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Rama Dutt vs Arvind on 6 December, 2019

FAO No.M-56 of 2018 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
FAO No.M-56 of 2018
DATE OF DECISION : 06.12.2019

Rama Dutt …Appellant

Versus

Arvind …Respondent

CORAM: HON’BLE MR. JUSTICE RAJAN GUPTA
HON’BLE MR. JUSTICE KARAMJIT SINGH

Present : Mr. R.K.Girdhwal, Advocate,
for the appellant.

Mr. S.K.Yadav, Advocate,
for the respondent.

KARAMJIT SINGH, J.

The present appeal lays challenge to the judgment and decree

dated 08.02.2018 passed by the learned District Judge, Jhajjar, allowing the

petition filed by the respondent-Arvind, for seeking divorce under Section

13(1)(i)(ia) of the Hindu Marriage Act, 1955.

The marriage of the parties was performed on 11.03.2011 and a

pre-mature baby was born out of this wedlock but he did not survive. It was a

simple marriage. The appellant-wife used to treat the respondent-husband and

other members of his family with cruelty. The respondent-husband was serving

in the Indian Air Force and was posted in Bhuj (Gujrat) from 2007 to

25.06.2012. After the marriage, the respondent-husband wanted to take his

family with him to Bhuj but his mother-in-law objected to the same. On

25.04.2011, the brother of the appellant-wife took her to Bhuj, where she

started quarrelling with the respondent-husband and her behaviour was very

rude.

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On 07.06.2011, when the respondent-husband came to his village,

he invited his friends, Rattan Kumar and Sachin, but the appellant-wife refused

to serve them food. The appellant-wife insulted the respondent-husband in the

presence of his friends. She also refused to celebrate Karvachauth and Diwali

with the respondent-husband. On the night intervening between

21/22.08.2011, the appellant-wife tried to commit suicide by strangulating

herself but she was saved by the respondent-husband. Finally, the appellant

deserted the respondent on 11.09.2012. Thereafter, appellant-wife falsely

implicated the respondent-husband and his parents in a criminal case having

FIR No.361 dated 22.11.2012 under Sections 498A, Section406 and Section506 of the Indian

Penal Code (hereinafter referred to as ‘SectionIPC’), Police Station Beri. The

respondent-husband prayed for a decree of divorce on the ground of cruelty

and desertion.

The petition was contested by the appellant-wife, who filed written

statement refuting and categorically denying the allegations made by the

respondent-husband. However, she admitted the factum of marriage.

From the pleadings, following issues were framed by the learned

Court below:-

1. Whether the respondent-wife committed cruelty on the

petitioner-husband?OPP.

2. Whether the respondent-wife deserted the petitioner?OPP.

3. Whether the petitioner is entitled to decree of divorce under

Section 13(1)(ia) and (ib) of the H.M.Act?OPP.

4. Quantum of maintenance payable to respondent-wife under

Section 24 of the HMA?OPR.

5. Relief.

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FAO No.M-56 of 2018 -3-

The respondent-husband examined himself as PW1 and also

examined his neighbour as PW2, Anil and his friend Rattan as PW3. The

respondent-husband also produced documents Exhibit P1 to Exhibit P4 in

support of his case. On the other hand, appellant-Rama Dutt appeared in the

witness box as RW4 and also examined Nodal Officer of the telecom company

as RW1 and also examined RW2, who produced the salary record of her

husband. RW3, Alhmad of the court concerned proved FIR, Exhibit R5,

bearing No.361 dated 22.11.2012. Appellant-wife also produced copy of

grounds of appeal, Exhibit R6.

After considering the pleadings and the evidence adduced, the trial

Court allowed the petition.

Feeling dissatisfied by the judgment and decree dated 08.02.2018,

the appellant-wife has filed this appeal.

Learned counsel for the appellant-wife has challenged the

impugned decree of divorce dated 08.02.2018. It is contended that it was the

cruel behaviour of the respondent-husband, which compelled the appellant-

wife to leave the matrimonial home. In support of his contention, learned

counsel for the appellant referred to the testimony of RW4-Rama Dutt.

Reference has also been made to the testimony of RW3-Sandeep, Criminal

Ahlmad, in order to establish that FIR No.361 dated 22.11.2012 under Sections

406, Section498A and Section506 IPC was registered against the respondent-husband and

other members of his family. A copy of the said FIR is Exhibit R5.

It is further contended that there is no doubt that in the aforesaid

criminal case, the respondent-husband was acquitted but an appeal had also

been filed against the order of acquittal, as is evident from Exhibit R6. It is

further contended that normal wear and tear of life and casual bickering

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between the husband and wife cannot termed as cruelty in real sense. Actually

the respondent-husband compelled the appellant-wife to leave the matrimonial

home. While concluding the arguments, learned counsel for the appellant also

submitted that the respondent-husband has miserably failed to prove the ground

of cruelty and desertion against the appellant-wife.

On the other hand, learned counsel for the respondent submitted

that there is no illegality or perversity in the impugned judgment and decree

dated 08.02.2018. He submitted that there is ample evidence on the record to

prove the grounds of cruelty and desertion against the appellant-wife. Learned

counsel for the respondent referred to the testimony of PW1 to PW3, in support

of his arguments.

Learned counsel for the respondent while referring to the latest

judgment of the Hon’ble Apex Court passed in Civil Appeal No.8871 of 2019

titled as ‘Rani Narasimha Sastry Vs. Rani Suneela Rani’ decided on

19.11.2019, submitted that acquittal of the husband under Section 498A IPC,

after conclusion of trial, itself amounts to act of cruelty meted on the husband

by his wife. Learned counsel for the respondent further contended that in the

case in hand, respondent-husband was acquitted of the charges under Sections

406 and Section498A IPC by the Court of Additional Chief Judicial Magistrate,

Jhajjar, as is evident from the judgment dated 03.02.2017 (Exhibit P-4). So,

even the said order of acquittal, in a criminal case under Sections 406 and

Section498A IPC, amounts to act of cruelty by the wife.

We have heard counsel for the parties and perused the record

carefully.

The matter was referred to the Mediation and Conciliation Centre

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of this Court for mediation between the parties but it failed.

There is no dispute regarding the fact that the appellant got

married with the respondent on 11.03.2011 and a pre-mature baby was born out

of this wedlock and also they are living separately since 11.09.2012.

Respondent-husband has filed divorce petition on the ground of cruelty and

desertion. It is settled proposition that normal wear and tear of married life and

mere trivial irritation and quarrels cannot be termed as cruelty. However, in the

present case, it stands proved that respondent lodged FIR No.361 dated

22.11.2012 under Sections 406, Section498A and Section506 IPC against the appellant and

other members of his family. After investigation, the police presented charge-

sheet against them and after the conclusion of the trial, the appellant and his

parents were acquitted by the court of learned Additional Chief Judicial

Magistrate, Jhajjar, vide judgment dated 03.02.2017 (Exhibit P4). There is no

dispute that appeal against the said order of acquittal has been filed by the

respondent and the copy of the grounds of appeal is Exhibit R6. However, till

date the aforesaid order of acquittal is subsisting. In the aforesaid criminal

case, the appellant-wife levelled serious allegations that respondent-husband

was having illicit relations with several females. As per the law laid down by

the Hon’ble Apex Court in Rani Narasimha Sastry’s case (supra), it is true that

it is open for anyone to file complaint or lodge prosecution for redressal of his

or her grievance and lodge a First Information Report for an offence and mere

lodging complaint or FIR cannot be ipso facto treated as cruelty. But when a

husband undergoes a trial in which he has acquitted of the allegations of

offence under Section 498A IPC, levelled by the wife against the husband, it

cannot be accepted that no cruelty is meted on the husband. So in this case, the

ground of cruelty stands proved as the act of wife in filing aforesaid false

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criminal case against the appellant-husband amounted to mental cruelty.

In this case, marriage was performed on 11.03.2011 and parties got

separated on 11.09.2012. The divorce petition was filed on 31.10.2014 by the

husband and prior to that no application for restitution of conjugal rights was

moved by the appellant-wife. In the criminal case relating to offence under

Section 498A IPC, the appellant-wife failed to prove the allegations of cruelty

against the husband meaning thereby that she abandoned the respondent with

an intention to bring cohabitation permanently to an end. So, the ground of

desertion is also established in this case against the appellant.

Therefore, there is hardly any merit in this appeal for the purpose

of taking a different view from the view taken by the learned District Judge,

Jhajjar, by interfering in this appeal. Hence, the present appeal is hereby

dismissed, though without any order as to costs.

(RAJAN GUPTA) (KARAMJIT SINGH)
JUDGE JUDGE

06.12.2019
adhikari

Whether speaking/non-speaking : Yes
Whether reportable : Yes/No

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