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2006 DIGILAW 4535 (PNJ)

Balwinder Pal v. Anita Kumari

2006-12-19

ARVIND KUMAR

body2006
JUDGMENT Arvind Kumar, J. - This is an appeal by the husband under Section 28 of the Hindu Marriage Act, 1955 (in short, the Act) against judgment and decree dated 14.12.2000 passed by the Additional District Judge, Amritsar, dismissing the divorce petition filed by him against the respondent-wife under Section 13 of the Act. 2. In brief, the facts of the case are that appellant Balwinder Pal got married to respondent Anita Kumari on 27.3.1996 as per Hindu rites. Out of the wed-lock, one male child, namely, Amit was born on 11.7.1997. It is the case of the appellant that right from the beginning, the behaviour of respondent- wife towards him and his family was cruel. She used to physically manhandle him and even used to give him slaps in the presence of neighbourers and family members. She also did not cook food for the appellant-husband and his family members. It is alleged by husband that on one occasion, she undertook before the Shakti Mahila Kendra that she would mend her ways and will behave properly with the husband but however, the things did not improve. She further went on to threaten to involve him and his family members in dowry case besides threatening to commit suicide. It has been alleged by the husband that the respondent-wife, on 7.10.1998, left the matrimonial house without his permission. Thus, he sought decree of divorce qua her by filing the aforestated divorce petition. Respondent-wife, on receipt of notice of divorce petition, contested the same by filing her written statement thereby denying the averments made in the petition. She stated that in fact it was the appellant and his family who were cruel towards her. She was shabbily treated and given beatings and later forced to leave the matrimonial house along with the child. She stated that she was also maltreated and harassed on the ground of demand of dowry. Dismissal of the petition was sought. 3. On pleadings of the parties, the learned trial Court framed issues whereafter the parties led evidence in support thereof. 4. The learned Trial Court, on appreciation of oral as well as documentary evidence adduced before it, held that the grounds on which divorce was sought are not proved and accordingly, dismissed the petition. Hence, the present appeal by the appellant-husband. 5. I have heard the learned counsel for the parties. 6. 4. The learned Trial Court, on appreciation of oral as well as documentary evidence adduced before it, held that the grounds on which divorce was sought are not proved and accordingly, dismissed the petition. Hence, the present appeal by the appellant-husband. 5. I have heard the learned counsel for the parties. 6. The cruelty contemplated is the act that the wife could not be expected to live with the husband. Now it is well-settled that the conduct of the either spouse should be grave and weighty so as to make cohabitation virtually unendurable and it must be more serious than the ordinary wear and tear of the marriage. The amendment of 1976 provided that cruelty must be of the type to satisfy the conscious of the Court when relations between the parties have deteriorated to such an extent that it has become impossible for them to live together. However, in the instant case, the circumstances narrated above, do not satisfy the said test. Merely because there are allegations and counter- allegations, a decree of divorce cannot follow. In many marriages, each party, if it so wills, discover a cause for complaint, but grievances may arise mostly from temperamental disharmony. The court is to judge the acts complained of whether they are weighty. The allegations so contained in the petition and in the statement of PW-3 Balwinder Pal (husband) that respondent-wife was hot-tempered with no respect for elders; not interested in house-hold chores and used to manhandle him in front of neighbours and relatives, are vague and too general in character. The allegations are neither specific nor convincing. No date, month and year of such act at the behest of the respondent has been mentioned. This fact is also admitted by PW-3 Balwinder Pal in his cross-examination. The allegations so levelled, to my mind, are only wear and tear of the marriage which normally take place when there is lack of adjustment and certainly would not constitute cruelty. The wear and tear of marriage cannot be allowed to destroy the very foundation of marriage. The marriage is founded on mutual trust, faith, good will and affection. The same have to be generated by the wife towards the husband and the husband towards the wife during the course of living together and building up of a home. The wear and tear of marriage cannot be allowed to destroy the very foundation of marriage. The marriage is founded on mutual trust, faith, good will and affection. The same have to be generated by the wife towards the husband and the husband towards the wife during the course of living together and building up of a home. Respondent-wife though has denied the said allegations but even if it is assumed that the wife is short-tempered, picking up quarrels with the husband, his parents and relatives for no good reasons, tactful counselling to her could chasten her temperament and behaviours. No wife would desire rupture in the matrimonial home in our social set up. She would always desire that there is no rupture in the matrimonial home as she knows that a deserted wife loses all esteem in her relations arid is looked upon with dismay and disfavour. The sheet anchor of the case of the appellant is compromise, Exhibit P-1, so proved by PW-2 Raj Pal Kaur, Incharge Shakti Mehla Kendra, Amritsar. No doubt, in the said compromise, respondent-wife had undertaken that she would respect her husband and in-laws and would not commit any act derogatory to the family of her in-laws and apologized for her mistakes but at the same time, the said compromise shows that the appellant himself also undertook that he will fulfill the demands of his wife and that he would not give beatings to her any more. The learned trial Court, thus, has rightly concluded that it was only a misunderstanding between the parties and does not lead to the conclusion that the respondent alone was responsible for strained relations between the parties. It cannot be forgotten that the marriage is not like a partnership at will or a house of cards. Both the spouses should strive to defend the institution of marriage rather than to dissolve it merely on account of normal wear and tear of the married life which are required to be tolerated by both the partners. While they share the same roof, same bed, they are required to be tolerant to each other. 7. The matter does not rest here. It is evident from the statement of afore- stated Raj Pal Kaur (PW2) that second time. While they share the same roof, same bed, they are required to be tolerant to each other. 7. The matter does not rest here. It is evident from the statement of afore- stated Raj Pal Kaur (PW2) that second time. petitioner-appellant party failed to appear before them and that they had taken the respondent to the house of the appellant-husband but he did not open the door of his house. This version stands corroborated by the statement of PW-5 Manjit Kaur, a neighbour of the petitioner, and also stands admitted by him in cross-examination. In this backdrop, the learned trial Court has rightly held that it was the petitioner-appellant himself who is not in a mood to rehabilitate the wife and had been moving applications before the social organisations like Mahila Mandal without any purpose. Further, as evident from statement of PW-6 Sumitra, the petitioner-appellant was compelling the respondent to cook food when the baby was only of 12 days and the trial Court rightly came to the conclusion that at the point of time, a women needs good diet and rest and such pressure towards her by the husband to cook meals for him was a cruelty on the husband and not the respondent-wife. 8. Faced with this situation, it has now been contended that the marriage between the parties has broken irretrievably and in such like cases, divorce can be granted. This contention is again meritless. This is not one of the grounds provided under the Act on which marriage between the parties can be dissolved by way of decree of divorce. It is really a facet or an extension of the concept of mental cruelty. It is true that the Court is inclined to grant divorce in case of broken marriage but it is only when it is impossible for the litigating spouse to live together because of the acts committed by one of the parties which had psychologically affected the other to the extent that he had developed repulsion to the other side. However, the said position does not exist here. In the instant case, it has been found from the evidence on record that the appellant-husband is not willing at all to live with the respondent- wife any more. On the other hard, respondent-wife is still willing to live with her husband. However, the said position does not exist here. In the instant case, it has been found from the evidence on record that the appellant-husband is not willing at all to live with the respondent- wife any more. On the other hard, respondent-wife is still willing to live with her husband. In this background, in the facts enumerated above, the appellant-husband cannot get decree of divorce relying on the theory that the marriage between the parties has irretrievably broken down. Emphasis is from the case of Dipak Kumar Sarkar v. Smt. Sima Sarkar, 2005(1) HLR 730. In Birbal Goswami v. Indra Devi, 1997 Marriage Law Journal 415, it was found that the wife is willing to live with the husband and the husband levelled false charges to get rid of her and it was held that he cannot seek divorce on that ground and dismissal of the divorce petition was upheld. In Rupinder Kaur v. G.S. Sandhu, (1997-3)117 PLR 553, it was held that assuming that the marriage had broken irretrievably, irretrievably break-down of marriage is on ground to dissolve the marriage. 9. In view of the discussion made above, the appeal being devoid of any merit is hereby dismissed. No Costs. Appeal dismissed.