FAO-M-323-2009 (OM)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.

FAO-M-323-2009 (OM).
Decided on: October 3, 2018.

Satvinder Singh Choudhary

.. Appellant

VERSUS

Ritu Jaglan

.. Respondent
***

CORAM: HON’BLE MR.JUSTICE M.M.S.BEDI
HON’BLE MR.JUSTICE ANUPINDER SINGH GREWAL

***

PRESENT Mr.Kanwaljit Singh, Sr. Advocate, with
Mr.Abhinav Aggarwal, Advocate,
for the appellant.

Mr.Vikas Singh, Advocate,
for the respondent.

M.M.S. BEDI, J.

This is an appeal filed by the husband against the

judgment and decree dated 3.9.2009, dismissing his petition under Section

13 of the Hindu Marriage Act, against the respondent for dissolution of

marriage by a decree of divorce on the ground of cruelty and desertion.

The case set up by the appellant in his pleading is that

the parties were married on 29.3.2004 at Karnal. No issue was born out of

the wedlock. The appellant claimed to be highly qualified physician having

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a degree of M.D. to his credit. It was pleaded that the respondent was also

having qualification of M.Sc. (Computer Science) with MCA. She was

working as part time Lecturer at Kurukshetra and was preparing for NET

exam for lecturership. Proposal of marriage was initiated in the month of

November, 2003. The appellant pleaded that he was in search of a suitable

girl and being a doctor was looking after the accidental injuries to his

mother. The appellant has pleaded that the father of the appellant had

desired the marriage to be a dowry-less marriage by taking only 5 persons in

Barat on the lines of marriage performed by the elder brother of the

appellant namely Sq. Leader Rajbir Singh Choudhary but at the instance of

father of the respondent showing his reservations on the pretext that

Shagun had to be received back from the friends, relatives and Biradari,

insistence was made for bringing the Barat. It is pleaded that the

engagement ceremony was held on 25.3.2004. Father of the respondent

compelled the appellant and his father to accept Samsung T.V. brought by

them. Few articles like gold chain, gold coin etc. were given to the

appellant. The Barat consisting of 100 persons on 18.3.2004, reached the

venue of marriage in Karnal at 10:00 P.M. when there was hardly left

anything in the Pandal for Baratis. The phera ceremony was performed at

the house of the respondent and after the said ceremony when the appellant

along with his brothers and their respective wives had gone to the house of

the respondent her father asked the elder brothers of the appellant to go out

of the room in a harsh language and the elder brother of the appellant Sq.

Leader Rajbir Singh Choudhary, was humiliated by requiring him to leave

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the room. The appellant and respondent had returned to the house in new

Maruti LXI car which had already been purchased by the appellant and his

father in the month of February, 2004 from their own resources. The

respondent had come to the house of the appellant in the wee hours on the

morning of 29.3.2004. At the time of Bidai, the father of the respondent had

given Rs.11000/- as Kanyadan, Rs.101/- as Muklawa as shagun and few

clothes and put a list of dowry articles in the towel of shagun. Certain

articles like gold ring, gold chain, panjeb and ear tops etc. were given by the

father of the appellant despite the objection of the father of the appellant

that nothing was required. It is pleaded that most of the said articles have

now been taken back on 30.6.2004. The various instances to establish the

cruelty have been mentioned in the petition which can be summarised as

follows to avoid a voluminous judgment :-

On 2.4.2004, Angiography test of the mother of the

appellant had taken place. The respondent refused to take care of her

mother-in-law stating that she was not a nurse. The respondent had insisted

to go for honeymoon to Manali in the personal car despite the resistance of

the appellant that he was not good at driving but the appellant’s brother, his

wife and kids had to accompany the couple for honeymoon as the brother of

the appellant knows driving in the hills. The behaviour of the respondent

was unwarranted. In May 2004, the respondent was adamant to attend a

friend’s marriage at Ambala and the respondent insisted to go by car. She

did not introduce the appellant to anyone and she did not talk nicely to the

appellant. The instance of visit to a movie ‘Main Hoon Na’ has been referred

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to in the pleadings when the respondent behaved differently and did not

accept the cold drink during interval. The respondent had to appear in the

NET exam for which the books had been brought by the appellant. The

respondent prepared for the exam but the father of the respondent blamed

that the appellant and his family members had compelled the respondent to

study intensively but the respondent remained a mute spectator while the

appellant had been insulted. The respondent appeared for NET exam at

Kurukshetra, in April 2004 and failed. She again appeared for the NET

exam on 20.6.2004 and then on 25.6.2004, she again appeared in

Agriculture Net Exam at NDRI, Karnal where she was taken in a car but she

failed in both the exams. The respondent prepared breakfast for the

appellant but father of the respondent demanded explanation from the father

of the appellant as to why the respondent was compelled to prepare the

breakfast. On 8.5.2004, the respondent refused to prepare tea for the guests

claiming that she was not a maid and the appellant had to cut sorry figure

before his parents for indifferent and unbecoming attitude of the respondent.

Respondent used to tell the appellant that her astrologer had predicted her

two marriages. She refused to have sexual relations with the appellant. On

28.6.2004, when the respondent was taken by the appellant to a restaurant

for celebration, his mother also accompanied them. Father of the respondent

had raised an objection as to why the mother of the appellant had

accompanied them. On 30.6.2004, the respondent had gone to Kurukshetra

to collect her experience certificate accompanied by her brother namely

Pardeep and thereafter, she left for her parental house for a period of one

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month after informing her parents-in-law in presence of one Ramdhari. The

appellant has pleaded that on 31.7.2004, the appellant was called by the

respondent at her house where mother of the respondent asked him to take

her back on 1.8.2004. The appellant had gone to the parental house of

respondent but the respondent put a condition for separate accommodation.

In July 2004, the respondent joined as Lecturer on contract basis at D.A.V.

College, Karnal, for which his father had helped her in getting employment.

In August 2004, the appellant had gone to meet the respondent in her

College but her behaviour in the College was rude for which he felt

humiliated. In September 2004, the appellant met the respondent at NDRI,

Karnal, where the respondent told that her father would call the appellant.

On asking of the respondent’s father, the appellant had visited her house

where her father had behaved in a rude manner and insulted him. It is

further pleaded in the petition for divorce that on 31.10.2004, on the

occasion of ‘Karva Chauth’, the appellant received an SMS message from

the respondent-wife. The appellant has urged in the petition that on

10.11.2004, he had been operated upon in PGIMS Rohtak and remained on

leave from 9.11.2004 to 25.11.2004, where the respondent never visited nor

she enquired about his health telephonically. On 19.12.2004, a Panchayat

was convened at the house of the appellant where the father of the

respondent demanded all the jewellery articles. On 23.2.2006, a Panchayat

was convened at respondent’s place where also the father of the respondent

behaved rudely. On 24.2.2006, a legal notice was issued to the wife wherein

she was asked to collect all her jewellery and dowry articles. A copy of the

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notice had been sent to S.P. Karnal as well as SHO, Police Station, Civil

Lines, Karnal. The wife has sent reply to the said legal notice specifically

mentioning therein that she would return back but insisted for separate

residence. It was further pleaded that the respondent had deserted the

appellant for a period of 2 years entitling him for a decree of divorce on the

ground of desertion. It is urged that there has been ‘animus diserendi’ and on

the basis of above said pleadings, the appellant sought dissolution of

marriage with the respondent.

The respondent filed a detailed written statement taking

up preliminary objections that there was no cause of action against the

respondent and that the appellant wanted to get rid of her and was interested

in the second marriage. He has tortured the respondent mentally and

physically. The behaviour of the family members of the appellant especially

his parents, brother Rajbir and Suman wife of Rajbir was cruel and they had

been taunting the respondent. It is pleaded that a very small incident has

been given the colour of tutored facts just to create grounds of divorce.

From the very beginning, wish of the appellant was that the respondent

should be a Lecturer in a Government College and her appointment should

be financed by the father of the respondent. The parents of the appellant had

kept the respondent under psychic pressure that she should clear the NET

exam and should also qualify Ph.D so that she can be appointed at the

earliest. The parents of the appellant used to sit outside the room of the

respondent keeping it locked from outside giving her curriculum of the day

regarding her study hours. She was pressurised to attain Ph.D qualification

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or clear the NET exam off and on by the appellant and his parents. She was

made to understand that in case she failed in NET or does not devote time

to the study, she would be shunted out or divorced. All the allegations in the

petition for divorce were denied. It was pleaded in the reply that the

appellant needed a nurse and not a wife. Whenever, she wanted to visit her

parents, friends or relations, her father-in-law never allowed her to visit

them on the pretext that who would take care of her mother-in-law. The

respondent used to apply medicines on the wounds of mother-in-law daily.

Rs.14 lacs were spent on marriage. The list of articles given in the marriage,

at the time of roka ceremony, engagement ceremony were pleaded. It was

pleaded that funds were given to the appellant for car with which Zen Car

was purchased in his own name. It was pleaded that the father of the

respondent never interfered in the day to day life of his daughter and always

respected the appellant and his family members. However, the in-laws of the

appellant insulted her in presence of her relatives on the ground that

sufficient dowry had not been given nor she is getting employment. Mother

in law of the respondent accompanied her to Karnal on 30.4.2006.

Thereafter, her mother took her to parental house on account of ‘Teez’

festival. It was denied if any condition was ever imposed by the father of the

respondent. The respondent had always been ready and willing to reside

with the appellant in her matrimonial house and her parents were always

ready for her settlement in the matrimonial house. Respondent got a job in

D.A.V. College, Karnal because of her qualifications and her father-in-law

never helped her in getting the employment. She had been making frequent

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calls when the appellant was admitted in the hospital but her in laws had

asked her not to cal again and again. Panchayats were convened on

19.12.2004 and 11.3.2006, by the respondent side but neither the appellant

nor his father attended the Panchayat on 11.3.2006. In fact, Rajbir

Choudhary, brother of the appellant came present in said Panchayat. The

respondent claimed that she had not filed any complaint against the

appellant or his family members as she was always ready and willing to join

the company of the appellant for which he was not interested.

The petitioner filed a detailed replication reiterating the

averments made in the petition for divorce.

On the pleadings of the parties, the following issues were

framed on 25.9.2004:-

1. Whether the respondent has treated the petitioner

with cruelty after solemnization of marriage as alleged?

OPP

2. Whether respondent has continuously deserted the

petitioner w.e.f. 30.6.2004 onwards for a continuous

period of more than two years prior to filing of the

petition, as alleged? OPP

3. Whether the petition is not maintainable, as

alleged? OPR.

4. Relief.

Issue Nos.1 and 2 were decided against the appellant and

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in favour of the respondent observing that the appellant has filed a lengthy

petition of 42 pages exaggerating the ordinary wear and tear of married life.

The small incidents have been stretched unreasonably and that the appellant

had not made any sincere efforts to bring back the respondent to the

matrimonial home and made efforts only to create grounds for divorce. He

has not treated the respondent in a proper manner as such, he cannot be

granted advantages of his own wrong to claim that the marriage has

irretrievably broken down. The lower Court observed that the respondent

had not initiated any criminal proceedings against the appellant proving that

she had no intention to snap ties with him or leaving the matrimonial home

permanently. She has not raised any condition for joining her matrimonial

home. On appreciation of evidence, the petition of the appellant was

dismissed vide impugned judgment and decree dated 3.9.2009.

Mr. Kanwaljit Singh, learned Senior Counsel appearing

on behalf of the appellant – husband has submitted that the conduct of the

respondent as an Indian wife has not been up to the mark and is beyond the

expectation of a prudent family of a boy. He has drawn the attention of this

Court to the various circumstances from the inception i.e. starting from the

period of ‘Barat’ till the respondent left the matrimonial home which are

clearly indicative of the mental cruelty which has been caused by her to the

appellant and his family members. He submitted that the marriage had taken

place on March 28, 2004. It lasted only for three months when the

respondent left the matrimonial home. The efforts of reconciliation were

made by the appellant by telephoning her on July 31, 2004 and visiting her

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house on August 1, 2004 twice as admitted by the respondent in her cross-

examination. Appellant had visited her college in August 2004 as pleaded

and proved by him. The appellant also visited the house of respondent to

bring her back in September 2004 when he was insulted. On December 19,

2004, the father of the respondent had come to the house of the appellant to

take the belongings of the respondent i.e. her books, clothes etc. on the

pretext that she had to appear in NET exam in the last week of December

2004 but her father had not sent the respondent to the matrimonial home.

Attempt was made to convene a panchayat on July 30, 2009 and as per

admission of the respondent and her mother RW3, they did not attend the

panchayat. The appellant had told his father-in-law in the said panchayat

that he had been transferred from PHC, Bamla to CHC Kaul, District

Kaithal before 19.12.2004. On February 23, 2006, the panchayat from the

village of the appellant had gone to the house of respondent to bring her

back but the attempt was not successful. Main emphasis has been laid down

by the Senior Advocate on the legal notice Ex.P7 dated February 24, 2007

which was sent by the appellant mentioning therein the convening of

panchayats and the efforts made by him and requesting the respondent to

come back. The said notice was replied on March 3, 2006 vide Ex.P17

wherein the respondent had expressed her unwillingness to live with the

appellant at her matrimonial house. A perusal of Ex.P17 indicates that the

respondent had insisted that she would come back in case the appellant

would stay separately from his parents. Fed up with the conduct of the

respondent, ultimately the appellant had to file divorce petition on August

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14, 2006, when despite efforts having been made for 2 years the respondent

had refused to return back. Counsel has drawn attention to the evidence

produced on the record that from the inception of the marriage the appellant

was persistently humiliated and insulted. Great emphasis was laid down by

the learned counsel on the incident of mother of the appellant having

undergone an angiography on April 2, 2004 at Batra Hospital, New Delhi

when the respondent bluntly refused to take care of her by saying that she

was not a nurse and did not care if the mother of the appellant lives or dies.

In April 2004, conduct of the respondent at Honeymoon was unkind and

harsh and as per the evidence proved by the appellant on June 30, 2004

when the appellant was away to his duty, the respondent without his consent

left her matrimonial house along with her belongings and went to her

parental house along with her brother in presence of PW7. This fact has not

been denied by the respondent. It was urged that her consistent absence

from the matrimonial home is glaring evidence of desertion. The appellant

claims that on January 21, 2005 when he was admitted for an operation in

the hospital, the respondent never came to meet him which had caused

mental cruelty to him. He has emphasized with the reply Ex.P-17 to the

notice Ex.P7 which clearly reflects the intention of the respondent not to

resume cohabitation.

Mr.Kanwaljit Singh, learned Senior Counsel has also

emphasized on the factors constituting mental cruelty in the present case

and asserted that it is a case of irretrievably broken marriage as the parties

have been living separately since June 2004. He referred to Annexures A-1

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to A-5, the documents which have come into existence during the pendency

of the appeal and sought to produce them as additional evidence. These

documents reflect that vide Annexure A-1, the respondent wife had filed a

petition under Protection of Women from Domestic Violence Act, 2005, in

which interim relief of maintenance and residence has been dismissed.

Appeal was dismissed by the Additional Sessions Judge, Karnal vide

Annexure A-2 dated July 6, 2016. An FIR was registered by the respondent

but in cancellation report she submitted protest petition. Annexure A-3 is

the FIR lodged by the father of the appellant in which respondent has been

summoned along with her brother and mother in offences under Sections

323, 452, 506 IPC. The appellant has been suspended on August 16, 2016

vide Annexure A-5 on a complaint filed by the respondent. He urged that

the lower Court had misread the evidence and wrongly dismissed the

petition for divorce.

On the other hand, counsel for the respondent, Mr.Vikas Singh,

has urged that the respondent has levelled allegations that the respondent

from the very inception had an intention to stay together but no attempt had

been made by the appellant to resume cohabitation. Dowry articles were

given to the respondent as admitted by the appellant while appearing as

PW3 and his father as PW5 but the respondent had not filed any case

against them for misappropriation of the dowry articles only because she

wanted to save the marriage. Clarification has been given by counsel for the

respondent that the allegations of insufficient food for Barat are incorrect.

RW1 has stated that both the brothers of the appellant were drunkard under

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the influence of liquor which is exhibited in CD Ex.R1 to R-3. The

allegations regarding misbehaviour at honeymoon at Manali was

contradicted by arguing that the appellant has admitted that his brother

along with kids and wife had accompanied in the Car which is sufficient

enough to arrive at a conclusion that the allegations of misbehaviour at

Manali are false. Counsel for the respondent submitted that petty allegations

of respondent having not accepted the cold drink during interval of a movie;

adamant to attend friend’s marriage at Ambala; respondent having failed in

NET exam; she having not taken care of mother-in-law; she having refused

to sex with the appellant; allegation of refusal to serve tea to the guests and

having wrongly left the matrimonial home on June 30, 2006, were all based

on whimsical attitude of the appellant whereas such allegations are not only

false but do not constitute an act of cruelty or desertion. It has been urged

that the respondent is still ready to join the company of the appellant but he

is adamant. There has never been an intention of the respondent to desert

but it is on account of wrong of the appellant that the respondent could not

join the company of the appellant.

We have carefully considered the contentions of learned

counsel for the parties. Voluminous record has been perused with the

assistance of counsel for both the parties. The appellant has tried his best to

prove the allegations of cruelty and misbehaviour as well as desertion as

discussed hereinabove whereas the respondent wife has tried to establish

that the allegations are petty instances of behaviour of the respondent which

would not in any manner constitute cruelty to an extent that it would

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warrant divorce. The respondent has tried to explain her presence in parents

home after June 3, 2004 claiming that she had gone to her house for ‘Teej’

festival.

We have gone through all the allegations of cruelty which

includes the allegation of ‘Barat’ having been intentionally insulted on the

date of marriage as no food was left for the Barat; the respondent having not

attended the mother of the appellant on April 2, 2004; her mishehaviour at

honeymoon, her refusal to attend the marriage of friend of the appellant in

May 2004; her having not accepted the cold drink during interval in a

movie; she having failed in NET examination on June 20, 2004 despite the

fact that the husband purchased books for her; the respondent having not

prepared tea on May 8, 2004; the objection of the father of the respondent

having been raised on June 28, 2004 when the appellant had taken his

mother to a restaurant to celebrate the birthday of respondent; the condition

imposed by the respondent’s father for separate accommodation from the

parents; the respondent having been rude in August 2004 when the

appellant had gone to her College to meet her; the appellant

having been scolded by his wife in September 2004 at NDRI, Karnal and

the father of the respondent having called the appellant where he had

misbehaved with the appellant, the appellant himself being operated in PGI,

Rohtak on November 10, 2004 for acute maxillary sinusitis with acute nasal

polyps but the respondent having never visited him or inquired about him

on telephone and despite legal notice Annexure P-7 having been sent, the

respondent having refused to join.

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We have considered each and every allegation individually and

seen cumulative effect of such allegation and are of the opinion that all the

allegations pertain to a short period of few months after the marriage upto

the period after June 30, 2004 since when the respondent has allegedly been

residing with her parents without any sufficient cause. The allegations are

not serious and could have been resolved by mediation at that time but no

attempt seems to have been made for any such mediation by the family of

the appellant. The over sensitivity expressed from the allegations by the

appellant is indicative of the fact that in the male dominated society of India

sometimes unreasonable expectations from wife bring unhappiness on

account of non-fulfilment of the same. The present case appears to be one of

the instances of such situations. The allegations as well as counter-

allegations of both the parties are petty and seem to have not been handled

at initial stage by any intervener. It is settled principle of law that in order to

constitute matrimonial cruelty the circumstances should be such that it is

difficult and dangerous for a spouse to remain in the company of other. It is

settled principle of law as laid down in Vishwanath Sitaram Agrawal

Vs.Sau. Sarla Vishwanath Agrawal, AIR 2012 SC 2586, that expression

‘cruelty’ has an inseparable nexus with human conduct or human behaviour.

It is always dependent upon the social strata or the milieu to which the

parties belong, their ways of life, relationship, temperaments and emotions

that have been conditioned by their social status. Since there is no straight

jacket formula or fixed parameters for determining mental cruelty in

matrimonial matters each case has to be seen in context to the evidence

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produced on the record.

After going through the entire record which includes

statements of PW1 Chander Bhan Goyal, Cashier Karnal Motors, PW2

Amit, Agency Manager, ICICI Bank, PW3 appellant, PW4 Pala Ram

Tanwar, Medical Record Clerk, PGIMS Rohtak, PW5 Er. Bicha Ram

Chaudhary, PW6 Wing Commandar Rajbir Singh Chaudhary, PW7 Ram

Dhari, PW8 Dharam Pal, RW1 Gopal Sharma, Photographer, RW2

respondent, RW3 Ishwar Singh, RW4 Kamla Jaglan and RW5 Om Parkash,

we are of the opinion that the appellant/ husband has failed to prove that the

conduct of the respondent and her family members had been cruel

warranting dissolution of marriage by a decree of divorce.

Mr. Kanwaljit Singh, has made another attempt to convince

this Court for passing a decree of divorce by relying upon the judgments in

Rakesh Kumar Vs. Monika, 2017 (1) RCR (Civil) 378, Naveen Kohli Vs.

Neelu Kohli, 2006 (2) RCR (Civil) 290, and Kalapatapu Lakshmi

Bharati Vs. Kalapatapu Sai Kumar, 2016 AIR (Hyderabad) 218,

contending that it is a case of long separation and broken marriage and no

useful purpose will be served by keeping the same alive and it will be

expedient in the interest of justice to grant decree of divorce which will be

beneficial to both the parties who are young at this stage and can re-settle in

the life again.

On the other hand, Mr. Vikas Singh has relied upon the

judgments in Shyam Sunder Kohli Vs. Sushma Kohli @ Satya Devi,

2005 (1) RCR (Civil) 16, Surjit Singh Vs. Surinder Kaur, 2010 (16) RCR

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(Crl.) 881, and Sangeeta Rani Vs. Sanjeev Kumar, 2017 (1) HLR 500, to

submit that a broken marriage does not deserve to be dissolved by a decree

of divorce as it is not a ground provided by the legislature.

We have considered the facts and circumstances of this case.

Even if it is presumed that on account of prolonged separation by the parties

it will not be feasible for them to reunite but the relief of divorce cannot be

granted in the present case in view of the fact that legislation in its wisdom

has framed Hindu Marriage Act on “fault theory” and “break down theory”

has not been accepted for creating ground for divorce. We express our

inability to accept the contention of Senior Advocate Mr. Kanwaljit Singh

that marriage having broken down in the present case should be dissolved.

It is not out of place to mention here that we have made best

efforts to bring about reconciliation between the parties. Finding the

appellant adamant to resume cohabitation or to make attempt for reunion,

we had even proposed for payment of reasonable permanent alimony to the

respondent. The appellant not only failed to make any reasonable offer but

at the same time respondent flatly refused to accept any amount. The said

effort was made by us taking into consideration the spirit of Section 23 (2)

of the Act.

We have also taken into consideration the ground of desertion

as pleaded and sought to be proved by the appellant. The sequence of events

as mentioned hereinabove indicates that both the parties levelled allegations

and counter-allegations against each other. The appellant has tried to

establish on the record that the respondent had failed to join the company of

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the appellant despite a legal notice Ex.P-7 having been sent whereas the

respondent has tried to justify her non-joining by alleging that no sincere

efforts had ever been made by the appellant or his family members. Even

Ex.P-17, the reply filed by the respondent does not indicate that she had any

intention to desert the appellant. It is pertinent to mention here that till the

date of filing of divorce petition the respondent had not taken any steps for

prosecution for his acts of domestic violence with a sanguine hope that the

better sense would prevail with the appellant and they would re-unite. The

important ingredient of animus desirendi i.e. the intention to desert on the

part of the respondent does not stand established though parties have been

living separately for the last many years.

In view of the above circumstances we do not find any ground

to allow this appeal which is dismissed. Parties to bear their own cost.

(M.M.S. BEDI)
JUDGE

October 3, 2018. (ANUPINDER SINGH GREWAL)
sanjay/raj arora JUDGE

Whether speaking / reasoned Yes / No
Whether reportable Yes / No

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