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2016 DIGILAW 807 (HP)

Seema alias Simpal Jaswal v. Ajay Kumar

2016-05-16

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This FAO (HMA) is directed against the judgment dated 31.8.2015, passed by the learned Addl. District Judge-II, Una, H.P. in HMA No. 31 of 2012. 2. Key facts, necessary for the adjudication of this appeal are that the respondent filed a petition under Section 13(i)(a) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), against the appellant for dissolution of marriage. The marriage between the parties was solemnized on 13.10.2011 at Village Sapouri, Tehsil Amb, Distt. Una, H.P. according to Hindu rites and customs. The parties started living together at the house of the respondent at village Malahat, Tehsil and Distt. Una, H.P. According to the averments contained in the petition, after 10 days of the marriage, the respondent-wife started quarreling and misbehaving with the family members of the respondent. The efforts of the respondent and his relatives to make the appellant understand did not bear any fruit. In the second week of December, 2011, a Khangi Panchayat was called at the instance of the respondent, which tried to persuade the appellant but she after some time refused to fulfill her matrimonial obligations and duties. The appellant packed up her belongings to her parental house on 13.4.2012 by advancing threats to the family members of the respondent. The matter was reported by the respondent to the Panchayat. The Gram Panchayat tried to persuade the appellant. Thereafter, another Khangi Panchayat was convened at the instance of the respondent on 19.4.2012. The Panchayat went to Village Sapouri and a mutual compromise was arrived at between the parties. In the meantime, the respondent was constrained to file a petition under Section 9 of the Act seeking resumption of conjugal rights. The appellant lodged FIR under Section 498-A and 406 of IPC. The respondent lost his job. The respondent visited his wife at her parental house on 28.11.2012. 3. The petition was contested by the appellant. She denied the averments made in the petition. The gist of the reply filed by the appellant is that the respondent on the instigation of his family members started administering merciless beatings to her on 12.11.2011. However, she did not disclose this incident to anyone. The respondent also demanded Rs. 12 lacs from her mother. It is, in these circumstances, she was compelled to file case under Section 498-A and 406 of IPC against the respondent and his relatives. However, she did not disclose this incident to anyone. The respondent also demanded Rs. 12 lacs from her mother. It is, in these circumstances, she was compelled to file case under Section 498-A and 406 of IPC against the respondent and his relatives. The respondent has failed to maintain her. She was constrained to file another petition under Section 125 Cr.P.C. 4. The issues were framed by the learned Addl. District Judge-II, Una on 25.2.2014. The learned Addl. District Judge-II, Una, allowed the petition vide judgment dated 31.8.2015. Hence, this petition. 5. Mr. Sunny Modgil, Advocate has vehemently argued that his client has neither caused mental nor physical cruelty to the respondent. The learned Addl. District Judge-II, Una has not properly appreciated the oral as well as documentary evidence on record. He also argued that it is the respondent who has failed to maintain the appellant. On the other hand, Mr. Sanjeev K. Suri, Advocate, has supported the judgment of the learned Addl. District Judge-II, Una dated 31.8.2015. 6. I have heard learned counsel for the parties and gone through the impugned judgment very carefully. 7. Jagtar Singh, PW-1 has led his evidence by filing affidavit. According to the averments contained in the affidavit, he was Vice President of the Gram Panchayat, Malahat. The marriage between the parties was solemnized on 13.10.2011. The appellant has started quarrelling with the respondent and his family members. The respondent has submitted an application before them on 13.4.2012. The Panchayat tried to persuade the appellant to mend her ways. The members of the Panchayat have visited the parental house of the appellant on 19.4.2012. In his cross-examination, he admitted that the applications are submitted to the Secretary. He also admitted that his Panchayat has never sent any notice to the appellant. He also admitted that the appellant has filed a complaint under Section 498-A and 406 of IPC against the respondent and his family members. The members of the Panchayat have tried to settle the matter. 8. Azad Singh, PW-2 has also led his evidence by filing affidavit. He was permanent resident of village Mahal. The marriage between the parties was solemnized on 13.10.2011. The appellant has started harassing the respondent and his family members. They have also tried to patch up the matter in the meeting held on 19.4.2012. In his cross-examination, he admitted that the respondent was his relative. He was permanent resident of village Mahal. The marriage between the parties was solemnized on 13.10.2011. The appellant has started harassing the respondent and his family members. They have also tried to patch up the matter in the meeting held on 19.4.2012. In his cross-examination, he admitted that the respondent was his relative. He has categorically admitted that in his presence, appellant has never harassed the respondent. 9. Neelam Devi, PW-3 has also filed her affidavit. According to her also, in the second week of December, 2011, Khangi Panchayat was convened by the respondent. The appellant has lodged FIR under Section 498-A IPC. Another Khangi Panchayat was convened on 19.4.2012. The affidavit is in English, however, in her cross-examination, she admitted that she was illiterate and she was not familiar with the English language. 10. The respondent has also led his evidence by filing affidavit. He has reiterated the grounds taken in the petition. In his cross-examination, he admitted that the Court has ordered payment of Rs. 1800/- per month to the appellant. He was paying it regularly to the appellant. 11. The appellant has appeared as RW-1. She has also led her evidence by filing affidavit. According to her, her father-in-law died four days after her marriage. She was held responsible for the same. She was not permitted to complete her practical classes at Dharamshala. Her husband used to administer beatings to her at the instance of his family members. She was treated with cruelty. The respondent has taken away gold and silver ornaments from her. He asked for Rs. 12 lacs from her. Thereafter, she filed FIR under Section 498-A and 406 of IPC. She has also filed a petition for maintenance. The respondent was not paying the maintenance. She has been granted maintenance @ 1800/- per month. The arrears have also not been paid to her by the respondent. She has not been paid Rs. 25,000/- by the respondent. She was always ready and willing to stay with the respondent. In her cross-examination, she denied the suggestion that she used to pick up quarrels with her husband and her mother-in-law. She denied that Khangi Panchayat was convened in the month of December. She also denied about the compromise dated 19.4.2012. She denied the suggestion that on 13.4.2012, she has picked up her belongings and threatened to go to her parental house. She denied that Khangi Panchayat was convened in the month of December. She also denied about the compromise dated 19.4.2012. She denied the suggestion that on 13.4.2012, she has picked up her belongings and threatened to go to her parental house. Volunteered that her belongings were thrown away by her husband. She has fulfilled all the matrimonial obligations. She wanted to stay in the house of her in-laws. 12. What emerges from the appraisal of the evidence discussed hereinabove is that the marriage between the parties was solemnized on 13.10.2011. The respondent has appeared as PW-4. The sum and substance of his statement is that the appellant has not fulfilled matrimonial obligations. He has tried to settle the matter by convening Khangi Panchayat. He has also submitted application to the Gram Panchayat to resolve the matter, however, the appellant did not mend her ways. The statement of the respondent has been corroborated by Jagtar Singh, PW-1 only to the effect that they have tried to settle the matter amicably. 13. Azad Singh, PW-2 in his cross-examination, has admitted that in his presence, the appellant has never harassed the respondent. Azad Singh, PW-2 is closely related to the respondent. RW-1/appellant has specifically testified that she was treated with cruelty by the respondent as well as his family members. They have not permitted her to complete her diploma course. The respondent has demanded Rs. 12 lacs from her. It is, in these circumstances, she was compelled to file case under Section 498-A and 406 of IPC. She has been granted Rs. 1800/- per month maintenance by the learned Addl. District Judge. The respondent has neither paid sum of Rs. 1800/- per month to her nor has paid the arrears towards maintenance. She was always ready and willing to stay with him. The learned Addl. District Judge-II, Una has come to the wrong conclusion that the appellant has treated the respondent with cruelty. The incidents narrated in the petition are trivial in nature. The instances quoted are daily wear and tear of the married life. The evidence led by the appellant rather proves that she has been treated with cruelty by the respondent and his family members. She was not permitted to complete her diploma course. Dowry demand was also raised by the respondent. The instances quoted are daily wear and tear of the married life. The evidence led by the appellant rather proves that she has been treated with cruelty by the respondent and his family members. She was not permitted to complete her diploma course. Dowry demand was also raised by the respondent. It is true that the appellant has filed case under Section 498-A and 406 of IPC, but it was due to the circumstances created by the respondent and his family members. The respondent has not even cared to provide proper maintenance to the appellant, since he has refused to pay the maintenance awarded under Section 125 Cr.P.C. The appellant has categorically stated in her cross-examination that she was ready and willing to live with the respondent. Moreover, the respondent has also not paid maintenance pendente lite and expenses of proceedings to the appellant. The respondent has failed to prove that he has been treated with cruelty by the appellant. 14. Their Lordships of the Hon'ble Supreme Court in Manisha Tyagi vs. Deepak Kumar reported in 2010(1) Divorce & Matrimonial Cases 451, have explained the term ‘cruelty’ as under: “24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonable be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that would be harmful or injurious to continue the cohabitation with the other spouse. Therefore, to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.” 15. Their Lordships of the Hon'ble Supreme Court in Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476, have explained the term ‘cruelty’ as under: “19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. Their Lordships of the Hon'ble Supreme Court in Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476, have explained the term ‘cruelty’ as under: “19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it ma be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial case can be of infinite variety – it may be subtle or even brutal and may be by gestures and word. That possible explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial case are never closed. 21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are (AC p.660) “.. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.” 22. “About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: (SCC p.108, para 5) “5. It will be necessary to bear in mind that there has been (a) marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. It will be necessary to bear in mind that there has been (a) marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.” 16. Consequently, the appeal is allowed. Judgment of the learned Addl. District Judge-II, Una dated 31.8.2015 is set aside. Pending applications, if any, shall stand disposed of. No costs.