Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1210 (HP)

Rajeev Gupta v. Nandni Gupta

2014-09-06

TARLOK SINGH CHAUHAN

body2014
Judgment : Tarlok Singh Chauhan, Judge. This appeal has been preferred, under section 28 of Hindu Marriage Act, against the order dated 18.9.2013 passed by the learned District Judge (Forests), Shimla in HMA Petition No. 20-S/3 of 2013/12 in case titled Rajeev Gupta vs. Smt. Nandni Gupta, whereby he dismissed the petition preferred, under section 13 of the Hindu Marriage Act against the respondent for dissolution of marriage by decree of divorce. 2. The facts of the case are that parties are Hindu and marriage between them parties was solemnized on 7.3.2002 as per Hindu rites. The parties cohabited together and two children were born out this wedlock. It is averred that after solemnization of marriage, the petitioner had discharged his matrimonial duties and obligations with utmost care and caution, but the respondent’s behaviour and attitude with the petitioner and his parents was not cordial. It has also been pleaded that petitioner has to maintain his aged ailing parents and petitioner tried his level best to adjust with the indifferent behaviour of the respondent but to no avail. The respondent wanted to live separately from the parents of the petitioner for which the petitioner never agreed and, therefore, the respondent left the matrimonial house many times without informing the petitioner and presently the respondent is living alone in a separate room of the petitioner’s house and not performing her matrimonial obligations as a wife. It is also averred that respondents used to insult the petitioner in presence of his friends, relatives as well as his family members and it was difficult for the petitioner to call his friends or relatives to his house due to the fear of being insulted at the hands of the respondent. The respondent also threatened the petitioner to involve him in false cases under Section 498(A) of IPC and Domestic Violence Act and under other provisions of law. It is further averred that the petitioner is having good status and enjoys good reputation, but due to the acts of the respondent, reputation of the family of the petitioner was lowered in the society. As per the petitioner, the parties are living separately since 15.11.2011 and the respondent is not fulfilling her matrimonial obligations towards the petitioner and had completely deserted him for a continuous period of more than two years without any reasonable cause, hence this petition. 3. As per the petitioner, the parties are living separately since 15.11.2011 and the respondent is not fulfilling her matrimonial obligations towards the petitioner and had completely deserted him for a continuous period of more than two years without any reasonable cause, hence this petition. 3. The respondent was served, but she did not put in appearance in the court below and was proceeded ex parte. 4. The petitioner led ex-parte evidence before the learned courts below. The learned court below on the basis of the pleadings and evidence held that on the scrutiny of the testimony of the petitioner and his witnesses, it could not be said that the petitioner was treated with cruelty or that there was desertion. The allegations were general in nature and not proved by leading cogent, reliable and trustworthy evidence and therefore, no ground for grant of decree of divorce on the grounds of cruelty and desertion was made out and consequently dismissed the petition. 5. The petitioner has questioned the findings recorded by the learned court below on the ground that respondent had left the company of the petitioner without any reasonable cause leaving behind two children in the company of the petitioner, which in itself amounts to cruelty on the part of the respondent. It is further claimed that the court below had not appreciated the evidence of PW 2 and PW 3 whereby they had specifically stated that whenever they visited the house of the petitioner, respondent treated the petitioner with cruelty. It was further claimed that respondent had always insulted the old aged ailing parents of the petitioner and had also insulted the petitioner and his other relatives on number of occasions. 6. I have heard Sh. Imran Khan, learned counsel for the petitioner and Sh. B.C. Verma, learned counsel for the respondent. 7. At the outset, it is relevant to point out that petitions under the Hindu Marriage Act are required to be drafted and framed in accordance with the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982. Sub-rule (g) of Rule 5 thereof reads as under:- “5. Contents of the petition.- In addition to the particulars required to be given under Order VII, Rule 1 of the Code and section 20(1) of the Act, all petitions under sections 9 to 14 of the Act shall state:- “(a) to (f) …. …. …. …. Sub-rule (g) of Rule 5 thereof reads as under:- “5. Contents of the petition.- In addition to the particulars required to be given under Order VII, Rule 1 of the Code and section 20(1) of the Act, all petitions under sections 9 to 14 of the Act shall state:- “(a) to (f) …. …. …. …. (g) (iv) in the case of cruelty the specific acts of cruelty and the occasion when and the place where such acts were committed and that the petitioner has not in any manner condoned such acts of the respondent.” 8. Now in case the contents of the petition are seen, it would clearly show that no specific instances of cruelty have been given. The petitioner has not even set forth generally what to talk specifically or with sufficient particulars, the time and place of the acts of the alleged cruelty. The petitioner was required to specify specific acts of cruelty and the occasion when and the place where such acts were committed. 9. Now adverting to the oral and documentary evidence, it would be seen that the petitioner appeared as PW 1 and testified and supported the pleadings made in the petition and also filed a copy of notice Ex. PW 1/A. 10. PW 2 Hira Singh Thakur has testified that he was working as conductor in the bus of petitioner and used to visit his house. He further testified that whenever he visited the house of the petitioner, he always saw the petitioner and the respondent quarreling with each other. He also testified that respondent did not live in the house and when she was at her parental house, he had gone to call her back, but she refused to do so. 11. PW 3 Kamal Dev Sharma testified that the behaviour of the respondent was not good and was quarrelsome and the respondent could be seen frequently quarreling with the petitioner. The respondent used to go to her parental house of her own and when he had gone to call her, she had refused to come back and said that she had come of her own and would not go back to the petitioner’s house. 12. The allegations regarding cruelty and desertion are far too general in nature and are absolutely vague and do not comply with the requirements of the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982. 13. 12. The allegations regarding cruelty and desertion are far too general in nature and are absolutely vague and do not comply with the requirements of the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982. 13. This court in Parvati vs. Shiv Ram and another 1988 (2) Sim.L.C. 204 while construing the aforesaid rules, observed as under:- “7. This Court has framed the 'Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982' in exercise of powers under sections 14 and 21 of the Act Rule 5, which deals with the contents of the petition, says that in addition to the particulars required to be given under Order VII, Rule 1 of the Code of Civil Procedure and section 20 (i) of the Act, in a petition for divorce on the ground of adulterous sexual intercourse with any other person other than the spouse, the petitioner shall, amongst other things, mention the name, occupation and place of residence of such person or persons so far as they can be ascertained, the specific act of sexual intercourse and the occasion when and the place where such acts were committed ; in the case of desertion it shall state the date and circumstances in which it began ; and in the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed Rule 7 casts an obligation upon the petitioner to implead the alleged adulterer as a co-respondent. 8. Coming to the present case, the pleadings in paragraph 4 of the petition, of which the material part has been noticed earlier, is absolutely vague and does not comply with the requirement of the aforesaid Rule.” 14. Quite apart the rules aforesaid, the judicial opinion of the country also points to the view that the pleadings should be clear and specific especially when it relate to serious charges of cruelty and desertion, which casts aspersion on the character of the spouse and thereby affects the reputation of such spouse in the society. In such circumstances, it is incumbent upon the petitioner to set out clear and specific instances of cruelty and desertion so as to enable the spouse against whom the charges are made to be aware of precise allegations so as to enable her to effectively answer the same. In such circumstances, it is incumbent upon the petitioner to set out clear and specific instances of cruelty and desertion so as to enable the spouse against whom the charges are made to be aware of precise allegations so as to enable her to effectively answer the same. In case the charge is vague without furnishing the requisite particulars and other details, it would not be possible for the spouse to do so. 15. Like the ground of adultery, the pleadings with regard to cruelty and desertion also have to be specific in nature as envisaged by rule-5 (supra). This court in Parvati’s case (supra) has succinctly explained the position in law in the following manner:- “12. Like the ground of adultery, the pleadings in regard to desertion and cruelty also have to be specific in nature as envisaged by Rule 5 mentioned earlier. Desertion in essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. Heavy burden lies upon a petitioner who seeks divorce on the ground of desertion. The offence of desertion must be proved beyond any reasonable doubt. The proof required in a matrimonial case has been equated by the Supreme Court to that in a criminal case. See Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 Lachman Utamchand Kripalani v. Meena alias Mota, AIR 1964 SC 40 . The necessity of proper pleadings, in the context of the nature of the proof required, cannot be over emphasised. 13. Acts of "cruelty" have to be specifically pleaded. In absence of such pleadings it would be impossible for the answering spouse to effectively meet the allegations. If specific allegations are not made with sufficient details no amount of evidence can cure the defect for it cannot be looked into. See Smt. Maya v. Brij Nath, AIR 1982 Del 240 ; Om Parkash v. Smt. Rajni, AIR 1988 Del 107 . The cruelty as a ground for divorce contemplated in section 13(1) (i-a) is a conduct of such nature that the petitioner cannot reasonably be expected to live with the respondent. See Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe, AIR 1984 Bom 413 (FB); Varinder v. Major Ranjit Singh, ILR 1985 HP 807. 14. The cruelty as a ground for divorce contemplated in section 13(1) (i-a) is a conduct of such nature that the petitioner cannot reasonably be expected to live with the respondent. See Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe, AIR 1984 Bom 413 (FB); Varinder v. Major Ranjit Singh, ILR 1985 HP 807. 14. If the grant of a decree of divorce on the ground of cruelty depends upon a conclusion of this nature, it is obvious that the pleadings in that regard should be clear 'and specific so that the answering spouse may be in a position to meet the case of the petitioner.” 16. The learned counsel for the petitioner would then contend that he had led sufficient evidence, which entitled him to decree of divorce. Suffice it to say that once the petitioner has not laid any foundation in his pleadings for the grant of decree of divorce in accordance with law, any amount of evidence would therefore not help the petitioner for getting a decree of divorce. 17. The petitioner while appearing as a witness has testified that the respondent was threatening to involve him in a false case. He further testified that on 2.11.2007 a male child was born and thereafter she had left her matrimonial home on 15.11.2007. While PW 2 and PW 3 have only testified that behaviour of the respondent was quarrelsome and that she would quarrel on petty matters and lastly have stated that respondent was residing with her parents and had refused to join the company of the petitioner when they had gone to call her. This fact is otherwise not stated by the petitioner in the petition. Moreover, PW 2 and PW 3 have not proved on record the conduct and behaviour of the respondent to be such whereby it can be concluded that it was impossible to live with her or the marriage had irretrievable broken. 18. The learned counsel for the petitioner would then rely upon the judgement of the Hon’ble Supreme Court in Pankaj Mahajan vs. Dimple (2011) 12 SCC 1 , whereby the Hon’ble Supreme Court had reproduced the instances of cruelty pleaded in that case as under:- “(i) Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace. (ii) Pushing the appellant from the staircase resulting into fracture of his right forearm. (ii) Pushing the appellant from the staircase resulting into fracture of his right forearm. (iii) Slapping the appellant and assaulting him. (iv) Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him. (v) Not attending to household chores and not even making food for the appellant, leaving him to fend for himself. (vi) Not taking care of the baby. vii. Insulting the parents of the appellant and misbehaving with them. (viii) Forcing the appellant to live separately from his parents. (ix) Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises. (x) Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant. (xi) Always quarreling with the appellant and abusing him. (xii) Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant. “ 19. The aforesaid judgement is of no assistance to the petitioner because in the aforesaid case detailed allegations had been set out in the pleadings which were then proved by leading clear and cogent evidence. While in the present case not only the allegations are far too general in nature but there is otherwise total lack of evidence in support thereof. 20. Now in so far as the plea of desertion is concerned, the petitioner was required to prove that he was deserted by the respondent for a continuous period of not less than two years immediately preceding the presentation of the petition. The petitioner has pleaded and testified in the witness box that the respondent left his house on 15.11.2011. When the petition is seen, it is clear that same was filed on 18.7.2012 and hence the same has not been filed after the statutory period of two years. Therefore, the petitioner is not entitled to divorce even on this ground. 21. In view of the detailed discussion above, I find no infirmity with the judgement passed by the learned court below and accordingly the present appeal is dismissed, leaving the parties to bear their own costs.