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2014 DIGILAW 141 (PNJ)

Ramesh Chand v. Salochna Devi

2014-01-17

NAVITA SINGH, S.S.SARON

body2014
JUDGMENT Mr. Navita Singh J.:- The present appeal has been filed against the judgment and decree dated 6.6.1994 passed by Additional District Judge, Kurukshetra, whereby the petition filed by the present appellant, seeking divorce, was dismissed. 2. The marriage between the parties was solemnised on 29.5.1983 at Village Pundri according to Hindu rites and ceremonies and the same was consummated. Three children were born to the parties. The respondent treated the petitioner with cruelty since the beginning. She was arrogant and was disrespectful towards the petitioner and his family members which resulted in mental cruelty due to which health of the petitioner was affected. He made efforts to make the respondent understand that her behaviour was not right but to no avail. She left the matrimonial home along with all the children on 16.9.1991 and also took jewellery and Rs.10,000 in cash with her. She left in the absence of the petitioner who was shocked when he returned home from work. He contacted the respondent but she refused to come back to him. 3. The petition was contested by the respondent – wife on the ground that the petitioner was estopped by his own act and conduct from filing the petition and he had suppressed the true facts. The marriage and birth of the children was admitted. It was, however, denied that any cruelty was meted out by the respondent to the petitioner (now appellant). Rather the latter was a greedy person and demanded money even after marriage. The respondent showed her helplessness to bring money from her parents for purchase of car on which she was turned out of the matrimonial home along with the children in 1991 and since then she was residing in the house of her parents. All the panchayats convened for reconciliation proved fruitless. The respondent was willing to live with her husband and she wanted the petition to be dismissed. 4. The following issues were settled between the parties by the Court below:- 1. Whether the respondent, after the solemnisation of her marriage with petitioner, teated him with cruelty? OPP 2. Whether the respondent has deserted the petitioner as alleged. If so its effect? OPP 3. Whether the petitioner has no locus standi to file the petition? OPR 4. Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPR 5. Relief. 5. OPP 2. Whether the respondent has deserted the petitioner as alleged. If so its effect? OPP 3. Whether the petitioner has no locus standi to file the petition? OPR 4. Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPR 5. Relief. 5. Learned counsel for the appellant argued that the trial Court did not appreciate the evidence in the right perspective and could not understand the magnitude of cruelty to which the appellant was subjected. He contended that the mother of the appellant died due to misbehaviour of the respondent and even the mental balance of the appellant was shaken due to the bad behaviour of his wife. He had filed a petition under Section 9 of the Hindu Marriage Act, 1955 whereas the wife had filed criminal cases against the petitioner and his family. It was further argued on behalf of the appellant that the latter was subjected to cruelty on account of filing of a criminal case by his wife against him and his family. Learned counsel argued that it was wrong on the part of the trial Court to take the filing of the complaint as a subsequent event and ignore it. 6. Learned counsel for the respondent, however, argued that the Court below rightly held that it was the wife who was subjected to cruelty which compelled her to file the criminal case. She had written a letter (Ex.R1) in 1990 to her father asking him to immediately send her brother to fetch her as it was not possible for her to remain in the matrimonial home. The Court even went to the extent of observing that the letter bore the postal stamp dated 31.8.1990 and the name of the place Pundri was also legible showing that it was posted from there. It was argued that there was some patch up between the parties but the behaviour of the appellant and his family members did not change and ultimately, the respondent left the matrimonial home in September, 1991. 7. It may also be pointed out that though learned counsel for the appellant argued that the latter had filed a petition for restitution of conjugal rights, the same did not find mention in the petition. 7. It may also be pointed out that though learned counsel for the appellant argued that the latter had filed a petition for restitution of conjugal rights, the same did not find mention in the petition. There is nothing to show that any such decree was passed in favour of the appellant and that despite the same, the respondent did not join his company nor it is anywhere shown whether the petition was withdrawn. Learned counsel for the appellant mentioned about such petition with a view to show that the husband had seriously wanted the wife to live with him. It has come on record that the appellant filed a petition (Ex.R3) for custody of the children who, at that time, were with the respondent but the petition was dismissed as withdrawn on 9.2.1994. Copy of order is Ex.R2. It, therefore, appears that the appellant was filing different kinds of petitions just to create evidence on the point that the wife was cruel to him. Unfortunately for him, he could not succeed in his motive. 8. So far as the filing of the criminal case by the wife is concerned, the trial Court has rightly held that the same was filed later on and it could not be taken to be an act of cruelty which happened before the petition for divorce was filed. Even otherwise, there is evidence on the part of the respondent, oral and documentary, to show that she was subjected to torture in the matrimonial home as she wrote to her father that she wanted to leave the place of her in-laws as soon as possible. Since she was unable to live in the matrimonial home due to the cruel treatment which he had undergone, filing of the criminal case by her could not be said to be intentional and to torture the husband and his family. She took recourse to law because she had a right to do so and the circumstances compelled her. 9. There is evidence that panchayats were held by the father of the respondent to settle the matter and persuade the appellant to keep the respondent properly in the matrimonial home but the efforts failed as she was not kept properly. 10. She took recourse to law because she had a right to do so and the circumstances compelled her. 9. There is evidence that panchayats were held by the father of the respondent to settle the matter and persuade the appellant to keep the respondent properly in the matrimonial home but the efforts failed as she was not kept properly. 10. There is one compromise on the file which was probably not intentionally got exhibited by the appellant as it shows that the father of the appellant had undertaken that it would be his responsibility that the respondent was kept properly in the matrimonial home and provided with some money, medicines and place to live and other day-to-day needs. It is clear that such conditions had to be written out because the wife was not treated properly in the matrimonial home. 11. The appellant also tried to create evidence that his mother passed away as she was shocked at the behaviour of the respondent and could not bear the same. However, he was not able to prove that his mother had fallen ill or died on account of any such thing. It was also argued on behalf of the appellant that his mental balance was disturbed due to the misbehaviour of his wife but there was no medical evidence on that account also. His father appeared in the witness box as PW2 and stated that his son had never fallen ill except for some routine sickness and nowhere stated that there was any effect on the mind of his son due to the behaviour of his daughter-in-law and that the mental balance of his son was disturbed. The appellant also never remained on medical leave as was observed by the trial Court. Even otherwise, such argument without any pleadings or proof will not be sustainable. 12. So far as the will on the part of the respondent to live with the husband is concerned, there is evidence that her father had made several efforts to settle her down peacefully in married life but it was not possible due to the cruel behaviour of her husband and in-laws. Rather the appellant appearing as PW1 stated that though his wife was ready to live with him, he was not prepared to keep her. Rather the appellant appearing as PW1 stated that though his wife was ready to live with him, he was not prepared to keep her. The admission of the husband showed that the wife was willing to live with him despite whatever she had faced as she wanted to save the marriage but the appellant was adamant on getting a divorce. 13. For getting the marriage dissolved, the petitioner was required to prove the grounds taken by him regarding cruelty and desertion. Rather it was the respondent, who was able to prove that she was compelled to leave the matrimonial home because of the ill treatment meted out to her and in spite of that many efforts were made to reconcile but on different occasions when she went back to live with her husband, things did not improve and ultimately she left the matrimonial home in September, 1991. It has come in evidence that the respondent was asked to bring more dowry and was treated cruelly on account of that and for other reasons. The witnesses produced by the respondent inspired confidence whereas evidence led by the appellant showed that he was not able to prove this case. The appellant also tried to create evidence by showing that various panchayats were taken by them to bring the wife back but he, appearing as PW1, contradicted his father (PW2) because he himself stated that Panchayats had been taken thrice to the house of respondent Salochna Devi whereas his father stated that panchayat was taken only once. They also did not see eye to eye with each other regarding how they went to the house of the respondent and whether the appellant was present in all the panchayats as stated by him. One of the witnesses Joginder Singh, produced by the appellant as PW3 rather went ahead in certain matters regarding the behaviour of the respondent and stated things which the petitioner and his father had not said anything about. The trial Court rightly discussed this aspect and disbelieved the testimony of the appellant and his witnesses. 14. One of the witnesses Joginder Singh, produced by the appellant as PW3 rather went ahead in certain matters regarding the behaviour of the respondent and stated things which the petitioner and his father had not said anything about. The trial Court rightly discussed this aspect and disbelieved the testimony of the appellant and his witnesses. 14. Learned counsel for the appellant relied on the authority reported as Satish Sitole v. Ganga, [2008(5) Law Herald (SC) 3176] : (2008) 7 Supreme Court Cases 734, in which it was held by Hon’ble the Supreme Court that attempts made for reconciliation had failed and it would be in the interest of both the parties to sever the matrimonial ties since the marriage had broken down irretrievably. The marriage was dead for all practical purposes and if it was allowed to continue, that would itself amount to cruelty. Learned counsel argued that though generally irretrievable breakdown of marriage is not a ground for divorce, yet in certain compelling circumstances, the marriage could be dissolved for that reason. The said authority, however, will not be of any help to the appellant here because the marriage was dissolved in that case by Hon’ble the Supreme Court, exercising its power under Article 142 of the Constitution of India. We have no such power to grant divorce under the said article. 15. Reliance was then placed by learned counsel for the appellant on the authority reported as K. Srinivas Rao v. D.A. Deepa Kesri, [2013(2) Law Herald (SC) 1065 : 2013(2) Marriage L.J. 122 (SC)] : (2013) 5 Supreme Court Cases 226, where Hon’ble the Supreme Court defined mental cruelty stating that false complaint/ criminal proceedings and any indecent or defamatory statement made in the complaint amounted to cruelty specially if the criminal proceedings were pursued in the higher forums despite acquittal. In the present case, however, it is explained by the respondent as to under what circumstances she had filed the criminal case and she was subjected to such cruelty that she had to leave the matrimonial home. In the present case, however, it is explained by the respondent as to under what circumstances she had filed the criminal case and she was subjected to such cruelty that she had to leave the matrimonial home. It may be mentioned at the cost of repetition that there was no mention of the criminal case in the petition and it was rightly held by the Court below that the same was a subsequent event and the appellant could not show that he had any knowledge before the filing of the petition that any such case had been filed or was being contemplated by his wife. Also at the relevant time, chargesheet in the Court had not been filed against the husband and any other member of his family as was observed by the trial court at the time of passing of the judgment. 16. The impugned judgment is well reasoned and calls no interference. The judgment and decree are upheld and appeal is dismissed.