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2023 DIGILAW 265 (HP)

Naresh Chand v. Shrimati Mukesh Devi

2023-05-12

VIRENDER SINGH

body2023
JUDGMENT : Virender Singh, J. Appellant Naresh Chand has preferred the present appeal under Section 28(3) of the Hindu Marriage Act (hereinafter referred to as “H.M Act”) against the judgment and decree dated 20.11.2008, passed by the learned District Judge, Sirmaur District at Nahan, H.P (hereinafter referred to as “trial Court”) in HMA Petition No. 23-HMA/3 of 2005, titled as Sh. Naresh Chand versus Smt. Mukesh Devi. 2. By way of judgment and decree dated 20.11.2008, the learned trial Court has dismissed the petition filed by the appellant under Section 13(i) (ia) of H.M Act. 3. For the sake of convenience, the parties, to the present appeal, are hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court. 4. The facts, in brief, leading to the filing of the present appeal before this Court, may be summed up, as under:- 4.1 The petitioner-husband Naresh Chand has filed a petition under Section 13 (i) (ia) of H.M Act before the learned trial Court, seeking dissolution of marriage with respondent-wife Mukesh. 4.2 As per the stand taken in the petition, the parties to the lis were married, as per Hindu rites and rituals, in the year 1985 at Village Tamela Ghari, Tehsil Baroth, District Bagpath, U.P. The parties to the lis were blessed with one son, namely Sandeep Kumar, and two daughters, namely Seema Devi and Shalini Devi. Son Sandeep Kumar is stated to be residing with the petitioner and daughters are stated to be residing with the respondent. After solemnization of marriage, the petitioner and the respondent resided at village Tamela, District Bagpath for a period of three years. 4.3 Thereafter, in the year 1988, they have shifted to Village Dhaula Kuan, Tehsil Paonta Sahib, District Sirmaur, H.P. At the said place, the petitioner has started cloth business in the name and style of “M/S Naresh Cloth House”, Dhaula Kuan. 4.4 It is the further case of the petitioner that in the year 2000, respondent Mukesh Devi, without any reason started quarrelling, rebuking and ill-treating the petitioner and has become disobedient to the petitioner. She even refused to cook food for him and started insulting the petitioner in presence of the neighbours. She has also threatened to commit suicide and also refused to cohabitate with him. The respondent used to call the petitioner a drunkard, gambler and characterless. She even refused to cook food for him and started insulting the petitioner in presence of the neighbours. She has also threatened to commit suicide and also refused to cohabitate with him. The respondent used to call the petitioner a drunkard, gambler and characterless. 4.5 As such, according to the petitioner his image has been lowered down in the society. However, the petitioner tolerated all the above acts of the respondent with a hope that she would mend her behaviour in future. 4.6 On 25.04.2005, as per the case set up by the petitioner, the respondent, without informing him, left the matrimonial home, alongwith minor daughter Kumari Shalini. The efforts to trace both of them remained futile. Thereafter, the petitioner was forced to lodge a report in Police Post Majra of Police Station, Paonta Sahib about the missing of the respondent and his minor daughter. On his complaint, police has issued advertisement on 27.04.2005. However, on 04.05.2005, respondent, alongwith minor daughter, returned back to matrimonial home, but, in the next morning i.e. on 05.05.2005, respondent reached at the shop of the petitioner and rebuked him. When, the petitioner has asked her as to where she had gone, the respondent become furious and tried to beat him. The respondent, thereafter, told the petitioner that she would finish him or commit suicide or implicate him in some false case. She has also threatened the petitioner that she would set the shop on fire. The petitioner has lodged the complaint with the police on the same day. 4.7 It is the further case of the petitioner that prior to above mentioned incident, on 06.04.2005 a local Panchayat was held in presence of Sanjeev Bansal, Ex-BDC Chairman, Dhaula Kuan and Ravinder Kumar, Nirmal Kaur, Ex-Pradhan and Pradhan of Gram Panchayat Dhaula Kuan, where disputes between the parties were settled and in this behalf, a written compromise was also made. On 15.05.2005, the respondent again quarreled with the petitioner and had beaten the petitioner. Thereafter, she has also threatened the petitioner with dire consequences. The petitioner has again lodged a complaint with the police. The efforts of the police to settle the matter also remained futile. 4.8 On 23.05.2005, the respondent, as per the further case of the petitioner, had called him in the room and started beating him and threatened him to kill him. The petitioner has again lodged a complaint with the police. The efforts of the police to settle the matter also remained futile. 4.8 On 23.05.2005, the respondent, as per the further case of the petitioner, had called him in the room and started beating him and threatened him to kill him. She has also threatened the petitioner to set herself on fire with kerosene oil or will commit suicide by consuming poison. The petitioner, thereafter, took the premises of one Smt. Goru on rent for the residence of the respondent, where, she has been staying alongwith her two daughters. Since June, 2005 all the efforts of the petitioner-husband to make the respondent-wife understand remained futile. 4.9. It has been pleaded by the petitioner-husband that it has now become impossible for him to live with the respondent as husband and wife. The respondent is living separately since June, 2005. 4.10. On all these submissions, a prayer has been made to dissolve the marriage of the petitioner with the respondent, on the ground of cruelty. 5. When put on notice, the respondent-wife has contested the petition, by taking preliminary objection of the petition being not maintainable. 5.1 On factual position, the factum of marriage has not been disputed. However, allegations, which have been leveled against her, have been denied and controverted. 5.2 She has asserted that respondent, as well as, her minor daughters are living at the mercy of neighbours, as the petitioner is not maintaining them, despite the orders being passed by the learned JMFC, Paonta Sahib. So far as convening the Panchayat, as per the claim of the petitioner, is concerned, it has been admitted that the matter was reconciled, where, the petitioner, tendered his apology and agreed that in future, he will not ill-treat the respondent, in any manner, and will provide each and everything to her. 5.3 On all these submissions, a prayer has been made to dismiss the petition. 6. The petitioner has filed rejoinder, denying the preliminary objection, as well as, factual position by virtue of which, the petition has been contested by the respondent. 7. From the pleadings of the parties, learned trial Court has framed the following issues, vide order dated 17.05.2006:- 1. Whether the respondent-wife has been treating the petitioner-husband with cruelty, as alleged? OPP 2. Whether the petition is not maintainable in the present form? OPR 3. Relief.” 8. 7. From the pleadings of the parties, learned trial Court has framed the following issues, vide order dated 17.05.2006:- 1. Whether the respondent-wife has been treating the petitioner-husband with cruelty, as alleged? OPP 2. Whether the petition is not maintainable in the present form? OPR 3. Relief.” 8. Thereafter parties to lis were directed to adduce evidence. 9. Consequently, parties to the lis have led oral, as well as, documentary evidence. 10. After closure of evidence and after hearing the learned counsel for the parties, the learned trial Court has dismissed the petition, filed by the petitioner for divorce. Vide judgment which is under challenge before this Court. 11. Feeling aggrieved from the said judgment, the present appeal has been filed before this Court, challenging the judgment and decree, on the ground that learned trial Court has failed to appreciate the factual position involved, in the present case. 12. According to the petitioner-husband, the learned trial Court has failed to appreciate the statements of PW-2 (Fakir Chand) and PW-3 (Tilak Ram), as well as, documents produced by the petitioner before the learned trial Court. 13. On the basis of the grounds of appeal, Sh. Dibender Ghosh, learned counsel for the petitioner-husband, prays that the appeal may kindly be allowed by setting aside the judgment and decree dated 20.11.2008, passed by the learned trial Court and marriage between the parties to the lis may kindly be dissolved, as prayed for. 14. Per contra, Ms. Shalini Thakur, learned counsel for the respondent-wife, has supported the impugned judgment and decree on the ground that the petitioner himself is not sure about his case and as such, learned trial Court has rightly appreciated the evidence, so adduced by the parties to the lis and thus, rightly dismissed the petition. 15. As stated above, after framing issues, the learned trial Court has directed the parties to adduce evidence. 16. Consequently, the petitioner himself stepped into the witness box as PW-1. In examination-in-chief, he has asserted the factual position as mentioned in the petition. 16.1 In his cross examination, he has admitted that he has studied up to 12th class, whereas, respondent is illiterate. This witness had lived in the matrimonial home with the respondent up to 23.05.2005. 16. Consequently, the petitioner himself stepped into the witness box as PW-1. In examination-in-chief, he has asserted the factual position as mentioned in the petition. 16.1 In his cross examination, he has admitted that he has studied up to 12th class, whereas, respondent is illiterate. This witness had lived in the matrimonial home with the respondent up to 23.05.2005. This witness had admitted that the respondent has filed the maintenance application against him in the Court at Paonta Sahib and in the said proceedings, he has been ordered to pay maintenance. On the date, when this witness appeared into the witness box, he has admitted that he has to pay the arrears of maintenance. He has also expressed his intention by deposing that even if the respondent is ready to live with him in the matrimonial home, he is not willing to live with her. The respondent is earning her livelihood by sewing. He has further admitted that no case has been registered against the respondent on the basis of the complaint moved by him on 05.05.2005. 17. PW-2 (Fakir Chand) has filed an affidavit in his examination-in-chief. According to this witness on 06.04.2005 a Panchayat was convened at Dhaula Kuan, in which, he, alongwith Mr. Bansal, Ex-BDC Chairman, Sirmaur District, Sh. Ravinder and Nirmal, Ex-Presidents of Gram Panchayat, Dhaula Kuan were present. In the said Panchayat, efforts to resolve the dispute, by impressing upon the respondent, not to use unparliamentarily language and to reside with the petitioner like a good wife, were made, however, respondent had turned down the request. He has further deposed that on 20.01.2006, at about 11 a.m., when he was sitting in the shop of petitioner, the petitioner was out of station, as such, his son was looking after the affairs of the shop, respondent reached the shop and asked whereabouts of her husband, upon which, his son told her that he had no knowledge about his whereabouts, upon which, the respondent threatened to send the petitioner in jail by involving him in some heinous crime and also threatened to set the shop of the petitioner on fire. She has told her son that his father is characterless, gambler and drunkard. She has further threatened to commit suicide and to send the petitioner to Jail. She has told her son that his father is characterless, gambler and drunkard. She has further threatened to commit suicide and to send the petitioner to Jail. 17.1 He further deposed that he and Tilak Ram Son of Shiv Ram, Tailor Master at Dhaula Kuan, Charan Dass Son of Itwari Lal resident of Dhaula Kuan, requested her not to use unparliamentary language against the petitioner, but, the request made by this witness, Tilak Ram and Chaman Dass, fell on deaf ears. This witness used to purchase articles from the shop of the petitioner. 17.2 In his cross-examination, he deposed that the compromise Ex. PW-1/A was readover to the parties. In the said compromise, the petitioner, according to this witness, has admitted that he will not quarrel with his wife and will pay maintenance to her. This witness has admitted that the bone of contention between the parties was the fact that the petitioner was not paying the maintenance to the respondent as well as her children. According to this witness, he has no knowledge about any incident prior to 20.01.2006 and after 20.01.2006. 18. PW-3 (Tilak Ram) has deposed that on 05.05.2005, at about 9.00 a.m., respondent came to the shop of the petitioner and rebuked him. When the petitioner enquired from her as to where she had gone, the respondent became furious and ready to beat him and threatened him that she would implicate him in false case or set his shop on fire. This witness and Charan Dass requested the respondent not to quarrel with her husband, but their request was not accepted by her. The alleged incident had taken place at about 9.00-9.30 a.m., on 9.9.2005. 19. PW-4 (Charan Dass) has also supported the case of the petitioner qua the alleged incident, which had taken place on 05.05.2005 at about 9.00 a.m. In his cross-examination, he has deposed that on the date of alleged incident, which had taken place on 05.05.2005, only the petitioner and his wife were present in the shop. However, this witness could not spell out the day of the incident. 20. To rebut this evidence, respondent Mukesh Devi has filed her affidavit in which she has asserted that her husband Naresh Kumar has filed the present case with an intention to obtain divorce. The petitioner-husband is escaping from his liability. The petitioner-husband used to beat her. However, this witness could not spell out the day of the incident. 20. To rebut this evidence, respondent Mukesh Devi has filed her affidavit in which she has asserted that her husband Naresh Kumar has filed the present case with an intention to obtain divorce. The petitioner-husband is escaping from his liability. The petitioner-husband used to beat her. 20.1 In cross-examination, this witness had admitted that about 22 years ago, they had shifted from Bagpat, U.P to Dhaula Kuan. She has denied all the suggestions, which were put to her by the petitioner in order to prove his case. 20.2 In addition to this, she has also deposed that at Dhaula Kua, they used to reside in a rented accommodation. The respondent further deposed that whenever she had lived with the petitioner, he used to provide her the basic amenities of life, but voluntarily stated that from the last 2 ½ years, the petitioner is not paying any maintenance to her. Rest, she has denied all the suggestions which have been put to her, by the learned counsel for the petitioner. 21. In addition to this, respondent has also examined RW2 (Madan Lal), who has exonerated the respondent from all the allegations, which have been leveled against her by the petitioner. In cross-examination, he has admitted that there were number of shops adjacent to the shop of the petitioner. 22. RW-3 (Gian Chand) has also deposed almost on the same lines. In cross-examination, the factum of convening a Panchayat to settle the disputes between the parties, has also been admitted by him, but he feigned his ignorance qua the fact that the respondent has also been called in the said Panchayat or not. Rest he has denied all the suggestions, which were put to him, by the learned counsel for the petitioner. 23. So far as documentary evidence is concerned, Ex.PW-1/A is the copy of the compromise dated 06.04.2005. 24. The learned trial Court has rejected the prayer of the petitioner to dissolve his marriage, with the respondent, on the ground that he could not prove the fact that he has been treated with cruelty by the respondent. These findings have been assailed by the petitioner before this Court. 25. As per the stand taken by the petitioner, he is seeking dissolution of marriage, with the respondent, mainly on the ground of “cruelty”. These findings have been assailed by the petitioner before this Court. 25. As per the stand taken by the petitioner, he is seeking dissolution of marriage, with the respondent, mainly on the ground of “cruelty”. “Cruelty” has not been defined in the H.M Act. It varies from person to person and case to case. Moreover, the legal concept of “cruelty” in matrimonial offences is not confined to the act of causing physical injury. It includes the mental cruelty also. The allegations and conduct do not amount to “cruelty” in every case. It depends upon the status of the spouses and atmosphere, in which they live. 26. In order to succeed in the matrimonial case, the party approaching to the Court, for dissolution of marriage, must prove that the “cruelty”, as alleged by him or her, is of such type, which will satisfy the conscience of the Court, that the relationship between the parties to the marriage, has deteriorated to such an extent that it has now become impossible for them to live together, as husband and wife. The routine wear and tear in the matrimonial life does not amount to “cruelty”. 27. Since, the petitioner-husband has approached the Court for seeking dissolution of his marriage with the respondent-wife, as such, heavy onus is upon him to plead and prove that he has been treated with “cruelty” by the respondent-wife. 28. The person, who is approaching to the Court, must plead each and every fact relating to the discord. In the pleadings, the petitioner has not bothered to mention the material facts that the respondent-wife has filed the petition for maintenance against him. Although, the respondent has also not bothered to prove the same by filing reply nor she has proved this fact when she was ordered by the learned trial Court to adduce evidence, but the petitioner, in the cross-examination has admitted that the respondent has filed an application for maintenance against him, in which, he has been directed to pay maintenance. A factual position once admitted by the petitioner, the same has to be considered by the Court to the disadvantage of petitioner husband. 29. Much has been pleaded and deposed by the petitioner to substantiate his stand, but the material documents, demonstrating the conduct of the respondent, have simply been marked, which are not liable to be considered. 30. A factual position once admitted by the petitioner, the same has to be considered by the Court to the disadvantage of petitioner husband. 29. Much has been pleaded and deposed by the petitioner to substantiate his stand, but the material documents, demonstrating the conduct of the respondent, have simply been marked, which are not liable to be considered. 30. There is substance in the argument of learned counsel for the respondent, when she has drawn attention of this Court towards the much relied document by the petitioner husband i.e. Ex.PW-1/A. This document has heavily been relied upon by the petitioner, as in paragraph 11 of the petition, he has pleaded that a Panchayat was convened on 06.04.2005 and the dispute between them was got settled by the respectables. 31. No doubt, in document Ex. PW-1/A, under clause 3, it has been mentioned that respondent has admitted that she will not abuse her husband, but, the document cannot be read in piecemeal, it has to be considered in its entirety. In clause 1 of Ex.PW-1/A, it has been mentioned that both the parties to the marriage have admitted their mistakes and assured that in future, they will not quarrel with each other. In clause 2, the petitioner husband has admitted that he will pay the maintenance to his wife. Since the petitioner has approached the Court, as such, according to this document, the petitioner himself proved to be at fault. Whatsoever mentioned in this document, can be considered to the disadvantage of the petitioner. It seems that the petitioner wants to take advantage of his own wrong. Situation would have been otherwise, had there not been any allegations against the petitioner in the compromise Ex.PW-1/A. In absence of the allegation against the respondent qua abusing her husband, no benefit can be derived by the petitioner from this document (Ex.PW-1/A). 32. The routine wear and tear and trivial disputes between husband and wife normally occurs in every marriage. Although, marriage is very close and intimate relationship between a man and a woman, who, at one point of time, were strangers to each other but suddenly thrown together into a relationship. It is but natural that they will take time for adjustment. Some time such adjustment is smooth or sometime it may be rough depending upon the nature of the parties. 33. It is but natural that they will take time for adjustment. Some time such adjustment is smooth or sometime it may be rough depending upon the nature of the parties. 33. The marriage between the parties had taken place in the year 1985. They have been blessed with three children and due to the routine wear and tear of marriage, they have been compelled by the circumstances, to litigate each other. The respondent-wife has sought maintenance from her husband petitioner, whereas petitioner-husband could not prove the act of the respondent within the purview of “Cruelty”. 34. The petitioner could not prove the allegations leveled against the respondent. The material documents, as relied upon by him, in the pleadings have simply been marked. He has not bothered to prove those documents in accordance with law. The witnesses, so examined by the petitioner, have also failed to prove his case. Even otherwise, if the statements of those witnesses are considered as it is, the same can not cross the limit of routine wear and tear and are too short to prove the term “cruelty”. The respondent has been compelled by the petitioner to knock the door of the Court of JMFC, Paonta Sahib to seek maintenance. 35. Considering all these facts, this Court is in full agreement with the conclusion drawn by the learned trial Court and the same does not require interference. No other point has been urged or argued. 36. Accordingly, the appeal is dismissed and the impugned judgment and decree is maintained and affirmed. 37. Decree sheet be prepared accordingly. Record be sent back.