Shruti Arora vs Anish Arora

Sneh Prashar, J.—This appeal was instituted by Shruti Arora-appellant/wife assailing the judgment and decree dated 10.04.2006 passed by District Judge, Amritsar vide which HMA case No. 84 of 2004 filed under Section 13(1)(ia) of the Hindu Marriage Act, 1955(hereinafter referred to as, ''the Act of 1955'') by Anish Arora-petitioner/husband (hereinafter referred to as ''the petitioner'') was allowed and the decree of divorce dissolving their marriage was passed.

The facts which need elaboration are as under:

"Appellant-Shruti Arora was married to Anish Arora-petitioner/husband on 05.12.1998 as per Hindu rites and ceremonies. After marriage, they cohabited as husband and wife and a daughter, namely, Bulbul was born out of their wedlock on 13.03.2000 and is presently in the custody of the appellant.

The petitioner pleaded that just after a short span of marriage, the behaviour of the appellant-wife became cruel and insultive towards him and his family members especially his aged mother and father. His father was suffering from heart and liver ailment whereas his mother was suffering from depression. The appellant expressed that she did not want to live in the joint family and compelled him to have a separate residence. She started picking up quarrels on petty matters. He tried to explain her that being a son, it was his duty to look after his parents but she did not bother and adopted complete hostile attitude towards them. As and when he asked her to give medicine to the parents she refused saying that she would better give poison to get rid of them.

The petitioner averred that considering the wish of the appellant, his parents provided a separate residence to them on the first floor of the house in the month of March, 1999 still there was no improvement in the behaviour of the appellant. She started leaving the house without his consent. At the time of marriage, he was a small shopkeeper and was carrying on the business of computer stationery items and repairs. He used to go to his shop daily at 10/10.30 am. and come back at 8/8.30 pm. The appellant would leave the house soon after he left and would stay outside for the whole day. On being asked, she would reply that she had gone to meet her parents and that became a daily routine. She started refusing to cook and serve meals to him saying that she had taken meals at her parents'' house and he should cook for himself or employ a servant. On some occasions he was left to sleep even without meals.

In April, 1999, he employed a servant but because of his limited economic resources, the servant was fired after 5-6 months. Their daughter was born on 13.03.2000 in Dr. Prem Rai Hospital situated at Mall Road, Amritsar. The appellant was discharged from the hospital after 3-4 days of delivery. She remained with him for only 02 days and then left for her parents'' house depriving him of the love and affection of the newly born baby. In the month of April, 2000, he met with an accident and suffered injuries and remained hospitalized for about three days. The appellant did not bother to come to the hospital to see him despite information and remained at her parents place. She came back only after he was discharged from the hospital. At home when he was unable to move on account of severe back-ache as he was suffering from slip disc, the appellant never bothered to extend a helping hand to him in that crucial phase. She rather called him "langada loola". She also did not stop her frequent visits to her parents'' place.

It was further pleaded by the petitioner that on 10.05.2000 his friends Himmat Singh, Harkirat Singh Waraich, Ashok, Munish and others came to his house to know about his well being. Vanit Kappor, his brother-in-law had also come for that purpose. All of them were sitting in a room when the appellant came back from her parents'' house. When he asked her to serve tea to his friends, she flatly refused and asked him to prepare tea himself. She remarked that if he being a "langada-loola" was unable to do the work, he should re-employ the servant whom he had fired. He felt very extremely humiliated before his friends. With the help of his friends and brother-in-law, he was brought down in the lawn where the wife of his brother brought tea for his friends. The appellant came down and slapped his sister-in-law in the presence of friends and guests. Since then, he lost his face in the friends circle as well as before the relatives.

The petitioner alleged that despite separate arrangement of residence, the appellant was not satisfied and she insisted him to get his parents'' property partitioned to have his share. He explained to her that he did not want to raise any such issue at that juncture but she continued to compel him for the same.

On 19.05.2001, the parents of the appellant along with her maternal uncles Balbir Mehra and Yudhvir Mehra, Bodh Raj Mohunderu and Dr. Bua Singh came to his house and tried to prevail upon him and his parents to partition the property. When he and his parents refused to accept their ingenuine demand the appellant in an aggressive mood shouted "Is Budhe ne Patta nahi kadon marna hai te kadon sada pichha chhaddana hai" (God Knows when this old man will die and their life will be relieved). Her parents also got enraged and threatened them that they were having links with high officials of the police and will teach them a lesson by implicating them in a false criminal case. After the said incident, the appellant started refusing him to have sex with her. She openly declared that she would not allow him to touch her unless he gets his parental property partitioned. This attitude of the appellant continued till she left his house on her own on 03.06.2000. Thereafter, she continued to play on the tune of her parents and started filing complaints against him and his family members to harass and humiliate them. On 03.07.2002, she lodged a false case against him and his entire family for which they had to rush for bail. His brother and his wife were granted anticipatory bail by the Court of Additional Sessions Judge, Amritsar, whereas his parents had to run to the High Court for obtaining bail in order to avoid their arrest. However, the local police arrested him and he remained in police as well as in judicial custody. He managed to get regular bail after five days of his arrest. The acts of the appellant brought disgrace to him and his family members and they went through severe mental trauma. Ever since the appellant left the matrimonial home on 13.06.2002, they were living separately. She had left the house with an intent not to keep matrimonial tie intact and had deserted him for a continuous period of more than two years immediately preceding the presentation of the petition.

With the above submissions the petitioner sought dissolution of his marriage with the appellant on the ground of cruelty and desertion."

The appellant appeared and contested the petition. In the written statement filed by her, she admitted her marriage with the petitioner and also that a female child was born out of their wedlock, who was residing with her. She denied all allegations levelled by the petitioner and submitted that it was unfortunate for her that neither petitioner nor any of his relations treated her properly. They constantly maltreated her on account of their demand for dowry. She was told that she cannot live in the matrimonial home so long as their demand for dowry is not fulfilled. The constant misbehaviour and maltreatment meted out at the hands of the petitioner and his family members disturbed their matrimonial life. The respondent denied that she had ever thought of separating from the family of the petitioner. Infact the petitioner and his parental relations were not allowing her to make use of the kitchen and were treating like a slave. She often used to be beaten mercilessly though she served the parents of the petitioner and also provided the petitioner a helping hand. After the birth of the baby she was forced to go to her parents house and the petitioner and his family members refused to bear her expenses and that of the new born child.

The appellant submitted that after the petitioner met with an accident, she stayed with him in the hospital and provided him natural love and care. Even when he was confined to bed, she extended help to him in every manner. According to the appellant, the story regarding the humiliation of the petitioner before his friends and guests was concocted and had no truth in it. She also never refused sex to him but he used to take her with utmost cruelty. During performance of the normal sexual intercourse he would adopt unnatural methods to put her under pain and used to commit unnatural offence by forcing her for anal intercourse. She kept on tolerating his high handedness but his wrongful acts and that of his parental relations increased day by day and ultimately, she was turned out of the matrimonial home alongwith her minor child only in three wearing apparels. It was only thereafter that the matter was reported to the police and a criminal case in the shape of an FIR was registered against him and his family members and they are being tried by the Court of Chief Judicial Magistrate, Amritsar.

The appellant alleged that she had no intention to malign the reputation of the petitioner, but the FIR was lodged as she was treated with cruelty and her dowry articles were misappropriated. Submitting that she was still ready and willing to live in the matrimonial home provided her love, affection and decency and alleged that the petitioner is interested in remarrying some other girl. The appellant prayed for dismissal of the petition.

On the pleadings of the parties, the learned trial Court framed the following issues:

"(i) Whether the respondent had treated the petitioner with cruelty after solemnization of the marriage? OPP

(ii) Whether the respondent has deserted the petitioner for a period of more than two years immediately before the presentment of the petition? OPP

(iii) Whether the petition is not maintainable in the present form? OPR

(iv) Whether the petitioner is estopped by his act and conduct from claiming the relief as sought for in the petition? OPR

(v) Whether the petitioner is entitled to decree of divorce? OPP

(vi) Relief."

Both the parties adduced evidence to substantiate their rival contentions.

Petitioner himself appeared in the witness box as PW-1 and examined his brother Nitin Arora-PW2, sister-in-law Anuradha Arora PW-3, Vanit Kapoor-PW4 and Himmat Singh-PW5.

On the other hand, the appellant herself entered in the witness box as RW-5 and examined Ravi Chathrath-RW1, Gokal Chand-RW2, Dr. Gurbachan Singh-RW-3, her father Ramesh Kapoor-RW4 and mother Sushma Kapoor-RW6.

Considering the evidence led by the parties and submissions made on their behalf, the learned trial Court finding that the acts of the appellant stated by the petitioner amounted to treating him with cruelty decided issue No. 1 in favour of the petitioner. Also, finding that the appellant had deserted the petitioner continuously for a period of more than 2 years immediately preceding the presentation of the petition Issue No. 2 was decided in favour of the petitioner. As a result of the above findings, the petition was allowed and the marriage between the parties was dissolved by a decree of divorce.

Aggrieved by the impugned judgment and decree dated 10.04.2006 passed by the learned trial Court, Shruit Arora-appellant-wife preferred the instant appeal.

Admittedly, the marriage between the parties was solemnized on 05.12.1998 at Amritsar and they lived together up to 13.06.2000. The date on which the appellant alongwith her minor daughter left the matrimonial home i.e. 13.06.2000 as stated by the petitioner was not denied by the appellant although she disputed that she had left the matrimonial home on her own volition. The acts of commission and omission of the appellant stated by the petitioner which he alleged amounted to cruelty towards him were that the appellant did not want to live in the joint family; she pressurized him for a separate residence and to get the property of his father partitioned so as to get his share; she disrespected him and his old parents and used abusive language towards them; she refused to serve meals to him so much so that some times he was made to sleep without meals; she did not bother for him when he was hospitalized after the accident and also did not extended to him a helping hand during crisis i.e., when after discharge from the hospital he was confined to bed due to slip disc; on 10.05.2000 she insulted and humiliated him in the presence of his friends and guests and slapped his sister-in-law (Bhabhi) who had brought tea for them after her refusal to serve the same; lastly she got registered a false criminal case against him and his family members in which he was arrested and he remained confined behind the bars for five days and his parents and other members of the family had to rush for anticipatory bail.

The petitioner deposing through his affidavit Ex. PA substantiated all his allegations. He also examined his brother Nitin Arora-PW2, sister-in-law Anuradha Arora-PW3, friends Vanit Kapoor-PW4 and Himat Singh-PW5, who corroborated his allegations.

Learned counsel for the appellant argued that all allegations of the petitioner were general and were at the most, an outcome of domestic quarrel between the parties. He could not narrate even a single incident which could come within the ambit of "cruelty" as used in the provisions of Section 13(1)(ia) of the Act of 1955. Simple disharmony and incompatibility does not amount to mental cruelty by one spouse to other. Relying upon Raj Pal Vs. Sukhbiri, (1999) 1 DMC 300 learned counsel contended that lack of adjustment cannot be allowed to wreck a marriage which is founded on mutual trust, faith and sacrifice. "Mental cruelty" alleged by the complaining spouse must be of such a degree that the spouse seeking relief cannot be reasonably expected to live with the other.

Referring to the facts in hand learned counsel urged that all allegations by which the petitioner tried to blame the appellant for misbehaving with him and his family were specifically denied by the appellant. She denied that she had ever disrespected his parents or demanded portion of his parents'' property. She also denied that she had ever refused to serve meals to the petitioner or had not attended him when he was confined to bed after accident. As far as the allegation of the petitioner that the appellant had got a criminal case of demand of dowry registered against him and his family members was concerned, that was not based on false facts. The appellant was ill treated by the petitioner and his family members on account of their demand for more and more dowry and on several occasions she was physically assaulted on that count, therefore, she had no option than to lodge a complaint and seek legal redressal of her suffering.

Learned counsel asserted that when from a dispute, criminal and civil proceedings crop up, both can proceed simultaneously however when decision of a Civil Court is not binding on a criminal Court the decision of criminal Court is also not binding on a Civil Court. There is neither any statutory provision nor any legal principle that the finding recorded in one proceeding may be treated as final or binding in the other as both the civil and criminal cases have to be decided on the basis of the evidence adduced therein. To support his argument, learned counsel relied upon judgment of Apex Court in Syed Askari Hadi Ali Augustine Imam and Another Vs. State (Delhi Admn.) and Another, AIR 2009 SC 3232 : (2009) 4 JT 522 : (2009) 3 SCALE 604 : (2009) 5 SCC 528 : (2009) 4 SCR 1017 : (2009) AIRSCW 3251 : (2009) 4 Supreme 222 .

Refuting the arguments of learned counsel for the appellant learned counsel for the petitioner submitted that the criminal case got registered by the appellant under Section 498-A, 406 of the Indian Penal Code on her allegation that she had been maltreated by the petitioner and his family on account of their demand of dowry, has since resulted in their acquittal. Because of registration of the case the petitioner remained behind the bars for five days and he had to go through the trauma of confinement on the allegation of the appellant which she was unable to prove.

By levelling false allegations and disgracing husband and his family in the society undoubtedly constituted matrimonial cruelty and on that ground alone, the petitioner was entitled to dissolution of his marriage with the appellant and the relief of decree of divorce was rightly granted to him by learned trial Court.

It appears to be a misconception on the part of the appellant that the allegations of the petitioner were general in nature which could be brushed aside as normal wear and tear of a married life. The petitioner categorically alleged that just after a short span of marriage, the appellant started picking up quarrels on petty matters; disrespected his old and ailing parents and whenever he asked her to give them medicine she refused to do so saying that she would rather give poison to them. He also alleged that the appellant pressed him to get his share separated in the property held by his father. Besides himself reiterating the aforesaid allegations in his deposition, the petitioner examined his brother Nitin Arora-PW2 and Vanit Kapoor-PW4, brother-in-law of Nitin Arora. While PW-2 being brother was living with the petitioner, PW-4 Vanit Kapoor stated that he often used to visit the house of his sister-Anuradha Arora wife of Nitin Arora to know her well being on regular intervals including the festive occasions and saw that the behaviour of appellant Shruit Arora was very insultive towards her in-laws family. She did not like to live in the joint family and used to compel her husband to have a separate residence. He also stated that in April, 2000 when the petitioner met with an accident and he came to see him, he found that his wife never bothered for him and called him "langada loola". The incident of 10.05.2000 during which the appellant abused the petitioner and refused to serve tea etc. to the guests and when his sister-in-law Anuradha Arora prepared the tea and brought before guests the appellant came and slapped her in presence of all, was also witnessed by him.

The statement of Himmat Singh PW-5 a family friend, is also on the same lines as that of PW4-Vanit Kapoor. He too was a witness to the misbehavior of the appellant towards the petitioner and his parents from the beginning of the marriage till she left the matrimonial home. The appellant though denied the said allegations in her pleadings but neither PW-4 nor PW-5 were cross examined by her on the said facts.

Importantly, the petitioner examined his sister-in-law Anuradha-PW3 for proving the incident of 10.05.2000. Her testimony as regards the said incident was not challenged/disputed by the appellant during her cross-examination. PW4-Himmat Singh in his cross-examination reiterated that the incident dated 10.05.2000 when the appellant insulted and humiliated the petitioner had taken place in his presence. No further query about the incident was put to him. Non cross-examination of a witness on a particular factum by the opposite party amounts to admission of that fact by the said party. Thus, from the evidence, it stood established that the appellant in the presence of relatives and friends used indecent and abusive language towards the petitioner and refused to prepare tea on his asking and also slapped her sister-in-law (jethani) in the presence of the guests. When the behaviour of the appellant in the presence of guests was so humiliating towards the petitioner, there is no reason to disbelieve the other allegations of the petitioner relating to her conduct.

As far as the counter allegations of the appellant were concerned, it is apparent from the documentary and ocular evidence available on record that she had no consistent stand and was proved to be untrustworthy. The appellant tendered in evidence her application Ex. PF given by her to the police on the basis of which the criminal case was registered against the petitioner and his family members. The allegations made in that application are not inconsonance with her pleadings in the instant case as in the application, she alleged that only when the demand of Rs. 5 lacs raised by her husband was not fulfilled, he started physically torturing her. She also alleged that her husband had been doing forcible unnatural sex with her and on her refusal he used to beat her. He used to tie her hands and feet and behave with her like an animal and further that her husband threatened to molest her mother and sister also in case his demand of Rs. 5 lacs was not fulfilled. The said story was missing in the written statement filed by her in the instant petition. The said allegation of demand of Rs. 5 lacs etc. and her ill treatment because she was unable to fulfil the demand, was also missing in her pleadings contended in her written reply.

It is further note worthy that the appellant in her affidavit Ex. RE deposed that on 13.06.2002 she was beaten mercilessly by her husband-petitioner his parents, brother-Nitin Arora and sister-in-law Anuradha Arora. They tried to murder her by pressing her neck with extreme difficulty she managed to save herself and ran to the house of her neighbour Gokal Chand. She then called her father with whom she came to her parental home. The matter was brought to the notice of her parental relations and family criminal case was got registered against the petitioner and his family members. Besides her parents RW-4 Ramesh Kapoor and RW6-Sushma Kapoor supporting her version she examined Gokal Chand-RW2. However apart from the fact that the said story was not put by her to the petitioner during his cross-examination. In her application Ex. PF given to the police, she had stated that on 13.06.2002 at 2.00 am, the petitioner and his family members in pursuance of a criminal conspiracy, had tried to kill her by strangulating her with a "dupatta" and some how she managed to escape from their clutches and ran away and gave an application to the SHO Police Station Civil Lines Amritsar. In the application Ex. PF it was not her version that from the house, she had gone to the house of Gokal Chand where her father was called Inconsistency in the statement of appellant at different intervals proved that she had disturbed the true facts. As such by no mention it could be held that the acts of the appellant proved by the petitioner amounted to only dishumiliating or incapability and did not tantamount to physical and mental cruelty given by her towards husband.

Be that as it may, the petitioner and his family members have since been acquitted in the criminal case of demand of dowry levelled by the appellant against them. It has been held by Hon''ble Apex Court in a judgment in K. Srinivas Rao Vs. D.A. Deepa, (2013) 3 AD 458 : AIR 2013 SC 2176 : (2013) 1 DMC 458 : (2013) 3 JT 97 : (2013) 171 PLR 149 : (2013) 2 RCR(Civil) 232 : (2013) 2 SCALE 735 : (2013) 5 SCC 226 : (2013) AIRSCW 1396 : (2013) 2 Supreme 80 that it is now beyond cavil that if a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce.

As a consequence of the above discussion, there being no ground for intervention in the findings of the learned trial Court, the appeal has no merit and is hereby dismissed.