that a son was innate to a parties on Oct 23, 1986 and a daughter was innate on Nov 25, 1990 out of a wedlock. Even afterward they lived together and cohabited lastly during Subathu upto March, 1993 when a appellant lastly withdrew from a multitude of a respondent. Thus even if it is reputed that there is any law in a pre-March, 1993 instances, those stood condoned by a respondent as is clear from a essence of para 20 of a petition wherein while referring to a pre-March, 1993 instance of purported cruelty, it has been averred that “the postulant in a seductiveness of matrimonial tie tolerated all contravention of a respondent”. Therefore, a respondent could not attain on a basement of pre-March, 1993 act and control of a appellant even if such instances singularly or collectively validate a exam of ‘cruelty’ as they stood condoned.
14. After March, 1993, a appellant done a censure antiquated Apr 18, 1993 conflicting a respondent. A print duplicate of such censure is Ext. PA. The allegations conflicting a respondent in this censure are, (i) that a appellant had been constantly tormented and physically assaulted by a respondent on a belligerent that she had not brought sufficient dowry; (ii) that he had unsuccessful to yield upkeep to her and their children; and (iii) that a respondent had extra-marital affairs with abounding women including one Vanita Kapur, an worker of State Bank of India”, and wanted to marry her after divorcing a appellant. While re-asserting a above allegations in paras 5, 10 and 18 of a reply, a appellant as her solitary declare has reiterated these allegations and certified creation of censure Ext. PA. In perspective of a matter of a respondent (PW 1) review with a essence of his respond Ext. PW 1/A addressed to a Station Headquarters Delhi, minute Ext. PW 1/B from Under Secretary to a Government of India, Ministry of Defence, addressed to a respondent and his focus for beforehand retirement Ext. PW 1 /D and Ext. PW 1/E, it is clear that a respondent was called on by his higher authorities to uncover means in a matter, he denied a allegations and finally sought pre-mature retirement from service, intensely dire marital life being one of a grounds, for such retirement. He was betimes late from use as S/Major in a Army vide Ext. PW 1/H. There is zero on a record on a basement whereof a aforesaid allegations done conflicting a respondent by a appellant vide Ext. PA might be hold to have been condoned by a respondent.
15. It has been hold by a Division Bench of this Court in Kamaljit Bhullar v. Nimrat Preet Singh Bhullar’s box (supra), that a allegations of a inlet done in a focus Ex. PA as good as in paras 5, 10 and 18 of a respond leveled by one associate conflicting a other, if not valid to be correct, would consecrate authorised cruelty.
16. Therefore, it has to be examined possibly a allegations done in focus Ext. PA and in paras 5, 10 and 18 of a respond are loyal or fake so as to discern possibly such allegations volume to authorised cruelty.
17. The appellant while appearing as her solitary witness, has not settled that on a allegations of carrying brought reduction dowry, she was tormented and physically assaulted by a respondent. Thus, this claim evidently is false. It is also not her box in her matter that a respondent unsuccessful to say her and their children during any indicate of time and she has not settled anything in her matter to justify this allegation. On a contrary, a essence of para 17 of a petition averring that as is avocation bound, a respondent had spent his tough warranted income on a appellant and their children and supposing them all comforts, he could within his means, and had corner accounts with a appellant who was giveaway to work such accounts of her possess and all his F.D. Rs. were also in a corner names possibly with a appellant or their children, have not been denied in a respond of a appellant and it has been certified that a respondent was working routinely as regards providing of supports to her and a children, Thus, this claim is also false.
18. Regarding a claim of extra-marital affairs of a respondent with abounding women including one Vanita Kapur, a appellant in her matter has settled that in March, 1993 she was incited out of a residence by a respondent observant that he wanted to marry Vanita Kapur. The appellant has not settled that a respondent had unlawful cognisance with abounding women including Vanita Kapur. Whatever she states on this count is not advanced by any other eccentric justification on record. She seemingly admits in her interrogate that she has no explanation of a allegations leveled by her conflicting a respondent in her focus Ext. PA. It can so be resolved yet perplexity that a allegations done by a appellant conflicting a respondent in focus Ext. PA are unfounded, groundless and fake and as such volume to authorised Cruelty.
19. In a focus Ext. PA submitted to a superiors of a respondent, a appellant leveled fake allegations of harassment, earthy assault, not providing upkeep to her and a children and carrying extra-marital family with abounding women conflicting a respondent and claim of extra-marital attribute has been pleaded in paras 5, 10 and 18 of a respond filed by her also. The respondent eventually had to find beforehand retirement on a belligerent of intensely dire marital life. Making of a aforesaid fake allegations vide Ext. PA and paras 5, 10 and 18 of a respond of a appellant consecrate ‘cruelty’ that has led a parties to a conditions in that it has turn unfit for them to live together yet agony, basin and distress. There is zero on a record to uncover that a respondent is in any demeanour holding advantage of his possess wrongs. Therefore, a respondent is entitled to a use claimed.
20. For a reasons settled herein above, we find no reason to meddle with a impugned visualisation and decree. As a result, the-appeal is dismissed. No sequence as to costs.