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2007 DIGILAW 1631 (PNJ)

Jasminder Singh v. Prabhjinder Kaur

2007-09-10

S.N.AGGARWAL

body2007
Judgment 1. Captain Jasminder Singh appellant has field this appeal against the judgment and decree dated 15-1-2002 by which the divorce petition filed by him against his wife was dismissed by the Court of Additional District Judge, Jalandhar. 2. The appellant was married to the respondent on 5-5-1996. They lived together as husband and wife. A son namely Balihar Singh was born from this wedlock on 5-4-1997. The relations between the parties became strained and the respondent left the matrimonial home in June, 1997. The appellant filed an application for restitution of conjugal rights in the Civil Court at Hoshiarpur but it was dismissed for want of jurisdiction. The appeal was also dismissed. Lastly, the appellant filed divorce petition on 30-1-1999 on the ground of desertion and cruelty. 3. The respondent pleaded preliminary objections. She denied the allegations levelled by the appellant and pleaded counter- allegations of cruelty at the hands of the appellant and his mother. 4. From the pleadings of the parties, the following issues were framed :- 1. Whether the respondent treated the petitioner with cruelty? OPP. 1-A. Whether the respondent deserted the petitioner continuously for the period of two years immediately preceding the presentation of the petition? OPP. 2. Whether the petitioner is estopped by his own act and conduct to file the present petition? OPR. 3. Relief. 5. The appellant examined himself as PW-1. He examined Ram Lal, as PW-2, Sardara Singh as PW-3, Gurdev Singh as PW-4 and Mohinder Singh as PW-5. The appellant closed his evidence. 6. On the other hand, the respondent examined Sunil Kumar Sahni, Bank official as RW-1. Prabhjinder Kaur, respondent herself appeared as RW-2. She also examined her father Surinder Singh as RW-3, Jarnail Singh as RW-4, Lalit Mohan Chadha, Bank official as RW-5, Mohan Lal, Postal Assistant as RW-6, Brij Mohan, Bank official as RW-7, Arun Gupta, Bank official as RW-8, Sukhdev Singh, Bank official as RW-9, Renu Bala, Clerk, Office of DTO, Jalandhar as RW-10, Ajit Singh, Bank official as RW-11, Kulwinder Singh as RW-12, Mohinder Pal Singh as RW-13, Baljit Singh as RW-14, Jaskaran Singh as RW-15, Mukhtiar Singh as RW-16 and Paramjit Singh as RW17. 7. After considering this evidence, the learned trial Court came to the conclusion that neither desertion nor cruelty was made out. Accordingly, the divorce petition was dismissed by the learned trial Court vide judgment and decree dated 15-1-2002. 8. 7. After considering this evidence, the learned trial Court came to the conclusion that neither desertion nor cruelty was made out. Accordingly, the divorce petition was dismissed by the learned trial Court vide judgment and decree dated 15-1-2002. 8. Hence the present appeal. 9. To start with, the parties had come present on the date of hearing i.e. on 5-9-2007. Efforts were made to bring reconciliation between the parties but it did not materialize. Hence, the appeal is being decided on merits. 10. Record has been perused. Submissions have been considered. 11. The version of the appellant was that after his marriage he had facilitated the eduction of the respondent and provided her all the facilities for this purpose including conveyance to her but she exploited the situation as the appellant was a divorcee. She denied conjugal rights to the petitioner on one pretext or the other and caused him mental torture. The appellant provided her luxurious life to the extent possible within his means but she started misbehaving with him including with his parents. She refused to accompany the appellant in the social gatherings or in the officer mess and humiliated the appellant in the presence of his colleagues. She refused to accompany him to his place of posting at Leh in June, 1997 and proceeded to the house of her parents without his consent and deserted him. He had even filed a petition for restitution of conjugal rights which was dismissed. 12. On the other hand, the respondent admitted that the appellant had filed a petition against her for restitution of conjugal rights but it was dismissed on 19-12-1998. The appeal filed by the appellant was also dismissed. She denied all other allegations levelled by the appellant and made counter- allegations that the appellant and his parents demanded huge dowry even after marriage when an amount of Rs. six lacs was spent by her father on the marriage. Her father had got purchased Kinetic Honda for the respondent and not for the appellant. She was subjected to tears and taunts and she was pressurised to ask her father to purchase a car for the appellant. She also alleged that the appellant and his mother have committed offences punishable under Sections 406 and 498-A, IPC but she did not initiate criminal proceedings against them in order to save her matrimonial life. She was subjected to tears and taunts and she was pressurised to ask her father to purchase a car for the appellant. She also alleged that the appellant and his mother have committed offences punishable under Sections 406 and 498-A, IPC but she did not initiate criminal proceedings against them in order to save her matrimonial life. The mother of the appellant was even demanding through the respondent a share in the property from her parents and on her refusal to do so, she was not permitted to come back to the matrimonial home. 13. So far as evidence is concerned, the appellant while appearing as PW-1 has proved the allegations levelled by him in the petition. He repeated on oath the allegation that he was denied sexual intercourse by the respondent. She had exploited the situation that the appellant was earlier a divorcee. She did not accompany him to the place of his posting in Leh. Ram Lal, PW-2 Sardara Singh, PW-3 and Gurdev Singh, PW-4 have only proved that the relatives of the appellant were not allowed by the respondent to enter in the house or that they were not treated nicely. Mohinder Singh, PW-5 has only stated that he had seen the parties quarrelling with each other and they had strained relations with each other. 14. On the other hand, Prabhjinder Kaur while appearing as RW-1 deposed that her relations with the appellant were cordial from June, 1996 till November, 1996 when her mother-in-law returned from Canada but cash was demanded by her in-laws through the mediator on which they paid a sum of Rs. 1.25 lacs towards furniture expenditure. Her mother-in-law also desired to have a car on which her father purchased a Maruti car in the name of the appellant in November, 1996. A son was born from this wed-lock and the medical expenses of her delivery were borne by her parents. She had joined M.A. (Economics) classes with the consent of her husband and her parents had borne education expenses. She was also compelled by her mother-in-law to demand a share in the property of her father. She was mal-treated by her mother-in-law on trifles. She was also thrown by her mother-in-law from the stairs when he was pregnant on which she had suffered abrasions on her hands. She was also compelled by her mother-in-law to demand a share in the property of her father. She was mal-treated by her mother-in-law on trifles. She was also thrown by her mother-in-law from the stairs when he was pregnant on which she had suffered abrasions on her hands. She also suffered pains in her abdomen and bleeding and she was shifted to Kamal Hospital for treatment. She denied if she had refused cohabitation to her husband. She had treated the relatives and friends of the appellant nicely. She accompanied her husband to all the parties. After the birth of her son, the appellant visited her but he did not bring any gift for the newly born child. Since the climate at Leh was cold which was uncomfortable for the newly born child, therefore, she remained at home. After the birth of her son, she had come to her matrimonial home in May, 1997 but had gone back to her parental house in June, 1997 as her husband was posted at Leh in those days. She was getting maintenance at the rate of Rs. 6000/- per month from the salary of the appellant as per Army Rules. The appellant had challenged this order but his representation was dismissed. She was always ready and willing to live with her husband. He was always ready to do so but her mother-in-law was interfering in their marital affairs. Surinder Singh, father of the respondent appearing as RW-3 and Jarnail Singh, RW-4 also supported the version of the respondent. The other are formal witnesses. 15. The main allegations of the appellant were that the respondent had denied sexual intercourse to him which caused him mental torture. Secondly, she did not accompany him to social functions and to his place of posting and deserted him. It could be proved by the appellant alone if the respondent was denying sexual intercourse to him or if she was not joining him in social functions or if she had refused to accompany him to the placing of his posting. These facts have been proved by him by making a sworn statement. 16. Now, we have to see if these circumstances constitute cruelty within the meaning of Section 13 (1)(ia) of the Hindu Marriage Act. The concept of cruelty has undergone a sea change. Even the mental cruelty constitutes cruelty within the meaning of this provision. These facts have been proved by him by making a sworn statement. 16. Now, we have to see if these circumstances constitute cruelty within the meaning of Section 13 (1)(ia) of the Hindu Marriage Act. The concept of cruelty has undergone a sea change. Even the mental cruelty constitutes cruelty within the meaning of this provision. The Hon ble Supreme Court in the judgment reported as Shobha Rani v. Madhukar Reddy, AIR 1988 Supreme Court 121, considered the meaning of the words "treated the petitioner with cruelty" as used in Section 13 (1) (ia) of the Hindu Marriage Act and observed as under :- "The word "cruelty" has not been defined. Indeed it 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 is, a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of interference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse." 17. In the judgment reported as Parveen Mehta v. Inderjit Mehta, (2002) 5 Supreme Court Cases 706 : AIR 2002 SC 2582, again the Hon ble Supreme Court was posed with a question on the same subject and it was observed by their Lordships in Paragraph 21 as under :- "21. Cruelty for the purpose of Section 13 (1) (i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind in feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Mental cruelty is a state of mind in feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other." 18. The subject of mental cruelty has been discussed in detail by the Hon ble Supreme Court in the latest judgment reported as Naveen Kohli v. Neelu Kohli, JT 2006 (3) SC 491 : AIR 2006 SC 1675. Their Lordships have discussed the requirement of a happy married life, including the ordinary wear and tear of life in Paragraph 42 of the judgment as under :- "42. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrel must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court." 19 The Hon ble Supreme Court in Naveen Kohlis case (supra) after discussing in detail the law relating to cruelty laid down certain principles, where cruelty can lead to divorce :- "40. To constitute cruelty the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. 41. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouses conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life." 20. Same view of law was taken by the Hon ble Supreme Court in the latest judgment reported as Samar Gosh v. Jaya Ghosh, (2007-2) Punjab Law Reporter 618, in which the Hon ble Supreme Court was pleased to observe that no uniform standard can ever be laid down for guidance, yet they deemed it appropriate to enumerate some instances of human behaviour which might be relevant in dealing with the cases of mental cruelty. Their Lordships gave thirteen fourteen instances of such cases but those relevant to the present case are reproduced as under :- "(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it become abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied, neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (xii) Unilateral decision or refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty." 21. (vii) Sustained reprehensible conduct, studied, neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (xii) Unilateral decision or refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty." 21. So far as the facts of this case are concerned, it is admitted by the respondent also that she had not accompanied her husband to the place of his posting at Leh but she has taken the excuse that the climatic conditions at Leh were not favourable to the newly born male child and, therefore, she had not accompanied her husband. This conduct of the respondent rather proves the version of the appellant that she had refused to accompany him to his place of posting intentionally to deny him sexual relationship. The reason put forward by the respondent is mere shallow as the appellant was equally worried about the well- being of his child and if the climatic conditions had been unfavourable to the newly born child, then he would not have asked his wife to accompany him to the place of his posting at Leh. 22. The appellant has also proved that the respondent used to deny him sexual intercourse which caused him mental torture. The denial of sexual intercourse by one spouse to another constitutes mental torture even as per illustrations and instances given by their Lordships of the Hon ble Supreme Court in Samar Ghoshs case (supra). So, the conduct of the respondent in denying sexual intercourse to the appellant amounts to mental cruelty. Mental cruelty is a state of mind in feeling with one of the spouses due to the behaviour or behavioural pattern by the other. It is sufficient to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the respondent that it would be impossible for them to live together without mental agony, torture or distress, to entitle the appellant to secure divorce. No reasonable husband would tolerate it. It has touched unbearable pitch of severity. Therefore, the appellant has proved cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act. 23. No reasonable husband would tolerate it. It has touched unbearable pitch of severity. Therefore, the appellant has proved cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act. 23. Even otherwise, it is also proved on the file that the husband wanted to bring the respondent back to the matrimonial home and for that purpose he had even filed a petition for restitution of conjugal rights. It was contested by the respondent not only on merits but also for technical reasons as is revealed from the written statement filed by her copy of which has been proved as Exhibit RD in the trial Court. The respondent although now alleges that now she is prepared to accompany the appellant to her matrimonial home but if she had been willing to do so, she would not have contested the petition filed by the appellant for restitution of conjugal rights. Even the trial Court had observed that parties had failed to reconcile the matter. It was dismissed by the learned trial Court vide judgment dated 19-12-1998 (Exhibit RB). The respondent has also admitted that the appellant had filed an appeal against this judgment but the appeal was also dismissed. Thereafter he had filed another petition which was also dismissed by the trial Court. From these proceedings, it is clearly proved that the appellant was willing to bring her back to the matrimonial home but the respondent had resisted the efforts made by the appellant for restitution of conjugal rights. Therefore, the plea taken by the respondent that she was willing to go back to the matrimonial home appears to be fictitious and baseless. 24. Not only the respondent has denied the allegations made by the appellant in his petition for divorce but she has also levelled counter allegations that she was maltreated by the appellant and his mother. They had asked for dowry even after the marriage. A part of it was given to them. Vehicle was also purchased by her father in the name of the appellant. If these allegations made by the respondent had been correct, then she would not have offered to go back to the house of the appellant. Either, the allegations levelled by her are concocted or her offer to go back to the matrimonial home appears to be a false plea. If these allegations made by the respondent had been correct, then she would not have offered to go back to the house of the appellant. Either, the allegations levelled by her are concocted or her offer to go back to the matrimonial home appears to be a false plea. In this context, reference may be made to the Division Bench judgment of this Court reported as Pawan Kumar v. Smt. Chanchal Kumari, (1999-1) Punjab Law Reporter 591 : (AIR 1999 P&H 108) in which it was held that if the wife has levelled allegations, her version of going back to the matrimonial home becomes unbelievable. 25. Otherwise also, the parties are living separately from each other for the last about 10 years since June, 1997. It appears to be a case of broken marriage. It cannot be retrieved and it would be unrealistic to ask the parties now after 10 years of separated life to live together happily as a married couple particularly when even the conduct of the respondent appears to be repulsive to the joint living of the parties although she professes to the contrary. It appears rather that the parties have adjusted to the changed conditions i.e. living separately. The Hon ble Supreme Court has discussed in detail about the broken marriages in the judgment reported as Naveen Kohli v. Neelu Kohli, AIR 2006 Supreme Court 1675. Their Lordships were pleased to observe as under :- "Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties." Their Lordships were pleased to observe further as under :- "78. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. 79. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but when a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. 80. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist." 26. Since the parties are living separately from each other for the last more than 10 years, it appears to be a case of total broken marriage. 27. In view of the facts of this case and the law discussed above, the appeal is accepted. The impugned judgment and decree dated 15-1-2002 are set aside and the petition for divorce filed by the appellant is accepted. The marriage of the parties is declared as dissolved and a decree of divorce is passed. 28. However, it is the legal obligation of the appellant to maintain the respondent-wife and the child born from this wedlock. Since the marriage is being declared as dissolved, the respondent-wife and the minor son living with her cannot be left in lurch nor can they be asked to initiate separate legal proceedings for maintenance/permanent alimony. They have been to be provided here and now. Even the Hon ble Supreme Court in Samar Ghoshs case (supra) had taken care to provide maintenance/permanent alimony to the wife after granting decree of divorce. 29. Since the appellant is working in a senior position in the army and in the circumstances of this case, he is directed to pay a sum of Rs. Even the Hon ble Supreme Court in Samar Ghoshs case (supra) had taken care to provide maintenance/permanent alimony to the wife after granting decree of divorce. 29. Since the appellant is working in a senior position in the army and in the circumstances of this case, he is directed to pay a sum of Rs. ten lacs as maintenance/permanent alimony to the respondent and to the son born from this wedlock. He will send the Bank draft of this amount to the respondent within six weeks from today. Out of this amount, Rs. three lacs shall be deposited by the respondent-wife in fixed deposit in the name of her son and the child would be entitled to withdraw this amount on attaining the age of majority. The remaining amount of Rs. seven lacs shall be deposited by the respondent in her own name in some nationalized Bank and thereafter she will be entitled to use this amount according to her convenience. The appellant shall file the compliance report along with a copy of the Bank draft in this Court within two weeks after the expiry of six weeks. Similarly, the respondent-wife shall also file the compliance report with copies of the FDR in the name of the child and a copy of her account within four weeks from the date when she receives the Bank draft. If the appellant fails to comply with this order of maintenance/alimony, the file be put up before this Bench again for initiating legal proceedings against him. After the appellant hands over the Bank draft of Rs. ten lacs to the respondent, the payment of maintenance to the respondent by the military authorities from the pay of the appellant shall come to an end. 30. This appeal is accepted in terms stated above.