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2009 DIGILAW 1063 (PNJ)

Bhateri Devi v. Surender Singh

2009-07-01

S.D.ANAND

body2009
JudgmentJudgment S.D.Anand, J. 1. The respondent-husband filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as `the Act) for dissolution of his marriage with the appellant-wife on plea of desertion and cruelty. The plea, on both counts, was upheld by the learned Trial Court which, vide impugned order, proceeded to order the dissolution of the marriage aforementioned. 2. The respondent-husband has filed a plea on allegation which may be indicated as under :- 3. The respondent-husband and his elder brother Rajinder Singh got married to the appellant-wife and her sister Mst. Roop Devi on 24.6.1980. After the marriage, the parties cohabited as husband and wife at the matrimonial house. However, no issue was born out of their union. From the very inception of the marriage, the behaviour of the appellant-wife towards the respondent-husband and members of his natal family was unbearable. She never treated the respondent with love and affection. She was in the habit of picking up quarrel with the respondent and members of his natal family even on petty matters. She was also in the habit of leaving the matrimonial house unannounced. Whenever she would be called upon to attend to some house hold chores, she would abuse the respondent in an arrogant tone. 4. For want of academic credential, the respondent was not able to land a job. He having studied upto 6th standard could only earning his livelihood by doing job as a daily wager in the village. The appellant did not relish that scenario. She wanted that the respondent should separate in mess and residence from his natal family and should get employed out of village. At times, she even held out a threat that if the respondent did not do so, she would commit suicide "which will result in the involvement of petitioner and his family members in a criminal case". The respondent brought the entire attitude of the appellant to the notice of her parents and brothers in the beginning of January, 1992. The appellant left the matrimonial house unannounced after January, 1992. When the respondent went over the following day to the natal house of the appellant and narrated the facts, the appellant announced that she does not want to reside with him. Hukam Chand, brother of the appellant- wife also misbehaved with the respondent and also threatened him with a knife. The appellant left the matrimonial house unannounced after January, 1992. When the respondent went over the following day to the natal house of the appellant and narrated the facts, the appellant announced that she does not want to reside with him. Hukam Chand, brother of the appellant- wife also misbehaved with the respondent and also threatened him with a knife. In August, 1992, the appellant was brought over to the matrimonial house by the father of appellant and three village mates. The appellant tendered an unconditional apology and promised to behave decently and also attend to the house hold chores. The respondent told her that she could return to the matrimonial house but that she must not visit the house of Rajinder Singh and Mst. Roop Devi without any reason. The respondent further told the appellant that she should also refrain from holding out a threat to commit suicide. The appellant assured to comply. However, within only fifteen minutes of the mediating team having left, the appellant went over to the house of Rajinder Singh and Mst. Roop Devi and stayed over there through out a period of one month. That act of hers caused mental cruelty to the respondent. 5. During the summer season in the year 1993, the respondent was suffering from typhoid. The appellant, accompanied by some females of her natal village, visited the village of respondent to offer condolence to one Shri Chand who had a bereavement in his family. On that visit, she also visited the house of the respondent and rebuked him and members of his natal family openly. She also hurt the respondent and his mother with a stone. She announced on that visit, that she had ceased to be the wife of the respondent. She no longer had any concern with him, that she would reside at the house of Rajinder Singh and respondent has no locus standi to object to it. That act of the respondent also caused mental cruelty to the respondent. On account of a sense of public shame, the respondent left the village house and started residing at the tube-well since the year 1994. 6. The appellant-wife denied the attribution of misconduct and averred that she was made to leave the matrimonial house on 14.1.1997 on account of her inability to bring along the demanded amount of Rs. 50000/- from her natal house. 6. The appellant-wife denied the attribution of misconduct and averred that she was made to leave the matrimonial house on 14.1.1997 on account of her inability to bring along the demanded amount of Rs. 50000/- from her natal house. The demand aforementioned had been made by the respondent and his mother. She averred, in categorical terms that "the respondent is still wife of the petitioner and she is ready to life with the petitioner". 7. No replication was filed at the trial. 8. The trial proceeded on the following issues :- 1. Whether the respondent has treated the petitioner with cruelty ? OPP 2. If issue no.1 is proved whether the petitioner is entitled to a decree of divorce ? OPP 3. Relief. 9. The respondent-husband entered the witness box, as has own witness, as PW- 3. He also examined PW-1 Dharambir (a neighbourer) and PW-2 Sukhbir, husband of his sister. 10. The appellant-wife examined herself as RW-1. She also examined Umrao Singh (Sarpanch of village) as PW-2 and Rajinder Singh, husband of her sister Mst. Roop Devi, as RW-3 and Hukam Singh as RW-4 to buttress her plea at the trial. 11. The learned Trial Court, on a perusal of the material obtaining on the file, recorded the following finding under issues no. 1 and 2 :- "From the circumstances brought on record in the evidence of the petitioner it is abundantly clear that the respondent has treated the petitioner with cruelty by leaving his house without his permission and by paying visits to the house of Rajinder elder brother of the petitioner and living in his house for months together and giving rise to gossip in the village community that she was wife of Rajinder and not wife of Surender. In these circumstances there is scope for reconciliation between the parties. Marriage of the parties has, therefore, been irretrievably broken down. It is, therefore, in the interest of parties to dissolve the marriage." 12. I have heard Mr. Babbar Bhan, learned counsel appearing on behalf of the appellant and Mr. Gobind Dhanda, learned counsel appearing on behalf of the respondent and carefully gone through the file. 13. The finding recorded by the learned Trial Court deserves outright invalidation. The reasons therefor are as under :- 14. I have heard Mr. Babbar Bhan, learned counsel appearing on behalf of the appellant and Mr. Gobind Dhanda, learned counsel appearing on behalf of the respondent and carefully gone through the file. 13. The finding recorded by the learned Trial Court deserves outright invalidation. The reasons therefor are as under :- 14. It may be noticed, at the very outset, that in the course of the petition (para 5 thereof),the respondent-husband had cited the following acts on the part of the appellant-wife which constitute cruelty :- 1) The behaviour of the appellant since the time of marriage towards her respondent and members of his natal family "has been unbearable". 2) The wife never treated the husband "with love and affection". 3) The wife "used to pick up the quarrel on petty matters". 4) The wife used to leave the matrimonial house unannounced. 5) The wife would abuse the husband arrogantly whenever she would be called upon to attend a house hold chore. 15. It would be pertinent to point out here that the pleadings of the respondent-husband did not cite any particular circumstances or any particular attributed act which may have been done by the appellant. Interestingly enough, there is not even a word in the testimony on oath of the respondent- husband about any of the aforesaid acts attributed to the appellant-wife. There cannot be dispute with the proposition that mere refusal to attend to the house hold chores cannot be said to constitute an act of cruelty. 16. It is in para 6 of the petition that the respondent-husband averred that the appellant-wife wanted him to separate from his natal family and take up a job elsewhere because she did not relish his working as a labourer in the fields in the village. It is also an averment, in the course of that para, that the appellant-wife held out a threat that if the respondent would not do as she wished, she would consume sulphos tablets and commit suicide. Equally interestingly enough, there is not even an iota of substantive evidence (in the statement of the respondent-husband) at the trial. 17. It is also an averment, in the course of that para, that the appellant-wife held out a threat that if the respondent would not do as she wished, she would consume sulphos tablets and commit suicide. Equally interestingly enough, there is not even an iota of substantive evidence (in the statement of the respondent-husband) at the trial. 17. It is in the course of para 8 of the petition that the appellant-wife (after having left the matrimonial house unannounced in July, 1992) was fetched to the matrimonial house by her father and three village mates and it is there that she tendered an unconditional apology and promised to behave decently and do the house hold chores. The further averment is that the respondent-husband "also imposed a condition that respondent will not visit the house of petitioner elder brother Rajinder and Smt. Roop Devi without any job or reason and further respondent is threatening every now and then that she will consume sulphos tablet. ..........The respondent father and other villagers went away and immediately after 15 minutes the respondent went to the house of her sister named Smt. Roop Devi and remained there for one month. The respondent did not come to petitioner house but remained day and night at Rajinders house." It would be apparent, from a perusal of the pleadings averred by the respondent-husband, that there was not even a word therein that the appellant-wife had any illicit relations or even any extra love and affection in her mind for Rajinder Singh. All that was averred in the course of that petition was that the respondent (while accepting her rehabilitation) told her to refrain from visiting the Rajinders house ("the petitioner also imposed a condition that respondent will not visit the house of petitioner elder brother Rajinder and Smt. Roop Devi without any job or reason"). It is one thing to make a grievance of frequent visitation to a relations house without any justification and quite another thing obviously to allege illicit relation with the male head of the allegedly frequently visited house. In the absence of the pleadings, the evidence adduced by the appellant at the trial( to the effect that the appellant visited the house Rajinder Singh frequently and that she used to stay over therefor long and that she was behaving as wife of Rajinder Singh) cannot be looked into. In the absence of the pleadings, the evidence adduced by the appellant at the trial( to the effect that the appellant visited the house Rajinder Singh frequently and that she used to stay over therefor long and that she was behaving as wife of Rajinder Singh) cannot be looked into. There is plethora of law on the point that evidence adduced by the parties beyond the pleadings cannot be looked into by the Court. 18. While appreciating the material obtaining on the file, it may be noticed that Rajinder Singh is in the Army for the last about 20 years and, obviously, he is not a frequent visitor to the village. The wife of Rajinder Singh who is none else or other than the own sister of the appellant-wife is living and was not examined at the trial to make an averment with regard to anything cooking up between the appellant-wife and Rajinder Singh. If there was even an iota of truth in the averment in the relevant behalf, Mst. Roop Devi would have been worst hit and the best circumstanced to testify in the context at the trial. If the appellant-wife was indeed behaving in the attributed fashion and was usurping the matrimonial status of her sister, there is no reason why Mst. Roop Devi would not have opted to enter the witness box and hit her sister who was the alleged to be the perpetrator of the worst crime by spoiling her matrimonial life. 19. Insofar as the respondent-husband is concerned, his mind can safely be read out from the various averments made by him on oath at the trial. He, in categorical terms, testified in the course of cross-examination that he does not want to take along the appellant because he is not of use to him and she does not put with him ("MEIN BHATERI KO NAHI LE JANA CHAHATA. QYONKI WEH MERE KAM KI NA HAI. WEH MERE PASS NO REHTI HAI.") In the course of further cross- examination by averring that he is not prepared to take Bhateri along at any cost. ("MEIN BHATERI KO KISI BHI KEEMAT PER LE JAANE KE LIYA TAYYAR NO HOON"). Those statements made by him are to be appreciated in the light of his statement that he and members of his natal family had never taken any panchayat for reconciliation. ("MEIN BHATERI KO KISI BHI KEEMAT PER LE JAANE KE LIYA TAYYAR NO HOON"). Those statements made by him are to be appreciated in the light of his statement that he and members of his natal family had never taken any panchayat for reconciliation. The above quoted statements made by the respondent-husband unmistakably indicate that he is plainly not interested in resuming cohabitation and that he does not appear to have been, at any point of time, interested in leading the matrimonial life with her. 20. In the light of the above facts, the learned Trial Court, in my view, was not justified in recording the finding which stands quoted in para 11 of the judgment. Insofar as the observation made by the learned Trial Court qua the marriage having been irretrievably broken down is concerned, it is neither here nor there when there is nothing in the Hindu Marriage Act to indicate that irretrievably break down of marriage is a valid ground for dissolution of marriage. There is plethora of law on that point. 21. In the light of foregoing discussion, the appeal shall stand allowed. The judgment and decree of the learned Trial Court shall stand set aside. The petition filed by the respondent-husband under Section 13 of the Act shall stand dismissed.