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2014 DIGILAW 1618 (PNJ)

Anil Kumar v. Priyanka Devi

2014-11-25

AJAY KUMAR MITTAL, SNEH PRASHAR

body2014
Sneh Prashar, J. 1. This appeal under Section 28 of the Hindu Marriage Act, 1955 (in short, "the Act") by Anil Kumar appellant assails the judgment and decree dated 05.12.2013 passed by the learned District Judge, Hoshiarpur vide which H.M. Act Case No. 157 dated 27.09.2012 filed by him was dismissed. The relevant facts which need to be recaptulated are as under: Appellant-Anil Kumar was married to respondent-Priyanka Devi on 01.07.2007 according to Hindu rites and ceremonies at Laxmi Narayan Mandir, Talwara. They cohabited as husband and wife but no child was born out of the wedlock. The appellant pleaded that their matrimonial life remained normal till October, 2007 though at times there used to be some bickering and quarrels. The attitude of respondent-Priyanka Devi towards him and his family members was careless and insulting. He kept ignoring all the shortcomings to maintain peace in the family but then day by day her behavior became more cruel and harsh towards him. She abused him in front of his friends and family members on trivial matters and refused to cook meals etc. for him. Under compulsion he had to go to some Hotel/Dhaba for taking meals. He worked as a casual labourer and handed over his entire monthly income to her for domestic expenditure and also treated her with love and dignity but she was not satisfied and always used abusive and harsh language towards him. In February, 2008, the respondent started saying that she was fed up of him and wanted to marry some army personnel or some person who was in Government job. Apart from calling him rustic, she often proclaimed that he was impotent. She remained busy in telephonic conversation with some male friends and when he objected she shouted on him and threatened to commit suicide to put him and his family members behind the bars. His marital life was totally shattered. The appellant alleged that on 19.06.2008, in his absence the respondent left her matrimonial home without any reasonable cause and went to her parental house at Talwara. On the very next day he went to bring her back but she flatly refused to return, saying that she was unable to live with him. His marital life was totally shattered. The appellant alleged that on 19.06.2008, in his absence the respondent left her matrimonial home without any reasonable cause and went to her parental house at Talwara. On the very next day he went to bring her back but she flatly refused to return, saying that she was unable to live with him. Alleging that the respondent had treated him with utmost cruelty and had also deserted him without any rhyme or reason for the last more than 4 years and because of her insultive attitude his parents had disowned him vide publication dated 13.05.2009 that appeared Daily Ajit Newspaper and further that it was now difficult for him to live with the respondent, the appellant prayed for a decree of divorce dissolving their marriage. 2. The respondent contested the petition. In the written statement filed by her preliminary objections with regard to maintainability of the petition; concealment of true and material facts by the appellant etc. were raised. She pleaded that appellant himself was guilty of cruelty and desertion and could not be allowed to take advantage of his own wrongs. She is a 'Rajput' by caste and prior to marriage the appellant represented to her that he was a 'Brahmin', whereas he was actually 'Adharmi' by caste. They had a love affair and after lot of persuasion of her parents she was able to marry him. Her parents spent huge amount on the marriage and gave sufficient dowry. After marriage she realized that the appellant had developed love affair with her in a clandestine manner by hatching conspiracy for satisfying his ego to marry a girl of upper caste. He started assaulting her physically and also levelled allegation on her character. Because she had herself pressurized her parents for the nuptial tie, she kept bearing the atrocities of the appellant, his mother and brother hoping that some day better sense might prevail on them. The respondent further alleged that the appellant was running a Studio of photographer in the name of Smile Studio, and was earning ` 32,000/- to 35,000/- per month during peak season, but his over all monthly income in average was ` 7,000/- to ` 8,000/- per month. He never paid her required expenses and behaved in a very rude and harsh manner. In June, 2008 she came to her parental home. He never paid her required expenses and behaved in a very rude and harsh manner. In June, 2008 she came to her parental home. On the asking of the appellant she agreed to stay there as the appellant assured that he would keep visiting her. The arrangement continued upto January, 2012 but as thereafter the appellant started misbehaving with her and also assaulted her father and brother, she offered to cohabit with him separately in a rented accommodation. In March, 2012 they took a house on rent and lived in the same but the appellant left her alone and deserted her without any rhyme or reason. Submitting that they cohabited together uptill 28.08.2012 and not until June, 2008 as claimed by the appellant and that the appellant was trying to defame her and had himself been guilty of cruelty and desertion, the respondent prayed for dismissal of the petition. On the pleadings of the parties following issues were settled by learned trial court: 1. Whether respondent treated the petitioner with cruelty as alleged. If so, its effect? OPP 2. Whether respondent had deserted petitioner without sufficient cause since from 19.06.2008 as alleged. If so, its effect? OPP 3. Whether petitioner has not approached the court with clean hands. If so, its effect? OPP. 4. Relief. Both the parties adduced evidence in support of their respective contentions. 3. We have heard Mr. Avinash Mandla, Advocate representing the appellant and have gone through the material available on record. 4. Admittedly, the appellant and the respondent belong to different communities and the nuptial tie between them was an out come of a love affair. There may have been initial resistance on part of the parents but subsequently the families agreed and the marriage was solemnized as an arranged marriage. According to the appellant he and the respondent lived together up till 19.06.2008 i.e. the date on which he alleged the respondent walked out of the matrimonial home in his absence and without any reasonable cause. According to the appellant he and the respondent lived together up till 19.06.2008 i.e. the date on which he alleged the respondent walked out of the matrimonial home in his absence and without any reasonable cause. This petition for dissolution of his marriage with the respondent was filed by him on two grounds: (i) that he had been treated with cruelty at the hands of the respondent; (ii) that he had been deserted by the respondent; because ever since 19.06.2008 she had been residing at her parental home and despite all efforts made by him to bring her back to the matrimonial home she had flatly refused to join his conjugal company. 5. Elaborating his allegation of cruelty learned counsel for the appellant contended that the attitude of the respondent towards the appellant and his family members was careless, harsh and insulting. She abused him in the presence of his friends and family members and refused to cook meals etc. for him. It was also contended by him that the respondent used to call him rustic and levelled allegation that he was impotent. She very often remained busy in telephonic conversation with some male friend and when he objected she got enraged and threatened to commit suicide to put him and his family members behind the bars. Another factum stated by the appellant was that because of cruel behavior of the respondent his parents have disowned him vide publication dated 13.05.2009 given in Daily Ajit Newspaper. 6. To substantiate his allegations the appellant stepped into the witness box as AW-2 and examined his brother A.W. 1 Tilak Raj and a family friend A.W. 3 Sansar Chand. Learned counsel for the appellant argued that since respondent was a housewife her refusal to perform household chores and cook meals for the family and above that insult the husband in the presence of relations and guests amounted to cruelty towards the husband as her behavior caused severe mental tension to the appellant. The habit of giving threatening to commit suicide and implicate the appellant and his family in criminal cases of dowry was also a form of cruelty towards the appellant. Learned counsel further contended that the respondent lived with the appellant only up to 19.06.2008 and ever since then she is residing at her parental home and has never bothered to enquire about the welfare of the appellant and his family. Learned counsel further contended that the respondent lived with the appellant only up to 19.06.2008 and ever since then she is residing at her parental home and has never bothered to enquire about the welfare of the appellant and his family. Her living away from the husband for such long period not only amounted to desertion of the husband but also was an act of cruelty towards him. 7. The term 'cruelty' has not been defined under the Act. A definition of the 'cruelty' is also not possible because in matrimonial relationship the question whether the husband is cruel to the wife or the wife is cruel to the husband has to be ascertained and adjudged by taking into account the entire facts and circumstances of that particular case and there can be no predetermined rigid formula for the same. 'Cruelty' is such conduct of a spouse which is something more than ordinary wear and tear of married life. It should be such that it embitters relationship and makes it difficult for the spouse complaining to live with the other spouse under the same roof. In nutshell there have to be some specific incidents which had left impact on the mind of the complaining spouse. In other words the outbursts or behavior of a spouse had created embitterness in relationship to the extent that it was no longer possible for the parties to live together without mental agony and pain. 8. In the case in hand, as observed above, all the allegations of the appellant against the respondent were vague and general in nature. Not a single specific incident was narrated by him which could be termed as an act of 'cruelty' on part of the respondent. So much so, the appellant neither in his pleadings nor during his deposition spelt out a word to indicate the kind of abusive language allegedly used by the respondent towards him or his family members. A.W. 1 Tilak Raj, brother of the appellant, although stated that the respondent used to threaten her husband (appellant) to implicate him and his entire family in a dowry case or in some other criminal case but it was not his deposition that the respondent used to abuse the appellant in presence of others. A.W. 1 Tilak Raj, brother of the appellant, although stated that the respondent used to threaten her husband (appellant) to implicate him and his entire family in a dowry case or in some other criminal case but it was not his deposition that the respondent used to abuse the appellant in presence of others. Similarly, A.W.-3 Sansar Chand examined by the appellant, though a family friend, neither stated that the respondent used to speak abusive language nor that she had ever intimidated or threatened the appellant in his presence. 9. It was further the allegation of the appellant that the respondent often proclaimed that he was an impotent person of low caste but, he did not state the date, month or year or the incident during which she levelled such an allegation on him. The statement of A.W. 1 Tilak Raj brother of appellant, is silent on this aspect. A.W. 3 Sansar Chand also did not corroborate the said allegation. No person either from the family or out of neighbours or friends was named by the appellant in the presence, of whom the respondent had called him impotent or had hurled abuses on him. 10. A.W. 3 Sansar Chand testified during cross-examination that some times when he visited the house of the parties he found them quarreling. He could not recollect the date, month or year when he had seen them quarreling. He also could not state the reason for the quarrel. As already observed above, his statement is silent on the fact that the respondent had ever threatened the appellant to implicate him and his family members in some criminal case. Such threatening could only have been given during quarrel and had he witnessed quarrel between the parties he would have been in a position to state about the threatening also. Since it was not his version that the respondent had ever abused or threatened the appellant, it can be said without hesitation that he hardly had knowledge about the cause of dispute between the parties and appeared to be only a procured witness. 11. As far as A.W. 1 Tilak Raj, is concerned, he being real brother of the appellant was naturally biased towards the respondent. 11. As far as A.W. 1 Tilak Raj, is concerned, he being real brother of the appellant was naturally biased towards the respondent. More so, while it was the version of the appellant that in 2011 efforts were made to resolve the marital dispute between him and the respondent, A.W. 1 Tilak Raj stated that no efforts were ever made by him or by his parents to bring back the respondent to her matrimonial home. The appellant deposed that the respondent threatened to kill him almost daily but it was not so stated by A.W. 1 Tilak Raj. In that manner the evidence led by the appellant was not consistent. 12. On the contrary, it is rather the conduct of the appellant which was apparently offensive towards the respondent. He pleaded and deposed that the respondent often remained busy talking to some male friends on telephone. No male friend of the respondent could be named by him. He did not even mention the telephone numbers on which the respondent used to call. Had there been even slight truth in the allegation it would not have been difficult for the appellant to trace the name and number of the persons with whom the respondent allegedly used to chat on telephone. Apparently the allegation of the appellant is baseless. When the appellant could go to the extent of leveling false allegation on the character of the respondent, it can be said without two thoughts that there was hardly any truth in the other allegations also which related to general behavior of the respondent. 13. That was not the end of the matter. According to the appellant, the respondent left the matrimonial home on 19.06.2008 and did not return thereafter. But the version of the respondent was that she and her husband lived together uptill 28.08.2012. On this issue learned trial court observed that the respondent had tendered in evidence copy of complaint filed by her under Section 12 of Protection of Women From Domestic Violence Act Ex. A-4. In the said complaint she had mentioned, as has been pleaded in the present case, that owing to scarcity of space in the house of appellant a settlement took place between them according to which she was asked to stay at her parental home, where the appellant agreed to cohabit with her. A-4. In the said complaint she had mentioned, as has been pleaded in the present case, that owing to scarcity of space in the house of appellant a settlement took place between them according to which she was asked to stay at her parental home, where the appellant agreed to cohabit with her. They lived at her parental home up to January, 2012, but as the appellant started physically assaulting her, and her father, brother etc. the dispute was taken to the police before whom a compromise was arrived at and in compliance of the same she and her husband took on rent a house near Shri Pander Mandir, Talwara in February/March 2012. They lived together for three months in the rented house but thereafter the appellant left her and started living in Village Haler alongwith his parents and brother. The appellant, his brother and mother filed a joint written reply i.e. Ex. A6 to the said petition. 14. Indeed, the complaint Ex. A4 invoking the provisions of Protection of Women From Domestic Violence Act was filed by the respondent after receipt of summons in the present petition filed by the appellant but her stand in the complaint as well as in the present case remained consistent whereas the appellant concealed and distorted the facts as per his choice. In the instant petition, he alleged that his parents had disowned him by way of a publication in a newspaper on 13.05.2009, whereas he, his brother Tilak Raj and mother Smt. Sewa Devi filed a joint written reply i.e. Ex. A6 to the petition filed by the respondent. Their having taken joint defence proved that the publication of disowning the appellant by the parents was only a camouflage and an attempt to create evidence to counter the allegation of the respondent. Assessing the credibility of Tilak Raj brother of the appellant, who appeared in the present petition as A.W. 1 learned trial court observed that he expressed ignorance as to the place where his brother Anil Kumar-appellant was residing. He also stated that he had no concern with his brother but in the next breath he admitted that he had met his brother for 5-10 minutes a day prior to the date on which he had stepped into the witness box i.e. 22.04.2013. He also admitted that he had met his brother 10-15 days prior to recording of his cross-examination. He also admitted that he had met his brother 10-15 days prior to recording of his cross-examination. Admittedly, he was not a summoned witness which means he had appeared in the witness box on the asking of his brother Anil Kumar (appellant). Had it been true that he had no concern with the brother and did not even know where he was residing, there was no occasion for him to appear as his witness to support his cause. Replying to the suggestion that the parties cohabited in a rented house together at Shri Pander, Talwara up to August, 2012, A.W. 3 Sansar Chand stated that the said fact was not known to him. In other words, he did not deny that the parties lived together upto August, 2012. Thus, from the testimony of both A.W. 1 and A.W. 3 since the former concealed the facts and the latter did not deny, it stands proved that the parties lived together upto August, 2012 and it was wrongly pleaded by the appellant that the respondent was residing separately from him since 19.06.2008. There appears to be no adversity or illegality in the findings of learned trial court. Seen from all angles, it is proved that the appellant had nothing but bundle of false facts put forth to plead that he had been treated with cruelty by the respondent or had been deserted by her. He failed to prove his allegations and there is no reason for intervention in the findings of learned trial Court. Therefore, instant appeal being devoid of merit is hereby dismissed. C.M. No. 26170-CII of 2014 As discussed above, there is no merit in the appeal filed by the appellant. In addition to that, it is observed that the appeal was filed after 250 days of expiry of limitation period. The appellant failed to explain some sufficient cause worth consideration in his application filed under Section 5 of the Limitation Act for condonation of delay. Thus, there being no justifiable ground to condone the delay the application is dismissed.