FAO-M-126-2019 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
115 FAO-M-126-2019 (OM)
Date of Decision : 17.05.2019
Ravinder Yadav
… Appellant
Versus
Padmani @ Payal
…Respondent
CORAM:HON’BLE MR. JUSTICE RAKESH KUMAR JAIN
HON’BLE MR. JUSTICE HARNARESH SINGH GILL
Present: Mr. I.P.S. Kohli, Advocate for the appellant.
HARNARESH SINGH GILL, J.
By way of present appeal, appellant-Ravinder Yadav has assailed
the judgment and decree dated 03.04.2019 passed by the District Judge,
Narnaul, vide which his petition filed under Section 13 of the Hindu
Marriage Act, 1955 (for short ‘the Act’) against respondent-Padmani @
Payal, was dismissed.
The facts which need to be elaborated are that the marriage of the
appellant and the respondent was solemnized on 09.03.2015 as per Hindu
rites and ceremonies. The marriage was consummated but no child was born
out of the said wedlock. As per the allegations in the petition, the
respondent-wife always imbibed with independent and modern thoughts
posing herself to be a broad minded lady. Right from the next day of
marriage, respondent started quarrelling with the appellant and his parents
and threatened them to do everything under her command. The respondent
flatly refused to perform household work and alleged that if she was
compelled to do so, she would commit suicide and create problems for
appellant and his family members. It was also alleged that the respondent
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used to consume liquor and take drugs and had illicit relations with one
Kuldeep Shekhawat. She was in the habit of leaving matrimonial home
without informing the appellant and his family members and on asking, she
used to say that nobody was allowed to interfere in her personal life. The
respondent often used to make phone calls on mobile No. 9521677437 (at
some places the mobile number is mentioned as 9621677437) and whenever
the appellant called her she would remain busy on whatsapp and facebook
with strangers and friends. The respondent even refused to share bed with
the appellant which had caused mental cruelty to him. As per the appellant,
the respondent left her matrimonial home on 17.04.2015 without informing
him and his family members. On 06.05.2015, her father along with other
respectables came to the appellant’s place and used bad words against him and his
family members. The respondent also broke the Mangalsutra (Necklace) in the
presence of the Panchayat members and flatly refused to live with the appellant as
his wife and left her matrimonial home on 13.05.2015.
On the other hand, the respondent-wife, though admitted the
factum of marriage yet specifically denied that she had ever raised her voice,
rather asserted that she had followed all the social and religious customs in her
matrimonial home. She alleged that the appellant is M.Sc., M.Ed. qualified and
was doing a job in a private school. It is also alleged that the appellant used to
pressurize the respondent to bring more money from her parents and asked her
parents to sell their land, but the respondent and her father did not accede to
such demand of the appellant. It was the appellant and his parents, who
harassed the respondent physically and mentally and used to call a Tantrik for
doing black magic upon her. She had denied the factum of attempting
to commit a suicide. She used to prepare the food for the appellant
and his family members at proper time and used to
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serve the guests as well. It was also denied by the respondent that she was
a wanderer or used to consume liquor or drugs. The incident dated
06.05.2015 was admitted by the respondent as her family members came to
drop her back to her matrimonial home. However, she was never accepted
by the appellant and his family. They tortured her and ultimately she was
turned out of her matrimonial home.
In the present case, issues were framed on 09.05.2017 and the
appellant had examined as many as five witnesses along with his mother,
namely, Bhateri Devi as PW-2.
On the other hand, respondent had appeared into the witness box
as RW-1 along with his father and other witnesses. After taking into
consideration the evidence on record, the petition under Section 13 of the
Act was dismissed on the ground that marriage was solemnized on
09.03.2015 and the respondent-wife had been residing with her parents
since 13.05.2015 and the present petition was filed by the appellant-husband
on 25.02.2016. It was, thus, held that the allegations of cruelty remained
unsubstantiated.
We have heard learned counsel for the parties and are of the view
that there is no infirmity and illegality in the impugned judgment and decree
passed by the trial Court.
PW-3, namely, Vartika, in her cross examination had testified
that the respondent was having illicit relations with one Kuldeep Shekhawat
and his name was told to her by her friend Raveena. This witness further
stated that she had come in contact with the respondent while studying and
staying as a Paying Guest and had made a complaint to the owner of the
P.G. regarding the behaviour and conduct of the respondent-wife. Neither
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the owner of the P.G. stepped into the witness box to throw light on the said
aspect nor any link evidence in this regard was led. Thus, the oral evidence
of Vartika, PW-3 will not advance the cause of the appellant/petitioner.
Though it is an admitted fact, as it had come through oral
testimony, that the respondent-wife has been residing separately since
13.05.2015, but to our mind, it is the appellant, who alone is instrumental in
ensuring that the respondent-wife stays away from her matrimonial home
and there is no intentional cessation of cohabitation on the part of the
respondent-wife nor there is any intention to desert the appellant-husband.
The statutory period of two years of desertion, as envisaged under
the Act, immediately preceding the presentation of the petition, had not
expired, before the filing of the divorce petition by the appellant. At this
stage, it would be relevant to consider Section 13(ia) and (ib) of the Act
which reads as under:-
13.Divorce
(1) Any marriage solemnised, whether before or after the
commencement of this Act, may, on a petition presented
by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party.
16 [(i) xxx xxx xxx
[(ia) has after the solemnization of the
marriage, treated the petitioner with cruelty; or
[(ib) has deserted the petitioner for a
continuous period of not less than two years
immediately preceding the presentation of the
petition; orIn Section 13(1)(ib) of the Act, it has been specifically laid down
that desertion is to be considered for the continuous period of not less than
two years, immediately preceding the presentation of the petition.
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In the case in hand, the respondent-wife has allegedly left her
matrimonial home on 13.05.2015 and the present petition was filed on
25.02.2016, thus, on the date of filing of the divorce petition, the statutory
period of two years had not expired. Thus, the present divorce petition had
rightly been rejected on this count by the Court below.
Thus, the relief of divorce was denied because the legislation in
its wisdom had framed the Act on the basis of “fault theory” and “break
down theory” which was not proved in the present case.
In Rajni Goyal versus Amit Kumar 2015 (2) R.C.R. (Civil) 871,
the Hon’ble Court has held that “adultery is a serious charge and has to be
proved beyond reasonable doubt. But at the same time it is difficult to
procure direct evidence for proving such a charge. It is only from the
circumstances that an inference can be drawn that the spouse against
whom complaint has been made was leading an adulterous life”.
To our mind, in the present case there is ordinary wear and tear of
the married life of the parties, which happens in day to day life. Mere
aggressive behaviour and sadness of mood of wife does not mean that the
wife is spoiling the atmosphere of her matrimonial home.
It has been held by the Apex court in Samar Ghosh versus Jaya
Ghosh, 2007 (2) R.C.R. (Criminal) 515 that the concept of cruelty differs
from person to person, depending upon his or her upbrining, level of
sensitivity, educational, family and cultural background, financial position,
social status, customs, traditions, religious beliefs, human values and their
value system. Therefore, it is essential for the party claiming the relief to
prove that a particular conduct or behaviour has resulted into cruelty to him
or her. The aggrieved party has to make specific case that the conduct of the
spouse had caused cruelty to him/her. It is for the Court to weigh the gravity
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of alleged cruelty. It has to be seen whether the conduct was such that no
reasonable person would tolerate it.
In the present case, no cogent evidence has been placed on record
that the behviour of respondent is uncalled for. Regarding relationship of
respondent-wife with Kuldeep Shekhawat the same had not been proved
and above all Kuldeep Shekhawat had not been arrayed as party in the
divorce petition so that he could join the proceedings and some light could
have been thrown on the allegation. As a matter of fact adultery cannot be
considered without impleding the alleged adulterer as per Rule 10 of Hindu
Marriage (Punjab) Rules, 1956. Rather unsubstantiated and uncorroborated
testimony associating the respondent with adulterer has caused mental
cruelty to the respondent.
Thus nuptial knots cannot be allowed to be broken on these types
of unfounded allegations of cruelty, physical or mental.
In view of the above, we do not find any illegality or infirmity in
the order passed by the learned trial Court, which may warrant interference
by this Court in the present appeal.
Hence, the present appeal is dismissed.
No order as to costs.
( RAKESH KUMAR JAIN ) ( HARNARESH SINGH GILL )
JUDGE JUDGE
17.05.2019
pooja saini
Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
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