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2003 DIGILAW 422 (PNJ)

Om Parkash v. Paro

2003-03-12

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This is a husbands appeal against the judgment and decree dated 5.4.1990 passed by the learned Additional District Judge, Sirsa whereby the petition of the appellant under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for the grant of divorce has been dismissed. 2. The facts leading to the case are that the marriage between the parties was solemnised on 22.6.1986 according to Hindu rites and ceremonies at Village Simla, Tehsil Sardar Shahar, District Churu, Rajasthan. The father of the wife, Dulla Ram was a Siri (agricultural worker paid through a share in the produce) with Kesra Ram s/o Mamu, resident of Village Jamal, Tehsil & District Sirsa. The financial condition of Dulla Ram was not good. He had two daughters of marriageable age. The appellant was also a poor man having no ways and means of the livelihood except casual labour. There was no easy chance of the appellant to be able to get married. It was in these circumstances that Dulla Ram agreed to marry his daughters to the appellant and his brother Mehar Chand if they both i.e. appellant and his brother paid Rs. 10,000/- to him. The offer was accepted by the appellant and his brother. They gave Rs. 10,000/- to Dulla Ram and the marriage between the parties was solemnised. It is further stated, that gold ornaments weighing 4 tolas and silver pajeb weighing 8 tolas and clothes etc. were also given to the respondent. However, the father of the respondent was a greedy person and he did not send the respondent to the house of the appellant up to after one year of solemnization of the marriage and during this period he embezzled and misappropriated the jewellery given by the appellant, at the time of marriage. On condoning the misappropriation, the father of the respondent sent her to the home of the appellant. Thereafter the appellant and the respondent lived together as husband and wife and cohabited as such but they had no issue from the wedlock between them. The allegations of the appellant are that the father of the respondent had been demanding another amount of consideration in case he wanted to lead married life with the respondent. The respondent had been using all the tactics for this purpose. The allegations of the appellant are that the father of the respondent had been demanding another amount of consideration in case he wanted to lead married life with the respondent. The respondent had been using all the tactics for this purpose. The appellant was unable to fulfil the demand as his economic condition was not good. The respondent had even been misbehaving and insulting the appellant and his parents on petty matters. Respondent and her sister left the house of the appellant and his brother after quarrelling with him and his brother and went to the house of aforesaid Kesra Ram sometime in the first week of May, 1989. They also moved false applications through Kesra Ram at Police Post, Jamal and got the petitioner and his brother beaten up and insulted by the police. In this manner the respondent is stated to have crossed heights of cruelty. The petitioner and his brother got themselves medico-legally examined on 9.5.1989 at General Hospital, Sirsa. The appellant in no way condoned the acts of the respondent towards him and his family members. He accordingly prayed for dissolution of the marriage between the parties by a decree of divorce. 3. The respondent wife appeared before the learned Trial Court and filed her written statement. As regards the factum of marriage the status and place of residence of the marriage were admitted by the respondent. However, the other averments regarding the demand of money and subjecting the appellant to cruelty were denied. It was stated that a false and baseless story had been incorporated. It was no doubt, that her father was a poor man, but he had and has the means to earn his livelihood and maintain his children and other family members. The other allegation with regard to jewellery and beatings and lodging of report with the police has also been denied. Rather it is pleaded that it was the appellant, who turned out the respondent from his house after beating her severely many times. The father of the respondent sent her to the house of the appellant after convening a Panchayat, but the appellant did not change his behaviour towards her and did not mean his ways. The counter-allegations of the respondents are that in fact it is the appellant who has been misbehaving with her, maltreating and insulting her, beating her and treating her with utmost cruelty. The counter-allegations of the respondents are that in fact it is the appellant who has been misbehaving with her, maltreating and insulting her, beating her and treating her with utmost cruelty. The respondent is not at fault and rather she has been treating the appellant with love and regards. It is the appellant who has turned out the respondent from his house after beating her, because the appellant and his father members are greedy people and were not happy with the dowry brought by her. It is submitted that it was the appellant who was harassing her and therefore a case under Section 498A of the Indian Penal Code was registered against them at the Police Post, Jamal which is attached with Police Station Nathusari, Chopta against the appellant and his other family members. That case, it is stated has rightly been registered against them. It was therefore, prayed that the petition be dismissed. 4. The appellant filed his replication to the written statement of the respondent and reiterated his averments made in the petition and denied those made in the written statement. 5. On the basis of the above pleadings the learned Trial Court framed the following issues :- "1. Whether the petitioner is entitled to a decree of divorce by dissolving the marriage between the parties on the grounds mentioned in the petition ? OPP 2. Relief." 6. When the appeal was taken by this Court on 30.10.2002, notice was issued to the appellant for 4.12.2002 as his counsel who had filed the appeal had died. The appeal was taken up on 4.12.2002 for which date the Registry recorded a note that notice issued to the appellant had not been received or served. Accordingly a fresh notice was issued to him. The report of the Registry is that the notice issued to the appellant had been received back by way of affixation as he has refused to take summons. Therefore, the appeal is taken up and is being disposed of on merits. 7. The appellant in his grounds of appeal has taken the stand he was beaten by Satbir Singh ASI, Kesra Ram and Munshi Ram, residents of Village Jamal and his life was threatened. The occurrence took place on 7.5.1989 and it was at the behest of the respondent that the appellant and his brother Mehar Chand were given beatings. 7. The appellant in his grounds of appeal has taken the stand he was beaten by Satbir Singh ASI, Kesra Ram and Munshi Ram, residents of Village Jamal and his life was threatened. The occurrence took place on 7.5.1989 and it was at the behest of the respondent that the appellant and his brother Mehar Chand were given beatings. The appellant filed a complaint under Sections 323, 324, 325, 506, 34 of the Indian Penal Code on 10.5.1989 against Satbir Singh A.S.I., Kesra Ram and Munshi Ram aforesaid. Thereafter the proceedings under Section 498-A of the IPC was initiated against them which are dated 24.5.1989 which shows that the latter proceedings were a counter-blast to his complaint. He has also mentioned that he and his brother were medically examined at the Civil Hospital, Sirsa. Besides, it is stated in the grounds of appeal that he had led sufficient evidence to prove that a sum of Rs. 10,000/- was paid by the appellant and his brother to their father-in-law Dulla Ram and that jewellery of gold and other ornaments were also given to him. On the above grounds, it has been stated that the conduct of the respondent has caused the appellant mental as well as physical cruelty and has made his life insecure. Besides, lastly it is stated that the learned trial Court has not appreciated the evidence on the file in a right approach and has been swayed by the fact that the respondent has got registered a case under Section 498-A of the IPC. The appellant prayed for acceptance of the appeal and setting aside the impugned judgment. 8. On the other hand, Mr. P.N. Makani, learned counsel for the respondent states that there is no material or evidence on record to even remotely establish that the respondent has in any manner subjected the appellant to cruelty so as to entitle him for the grant of decree of divorce under Section 13(1)(i-a) of the Act. 9. I have considered the respective contentions of the parties and, with the assistance of learned counsel for the respondent gone through the records of the case. 10. In support of his case the appellant examined himself as PW-1 besides examining Jora Ram, PW-2 and his father Devi Lal as PW-3. Thereafter he closed his evidence. 9. I have considered the respective contentions of the parties and, with the assistance of learned counsel for the respondent gone through the records of the case. 10. In support of his case the appellant examined himself as PW-1 besides examining Jora Ram, PW-2 and his father Devi Lal as PW-3. Thereafter he closed his evidence. In defence, the respondent-wife, appeared as RW-1 and examined her father Dull Ram as RW-2, besides, Atma Ram as RW-3 and closed her evidence. 11. The question that is to be seen in the facts and circumstances of this case is whether the respondent-wife has treated the appellant with cruelty within the meaning of Section 13(1)(i-a) of the Act. So as to entitle him to the matrimonial relief of divorce. In order to appreciate this aspect, the concept of cruelty as provided under Section 13(1)(i-a) of the Act may be noticed. The Honble Supreme Court, in the case of Savitri Pandey v. Prem Chandra Pandey, (2000) 2 SCC 73 held that cruelty under Section 13(1)(i-a) of the Act may be physical or mental. Physical cruelty consists of acts which endanger the physical health of one of the parties to the marriage and includes inflicting of bodily injury or giving cause for apprehension of such injury. Mental cruelty, however, consists of conduct which causes mental or emotional suffering or induces fear in the mind of the parties to the marriage. The Apex Court again in Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706 reiterated that cruelty includes both mental and physical cruelty. The legal concept of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. The legislature has refrained from giving a comprehensive definition that may cover all cases. In short, cruelty is a state of mind and is to be seen in the facts and circumstances of each case after assessing the cumulative effect of the attending facts and circumstances of the evidence and material on record. While assessing the same, the social status of the parties, their customs, traditions their educational level and the environment in which they live is to be kept in mind. 12. Keeping the above factors in view, it may be noticed that the parties are not financially well-off and they live in rural areas where the appellant earns his livelihood by doing labour work. 12. Keeping the above factors in view, it may be noticed that the parties are not financially well-off and they live in rural areas where the appellant earns his livelihood by doing labour work. The appellant in his deposition in Court while appearing as PW-1 has not made any mention of the maltreatment meted out to him by his wife. He merely states that his wife used to quarrel with them and had been pressing for more payment to her father and that he and his brother were both beaten by the respondent at the hands of the police, Munshi Ram Sarpanch and Kesra Ram. He was medically examined at Sirsa. They filed a complaint and a complaint was also made on them for the offence under Section 498-A of the IPC which was pending. The appellant has only stated this with regard to cruelty besides, stating what he has averred in his petition, that is he paid a sum of Rs. 10,000/- as consideration of marriage with the respondent. PW-2 Jora Ram who is known to the parties reiterates the stand of the appellant. Besides, he states that Dulla Ram did not send his daughters to the house of the appellant for one year i.e. to their matrimonial home and it is with the intervention of the Panchayat that he sent his daughters to the house of the appellant and his brother. In his cross- examination, he states that, he never saw the appellant and the respondent quarrelling with each other. He also states that, he does not want to take the responsibility of the appellant to reside with the respondent. Devi Lal PW-3, is the father of the appellant. He in deposition makes a mention of giving gold ornaments and jewellery to his daughters-in-law. Besides, he has stated that the girls had remained in his house and they had been quarrelling with them and been pressing them for giving money to their father. On 7.5.1989, the respondent and her sister went to the house of Kesra Ram and she moved an application through Kesra Ram to the police and the appellant and his brother were beaten by Kesra Ram, Munshi Ram and Satbir Singh ASI. In his cross-examination, he admits that the girls wanted to live with them, but they did not want it. In his cross-examination, he admits that the girls wanted to live with them, but they did not want it. Insofar as the evidence of the respondent is concerned, she appeared as her witness as RW-1 and denies the allegation of quarrelling and demand of money. She rather states that she was given beatings by the appellant on their refusal to bring more dowry. She denies the allegations of the appellant and her brother being given beatings. To somewhat similar effect, is the statement of the father of the respondent namely, Dulla Ram RW-2. Besides, Atma Ram had appeared as RW-3. He knows the appellant and his brother Mehar Chand. He states that the appellant side has been harassing both the daughters of Dulla Ram for bringing less dowry. He further states that Devi Lal and the appellant had demanded more money from the father of the respondent, but he refused to give more money. In his cross-examination he states that he is neither Sarpanch nor Lambardar of the village and that he is not related to either party. 13. On the basis of the above material and documents on record it is not a case where it can be said that the respondent has treated the appellant with such degree of cruelty so as to warrant the grant of matrimonial relief of divorce to him. The parties to the petition are illiterate and they do labour work for their livelihood. Even otherwise I am not inclined to agree with the contention urged on behalf of the appellant, that his father-in-law was demanding money from him from time to time. In the social set-up and the rural background in which the parties are living, it is unimaginable for a person to demand as of right money from his son-in-law and that too after the solemnization of his daughters marriage with the appellant and his brother. This is definitely against the normal course of conduct in the social set-up and milieu of the area in which the parties live. This plea which the appellant has taken that his father-in-law demanded money from him time to time is clearly false and is not substantiated by any material on record. With regard to the appellant being beaten up he has placed a medical certificate on record. However, the same has not been exhibited in accordance with the provisions of the Indian Evidence Act. With regard to the appellant being beaten up he has placed a medical certificate on record. However, the same has not been exhibited in accordance with the provisions of the Indian Evidence Act. The Doctor who has given the medical certificate has not been examined as a witness. Therefore, no reliance whatsoever can be placed on the said medical certificate. The said certificate has been marked as Mark-2 by the learned Trial Court. It is purported to be an attested copy of the medical certificate. In the absence of a formal proof of the same, no reliance can be placed on the same. Therefore the allegation that the appellant and his brother were beaten by Kesra Ram, Munshi Ram and Satbir Singh ASI is also not substantiated. There is no evidence on records as regards the alleged actual occurrence. The instances which the appellant has pleaded for grant of matrimonial relief of divorce are merely stray instances of misbehaviour and seen in isolation are not sufficient to establish mental cruelty within the ambit of Section 13(1)(i-a) of the Act. Therefore, keeping in view the above facts and circumstances, I find no merit in this appeal and the same is accordingly dismissed. However, there shall be no order as to costs. Appeal dismissed.