Balwan Singh vs Indro

Amarjeet Chaudhary, J.

The appeal is directed against the judgment of Additional District Judge, Hissar, dated 17th December, 1988 vide which the petition filed by the petitioner, hereinafter referred to as the "appellant" u/s 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce, was dismissed.

Shorn of unnecessary details, the case of the appellant before this Court is that he was married to Smt Indro, respondent, in the month of June, 1979 at village Bas Azamshahpur, Tehsil Hansi, District Hissar according to Hindu rites and ceremonies. The parties co-habited together as husband and wife and out of their wed-lock, three female children were born out of which two children are alive. Neetika, the elder daughter is in the custody of the appellant whereas Deepika, the younger daughter, is in the custody of respondent. The third female child who was born in 1982 had expired after 6/7 days of her birth.

In the Divorce Petition, the appellant had sought dissolution of the marriage on the grounds that his wife Smt. Indro, respondent, had treated him with cruelty and was living in adultery. The appellant had further alleged that the respondent wife is a lady of hot temperament and often used to hurl abuses on him and his parents. She refused to obey the command of the appellant as well as his parents and often she used to decline preparing meals for him and his parents. The appellant had also claimed that the respondent had been proclaiming that she had been married against her wishes. As the respondent had great attachment with her parents, she used to leave the matrimonial house without the appellant''s permission and his parents. In the month of June 1980, the respondent resided with him only for 2/3 days. In the middle of February, 1983 Risal Singh, brother of the respondent had taken the respondent with him on the assurance that she would be sent back after 15 days, but she did not turn up. The appellant visited the house of his in-laws on 21-5-1983 and brought the respondent back. On 12.7.1983, Tek Chand, uncle of the respondent came to the appellant''s house and took the respondent on the assurance that she would be sent back after a week. The respondent did not care to return to the matrimonial house after staying about a week. On 6.6.1985 the father of the respondent took her with him in the absence of the appellant. At that time while going with his father, she had taken with her whole of the jewellery and clothes.

The appellant had claimed that the respondent was leading an adulterous life with some person. In spite of all this, the appellant had compromised. On earlier occasion, a Divorce Petition was filed and the matter was compromised. However, the respondent did not improve herself and used to remain absent during nights. The respondent even refused to provide sexual company to the appellant with the result that the appellant had suffered a great mental agony.

The respondent had denied the allegations of cruelty and adultery. It was asserted by the respondent that at the time of marriage the appellant was a student. Now after acquiring higher educational qualification the appellant has got a job in the Central Government and is drawing a very handsome salary, whereas the respondent belongs to rural areas. As such the appellant is not interested to keep her. He therefore put pressure on the respondent to bring scooter for him, but her parents being poor persons, could not fulfill the demands of the appellant. The respondent claimed that the appellant started maltreating her. He very often used to beat her mercilessly on flimsy excuses. It was also pleaded by the respondent that when she was pregnant, the appellant had turned her out of the house. The allegation of adultery was false. It was also claimed that the appellant wanted to marry some girl of rich family who could bring more dowry and could fulfill all his demands.

It was also the case of the respondent-wife before the Trial Court that the appellant had earlier filed a Divorce Petition, but the matter was compromised. The appellant after compromise had kept her with love and affection for 2/3 days and thereafter he again started mal-treating and beating her. The appellant again demanded scooter which demand could not be fulfilled. The respondent was locked in a room and on coming to know that her life was in danger in her in-laws'' house, she was rescued by her father.

On the pleadings of the parties, following issues were framed by the Trial Court 5

(1) Whether the respondent has treated the petitioner with cruelty as alleged ? OPP.

(2) Whether the respondent has been indulging in adultery as alleged ? OPP

(3) Whether the petition is barred by principle of res-judicata ? OPR.

(4) Whether the petition is not maintainable as alleged ? OPP.

(5) Relief.

7 In support of his claim, the appellant besides himself as PW-1, examined Vijay Singh (PW-2), his father Bhobal Ram (PW-3) and Pirdan (PW-4). On the other hand, the respondent examined herself as RW-1, and her father Lakhi Ram as RW-2.

I have heard the learned Counsel for the parties at length and perused the evidence adduced by the parties.

On the consideration of the matter and from the perusal of the case file this Court has reached the conclusion that the appellant has not been able to substantiate the allegations of cruelty and adultery. It is settled principle of law that mere assertion is not sufficient. It must be corroborated by cogent and reliable evidence which the appellant in this case has miserably failed. The appellant failed to give even a single instance as to with whom the respondent had committed an act of adultery. The bald allegation that she had been living out of house for nights in the absence of any uncorroborated evidence does not prove that she had actually been living in adultery. When the Trial Court asked the appellant specifically as to with whom the respondent was having illicit relations, the appellant was not able to disclose the name of any person. As such by no stretch of imagination, it can be said that the respondent was living in adultery.

10 So far as the allegation of cruelty is concerned, from the appreciation of evidence brought on record, this Court has reached the conclusion that the respondent has not committed any cruelty towards the appellant. The allegation of the respondent that the respondent used to refuse to provide sexual company to him is without any substance. The respondent had given birth to three female children, out of them two are still alive. Children could not take birth without the co-operation and sexual company of the respondent. Even the respondent had compromised the matter in the earlier Divorce Petition despite the serious allegation of adultery levelled against her. Even on a Court query during the course of arguments, the respondent has given her willingness to re-habilitate with her husband, but it is the respondent who has adopted a harsh attitude towards her and is not willing to re-habilitate with her. It is an admitted fact that the appellant was a student at the time of marriage. He acquired higher educational qualifications and got a respectable job in the Central Government from where he is drawing a very handsome salary. Now he wants to get rid of his simple and rural wife by levelling false allegations against her. Thus, it is the appellant himself who is responsible for this sorry state of affairs. It is also in evidence that after the compromise in the earlier Divorce Petition, the respondent''s father had recovered her from the appellants house by getting search warrants issued u/s 97, Cr. P.C. from the Court of S.D.M. Hissar. In view of this fact, a safe conclusion can be arrived at that appellant was not allowing the respondent to go from his house with her father. On the other hand, it proves the allegation of the respondent that the appellant used to beat her mercilessly and since there was danger to her life, the respondent''s father had to resort to recourse of search proceedings u/s 97, Cr. P.C.

It is also revealed from the evidence that whenever the respondent had gone to her parent''s house, she was taken by her father or some near relation and that too with the permission of the appellant or his parents. Moreso, living at her parent''s house, cannot be said to be an act of cruelty towards the appellant. In view of the foregoing discussion, I am of the view that the respondent has not committed any act of cruelty towards the appellant, rather it appears that the appellant had been cruel towards her throughout.

For the reasons recorded above, the F.A.O. is dismissed being devoid of any merit with costs which are quantified at Rs. 2,000/-.