Pankaj Kumar vs Megha

This is the plaintiff''s (husband) appeal, challenging the judgment and decree dated 29.09.2012, passed by the Family Court, Haridwar, whereby his Suit being Original Suit No. 324 of 2009 "Pankaj Kumar Vs. Smt. Megha under Section 13 of the Hindu Marriage Act, 1955, seeking dissolution of marriage dated 29.11.1999, has been dismissed.

Subsequent to filing of the Suit under Section 13 of the Hindu Marriage Act by the appellant on 05.11.2009, the respondent- wife had filed an Original Suit No. 20 of 2010 under Section 9 of the Hindu Marriage Act, 1955 which was decreed by the judgment dated 29.09.2012 against which the appellant of the present appeal has filed FA No. 119 of 2012, which is being decided separately along with the present appeal.

Brief facts of the case are that according to the averments made in the plaint under Section 13, the appellant has come up with a case that his marriage was solemnized with the respondent on 29.11.1999 in accordance with Hindu rites and rituals. But immediately after the marriage, the dispute started arising amongst themselves on trifle issues. Respondent started quarrel on small claims which according to the appellant, he tried to pacify and make respondent understand but there was no change brought in her attitude. Even so much so, according to the appellant, his parents also tried to make her understand but it yielded no result.

Whenever such an effort was made by the parents of the appellant, she used to misbehave and used abusive language, while addressing them which was not conducive. The husband''s case was that even the parents talked this issue to the parents of the respondent but the cruelty persisted from day-to-day without there being any change. On 01.07.2003, she quarreled and expressed that she does not like her husband and does not want to live with him and discharged her duties as wife. According to the learned counsel for the appellant, the incident of 01.07.2001 was not an isolated incident. On earlier occasions also, she had quarreled and left the home of the appellant. According to the husband, after quarreling on 05.07.2003, she has left the home on her own, without even informing the appellant.

According to the plaint allegations of the husband, when the respondent went to her parent''s house on 05.07.2003, the husband along with his father and friends namely Rajendra Aggarwal and Manoj Kumar Chaudhary, went to the home of the respondent but she refused to come back. All the efforts to make her understand failed. She refused to join and as such according to the husband, since she was living separately for the last 6 years, there was no possibility to revive the marriage. Hence he prayed for that when all

the efforts made for fetching her back has failed; it shows that the respondent was not willing to discharge her matrimonial obligations and thus he sought decree for dissolution of marriage.

To the plaint, respondent-wife filed her written statement and denied the averments made in the plaint. In the additional plea, respondent had contended that the attitude of the husband was averse to her and he never showered any love and affection and avoided the company of the respondent. The basis of her allegation was that apart from the fact that the husband is with habit of taking liquor and has got illicit relationship with other lady also. She also pleaded that often now and then he and his family members had been raising illegal demands. Despite of it, the father of the respondent, after selling a piece of land, had paid a sum of Rs. 5.00 lakh but since the family has got lust of money no change was witnessed after said payment.

Ultimately, in an additional plea, she further stated that when the mother of the respondent died on 03.07.2005 and her father too, died within the laps of 6 months thereafter on 16.01.2006, appellant paid no concern or shown any sensitivity on their death. The respondent stated that on the death of her parents, she was survived with her brother. As per the plea, the appellant-husband forced upon the respondent-wife to get the property partitioned, which was left by the parents of the respondent and to settle the shares between respondent-wife and her brother. The allegation of misbehaviour, according to the respondent-wife is unsustainable because absolutely a vague allegation has been levelled as no details of particulars have been given and no names of the persons before whom such type of incident has chanced was given. Thus, the story

which has been developed of commission of mental cruelty by the respondent-wife, was not tenable.

She further contended that the in-laws of the respondent are believers of an age old traditions and following the said principles. She used to live as a "pardanasin lady" and was not much aware of the outer world. The husband used to accuse her for not being able to provide any issues to lead the family clan grow. It was lastly when the husband started to duress to get the property partitioned from her brother on 03.10.2009. Due to cruelty which became unbearable, she had to take shelter in her parent''s home.

On the exchange of the pleadings, the learned Family Court framed three issues:-

"VERNACULAR MATTER OMITTED"

In support of his version, the husband-appellant placed reliance upon paper no. 29-A that a compliant before Mahila Help Line, submitted by Manoj Kumar Chaudhary and an oral testimony himself as PW1 and Manoj Kumar Chaudhary as PW2 were examined.

The respondent-wife, to support her version, has placed on record certain documents. Apart from it, she adduced oral testimony herself as DW1 and produced two persons Mahendra as DW2 and Vipul Gautam as DW3. The parties appeared in the witness box and they were cross-examined by both the parties to the Suit.

What is remarkable here is that the appellant-husband to tarnishing the image of the respondent-wife has pleaded that the respondent-wife had relationship with other person. To support his version, although he has not made any pleading in his plaint nor in affidavit examination-in-chief, for the first time has come out for the first time in his statement recorded in the court below that the respondent-wife, while sleeping, takes the names of certain boys and thus on that basis, he has contended that his wife has got relationship with other male.

This allegation is not acceptable by this Court for the reason that it was not proved or pleaded in the plaint or in the affidavit. Secondly, no amount of evidence could have been effective in the absence of there being any plea raised by the husband in his plaint allegations.

Another aspect, which is to be seen, to support the said contention. The appellant-husband, in his cross-examination, he has admitted the fact that he has never seen any such boy coming to his home either in his presence or in his absence. Hence the allegation that the wife takes the names of some boys while sleeping is not correlated with his cross-examination.

Even in his cross-examination, the appellant-husband has stated that he has never seen the respondent moving around with or without the permission with any unknown male person nor he had ever found her talking to any male person on telephone. Apparently, from the aforesaid scrutiny of evidence and the statement and cross- examination of the appellant, it is quite apparent that the appellant

failed to establish the allegation of deceitful character of the wife. Hence this ground of cruelty is not sustainable and fails.

The appellant further to exert the issue of cruelty against the wife contended that she had virtually deserted him on 05.07.2003, but according to the respondent, she has stated that when the atrocities reached to its zenith, she was left with no option but except to leave her in-laws place and which she left on 03.12.2009. Hence from the two dates stated above, there is no co-relation amongst the statement of the appellant and the respondent, that which could be the actual date of desertion as alleged by the husband. But the respondent have come up with a specific case that it was on 03.12.2009 when she was thrown out of the house despite of the fact that she wants to live and discharge her matrimonial obligations. But the scenario as created in the home was such and also because of the fact that she was thrown out from the house, she was forced upon to leave the place and live with her in-laws w.e.f. 03.12.2009.

The theory of desertion on 05.07.2003 is not acceptable by this Court on perusal of the affidavit filed by the husband before the court below. To support her stand, he has never stated or given the details that on 05.07.2003, whether PW2, Manoj Kumar Chaudhary was present in the home and he has seen the incident of quarrel and that of respondent leaving the house on 05.07.2003. There happens to be a self contradiction, as the said incident of 05.07.2003 the proceedings which were held before the Mahila Help Line too, Manoj is said to have submitted an affidavit but in the said affidavit, no such averment has been made, which Manoj could have said that he has seen to have chanced her on 05.07.2003. Hence it is not acceptable.

On scrutiny of the cross-examination the statement of PW2, Manoj Kumar Chaudhary, the husband''s case is that the respondent-wife has deserted him on 05.07.2003. In that support, he stated that on 05.07.2003 there was a quarrel amongst themselves and at the time of quarreling, Mr. Manoj Kumar Chaudhary was present and after quarreling respondent left the home on the same day i.e. on 05.07.2003. Thus, there is no rational or justified reason as to why the appellant sat patiently without initiating any proceedings and why did he for the first time, filed the Suit for dissolution of marriage on 05.11.2009 at least there was no desertion and the wife was living with the husband.

What is the most important is that no genuineness could be attached to the arguments extended by the counsel for the appellant about the theory of desertion on 05.07.2003 because if the same is read in relation to the date of filing of the Suit in the year 2009, there is no reason given by the husband as to why for the period from 05.07.2003, the alleged desertion and the date i.e. on 03.12.2009, the date of filing of the Suit, there was no other effort made by the husband to bring his wife back when he contended that the respondent-wife has deserted him on 05.07.2003.

In the statement as recorded by the husband, he has never made any statement that he made any effort between 05.07.2003 to 03.12.2009, or had taken any recourse for any judicial proceedings to bring his wife back. To show that rather the husband had no concern with the wife and he somehow wanted to get rid of her in one way or the other. To generate the ground for the purposes of Section 12 of the Hindu Marriage Act, 1955, the appellant has contended that there had been quarrel between respondent and the appellant and his parents and the acrimony reached to such an extent that the family environment was deteriorated and it became very difficult to spend life with the respondent. This philosophy of taking the dispute at home on the basis of Section 13, this Court is not in a position to appreciate the same for the reasons to establish a quarrel. The best evidence would have been the persons who were residing in the home at the time when the quarrel is alleged to have arisen.

On the dates of quarrel as referred by the appellant, his parents were residing in the home and if this be so, they should have been the best persons to be produced as an evidence to establish that there had been disputes between themselves resulting into filing of the Suit for dissolution of marriage. Non production of the parents, who are the best witnesses on any quarrel inter-se between the husband and the wife, an adverse inference could be drawn against the husband that he was trying to developing the case of divorce. The respondent, who in his pleading on her statement, has always expressed her willingness to discharge her matrimonial obligation.

The issue of desertion which has also taken to be a ground by the appellant that she has resided for the last 6 years since 05.07.2003. When the respondent appeared in the witness box and at the stage of cross-examination, the appellant has not posed with any question as to on what dates she has resided with the family. Hence, in the absence of the said question, being placed nor any plea was raised where she lived till 03.12.2009 was a deliberate act of the husband so that the truth may not be revealed for the purposes of substantiating his ground of desertion.

The issue of desertion as sought to be pressed by the husband was also a false story for the reason that in the proceeding

before the court below, the witnesses as produced by the wife namely Mahendra as DW2 and Vipul Gautam as DW3. The had appeared in the witness box in the year 2012 and submitted that the respondent started living separately for the last 2-3 years. Hence the date of desertion vis-?-vis the date of filing of the Suit do not establish the desertion coupled with the fact that the husband tried to build-up a false story for the purposes of procuring desertion.

This Court feels that looking to the gravity of the charge and the appellant''s misunderstanding amongst themselves and non establishment of any relationship with any other man do not call for to dissolve the matrimony between them. Even otherwise, because of the fact that looking to the findings recorded in the proceedings under Section 9 initiated by the wife, she has always been willing to live and discharge her responsibilities.

During arguments, Mr. Abhishek Verma, learned counsel for the appellant has placed reliance a judgment passed by Hon''ble Apex Court reported in AIR 2006 (9) Supreme 61 in the case of Rishikesh Sharma Vs. Saroj Sharma. It was a case wherein the Hon''ble Apex Court dealt with the issue where the situation there had been a long span of period of living separately since 1981 and the allegations were of such a nature that the marriage became irretrievable and that there was no possibility to the parties being living together because of the fact that there were other criminal litigation between the parties, hence the appeal of the husband was allowed and the decree of divorce was granted by the Hon''ble Apex Court.

But in the case as dealt by the Hon''ble Apex Court was from the view point that the period of separation and the misunderstanding resulted into culmination of criminal proceeding was sufficient enough to bring it within the ambit of mental cruelty. But the fact remains in the present case that there is no long span of separation and also in the case at hand, there was no such misunderstanding arising out of any criminal proceeding having been lodged amongst one another. Hence, owing to the facts to the present case as dealt by the Hon''ble Apex Court, the said ratio will not be applicable.

That even otherwise also in the matrimonial deputes where the controversy pertaining to the mental and physical cruelty is under consideration, there is no straight jacket formula, which could be applied by the Courts which would always depend upon the circumstances and facts of respective case. In the case at hand, since the husband has engaged himself in false acquisition against the wife, even on the revival of the marriage, the grudge would still prevail in their minds. The learned counsel for the appellant has placed another judgment passed by a division bench of High Court of judicature at Madras reported in 2009 6 MLJ 351 in the case of K. Umasankar Vs. Suryakala. In the said case too, the following were the grounds for granting the decree of divorce on the ground of cruelty:-

a) Wife, since belonged to a nucleus family, was unable to live in a joint family.

b) The wife insisted to live separately in a separate residence.

c) Wife used to pickup quarrel with the family members and spread unsavoury canards .

d) Lived separately for 12 years.

All these ingredients of the said judgment do not exist in the present case. There is no controversy pertaining to the joint or nucleus family. There is no request made by the wife to live separately rather she in the proceeding under Section 9 has expressed her willingness to live with the appellant. The factum of quarrel

which the husband has alleged was not proved by him by producing his parents, who are the best evidence. Hence the adverse inference was drawn by the court below and lastly as already observed above, the period of living separately was not a such wide enough where the institution of marriage should be severed.

Learned counsel for the appellant has placed reliance on another judgment passed by the Hon''ble Apex Court reported in AIIMR (2002) 250; 2002 6 Bom CR 511 in the case of Savitri Pande Vs. Prem Chandra Pandey. This case too, would not cover the controversy at hand because in the said judgment, the Hon''ble Apex Court was dealing with the theory as to whether the desertion could be only by living separately or it could be also by living together under the same roof. In the said case, the Hon''ble Apex Court has held that to prove desertion, it is not necessary that the parties who lived separately for certain period of time will amount to desertion. The Hon''ble Apex Court held that if the parties are able to prove by evidences that despite of husband and wife living under the same roof and if they have not permitted each other to cohabitate and consummation of marriage, it would amount to a desertion where a divorce could be granted.

This Court feels that for the purposes of desertion, something more is required than living separately. The party has to show that either of the party to the marriage has taken advantage of her own wrong to live separately which is not the case at hand. Thus, since the desertion itself living separately happens to be in the present case from 03.12.2009, the decree of dissolution ought not be granted on such trifle issues where the desertion has also seen. In the light of the collateral proceedings and the statement of the parties, which is expressed their unfettered condition to discharge her matrimonial obligations.

Learned counsel for the appellant yet again placed another judgment reported in AIR (2013) 5 SCC 226 in the case of K. Srinivas Rao Vs. D.A. Deepa. In the said judgment, the Hon''ble Apex Court was dealing with the case where in the proceedings under Section 9, husband has sought a decree of Section 13 as a counter claim. Here, it is just the converse whether the wife, after filing of Section 13 by the husband has sought a decree of Section 9 i.e. restitution of conjugal rights, which itself shows her willingness to discharge her matrimonial obligations. Hence, the said issue will also not be applicable.

Looking to the fact and the manner in which the husband for the purposes of getting decree of divorce has raised false allegations that too, when he has failed to substantiate by leading evidence and less credentials evidences show the conduct of the appellant that as a matter of fact there was some hidden mission as to why he showed his unwillingness to either to the decree of restitution of conjugal rights and to seek for a dissolution of marriage. Looking to the circumstances since the husband had utterly failed to prove cruelty and desertion, his petition under Section 13 will not fall within the parameters of Section 13 itself. Hence the appeal fails and is dismissed. The appellant-husband is directed to comply with the judgment and order of restitution of conjugal rights as passed in the connected appeal.

The appeal is dismissed. No order as to costs.