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2001 DIGILAW 505 (PNJ)

Ajay Partap Singh v. Amar Bala Singh

2001-05-07

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is husbands appeal and has been directed against the judgment and decree dated 22.4.2000 passed by Addl. District Judge, Chandigarh, who dismissed the petition of the petitioner-appellant under Section 13 of the Hindu Marriage Act, 1955 (here-in-after called the Act) against the wife Smt. Amar Bala Singh. 2. The brief facts of the case are that appellant Ajay Partap Singh filed a petition under Section 13 of the Act against his wife Smt. Amar Bala Singh by inter alia pleading that marriage between the parties was solemnised on 4.6.1994 in village Atta Thana Paraspur, District Gonda (U.P.), and after the marriage the parties lived together as husband and wife, but no child was born out of this wedlock. It has been alleged by the appellant that the respondent has treated him with cruelty. Elaborating the ground of cruelty it is alleged by the appellant firstly that the respondent conceived a child but got the child aborted against his wishes as she was not interested to bear the child. It was then pleaded by the appellant that the respondent gave a threat that she would commit suicide by putting a needle inside a banana fruit and she would swallow the needle. The third incident of cruelty alleged by the appellant is that at the time of birthday celebration of his younger brother Manoj the respondent-wife misbehaved with him and went to the extent of saying to his relatives and friends that he was an idiot and was unable to do any job. It was further alleged by the petitioner-appellant that the respondent has left her matrimonial home on 27.10.1994 in his absence and thereafter she did not join his company and this wilful desertion on the part of the respondent-wife is itself a ground of cruelty. With these broad allegations, the petitioner-appellant prayed for a decree of divorce. 3. Notice of the petition was given to the respondent, who filed the reply and denied the allegations. According to the respondent, she never misbehaved with the petitioner-appellant, rather the petitioner and his family members did not want the child and they used to say that they cannot afford a child and that she had not brought sufficient dowry. The respondent-wife denied other allegations of the petitioner-appellant and prayed for the dismissal of the petition. According to the respondent, she never misbehaved with the petitioner-appellant, rather the petitioner and his family members did not want the child and they used to say that they cannot afford a child and that she had not brought sufficient dowry. The respondent-wife denied other allegations of the petitioner-appellant and prayed for the dismissal of the petition. It was also alleged by the respondent that the petitioner made a demand of dowry. A sum of Rs. 25,000/- was given to the petitioner by way of draft at the time of marriage. Another sum of Rs. 50,000/- was given to the petitioner by his father at the time of Doli. But their lust for more dowry still continued. In the month of September, 1994 the brother of the respondent gave a sum of Rs. 10,000/- to the father of the petitioner at Chandigarh but still they were not happy. On 27.10.1994 the petitioner- appellant took the respondent to her brothers house at Delhi on the pretext that they would live there for a week but the petitioner told the respondent and her brother on 28.10.1994 that he was going to Chandigarh and the respondent would only be allowed to enter her matrimonial house if she brought Rs. 40,000/-. With this broad defence the respondent prayed for the dismissal of the petition. 4. The parties led evidence in support of their respective cases. The petitioner-husband appeared as his own witness as PW1 and he also examined Sunita as PW2 and Smt. Inderjit as PW3. In rebuttal, the respondent examined Dinesh Kumar as PW2 and she appeared as her own witness as RW1. The learned trial court for the reasons given in paras 10 to 16 of the impugned judgment came to the conclusion that the petitioner-appellant has failed to prove the incidents of cruelty and resultantly his petition was dismissed. The reasons of the trial Court are reproduced as follows :- "10. Firstly, it is desirable to know the meaning of the word cruelty. This word has been defined in AIR 1988 SC 121 in case Shoba Rani v. Madhukar Reddy in para 18 which is as follows :- "The word cruelty has not been defined and could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted." In Bhagats case reported in AIR 1994 SC 710 it has been observed as under :- "Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." 12. Now the question arises whether the conduct of the respondent fall within the all four corners of the above said observations by Honble Apex Court. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." 12. Now the question arises whether the conduct of the respondent fall within the all four corners of the above said observations by Honble Apex Court. In the petition the petitioner has come out with three serious following allegations against the respondent-wife:- (i) That the respondent was not interested to bear a child and she aborted the child against the wishes of her husband; (ii) The petitioner was insulted before his friends and guests at the time of birthday party of petitioners younger brother; (iii) The respondent left the matrimonial house on her own and in the absence of the petitioner. 13. Now coming to the first allegation of the petitioner against his wife it is desirable to go through the evidence led by both the parties. 14. In order to prove that the respondent was not interested in giving birth to a child, the petitioner stated on oath that the respondent got herself aborted without his consent and rather against his wishes. This was the only single line in which the petitioner told about miscarriage of the child. In the cross examination he admitted that his mother accompanied the respondent at the time of abortion. He also failed to tell the name of Nursing Home where the abortion was got done. On the other hand, the respondent Amar Bala (RW-1) specifically stated that her husband and her mother-in-law after intoxicating her with some medicines took her to Nursing Home and got her aborted, but the abortion was not with his will and consent. Her statement is also corroborated by Dinesh Kumar (RW-2) who stated that the petitioner- husband and his mother forcibly got aborted the respondent against her wishes on the pretext that she was not bringing sufficient dowry and so they cannot afford the child. The petitioner has not examined his mother, brother or father as they are the best witnesses who could throw light on this allegation that it was the respondent who had aborted without the consent of the petitioner. There is no explanation why they have not been examined in support of his allegations. The petitioner has not examined his mother, brother or father as they are the best witnesses who could throw light on this allegation that it was the respondent who had aborted without the consent of the petitioner. There is no explanation why they have not been examined in support of his allegations. So, keeping in view the sufficient evidence of the respondent it is held that it was the petitioner and his family who did not want the child as they had less resources for bringing up the child. 15. Now coming to the 2nd allegation of the petitioner, the petitioner has stated that on 24.10.1994 birthday party of his younger brother was being celebrated when about 20 persons were present in the house, that the petitioner asked the respondent to help in doing the work but the flatly refused and started abusing him. She called the petitioner as idiot and a person who could never earn anything. It was called in the presence of all guests, his friends and relatives, Varinder, Sunita, Inderjit Kaur and Vikram. To support his allegations, the petitioner also examined Sunita wife of Anil Singh aged about 23 years who stated that she attended the birthday party of the brother of petitioner on 24.10.1994. At that party petitioner asked the respondent to do some work but respondent started quarrelling with him in the presence of everybody present there. PW3 Inderjit has also stated the same version. But the cross examination of these two witnesses shows that except this birthday party they had not attended any other function in the house of the petitioner. Even both these witnesses have specifically denied of attending of the marriage of the petitioner with respondent on 4.6.1993. On the other hand, the respondent has specifically denied any such birthday party in the house of her in-laws. The most important witness to this allegation could be the brother of the petitioner and the mother and the relatives who were present on the day of celebration. Again the petitioner failed to examine them to prove the allegation levelled by the petitioner against the respondent. Moreover there is nothing in the statements of PW-2 and PW-3 to the effect that the respondent had called the petitioner as idiot. In my opinion this sort of conduct which has not been proved cannot come under the definition of cruelty. 16. Moreover there is nothing in the statements of PW-2 and PW-3 to the effect that the respondent had called the petitioner as idiot. In my opinion this sort of conduct which has not been proved cannot come under the definition of cruelty. 16. Thirdly it was alleged that the petitioner left her matrimonial house on 27.10.1994 without the consent of the petitioner. In this regard only the statement of petitioner is available but no witness was examined to corroborate his statement regarding leaving of the matrimonial home by the respondent in the absence of the petitioner. On the other hand, the respondent has specifically stated that on 27.10.1994 the petitioner took her to Delhi with the pretext that they would stay there for one week. However, on 28.10.1994 the petitioner came back and told her and his brother that she would only be allowed to come to join the matrimonial house if she brought Rs. 40,000/- otherwise the doors of the house were closed for her. She specifically stated that she had not left her matrimonial house without the consent of the petitioner and she is still willing to go to her matrimonial home. Similar statement is also made by RW-2 Dinesh Kumar. This shows that the stand taken by the petitioner is hollow and imaginary. No cogent evidence has been produced by the petitioner to prove this type of allegations. The cumulative effect of all the circumstances and the evidence of the parties led to irresistible conclusion that the allegations levelled by the petitioner are without any evidence and do not prove the act of cruelty. Therefore, this issue is decided against the petitioner and in favour of the respondent." Not satisfied with the judgment and decree dated 22.4.2000, the present appeal. 5. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case. 6. The learned counsel appearing on behalf of the appellant vehemently submitted that it is proved on the record that respondent was not interested in the child. She became pRegulation nt but she got the child aborted without the consent of the appellant and in these circumstances, it is a valid ground of cruelty and the appellant is entitled to get a decree of divorce on this ground alone. She became pRegulation nt but she got the child aborted without the consent of the appellant and in these circumstances, it is a valid ground of cruelty and the appellant is entitled to get a decree of divorce on this ground alone. The submission of the learned counsel for the appellant may look alluring at the first instance because I am of the opinion that if a woman after conceiving a child gets it aborted against the wishes of father, it is a worst type of cruelty to father because, it is the right of the father as well as the mother to have a child in the family. But it appears that in the present case the appellant has coined out a false allegation against the respondent just to get a decree of divorce. It is the conceded case of the parties that their marriage took place on 4.6.1994. No specific date has been given by the appellant when the respondent got the child aborted. It appears that there was a natural miscarriage and a twist has been given by the appellant to make it a case of abortion. I cannot lose sight of the fact that it was the first child of the parties and every couple would welcome the first child in the family. No woman is complete without a child. In these circumstances, it would always be the desire of the respondent to become a mother. She conceived the child but unfortunately with the passage of time it became a case of miscarriage as is evident from the evidence on record because it has been admitted by the appellant that his mother accompanied the respondent at the time of miscarriage. The appellant also failed to tell the name of the nursing home where the alleged abortion took place. On the contrary, it is the case of the respondent-wife that her husband and mother-in-law were not interested in the child. They gave her some medicine and then took her to a nursing home. In the absence of any cogent evidence that respondent got the foetus aborted, I am not inclined to accept the first contention raised by the learned counsel for the appellant that the respondent was guilty of getting the foetus aborted. Moreover, the petitioner neither examined his mother nor his brother or father by way of corroboration to his allegation. In the absence of any cogent evidence that respondent got the foetus aborted, I am not inclined to accept the first contention raised by the learned counsel for the appellant that the respondent was guilty of getting the foetus aborted. Moreover, the petitioner neither examined his mother nor his brother or father by way of corroboration to his allegation. His bald statement in the presence of denial by the respondent cannot be accepted. 7. With regard to the second ground of cruelty that on 24.10.1994 there was a birthday party of his younger brother in the house of the appellant and several guests were present. On that occasion the respondent declared the appellant as idiot in the presence of guests. The learned counsel for the appellant submitted that this allegation stands proved from the statements of PW1 and PW3. I have considered this submission and am of the opinion that no such incident has taken place. The best witness in this case could be the brother of the appellant but he has not been examined. The statements of PW2 and PW3 appear to be manipulated one and it has been admitted that these witnesses even did not attend the marriage function of the appellant. Assuming for the sake of argument that the respondent declared the petitioner as idiot, the point for determination would be whether this type of utterance would amount to cruelty within the meaning of Section 13 of the Act. We all know that word "cruelty" has not been defined in the Act but it has been interpreted by the Honble Supreme Court from time to time, where it was held that the term "cruelty" not only means physical cruelty but also mental one. It may be intentional or unintentional. But before a divorce is granted to a person on the ground of cruelty, it is obligatory on the part of the spouse complaining of cruelty to prove that it has become a hazards to him to live with such a spouse. The best witness in this case who could prove the alleged incident was the brother and mother of the appellant. Both these witnesses have been withheld and in these circumstances an adverse inference can be drawn against the appellant. 8. The third ground alleged by the appellant that the respondent had deserted him since 27.10.1994. The best witness in this case who could prove the alleged incident was the brother and mother of the appellant. Both these witnesses have been withheld and in these circumstances an adverse inference can be drawn against the appellant. 8. The third ground alleged by the appellant that the respondent had deserted him since 27.10.1994. Desertion individually is also a ground for divorce if it is continuous for a period of one year and in the opinion of this Court desertion is also an act of cruelty because when parties enter into a nuptial knot, they enter with some hopes and expectations from each other. If a woman wilfully leaves the house of her husband and tries to sever her relations, it would be certainly an act of cruelty. The question for determination before this Court is whether the respondent left the house of the appellant on 27.10.1994 of her own or whether she was turned out with the pretext to bring more dowry. The conduct of the appellant would show that after 27.10.1994 he has not taken any step for the rehabilitation of the respondent. He has not served any legal notice. He did not take any panchayat to the house of the respondent for her rehabilitation. Rather, the respondent was kicked out from the matrimonial house on the pretext that they would stay for one week at Delhi where alleged demand of Rs. 40,000/- was made from her brother. In these circumstances the appellant cannot be allowed to take the advantage of his own wrongs. Thus I am of the considered opinion that there is no illegality in the impugned judgment and decree and finding no merit in the appeal, the same is hereby dismissed with no order as to costs. Appeal dismissed.