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2015 DIGILAW 591 (HP)

Sunita Kumari v. Bhumi Chand

2015-05-26

TARLOK SINGH CHAUHAN

body2015
JUDGMENT Tarlok Singh Chauhan, J. 1. The appellant is aggrieved by the order passed by learned District Judge, Hamirpur, on 24.12.2013, whereby the marriage between the parties was ordered to be dissolved under Section 13(1) (ia) (ib) of the Hindu Marriage Act. 2. The brief facts of the case as per the respondent (who was the petitioner before the Court below) are that the marriage between the parties was solemnized on 28.7.2002 in accordance with Hindu rites and customs. One son, namely, Suraj was born out of the wedlock. The appellant began to reside in the house of her parents and thereafter a compromise was affected between the parties at the instance of Pradhans of the respective Gram Panchayats. As per the compromise effected on 11.3.2010, parents and relatives of the respondent along with Pradhan Urmila Devi and other villagers went to the parental house of the appellant to bring her back to her matrimonial house, but she did not join her matrimonial home. 3. The respondent was serving in the Army and suffered a stroke of paralysis, due to which he was admitted in the Army hospital, but the appellant did not even care to see, much less look after him. He was discharged from the hospital on 19.1.2011 and thereafter on 24.10.2011 came to his home after availing leave and sent a message to the appellant through his father. But, even then the appellant refused to come to the house of the respondent. It was alleged that no cohabitation has taken place between the parties since March, 2010 and the appellant has not only deserted the respondent, but also treated him with cruelty. 4. The appellant opposed the petition by filing reply, wherein preliminary objections regarding maintainability and estoppel were raised. On merits, the appellant denied the allegations that she had treated the respondent with cruelty or had deserted him as alleged. Her specific stand was that the respondent and his family members had forced the appellant and her minor child to live in her parental house, through she was ready to join the company of respondent at anytime and anywhere and it was the respondent who was not interested to keep her with him and therefore, had neglected to maintain her. It was for this reason that the maintenance of Rs.5670/- per month was being paid to her by the Military Authorities. It was for this reason that the maintenance of Rs.5670/- per month was being paid to her by the Military Authorities. It was further alleged that prior to the year 2010 the appellant resided at Hamirpur with the consent of the respondent because their son was studying at DAV School, Salasi, but later on all the house hold luggage was removed by the respondent and his family members from the rented accommodation, in which the appellant was residing. The appellant in such circumstances has no other option, but to live in her parental house. Such luggage was finally removed by mother-in-law of the appellant forcibly on 12.3.2010. 5. The appellant further denied the so called compromise and it was alleged that some persons from the side of respondent had come and discussed the matter, but they simply disclosed that the respondent would consume poison and end his life in case the appellant comes to her matrimonial house. It was thereafter pleaded that the appellant was ready to return to her matrimonial house and fulfill all the obligations, if she is allowed to live in the matrimonial home with proper dignity. It was further alleged that the respondent never disclosed to the appellant that he had suffered from paralytic attack and had remained admitted in Army Hospital, due to which the appellant was not in a position to have any access at the place of posting of the respondent. 6. The learned Court below on 28.12.2012 framed the following issues:- “1. Whether the respondent has subjected the petitioner with cruelty as alleged? OPP 2. Whether the respondent has deserted the petitioner as alleged? OPP 3. Whether the petitioner is estopped from filing the present petition by his act and conduct? OPR 4. Relief.” 7. After recording the evidence and evaluating the same, the learned Court below allowed the petition and ordered the dissolution of the marriage by passing a decree for divorce on the ground of cruelty as also desertion. It is against this order that the present appeal has been filed. 8. Sh. S.D. Gill, learned counsel for the appellant has vehemently argued that the learned Court below has failed to take into consideration that the appellant was ready to live with her husband and therefore, in such circumstances it would not have been held that the appellant had deserted the respondent. 8. Sh. S.D. Gill, learned counsel for the appellant has vehemently argued that the learned Court below has failed to take into consideration that the appellant was ready to live with her husband and therefore, in such circumstances it would not have been held that the appellant had deserted the respondent. He further contended that the Court below had wrongly relied upon the compromise, whereas no compromise was ever affected between the parties. He also contended that the decree was silent with respect to alimony and maintenance of minor child. I have heard the learned counsel for the parties and have gone through the records of the case. 9. A perusal of the record would show that the respondent in support of his case had examined in all four witnesses. He appeared as PW-1 and re-iterated the facts as stated in the petition. In his cross-examination he admitted that the appellant had earlier remained at Hamirpur with their son in a rented accommodation. He also admitted that he had removed the luggage from the rented accommodation, but then qualified his statement by saying that the same was removed only after the decision of the Panchayat. He also admitted that the rented accommodation was taken at Hamirpur for the schooling of their child. He denied the suggestion that no compromise had taken place between the parties. However, he did not dispute that Pradhan of his Panchayat was his aunt. 10. PW-2 Urmila Devi is the Pradhan of Gram Panchayat, Sapahal, who deposed regarding the dispute between the parties. She stated that the respondent had filed a complaint in the Panchayat and on the basis of said complaint, the Panchayat had got effected a compromise Ex.PW-2/A between the parties. She stated that the compromise was signed by her and she identified her signatures. She further stated that at the time of compromise the mother of the appellant, Daljit and Gopi etc. and one Up- Pradhan from the side of the appellant was also present. In cross-examination, she admitted that the complaint is not available in the Panchayat record. She also stated that at the time of compromise, the parties were present at the spot, but their signatures were not obtained on the compromise deed. The compromise was written in the house of respondent. She also admitted that the respondent was her nephew. 11. In cross-examination, she admitted that the complaint is not available in the Panchayat record. She also stated that at the time of compromise, the parties were present at the spot, but their signatures were not obtained on the compromise deed. The compromise was written in the house of respondent. She also admitted that the respondent was her nephew. 11. PW-3 Munshi Ram, father of the respondent has corroborated the version of respondent. He further stated that he along with 5-6 other respectable persons of the village had gone to bring back the appellant to her matrimonial house, but she refused to come and was residing separately from the respondent since 2010. In his cross-examination he has stated that one Khiali Ram, his two brothers and some other villagers accompanied him when they had gone to bring the appellant. He also stated that he had not gone to the place of posting of his son, when he had suffered a paralytic attack. He also stated that he had informed the appellant about the paralytic attack of his son. 12. PW-4 Khiali Ram acknowledged the compromise and also identified his signatures thereupon. He also deposed regarding his having accompanied the father of the respondent to the parental house of the appellant. He stated that the compromise Ex. PW-2/A was written in his presence and bears his signatures. He further stated that when he had accompanied the father of respondent, so as to bring the appellant back to her matrimonial house, the appellant had refused to come. In his cross-examination he stated that compromise Ex. PW-2/A was written in the house of the respondent in the presence of the parties. 13. On the other hand respondent examined three witnesses. She appeared as her own witness as RW-1 and deposed that she along with her minor child was residing in her parental house for the last three years. The reason for the same was that her son was studying at Hamirpur. She further deposed that earlier she had been residing in a rented accommodation at Hamirpur, but her mother-in-law gradually removed the entire luggage from the accommodation and finally on 12.3.2010 after removing the luggage her mother-in-law threatened her with dire consequences in case she returned to her matrimonial house. She further deposed that earlier she had been residing in a rented accommodation at Hamirpur, but her mother-in-law gradually removed the entire luggage from the accommodation and finally on 12.3.2010 after removing the luggage her mother-in-law threatened her with dire consequences in case she returned to her matrimonial house. She further stated that her husband was not paying any maintenance to her, which constrained her to file an application before the Army Authorities and thereafter maintenance to the tune of Rs.5500/- was awarded to her. She further stated that her husband proclaimed that in case she returns to the matrimonial home, then he will commit suicide. She then goes to state that she did not know about the paralytic attack of her husband, as she was not informed by anyone. Her uncle and some other villagers had gone to persuade the respondent, then on the first date he agreed to behave properly, but the next date he began quarrel. He even refused to have intercourse with her. She then stated that she was still ready to reside in the matrimonial house. Her husband has not issued any notice to bring her back to her matrimonial house. She admitted that her son was studying in school in her parental village. 14. In cross-examination the appellant stated that when she remained at Hamirpur, her mother-in-law used to provide maintenance to her. She also admitted that her husband used to provide maintenance to her through his mother. She admitted that on 12.3.2010 a compromise has taken place between the parties. She also admitted that in the compromise, she had admitted that after the examination of her son, she would come back to her matrimonial house, but after the examination, she did not come there and went to her parental house. She also admitted that after the compromise her father-in-law and 3-4 other persons had came to take her back to matrimonial house. She further admitted that after the year 2010, there was no relation of husband and wife between the parties. She also admitted that she had never filed any case against the respondent. 15. RW-2 Rajinder Singh, who is the Up-Pradhan of Gram Panchayat, Panoh, states that at the instance of mother of the appellant he had come to the house of in-laws of the appellant. She also admitted that she had never filed any case against the respondent. 15. RW-2 Rajinder Singh, who is the Up-Pradhan of Gram Panchayat, Panoh, states that at the instance of mother of the appellant he had come to the house of in-laws of the appellant. There they had made both the parties understand because the complaint of the appellant was that whenever she goes to her matrimonial house from Hamirpur, her husband used to leave the house. After persuasion by them, the respondent had agreed that he will not do so in future. He further stated that no written compromise was affected between the parties to this effect. In his cross-examination, however, admitted that the appellant had agreed that now she will live in the matrimonial house. He also stated that after that no complaint from the appellant was received by them. 16. RW-3 Dalgir Chand, who is the uncle of the appellant has deposed on the same lines as RW-2 Rajidner Singh. In his cross-examination he admitted that when they reached the house of in-laws of the appellant, at that time the persons of the Panchayat and other persons from the village were present. He also admitted that both the parties had admitted their guilt. This is the entire evidence led by the parties. 17. Learned counsel for the appellant has strenuously argued that the mere fact that the parties were living separately would not mean that the appellant had deserted the respondent. He further contended that the reasons for living separately was the education of minor child of the parties and therefore, by no stretch of imagination could it be held that she had either deserted the respondent or had treated him with cruelty. Strong reliance has been placed by him on the judgment rendered by Hon’ble Supreme Court in K. Shrinivas Rao vs. D.A. Deepa, (2013) 5 SCC 226 , more particularly, the following observations:- “16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 , we could add a few more. Strong reliance has been placed by him on the judgment rendered by Hon’ble Supreme Court in K. Shrinivas Rao vs. D.A. Deepa, (2013) 5 SCC 226 , more particularly, the following observations:- “16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse. 27. We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent wife in her complaint dated 4-10-1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant husband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent-wife was anxious to go back to the appellant-husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondent-wife has caused mental cruelty to the appellant husband. 28. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. 28. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondent wife filed criminal appeal in the High Court challenging the acquittal of the appellant husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant husband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent wife filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant husband so that he would be removed from the job. The conduct of the respondent-wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant husband. 29. In our opinion, the High Court wrongly held that because the appellant-husband and the respondent wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouses life miserable. This is what has happened in this case.” 18. Indisputably, the appellant had initially with the consent of the respondent and his family members gone to Hamirpur to educate their minor child, but later on in terms of compromise Ex. PW-2/A, which was duly been proved on record, the appellant was to join her matrimonial house after the examination of the child were over, but the appellant instead went back to her parental home, never to return. 19. Desertion is a matter of inference and has to be gathered from the surrounding circumstances. It is a condition of mind. It is to be inferred from the course of conduct. In so far as the appellant’s act and conduct in failing to return to her husband’s house is concerned, obviously the same is entitled to more weight as against her evidence of true intention, and her assurances made in the compromise deed to return to her matrimonial home, which ultimately proved to be false. When the appellant refused to return to the conjugal fold, it would be legitimate to presume that she was no longer ready to keep the marriage intact. 20. The essence of desertion is the backup of the matrimonial home caused by the withdrawal of one spouse. It is the cessation of cohabitation brought about by the failure or act of the deserting spouse. Was there a sincere intention and a bonafide offer on the part of the appellant to join the company of her husband, the records also do not support such version. 21. The appellant instead of joining her matrimonial home returned to her parental house, never to return. She did not comply with the decision of the Panchayat, in terms whereof she had agreed to return to her matrimonial house. 21. The appellant instead of joining her matrimonial home returned to her parental house, never to return. She did not comply with the decision of the Panchayat, in terms whereof she had agreed to return to her matrimonial house. She directly claimed the maintenance from the Army Authorities and despite the respondent having suffered a paralytic attack and being admitted at Command Hospital Calcutta, she did not come to even see him there or even at the village when he had come on leave, that too, despite the fact that she had been informed. 22. The appellant has further made no efforts to resume cohabitation and she has admitted that there is no relationship of husband and wife between the parties since the year 2010. This clearly proves the intention-animus deserendi on the part of the appellant. There is no probable reason why the appellant did not join her matrimonial home, particularly when there is no evidence led by the appellant to the fact that she had ever been treated with cruelty. 23. Now in so far as the contention of the appellant that no compromise had been affected between the parties, suffice it to say that the appellant herself in her cross-examination has admitted that on 12.3.2010 a compromise had been arrived between the parties. She further admitted that in terms of the said compromise she after the examination of her son was to come back to the matrimonial house. Even if, the statement of the appellant is brushed aside, even then, the compromise has been duly proved, not only by respondent, but even by PW-2, Pradhan Gram Panchayat, Sapahal, PW-3 Munshi Ram and PW-4, Khiali Ram, who is the signatory to the compromise. 24. Lastly, in so far as there being no provision for alimony for maintenance of minor child is concerned, admittedly the minor child is not party to the proceedings and even otherwise the law has provided adequate safeguards for protecting the interest of the minor and resort to the same can always be taken by the minor. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their costs.