HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 1674 / 2011
Gauttam Chand Surana S/o Shri Nemi Chand Surana, aged about
45 years, R/o House No. 184 “B”, infront of Shiv Mandir, Mitra
Niwas Colony, Madanganj Kishangarh.
—-Applicant/Appellant
Versus
Smt Kanchan Devi W/o Shri Gauttam Chand Surana, by caste
Oswal, R/o House No. 184 “B”, Infront of Shiv Mandir, Mitra Niwas
Colony, Madanganj Kishangarh
—-Non-Applicant/Respondent
__
For Appellant(s) : Sh. Gaurav Jain, Adv.
For Respondent(s) : Sh. Mukesh Kumar Verma, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
14/12/2017
The instant misc. appeal is directed against the judgment
decree dt. 20.01.2011 passed by learned Family Judge, Ajmer in
petition filed u/S. 13 of the Hindu Marriage Act 1955 (“Act of
1955”) by husband-appellant Gauttam Chand Surana, whereby
learned Family Judge dismissed the petition.
Facts in brief relevant for our consideration are that marriage
between the parties took place as per Hindu customs and rituals
at Choti Khatu, District Nagaur on 25.11.1987. After staying for
10-15 days at the residence of her father-in-law at Madanganj,
wife-respondent Smt. Kanchan Devi came to her husband place at
Tinsukhiya (Assam). Husband Gauttam Chand was doing his
marble business there. Out of the wedlock, three issues namely
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Prerna, Preety Arihant were born. In April, 2007 Preety and
Arihant were admitted in Maheshwari International School,
Kishangarh, District Ajmer and elder daughter Prerna appeared in
the examination of class 12th. It has been averred in the petition
that the marital life of 20 years had never been peaceful for
petitioner husband. His wife used to pressurize him to stay
permanently at her maternal home at Choti Khatu. She also
pressurized him to seek partition of the property of his father
situated at Kishangarh and to obtain his separate share, his
father-in-law also pressurized for the same. Wife used to pick up
quarrels and to create scene in the colony where they were
residing. She used to break the tiles kept in the shop and also to
humiliate petitioner in the presence of the customers. She never
wanted to stay at Tinsukhiya and was adamant to come and stay
at Nagaur alongwith her husband.
It has also been averred that one of the relatives of wife
Kanchan Devi namely Trilokchand filed a false criminal case
against his real brother, Padamchand Surana, who after trial got
honourably acquitted in the case. She also used to tease her
parents-in-law, who were old and suffering from ailments.
Ultimately husband Gauttam Chand closed his business at
Tinshukhiya and started residing at Kishangarh since 15.04.2007.
Even then the quarrelsome attitude of respondent wife did not
stop. On 02.05.2007 she again picked up quarrel with parents-in-
law and husband. She called her uncle Malchand Surana at 10.30
at night. Father of the appellant had to file a civil suit seeking
permanent injunction against the wife/respondent as also a
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criminal case u/S. 107/116 Cr.P.C. at Kishangarh Court. The
petition was thus, filed to seek divorce on the ground of cruelty.
In reply the respondent wife refuted the allegations made in
the petition. On the contrary she alleged that her mother-in-law
was in habit of raising taunts on her and all other family members
used to make altercation with her. She had to go to her parents
house for delivery of all the three children. During pregnancy
period, husband appellant was also not behaving properly with
her. She never pressurized him to get the property partitioned and
never threatened him to stay at her parental home. She has
denied the allegation made in the petition regarding the alleged
incidents of quarrel and prayed to dismiss the petition.
Following issues were framed by learned Family Judge:-
“(1) Whether behavior of the respondent wife
had been cruelsome towards petitioner husband
as alleged in the petition?
(2) Whether the petitioner husband is entitled
to get the decree of divorce against his wife?
(3) Relief?”
Petitioner got himself examined as AW1 alongwith his father
Nemichand Surana (AW2), Uncle Malchand Surana (AW3) and
Premchand Kocheta (AW4). On behalf of the respondent wife, her
daughter Prerna (NAW2) was also examined besides herself as
NAW1.
On the basis of the evidence available on record, all the
issues were decided by learned Family Judge against husband
petitioner and he dismissed the petition accordingly.
Learned counsel for the appellant has contended that learned
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Family Judge has not given thoughtful consideration to the
material available on record. Despite there being sufficient
evidence to prove the ground of cruelty, the relevant issues have
been wrongly decided by learned Family Judge. The judgment
impugned is thus perverse and is liable to be quashed and set
aside.
Per contra learned counsel for the respondent has supported
the judgment and decree impugned while praying to dismiss the
appeal.
In light of the arguments advanced by the rival sides and the
material available on record, we have thoroughly scanned the
judgment impugned. On careful scrutiny of the evidence of both
the side it appears that though relation between the husband and
wife were not cordial, yet usual discussions which they held
between them on trivial issues, may not tantamount to cruelty as
envisaged u/S.13(1) (ia) of the Hindu Marriage Act. The
allegations made in the petition that wife respondent used to
pressurize the husband for getting his father’s property partitioned
and to take possession of his own share is not established by the
evidence. Likewise petitioner has not been able to establish that
respondent wife pressurized him to get shifted to her parental
house and to stay there permanently. On the contrary it reveals
that because of the law and order situation prevailing in Assam at
the relevant point of time, the wife was interested to shift to the
State of Rajasthan, particularly at Kishangarh, the permanent
parental place of husband.
The allegation of cruelsome behaviour of wife also does not
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find favour with us, in light of the fact that indisputably both the
parties alongwith the children stayed together at Tinshukhiya
(Assam), since their marriage in 1987 till the year 2005. Had
there been any aggressive or cruelsome behaviour on the part of
respondent wife, it could not have been possible for the husband
to stay with her for such a long period of 18 years. It may also be
inferred in view of the prolonged stay of both the parties together
that even if some discord of usual nature took place between
them, on account of alleged mis-behaviour by the wife, it was
pardoned and waived by the husband.
As regards the allegation made by the husband that one of
the relatives of his wife, Trilokchand filed a false criminal case of
committing dacoity against his brother namely Padamchand
Surana, it is apt to observe that a bare look at the judgment dated
05.11.1998 (Ex.5) in Criminal Case No. 419/1995, State Vs.
Padamchand shows that the allegation was not of dacoity but for
the simple offences u/S. 147, 323 341 IPC. As per the judgment
Ex.5, accused Padamchand was acquitted while extending him
benefit of doubt. In our opinion, such acquittal cannot be a ground
to presume that the false case was filed.
So far as other case u/S. 107, 116(3) Cr.P.C. and the suit for
permanent injunction are concerned, only order-sheet dated
10.09.2007 (Ex.14) of the Court of SDM, Kishangarh and the copy
of the plaint Ex.15 have been placed on record by the petitioner.
Order-sheet dated 10.09.2007 only shows that the show cause
notice was issued to Smt. Kanchan Devi, but what was the
ultimate result of both the proceedings i.e. the complaint u/S. 107
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116 (3) Cr.P.C. and the suit for injunction, has not been
produced on record, in absence of which no definite opinion can be
formed against the respondent.
Further, as per the statement of father of appellant, AW-2
no reliable evidence regarding alleged cruelty has come on record.
He has admitted that the incident which took place on 02.05.2007
is not in his personal knowledge but he has narrated about it only
as per the information given by Malchand (AW-3) who himself has
admitted that he did not file any complaint regarding the incident
of 02.05.2007 in the police or before any member of the
community. He has also admitted that petitioner Gauttam Chand
told him that it was a matter between husband and wife which
would be settled among themselves. In this light, it cannot be
assumed that some serious incident took place on 02.05.2007.
Learned counsel for the appellant has relied upon Suman
Kapur Vs. Sudhir Kapur, reported in AIR 2009 Supreme Court
589. On going through the judgment we find that it is of no
assistance to the appellant as the facts of the case in hand are
entirely different from that of the case referred above. In that
case the wife was found to be keen to lead independent life and to
pursue her professional career. As per the letter written by her, it
was evident that she had lost interest in the marriage and had no
belief in Indian culture. She also levelled serious allegation against
the husband that he had married to another American Woman.
Not only this she prevented her husband to have matrimonial
relations with her. In such fact situation Hon’ble Supreme Court
treated it to be a case of mental cruelty at the instance of wife.
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But the facts of the case in hand are entirely different. In our
considered opinion, this judgment is therefore, of no assistance to
the appellant.
It will be relevant to mention here that Hon’ble Supreme
Court in Praveen Mehta v. Inderjit Mehta, reported in (2002)
5 SCC 706 has held as under:-
“21. Cruelty for the purpose of Section 13(1)(i-a) is to be
taken as a behaviour by one spouse towards the other, which
causes reasonable apprehension in the mind of the latter that
it is not safe for him or her to continue the matrimonial
relationship with the other. Mental cruelty is a state of mind
and feeling with one of the spouses due to the behaviour or
behavioural pattern by the other. Unlike the case of physical
cruelty, mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn
from the facts and circumstances of the case. A feeling of
anguish, disappointment and frustration in one spouse caused
by the conduct of the other can only be appreciated on
assessing the attending facts and circumstances in which the
two partners of matrimonial life have been living. The
inference has to be drawn from the attending facts and
circumstances taken cumulatively. In case of mental cruelty it
will not be a correct approach to take an instance of
misbehaviour in isolation and then pose the question whether
such behaviour is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of the
facts and circumstances emerging from the evidence on
record and then draw a fair inference whether the petitioner in
the divorce petition has been subject to mental cruelty due to
conduct of the other.”
In case of Naveen Kohli Vs. Neelu Kohli, reported in
(2006)4 SCC 558, the Hon’ble Supreme Court has held as
under:-
“51. The word “cruelty” has to be understood in the
ordinary sense of the term in matrimonial affairs. If the
intention to harm, harass or hurt could be inferred by the
nature of the conduct or brutal act complained of, cruelty
could be easily established………………….
…………………………………………………………………………………………….”
On going through the entire material available on record, we
are of the opinion that whatever allegation have been levelled
regarding cruelsome behaviour of respondent wife cannot said to
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be of such a grave nature which may amount to cruelty as
envisaged u/S. 13(1)(ia) of the Act of 1955 so as to warrant the
grant of decree of divorce. All these incidents can at most, be
treated to be ordinary wear and tear of married life, of which
serious note cannot be taken of.
In light of the observations made here in above, we find no
illegality in the impugned judgment dated 20.01.2011 passed by
learned Family Judge, Ajmer, which may call for our interference.
Accordingly, we find no substance in the appeal which is
liable to be and is dismissed accordingly.
(DEEPAK MAHESHWARI),J. (AJAY RASTOGI),J.
Arun/40
