Lakhvinder Singh vs Sukhvinder Kaur

S.S. Saron, J.—Heard learned counsel for the appellant. The appeal has been filed by Lakhvinder Singh-appellant against the judgment and decree dated 10.05.2013 passed by the learned Additional District Judge (Ad hoc) Fast Track Court, Hoshiarpur whereby the petition u/s 13 of the Hindu Marriage Act, 1955 (Act-for short) filed by the respondent-Sukhvinder Kaur seeking dissolution of the marriage between the parties by a decree of divorce has been accepted and the marriage between the parties has been dissolved.

The respondent-Sukhvinder Kaur filed a petition u/s 13 of the Act inter alia stating that the marriage between the parties was solemnized on 27.11.1997 as per Sikh rites and ceremonies at village Phuglana, Tehsil and Distt. Hoshiarpur. After marriage both the parties cohabited as husband and wife at village Kaboolpur, Distt. Jalandhar. They had two children from the marriage, who were residing with the respondent-Sukhvinder Kaur. According to the respondent-Sukhvinder Kaur, sufficient dowry including gold ornaments weighing about 20 tolas, television, fridge, washing machine, scooter, two steel almirahs, three big steel boxes, furniture, utensils etc. were given; besides, clothes were also given to the appellant, his parents and relatives. An amount of Rs. 12 lacs was spent on the marriage. The father of the respondent was residing in Canada and the respondent was living with Jodh Singh, as his daughter. He was the mother''s sister''s husband (''massar'') of the respondent. The marriage of the respondent was performed by Jodh Singh as he was like her father. The appellant, his parents and other family members were not satisfied with the dowry that was given in the marriage. They used to raise different demands time and again. The respondent was taunted by the parents of the appellant by saying that the dowry was not as per their expectations. She was being compelled to bring a car from her parents. At the time of birth of the daughter of the respondent on 25.12.1999, there was resentment as she had given birth to a girl. The respondent and his parents did not bear the expenses of delivery which were borne by Jodh Singh as he was like a father of the respondent. At the time of birth of her son namely Harjot Singh, gold ornaments, sweets and cash were given to the appellant and his parents. The respondent came to know that the appellant was a drug addict and used to take liquor; besides, he consumed intoxicating tablets in heavy quantity.

Under the influence of liquor, he misbehaved and demanded money from the respondent. On her refusal, he used to beat her mercilessly. The appellant started selling household articles for drug and liquor. He was got admitted in the De-addiction Centre of Dr. Sarabjit Singh at Jalandhar where he remained admitted for 20 days but after his discharge he again started taking drugs and liquor. He also twice got admitted in a De-addiction Centre at Zira for six months duration on each occasion but after discharge, he again started taking drugs and liquor. The expenses incurred at the De-addiction Centre were borne by the parents of the respondent. In the month of January, 2010 when the appellant was discharged from the De-addiction Centre, Zira, he returned to his habit of taking drugs and liquor; besides, he started demanding money for drugs from the respondent. The appellant crossed all the limits and threatened to kill the respondent and the minor children in case he was not given money for drugs and liquor. The respondent managed to save herself and the children by locking herself and the children in a room. However, on the next morning she was along with the children was turned out from the house. Since then she had been living in village Phuglana along with her children. A panchayat was convened for amicably resolving the dispute between the parties but the appellant and his parents flatly refused to rehabilitate the respondent and her children.

On notice, the appellant appeared and filed a written statement in which he denied and controverted the allegations of the respondent. It is submitted that the marriage between the parties was a simple marriage. Only items of normal use were given at the time of marriage. No gold ornaments weighing 20 tolas were given as alleged. Only some ornaments were given to the respondent by her parents; besides, valuable ornaments were also given by the parents of the appellant to the respondent which were in her possession. An expense of Rs. 12 lacs being incurred on the marriage is denied. The allegation that the appellant or his parents taunted the respondent for dowry and were dissatisfied with the dowry articles were also denied. The allegation regarding demand for dowry are stated to be concocted. It is also denied that the appellant or his parents had refused to bear the hospital expenses for delivery of child. The hospital bill was paid by the father of the appellant. The appellant was never unhappy over the birth of a daughter. The appellant and his parents had full love and affection for the children and also for the respondent. The appellant never misbehaved with the respondent and never beat her as alleged. It is admitted by the appellant that he had started taking some intoxicant/drugs but later on he got himself treated. At present he was not taking any kind of drug and was living a normal life. He was working as a taxi driver. The appellant denied that he sold any jewellery of the respondent. He never beat the respondent. He never demanded money for drugs from the respondent. The respondent it is alleged left her matrimonial home on 23.01.2010 along with her children. The father of the appellant gave some money to her for expenses. She left the house without any dispute with promise to come back. Thereafter, she refused to come back and join her matrimonial home. The parents of the appellant went to bring her back on 28.01.2010. The appellant and his parents also took Panchayat but the respondent refused to join the matrimonial home. It is also submitted that Jodh Singh and his wife were living alone and to over come their loneliness they had influenced the respondent and persuaded her to live with them along with her children. The respondent had withdrawn from the society of the appellant without any sufficient cause. The appellant had already filed a petition u/s 9 of the Act, which was pending.

Replication was filed by the respondent denying the averments made in the written statement and reiterating the averments made in the petition.

The learned trial Court from the pleadings of the parties framed the following issues:-

Whether the petitioner (now respondent) was treated with cruelty by the respondent (now appellant)? OPP

Relief.

In order to prove her case, Sukhvinder Kaur-respondent examined herself as PW-1; besides, Jodh Singh (PW-2), Baljit Singh Lamberdar (PW-3) and Balbir Singh (PW-4) were examined and thereafter she closed her evidence.

To rebut the evidence of the respondent, the appellant-Lakhvinder Singh appeared as RW-1 and examined his father Swaran Singh (RW-2) and he closed his evidence.

The learned trial Court vide order dated 24.08.2011 had awarded Rs. 2500/- per month to the respondent as maintenance pendente lite. The appellant made payment of maintenance pendente lite till 17.08.2012. Thereafter, he did not appear in the Court for payment of maintenance. The appellant through his counsel was directed to pay the entire arrears of maintenance pendente lite to the respondent but he did not comply with the order. Learned counsel for the appellant showed his inability to produce the appellant in Court. Accordingly vide order dated 08.05.2013, the defence of the respondent was struck off.

The learned trial Court after appreciating the pleadings of the parties and the evidence on record decreed the petition of the respondent in her favour.

Aggrieved against the same, the appellant has filed the present appeal.

It is admitted position that the appellant has not paid the maintenance pendente lite. At the time of hearing of the appeal, the learned counsel for the appellant made no offer to pay the arrears of maintenance that are due and payable to the respondent. It is not even stated that the appellant is willing to pay the maintenance due and payable to the respondent. The learned Additional District Judge had in terms of order passed on 08.05.2013 struck off the defence of the appellant for non-payment of maintenance pendente lite. The order striking off the defence of the appellant is not shown to be assailed by him. It is not pleaded in the memorandum of appeal that there is any error, defect or irregularity in the order striking off the defence of the appellant which affects decision of the case. The said ground could have been urged in terms of Section 105 and Order 43 Rule 1-A(1) of the CPC (''CPC''-for short). However, there is no challenge to the order striking off the defence. In practice when a defence of the defendant or respondent is struck off, the real purpose is to grant some more time to the defaulting party to comply with the order of the Court. In the present case the appellant instead of complying with the order, failed to appear in Court and in fact his counsel also expressed his helplessness to secure his presence. In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, , it was held by the Supreme Court that if the Court proceeds ex parte against the defendant under Order 9 Rule 6(A) CPC, the defendant is still entitled to cross-examine the witnesses examined by the plaintiff. If the plaintiff makes out a prima facie case, the Court may pass a decree for the plaintiff. If the plaintiff fails to make out a prima facie case, the Court may dismiss the plaintiff''s suit. Every Judge in dealing with an ex parte case has to take care that plaintiff''s case is, at least, prima facie proved. Therefore, in a case whet the defence of the defendant has been struck off, the plaintiff still has a limited right and, that is, that he is entitled to cross-examine the plaintiff''s witness and the plaintiff is at least required to prove his case prima facie. On the basis of limited right of cross-examination of the plaintiff''s witnesses that the defendant has, he can submit that even on the basis of the evidence led on behalf of the plaintiff a decree is not liable to be passed against him. The use of the word ''defence struck off'' does not affect the substance of the order. The appellant in the present case has cross-examined the respondent. However, he has not been able to dislodge leave alone demolish the respondent-wife''s case.

The learned trial Court observed that the pleadings and evidence adduced on record by the respondent revealed that the appellant was addicted to drugs and drinking. The appellant used to beat her (respondent) after consumption of alcohol and drugs and there was screaming sound from the side of respondent; besides, she was subjected to cruelty for getting inadequate dowry. The appellant demanded a car from her. These findings and conclusions reached at by the learned trial Court have not been dispelled or dislodged by the appellant. The testimony of Lakhvinder Singh (appellant) who appeared as RW-1 shows that he was admitted in the hospital of Dr. Sarabjit Singh for de-addiction for about 20 days. In his cross-examination he admitted that he was admitted twice at Zira for de-addiction. Swaran Singh (RW-2) father of the appellant during his cross-examination also admitted that the appellant was addicted to drugs and was admitted in Dr. Sarabjit Singh Hospital, Jalandhar for about 20 days; besides, he accepted that the appellant was twice admitted at Zira in the De-addiction Centre. He also admitted that whenever the appellant started taking drugs he was got admitted at the De-addiction Centre at Jalandhar. The respondent had been putting up with these deficiencies of the appellant and it can safely be inferred that she was subjected to mental cruelty.

The position, therefore, is that the appellant has remained addicted to drugs, he was demanding dowry and he failed to pay the maintenance pendente lite for which his defence was also struck off. Cruelty has been held to be established when one of the spouse to the marriage treats the other in a manner that it manifests such feelings in the other spouse which causes reasonable apprehension in the mind of the spouse complaining of cruelty that it would be harmful or injurious to reside with the spouse complained against. Cruelty can be mental or physical.

In Samar Ghosh Vs. Jaya Ghosh, it was held as follows:-

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ''mental cruelty''. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) * * *

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii)-(ix) * * *

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi)-(xiii) * * *

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

In the facts and circumstances of the present case, the respondent has clearly established her case regarding the cruelty meted out to her by the appellant. The respondent has not merely prima facie established her case of cruelty but has clearly established it. She has reasonable apprehension in her mind that it would be injurious for her to live with the appellant. The conduct of the appellant is also such that he has not made any effort to pay the maintenance amount which is due and payable by him to the respondent. He is under a legal duty to provide maintenance for his wife. He has not only failed to perform his legal duty but has not shown any cause for failure to maintain his wife. The Court had passed an order for grant of maintenance pendente lite to the wife which he failed to comply with or assail it in accordance with law. Therefore, there is no reason as to why the matrimonial relief sought for by the respondent is not granted to her. For the foregoing reasons, we find no merit in the appeal and the same is accordingly dismissed.