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2001 DIGILAW 464 (PNJ)

Seema v. Surender Kumar

2001-04-26

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - Smt. Seema (wife) who was respondent in the trial Court, has filed the present F.A.O. and it has been directed against the judgment and decree dated 22.3.1999 passed by Additional District Judge, Faridabad, who allowed the petition under Section 13 of the Hindu Marriage Act (hereinafter called the Act) of Surender Kumar (now respondent before me), who was petitioner in the trial Court, vide which the marriage of the parties was dissolved by the trial Court. Not satisfied with the judgment and decree of the trial Court, the wife has come in the present appeal. 2. The brief facts of the case are that Surender Kumar respondent filed a petition under Section 13 of the Act and it was inter alia pleaded by him that marriage between the parties was solemnized on 28.1.1992 according to Hindu rites and ceremonies at Gurgaon. After the marriage, the parties lived as husband and wife and cohabited with each other. However, no child was born out of this wedlock. It is alleged by the husband that right from the very beginning of the marriage, the behaviour of the wife towards him and his family member was cruel, rude and indifferent without any rhyme or reason as she used to insult him by using filthy language in the presence of his relatives. She is a lady of high temperament. Elaborating the incident of cruelty it is alleged by the husband at the first instance that on 30.1.1992 some of his friends came to his house and the appellant was asked to serve tea to them, but she told that she was not their servant. After a week, when his sister came to their house, the appellant called her as bitch etc. and hurled filthy language. The second incident of cruelty alleged by the husband is that on 8.2.1992 when he went to attend a marriage at Gurgaon of some relative of the appellant some eatable fell on his clothes, due to which the appellant started hurling abuses by stating that he did not care about her status. Though he tried to pacify her but to no effect. Thereafter, he left the marriage party and returned to his house. On the next day, the appellant along with her father came to his house and assured that no such act would be repeated in future. Though he tried to pacify her but to no effect. Thereafter, he left the marriage party and returned to his house. On the next day, the appellant along with her father came to his house and assured that no such act would be repeated in future. The third incident of cruelty is dated 19.3.1992. According to the husband-respondent it was Holi festival, so he applied some Gulal on the face of the appellant but she did not relish it and called him Kutta and Kamina (dog and mean person). She also gave a slap on his face in the presence of several persons. These are the three incidents of cruelty pleaded by the husband. 3. It has been further pleaded by the husband while making out a ground of desertion that on 22.3.1992, the appellant left her matrimonial house with all her belongings including gold and silver ornaments, a cash amount of Rs. 4,000/- and other valuable clothes and since then she did not come to her matrimonial house. On this he along with his relatives went to the house of the father of the appellant, but she did not return to her matrimonial house. Rather, the appellant misbehaved with him and other respectables. The last panchayat was convened on his part on 25.8.1992 in which the appellant flatly refused to live with the respondent. 4. Notice of the petition was given to the wife, who filed the written statement and denied the allegations. She took certain preliminary objections that the petition under Section 13 of the Act was not maintainable, that the husband has suppressed material facts; that he was estopped from filing the present petition which is not legally maintainable. On merits, the stand of the appellant-wife was that she never insulted the respondent and his family members and that she never used abusive language. She never showed any disrespect to the respondent and his family members. On the other hand, without any fault on her part she was assaulted by the respondent and his family members physically and she was also deprived of her ornaments and belongings because all the dowry articles were kept in possession by her mother-in-law under the lock and key. According to the appellant, she never misbehaved with the respondent and other respectables. According to the appellant, she never misbehaved with the respondent and other respectables. She pleaded that her parents spent a huge amount on the marriage by giving gold ornaments of 200 grams, silver ornaments, valuable 50 sarees and woollen suits to all the close relatives of the respondent and all these items were chosen by the parents of the respondent. They were not satisfied with the dowry articles and for this reason they stated abusing the appellant and they made a demand of a car and motor cycle besides cash. According to the appellant, the real motive of the respondent to file the petition is to extract a big amount from her parents. The demand of dowry was also raised in the panchayat in the presence of Bishambar Dayal, R.K. Rao, and Rama Nand. So far as the respondent is concerned, he has no grouse or complaint against the appellant. Both of them were having good relations and better understanding as husband and wife but the situation has been created by the parents of the husband. 5. The respondent-husband filed a rejoinder to the written statement of the wife in which he reiterated the allegations made in the complaint by denying those of the written statement. In the re-joinder the respondent alleged for the first time that he wrote some letters to the appellant requesting her to come to her matrimonial house. On 20.6.1992 he went to Gurgaon to bring the appellant because his father was to undergo an eye operation at Delhi but the appellant did not join him. In the panchayat convened by him on 25.8.1995 the appellant and her parents told the respondent that the appellant could join his company if he purchased a house at Gurgaon in the name of appellant and deposited a sum of Rs. 3 lacs in her account. 6. From the pleadings of the parties, the learned trial Court framed the following issues :- "1. Whether the respondent is guilty of acts of cruelty ? OPP 2. Whether the respondent deserted the petitioner without any sufficient cause ? OPP 3. Whether the petition is barred by principle of res judicata ? OPP 4. Whether the petitioner has mis-represented the facts ? OPR 5. Whether this court has no jurisdiction ? OPR 6. Relief." 7. Whether the respondent is guilty of acts of cruelty ? OPP 2. Whether the respondent deserted the petitioner without any sufficient cause ? OPP 3. Whether the petition is barred by principle of res judicata ? OPP 4. Whether the petitioner has mis-represented the facts ? OPR 5. Whether this court has no jurisdiction ? OPR 6. Relief." 7. The parties led oral and documentary evidence in support of their respective cases and on the conclusion of proceedings the learned trial Court decided issue No. 1 in favour of the respondent-husband. Issue No. 2 was also decided in favour of the husband. Issues No. 3 to 5 were also decided in favour of the husband and against the wife. Resultantly, the petition was allowed on the basis of the findings given under issues No. 1 and 2 vide impugned judgment and decree dated 22.3.1999. Not satisfied with the said judgment and decree, the present appeal. 8. I have heard Mr. Jai Vir Yadav, Advocate on behalf of the appellant, Mr. Ashok Gupta, Advocate on behalf of the respondent and with their assistance have gone through the records of the case. 9. In this case issue No. 1 and 2 are material issues and before I give my own findings of reversal on these issues, it will be appropriate for me to incorporate paras 8 to 19 of the judgment of the trial Court in order to appreciate how and under what circumstances the trial Court decided issue No. 1 in favour of the respondent, and the said paras read as under :- "8. There is no dispute about the fact that the parties to this litigation are legally wedded husband and wife respectively since 28.1.1992, to prove the cruelties exercised on him by the respondent, the petitioner as PW5 has testified on oath that after the marriage, the behaviour of the respondent became cruel towards him and his family members because she is hot tampered lady. He has stated that on 30.1.1992 when his friends Satish, Satpal and Shiv Ram had come to his house to congratulate him on his marriage, the respondent refused to serve the tea to them when his sister asked to do so, he has next stated the respondent told that she was not their servant. He has stated that on 30.1.1992 when his friends Satish, Satpal and Shiv Ram had come to his house to congratulate him on his marriage, the respondent refused to serve the tea to them when his sister asked to do so, he has next stated the respondent told that she was not their servant. He has also stated that on the occasion of the marriage of the cousin of the respondent, he had gone to village Mola Hera (Gurgaon) and while taking meal, some eatables fell on his shirt and on this account, the respondent started calling him as illiterate person and that he was not of her status. Thus, she insulted him, therefore, he retuned to his house the same night. As per his statement, on the next date, the respondent and her father along with Mangal Singh-PW came to his house and felt sorry for the incident which took place at village Mola Hera. This witness has next stated that on 19.3.1992 it was a Holi festival and several persons had gathered at his residence for playing Holi, so, he had applied some Gulal to the respondent. On this and as a retaliation to the same, she slapped him in the presence of people gathered there. When she was advised by the people not to behave like that then she rebuked them. This witness has further stated that the respondent left her matrimonial house alongwith valuables on 22.3.1992 and did to come back, therefore, he went to bring her several times but she did not join his company. So much so, she did not come to her matrimonial house to see his father who had undergone an eye operation in AIIMS, New Delhi. The statement of this witness is supported by his father Inder Singh who appeared in the witness box as PW4 because he has also narrated the incidents which took place on 30.1.1992, 8.2.1992, 9.2.1992 and 19.3.1992. PW-Satish Chand Sharma has supported the incident which took place on 30.1.1992, as on that date, he alongwith his two friends Satpal and Shiv Ram had gone to congratulate the petitioner. PW2 has supported the incident of Holi festival on 19.3.1992. PW1 has supported the incidents of 9.2.1992 and 19.3.1992. 9. PW-Satish Chand Sharma has supported the incident which took place on 30.1.1992, as on that date, he alongwith his two friends Satpal and Shiv Ram had gone to congratulate the petitioner. PW2 has supported the incident of Holi festival on 19.3.1992. PW1 has supported the incidents of 9.2.1992 and 19.3.1992. 9. On the other hand, the respondent Seema as RW3 has denied the taking place of all the incidents dated 30.1.1992, 8.2.1992 at village Mola Hera, 9.2.1992 and 19.3.1992 i.e. on the occasion of Holi festival by stating that no such incidents had taken place. She has also stated that she has never misbehaved or insulted the petitioner and his family members at any point of time in the presence of the other persons. She has also stated that she has never refused to live with the petitioner as his wife nor she has uttered any wrong words when her father-in-law was to undergo an eye operation at AIIMS, New Delhi. She has also stated that actually she was harassed and tortured by the petitioner and his family members for bringing more and more dowry by saying that she has not brought the dowry as per their expectation. Thus, she has stated that the cruelty has been committed by the petitioner and his family members on her. Her statement has been corroborated by her father Partap Singh. He has also denied all the incidents including the incident dated 8.2.1992 which allegedly took place at village Mola Hera by stating that the petitioner did not come to attend that marriage. Regarding giving sufficient dowry articles, beside the statements of the respondent and her father, there are the statements of Bishamber Dayal-RW1 and Ram Chander Shastri as RW2. Both of them have stated that sufficient dowry articles were given to the petitioner at the time of this marriage. RW1 has stated that the mother of the petitioner had told him that a car should have been given in the marriage. On this, he assured her that he would get a motor cycle for the petitioner from the parents of the respondent. 10. After considering the evidence adduced on the file, it is clear that the statements of the petitioner and his father (PW5) inspired confidence because the statements of the RWs are not consonance with one another. On this, he assured her that he would get a motor cycle for the petitioner from the parents of the respondent. 10. After considering the evidence adduced on the file, it is clear that the statements of the petitioner and his father (PW5) inspired confidence because the statements of the RWs are not consonance with one another. No doubt, the incident which allegedly took place on 30.1.1992 could have been refused only by the respondent when she appeared in the witness box as RW3 but the statements of the petitioner and his father which are otherwise proved to be genuine as compared to the statements of the RWs. Therefore, the same have to be taken to be correct because the same has been supported by PW3, though he had heard the noise of the respondent while sitting in the drawing room, the incident which took place on 8.2.1992 at village Mola Hera is also proved from the statements of respondent, his father and Mangal Singh PW1 because they have stated that on account of this incident, the respondent and her father came to the house of the petitioner along with Mangal Singh and repented on the behaviour of the respondent and, therefore, she was kept in her matrimonial house by the petitioner and his family. 11. So far as the incident of 19.3.1992 when it was a Holi festival is concerned, the same is proved to be correct in the statements of the petitioner and his father as well as Shamsher Singh (PW2). Because he (PW2) has also stated that in his presence as well as the presence of so many persons the respondent has slapped the petitioner when he applied Gulal on the face of the respondent. There is nothing to disbelieve the statement of PW2 because he is an independent witness and not supposed to tell a lie on oath without any cogent reason. The contention of the respondent that as per the custom prevalent in the Ahir community, the first Holi festival is celebrated by a married girl at her parents house is beyond pleadings because in the written statement no facts regarding such custom has been made out. Simply mentioning the custom in the pleadings does not convey any sense. Moreover, the statements of RWs regarding such custom have been refuted by the PWs. Simply mentioning the custom in the pleadings does not convey any sense. Moreover, the statements of RWs regarding such custom have been refuted by the PWs. So, it cannot be said that the respondent was not at her matrimonial house on 19.3.1992 when it was a Holi festival. No doubt, the statement of PW1 regarding the incident was based on hearsay as admitted by him in his cross- examination but the statements of the respondent, his father and Shamsher Singh (PW2) cannot be said to be incorrect. The contention of the learned Counsel for the respondent that within a short span of marriage, the incidents dated 30.1.1992, 8.2.1992 and 19.3.1992 could not have taken place because by such time the spouses are unable to understand each other, cannot be accepted because these incidents have been proved by the statements of the PWs, particularly when these incidents have not been specifically denied in the written statement. The simple denial is not sufficient. 12. It was contended that petitioner and his family members are dowry greedy persons and had started harassing the respondent for bringing more and more dowry in the shape of cash, motor-cycle, etc. though sufficient dowry had been given to the petitioner and his family members at the time to this marriage. In this regard, the learned Counsel for the respondent has drawn my attention towards the statements of all the RWs, wherein they have stated that sufficient dowry was given. On the other hand, this contention has been refuted by the learned Counsel for the petitioner. He has also drawn my attention towards the statements of the PWs, wherein they have stated that the marriage was solemnised on receipt of Re. 1/- on each ceremony i.e. ring ceremony, lagan ceremony, engagement ceremony, tikka and marriage ceremony. In this regard, the statement of photographer (PW6) and photographs Ex.P2 to P13 and their negatives P14 to P25 were also referred. 13. After considering the rival contentions regarding the dowry, I am of the opinion that the stand of the respondent in this regard is also not proved to be correct because all the RWs have given separate account of dowry articles as they have uttered about the different articles of dowry. Thus, their statements regarding dowry articles are not in consonance with one another. RW2 has stated that in the lagan ceremony, a sum of Rs. Thus, their statements regarding dowry articles are not in consonance with one another. RW2 has stated that in the lagan ceremony, a sum of Rs. 51,000/- was paid to the petitioner by the respondents side besides of fruit and sweets but in his cross-examination he has stated that he did not come to Faridabad at the time of lagan ceremony/tikka ceremony. That being so, how he could say that a sum of Rs. 51,000/- was paid in the lagan ceremony which as per the statements of respondents and other RWs was performed at Faridabad. 14. The respondent as RW3 has stated that she was turned out of her matrimonial house on the account that the demand of the petitioner and his family members for providing motor-cycle, fridge, T.V. and Bed-sheet etc. could not be met by her whereas her father Partap Singh (RW4) has stated that the petitioner and his family members told Bishamber Dayal (RW1) at the time of lagan ceremony that they were expecting car from the respondents side, whereas Bishamber Dayal as RW1 has stated that the mother of the petitioner was expecting the car at the time of marriage and he had promised to give a motor-cycle to the petitioner on behalf of the respondents parents. The demand of the car from the RW1 by the mother of the petitioner at the time of marriage ceremony, is proved to be wrong because the respondent as RW3 in her cross-examination has admitted that her mother-in-law did not come to Gurgaon at the time of her marriage with the petitioner. Thus, the statements of these witnesses regarding the actual demand on the part of the petitioner are also contradictory and cannot be relied upon. 15. The statements of the RWs regarding the number of visits of the respondent to her matrimonial house are also contradictory because RW1 has stated that she had gone to her matrimonial house only two times, whereas the respondent as RW3 has stated that she went for 3-4 times and her father Partap Singh as RW4 gives the number to be 5-7 times. Their statements regarding taking place of ring ceremony, engagement ceremony, tikka and lagan ceremony are also contradictory and beyond pleadings in the written statement. It has no where been stated that ring ceremonies took place on 1.12.1991 and 4.12.1991. Their statements regarding taking place of ring ceremony, engagement ceremony, tikka and lagan ceremony are also contradictory and beyond pleadings in the written statement. It has no where been stated that ring ceremonies took place on 1.12.1991 and 4.12.1991. RW2 has stated that the lagan and engagement ceremony took place on one occasion, whereas RW3 has stated that the same took place on two different occasions, so their statements cannot be believed on this account as well. 16. Hence, in view of the discussion above, it cannot be said that any cruelty has been committed by the petitioner on the respondent. 17. Admittedly the respondent has not joined the matrimonial company of the petitioner for a long time this has also caused a mental cruelty to the petitioner because he has been deprived of his matrimonial rights including sexual intercourse. 18. The learned Counsel for the respondent has contended that of the incidents dated 30.1.1992, 8.2.1992 and 19.3.1992 are taken to be correct, I even then the same cannot be said to be sufficient to prove the cruelty on the petitioner because these are the acts of ordinar wear and tear of a married life between the two spouses. In support of his argument, he has placed reliance on Smt. Maya Devi v. Brij Nath, AIR 1932 Delhi 240, Smt. Nirmala Manohar Jagesha v. Manohar Shivram Jagesha, AIR 1991 Bombay 259 and Sri Tapan Chakraborty v. Smt. Anjali Chakraborty, AIR 1993 Cal. 10. There is no dispute about the observations made in these authorities but the same are distinguishable on facts and circumstances of the case in hand because in this case the respondent had given a slap to the petitioner in the presence of so many persons on the Holi festival. This incident cannot be said to be a normal wear and tear between the two spouses rather amounts to be the exercise of cruelty on the petitioner. Similarly, the respondent has also misbehaved the petitioner at village Mola Hera in the presence of several persons at the time of the marriage ceremony. 19. Hence, in view of the discussion above, it is held that the respondent has exercised cruelty on the petitioner, therefore, this issue is decided in favour of the petitioner and against the respondent." Issue No. 1 10A. 19. Hence, in view of the discussion above, it is held that the respondent has exercised cruelty on the petitioner, therefore, this issue is decided in favour of the petitioner and against the respondent." Issue No. 1 10A. The learned Counsel for the appellant has vehemently attacked the finding of the trial Court on issue No. 1 and submitted that the trial Court has committed error both in law and fact in appreciating the case of the husband. He submitted that the allegations of the husband are highly improbable. When the marriage between the parties, admittedly, was solemnized on 28.1.1992, it is highly improbable on the part of the wife that she would start misbehaving with the husband or his relatives or friends just after one day of the marriage in the manner in which it is alleged and pleaded. Mr. Yadav submitted that the entire ground has been created in order to get divorce because the parents of the respondent were not satisfied with the dowry. So much so, the respondent-husband fabricated certain documentary evidence also just to show his bona fide that he was always interested in keeping this marital tie intact. The witnesses produced by the husband are totally unreliable and they are procured witnesses. In these circumstances, the trial Court has fell in error in holding that appellant Seema was guilty of cruelty. On the other hand, the learned Counsel for the respondent Mr. Ashok Gupta has mainly relied upon the judgment of the trial Court and submitted that the trial Court has appreciated in depth both oral and documentary evidence led by the parties and then came to the firm conclusion that the appellant was guilty of cruelty. The instances of cruelty have been proved. The marriage is a broken one as the appellant has deserted the respondent-husband since 1992. Being a broken marriage irretrievably, the decree for divorce should be maintained on the ground of cruelty. 11. I have considered the rival contentions of the parties and am of the opinion that the findings of the trial Court on issue No. 1 cannot be endorsed. I have already reproduced the reasons of the trial Court above. Let me now appreciate the question of law and fact both on this issue. Admittedly, the marriage between the parties was solemnized on 28.1.1992. I have already reproduced the reasons of the trial Court above. Let me now appreciate the question of law and fact both on this issue. Admittedly, the marriage between the parties was solemnized on 28.1.1992. The first incident of cruelty alleged by the husband is dated 30.1.1992 just one day after the marriage. According to the husband, 30.1.1992 was a holiday, so he was at home. Some of his friends also came to the house. He requested his sister to prepare tea as he did not want to bother or his wife who was sleeping at that moment. By the time tea was prepared by his sister, the appellant got up. However, his sister requested the appellant to carry the tea to the drawing room along with some eatables. The appellant infuriated like a volcano. She took the opportunity for showing her dissatisfaction on the marriage and started calling bad names to her by stating as follows :- "Tu kon hoti hai mujhse kaam karaney wali, mai tumhari nokar nahi ho." Hearing this, the respondent went inside to calm the appellant but to no avail. Resultantly, he had to request his friends to abandon the idea of taking tea and he assured his friends that he shall give them a party later on. If this allegation is proved as correct, there is no difficulty on my part to hold that certainly it will amount an act of cruelty. But if this allegation has been created as a ground for cruelty, then certainly it will go a long way to show the conduct of the respondent who was out and out to get divorce from his wife. To prove this incident of 30.1.1992 the respondent examined Satish Chand Sharma PW3. Firstly, the name of this witness does not figure in the pleadings. He has improved by making a statement that his parents were also there along with him. The incident has been totally twisted by Satish Chand Sharma by stating that wife told to the sister of the husband that she was not their servant. This witness simply says that he overheard this conversation while sitting in the drawing room of the house. There is no mention in the statement of PW3 that husband had assured them that he would give a party later on. This witness simply says that he overheard this conversation while sitting in the drawing room of the house. There is no mention in the statement of PW3 that husband had assured them that he would give a party later on. The story of Satish Chand Sharma falsifies when he states in the cross-examination that he did not see the wife on 30.1.1992 when he along with his friends visited the house of the husband. He never saw the wife before 30.1.1992 nor he heard her talking with the husband. In such a situation no reliance can be placed upon the statement of PW3. The best witness in this case was the sister of the husband with whom the conversation took place. Strange enough she has not been produced in the witness box. No other friend has been produced to prove the incident dated 30.1.1992. The statement of Inder Singh, father of the husband, also cannot be relied upon on this incident when he stated that on 30.1.1992 the appellant had insulted the respondent I.e. husband in the presence of his friends namely Satish, Satpal and Shiv Ram. He does not make a mention that the appellant ever asked his daughter as to how she dared to ask her for serving the tea. It otherwise looks to be highly improbable that a new wed of one day would refuse to serve the tea to the guests, of her husband. It is not the case of the husband that his wife did not like the marriage. In such a situation when husband has the tendency to create false evidence, no reliance can be placed upon his case. 12. Now let us examine what the husband (has) to say about this incident. He appeared as PW5. He does not utter a single word that the appellant-wife had said the words attributed in the pleadings. After all, I cannot forget the fact that appellant is M.A., B.Ed. She looks to be an educated lady. The conduct of the husband is evident when he has stated in the cross-examination "I am not ready to keep the respondent with me as my wife because she had already refused to join my company. I cannot keep the respondent with me on account of the harassment done by her." 13. She looks to be an educated lady. The conduct of the husband is evident when he has stated in the cross-examination "I am not ready to keep the respondent with me as my wife because she had already refused to join my company. I cannot keep the respondent with me on account of the harassment done by her." 13. Now I switch over to the alleged second incident of cruelty i.e. dated 8.2.1992 when the appellant had called the husband as Jahil, to prove this incident the husband examined PW4 Inder Singh, his own father. He had again a different story to tell. According to him, on 8.2.1992 the parties to the marriage went to attend the marriage of the cousin sister of the wife in village Mola Hera and during the course of taking meals the clothes of the husband were spoiled due to fall of eatables. Thereafter the parties returned to the house and the appellant misbehaved the respondent. No particulars of misbehaviour have been stated by Inder Singh, PW4. Also it is not clear from his statement whether the said incident has taken place in his presence. Not a single independent witness has been examined to show that this incident had ever taken place. Let us now examine the statement of husband Surender Kumar, who appeared as PW5. No doubt, the husband supported his allegations but his bald statement in the absence of any corroboration cannot be acted upon especially when those allegations have been denied by the wife. Otherwise, also, the alleged allegations are not of such a character nor so grave that these would amount to an act of cruelty. 14. The third incident is of 19.3.1992 i.e. Holi day. In order to prove this incident the husband examined two witnesses namely Mangal Singh PW1 and Shamsher Singh PW2. PW1 Mangal Singh had to admit in his cross-examination that he is not related to any of the parties to the petition. He is not the friend of the father of the husband. He was never consulted for the family matters of the family of the husband. He further admitted that there was no misbehaviour on the part of the wife towards her husband in his presence. He put a nail in the case of the husband by stating that his examination-in-chief regarding the misbehaviour was based on hearsay evidence. He was never consulted for the family matters of the family of the husband. He further admitted that there was no misbehaviour on the part of the wife towards her husband in his presence. He put a nail in the case of the husband by stating that his examination-in-chief regarding the misbehaviour was based on hearsay evidence. The incident narrated by him with regard to the occasion of Holi festival was also based on hearsay. He further admitted by stating that he does not know what was the root cause of the dispute between the parties. Thus this witness cannot be relied upon on the third incident of cruelty. Similarly the statement of PW2 Shamsher Singh has gone to the extent by stating that wife had given a slap on the face of the husband. Husband has also stated in the same manner. Had this incident taken place in the manner as alleged what would have been the normal conduct of the husband. He would have immediately called the parents of the wife informing them about this incident. He would have written some letter in this regard. In my opinion this incident of 19.3.1992 is nothing but an imagination of the husband who wanted out and out to get rid of the wife and perhaps this was the reason that the lady was turned out of the matrimonial house within 2/3 days after the alleged Holi incident i.e. on 22.3.1992. The husband is also a educated person. He is a teacher. Some letters have also been produced on the record starting from 1995 when the main petition itself was filed on 19.9.1995. These letters, copies of which are on the record as Exs. P26 to P29, are nothing but a creation of false evidence which I will discuss in the later portion of this judgment, but at this juncture I want to say if the husband could write four letters in the year 1995, what was the difficulty on his part to write a letter to the wife complaining her that she had deserted the house by creating a scene on 19.3.1992. As against this, we have a categorical statement of the wife, who appeared as RW3 and denied each and every allegation with regard to three incidents. As against this, we have a categorical statement of the wife, who appeared as RW3 and denied each and every allegation with regard to three incidents. In view of the unsatisfactory evidence led by the husband, I am not inclined to endorse the reasons of the learned trial Court on issue No. 1. 15. The learned Counsel for the appellant relied upon Smt. Maya v. Brij Nath (supra) in which it was held that no amount of evidence can be looked into on a plea which was never pleaded. Also it was held that "cruelty" has not been defined in the Act but the conduct of the offending spouse should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. The cumulative conduct taking into consideration the circumstances and the background of the parties has to be examined to reach a conclusion whether the act amounts to cruelty and it is obligatory upon the person who alleges cruelty to prove that he was treated with cruelty. Reliance was also placed on Smt. Nirmala Manohar Jagesha v. Manohar Shivram Jagesha (supra), wherein it has held as follows :- "Cruelty has not been defined in the Hindu Marriage Act, 1955. However, it is well settled that the conduct complained of should be so grave and weighty as to come to the conclusion that the husband cannot reasonably be expected to live with the wife. It must be more serious than the ordinary wear and tear of married life, the cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. While doing so, several factors such as social status, background custom, traditions, caste and community, upbringing, public opinion prevailing in the locality etc. will have to be taken into account. Further, we are not concerned with the simple trivialities which can truly be described as the reasonable wear and tear of married life. One can only consider the grave and weighty incidents to find that place they occupy on the marriage canvas." 16. will have to be taken into account. Further, we are not concerned with the simple trivialities which can truly be described as the reasonable wear and tear of married life. One can only consider the grave and weighty incidents to find that place they occupy on the marriage canvas." 16. The learned Counsel for the respondent-husband relied upon Parag Mittal v. Smt. Vikita Mittal, AIR 2000 Delhi 304, Sundari Devi v. Ram Lal, 1994(3) PLR 693, Pawan Kumar v. Smt. Chanchal Kumari, 1999(1) PLR 591, V. Bhagat v. Mrs. D. Bhagat, 1994(1) PLR 603 and Sanat Kumar Agarwal v. Smt. Nandini Agarwal, AIR 1990 SC 594. I have gone through these judgments and the gist of these judgments is : firstly, that the term "cruelty" has not been defined in the Act; secondly, it is for the person who pleads cruelty to prove it while appreciating the evidence, background, customs and status of the parties. Minor incidents of life cannot be treated as acts of cruelty. The cruelty pleaded and proved must be of such a nature that it has become hazardous for the spouse complaining of such cruelty to live with the respondent. Otherwise, the very object of the marriage will stand frustrated. We all know that in a matrimonial life some incidents do take place, but every act or complaint on the part of a spouse will not fall within the meaning and phrase of cruelty. It is a question of fact depending upon the evidence of each case. From the preponderance of evidence it has to be established by the spouse complaining of cruelty that he has been able to prove the charge though strict proof like criminal trial is not necessary. I have examined the statements of both the parties very carefully and am of the opinion that the allegations of the husband are highly improbable, unconvincing, and created one and this aspect of the case has not been rightly appreciated by the trial Court. The finding of the trial Court on issue No. 1 stands reversed and this issue is decided against the husband and in favour of the wife. Issue No. 2 17. The finding of the trial Court on issue No. 1 stands reversed and this issue is decided against the husband and in favour of the wife. Issue No. 2 17. Before, I give my own reasons on this issue, it will be again appropriate on my part to reproduce paras 20 to 26 of the judgment of the trial Court vide which it has been held that there was a desertion on the part of the wife. "20. It has to be seen whether the respondent has deserted the petitioner without any reason or rhyme. In this regard, the petitioner has pleaded that the respondent has left his house on 22.3.1992 along with all her belongings with her father when he was absent. This pleading has not been denied specifically nor it has been mentioned as to how she left her matrimonial house. However, in her cross-examination, she has stated that on 20.5.1992, she was taken to her parents house by the petitioner but after 2-3 lines, she has stated that she was turned out of her matrimonial house when she could not fulfil the demand of the dowry on the part of the petitioner and his family members. He father has stated that she was left at her house by the petitioner on 20.5.1992. The statements of these witnesses are beyond pleadings because there is nothing in the written statement that she was left by the petitioner at her parents house on 20.5.1992 or she was turned out of her matrimonial house when she could not fulfil the demand of dowry. So, their statements have no value. On the other hand, the statements of the petitioner and his father are constant (consistent ?) that the respondent had left the house in the absence of the petitioner on 22.3.1992 alongwith her father and took away the ornaments and valuable clothes, therefore, the statements of these witnesses are proved to be correct and in accordance with the pleadings of the petitioner. 21. 21. It has been pleaded and some in the statements of PW1, PW2, PW4, and PW5 that the panchayat was convened at Gurgaon on 25.8.1995 to bring the respondent to her matrimonial house but in that panchayat, the respondent and her parents had told that if the petitioner wanted to keep the respondent as his wife, then he should purchase a house at Gurgaon in her name and also deposit a sum of Rs. 3 lacs in her account. Though, the statements of these witnesses have been refuted by the RWs but the same (statements of RWs) are proved to be incorrect and in accordance with the pleadings because it has nowhere been specifically denied that no such panchayat was convened by the petitioners side on 25.8.1995. From the statements of PWs, it is also proved that earlier also the petitioner has tried to bring the respondent to her matrimonial house but she did not join his company, even at the time when her father-in-law was to undergo an eye operation, as is clear from discharge slip Ex.P1 of the AIIMS, New Delhi. The sending of letters Ex.P26 to Ex.P29 vide UPC receipts Ex.P30 to Ex.P33 is proved to be correct because the allegations in this regard pleaded in the replication, have gone unchallenged. For this purpose, the respondent could have amended her written statement but it has not been done so. So, from the contents of these letters, it is clear that the petitioner has always been trying to bring the respondent to her matrimonial house but she did not pay any heed. 22. The story pronounced by the respondent regarding the convening of panchayat comprising of Bishamber Dayal, R.K. Rao, Retd. Head Master etc. is not proved to be correct because Bishamber Dayal as RW21 has nowhere stated in his statement about his participation in any panchayat. Thus, the statements of the PW and her father are not sufficient to prove this fact, particularly when no date of convening of such panchayat has been given in the written statement. Thus, the lapse is on the part of the respondent is not joining the matrimonial company of the petitioner. 23. From the evidence of the parties, it is clear that the respondent has not come to her matrimonial house after 22.3.1992 till the filing of the petition on 19.9.1995 and even till now. Thus, the lapse is on the part of the respondent is not joining the matrimonial company of the petitioner. 23. From the evidence of the parties, it is clear that the respondent has not come to her matrimonial house after 22.3.1992 till the filing of the petition on 19.9.1995 and even till now. Thus, this desertion without any reason or rhyme is for more than two years. As such, the marriage between the parties has been irretrievably broken. So, they should not be compelled to lead an unhappy life for ever by refusing to grant a decree of divorce, particularly, when they remained together as husband and wife for a few months and they have not been able to reconcile despite convening of panchayats. The reference in this regard may be made to Pawan Kumar v. Smt. Chanchal Kumari, 1999(1) RCR(Civil) 215 wherein our own Honble High Court has taken the same view. The reference in this regard can also be made to Sundari Devi v. Ram Lal (supra). 24. As per the observations made by our own Honble High Court in Smt. Inderpal Kaur v. Gurvel Singh, 1989(1) HLR 258 the respondent who had withdrawn from the society of the petitioner was required to prove that withdrawal was for sufficient reasons but it has not been done so by the respondent in this case. Therefore, it cannot be said that the desertion by the respondent was on account of sufficient reasons. 25. The statement of the respondent in the court that she was still ready and willing to reside with the petitioner, cannot be said to be correct because it has been given while keeping in view a motive to get the petition dismissed. If she wanted to join the company of the petitioner then she should have taken steps towards the same for that purpose. She could have written the letters to the respondent and could also file the petition for restitution of conjugal rights but when it has not been done so, then it cannot be said that her statement should be acted upon. She could have written the letters to the respondent and could also file the petition for restitution of conjugal rights but when it has not been done so, then it cannot be said that her statement should be acted upon. The authority, i.e. Smt. Sukhama Devi v. Niranjan Singh and another, AIR 1983 Delhi 469, is distinguishable because the facts of the case in hand and those of the cited authority are all together different because in the cited case, the Honble Court had come to the conclusion that the husband was manifestly guilty of constructive desertion so the husband was held dis-entitled to claim relief of divorce on the plea of desertion of his wife but this is not the position in the case in hand. 26. Hence, in view of the discussion above, this issue is decided in favour of the petitioner and against the respondent." 18. I have gone through these reasons very carefully with the help of the record and in my opinion the reasons of the trial Court are not tenable. Let us see where the things have gone wrong on the part of the lower Court. Desertion has been alleged w.e.f. 22.3.1992 and the allegations of the husband are contained in paras 9 onwards of the petition. He alleges that he convened a panchayat on 25.8.1995. So much so, when the father of the husband underwent an operation of his eyes, he tried to approach the wife to come to matrimonial house but to no effect. So far as the theory of the father is concerned, it is not pleaded. The point for determination is whether the appellant-wife has deserted the petitioner or whether she has been turned out. In order to constitute desertion two essential ingredients are necessary to be proved on the record : factum of desertion and animus deserendi i.e. intention on the part of the offending spouse that he or she repudiated the matrimonial obligations for all times to come. If this court comes to the conclusion that the wife has been turned out from her matrimonial house, in such a situation the husband cannot take the advantage of his own wrongs nor he can taken the plea of marriage having been irretrievably broken. After all where the wife would go if she has been turned out from the matrimonial home. After all where the wife would go if she has been turned out from the matrimonial home. The logical answer is that she would go to the house of her parents or brothers or some relation because she has to survive on account of the insult inflicted upon her by her husband to whom she wanted to look for security, love and affection. If from all these three essential elements of marriage a wife has been deprived of by his husband, she has to take a shelter somewhere. But it would not constitute desertion. Rather, in this case desertion is on the part of the husband. It is the case of the husband specifically in the petition that the wife left his house on 22.3.1992. Not a single letter has been written by the husband to the wife to return to the matrimonial home. The first panchayat was convened on 25.8.1995. Now let us examine the evidence in this regard. We will have again to switch over the statement of PW5 Surender Kumar, who deposed about the convening of panchayat. According to this witness, the wife refused to accompany him. Rather, a demand was made from her side for separation of the husband from his family members and for deposit of Rs. 3 lac in the name of the wife. It is not clear from the statement of Surender Kumar PW5 whether any respectable of the village of the wife was associated. It has come in the statement of the father of the husband that in the panchayat Shamsher Singh, Mangal Singh, R.K. Tiwari, Jagdish Lal. R.A. Kaushik, Tara Chand Garg and others were associated, out of which Shamsher Singh has been examined as PW2, who has to admit in his cross- examination that one Bishamber Dayal Lambardar of village Molahera was associated. But he has not been examined from the side of the husband. He appeared as RW1 and has totally changed the complexion of the case of the husband. According to this witness, the mother of the husband was saying in the marriage that the parents of the wife should give a car in the marriage but motor-cycle was agreed to be given on the next ceremony. He stated that it was complained to him by the father of the wife that her husband is not taking her to the matrimonial home. He stated that it was complained to him by the father of the wife that her husband is not taking her to the matrimonial home. If the respondent-husband was interested to rehabilitate the appellant right upto 25.8.1995 as is sought to be suggested by the learned Counsel appearing on behalf of the respondent even though the letters Exs. P26 to P29, which in my opinion are forgery, what was the difficulty on the part of the husband by saying that he was ready to keep the appellant with him as wife. This statement was made by him on 19.5.1998 in the Court. In fact, husband was never interested to rehabilitate the appellant-wife. The appellant was neglected and deserted and she had to go to the house of her parents. 19. Lastly, it was argued by the learned Counsel for the respondent that it is a case of broken marriage. The parties are young. They have not produced any children. They are educated and it is a fit case where a decree of divorce should be granted on the ground of broken marriage. Firstly, I may say that broken marriage is not a ground of divorce in the Act. But definitely there are certain judgments of the Honble Supreme Court and various High Courts to the effect that when a marriage has broken irretrievably and there are no chances of reconciliation between the parties, to keep such a marriage is a futile exercise. In order to make this plea applicable the law courts are supposed to examine each case on its own merits and facts. To apply this doctrine uniformly will be repugnant to the marriage performed between the two Hindus under the Act. Marriage of two Hindus was always considered as a sacrament but with the passage of time it has become quasi-sacrament and quasi-contractual. The point for determination is whether the husband, who has created false grounds in order to achieve an unlawful goal of dissolution of marriage, can be permitted to take the shelter of the doctrine of broken marriage ? The answer of this Court would be in the negative, the husband had created such situation and circumstances compelling the wife to leave the matrimonial home. He is not interested to rehabilitate the appellant even at this stage. The answer of this Court would be in the negative, the husband had created such situation and circumstances compelling the wife to leave the matrimonial home. He is not interested to rehabilitate the appellant even at this stage. To dissolve the marriage at this juncture would rather add to the miseries of the wife when she had already lived in the house of her husband for about two months. The husband has not given chance to the wife to adjust herself in a new family. In these circumstances, I do not agree with the argument of the learned Counsel for the respondent husband that the marriage of the parties should be dissolved on the ground of broken marriage. Hence I reverse the finding of the trial Court on issue No. 2 also and hold that the evidence in this case is unsatisfactory on issues No. 1 and 2. 20. The findings of the trial Court, however, on issues No. 3, 4 and 5 are not disturbed and these issues are decided against the appellant-wife and in favour of the respondent-husband. 21. On the strength of the findings given by me under issues No. 1 and 2, the findings of the trial Court on issue No. 6 also stand reversed and this appeal is hereby allowed. The judgment and decree of the trial Court is hereby set aside and the petition under Section 13 of the Act stands dismissed with no order as to costs. Appeal allowed.