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2009 DIGILAW 1282 (HP)

GEETA KASHYAP v. SATISH KUMAR

2009-12-15

DEV DARSHAN SUD

body2009
JUDGMENT Dev Darshan Sud, J.- This appeal has been preferred by the wife against the judgment and decree of the learned Additional District Judge, Shimla, dismissing the petition of the appellant/wife, herein praying for a decree of divorce for dissolution of the marriage between the parties to this appeal on the allegations that she has been subjected to mental and physical cruelty within the meaning of Section 13(1) (ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). She pleads that after the solemnization of her marriage she was residing with her husband and family at Kangra for some time. When they returned to Shimla, the respondent-husband started making unreasonable demands for dowry, subjected her to mental and physical cruelty. She was beaten up and turned out of the house in the middle of the night, threatened with dire consequences and she had to take shelter in the house of her relations at Shalaghat. 2. Some kind of compromise was worked out between the parties by the Mukhia Nirankari Bhawan, Bemloe Chowk, Shimla, but things did not work out smoothly with the result that she was forced to leave the matrimonial home and part company with the respondent in October, 1996, as it had become impossible for her to live with him. There was reasonable apprehension in her mind that it would not be safe for her to reside with the respondent. 3. She pleads that even after she had parted company with the respondent, he held out threats of killing her and on one occasion dragged her out of the Zonal Office of UCO Bank (where she was employed) and wrongfully confined by him at his home. 4. The respondent resisted the petition on the grounds that the allegations made are false and it is the appellant itself who left the matrimonial house without any justifiable reason and excuse and that the respondent was in no manner responsible for turning out her out of the matrimonial home. 5. On the pleadings of the parties, the learned Additional District Judge settled five issues. 6. 5. On the pleadings of the parties, the learned Additional District Judge settled five issues. 6. The most crucial aspect of the case was as to whether the petitioner-appellant was entitled to the relief of dissolution of the marriage by a decree of divorce on the grounds as pleaded, i.e., to say whether she had been treated with or subjected to mental and physical cruelty within the meaning of Section 13(1)(ia) of the Act. There were three issues, the burden of which was upon the respondent, i.e. on the maintainability of the petition, suppression of material fact, estoppel and cause of action. 7. Dealing with these issues, first I find that the learned Court below has decided these issues against the respondent and need not engage the attention of this Court. 8. On the first issue, it is undisputed before me that the marriage between the parties was solemnized according to Hindu Shastric Rites and Rituals on 10.03.1996 at Nirankari Bhawan, Bemloe Chowk, Shimla. It is also undisputed that the appellant, had one daughter Kumari Sheetal, aged about 12 years at the time of marriage, from the previous husband Sh. Bhagwan Chand, resident of Kotgarh, who had divorced her. The pivotal question for determination is as to whether the appellant has been treated with cruelty within the meaning of the Act? 9. The learned trial court, on the basis of the evidence on record, did not accept the allegations made bythe appellant and dismissed the petition. The wife is now in appeal. The appellant has appeared as PW-1 in support of the allegations which she has made. In addition PW-2 Sh. Surat Ram, father of the appellant, corroborated her testimony on the important facts constituting and establishing cruelty. PW-3 Sh. Inder Singh, PW-4 Ms. Seema Negi and PW-5 Sh. Dev Raj Sharma supported the case of the appellant. In addition; there is documentary evidence on record with respect to the complaints etc. made by the appellant. 10. The respondent appeared as his own witness denying the allegations of cruelty made against him. 11. Adverting to the evidence on record, PW-2 Sh. Seema Negi and PW-5 Sh. Dev Raj Sharma supported the case of the appellant. In addition; there is documentary evidence on record with respect to the complaints etc. made by the appellant. 10. The respondent appeared as his own witness denying the allegations of cruelty made against him. 11. Adverting to the evidence on record, PW-2 Sh. Surat Ram, father of the appellant, states that he was informed that the respondent was educated upto class twelve and was working with some Bank in Delhi, but he was shocked to learn that after marriage with his daughter, the respondent used to keep company of Gundas and was moving about aimlessly. He was making demands of dowry from his daughter and harassed her mentally and physically. He states that his daughter informed him that she was severely beaten up on a number of occasions. She was turned out of the house in the middle of the night when she was forced to flee to Shalaghat where she was forced to reside with her relatives. The beatings were so severe that her face was swollen. Ext.PW-2/A is the letter addressed by him to the Chairman, Human Rights Commission, Superintendent of Police, Shimla, Director General of Police, H.P. and S.H.O.(East), Shimla, giving a graphic account as to how his daughter had been beaten up and turned out of the house by the respondent. He has been subjected to lengthy cross-examination but there has been nothing which has been elicited from him which would destroy the veracity of his testimony in examination-in chief. PW-3 Sh. Inder Singh gives a detailed description about the incident on 26.05.1999, when, according to him at about 11:30 p.m. at night, he heard sounds of screaming from the house of Sh. Surat Ram PW-2. When he reached there, he found the respondent dragging the appellant by her hair. PW-2 Sh. Surat Ram tried to rescue her, but he was also beaten up by the respondent. The fundamental fact established by his evidence has also remained intact and his cross-examination has made no difference to destroy his testimony. PW-4 Ms. Seema Negi testifies the fact that the respondent used to threaten the appellant and her family members with dire consequences. PW-5 Sh. Dev Raj Sharma, states that he was the Chairman of the Transport Union; he is acquainted with PW-2 Sh. Surat Ram. PW-4 Ms. Seema Negi testifies the fact that the respondent used to threaten the appellant and her family members with dire consequences. PW-5 Sh. Dev Raj Sharma, states that he was the Chairman of the Transport Union; he is acquainted with PW-2 Sh. Surat Ram. He has proved on record Ext.PW-5/A which is a compromise of sorts entered into between PW-2 Surat Ram and Saran Dass, father of the respondent, which recites that both the parties would like to reside separately after obtaining divorce by mutual consent. This is the totality of the evidence on record. 12. On consideration of these facts, the learned trial Court holds that this evidence is not sufficient to establish cruelty as contemplated by the Act. The findings of the learned Additional District Judge cannot be sustained. 13 The evidence of the appellant is clear and unequivocal. When considered in its totality, the testimony of the appellant coupled with the corroborative evidence of the other witnesses on record, is clear and establishes that she has been subjected to mental cruelty and physical violence and has been harassed constantly. There is nothing on record to prove otherwise. The learned Additional District Judge has lost sight of the fact that in incidents involving cruelty, it is the testimony of the victim and the family members of the appellant which has to be considered as they are the persons who would know about these facts in the natural course of events. This testimony may be embellished but there is no reason to disbelieve it only because of this fact. What is required is to separate the chaff from the grain. It is not as if improvements in the narration of facts made destroys the entire testimony of the witnesses and has to be disbelieved. It is only if the improvements made destroy the very foundation of the case that the evidence is to be rejected. I do not find that this is the case in this appeal. The entire evidence of the appellant also finds corroboration from other witnesses. PW-3 Sh. Inder Singh has stated in clear terms that the appellant and her father were beaten up by the respondent in his presence. PW-4 Ms. Seema Negi, proves the threats held out to the appellant. The appellant was turned out of the house and forced to leave the house is also proved on the record. 14. PW-3 Sh. Inder Singh has stated in clear terms that the appellant and her father were beaten up by the respondent in his presence. PW-4 Ms. Seema Negi, proves the threats held out to the appellant. The appellant was turned out of the house and forced to leave the house is also proved on the record. 14. The concept of cruelty is bynow well established and considered in detail by the Supreme Court in Samar Ghosh vs. Jaya Gosh (2007) 4 SCC 511. The Court held as under: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (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 becomes 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. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may led to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (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. 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. (viii) The conduct must be much more than jealously, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded 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, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 15. The principles laid down above have been followed by this Court in Shri Chand Prakash Sharma vs. Smt. Kaushlya Devi (2008) 1 Shimla Law Cases 198. 16. In such like situations, it may lead to mental cruelty.” 15. The principles laid down above have been followed by this Court in Shri Chand Prakash Sharma vs. Smt. Kaushlya Devi (2008) 1 Shimla Law Cases 198. 16. I find that this is a case where the appellant has established that she has been subjected to severe mental and physical cruelty. The findings of the learned trial Court that follow up action by the police has not been proved on record and therefore, cruelty does not stand proved, cannot be accepted. The complaint Ext.PW-5/A is the detail which is coupled with the testimony of appellant herself (PW-1) and her father (PW-2). There is no doubt in my mind that the appellant has been subjected to cruelty within the meaning of Section 13(1) (ia) of the Act. The case falls squarely within the parameters of clause (i) (ii) (v) and (xiv) of Samar Ghosh’s case (supra). This appeal is accordingly allowed. The judgment and decree of the learned trial Court is set-aside and the marriage between the parties is dissolved by a decree of divorce. There shall be no order as to costs.