Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1636 (HP)

Daya Kaushal v. Bhup Singh

2019-10-31

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this appeal, the appellant has challenged judgment dated 10.04.2015, passed by the Court of learned Additional District Judge-1, Mandi, H.P., Camp at Karsog in HMP No. 53/2012, titled as Daya Kaushal Vs. Sh. Bhup Singh, vide which, the petition filed by the appellant under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 for a decree of divorce by dissolution of marriage stood dismissed. 2. Brief facts necessary for the adjudication of the present appeal are that appellant-petitioner (hereinafter referred to as 'the petitioner’) filed a petition under Section 13 (1) (ia) of the Hindu Marriage Act for dissolution of marriage by a decree of divorce. Her case was that she was married to the respondent on 23.01.2003 as per Hindu Rites and Customs at Hateshwari Mata Temple Hatgarh, Tehsil Sadar, District Mandi, H.P. Out of the said wedlock, one daughter was born, who at the time of filing of the petition was about eight years old. The parties lived together as husband and wife for a period of three years after solemnization of marriage, but thereafter they started living separately on account of differences between them. It was further case of the petitioner that respondent and his family members gave beatings to the petitioner on 25.10.2005. They also turned her out alongwith daughter from their house. In these circumstances, she lodged an FIR against the respondent and others under Section 498-A of the Indian Penal Code, which culminated into filing of a challan against the respondent as also his family members, which was pending adjudication before the appropriate Court of law. As per the petitioner, since she was residing separately for the last six years and there had been no cohabitation between the parties and no reconciliation was possible, therefore, she was entitled for a decree of divorce on account of desertion and cruelty. 3. The case of the petitioner was refuted by the respondent in reply. The stand of the respondent in the reply was that it was the petitioner, who used to quarrel with the respondent on petty matters and it was she who was not intending to live with the respondent as his wife. As per the respondent, the petitioner was residing separately without any cause and he was ready to take back the petitioner to his house. As per the respondent, the petitioner was residing separately without any cause and he was ready to take back the petitioner to his house. The factum of the parties being parents to an eight years daughter was not denied. Further, as per the respondent, the case which stood initiated against him and his family members under Section 498-A of the Indian Penal Code was a false case, which ultimately resulted in the acquittal of the accused by the Court of learned Judicial Magistrate, 1st Class, Karsog. It was further the stand of the respondent that petitioner was in the habit of levelling false allegations against the respondent, as she wanted to get rid of him. His behaviour towards the petitioner was always cordial. He reiterated in the reply that he was ready and willing to take back the petitioner to his house and he had requested the petitioner to come to his house. On these basis, the prayer of the petitioner for grant of decree of divorce was contested by the respondent. 4. On the basis of respective stands of the parties, learned Trial Court framed the following issues: “1. Whether the respondent is treating the petitioner with cruelty and the petitioner is entitled for the divorce on the ground of cruelty? OPP 2. Whether the respondent has deserted the petitioner without any reasonable cause and the petitioner is entitled for the divorce on the ground of desertion also? OPP 3. Whether this petition is not maintainable without any cause of action? OPD 4. Relief.” 5. On the strength of the evidence which was placed on record by the respective parties to prove their case, the issues in hand were decided by the learned Court below as under: “Issue No. 1: No. Issue No. 2: No. Issue No. 3: Yes. Relief: The petition is dismissed as per operative part of the judgment.” 6. The petition so filed by the petitioner was dismissed by the learned Court below by holding that admittedly, the petitioner was working as a PTA teacher and she was residing separately for the purpose of her job and it was she who had categorically stated that she does not intends to reside with the respondent. The petition so filed by the petitioner was dismissed by the learned Court below by holding that admittedly, the petitioner was working as a PTA teacher and she was residing separately for the purpose of her job and it was she who had categorically stated that she does not intends to reside with the respondent. Learned Court further held that respondent had stated in the Court that he was ready to take back the petitioner to his house even after the decision of the Criminal case, yet it was the petitioner who was refusing to reside with the respondent. It thus held that this demonstrated that it was not the respondent who had deserted the petitioner and he rather wanted to take the petitioner back. He was also ready to pay maintenance to the petitioner despite the fact that the petitioner was earning as a PTA teacher and evidence produced on record demonstrated that the petitioner was not deserted by the respondent and in order to do her job, she was residing separately from the respondent. On these basis, learned Court below held that as the petitioner has failed to prove that the respondent had subjected her to cruelty or had deserted her, the petitioner was not entitled for a decree of divorce. 7. Feeling aggrieved, the petitioner has filed the present appeal. 8. I have heard learned counsel for the parties and have also gone through the judgment passed by the learned Court below as well as record of the case. 9. In brief, I have already stated hereinabove the respective case of the parties as it was before the learned Trial Court. 10. A perusal of the record demonstrates that in order to prove her case, petitioner alone entered into the witness box. She deposed in the Court that she was married with the respondent on 23.01.2003. From the said wedlock, one girl was born, who was about 10 years old when she deposed in the Court. After marriage, she was ill-treated by the family of the respondent, who physically abused her. She was also maltreated on account of not bringing sufficient dowry. She stated that on 25.10.2005, the entire family of the respondent gave physical beatings to her, which was duly reported to the police, which resulted in the lodging of proceedings under Section 498-A of the Indian Penal Code against the respondent and his family. She was also maltreated on account of not bringing sufficient dowry. She stated that on 25.10.2005, the entire family of the respondent gave physical beatings to her, which was duly reported to the police, which resulted in the lodging of proceedings under Section 498-A of the Indian Penal Code against the respondent and his family. It was further her case that the respondent had never come to take her back to the matrimonial house. In her cross-examination, she denied the fact that after 5-6 months as from the date of marriage, she on her own had started proceeding to her parental house and her parents were insisting upon the respondent to reside in the parental house of the petitioner. She denied that she had levelled false allegations against the respondent at the behest of her mother. She categorically stated that she was not intending to reside with the respondent. She denied the suggestion that she had taken the entire dowry with her to her parental house. She denied that she was lavelling false allegations against the respondent just to cook up a case for grant of divorce. She stated that she was serving as a PTA teacher and was drawing salary to the tune of Rs.15,000/- per month. 11. On the other hand, in order to prove his case, respondent Bhup Singh also entered into the witness box as RW-1 and he also examined one Shri Munshi Ram in support of his case. In his examination-in-chief, respondent stated that he was married to the petitioner on 23.01.2003 and they were parents to a girl child. He stated that after marriage, relations between the parties were normal for about three months and thereafter his wife started proceeding to her parental house, which was objected to by him. He further deposed that in between 2003-2006, petitioner mostly resided in her parental house and sparsely lived with him. He deposed that on 25.10.2005, his wife registered a Criminal case against him at Police Chowki Rewalsar. The case was ultimately found to be false. He had requested the petitioner to reside with him at his house, but petitioner refused to do so. He was paying the maintenance to his daughter as was ordered by the Court. The case which was filed by the petitioner against him and his family members under Section 498-A of the Indian Penal Code has resulted in their acquittal. He had requested the petitioner to reside with him at his house, but petitioner refused to do so. He was paying the maintenance to his daughter as was ordered by the Court. The case which was filed by the petitioner against him and his family members under Section 498-A of the Indian Penal Code has resulted in their acquittal. He further stated that despite the said Criminal Case which was instituted against him at the behest of the petitioner, he was willing to take her back, however, she had refused to accompany him. He further stated that he was still willing to take the petitioner alongwith him. 12. RW-2 Sh. Munshi Ram deposed in the Court that he knew the parties, who were residents of his village. He further stated that respondent was his Taya’s son. He further stated that the petitioner was never maltreated during her stay at her matrimonial house. In his cross-examination, he denied the suggestion that the petitioner was subjected to any physical abuse by the family of the respondent. This is the entire evidence which is on record. 13. It is settled law that any proceedings which are initiated under Section 13 of the Hindu Marriage Act, in case a party alleges cruelty, then onus is upon the said party to prove the cruelty. When instances of cruelty are mentioned in the petition so filed under Section 13 of the Hindu Marriage Act, then the averments made to this effect have to be substantiated by bringing on record cogent evidence. In the present case, the factum of cruelty being meted out to the petitioner by alleged beating of her by the family of the respondents, has not been proved by the petitioner by bringing on record any evidence whatsoever. Therefore, the allegation of the petitioner that she was subjected to physical abuse by the family of the respondent as also by the respondent remained un-substantiated before the learned Trial Court. Even as far as the factum of desertion is concerned, the petitioner failed to prove it before the learned Trial Court. It is a matter of record that the proceedings which were initiated against the respondent and his family members under Section 498-a of the Indian Penal Code resulted in the acquittal of the respondent as also other coaccused and said judgment has attained finality. 14. It is a matter of record that the proceedings which were initiated against the respondent and his family members under Section 498-a of the Indian Penal Code resulted in the acquittal of the respondent as also other coaccused and said judgment has attained finality. 14. During the course of his deposition in the Court, repeatedly respondent stated that he was willing to take the petitioner to his house, but it was the petitioner who was refusing to accompany him. A perusal of the statement made in the Court by the petitioner categorically demonstrates that she refused to reside with the respondent. That being the case, it cannot be said that the appellant had proved the factum of her being deserted by the respondent before the learned Court below. It is also not in dispute that the petitioner is working as a PTA teacher and she is residing at the place of her posting. 15. Even during the course of arguments, learned counsel for the respondent made a submission that at this stage also, the respondent is willing to take the appellant back to his house, but learned counsel for the appellant submits that as the marriage has irretrievably broken down, the appellant is not willing to reside with the respondent. 16. Be that as it may, as record clearly demonstrates that the appellant has not been able to prove either cruelty or desertion on the part of the respondent against her and further as the findings returned by the learned Court below are duly borne out from the record of the case, therefore, as this Court finds no merit in the present appeal, the same is dismissed, so also pending miscellaneous applications, if any. No order as to costs.