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Ravinder Yadav vs Padmani @ Payal on 17 May, 2019

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; or

In 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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