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2009 DIGILAW 732 (PNJ)

Satish Garg v. Sarita Garg

2009-04-20

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. This is husbands appeal against the order dated 9.6.2001 vide which a plea, filed by him under Section 13 of the Hindu Marriage Act (hereinafter referred to as "the Act") for the rant of a decree of divorce against the respondent-wife, was declined by the learned Trial Court. 2. For enabling the proper appreciation of the controversy it would be useful to indicate the respective pleas of the parties at the first instance :- The marriage between the parties was sole-minised on 27.4.1994. For both of them otherwise, it was a second marriage. The appellant was a widower; while the respondent- wife was a divorcee. 3 The parties cohabited, as husband and wife, and a female child was born out of their union on 1.6.1995 At the matrimonial house, the parents of the husband were also residing. 4. The respondent-wife was in the habit of picking up quarrel, even on trivial issues from the inception of the marriage. Apart from exhibiting an attitude of indifference towards the appellant and his parents, she was also in the habit of hurling filthy abuses upon him and his parents. She would always have a grievance that she had been married to a poor man., She would not attend to the house hold chores and would announce to the appellant that she is not a servant. She would always tell the appellant that the latter should engage a domestic help to attend to the house hold chores. As against it, the appellant would advise her to live within his financial means and to render assistance to his mother in the house hold chores. Whenever he would tender that advice to the respondent, she would abuse him filthily like "KUTTE HARAMJADE TERIEHH HIMMAT KIDDA HOI KE TU MANU GHAR DA KAM KARAN LAI KAHEN". Besides it, the respondent announced that she would commit suicide in case the appellant or members of his family insisted upon her attend to the house hold chores. In the month of May, 1994, she consumed sleeping pills to commit suicide. The attempt proved abortive otherwise. The appellant brought this fact to the notice of the parents of the respondent- wife who came over and, instead of advising her to behave properly started abusing the appellant and his parents who did not, however, react as they were inclined to pacify the matter. The attempt proved abortive otherwise. The appellant brought this fact to the notice of the parents of the respondent- wife who came over and, instead of advising her to behave properly started abusing the appellant and his parents who did not, however, react as they were inclined to pacify the matter. The respondent was also in the habit of announcing to the appellant that her parents were well connected with the rich and high ups and she would also announce to them that law is favourably inclined towards the females. 5. The respondent conceived in the month of August, 1994. She announced that she would not, at all, attend to the house hold chores and would take complete bed rest. In an attempt to make her happy, the parents of the appellant looked after the house hold chores during the period of her pregnancy. A female child was born to the respondent at Iqbal Nursing Home on 1.6.1995. All the expenses connected therewith were borne by the appellant. Even on that occasion, the resppndent had a grievance that proper diet (of almonds) had not been given to her by the mother of the appellant who( mother of the appellant) told her that the Doctor had advised against the consumption of almonds in view of the fact that the child had been bom after a caesarean operation. On discharge from the Nursing Home, the respondent came over to the matrimonial house but she did not display any change in attitude. When the child was only 40 days old, she summoned her parents and who fetched her to their house in the month of July, 1995. The appellant was summoned to his in-laws house thereafter and was told that the respondent had not received proper medical attention and it was on that account only that a particular stitch was bothering her. The appellant fetched her from latters natal house and brought her to Iqbal Nursing Home. The treating Doctor told her that stitch had been causing botheration as the respondent had not taken advised precaution in the context. The respondent stayed over at the Nursing Home for three days and again went over to her natal house. When the appellant went over there, he was insulted. Thereupon, the appellant informed his inlaws that he would fetch her only when she would promise to mend her ways. The respondent stayed over at the Nursing Home for three days and again went over to her natal house. When the appellant went over there, he was insulted. Thereupon, the appellant informed his inlaws that he would fetch her only when she would promise to mend her ways. The stern piece of advice had its effect. She apologized in writing and undertook to behave in a nice manner in future. That brought about the restoration of the respondent to the matrimonial house. The respondent again fought with the appellant and went away to her natal house. She came back after two days of the episode. Her father dropped her at the matrimonial house and she promised that there will no recurrence of the bouts of ill behaviour. However, again on 8.12.1995, the respondent left the matrimonial house unannounced. She did not even take along the female child. After ascertaining that the respondent was at her natal house, the appellant asked her to come back to the matrimonial house and look after the female toddler who needed the mothers feed. His entreaties did not, however, have any effect and the appellant returned insulted. However, the respondent came over to the matrimonial house after three days thereof and took along the female child as well. 6. Ultimately, the matter was compromised on 26.2.1996. The apology (Ex.Pl) tendered by the respondent was documented. Thereby, she made lots of promises including the avoidance from using vulgar language. She also assured that she would respect the appellant and members of his family and conceded that they were good people and had always been taking care of her. The documentation aforementioned came about in the presence of certain named individuals. In pursuance of that compromise, the parents of the respondent left her at the matrimonial house. However, her attitude did not indicate any change. She started sleeping in the room under the occupation of the mother of the appellant. 7. It was followed up by another episode dated 11.4.1996 when the respondent summoned her parents to her natal house. They i.e. the parents of the respondent hurled filthy abuses upon the appellant and members of his family and took the respondent along. She carried along jewellary and her valuable clothes. 7. It was followed up by another episode dated 11.4.1996 when the respondent summoned her parents to her natal house. They i.e. the parents of the respondent hurled filthy abuses upon the appellant and members of his family and took the respondent along. She carried along jewellary and her valuable clothes. While leaving the house of the appellant, the respondent and her parents held out a threat that the appellant and his parents shall have to face dire consequences for having ill treated the respondent. 8. It was on the above averments that the appellant applied for a decree of divorce on the allegation that the respondent had hereby treated him mental and physical cruelty on account whereof even his business had been ruined. 9. The respondent denied that she ever misconducted herself and that she had made any attempt of suicide. She alleged that the appellant and members of his parental family subjected her to dowry-related harassment. She was not in a position to fufill the dowry demands. In that context, it was alleged that the parents of the respondent had performed a handsome marriage and had also given a number of jewellary items and FDR for Rs. One lack in the name of the respondent. She alleged that appellant and his parents were not happy on the birth of a female child to her and that it is her parents only who had paid for her hospitalisation at Iqbal Nursing Home. The further averment, obviously in the context of the latter Ex. P1, is as under :- "Many a times the signature of the respondent was taken by force on blank as well as typed papers and even the parents of the respondent also signed on one or two occasion under pressure with a view to satisfy the ego of the petitioner in the presence of common relations namely Gobind Ram, Mrs. Jashmesh Piplani and Vijay Kumar Jain. The behaviour of the petitioner and his family towards the respondent never changed. - As already submitted the petitioner and his parents obtained the signatures of the respondent on certain blank papers and on one or two occasion on already typed papers. They also obtained signatures of the parents of the respondent. The said signatures were made by the parents of the respondent only to satisfy the ego of the petitioner and looking upon the welfare of the respondent. They also obtained signatures of the parents of the respondent. The said signatures were made by the parents of the respondent only to satisfy the ego of the petitioner and looking upon the welfare of the respondent. The respondent and her parents were not allowed to read the contents of the typed matter." The trial proceeded on the following issues :- "1) Whether the respondent has treated the petitioner with cruelty ? OPP. 2) Relief. 10. PW-1 Kewal Krishan Garg, PW-3 Mohan Lai and PW-4 Manjit Singh were examined by the appellant. Besides it, the appellant also stepped into the witness box, as his own witness, as PW-2. 11. Insofar as the respondent is concerned, she entered the witness box, as her own witness, as RW-1 and also examined Mohinder Pal RW-2 and Narinder Mohan Sharma RW-3 in support of the plea taken by her at the trial. 12. On appraisal of the material obtaining on the file, the learned Trial Judge recorded a finding adverse to the appellant-husband. 13. The learned counsel, appearing on behalf of the appellant-husband, argued that the entire approach of the learned Trial Court in the matter of appreciation of evidence was inappropriate inasmuch as undeserved importance was attached to the statement of the father of the appellant to the effect that the only dispute was with regard to the reluctance of the respondent to attend to the house hold chores ("there was no other dispute except that we were asking the respondent to do the house hold work and she was reluctant to do the work") and the fact that the appellant utilised the maturity proceeds of FDR for Rs. One lac, which had concededly been given to the respondent by her natal family and in her name, the running of in his business. Besides it, the argument proceeded, the Trial Court committed a grave error of law in holding that the entire acts of cruelty (though proved), committed by the respondent- wife during the period upto 26.2.1996 i.e. the date on which the Ex. P1 was executed, stood condoned. 14. The learned Senior Counsel appearing on behalf of the respondent-wife, argued that there is nothing inappropriate on the part of the learned Trial Court in the matter of appreciation of evidence and that the reasoning adopted by the learned Trial Court in recording a finding adverse to the appellant- husband is correct. 15. P1 was executed, stood condoned. 14. The learned Senior Counsel appearing on behalf of the respondent-wife, argued that there is nothing inappropriate on the part of the learned Trial Court in the matter of appreciation of evidence and that the reasoning adopted by the learned Trial Court in recording a finding adverse to the appellant- husband is correct. 15. The pleas raised on behalf of the appellant- husband deserve acceptance. The reasons therefor are as under :- Ex.P1 is the magna-carta of the case put forward on behalf of the appellant- husband. It was conceded by none else or other than the respondent herself that she did execute that document which was also signed by others whose names appear thereupon. ("Writing Ex. P1 is correct and it bears my signature and the signatures of my father and mother"). She did beat a hasty retreat in the next sentence by averring that her signatures and that of her parents were obtained on a blank paper. However, her attempt in the relevant behalf proves abortive in the facts and circumstances of the case. Her brother RW-2 Mohinder Pal would appear to be a thoroughly untruthful witness in view of the fact that he denied that the respondent had ever felt sorry or made a promise to mend her ways. The fact of his being an untruthful witness would be apparent from a perusal of the following terms and conditions contained in Ex. P1 :- "To know all the men that I Mrs. Sarita W/o Mr. Satish D/o Sh. Hardyal Singh R/o H. No. B.13-1407, Mohalla Sukhram Nagar, Karimpura near Jagroan Bridge,Ludhiana. Feel sorry to my all the in laws family members including my husband for the shameful degrade unnecessarily torture wrong allegations act etc. done by me to my husband and in laws family. Following points repeatedly done by me just after my marriage till now,- 1 I will not threat them to commit suicide and to kill my daughter, 2.I will not treat them to make false reports to the police, 3. I will not use any vulgar language like (HARAMJADA KUTTA etc.) and will not abuse and will give due respect to all the family members, 4.I will not go anywhere without permission of my husband and my in-laws, to anywhere, even my parents house, 5. I will remain in the means of all my in laws family members. I will not use any vulgar language like (HARAMJADA KUTTA etc.) and will not abuse and will give due respect to all the family members, 4.I will not go anywhere without permission of my husband and my in-laws, to anywhere, even my parents house, 5. I will remain in the means of all my in laws family members. 6.I will respect and serve sincerely to my husband, mother-in-law, father-in-law and all the guest visit to us, 7. I will sincerely live with my husband as a good wife and as a good life partner, and as a good daughter-in-law to my father-in-law and mother-in-law. I also declare this thing in the presence of everybody that my in laws are very good people and from the day just after my marriage I have got full respect, love, cooperation, fulfill of my all desire according to their means from my husband, mother-in-law, father-in-law and all the family members in my in laws family also they never expected and demanded anything from me as well as from my parents and parental family." 16. It may be noticed here that this document bears the signature of the respondent and also her parents. Besides it, the respondent-wife conceded that writing Ex. PZ/1 had been executed by her ("It is correct that brief memo/writing Ex.PZ/1 was executed by me."). The translated contents of Ex. PZ/1 are as under :- "I apologises from you. Whatever I did will not be repeated. There would be no altercation without any cause. I would not level the baseless allegations." 17. A conjunctive perusal of Ex. PZ/1 and Ex. P1 would indicate that the respondent had virtually . conceded all the allegations which the appellant has levelled in the course of the petition. It is illogical for the respondent and her father to otherwise presently aver that their signatures on Ex.P1 had been obtained on blank paper. If that were so, a similarly circumstanced person would have immediately notified the police. Nothing of the type is even averred to have been done in this case. 18. The finding recorded by the learned Trial Court that all acts of cruelty committed by the respondent prior to 26.2.1996 stood condoned is inappropriate in the circumstances of the case. Though there is evidence on record to prove that the respondent was restored to the matrimonial house immediately on the execution of Ex. 18. The finding recorded by the learned Trial Court that all acts of cruelty committed by the respondent prior to 26.2.1996 stood condoned is inappropriate in the circumstances of the case. Though there is evidence on record to prove that the respondent was restored to the matrimonial house immediately on the execution of Ex. P1 by her, it cannot be ignored from consideration that there is also evidence on the file that she did not actually resume cohabitation with the appellant and there also was no change in her conduct visa-vis the appellant and she was not even sharing the bed room with the respondent during the post 26.2.1996 period. 19. If a party to a marriage apologises for own conduct and is restored to the matrimonial house on the basis thereof, we cannot infer an all-time condonation on the part of the affected spouse, if the restored spouse does not actually mend ways and continues to misbehave even after the restoration to the matrimonial house. 20. Insofar as the encashment of the FDR (of Rs. One lac in the name of the respondent) is concerned, it would be useful to quote here the stance taken up by none else or other than the respondent herself. The respondent-wife conceded, as correct, a suggestion that the maturity proceeds of the FDR were deposited by her into her saving funds account which she held with UCO Bank, Chora Bazar, Ludhiana ("It is correct that I have deposited the FDR on its maturity in my savings account with UCO Bank chaura bazar, Ludhiana and the amount of FDR was credited to my account."). She also clarified, in the context, that the aforementioned UCO bank account had been opened by her before her marriage. In that view of things, the wind is taken out of the sails of the respondent in the context of the allegation that the maturity proceeds of the FDR were utilised by the appellant in his business. Having said that, it must be indicated otherwise even if the maturity proceeds of the FDR had been pledged in the business by the appellant, it would not have by itself proved that the appellant or members of his family were not satisfied with the adequacy of the dowry brought by her or that aforementioned act on their part constituted an act of cruelty on their part. 21. 21. As RW-1, the respondent conceded that the appellant kept her happy for 2-3 months and there was no dispute between her and the appellant in the first three months of the marriage. ("The petitioner kept me happy for two three months. The petitioner was happy with me and my parents and I have no complaint against petitioner for the first two three months of my marriage as my parents were giving/sending articles on the festivals to their house. There was no dispute between me and my husband in the first three months of my marriage.") She also conceded having filed a complaint against the appellant, his parents and other relations under Section 406, 498-A and 120-B IPC. She conceded that Ex. PX is a copy of that complaint. She also conceded that Ex. PY is a certified copy of a statement which she made in that complaint. She also conceded, as correct, a suggestion that in the course of that complaint she had levelled allegations against the appellant, his parents and relations that they started "humiliating, harassing and revoking me from very first day of my marriage and made my life a hell." She had no option but to concede that above averment was factually incorrect. ("The statement made by me with reg. to revuking, harassing and humiliating for less dowry on the very first day of my marriage by my husband and his parents made by me in complaint, the certified copy of Ex.PX is wrong and is incorrect.") 22. In that very context, it may be noted that she conceded that no dowry demand had been made by the appellant or his parents from her. She did state otherwise that the fact of dowry demand would be in the knowledge of her parents. ("No demand of dowry was made by the petitioner or his parents from me"). 23. She also conceded that her parents had not given any diamond jewellary at the time of her marriage and that an averment to that effect, made by her in para 4 of sub para (b) of Ex. PX, was factually incorrect. In an attempt at clarification, she volunteered to state that "No such diamond set or diamond ring were given to Kaushalya Garg") 24. PX, was factually incorrect. In an attempt at clarification, she volunteered to state that "No such diamond set or diamond ring were given to Kaushalya Garg") 24. It is in evidence that she left her female child at the matrimonial house which (matrimonial house) she left to go over to her natal house. Though it is in evidence that she did go over to the matrimonial house three days thereafter and fetched her female child, it would not exonerate her from the charge of having been an inconsiderate mother. A child of that age group has to be necessarily with the mother for emotional reasons and also for practical purposes because the mother has to feed the child. Her act of having left the child at the matrimonial house also constituted an act of cruelty towards the appellant and his parents etc. because it is in evidence that the appellant did go over to his in-laws house to request her to get back to the matrimonial house for the sake of the child but he was insulted. The appellant must have undergone traumatic mental convulsion actuated by his concern for the welfare of the female child of the parties, without the respondent being available to render motherly services to the child. 25. Insofar as the allegation levelled by the appellant qua the attempted suicide by the respondent is concerned, it does not stand proved on record. If the respondent had actually attempted suicide, it would have been natural for the appellant to obtain the medical help for her. There is no acceptable evidence on record to prove that the respondent was taken to any Doctor. That allegation, which was otherwise also denied by the respondent, does not stand proved on record. 26. The reliance placed by the learned Trial Court upon the statement of the father of the appellant ("there was no other dispute except that we were asking the respondent to do the house hold work and she was reluctant to do the work") is inappropriate. A single sentence appearing in the testimony of a witness cannot be appreciated in isolation from the other part of the statement made by the witness. In the course of his testimony, the father of the appellant had fully supported the appellants case with regard to acts of cruelty committed by the respondent and also the execution of Ex. P1 by her. 27. In the course of his testimony, the father of the appellant had fully supported the appellants case with regard to acts of cruelty committed by the respondent and also the execution of Ex. P1 by her. 27. In the light of the forgoing discussion, it is apparent that the appellant-husband has been able to prove that the respondent- wife treated him with cruelty. She levelled unsubstantiated allegations that she had been subjected to dowry-related torture. She also left the female child of the parties at the matrimonial home. She also levelled a false allegation that the maturity proceeds of the FDR had been utilised by the appellant- husband in his business. The averment to that effect, which appears in the pleadings, was falsified on oath by the testimony of none else or other than the respondent herself when she conceded that the maturity proceeds of the FDR had been deposited into her saving bank account at UCO Bank, Chora Bazar, Ludhiana. She also levelled unsubstantiated allegation that the appellant and his parents had demanded certain amount for purpose of raising construction of a house. Infact, she herself conceded, as correct, a suggestion that father of the appellant had purchased constructed house No. HIG-982 from the Punjab Housing Development Board in September, 1991 and that the second floor thereof was raised in 1995. Besides it, she conceded that marriage expenditure had been shown by her father in the Income Tax Return. However, no such return had been produced at the trial. The production of that document was essential in order to falsify the allegation of the appellant that the marriage was a simple affair. The production of Income Tax record would also have enabled the respondent to buttress her allegation that the marriage of the parties was not a simple affair are that a sum of Rs. 5 lacs had been spent on the marriage. She further claimed that the purchases in the context of the marriage were made by her cousin sister from Delhi. She also testified that she maintained the record with regard to those purchases. She had not brought along that record on the date she was examined at the trial. She tried to wriggle out of that predicament by stating that it might be in the custody of her parents. Neither her named cousin sister was examined nor did she produce that record at the trial. She had not brought along that record on the date she was examined at the trial. She tried to wriggle out of that predicament by stating that it might be in the custody of her parents. Neither her named cousin sister was examined nor did she produce that record at the trial. Though she averred that golden jewellary had been purchased from an indicated jeweller at Ludhiana, no witness from that shop was examined. The present is, thus, a case in which the wife is proved to have levelled unsubstantiated false allegations at the trial and also in the course of a (private) complaint. She had also filed proceedings under Section 125 Cr.P.C. She claimed to have withdrawn that complaint on a technical ground. None the less, it has to be taken into consideration that she did concede that certain allegations made by her vis-a-vis the dowry-related greed of appellant side were factually incorrect. 28. The following facts having a relevant bearing on the adjudication of the present unenviable material litigation, emerge from the record :- a) The respondent-wife had conceded (Ex. P1 and Ex. PZ/1) that it is she who had been misconducting herself at the matrimonial house and while apologizing for the misdemeanour, held out an assurance that she will not repeat it (i.e. the conduct). b) Even after the execution of Ex. P1 and Ex.PZ/1, the respondent- wife did not mend her ways and refrained from even sharing the bed room with the appellant-husband. c) The respondent is proved to have conceded at the trial that she had made false allegations of dowry-related torture in the (private) complaint filed by her. d) The respondent is proved to have made unsubstantiated and false allegations (qua dowry-related torture and appropriation of maturity proceeds of an FDR) against the appellant-husband and members of his natal family. 29. In view of the above, the appeal shall stand allowed. The impugned judgment and decree shall stand set aside. The marriage between the parties shall stand dissolved with effect from the date of the order. Appeal allowed.