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2017 DIGILAW 2700 (RAJ)

Anita Daiya v. Beer Singh Kataria

2017-12-05

AJAY RASTOGI, DEEPAK MAHESHWARI

body2017
JUDGMENT Ajay Rastogi, J. - The instant misc. appeal is directed against the judgment & decree dated 26.09.2013 dismissing the application filed by the appellant under section 13 of the Hindu Marriage Act, 1955 (''the Act'') by the ld. Family Judge, Jhunjhunu. 2. The facts, in brief, relevant for our consideration are that marriage took place between the parties as per the Hindu customs and rituals on 11.11.1997 at Khetdi Nagar, District Jhunjhunu. Appellant-wife stayed at her matrimonial home situated at Gokalgarh, District Rewadi (Harayana) upto June, 2000. Husband(respondent Beer Singh was serving in State Bank of India at Kosikala (U.P.), who used to visit his wife at some intervals & from this wedlock a girl child Yashika was born on 23.11.2006. 3. On account of the matrimonial discord between the parties, petition under section 13 of the Act of 1955 came to be filed by wife Smt. Anita on the ground of cruelty as well as desertion on 17.02.2010. It has been averred in the petition that since beginning mother-in-law and brothers-in-law of appellant were not happy with appellant on account of dowry. They also accused the appellant for being dark in complexion and for infertility. When the complaint was made to husband in this regard, he also paid no heed to it. It was also alleged that brother-in-law of appellant Madan got one suicide note written by the appellant in the month of November, 1997. 4. On 10.10.2003, the appellant got appointed on the post of School Lecturer Grade Ist and was posted in Government Girls Higher Secondary School, Kolsiya, Tehsil Navalgarh, District Jhunjhunu and started living at Navalgarh since then. She was transferred to Government Higher Secondary School, Singana on 03.09.2010. On 23.11.2006, a girl child namely Yashika was born out of the wedlock at Mittal Hospital, Sikar, but in-laws'' family members were not pleased as they were expecting the birth of a son. 5. It has been averred in the petition that almost 21/2 years prior to filing of the petition on 17.02.2010, the husband withdrew himself from matrimonial relations and has deserted her. It was further averred that her brother-in-law Subhash was having bad intention and used to enter into her room without knocking the door. 5. It has been averred in the petition that almost 21/2 years prior to filing of the petition on 17.02.2010, the husband withdrew himself from matrimonial relations and has deserted her. It was further averred that her brother-in-law Subhash was having bad intention and used to enter into her room without knocking the door. An incident has also been narrated that on 11.08.2008, the parents & uncle of appellant had to rush up to Gokalgarh to take the appellant back to her maternal home as the in-laws were threatening her of dire consequences. It was also alleged that the respondent came to the school of the appellant on 09.02.2010 and misbehaved & humiliated her in presence of the other staff members of the school. In such circumstances, prayer was made by the appellant to pass a decree of divorce dissolving the marriage which took place on 11.11.1997. 6. In reply, the respondent husband has accepted the factum of marriage between the parties but has refuted the allegations made in the petition filed by wife. It has been stated that the husband respondent used to come and stay with his wife on frequent occasions as and when he got leave or holidays from the Bank. He has always been and also presently willing to fulfil his matrimonial obligations. All the allegations mentioned in the petition are baseless and without any substance. 7. In light of the pleadings following issues were framed by ld. Family Judge :- (I) - Whether the appellant Smt. Anita Daiya is entitled to get the decree of divorce of the marriage, which took place on 11.11.1997 with the respondent Beer Singh Katariya on the grounds mentioned in the petition? (II) - Whether the petition for divorce is liable to be rejected in light of the facts mentioned in the reply to the petition ? (III) -Relief ? 8. Appellant Smt. Anita Daiya got herself examined as AW-1 and also her uncle AW-2 Hari Singh Daiya. On behalf of respondent, he himself was examined as NAW-1 along with his brother NAW-2 Subhash and relative NAW-3 Bhupesh. After affording an opportunity of hearing to both the sides, ld. Family Judge proceeded to decide the issues against the appellant and accordingly, the petition filed by wife appellant was dismissed. 9. Ld. counsel appearing for the appellant submits that ld. After affording an opportunity of hearing to both the sides, ld. Family Judge proceeded to decide the issues against the appellant and accordingly, the petition filed by wife appellant was dismissed. 9. Ld. counsel appearing for the appellant submits that ld. Family Judge (''Trial court'') has not taken into consideration the evidence adduced by the appellant. No specific reference has been made in the judgment impugned to the statements given by the appellant and AW-2 Hari Singh Daiya. He submits that there is sufficient evidence available on record to prove the issues in favour of the appellant. Ld. trial court has committed an error in not properly appreciating the same. Both the grounds of cruelty as well as desertion are proved by the evidence adduced on behalf of the appellant. He submits that the appeal may kindly be allowed and decree for dissolution of marriage be awarded in favour of the appellant. 10. Per contra, ld. counsel appearing for the respondent husband submits that the judgment impugned is perfectly in accordance with the evidence available on record and no interference is called for in the judgment impugned dated 26.09.2013. 11. We have minutely examined the evidence available on record in light of the arguments advanced by rival sides. On perusal of the record, prima facie, it appears that the statements of NAW-1 Beer Singh Katariya & NAW-2 Subhash are sufficient to negate the evidence produced on behalf of the appellant. That apart, on perusal of the crossexamination of AW-1 Smt. Anita, it is found that the averments made in the petition are not proved on the principle of preponderance of probabilities. 12. Indisputably, the marriage between the parties took place on 11.11.1997, AW-1 Smt. Anita has stated in her cross-examination that Madan got a suicide note written from her on 15-16.11.1997. She has also admitted that no altercation took place between her and Madan on that day. It is not conceivable even to a man of ordinary prudence that just after 4-5 days of marriage, a suicide note could have been scribed by her for brother-inlaw for no obvious reason. It is to be noted further that admittedly no complaint was made by appellant Anita for forcibly getting a suicide note prepared by her brother-inlaw. In our view, this allegation is not reliable. 13. It is to be noted further that admittedly no complaint was made by appellant Anita for forcibly getting a suicide note prepared by her brother-inlaw. In our view, this allegation is not reliable. 13. In so far as the allegation of accusing Anita of being dark in complexion and for her infertility, the statements of Beer Singh negate this allegation. NAW-1 Beer Singh has stated in his cross-examination that he got himself treated from Dr. Dholkar at Delhi and she was under treatment for 2-3 months, and this fact goes to show that husband was aware and conscious of the fact that deficiency may be in any of the spouse and no adverse inference can be inferred that the in-laws of the appellant were accusing her only. Further, it is an admitted fact that a girl child was born out of the wedlock on 23.11.2006. So the allegation of infertility is not reliable. 14. Appellant Anita has stated that her husband did not come to Mittal Hospital, Sikar where birth of her daughter took place. But this allegation also cannot be given much credence in light of the clarification given by NAW-1 Beer Singh that at that point of time he was posted at Machhalipatam, Hydarabad and was undergoing training. It appears that due to exigencies of his service, he could not immediately come down to see their newly born baby but it cannot be considered as a ground of cruelty to the wife. 15. It has been stated by Anita that her in-laws were also humiliating her on account of insufficient dowry, but she has admitted in cross-examination that on 15.05.2002 her real younger sister Suman got married with Subhash, who happens to be her real brother-in-law. It has also been admitted by her that it was their arranged marriage. It is also admitted by her that she did not make any objection regarding this marriage. In this situation, it can easily be inferred that had there been any objectionable conduct of her in-laws for demand of dowry, the marriage of Subhash and Suman could have not been arranged by both the families after five years of marriage of Anita and Beer Singh. So this allegation also does not appeal to the logic. 16. AW-1 Anita has also alleged that her brother-in-law Subhash was having bad intention for her. So this allegation also does not appeal to the logic. 16. AW-1 Anita has also alleged that her brother-in-law Subhash was having bad intention for her. The reason assigned for this allegation is that he used to enter into her room without knocking the door. But the fact is not such or any complaint if any was made even to her own parents about such incidents if happened. On the contrary, NAW-2 Subhash has categorically denied such allegation in his cross-examination. He has stated that he has always been treating his brother Beer Singh and Bhabhi-Anita as his parents. This is further fortified by the fact admitted by Anita in her cross-examination that father of Beer Singh and Subhash died in their childhood and it was only Beer Singh who brought up their brothers since childhood. In the light of this, it appears beyond comprehension that Subhash could have had any bad intention towards Anita. 17. The allegation made by Anita that on 09.02.2010, her husband reached Kolasiya at about 5.30 p.m. and made a scuffle with her and humiliated her in presence of the other staff members also does not appear to be reliable because of the fact that Anita herself admitted in cross-examination that during winter season the school timing is from 10.30 a.m. to 4.30 p.m. Further no staff member in whose presence such alleged incident has taken place, has been examined to support the allegation. 18. Likewise, the allegation made by Anita that on 11.08.2008, she had to call upon her parents,who immediately had to come to Gokalgarh and to save her, is also not reliable as none of her parents have come in the witness-box to support the allegation. Uncle of Anita, Hari Singh Daiya is also said to have come to Gokalgarh who has been examined as AW-2, but he has admitted that he did not file any complaint against Beer Singh or his parents and his family members. Had such incident took place, it was obvious that at-least a formal complaint must have been made by Hari Singh to the parents of Anita in this regard. 19. Another allegation raised is of desertion. Anita has stated in her petition & also in her affidavit that 21/2 years prior to filing of the divorce petition, they have no cohabitation and has been deserted without reasonable cause. 19. Another allegation raised is of desertion. Anita has stated in her petition & also in her affidavit that 21/2 years prior to filing of the divorce petition, they have no cohabitation and has been deserted without reasonable cause. But NAW-1 Beer Singh has controverted the allegation regarding non-resumption of cohabitation since August, 2007. Beer Singh has also stated that she became pregnant in the month of February, 2008, and in July, 2008 the child had to be aborted on medical advice because the embryo was not properly developed. It is pertinent to note here that the issue of cohabitation between the spouse is so intimately personal to them that no other evidence can possibly be adduced in this regard. We are of the view that in the light of categorical statement of Beer Singh, it cannot be presumed that cohabitation has not taken place. 20. To prove the allegation of desertion, AW-1 Anita has stated that when she was residing in a rented house at Navalgarh, Beer Singh used to come and stay with her from Jhunjhunu, where he was posted. But at the same time Anita has stated that Beer Singh used to stay in the front room whereas she stayed in the rear room. Both of them used to cook their food separately till January, 2010. This statement appears to unreliable. If the respondent husband had to stay and cook his food separately from his wife, what was the occasion for him to frequently come to Navalgarh from Jhunjhunu. If the appellant admits the fact that her husband was frequently coming to Navalgarh from Jhunjhunu, her statement cannot be relied at all that he was staying separately and has deserted her. It needs to be noted further that neither the landlord nor any of the neighbours has been called in the witness box to support the allegation. Ld. trial court has also taken note of this fact in the judgment impugned and has rightly discarded the plea taken by the appellant. 21. In view of the discussion made above, we are of the view that allegations regarding the grounds of cruelty and desertion made by the appellant, have not been proved satisfactorily. When weighed on the scale of preponderance of probabilities, these grounds are not proved by the petitioner/appellant. In absence of the evidence to substantiate these grounds, ld. trial court has rightly rejected the petition. When weighed on the scale of preponderance of probabilities, these grounds are not proved by the petitioner/appellant. In absence of the evidence to substantiate these grounds, ld. trial court has rightly rejected the petition. The allegations of the appellant appear to be very vague and general in nature which can simply be treated in the category of ordinary wear and tear of married life and cannot go to that extent of cruelty which can be considered as a ground for divorce. 22. Ld. Counsel appearing for the appellant has relied upon Jasminder Singh vs. Smt. Prabhjinder Kaur, reported in AIR 2008 P & H 13, wherein it has been held that denial of sexual intercourse by wife to husband constitutes mental torture, for which he is entitled to get the decree of divorce. He has also relied upon Prashant Kumar Bhagat @ Biltu @ Biltu Kumar vs. Kalpana Devi, reported in III(2013) DMC 140 (DB) (Jhar.), wherein non-resumption of cohabitation between the parties for a period of more than 01 year and the fact of their living separately for last 11 years was taken to be the sufficient ground for passing of the decree of divorce. It was also inferred that their marriage has come to the point of irretrievable breakdown and it will not be possible for the parties to live together any more. In our considered view these judgments are of no assistance to the appellant in the facts & situation of the instant case. Non-resumption of cohabitation by the respondent husband has not been proved on facts. Likewise, fact of desertion has also not been established by the appellant wife. 23. Hon''ble Apex Court in Praveen Mehta vs. Inderjit Mehta, reported in (2002) 5 SCC 706 has defined cruelty as under:- "Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental cruelty due to conduct of the other." 24. Hon''ble Supreme Court in Naveen Kohli vs. Neelu Kohli, reported in 2006(4) SCC 558 has quoted the definition of cruelty from celebrated book of D.Tolstoy "The Law and Practice of Divorce and Matrimonial Causes" as under :- "Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger." 25. Taking note of the above observations, we are of the opinion that to constitute cruelty as a ground of divorce envisaged under section 13(1)(ia) & (ib) of the Act of 1955, the conduct complained of should be very grave and weighty so as to arrive to the conclusion that the aggrieved spouse cannot be reasonably expected to live with the partner. At the same time, the alleged cruelty must be something more serious and grave than the ordinary wear and tear of married life. At the same time, the alleged cruelty must be something more serious and grave than the ordinary wear and tear of married life. We are of the view that on the case in hand firstly, the allegations made by the appellant have not been satisfactorily proved and secondly, the very nature of allegations made appear to be only ordinarily wear and tear of married life which may not tantamount to cruelty for which the decree of divorce can be granted & that apart the appellant failed to justify from the evidence adduced before the ld. Family Court that she was deserted for a period of more than two years since presentation of the petition and after going through the finding of fact recorded by ld. Family Court on both the issues under the impugned judgment & decree dated 26.09.2013, we find no perversity in the finding recorded which may call for our interference. 26. Before parting with the order, we would like to observe that the parties are in litigation for almost 08 years and the allegations are of very trivial in nature which may not at all affect the marital bonding between the parties and both of them may forgo and forgive their past deeds and bitter experience and think for the betterment of their grown up daughter, which may be in the interest of their family and it may also bring harmony and peace which cannot be borrowed but to be restored for better future. After taking note of the above facts, we come to the conclusion that no interference is required to be made in the judgment & decree impugned dated 26.9.2013 and accordingly the appeal deserves to be and is dismissed.