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2010 DIGILAW 2989 (PNJ)

Reshma Rani v. Devinder Kumar

2010-11-08

K.KANNAN

body2010
JUDGMENT K. Kannan, J. 1. The petition for divorce filed by the husband on the grounds of cruelty and desertion had been allowed. The wife being aggrieved by the judgment is in appeal. 2. The grounds of divorce alleged were that the wife was guilty of cruelty in pestering her husband for setting up a separate house and living away from the parents of her husband. The further grounds urged were that the wife had been giving false complaints to the police against the husband and she had thus created mental cruelty to her husband. It was further contended that the marriage had taken place on 24.10.1987 but she had lived with the husband only for 1 ½ years, after which, she had gone to her parents' house. A child had been born out of the wedlock but ever since the time, she left the house after marriage on 20.03.1989, she had never resumed the company. The wife denied all the allegations and contended that she had gone for confinement to her mother's house and after the birth of the child, the husband never took her back to his house. Refuting the contentions made by the husband that she had abandoned the house taking all gold ornaments and cash, she contended that such allegation was false and it was vindicated by the fact that she had filed a civil suit for return of her movables and the Civil Court had also granted a decree for the value of the movables. The wife complained that her husband was trying to take advantage of his own wrong and the grounds urged for divorce were not true. 3. In the course of trial, it was elicited that the wife had actually lodged a complaint against the husband at Mansa and proceeding had been initiated under Section 107 read with Section 151 of Cr.P.C. There appears to have been proceedings initiated by the wife for maintenance under Section 125 Cr.P.C. also against the order passed by the Sub-Divisional Magistrate at Mansa. A revision had been filed to the Additional Session Judge seeking for enhancement of maintenance. During the proceedings under Section 125 Cr.P.C, the Magistrate had obtained a report from the DSP, Mansa and there had been some facts elicited that the wife was “mischievous and quarrelsome”. A revision had been filed to the Additional Session Judge seeking for enhancement of maintenance. During the proceedings under Section 125 Cr.P.C, the Magistrate had obtained a report from the DSP, Mansa and there had been some facts elicited that the wife was “mischievous and quarrelsome”. The Additional Sessions Judge found that she was not entitled to any maintenance but since that the husband himself had not challenged the original order of maintenance, he merely dismissed the criminal revision. 4. Besides criminal complaint and proceedings for maintenance, it also appears that the wife had filed a suit for return of jewels alleged to have been retained by her husband before the Additional Sub-Court at Mansa. The case had been instituted on 31.03.1990 and after a full-fledged trial and when the petition for divorce was still pending, the Civil Court had granted a decree finding that the wife was entitled to obtain the return of movables. 5. While allowing the petition filed by the husband, the Court took notice of the report of the police which had been extracted in the order of the Additional Sessions Court in the civil revision filed by the wife characterizing the wife as “mischievous and quarrelsome” to be affording proof of cruel conduct by the wife. The trial Court observed that the wife had been, therefore, cruel in her conduct and took the plea of cruelty as established. As regards the plea of desertion, the Court took note of the fact that the petition for divorce had actually been filed on 11.05.1994 and even before the institution of the proceedings, the wife had already filed a suit for return of the dowry articles which only showed her state of mind that she was not willing to live with her husband. That suit itself had been instituted even in the year 1990 which was more than two years prior to the filing of the petition and that established the case of desertion. 6. The learned counsel appearing for the wife would contend that the vague allegations of cruelty that she was not prepared to go and live with her husband and that she was pestering her husband to set up a separate house away from his parents cannot constitute cruelty and the evidence let in by the petitioner's witnesses could not have been taken as sufficient to establish the act of cruelty. It is also contended that a report of the DSP extracted in the order in criminal revision petition cannot be taken as proof of any cruel or quarrelsome conduct of the wife. I am prepared to accept both the limbs of arguments as worthy of acceptance. The allegations of cruelty which are made in the petition are hardly sufficient to sustain a petition for divorce. The statement in the petition reads as follows:- “8. That the respondent filed a false cases u/s 107/151 Cr.P.C., 125 Cr.P.C. and suit for recovery etc. levelling false allegations against the petitioner and for demoralising the petitioner on the false allegations in the court and all these cases were decided in favour of the petitioner except the case u/s 125 Cr.P.C. 9. That the respondent is guilty of cruelty and there is reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. 10. That the petitioner has filed the petition on the ground of cruelty which is a ground for dissolution of marriage and the act of the respondent is wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental or as to give rise to reasonable application of such a character.” 7. False allegations against her husband's conduct and involving her husband in criminal complaints could themselves constitute mental cruelty. In this case, the reference to the criminal complaint has been dealt with through Ex.PX which shows no more than the fact that when the case came up for consideration before the Sub Divisional Magistrate, the wife was not even present and the father was present in the Court and had admitted that there was no dispute in the last four months. The Magistrate, therefore, had observed that he saw no reason to issue notice under Section 111 Cr.P.C. and terminated the proceedings. There is nowhere a finding by the Magistrate that the complaint was not genuine and it was deliberately made against her husband. Even the observation by the Additional District Judge in the civil revision against grant of interim maintenance was not on any finding independently recorded by the Magistrate but were repetitions of a report of a magistrate regarding his assessment of the situation. Even the observation by the Additional District Judge in the civil revision against grant of interim maintenance was not on any finding independently recorded by the Magistrate but were repetitions of a report of a magistrate regarding his assessment of the situation. The DSP, who had given report in the maintenance proceedings had not himself been examined before the Court in Section 125 Cr.P.C. proceedings nor even in the proceedings for divorce. The report therefore cannot constitute any evidence as proof of cruel conduct by the wife. There is no evidence placed before the Sub-Court regarding cruelty and, therefore, I cannot accept the finding that the wife was guilty of any cruelty against the husband. 8. The only other ground that has to be seen is whether there was a case made out for desertion and whether the wife had justifiable causes for her separate living. The fact of separation between the husband and the wife for more than two years is an admitted fact. It is also admitted that ever since the birth of the child, the husband and wife were not living together. The wife had resorted to an action for return of movables in the year 1990 and the justification by the wife was that the husband had stated that she had left the house on her own, taking back all the articles. The suit for recovery was, therefore, according to the contentions made by the counsel, only to vindicate her stand that she had not removed herself from the company of her husband willfully taking away all the articles. If the act of institution of suit was to stave off an insinuation against the wife that she had taken away all the movables from the house, then I would expect some evidence by the wife that notwithstanding her action for recovery of movables or their value through the civil court proceedings, she had no problems about resuming company with her husband. The respondent as RW2 had given her evidence that she was residing at Mansa since 1989 and her parents approached the petitioner and his parents several times but they refused to accommodate her. She has also expressed in her evidence that she had taken steps for realizing her maintenance by seeking the arrest of her husband but she was always ready to live with her husband without any condition. 9. She has also expressed in her evidence that she had taken steps for realizing her maintenance by seeking the arrest of her husband but she was always ready to live with her husband without any condition. 9. It was definitely brought out through evidence that there has been enough bad blood between the husband and the wife. There have been persistently litigation between them right from the year 1989. First, there had been a complaint at the instance of the wife's father against the husband for appropriate action under Section 109 and 115 Cr.P.C., later a suit for recovery of the movables, still later a petition for maintenance and a revision for enhancement and still later action for the arrest of the husband for recovery of the maintenance awarded by the Criminal Court. A child that was born has lived all along without having ever seen their parents living together under the same roof. I pondered over the question whether the wife could have taken an action for recovery of all the movables without accompanying in her mind an intent to stay away from her husband. If it was to be seen as a singular act unaccompanied by any other event, perhaps it may be possible to say that no wife wanting to go back to her husband, could have taken such a precipitate action for a decree for movables. It shall be seen in the context of how a wife stood deprived at all times even for obtaining a paltry maintenance of Rs.150/-for her and her child, she had perforce to apply for arrest for recovery of the amount. She was living at the mercy of her parents and brother and if she was filing a suit for recovery, it was in response to an imputation that she had left the house of her own removing all the articles from the house. I cannot take this as an instance of a wilful desertion. 10. For parties to remain away from each other for more than 20 years, there perhaps exists no redeeming feature for one spouse to see in the other. I am informed at the time of arguments that even the daughter has been given in marriage and that daughter has also a child born to her. 10. For parties to remain away from each other for more than 20 years, there perhaps exists no redeeming feature for one spouse to see in the other. I am informed at the time of arguments that even the daughter has been given in marriage and that daughter has also a child born to her. If parties cannot decide on dissolution of marriage on equal and dignified terms, the Court shall be loathe to force a dissolution only by the fact that the relationships between the parties have turned sore. The case has still to be decided only on the proof of allegations made by one party against the other. If I have rejected the case of cruelty of the wife on the husband, I would also reject the case of desertion by the wife on her husband. As I have observed above, the suit for recovery of movables must be seen in the context of other situations of how the wife had to file a petition for divorce under Section 125 Cr.P.C. and when she had not even recovered the amounts in full, she was filing the suit to secure at least the valuables which belonged to her. 11. While accepting the case of desertion, the trial Court has also held that the wife had not herself filed a petition for restitution of conjugal rights. It also took note of the fact that the husband had filed a petition for restitution but had it later dismissed as withdrawn. It will be wrong to make an adverse inference from the fact that the wife did not apply for restitution. The issue is whether there was a justification for her separate living. If there existed a justification when she complained that she had been unceremoniously turned out of the house and the husband did not care to take her back along with the child after it was born, it could not have been expected that the wife must have also filed a petition for restitution of conjugal rights. 12. Both as regards cruelty and desertion, therefore, I hold that the husband had not established his case and, therefore, the decree for divorce granted cannot stand. The decree is set aside and the appeal filed by the wife is allowed.