Smt. Upnesh Kumari vs Kamlesh Kumar

Kamlesh Sharma, J.—The Appellant-wife is aggrieved by the decree and judgment dated 9.12.1993 passed by the District Judge, Kangra at Dharamshala whereby decree of divorce has been passed dissolving the marriage between her and the Respondent-Husband on the ground of cruelty.

The parties were married on 18.2.1990. After their marriage, the parties lived and cohabited together as husband and wife at village Jadrangal, Tehsil Dharamshala, District Kangra. No child was born to the parties. On 13.12.1992, the Respondent-husband filed a petition alleging the acts of mental cruelty which are: Without reasonable cause, the Appellant-wife, after a few days of their marriage, left the matrimonial home without the consent of the Respondent-husband and started living at her parent''s house. She took with her the valuables of the house, that is, ornaments, utensils etc. etc. On the asking of the Respondent-husband, she told him that he was not to her liking and she did not want to live and settle with him as his wife. When the Appellant-wife did not return to her matrimonial home, the Respondent-husband went to her parent''s house to bring her back, where in the presence of her parents and other relations, she levelled serious allegations against him and humiliated him. She also threatened to defame him in the eyes of the public and drag him to the Court of law. According to the Respondent-husband, she had not joined his company for the last two years before the filing of the petition, as such, she had deprived him of his matrimonial right of consummation which amounted to mental cruelty. Later on, the Appellant-wife filed an application u/s 125 Code of Criminal Procedure for maintenance wherein she made allegations against the Respondent-husband that he was a drunkard; that he demanded dowry and also that he had illicit relations with his brother''s wife. According to the Respondent-husband, he had lost his parents at a very young age and his elder brother and his wife, namely, Amar Singh and Smt. Ahilya Devi, against whom the allegations were made, had brought him up, educated him and got him married with the Appellant-wife. According to the Respondent-husband, she had also filed a false case against him under Sections 498A, 306 read with Section 34 I.P.C. His brother and sister-in-law, Smt. Ahilya Devi were also implicated in the said case. In these circumstances, the Respondent husband had not visited his native village Jadarangal and used to remain mostly at the place of his posting and occasionally went to meet his brother and sister-in-law. As per the Respondent-husband, in these circumstances, it was not possible for him to live with the Appellant-wife and he sought decree of divorce by dissolution of marriage.

The Appellant-wife in her reply denied the allegations made in the petition. She has admitted that she lived with the Respondent-husband for six/seven months after their marriage and thereafter due to demands of dowry, which she could not fulfil, the Respondent-husband started giving her merciless beatings which compelled her to leave his house. According to her, the Respondent-husband was a habitual drunkard and whenever she objected to it, he used to maltreat her. He had also turned her out two/three times from the matrimonial home. She has admitted that she had filed an application u/s 125 Code of Criminal Procedure for maintenance and had made allegations therein that the Respondent-husband had illicit relations with his brother''s wife, which were correct. She has also admitted that a case under Sections 498A, 306 read with Section 34 I.P.C. was filed against the Respondent-husband, his brother and sister-in-law and it was pending in the Court of law.

On the pleadings of the parties, the District Judge framed the Issue:

1) Whether the Respondent has treated the Petitioner with cruelty, as alleged? OPP

The Respondent-husband appeared as his own witness and produced his brother, Amar Singh as P.W-2 and Pritam Chand as P.W-3. In defence, the Appellant-wife appeared as her own witness and produced one Sita Ram as R.W-2. In their statements on oath, the Respondent-husband and his brother, Amar Singh, (P.W-2) have reiterated all the allegations made in the petition. In his cross-examination, the Respondent-husband has stated that the Appellant-wife had finally left his house in the year 1990 of her own and in April, 1990 he, along with his brother, had gone to the house of the parents of the Appellant-wife where she had levelled allegations and threatened him to drag him in a court of law in the presence of her parents, brothers and other relations. He denied that he had ever given beatings to the Appellant-wife or taunted her for not bringing sufficient dowry. He has admitted that maintenance of Rs. 300/- per month was granted in favour of the Appellant-wife in the proceedings u/s 125 Code of Criminal Procedure and that the Revision filed by him against the said order was dismissed. During the cross-examination, he was put the question, which he answered in the negative, that he had illicit relations with his brother''s wife and for this reason he was not keeping the Appellant-wife with him. The cross-examination of Amar Singh (P.W-2) is also on the similar lines. He has categorically stated that his brother is a tea-totaller and that his brother never gave beatings to the Appellant-wife or demanded dowry from her. He has, however, admitted that his brother did oust the Appellant two/three times from the matrimonial home and also that for the last 2/3 years they had not gone to her parents'' house to call her back. This witness was also put the same question that the Respondent-husband had illicit relations with his wife, which he denied. Pritam Chand (P.W-3), who is neighbour of the Respondent-husband has supported his case. He had also appeared as a witness in the proceedings u/s 125 Code of Criminal Procedure He has stated that the brother of the Respondent-husband was residing at Pathiar.

The Appellant-wife, in her statement made in the Court, has reiterated her allegations made in her reply to the petition. According to her, the Respondent-husband used to beat her after taking liquor and had turned her out of the matrimonial home though she never uttered a word which was not liked by him. She has categorically stated that the Respondent-husband had illicit relations with his Bhabi and that they are living as husband and wife. According to her, the Respondent-husband had earlier filed a petition u/s 13 of the Hindu Marriage Act which was dismissed. Despite this, she had shown her willingness to live with the Respondent-husband. According to her, she had convened brother-hood Panchayat at Jadrangal on 15.2.1992 in which Pritam Chand (P.W-3) had also participated along with others but she has not stated as to what transpired in the said Panchayat. She has denied that the brother and sister-in-law of Respondent-husband had brought him up as a son and he treats his Bhabi like his mother though she could not deny that the age of the brother of the Respondent-husband was 51/52 years and that of his Bhabi 45 years and that she had three children aged 16,14 and 11. Her witness Sita Ram(R.W-2) has stated that the Respondent-husband was his nephew and that he used to ill-treat the Appellant-wife and used to give her beatings in his presence and that he had turned her out of the matrimonial home. He has also stated that the Respondent-husband had illicit relations with his sister-in-law. In his cross-examination he has admitted that he had appeared as a witness for the Appellant-wife in the proceedings u/s 125 Code of Criminal Procedure He could not give the date of death of the parents of the husband and could also not deny that he was brought up by his brother and sister-in-law. He has denied that he had property dispute with the Respondent-husband and for this reason he was deposing against him.

On the basis of the above stated evidence, the District Judge has come to the conclusion that there had been mental cruelty of such nature to the Respondent-husband that it was not possible for him to live with the Appellant-wife and he was entitled to a decree of divorce by dissolution of their marriage. The District Judge has also held that though in her statement in the Court the Appellant-wife had shown her willingness to live with the husband, yet, in the same breath she had reiterated the allegations of illicit relations of the Respondent-husband with his sister-in-law. According to the District Judge, these allegations were enough to constitute mental cruelty for granting decree of divorce in favour of the Respondent-husband.

We have heard the learned Counsel for the parties and gone through the record. The latest judgment of the Supreme Court in V. Bhagat Vs. Mrs. D. Bhagat, has been cited before us in para 16 of which the learned Judges of the Supreme Court have defined mental cruelty in the following words:

Mental crueity in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the Petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

The learned Judges have relied upon earlier judgments in Shobha Rani Vs. Madhukar Reddi, and Chanderkala Trivedi (Smt) Vs. Dr. S.P. Trivedi, wherein principles have been enunciated to judge whether particular allegations constitute mental cruelty as envisaged u/s 13(1)(ia) of the Hindu Marriage Act. In the present case, it is not in dispute that the Appellant-wife had levelled allegations in her petition u/s 125 Code of Criminal Procedure and thereafter in her reply to the divorce petition as well as in her deposition in the Court consistently that the Respondent-husband had illicit relations with his brother''s wife who is not only an elderly lady of 45 years of age; has three grown up children aged 16, 14 and 11 but who has brought up the Respondent-husband after the death of his parents. It is also proved on record that only after a period of five/six months, the relations between the parties became strained and they had not been living together. The Appellant-wife had filed a petition u/s 125 Code of Criminal Procedure and thereafter a criminal case under Sections 498A, 306 read with Section 34 IPC not only against the Respondent-husband but also against his brother and sister-in-law. The Appellant wife has failed to prove her allegations that the Respondent-husband was a drunkard and that he used to give her beatings after taking liquor or for the reason that she did not bring sufficient dowry. Levelling of such allegations does constitute mental cruelty as by these allegations the Respondent-husband as well as the brother and sister-in-law were defamed in their Biradari. It has come on record that in these circumstances the Respondent-husband and his sister-in-law were forced to leave their native village and they started living in another village.

From the above stated facts and circumstances, we are satisfied that the conduct of the Appellant-wife had been such that it inflicted such mental pain and suffering upon the Respondent-husband as would make it not possible for him to live with the Appellant-wife. The above stated incidents are not normal wear and tear of married life which can be repaired. In fact, these prove that the marriage between the parties had broken down irretrievably. It is held in V. Bhagat v. D. Bhagat (supra) that irretrievable breakdown of marriage is not a ground by itself but while scrutinising the evidence on record, where the ground alleged is made out and in determining the relief to be granted, this circumstance is certainly to be borne in mind. Therefore keeping this in view, we hold that no useful purpose will be served if the marriage between the parties is not dissolved by a decree of divorce and they continue to live with strained relations making allegations against each other and fighting unending litigatin.

Mr. Ajay Goel, learned Counsel for the Appellant has pointed out that the petition of the Respondent husband was not maintainable as necessary particulars in regard to previous proceedings as well as specific acts of cruelty as required under Rule 5(e) and 5(g)(iv) of the Hindu Marriage and Divorce (H.P.) Rules, 1982, were not given in the petition filed by the Respondent-husband. His further objection is that the affidavit to the effect that the Respondent-husband had not condoned the complained of acts of cruelty, as provided under Sub-rule (4) of Rule 6 of the Rules, was also not filed. These objections deserve to be dismissed on the short ground that these are being raised for the first time in the appeal. If the Appellant-wife was serious about these objections, she should have raised these at the very outset in her reply to the petition to provide an opportunity to the Respondent-husband to remove these defects. Moreover, these are procedural defects and not of much substance. The Appellant-wife knew what were the acts of cruelty alleged against her and the fact that the Respondent-husband had not gone to fetch her back for the last two years before the filing of the petition establishes that the Respondent-husband had not condoned the acts and conduct of cruelty of the Appellant-wife. We may also point out that these objections have been raised at this stage when the Appellant-wife has suffered a decree of divorce.

The result of the above discussion is that there is no merit in this appeal and it is dismissed. Costs easy. However, the Appellant-wife may file a petition u/s 25 of the Hindu Marriage Act claiming permanent alimony. It may be pointed out that the Appellant-wife is already getting maintenance at Rs. 300/- per month as fixed in the proceedings u/s 125 Code of Criminal Procedure.