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2015 DIGILAW 1747 (PNJ)

Sanjeev Kumar Chugh v. Anjili

2015-09-18

NAVITA SINGH, RAJIVE BHALLA

body2015
JUDGMENT : Navita Singh, J. This appeal is preferred against the judgment and decree dated 02.12.2004 passed by Additional District Judge, Jalandhar, dismissing the petition filed by the appellant under Section 13 of Hindu Marriage Act (Act for short). 2. The marriage between the parties was solemnized on 17.05.1997 and one child was born on 21.02.1999. It was alleged that the respondent was completely under the influence of her mother and immediately after the marriage she started visiting her mother every day. She was working in State Bank of India and before returning to the matrimonial home after duty, she would first go to and visit her mother. She remained in the house of the appellant for a short period but during that time she made his life hell. She kept pestering the appellant. The appellant lived separately from his parents. However, he could not accede to her request as he was the only son and there was sufficient accommodation in their house. The respondent was disobedient, disrespectful and abusive towards the appellant and his parents in routine and also in presence of his relatives. On many occasions, she left the matrimonial home and started living with her mother and would come and go according to her whims. Finally, she deserted the appellant on 24.08.1998. He made efforts to bring her back, but to no avail. 3. The respondent did not attend the marriage of the sister of the appellant and the child was also born while she was living with her mother. When the appellant and his parents went to meet her in the hospital where she delivered the child, they asked her to accompany them on discharge from the hospital, but she refused. 4. The appellant moved the Association for Social Health in India, Jalandhar to persuade the respondent to join him. She appeared only once over there. Ultimately the Association made an observation regarding her attitude on 26.04.1999. The appellant had filed the petition under Section 9 of the Act during which the matter was referred to the Lok Adalat. On 03.03.2001, the Lok Adalat directed the respondent to accompany the appellant to the matrimonial home. He took his wife and child directly to his house from the Court on his scooter. The respondent asked him to stop near Nakodar Chowk and said that she did not want to go with him. On 03.03.2001, the Lok Adalat directed the respondent to accompany the appellant to the matrimonial home. He took his wife and child directly to his house from the Court on his scooter. The respondent asked him to stop near Nakodar Chowk and said that she did not want to go with him. The appellant turned his scooter and when he reached near Friends Bakery, the respondent threatened to jump from the scooter. He stopped the vehicle. He was assaulted by the brother and uncle of the respondent, who were accompanied by two other persons. They took the respondent and the child with them. The appellant was medico legally examined and a DDR was entered in Police Station Division No. 4, Jalandhar. A news item in that effect was also published in Daily Jagran on 04.03.2001. 5. The respondent contested the petition tooth and nail accusing the appellant of concealment of material facts. She specifically denied all the allegations made by him. She totally denied that she was under the influence of her mother or that she had lowered the prestige of her husband and/or her in-laws at any time. She did not attend the marriage of her sister-in-law as she was in the family way and even the child was born prematurely and had to be kept in an incubator. It was admitted that the appellant and his parents had gone to the Nursing Home to see the child, but there was no request from their side regarding the respondent and the child going back to the house of the appellant. Rather no such attempt was made at any time. She said that the appellant had no intention to rehabilitate her, though she was ready to go with him. On 03.03.2001 after appearing in the Lok Adalat, the respondent had not taken her along and she had reported the fact to the court. The incident of 03.03.2001 as alleged by the appellant was also denied. 6. To prove his case, the appellant appeared as PW1 and examined Sarla Chugh, Ram Pal Monga, Parminder Barri, Neeraj Sharma, H.C. Subhash Chander and Dr. Gurpal Singh as PW2 to PW7 respectively. The respondent appeared as RW1 and examined Varinder Kumar Nagpal as RW2 and Rajnish Kumar as RW3. 7. 6. To prove his case, the appellant appeared as PW1 and examined Sarla Chugh, Ram Pal Monga, Parminder Barri, Neeraj Sharma, H.C. Subhash Chander and Dr. Gurpal Singh as PW2 to PW7 respectively. The respondent appeared as RW1 and examined Varinder Kumar Nagpal as RW2 and Rajnish Kumar as RW3. 7. The trial Court, after thoroughly sifting through the evidence, came to the conclusion that the appellant did not make any genuine effort to develop a relationship of understanding with his wife and to resolve the matrimonial problems between them. He filed a petition under Section 9 of the Act in the year 2000, which remained pending till 31.05.2003 when it was withdrawn by the appellant and much before that, the alleged incident of assault took place on 03.03.2001 but the appellant failed to explain as to why he pursued the petition for Restitution of Conjugal Rights for more than two years after the alleged incident. 8. Counsel for the appellant argued that the petition under Section 9 of the Act was withdrawn as the appellant had decided to seek divorce; it having become impossible for him to live with the respondent after he was physically assaulted by the brother of the respondent and others. Counsel pointed out that the appellant had made a statement on 31.5.2003 expressing his desire to withdraw the petition under Section 9 of the Act and thereafter he filed a divorce petition on 2.6.2003. Even in the cross examination, the appellant stated that he could not live with the respondent and that when he made the statement to withdraw the petition for Restitution of Conjugal Rights, he had made up his mind to seek divorce. This was because of the cruelty which the appellant was subjected to. 9. Counsel for the respondent, however, argued that there was no assault as alleged and the medical officer, who examined the injuries of the appellant, had stated in the cross examination that those could be a result of striking against some hard surface. It was contended that the injuries if at all could have been suffered by the appellant on account of a fall. Also that the appellant, just two days after making a statement for withdrawal of the petition for Restitution of Conjugal Rights, filed for divorce. 10. Few dates and facts may of importance over here. It was contended that the injuries if at all could have been suffered by the appellant on account of a fall. Also that the appellant, just two days after making a statement for withdrawal of the petition for Restitution of Conjugal Rights, filed for divorce. 10. Few dates and facts may of importance over here. The petition under Section 9 of the Act was filed on 17.08.2000, in which the date was fixed as 13.09.2003 after 17.05.2003. However, the appellant moved an application on 31.5.2003, simply stating that he wanted to withdraw the petition and the matter should be preponed and order should be passed on the same day. The court recorded the statement of the appellant regarding his desire to withdraw the petition, but did not pass an order on 31.05.2003 itself and kept the matter for 13.09.2003. On that date, final order was passed dismissing the request to withdraw the petition. Before the final order in the petition under Section 9 of the Act was passed by the court dismissing it as withdrawn, the appellant filed the petition under Section 13 of the Act on 02.06.2003. He made the statement showing his intention to withdraw the petition on 31.05.2003 and two days thereafter, he filed the petition for divorce little realizing that his petition under Section 9 of the Act, was technically pending as final order on his request for withdrawal had not been passed by them. Even if it is assumed that the order passed on 13.09.2003, vide which the petition was dismissed as withdrawn, would relate to the date when the appellant made his statement withdrawing the petition i.e. 31.5.2003, still there is no explanation as to why the petition remained pending till that date i.e. for more than two years after the alleged incident of assault. The appellant stated that he had made up his mind not to live with respondent when he was allegedly attacked, but he kept pursuing his petition for Restitution of Conjugal Rights. Record of the Court, in which the said petition was pending, would show that even reply to the petition was filed by the respondent much after the alleged incident of assault, to which the appellant filed a rejoinder. The court also fixed interim maintenance. Issues were framed and the appellant made his deposition as his own witness. Record of the Court, in which the said petition was pending, would show that even reply to the petition was filed by the respondent much after the alleged incident of assault, to which the appellant filed a rejoinder. The court also fixed interim maintenance. Issues were framed and the appellant made his deposition as his own witness. After that, when the matter was adjourned further for bringing other evidence if any, by the appellant, he moved the application showing his desire to withdraw the petition. 11. All the facts given above would show that the appellant condoned the cruelty if any, till the time the petition under Section 9 of the Act was pending or at least till the time he made the statement regarding withdrawal. Just two days after that, he filed the divorce petition, meaning thereby that there could be no fresh instance of cruelty towards him. He did not think of withdrawing the petition under Section 9 of the Act and filing one under Section 13 of the Act after he was allegedly assaulted. 12. Regarding desertion as well, the appellant could not substantiate his plea because filing of an application under Section 9 of the Act, would not itself be a proof of desertion by the other spouse. During pendency of the petition for Restitution of Conjugal Rights, the parties arrived at some kind of a settlement because of which they were directed by the Lok Adalat to go together with the child. It is the case of the appellant himself that the respondent was accompanying him but according to him the incident had occurred. From the injuries depicted in the medico legal report, it cannot be derived that the appellant was attacked by two persons. In the document, nothing was written that there was an assault on him. It was simply mentioned that the occurrence took place near Friends Bakery. The cross examination of the doctor would reveal that the injuries on the person of the appellant could be caused by striking and against some uneven surface. The injuries, therefore, could have been caused even by a fall. 13. It was rightly argued on behalf of the respondent that no such instance of cruelty was pleaded, much less proved, which would entitle the appellant to a decree of divorce. The injuries, therefore, could have been caused even by a fall. 13. It was rightly argued on behalf of the respondent that no such instance of cruelty was pleaded, much less proved, which would entitle the appellant to a decree of divorce. Though for seeing cruelty, the social and economic status of the parties and also their educational and family background are relevant, yet for showing cruelty, the spouse seeking divorce must prove that the conduct of the other party was and remained such that it became impossible for the party seeking divorce, to live with his/her spouse. General allegations that the wife did not cook food or did not behave as expected in presence of relatives and friends, went out on her own or did not listen to everything the husband said, would not constitute cruelty. 14. The appellant was not happy with the idea that the respondent visited her mother frequently but that appeared to be a result of male chauvinist attitude because nothing was mentioned in the petition as to what kind of influence, the mother of the respondent had put on her and what was the action of the respondent pursuant thereto so as to constitute a cruelty, making it impossible for the appellant to live with his wife. In the given facts and circumstances, since the appellant failed to show that the mother of the respondent had any influence on her to instigate her against the appellant and his family, it is not understandable as to why the wife could not meet her mother everyday. Why it should be expected that the wife should not meet her family on the parental side without permission of her husband and/or his family is something beyond comprehension. Merely alleging that the respondent used to meet her mother everyday while returning home from work would certainly not be cruelty of any kind whatsoever. 15. From the manner of allegations made and evidence led by the appellant, it rather appears that he wanted his wife to dance to his tune and he wanted a slave and not a companion. Thus even if it be respondent had parted company, it could not be said that it caused any cruelty to the appellant. 16. 15. From the manner of allegations made and evidence led by the appellant, it rather appears that he wanted his wife to dance to his tune and he wanted a slave and not a companion. Thus even if it be respondent had parted company, it could not be said that it caused any cruelty to the appellant. 16. The appellant, thus, failed to prove that he was entitled to a decree of divorce on any grounds pleaded by him and no fault can be found with the judgment and decree passed by the Court below. 17. The appeal is dismissed.