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Sonia vs Ramesh on 17 May, 2019

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

FAO-M No. 456 of 2015 (OM)
Date of Decision: 17.5.2019

Sonia …….Appellant

Versus

Ramesh …….Respondent

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN
HON’BLE MR. JUSTICE HARNARESH SINGH GILL

Present:- Mr. Nonish Kumar, Advocate, for the appellant.

None for the respondent.

HARNARESH SINGH GILL, J.

Appellant-Sonia has preferred this appeal,

challenging the judgment and decree dated 23.10.2015 passed

by Additional District Judge, Kaithal vide which the petition filed

by her under Section 13(1) (ia) of SectionHindu Marriage Act, 1955 (‘Act’

for short) was dismissed.

As per the case of the appellant-wife, she was

married to respondent Ramesh on 19.3.2008. The parents of the

appellant had spent Rs. 5 lakh in the marriage and had given

sufficient dowry as per their custom and rites in the society. The

marriage was consummated and out of the said wedlock, one

son, namely, Himanshu was born, but unfortunately he died on

10.12.2011. As per the appellant-wife, the respondent and his

family members were greedy persons. They used to tease and

taunt her for bringing insufficient dowry. They also demanded

Rs.1 lakh and a motorcycle but the appellant had expressed her

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inability to fulfill their illegal demand. The respondent and his

family members had given severe beatings to the appellant but

she continued tolerating their cruelties with the hope that the

things would become normal with the passage of time. However,

the situation became bad to worse and ultimately, the appellant

was turned out of the matrimonial home by the respondent and

his family members on 10.12.2011.

It was further averred by the appellant-wife that the

Panchayats were convened but the respondent and his family

members were adamant on their illegal demand. Ultimately, an

FIR under Sections 406, Section498-A, Section323, Section506 read with Section 34

IPC was got registered by the appellant-wife in which the

respondent and his family members are facing trial. All efforts

made by the appellant and her parents to rehabilitate her went

in vain.

The respondent in his written statement, while

admitting the factum of marriage stated that the marriage was

an Atta-Satta (exchange) marriage and thus, there was no

question of raising the demand of dowry. It was further

submitted that their marriage was solemnized in lieu of the

marriage of the real sister of the respondent with Ramesh-cousin

of the appellant-wife. It was further asserted that the mother of

the appellant was having illicit relations with her uncle (Fufa)

Gulab Singh, who had got sold all the properties of the father of

the appellant and brought the parents of the appellant at village

Kaul. Even the appellant had neglected the respondent and

started ignoring him and also called him impotent. The appellant

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failed to look after their son when he was ill and the respondent

got him admitted in PGI, Chandigarh but because of the attitude

of the appellant, the child died. Thereafter the appellant started

living in adultery with Rakesh and became pregnant from his

loins.

The lower Court after taking into consideration the

oral and documentary evidence on record, has drawn the

conclusion that the illicit relations as well as the subsequent

marriage of the appellant had not been proved by the

respondent. It was further found that the respondent-husband

had failed to place on record any evidence to that effect. It was

also found that none of the witnesses examined by the

respondent-husband was the witness either to the second

marriage or alleged delivery of the child. Even the allegations

regarding the character of the mother of the appellant could not

be established by the respondent.

The learned trial Court negated the plea of cruelty on

the ground that the allegations levelled in this regard are of the

period after 10.12.2011 i.e. the day on which the appellant-wife

was allegedly turned out of the matrimonial home. It was thus,

held that the subsequent events cannot be taken into

consideration for granting a decree of divorce on the ground of

cruelty.

Regarding cruelty, the Hon’ble Supreme Court in A.

Jayachandra versus Aneel Kaur, 2005 (1) R.C.R. (Civil) 309

has carved out the following points:-

“(1) Cruelty can be physical or mental, intentional or
unintentional – Mental cruelty may consist of verbal

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abuses and insults by using filthy and abusive language
leading to constant disturbance of mental peace of the
other party – It may be words, gestures or by mere
silence, violent or non-violent
(2) Cruelty should be wilful unjustifiable conduct of such
character as to cause danger to life, limb or health, bodily
or mental, or as to give rise to a reasonable apprehension
of such a danger.

(3) Proof beyond doubt, as in criminal trials is not
required to prove cruelty.

(4) In physical cruelty, there can be tangible and direct
evidence, but in the case of mental cruelty there may not
at the same time be direct evidence – For proof of mental
cruelty Court has to find out nature of cruel treatment,
impact of such treatment in the mind of the spouse,
whether it caused reasonable apprehension that it would
be harmful or injurious to live with the other.
(5) There may be a case where the conduct complained of
itself is bad enough and per se unlawful or illegal – Then
the impact or injurious effect on the other spouse need
not be enquired into or considered. AIR 1988 Supreme
Court 121 relied.

(6) Whether the conduct of a spouse amounted to cruelty
has to be considered in the background of several factors
such as social status of parties, their education, physical
and mental conditions, customs and traditions.
(7) Mere trivial irritations, quarrels between spouses,
which happen in day- to-day married life, may also not
amount to cruelty.

(8) The Courts do not have to deal with ideal husbands
and ideal wives – It has to deal with particular man and
woman before it – The ideal couple or a mere ideal one
will probably have no occasion to go to Matrimonial
Court. AIR 1975 Supreme Court 1534 relied.”

Thus, keeping in view the aforesaid settled law, the

Court was required to take into consideration the entire facts

including the factum of the allegations regarding the character of

the appellant’s mother, which could not be proved by way of

leading any cogent and convincing evidence. Even the

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allegations of second marriage and birth of the child from that

marriage, levelled by the respondent-husband, against the

appellant-wife remained un-established. This clearly shows that

the respondent-husband is in the habit of raising totally false

and frivolous allegations, including the allegations of character

assassination.

Irrespective of the merits, it is pertinent to mention

that during the pendency of the present appeal, vide order dated

20.9.2017, the respondent-husband was directed to pay to the

appellant-wife maintenance pendente lite @ Rs.2,000/- per

month and Rs.25,000/- as litigation expenses. However, as the

maintenance under Section 24 of the Act was not paid, this

Court on 2.11.2018 passed the following order on 2.11.2018:-

“Maintenance under Section 24 of the Hindu Marriage
Act, 1955 was fixed by this Court vide order dated
20.9.2017. Thereafter, the respondent has been taking
dates for the purpose of payment of maintenance and
today also a request for adjournment has been made for
the payment of maintenance. On the request of counsel
for the respondent, last opportunity is granted to pay
arrears of maintenance otherwise the appeal is decided
accordingly.

Adjourned to 19.11.2018.

To be shown in the urgent list.”

On 19.11.2018, the respondent-husband did not

appear and the case was adjourned for 11.12.2018.

When the respondent-husband failed to appear

himself or even through his counsel and did not pay the

maintenance pendent-lite and/or the litigation expenses, vide

order dated 9.4.2019, his defence was struck off and the appeal

was adjourned for 1.5.2019. Even on the said date, neither there

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was any representation on his behalf, nor did he pay the amount

of maintenance pendente-lite and/or the litigations expenses, as

noticed above.

Thus, taking into consideration the above facts and

circumstances, we are satisfied that the respondent-husband is

evading appearance and abusing the process of law. No

endeavour, whatsoever, has been made by or on behalf of the

respondent-husband to pay the maintenance pendente lite and

litigation expenses despite numerous opportunities were granted

to him. Even after the defence of the respondent was struck off

vide order dated 9.4.2019, the situation remained the same. The

claim of the appellant-wife seeking dissolution of marriage by

way of decree of divorce has been considered on the basis of

records. Thus, the claim of the appellant is liable to be allowed

for non-payment of arrears of maintenance and litigation

expenses in view of the judgment of this Court in Nirmal Kaur

versus Kirpal Singh, FAO-M-371 of 2014, decided on

2.12.2017, wherein it has been held as under:-

“24. In view of the above, it is held that non-payment of
maintenance pendente-lite and/or litigation expenses by
the spouse, as ordered or directed by the Court, despite
opportunity having been given, would amount to wrong
within the meaning of Section 23 of the H.M. Act leading
to the conclusion that the said spouse is taking
advantage of his/her own wrong disentitling the said
spouse the relief claimed under the H.M. Act.”

Similar view was taken by this Court in Naresh

Kumari versus Ajay, 2018(4) R.C.R. (Civil) 731.

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Once, the respondent-husband has willfully failed to

pay the maintenance pendente-lite and the litigation expenses

leading to the striking off his defence, he does not have any right

to be heard. The respondent-husband’s conduct in evading the

process of the Court and the orders passed, apart from being

contemptuous, disentitles him to claim any relief.

Accordingly, the appeal is allowed. The judgment and

decree dated 23.10.2015 passed by Additional District Judge,

Kaithal, is set aside; the petition filed by the appellant-wife

under Section 13(1) (ia) of the Act is allowed and the marriage

between the parties is dissolved by a decree of divorce.

Decree sheet be prepared accordingly.

(RAKESH KUMAR JAIN) (HARNARESH SINGH GILL)
JUDGE JUDGE

May 17, 2019
Gurpreet/DS

Whether speaking /reasoned : Yes
Whether Reportable : Yes

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