Research › Search › Judgment

Punjab High Court · body

2016 DIGILAW 666 (PNJ)

Veena @ Pummy v. Raj Singh

2016-02-17

LISA GILL, RAJIVE BHALLA

body2016
JUDGMENT Mrs. Lisa Gill, J.:- This appeal has been preferred by the appellant – Veena alias Pummy challenging judgment and decree dated 21.04.2003, passed by the learned Additional District Judge, Sonepat whereby the petition filed by respondent-husband, Raj Singh, under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as an ‘Act’) has been allowed and the marriage between the parties has been dissolved. 2. Brief facts of the case are that marriage between the parties was solemnised on 05.05.1992 at Mataur, District Meerut. They resided at village Jakhauli, District Sonepat after their marriage. It was pleaded that no child was born out of this wedlock though the appellant conceived four times. She aborted the pregnancy due to her dislike for the respondent. The appellant gave birth to a son at her parental home in village Mataur, District Meerut but it was denied that the child was of the respondent-husband as the parties were not in conjugal relationship at the relevant period. The child was studying at a school in village Jakhauli and the appellant had not entered the respondent’s name as his father. It is averred that the appellant was a belligerent wife, having no respect for her husband or in-laws. She had illicit relations with one Tannu. When the respondent-husband objected to this relationship, the appellant was offended and threatened to implicate him in a false dowry case and even to commit suicide. She threatened to have him put behind bars. Though no specific date has been mentioned, it is pleaded that the respondent saw the appellant and the above said Tannu in each others company at his house. It was revealed that the appellant had wanted to marry the said person but she was forcibly married off to the respondent. The appellant tried to commit suicide in the winter of 1992 but was saved on account of timely treatment given to her at the Civil Hospital, Sonepat. The appellant, however, did not mend her ways and continued to have relations with Tannu. When she was warned of the consequences, the appellant left the matrimonial home on 01.07.1994 for her parental home at Mataur. The appellant was brought back by the respondent on 25.12.1994 on the intervention of respectables of the village. The appellant, however, did not mend her ways and continued to have relations with Tannu. When she was warned of the consequences, the appellant left the matrimonial home on 01.07.1994 for her parental home at Mataur. The appellant was brought back by the respondent on 25.12.1994 on the intervention of respectables of the village. Soon thereafter, the appellant is alleged to have separated herself from the respondent-husband’s father and younger brother in the absence of the respondent, who though, unwillingly, agreed to live separately in order to maintain peace and harmony. However, the appellant is averred to have separated only to continue her relations with Tannu without any interference. Due to annoyance of the respondent, she left the matrimonial home again on 10.05.1995. The appellant returned on 13.05.1995 i.e. the date of the marriage of the respondent-husband’s sister alongwith police personnel from Police Station, Rai but keeping in view the marriage ceremony of the husband’s sister, the police went back, but respondent and his family were called at the police station on 14.05.1995 i.e. the next day. No action was taken by the police after inquiring into the whole matter. The appellant stayed for ten days in the house of one Dharampal son of Dalip, a neighbour of the husband. The respondent-husband was threatened on 26.05.1995 by four persons with institution of a false dowry case and even death if he refused to permit the appellant to live with him on her own terms. The respondent-husband, however, refused to permit the appellant to live with him while maintaining relations with Tannu and left for Azadpur Mandi for trade of vegetables. When he returned home on 27.05.1995, he came to know that the appellant had left the matrimonial home at night alongwith all her ornaments and valuables etc. A report was lodged at Police Station Rai, Mark ‘A’ on 28.05.1995 with a request to seal his house and to recover the articles taken by the appellant while stating that the appellant was a characterless woman. The appellant was yet again brought back by her father-in-law i.e. the respondent-husband’s father to village Jakhauli at the Tehrvi ceremony of the respondent’s uncle. However, the parties did not co-habit with each other. The appellant was yet again brought back by her father-in-law i.e. the respondent-husband’s father to village Jakhauli at the Tehrvi ceremony of the respondent’s uncle. However, the parties did not co-habit with each other. The appellant on 19.01.2001 filed a complaint against the respondent, his brother Ran Singh and his father Hukam Singh before the SHO, Police Station Rai, with the allegations that all three tried to set her on fire by sprinkling kerosene oil upon her. Due to this false complaint, the respondent and his family suffered great harassment and he did not consider it safe to stay with the appellant anymore. Apprehending danger to his life and property, he sought divorce on the ground of adultery and cruelty. 3. All the averments of adultery and cruelty were denied by the appellant in her written statement. While admitting the factum of marriage, it was explained that one daughter was born after about 1½ years of marriage but she died three days after birth. Thereafter, whenever the appellant conceived, the respondent-husband forcibly got her aborted when the foetus was about six months old. A son was born out of this wedlock on 04.12.1995. It was explained that when the foetus was four months old, she was beaten up by the respondent and turned out of the house, thus, compelling her to proceed to her parental home at village Mataur. All allegations of illicit relations with Tannu or the child not being of the respondent-husband were denied. It is pleaded that the respondent-husband has been duly mentioned in the school records as the father of their child. She never tried to commit suicide at any point of time and has in fact discharged all her matrimonial duties in a proper manner. All efforts were made by her to maintain matrimonial relations with the respondent-husband, who himself wanted to get rid of her. It is explained that Anil, the appellant’s brother had come to inquire about her welfare and when he came to know about the ill-treatment meted out to her, he asked the appellant to accompany him to her parental home as the appellant was pregnant at that time. Scared of the prospect of forcible abortion at the hands of the respondent yet again, the appellant accompanied her brother to her parental home, but this was with the consent of her husband. Scared of the prospect of forcible abortion at the hands of the respondent yet again, the appellant accompanied her brother to her parental home, but this was with the consent of her husband. While admitting the complaint made to the police regarding physical abuse and attempt to set her on fire, it is submitted that she was constrained to approach the police due to the constant harassment, humiliation and torture suffered by her. The respondent-husband had apologised before the police and the matter was compromised. Though the appellant was compelled to live at her aunt’s house for about ten days, she was allowed to live at her matrimonial home on intervention of the respectables of the village. Residing at the residence of any Dharampal was denied. The appellant-wife, thus, prayed for dismissal of the petition under Section 13 of the Act. 4. Learned trial Court on the basis of pleadings of the parties, formulated the following issues:- 1.Whether the petitioner is entitled to the decree of divorce on the ground of cruelty and adultery? OPP 2.Whether the petition is not maintainable in the present form? OPR. 3.Whether the petition is bad for non-joinder of the parties?OPR. 4.Relief. 5. Evidence was led by both the parties. The respondenthusband himself deposed as PW1 and examined PW2, Raj Kumar and PW3, Mange Ram to support his case. The appellant deposed as RW1. 6. After considering the pleadings of the parties as well as the evidence on record and the entire facts and circumstances of the case, learned Additional District Judge, Sonepat allowed the petition. Marriage between the parties was dissolved vide judgment and decree dated 21.04.2003, primarily on the ground that there is no harmony and compatibility between the parties, who have not been able to live together for more than six years, while observing as under:- “ Numerous instances have been cited which cannot be described as mere wear and tear of married life. There is disharmony, incompatibility between the parties. A number of incidents have taken place which has caused reasonable apprehensions in the mind of the petitioner that it would be harmful for him to live with the respondent. The parties have not been able to live together for more than six years. There is disharmony, incompatibility between the parties. A number of incidents have taken place which has caused reasonable apprehensions in the mind of the petitioner that it would be harmful for him to live with the respondent. The parties have not been able to live together for more than six years. The respondent has alleged that she was physically assaulted but no complaint was made to the police nor she was got medically examined and her allegations are not convincing. Thus, keeping the circumstances and the incidents which have been proved by the petitioner, I am of the view that the parties cannot live together. I find the petitioner has suffered traumatic experience because of the police cases. His services were terminated because of the respondent, he has had no conjugal relations with the wife and since there is hostile attitude, it can safely be termed as cruelty and it is found that the petitioner has been able to prove that he was treated with cruelty and the petitioner is entitled to a decree of divorce on this ground.” 7. The ground of adultery was not found to be proved on record as Tannu was not impleaded as a party to the petition. Aggrieved from the above said judgment and decree, this appeal has been preferred by the appellant-wife. 8. Learned counsel for the appellant submits that evidence on record does not indicate cruelty on the part of the appellant. On the contrary, it is the conduct of the husband, which clearly reflects that he was not interested in living with the appellant, who has made sincere efforts to save this marriage. It is not denied that even as on date, the appellant is residing in her matrimonial home. The trial Court has ignored the fact that scandalous averments have been made by the respondent-husband specifically to the effect that the appellant was in an adulterous relationship. He has failed to prove the same, which is a clear reflection of lack of bona fides on his part. 9. The respondent-husband has even denied the child to be their own but has miserably failed to prove the equally scandalous allegation. He has failed to prove the same, which is a clear reflection of lack of bona fides on his part. 9. The respondent-husband has even denied the child to be their own but has miserably failed to prove the equally scandalous allegation. The instances, which are presumed to be acts of cruelty on the part of the appellant, namely, attempt to commit suicide by the appellant, bringing the police personnel at the time of respondent’s sister’s marriage, complaint against the respondent’s employer leading to respondent’s dismissal, are not substantiated by any evidence on record. Furthermore, the trial Court was swayed by considerations like disharmony and incompatibility between the parties and that they have not been living together for the last six years whereas the appellant has been living at her matrimonial home ever since. Irretrievable break down of marriage, though not proved, cannot be a ground to grant a decree of divorce in the husband’s favour. Learned counsel for the appellant, therefore, prays for setting aside the judgment and decree granting divorce to the parties. 10. Learned counsel for the respondent refutes the said arguments and prays for upholding the impugned judgment and decree being a well reasoned one, rendered on the basis of specific evidence on record. It is, however, not denied that the appellant is still residing in the matrimonial home alongwith her son though in a separate portion of the house. 11. Having heard counsel for the parties and going through the record, it is clear that the impugned judgment and decree is not sustainable. A perusal of the petition under Section 13 of the Act reflects the great stress laid upon the alleged illicit relations of the appellant with Tannu. However, the said Tannu has not even been impleaded as a party to the proceedings. Therefore, the ground of adultery has rightly been discarded by the trial Court. There is otherwise also not an iota of evidence on record, except the bald statement of respondent Raj Singh (PW1) to suggest that the appellant had illicit relations with Tannu. 12. The averment that the child is not born out of the wedlock between the parties is also not substantiated by any evidence on record. Narration of the dates in the petition under Section 13 of the Act reveal that the child was born on 04.12.1995. 12. The averment that the child is not born out of the wedlock between the parties is also not substantiated by any evidence on record. Narration of the dates in the petition under Section 13 of the Act reveal that the child was born on 04.12.1995. The appellant is alleged to have left the matrimonial home on 10.05.1995, thereafter returned on 13.05.1995, resided with one Dharampal son of Dalip for ten days and then left the matrimonial home on the intervening night of 26/27.05.1995. There is no evidence to suggest that this child has not been sired by the respondent. The cat is let out of the bag when the respondent’s own witness PW2, Raj Kumar deposes that Banti, the son of the parties is living in the matrimonial home alongwith the respondent. Furthermore, Ex. R1, the progress report card of the child mentions the father’s name to be Sh. Raju. Wild allegations in this respect have been raised in the petition, which remain wholly unsubstantiated. 13. Similarly, there is no evidence on record to suggest much less prove that the appellant had attempted to commit suicide in the winter of the year 1992. Much credence cannot be placed on the statement of PW2, Raj Kumar, who has stated that he came to City Hospital, Sonepat alongwith the appellant because she had imbibed poison. PW2, Raj Kumar was not a summoned witness. He admits to having been brought to Court by the respondent. This witness has been examined in an attempt to prove that the appellant tried to commit suicide as well as bringing of police personnel to the matrimonial home on the occasion of marriage of the respondent’s sister. A perusal of the testimony of this witness reveals it to be vague and evasive. No details in respect to the date, year or time of the alleged incidents have been mentioned. No medical record has been placed on record to prove the attempt to commit suicide by the appellant. While stating that the appellant had brought the police on the said date, PW2, Raj Kumar, admits that he does not know the reason for which the police came on the occasion of marriage of the respondent’s sister. No medical record has been placed on record to prove the attempt to commit suicide by the appellant. While stating that the appellant had brought the police on the said date, PW2, Raj Kumar, admits that he does not know the reason for which the police came on the occasion of marriage of the respondent’s sister. The trial Court has, thus, returned an incorrect finding that it has come in evidence that the police was brought to the matrimonial home on the occasion of the marriage of the respondent’s sister. There is no such evidence except the bald statement of the respondent himself and PW2, Raj Kumar. 14. Much stress has been laid upon the factum of the respondent being turned out of service on account of the complaint made by the appellant to urge that cruelty is apparent on the face of it. While on the first flush the argument seems attractive, a close scrutiny of the evidence reveals otherwise. Mange Ram Rana (PW3), who had employed the respondent-husband as a driver on his vehicle has been examined and he has deposed that on a complaint submitted by the appellant against him, he was summoned by the police and under a threat, the respondent-husband was removed from service. PW3, Mange Ram Rana, who is also not a summoned witness could not produce the report submitted against him or any record pertaining to employment of the respondent with him or in respect to his vehicle or other business. Termination from service is stated to be effected in April 1991 at the first instance and then stated to be in the year 2001. This incident if accepted to have taken place in April 2001 has occurred after the filing of the petition under Section 13 of the Act on 25.01.2001. No such pleadings are reflected in the amended petition filed on 01.09.2001. In this situation, the socalled admission by the appellant cannot be the mainstay to hold it to be an act of cruelty which entitles the husband to a decree of divorce. 15. No such pleadings are reflected in the amended petition filed on 01.09.2001. In this situation, the socalled admission by the appellant cannot be the mainstay to hold it to be an act of cruelty which entitles the husband to a decree of divorce. 15. The learned trial Court has considered the allegations made by the appellant to the effect that the respondent was maintaining illegal relations with another woman to be scandalous and malicious in the absence of any evidence and it is observed that she never complained of cruelty and harassment meted out to her, while completely ignoring the complaint dated 19.01.2001. Paradoxically such a complaint is considered as an act of cruelty on the part of the appellant. Seeking recourse to a legal remedy available to the appellant cannot be construed to be an act of cruelty. 16. In view of the above, the trial Court has clearly erred in holding that the respondent was treated with cruelty at the hands of the appellant thereby entitling the respondent-husband to a decree of divorce on this ground. The appellant has been residing at her matrimonial home and is admittedly still living there alongwith her son. It is the respondent-husband, who has made scandalous allegations against the appellant, especially in respect to her character. He has gone to the extent of denying at first flush the birth of a daughter who had died, though admitting this fact in the replication filed on his behalf. Similarly, allegations regarding their son not being sired by him also remain unsubstantiated by any evidence on record. In such a situation, it cannot be held that the respondent-husband is entitled to a decree of divorce on the ground of cruelty meted out by the appellant. 17. Accordingly, this appeal is allowed and the impugned judgment and decree dated 21.04.2003, passed by the learned Additional District Judge, Sonepat is set aside and the petition filed by the respondent under Section 13 of the Act is dismissed.