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2022 DIGILAW 836 (HP)

Harjinder Kaur v. Davinder Singh

2022-12-16

VIRENDER SINGH

body2022
JUDGMENT : Virender Singh, Judge. Appellant-Harjinder Kaur has filed the present appeal, under Section 28 of the Hindu Marriage Act, against the judgment and decree, dated 13th March, 2009 (hereinafter referred to as ‘the impugned judgment and decree’) passed by the learned District Judge, Hamirpur (hereinafter referred to as ‘the learned trial Court’) in Hindu Marriage Petition No. 43 of 2005, filed under Section 13 of the Hindu Marriage Act. For the sake of convenience, parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court. 2. By virtue of the impugned judgment and decree, dated 13th March, 2009, the petition, filed by the petitioner, was ordered to be dismissed, by the learned trial Court. 3. Brief facts, leading to the filing of the present appeal, before this Court, as emerge, from the record of the learned trial Court, may be summed up, as under: Petitioner-Harjinder Kaur has filed petition under Section 13 of the Hindu Marriage Act, on the ground that she was married with respondent-Davinder Singh, on 5th December, 1999, at Village Kharwar, Tehsil and Police Station Bhoranj, District Hamirpur, H.P., according to the Hindu rites and rituals. The marriage was duly consummated and out of this wedlock, one son, namely Suminder, and one daughter, namely Simran Kaur, were born. Both the children are stated to be residing in the house of the respondent. Petitioner is stated to be serving as C.S.B.P. Grade II, in Army and posted, at the relevant time, at Shimla. 3.1 Petitioner has alleged that the behaviour of the respondent-husband and his family members was not good towards her and they had indulged in her character assassination. According to them, the petitioner was having extra marital relations with one Jaspal Singh, who is stated to be her colleague. Not only the respondent, but, the sister-in-law of the petitioner, also used to level such type of allegations. Respondent is stated to be abnormal person, having aggressive behaviour and due to his behaviour, the petitioner alleged that it is not possible for her to live with him. 3.2 On all these submissions, a prayer has been made to dissolve the marriage of the petitioner with the respondent, on the ground of cruelty. 4. Respondent is stated to be abnormal person, having aggressive behaviour and due to his behaviour, the petitioner alleged that it is not possible for her to live with him. 3.2 On all these submissions, a prayer has been made to dissolve the marriage of the petitioner with the respondent, on the ground of cruelty. 4. When put on notice, the petition has been contested by the respondent, by taking the preliminary objection that the petitioner cannot be permitted to take benefit of her own wrongs. 4.1 On merit, factum of marriage and the fact, that the parties to the marriage were blessed with two children, have not been denied, however, the allegations, which have been levelled against the respondent, have been denied. It has specifically been denied that the allegations were levelled against the petitioner by the respondent, as alleged. 4.2 It is the specific stand of the respondent that the petitioner had lastly visited the house of the respondent in April, 2005. Thereafter, she had gone to Shimla and never came back. After joining the service, the behaviour of the petitioner, towards the respondent, as well as, his family members, was totally changed. No one was there to look after the children. Lastly, it is the clear stand of the respondent that he is still ready and willing to keep the petitioner with him and to maintain her. 4.3 On the basis of the above facts, a prayer has been made to dismiss the petition. 5. The learned trial Court, on the basis of the stand taken by the parties, has framed the following issues on 28th October, 2005: “1. Whether the respondent had treated the petitioner with cruelty as alleged? OPP 2. Whether the respondent is a person of abnormal character? OPP 3. Relief.” 6. Thereafter, the parties to the lis were directed to adduce evidence. 7. In order to substantiate her stand, the petitioner has examined total three witnesses, including herself, whereas to controvert the said allegations, the respondent himself appeared as RW-1 and also examined Ranjit Kaur and Surjit Singh as two of his witnesses. 8. After the closure of the evidence, the learned trial Court, after hearing the learned counsel appearing for the parties, has dismissed the petition, vide the impugned judgment and decree, which has been assailed before this Court. 9. 8. After the closure of the evidence, the learned trial Court, after hearing the learned counsel appearing for the parties, has dismissed the petition, vide the impugned judgment and decree, which has been assailed before this Court. 9. The impugned judgment and decree, passed by the learned trial Court, has mainly been assailed, on the ground, that the findings of the learned trial Court, on issues No. 1 and 2, are based upon the misreading of evidence and the learned trial Court has wrongly dismissed the petition, despite the fact that there was sufficient material/evidence on record to substantiate the allegations, as levelled by the petitioner, in her petition. 10. The another ground of challenge is that the learned trial Court has misinterpreted the oral, as well as, the documentary evidence on record, as the petitioner has proved her case, beyond reasonable doubt, that she was being treated with cruelty, by the respondent. 11. According to the petitioner, there is nothing on record, which suggests that the version, made by her, on oath, is not correct. 12. It is also contended on behalf of the petitioner that the learned trial Court has not considered the fact that there were specific allegations of cruelty levelled against the respondent, however, the learned trial Court has wrongly dismissed her petition. 13. Much relying upon her evidence, as well as, evidence of PW-2, it is the case of the petitioner that the trial Court has wrongly discarded the evidence, according to which, specific allegations have been levelled against the respondent, as well as, his family members, that they had treated the petitioner with cruelty. 14. On the basis of the grounds, as mentioned in the grounds of appeal, the petitioner has prayed that the appeal may kindly be accepted, by setting aside the impugned judgment and decree and allowing the petition, for dissolution of marriage, as prayed for. 15. In order to buttress the contention of the petitioner, the learned counsel appearing for the petitioner has relied upon the decisions of Hon’ble Supreme Court in Satish Sitole versus Smt. Ganga, (2008) 7 SCC 743; Rishikesh Sharma versus Saroj Sharma, (2007) 2 SCC 263 ; Vijaykumar Ramchandra Bhate versus Neela Vijaykumar Bhate, (2003) 6 SCC 334 ; Romesh Chander versus Smt. Savitri, (1995) 2 SCC 7 ; and Sukhendu Das versus Rita Mukherjee, (2017) 9 SCC 632 . 16. 16. Per contra, learned counsel appearing for the respondent has supported the impugned judgment and decree, on the ground that vague allegations have been levelled, by the petitioner, in her petition and no evidence has been adduced to substantiate those vague allegations. 17. Highly relying upon the evidence of the respondent, a prayer has been made to dismiss the appeal, upholding the impugned judgment and decree. 18. Perusal of the stand taken by the parties, it is not in dispute that the petitioner is seeking the dissolution of her marriage with the respondent, mainly, on the ground of cruelty. Although, the learned trial Court has framed issue No. 2, regarding the alleged “abnormal character” of the respondent, but, to the considered opinion of this Court, this also comes within the realm of alleged cruelty by the respondent. 19. The term “cruelty” has not been defined anywhere in the Hindu Marriage Act. It is a relative term. It varies from person to person and case to case. Every type of allegations and conduct do not amount to cruelty, in every case. It depends upon the status of spouses and the atmosphere, in which they live. Cruelty need not be physical. It can be mental cruelty, making the life of other party to the marriage, miserable. 20. In order to succeed in the case, where one party to the marriage is seeking the dissolution of his or her marriage, mainly, on the ground of cruelty, it is incumbent upon the said party to allege specific instances of cruelty. Vague allegations are not sufficient to dissolve the marriage, on the basis of the alleged cruelty. 21. Since the onus was upon the petitioner to prove the fact that she was being treated with cruelty by the respondent, as such, it would be just and appropriate, for this Court, to discuss the evidence, so adduced by the parties. 22. After framing the issues, petitioner-Harjinder Kaur appeared in the witness box as PW-1. Apart from reiterating the stand, the manner, in which, she was married with the respondent and was blessed with two children, she has deposed that her husband had visited her at Shimla, where, she was serving in Army. The respondent had disclosed her that she had been receiving telephone from various persons and she is not woman of good character. It is her stand that those allegations were false. The respondent had disclosed her that she had been receiving telephone from various persons and she is not woman of good character. It is her stand that those allegations were false. According to her, the respondent-husband came to Shimla and used to sit near the telephone to see as to who would call her. One Jaspal Singh was working in Army at Shimla, who, according to her, had been transferred and the respondent wanted to talk to him, but, later on, he had refused to talk to said Jaspal Singh. Whenever the petitioner had visited her maternal house, then, the respondent used to inquire as to who had accompanied her. According to her, the respondent was suspecting her fidelity. She has further deposed that the respondent had also moved a complaint against the petitioner levelling all these allegations. 22.1 From the cross-examination, it is proved that the stand, as taken by the petitioner, in her examination-in-chief, regarding the manner, in which the respondent allegedly used to come to Shimla and inquire from her, is beyond pleadings, as such, the same is not liable to be considered. She has also admitted that no telephone had been installed at her residence and when she had joined her services at Shimla, the respondent had sent some money to her. With regard to the fact that the respondent had allegedly made the complaint to the superior of the petitioner, this witness has further deposed that the said complaint was made to Major Bichani. Interestingly, she has also admitted that she was not having any telephone at her residence. 23. PW-2, Kuldip Singh, is the father of the petitioner. According to him, on 14th April, 2005, he had called the respondent, who came to his house at Kharwar on 16th April, 2005, alongwith his parents. The respondent was enquired as to why he is torturing the petitioner. The respondent had again made allegations against the character of the petitioner. 23.1 Reiterating the stand of the petitioner, that the respondent was suspecting her character, this witness has deposed that the parents of the respondent were also making such allegations against the petitioner. 23.2 In the cross-examination, this witness has deposed that the respondent wants to get rid of the petitioner. He has further deposed that the respondent had been torturing his daughter since she was in her family way. 24. 23.2 In the cross-examination, this witness has deposed that the respondent wants to get rid of the petitioner. He has further deposed that the respondent had been torturing his daughter since she was in her family way. 24. PW-3, Madan Lal, was the Pradhan of Gram Panchayat Kharwar. In the month of April, 2005, this witness had called the parties and tried to persuade them to arrive at a settlement. Later on, the respondent allegedly told him that the said settlement was not possible, as, the petitioner is stated to be a woman of loose character. Interestingly, this witness has deposed that he was not knowing the respondent earlier and when he met the respondent, he was all alone in the market. Prior to April, 2005, this witness had not heard anything about the alleged dispute between the parties. 25. To controvert these allegations, respondent-Davinder Singh has appeared as RW-1 and reiterated his stand, in his examination-in-chief. He has denied that he had levelled any allegation against the petitioner about her alleged relations with one Jaspal Singh. He again has expressed his intention to keep the petitioner as his wife with him. He has admitted that on 16th April, 2005, there was a talk with regard to the compromise between the parties, but, the petitioner refused to come to the matrimonial home. Petitioner was working in Shimla from August, 2001. This witness used to visit the petitioner at Shimla and has stayed at Shimla for about 5-6 months. He has denied that the petitioner had given him Rs.7,000/- , so that he could join the computer course. This witness does not know who Jaspal was. He has also denied that he had ever suspected the character of the petitioner. 26. RW-2 Ranjit Kaur, is the resident of Village Kharwar. The petitioner is stated to be the daughter of her nephew. After the marriage, parties to the lis had resided peacefully. On 16th April, 2005, the father of the petitioner had called her. Consequently, this witness, alongwith her husband and the respondent, had gone there. When they were present there, the father of the petitioner proclaimed that he will send the divorce papers to the respondent. Lastly, she has deposed that the relative of the petitioner had also not apprised this witness that the respondent or his family had levelled allegations against the character of the petitioner. When they were present there, the father of the petitioner proclaimed that he will send the divorce papers to the respondent. Lastly, she has deposed that the relative of the petitioner had also not apprised this witness that the respondent or his family had levelled allegations against the character of the petitioner. The respondent had resided with the petitioner at Shimla for 2-3 years. At that time, he was doing private job at Chandigarh. Thereafter, he had started his work at Una. Further, she has feigned her ignorance about the private life of the parties to the petition. Rest, she has denied the suggestions, which have been put to this witness. 27. RW-3, Surjit Singh, is the father-in-law of the petitioner. The petitioner was working at Shimla from the year 2001. He has specifically stated that the son of this witness or any member of his family had ever levelled the allegations against the petitioner. The children of the parties to the marriage are being looked after by the family of this witness. He has reiterated the stand that his family is still treating the petitioner as their daughter-in-law. At the instance of the father of the petitioner, this witness had gone to their house where the father of the petitioner had disclosed about the divorce between the parties to the marriage. The petitioner had left the matrimonial home on 5th April, 2005, for Shimla. She was accompanied, up to bus stand, by the respondent. 27.1 The younger daughter of this witness was married in November, 2004. This witness has denied that in the said marriage, the petitioner had given Rs.10,000/- to him. He has specifically denied the suggestion that whenever the petitioner used to come to their house at Una and received any telephone call, then they used to suspect her fidelity. The son of this witness had lived with the petitioner for about 1½ – 2 years. Rest, this witness has denied all he suggestions, which have been put to him by the learned counsel appearing for the petitioner. 28. In view of the evidence discussed above, the factum of marriage has not been disputed, in this case, and it has also not been disputed that the parties to the marriage were blessed with two children, who are presently residing with the respondent. 29. 28. In view of the evidence discussed above, the factum of marriage has not been disputed, in this case, and it has also not been disputed that the parties to the marriage were blessed with two children, who are presently residing with the respondent. 29. The petitioner has approached the learned trial Court for dissolution of her marriage with the respondent mainly on the ground of cruelty. As discussed above, no precise definition of the term “cruelty” has been provided under the Hindu Marriage Act. 30. It seems that an attempt has been made by the petitioner to prove the alleged act of the cruelty, on the ground, that the respondent, as well as, his family members, used to level the allegations regarding the character of the petitioner. These facts have been pleaded by the petitioner in paras 6 and 7 of the petition. The respondent, in his reply, has categorically denied these allegations and expressed his intention that he is still ready and willing to keep the petitioner and to maintain her. 31. From the stand of the parties, as taken by them, in their respective pleadings, this Court is of the view that general allegations have been levelled by the petitioner against her husband, as well as, her in-laws. There is nothing on the file to show that when the respondent or his family members have levelled the allegations, which amount to character assassination, against the petitioner. 32. Bare perusal of the stand, as taken by the petitioner, in her petition, shows that no specific date or month has been alleged, when she had allegedly been treated with cruelty or when those allegations were levelled, which, according to the petitioner, amount to her character assassination. 33. In such situation, evidence of PW -2 and PW-3 is too short to corroborate the version of the petitioner, while appearing in the witness box, as PW-1. The stand of the petitioner, while appearing in the witness box, as PW-1 that on 16th April, 2005, her husband had visited her father’s house, is not sufficient to draw any conclusion that the respondent or his family members were suspecting her fidelity and used to level the allegations, which, according to the petitioner, were character assassination of the petitioner. The oral evidence of the petitioner is beyond pleadings and the stand, as taken in the petition, in paras 6 and 7. The oral evidence of the petitioner is beyond pleadings and the stand, as taken in the petition, in paras 6 and 7. The improved version of the petitioner is liable to be ignored and the same has rightly been ignored by the learned trial Court. 34. At the cost of repetition, vague allegations have been levelled by the petitioner against the respondent and those allegations are not liable to be accepted, as the respondent, in his pleadings, as well as in his deposition, has expressed his intention to live with the petitioner, in the matrimonial home. 35. Another fact, which has rightly been highlighted by the learned counsel for the respondent, in this case, that the respondent, in his reply to para 6, has specifically averred that after April, 2005, the petitioner neither visited the house of the respondent nor met with her children, who are being looked after by the respondent. Interestingly, this factual position has not been controverted by the petitioner by filing the rejoinder. This fact will give an occasion for this Court to draw an inference that the petitioner wants to take the benefit of her own wrong. 36. Bare perusal of the petition, filed under Section 13 of the Hindu Marriage Act shows that in the entire petition, vague allegations have been levelled and the petition, so filed, has also not been drafted, keeping in view the Rules, i.e. Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982. Rule 5, relevant sub-Rule (g) of the said Rules, is reproduced, as under: “5. Contents of Petition. - In addition to the particulars required to be given under Order VII, Rule 1 of the code and Section 20 (1) of the Act, all petitions under Sections 9 to 14 of the Act shall state:- (a)……... (b)……... (c)……... (d) … … … (e)… … … (f)……... Contents of Petition. - In addition to the particulars required to be given under Order VII, Rule 1 of the code and Section 20 (1) of the Act, all petitions under Sections 9 to 14 of the Act shall state:- (a)……... (b)……... (c)……... (d) … … … (e)… … … (f)……... (g) The matrimonial offences charged or other grounds, upon which relief is sought, setting out with sufficient particularity, the time and place of the acts alleged, and other facts relied upon, but not the evidence by which they are to be proved, e.g. (i) If the petition is for restitution of conjugal rights, the date on or from which and the circumstances under which respondent withdrew from the society of the petitioner; (ii) If the petition is for judicial separation/ divorce by either of the spouse on the ground that the other party has, after the solemnization of the marriage had voluntarily sexual intercourse with any other person, other than his or her spouse, the petitioner shall state the name, occupation and place of residence of such person or persons, so far as 5 they can be ascertained, the specific act of sexual intercourse and the occasion when and the place where such acts were committed; (iii) In case of the desertion, the date and circumstances in which it began; (iv) In the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed and that the petitioner has not in any manner condoned such acts of the respondent; (v) In a petition for decree of nullity of marriage on the grounds specified in clauses (c) and (d) of sub-section (1) of section 12 of the Act, the particulars of force or fraud and the circumstances in which force or fraud had been practiced along with the time when the facts relied upon were discovered and whether or not marital intercourse with the consent of the petitioner took place after the discovery of the said facts; (vi) In the case of unsoundness of mind or mental disorder, the time when such mental disorder or unsoundness of mind began to manifest itself and the nature and period of curative steps taken; (vii) In the case of virulent and incurable form of leprosy or venereal disease in a communicable form, when such ailment began to manifest itself and the nature and the period of curative 6 steps taken; (viii) In the case of conversion to another religion or of renouncing the world by entering any religious order, the date of renunciation or conversion and the particulars of religion or of religious order to which the respondent has entered into; (ix) In the petition on the ground specified in clause (vii) of sub-section (1) of section 13, the date and place where the respondent was last seen or heard alive and the steps, if any, taken to ascertain his or her whereabouts; (x) Where the petition is founded on any of the grounds specified in clause (ii) of sub-section (2) of section 13 of the Act, the occasion, place where and the name and address of the persons with whom the acts of rape or sodomy were committed or the particulars of the beast with whom the husband had been guilty of bestiality. In case of conviction for committing rape or sodomy, the particulars thereof; (xi) In a petition for divorce on the ground specified in clause (iii) of subsection (2) of section 13 of the Act, particulars of the decree under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or of an order under Section 125 of the Code of Criminal Procedure, 1973 together 7 with an affidavit that since the passing of such decree or order, there has been no co-habitation between the parties for a period of one year or upwards; (xii) In the case of a petition under clause (iv) of sub-section (2) of section 13 of the Act, the date and place of birth of the wife together with the date and place of repudiation and its mode; (xiii) The property mentioned in Section 27 of the Act, if any; (xiv) The relief or reliefs prayed for.” 37. The effect of non-compliance of Rule 5 of the aforesaid Rules, has duly been considered by the co-ordinate Bench of this Court in case, titled as Parvati versus Shiv Ram & Anr., reported in 1988 Civil Court Cases 533 (H.P.). Para 13 of the said judgment is reproduced, as under: “13. Acts of “cruelty” have to be specifically pleaded. In absence of such pleadings it would be impossible for the answering spouse to effectively meet the allegations. If specific allegations are not made with sufficient details no amount of evidence can cure the defect for it cannot be looked into. See Smt. Maya v. Brij Nath, AIR 1982 Delhi 240; Om Parkash v. Smt. Rajni, AIR 1988 Delhi 107:1988 Marriage Law Journal 281. The cruelty as a ground for divorce contemplated in Section 13(1)(i-is a conduct of such nature that the petitioner cannot reasonably be expected to live with the respondent. See Dr. Keshaorao Krishn ji Londhe v. Mrs. Nisha Londhe, AIR 1984 Bombay 413 FB; Varinder v. Major Ranjit Singh, ILR 1985 HP 807.” 38. So far as the arguments of the learned counsel appearing for the petitioner qua irretrievable breakdown of the marriage, is concerned, no such ground is available in Section 13 of the Hindu Marriage Act and the theory of irretrievable breakdown of marriage has been evolved by the Hon’ble Supreme Court by exercising power under Article 142 of the Constitution of India. As such, the case law, which has been relied upon by the learned counsel for the petitioner, does not help her case. 39. In view of the above, there is no occasion for this Court to differ with the findings recorded by the learned trial Court. As such, the impugned judgment and decree passed by the learned trial Court is upheld and the appeal is dismissed. 40. Pending miscellaneous applications, if any, shall also stand disposed of accordingly.