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Judgments of Supreme Court of India and High Courts

Dinesh Kotwal vs Anju Kotwal on 6 April, 2017

FAO-M-195 of 2010 -1-
X-Objections-62-CII of 2010

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-M-195 of 2010
X-Objections-62-CII of 2010

DATE OF DECISION: APRIL 6, 2017

DINESH KOTWAL …APPELLANT

VERSUS

ANJU KOTWAL …RESPONDENT/X-OBJECTOR

CORAM: HON’BLE MR. JUSTICE M. JEYAPAUL.
HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.

PRESENT: MR. RAMAN MAHAJAN, ADVOCATE
FOR THE APPELLANT.

MR. RAJIV KATARIA, ADVOCATE FOR THE
RESPONDENT/X-OBJECTOR.

M. JEYAPAUL, J.

1. Appellant-husband Dinesh Kotwal has challenged the dismissal

of his petition filed under Section 13 of the Hindu Marriage Act, 1955 seeking

divorce on the grounds of desertion and cruelty. The respondent-wife Anju

Kotwal has challenged in her X-objections the rejection of her application

praying for dismissal of the petition filed by her husband, the appellant herein,

on the ground that cruelty alleged by her husband had been condoned by him

during the pendency of proceedings.

2. The brief facts of the petition filed by the appellant are that the

marriage of the appellant with the respondent was solemnized in the month of

March, 1981 at Bhopal as per Hindu rites and ceremonies. They were blessed

with one male child on 15.1.1982 and a female child on 15.12.1983. Though

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the appellant took care of the respondent, the attitude of the respondent was

indifferent and arrogant towards the appellant. The respondent had developed

hatred towards the appellant and his parents and had been successful in

isolating the appellant from his parents. The respondent had been very

cunning and selfish. She used to pick up quarrels without any rhyme or

reason. In the month of May, 1988, the appellant was transferred to Jodhpur.

But the respondent refused to accompany him. The respondent is working as

Reiki Healer. She is of dubious and vicious nature. The appellant visited his

house at Panchkula during the month of September, 2000. The behaviour of

the respondent was abnormal and arrogant and as a result of which the

appellant had to abandon his own house and spend the night at railway station

before returning to Jodhpur. The respondent came along with daughter born

out of the wedlock to Jodhpur and created violent scenes. Even after the

appellant was transferred to Chandigarh in the month of May 2001, the

respondent did not give any attention to the appellant. She, in fact,

completely renounced the world and is dedicated herself to reiki. For all the

above reasons the appellant has sought for divorce.

3. The brief averments made by the respondent-wife in the written

statement are that she was always respectable to the appellant and his parents.

She never committed cruelty as alleged by the appellant. It was only the

appellant who committed acts of cruelty. She had been serving and looking

after the appellant to the best of her capability. The appellant had not taken

his family to Jodhpur on the ground that he did not have a good

accommodation at Jodhpur. The respondent had learnt reiki for her own

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peace, but she never worked as reiki healer. The appellant used to treat the

respondent and her children as intruders as and when they visited Jodhpur.

On 25.1.2001, when the respondent along with her daughter reached Jodhpur,

the appellant did not allow them to enter into his house. They were helped by

a neighbour who called the police. The appellant informed the respondent

that he wanted to remarry and appealed to the respondent to agree for mutual

divorce. He gave some photographs of a lady whom he wanted to remarry.

As the respondent did not agree for the proposal of the appellant, she was

severely beaten by the appellant. Contending that the appellant had come out

with false and frivolous allegations, the respondent prayed for dismissal of the

petition filed under Section 13 of the Hindu Marriage Act.

4. The respondent filed an application during the pendency of the

petition filed by the appellant under Section 13 of the Hindu Marriage Act

praying for dismissal of the petition for the simple reason that the appellant

had condoned the alleged cruelty. The appellant rejoined the respondent on

22.7.2007. The appellant and the respondent proceeded to Bombay, Shirdi,

Alora and Goa from 16.9.2008 to 24.9.2008. The respondent joined the

appellant at Lucknow where he had been transferred and lived with him for

about 4 days. It was contended by the respondent that the acts of cruelty

alleged by the appellant against the respondent had been condoned by him.

Therefore, the petition filed under Section 13 of the Hindu Marriage Act

deserves to be dismissed.

5. The appellant submitted a reply to the above application

disputing the core allegation that he rejoined the respondent and lived with

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her happily right from 22.7.2007.

6. On the side of the appellant, he was examined as PW1 and one

Dalbir Singh as PW2 and Bihar Lal, Clerk as PW3. The respondent had

examined herself as RW1.

7. The trial Court having analyzed the entire evidence on record

came to the conclusion that the appellant had come out with general allegation

of cruelty. No specific incident of cruelty was averred to and established by

the appellant. Though the trial Court found that there was no substance in the

application filed by the respondent praying for dismissal of the petition filed

by the appellant on the ground that he had condoned the act of cruelty, the

trial Court dismissed the petition filed by the appellant as he failed to

establish the grounds alleged.

8. We heard the elaborate submissions made by learned counsel

appearing for the appellant and the counsel appearing for the respondent.

9. It has been alleged by the appellant that the attitude of the

respondent was indifferent and arrogant towards him. The outcome of the

alleged indifferent attitude and the arrogance of the respondent was not at all

detailed in the petition, nor was any evidence let-in with respect thereto.

There was no evidence as to what sort of hatred was developed by the

respondent towards the appellant. No details of cunning and selfish nature of

the respondent had been portrayed by the appellant. It was alleged that the

respondent used to pick up quarrels without any rhyme or reason. Petty

quarrels in the family are the direct outcome of the wear and tear in the

matrimonial life. But the same cannot be a ground for divorce.

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10. There is no evidence to establish that the respondent is practicing

as a reiki healer, in spite of the fact that the respondent disputed such

allegation. The respondent has rightly took a stand that she had learnt reiki to

acquire peace of mind. Unless it is established that a spouse has renounced the

world, mere allegation that a spouse has learnt reiki cannot at all be a ground

for divorce.

11. Therefore, on the basis of general allegations made by the

appellant against the respondent as regards cruelty and desertion, the

appellant is not entitled to a decree of divorce as rightly held by the learned

trial Court.

12. Learned counsel appearing for the appellant vehemently

submitted that the allegation made in the written statement that the appellant

had expressed his desire to marry another lady showing a photograph would

amount to cruelty, as it had caused pain and agony to the appellant. Further,

referring to the averments in the application filed by the appellant seeking

amendment of the pleadings which was dismissed by the trial Court and

ultimately dismissed by the revisional Court as well the application filed

praying for dismissal of the petition under Section 13 of the Hindu Marriage

Act on the ground that the appellant had condoned the cruelty, he submitted

that the respondent has specifically alleged without any basis that the

appellant had developed extra marital relationship with one Lillu Chaudhary

which would definitely amount to cruelty, as it has caused pain and agony to

the appellant. Despite the fact that there was no specific issue framed by the

trial Court as to whether the appellant is entitled to divorce on the allegation

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of extra marital relationship levelled by the respondent, inasmuch as the

parties have let-in evidence to establish such an allegation and controvert the

same through their respective evidence, the trial Court should have granted

the relief of divorce sought for by the appellant.

13. Per contra, learned counsel for the respondent referring to a

decision of the Division Bench of this Court submitted that unless the

appellant amended the pleadings seeking divorce on the ground that the

respondent had alleged extra marital relationship which caused cruelty to him

and the trial Court framed relevant issues permitting the parties to lead

evidence relating thereto, the Court cannot jump to a conclusion that there

was cruelty on account of the allegation made by the respondent as regards

the extra marital relationship of the appellant in the application filed during

the pendency of the main petition under Section 13 of the Hindu Marriage

Act. It is his further submission that the respondent had, in fact, adduced

evidence to substantiate her allegation that the appellant had developed close

intimacy with a lady. Further, it is his submission that the petition filed by the

appellant under Section 13 of the Hindu Marriage Act on the ground of

cruelty should have been thrown out based on the application filed by the

respondent giving graphic account of the reunion of the parties which would

amount to condonation of cruelty, if any.

14. In Paras Ram vs. Kamlesh, 1982 AIR(Punjab) 60, the Division

Bench of this Court has held as follows:-

“13. Once the aforesaid conclusion has been arrived at that a

mere allegation of adultery without more does not amount to

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legal cruelty. It is manifest that in order to succeed on this

ground the petitioner must establish the falsity of such an

allegation. The burden of proof, however, being a negative

burden would in the initial stage be a light one. It would,

therefore, become necessary that the petitioner in such a

situation would have to amend the petition and plead the false

allegation of adultery amounting to cruelty as a specific ground

for matrimonial relief. It is only when this has been made a

ground of attack that the petitioner can possibly take advantage

of such an allegation, if proved false. Unless the truth or falsity

of such allegation made in the written statement is put to trial in

the manner aforesaid and it is established one way or the other

no legal consequences can flow therefrom for the purpose of

Section 13(1)(1a) of the Act. It is, therefore, necessary in such a

situation that not only the requisite amendment should be made

but a specific and clear issue with regard thereto be framed so

that the parties should go to trial thereon with their eyes open.

We cannot but view with disfavour the framing of rather omnibus

issue in matrimonial matters as appears to be the situation in the

solitary issue framed in his case.”

15. That was a case where the respondent-wife filed a written

statement and subsequently sought amendment thereof alleging specifically

that the appellant-husband had illicit relations with some women in the

village. It was argued based on such averment in the written statement that

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the allegation of extra martial relationship made by the wife in the written

statement would per se amount to legal cruelty. But the Court in the above

decision had held that factually true allegation of adultery would never

amount to cruelty. But this Court has observed that the appellant would have

to amend the petition in the light of the allegations made in the written

statement by the respondent and plead for the relief of divorce on the

allegation of adultery amounting to cruelty. After the requisite amendment

was made with the permission of the Court, specific issue with regard thereto

will have to be framed to enable the parties to lead evidence touching upon

the above specific issue.

16. Citing the following decisions of the Hon’ble Supreme Court, it

was argued by learned counsel appearing for the respondent that subsequent

events shall be taken into consideration to arrive at the conclusion that cruelty

was committed. There was no necessity for the appellant to take steps to

amend the petition and persuade the Court to formulate necessary issues, as

held by the Division Bench of this Court.

17. In Dr. (Mrs.) Malathi Ravi, M.D. vs. Dr. B.D. Ravi, M.D., 2014

(3) RCR (Civil) 621, it has been held by the Hon’ble Supreme Court as

follows:-

“23. From the acceptance of the reasons of the High Court by

this Court, it is quite clear that subsequent events which are

established on the basis of non-disputed material brought on

record can be taken into consideration. Having held that, the

question would be whether a decree for divorce on the ground of

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mental cruelty can be granted. We have already opined that the

ground of desertion has not been proved. Having not accepted

the ground of desertion, the two issues that remain for

consideration whether the issue of mental cruelty deserves to be

accepted in the obtaining factual matrix in the absence of a

prayer in the relief clause, and further whether the situation has

become such that it can be held that under the existing factual

scenario it would not be proper to keep the marriage ties alive.

Learned counsel for the appellant has urged with vehemence that

when dissolution of marriage was sought on the ground of

desertion alone, the issue of mental cruelty can neither be raised

nor can be addressed to. Regard being had to the said

submission, we are constrained to pose the question whether in a

case of the present nature we should require the respondent-

husband to amend the petition and direct the learned Family

Judge to consider the issue of mental cruelty or we should ignore

the fetter of technicality and consider the pleadings and evidence

brought on record as well as the subsequent facts which are

incontrovertible so that the lis is put to rest. In our considered

opinion the issue of mental cruelty should be addressed to by this

Court for the sake of doing complete justice. We think, it is the

bounden duty of this Court to do so and not to leave the parties

to fight the battle afresh after expiry of thirteen years of

litigation. Dealing with the plea of mental cruelty which is

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perceptible from the material on record would not affect any

substantive right of the appellant. It would be only condoning a

minor technical aspect.”

18. In the above case, it has been categorically held by the Hon’ble

Supreme Court that subsequent events which are established on the basis of

non-disputed materials brought on record can be taken into consideration by

the Court. The Court can ignore the technical plea that, as per the procedure,

amendment should have been introduced with regard to the subsequent events

in the pleadings of the parties. The Court is well within its rights to consider

the pleadings and the evidence brought on record as well as the subsequent

facts and pass a judgement.

19. In Vishwanath vs. San. Sarla Vishwanath Agrawal, JT 2012(6)

SC 62, it has been observed as follows:-

“36. Presently to the subsequent events. The courts below have

opined that the publication of notice in the daily “Lokmat” and

the occurrence that took place on 11.10.1995 could not be

considered as the said events occurred after filing of the petition

for divorce. Thereafter, the courts below have proceeded to deal

with the effect of the said events on the assumption that they can

be taken into consideration. As far as the first incident is

concerned, a view has been expressed that the notice was

published by the wife to safeguard the interests of the children,

and the second one was a reaction on the part of the wife relating

to the relationship of the husband with Neeta Gujrathi. We have

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already referred to the second incident and expressed the view

that the said incident does not establish that there was an extra

marital relationship between Neeta and the appellant. We have

referred to the said incident as we are of the considered opinion

that the subsequent events can be taken into consideration. In

this context, we may profitably refer to the observations made by

a three-Judge Bench in the case of A. Jayachandra (supra) :-

“The matter can be looked at from another angle. If acts

subsequent to the filing of the divorce petition can be

looked into to infer condonation of the aberrations, acts

subsequent to the filing of the petition can be taken note of

to show a pattern in the behaviour and conduct.”

20. A plea was set up in the above case which had arisen out of the

matrimonial dispute between the spouses that an event which took place

subsequent to the filing of the petition for divorce shall not be considered.

But the Hon’ble Supreme Court was firm in its view that acts subsequent to

the filing of the petition can be taken into consideration. When the plea of

condonation of cruelty can be permitted to be taken up during the course of

proceedings, subsequent event which may amount to cruelty can also be

permitted to be taken up by the spouse concerned.

21. In Nedunuri Kameswaramma vs. Sampati Subba Rao, 1963

AIR (SC) 884, it has been held by the Hon’ble Supreme Court as follows:-

“The appellant had already pleaded that this was jeroyti land, in

which a pasta in favour of her predecessors existed, and had

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teased the suit on a kadapa, which showed a sub-tenancy. It was

the respondent who had pleaded that this was a Dharmila inam

and not jeroyti land, and that he was in possession of the

kudiwaram rights though his predecessors for over a hundred

years, and had become an occupancy tenant. Though the

appellant had not mentioned a Karnikam service inarm, parties

well understood that the two cases opposed to each other were of

Dharmila Sarvaumbala inam as against a Karnikam service

inam. The evidence which has been led in the case clearly

showed that the respondent attempted to prove that this was a

Dharmila inam and to refute that this was a Karnikam service

inam. No doubt, no issue was framed, and the one, which was

framed, could have been more elaborate; but since the parties

went to trial fully knowing the rival case and led all the evidence

not only in support of their contentions but in refutation of those

of the other side, it cannot be said that the absence of an issue

was fatal to the case.”

22. In the above case, the parties having well understood the

pleadings, let in evidence touching upon the core issue involved in the case.

Under such circumstances, it was held by the Hon’ble Supreme Court that

failure on the part of the trial Court to frame a particular issue would not

prove fatal to the case.

23. In Sayeda Akhtar vs. Abdul Ahad, 2003(2) R.C.R. (Rent) 213, it

has been observed by the Hon’ble Supreme Court as follows:-

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