Daljeet Kaur vs Amarjeet Singh Randhawa

Present appeal filed u/s 39 of Special Marriages Act, is directed against the decree of divorce granted on 04.01.2013 by the learned III Addl. Prl. Judge, Family Court, Bangalore, in M.C. No. 3349/2010. The learned III Addl. Prl. Judge, Family Court, Bangalore, has dissolved the marriage solemnized between the parties to this appeal. The said order is called in question on various grounds as set out in the appeal memo. The parties will be referred to as per their ranking before the Trial Court.

The facts leading to the filing of the petition u/s 27(1)(d) of Special Hindu Marriage Act, 1954, before the Trial Court are as follows:

Respondent is the legally wedded wife of the petitioner and their marriage was solemnized on 06.11.2008 as per the provisions of Special Marriages Act, 1954 at Jalagaon District, Maharashtra State. Thereafter their wedding was formally solemnized on 07.11.2008 at Gurudwara Badi Sangat-Patshahi-10, Burahanpur (Madhya Pradesh) in the presence of the well wishers and relatives of both the families. After the marriage, she stayed in his native place only for a few days and later on, she wanted to resume duty without any proper explanation. The main allegation against the respondent is that she was not participating in any household activities and her normal schedule was to return home late from the office and later on to chat with her friends for hours together over phone and read novels till late night and then go to sleep even without talking to him. According to the petitioner, this created lot of stress in his life and had a great effect on his work and he had the threat of losing his very appointment.

It is alleged that when his parents visited him in Bangalore in the last week of August 2009, she did not welcome them and did not treat them properly and on the other hand, she reacted badly stating that she does not want them to be in their house. It is alleged that she started going out to office even during weekends and was picking up quarrels with him unnecessarily and was abusing him and his parents. It is alleged that she had threatened him that she would file a case for divorce. She is stated to have not at all behaved like a responsible married woman. As a result of her behaviour, her parents were called to mediate, but they supported her and later on she left his house on 24.09.2009 and never returned stating that they would meet him in the Court only. Inspite of his best efforts, she did not return to the matrimonial home and as a result of the same, the normal marriage life has become impossible and the marriage has broken down irretrievably due to cruelty and inhuman treatment meted out to him.

Respondent-wife has filed her objections denying all the material averments and has called upon the petitioner-husband to prove the contents of the petition strictly. According to her, the petitioner never tried to help her in the domestic work and on the other hand, abused her verbally and never allowed her to talk to her parents and was picking up quarrel with her unnecessarily. It was she who bore the entire household expenses inclusive of rent, electricity purchasing of grocery etc. Petitioner was continuously demanding money from her and it is averred that when his parents came to Bangalore, she received them along with the petitioner at the railway station and prepared special food for them and took special care about them. On the other hand, they did not show any love or affection towards her. It is alleged that the petitioner never wanted her parents to come to his house and was finding fault whenever they came to their house. Petitioner is stated to have threatened her that he would file a case for divorce. Petitioner is stated to have forcibly withdrawn an amount of Rs. 40,000/- from her bank account. Later on she tried to contact him and reconcile the matter but he did not show any positive response. Even now she is ready and willing to join the petitioner and to lead a happy marital life.

Petitioner is examined as PW 1 and has got marked two exhibits. Respondent is examined as RW 1.

Following three points have been considered by the learned Judge of the Trial Court:

Whether the petitioner proves that since the solemnization of the marriage the respondent has treated him with cruelty?

Whether the petitioner is entitled for decree of divorce?

What decree or order?

The Trial Court has answered point Nos. 1 and 2 in the affirmative has ultimately allowed the petition and thereby the marriage solemnized on 06.11.2008 has stood dissolved by means of a decree of divorce. It is this order which is called in question on various grounds as set out in the appeal memo.

We have heard the learned counsel appearing for the appellant-wife in regard to merits. Learned counsel for the respondent is continuously absent.

After going through the records and hearing the arguments, following points arise for our consideration:

Whether the Trial Court is justified coming to the conclusion that the appellant wife has treated her husband-petitioner with cruelty?

Whether any interference is called for by this Court and if so, to what extent?

Re. Point No. 1:

The word ''cruelty'' has not been defined u/s 13 of Hindu Marriage Act, 1955. In view of the various pronouncement of the Hon''ble Apex Court, ''cruelty'' includes mental cruelty. Case projected by the petitioner-husband before the Trial Court is that the respondent-wife never cooperated with him in any mariner and she was carefree and was not attending to the family needs. She is stated to have denied him the matrimonial bliss. It is further alleged that she did not treat his parents properly and was rude to them and that she deserted him without any rhyme or reason on 24.09.2009 and inspite of his best efforts, she did not join the matrimonial home.

In the present case, we have the evidence of the petitioner-husband and the evidence of the respondent-wife. Virtually this an oath against oath. Case of the petitioner-husband is that his parents had once come to Bangalore and they were not at all treated by his wife-the respondent and she was rude to them. Except the assertion made by him in the petition and in the affidavit filed in lieu of his examination-in-chief, we have no corroborative evidence. The best witnesses would have been his parents. The fact that the parents of the petitioner-husband coming to Bangalore is not disputed by the respondent. Her specific stand is that she went along with her husband to railway station and received them and treated them well. She has spoken to that effect in her evidence. In view of non-examination of either the father or the mother of the petitioner-husband, an adverse inference will have to be drawn against the petitioner.

Petition came to be filed on 25.10.2010 before the Family Court at Bangalore. The allegation is that she left the house on 24.09.2009. In the last week of August 2009, parents of the petitioner had come to Bangalore and they had stayed in the house of the petitioner-husband. According to the petitioner, his wife deserted him on 24.09.2009 by leaving the matrimonial home and thereafter she never returned to the matrimonial home. It is specifically deposed by him that inspite of his best efforts made by him and his relatives, respondent refused to return to the matrimonial home. The names of the relatives or friends who tried their best to bring back her to the matrimonial home are not forthcoming. Efforts made by him and his relatives in this regard are not forthcoming. This is only a bald statement made in the examination in-chief.

The normal course of a dutiful husband is to take proper steps to get her to the matrimonial home by involving the relatives or common friends in order to mediate between them or to file a petition or seeking restitution of conjugal rights. Having not done so, he cannot turn round and say that inspite of his best efforts, respondent-wife refused to return to the matrimonial home.

On the other hand, the respondent has specifically deposed that she tried to contact him after 24.09.2009 but she was not available to her in any mariner. We have the evidence to show that a sum of Rs. 40,000/- was transferred from the bank account of the petitioner on 05.04.2009. Petitioner''s case is that this amount was voluntarily transferred by his wife to his account, whereas the respondent-wife has specifically deposed that the said amount was transferred on the coercion of her husband. If she had transferred him of Rs. 40,000/- on her own to the bank account of her husband on 05.04.2009, reasonable inference that can be drawn is that they were in good terms during April 2009. If money had been transferred due to the coercion of her husband, we have to come to the conclusion that all was not well between them in the month of April 2009. It is to be seen that in the month of August 2009 his parents had come to Bangalore and they stayed in the house of their son and the respondent-wife was very much present in the said house. Nowhere it is stated by the petitioner that there was no cohabitation between him and his wife at any point of time. In fact, it is not the case of the petitioner that marriage has not at all consummated.

As could be seen from the evidence, soon after the marriage they had been to Shirdi to have the darshan of Sai Baba and thereafter they came to Bangalore, and later on, started living in a rented house at HSR Layout. She had secured job in Electronic City. Allegation is that she was not at all taking part in the family activities and she was going to bed late in the night after reading novels and that she used to go to office even on weekends. The same is not substantiated in any manner. This has only remained as an allegation.

If the version of PW 1 were to be accepted that the respondent had transferred Rs. 40,000/- to his bank account on her own volition in the month of April 2009, the reasonable inference that could be drawn is that they were in good terms and the relationship was very cordial.

Admittedly, respondent is an educated lady and was employed as a software engineer at Mumbai, when both of them shifted to Bangalore. Initially they stayed in Whitefield Area of Bangalore City and later on, got a job in Electronics City and shifted to HSR Layout. Suggestion put to her that she never liked her in-laws has been specifically denied. Suggestion put to her that she had quarreled with him and therefore he was to remit back Rs. 45,000/- to her account has been specifically denied. To a specific question, put to her as to whether she had gone to petitioner''s house to join him, her answer is that she had gone to his house, but he had picked up quarrel with him and beat him and even abused him. Suggestion put to him that she did not make any efforts to join him has been specifically denied.

18 Unfortunately, the learned Judge has shifted the burden on the respondent to prove that she had made attempts to join the petitioner. On the other hand, burden was actually upon the petitioner to prove that he had made all honest efforts for restitution of conjugal rights. As already discussed, no evidence is placed in regard to the attempts made by him to get her back.

Normal wear and tear in the initial stage of family life has been blown out of proportion. Even if there were to be some misunderstanding between the two, it would take sometime for the couple to fine tune them. Before honest efforts could be made to fine tune the differences, the petitioner rushed to the Court and filed a petition for divorce. If he was really interested in getting her back and to lead a family life, he would have atleast got issued a notice calling upon her to come back to the matrimonial home. In the light of oath and counter oath and in the light of initial burden cast upon the husband being not effectively discharged, we are of the considered opinion that petitioner has failed to prove the allegation of cruelty effectively.

The Trial Court has adopted wrong approach to the real state of affairs and has not tested the evidence on the touchstone of intrinsic probabilities. It has shifted burden on the respondent unnecessarily in regard to the steps to be taken by her for restitution of conjugal rights. Viewed from any angle, the judgment of the Trial Court is opposed to law, facts and probabilities. Hence, point No. 1 is answered in the negative.

In view of our finding on point No. 1, appeal is to be allowed by setting aside the order of the Trial Court. Consequently petition filed for divorce is liable to be rejected.

ORDER

Appeal filed u/s 39 of Special Marriages Act, is allowed. The judgment of the Trial Court dated 04.01.2013 passed in M.C. No. 3349/2010 is set aside. Consequently, petition filed for divorce in M.C. No. 3349/2010 is dismissed. There is no order as to costs.