Sonia vs Rakesh Kumar

Jaspal Singh, J.—By this common judgment we intend to dispose of two FAOs bearing Nos. M-384 of 2009 and 7351 of 2011 filed

against judgment and decree passed by District Judge, Family Court, Hisar dated 01.09.2009 whereby petition filed by Sonia (wife) u/s 9 of the

Hindu Marriage Act, 1955 (for short, ''the Act'') was dismissed and another petition filed by Rakesh Kumar (husband) u/s 13 of the Act for

dissolution of marriage was accepted. As the controversy involved in both the appeals is the same, the facts recapitulated from the petitions filed

under Sections 9 as well as 13 of the Act are that the marriage between the parties was solemnized on 09.05.1998 at village Neoli Khurd

according to the Hindu rites and ceremonies. After the marriage, parties lived together and cohabited as husband and wife. Out of their wed-lock,

one son namely Anil was born in November, 2000.

The averments made in the petition u/s 9 as well as reply to the petition filed u/s 13 of the Act are that at the time of marriage, the parents of the

petitioner/wife incurred huge amount approximately to the tune of Rs. 1,50,000/- and gave sufficient dowry more than their financial capacity but

the respondent/husband was not satisfied with the same, due to which, her life was not peaceful. There were no cordial relations with the

respondent/husband and his family members. The respondent/husband as well as his family members started giving merciless beatings to her, on

account of not meeting the demand of dowry. However, due to goodness of Sudesh, the younger brother of the respondent/husband, the petitioner

was not harassed in his presence, who expired in a road side accident on 25.02.2001. Thereafter, respondent/husband and his family members

started harassing her for the sake of dowry and also put forward their demand of cash amount. It has further been alleged by the petitioner/wife

that since January, 2006, after being thrown out of matrimonial home, she along with her minor son is living at the house of her father. Even she has

no movable or immovable property to maintain herself as well as the minor child and the respondent/husband has ignored her as well as the minor

son. He has refused to pay any maintenance. She made several efforts to join his company but with no fruitful result. The respondent/husband has

filed a petition for dissolution of marriage on the ground of cruelty, leveling false allegations just to make out a case of divorce.

On the other hand, the case put forth by the respondent/husband is that the petitioner/wife has no cause of action and stands estopped from

filing the petition by her own act and conduct. Admitting his marriage with Sonia as well as die birth of the child out of their wed lock, it has been

alleged by the respondent/husband that the marriage between the parties was simple and no dowry was given at the time of marriage by the

parents of the petitioner. However, his father gave 10 tolas of gold ornaments at the time of marriage beside silver ornaments. For some time, they

lived peacefully and happily but thereafter, the behaviour of the petitioner wife was changed and she started quarrelling with him as well as his

parents on trivial matters and used to leave matrimonial home even without his permission and without informing him. After about 4 years of

marriage, the petitioner/wife after having quarrelled with him and his parents left the house and went to her parents house. Thereafter, she lodged a

complaint against him and his parents in Nodal Cell, Hisar. Even he was ready and willing to keep and maintain the petitioner/wife at Tohana but

her behavior did not change due to the interference of her parents in their matrimonial life. His father-in-law took away the petitioner/wife on the

pretext that he will talk to her but she did not return to her matrimonial home. Though, the Panchayat was also convened to patch up the matter but

nothing positive came out. Rather, she lodged a false criminal complaint against him and his parents under Sections 498-A, 406, 506 read with

Section 34 of the Indian Penal Code (for short, ""IPC"").

Vide order dated 17.11.2008, learned District Judge, Family Court, Hisar consolidated both the petitions u/s 9 and 13 of the Act preferred by

the parties against each other. Both the petitions were hotly resisted by the parties. The learned District judge culled out the following issues from

the pleadings of the parties:--

Whether there are sufficient grounds to dissolve the marriage on the ground of cruelty and desertion? OPA husband

Whether the husband has sufficient cause to Part Company? OPA

Relief.

Both the parties were afforded ample opportunity to adduce and lead their evidence in support of the respective pleadings and they led oral as

well as documentary evidence.

As per order dated 17.11.2008, the respondent/husband was directed to lead evidence first. In order to substantiate his case,

respondent/husband himself stepped into the witness box as PW-1 and submitted his sworn affidavit as PW-1/A. He also examined Ram Sarup as

PW-2 and Ved Parkash as PW-3. Besides this, he tendered in evidence Ex. P1, copy of order dated 08.03.2008.

To rebut the evidence adduced by the respondent/husband, the petitioner/wife appeared in the witness box as RW-1 and furnished her sworn

affidavit as RW-1/A and also examined Kapoor Singh as RW-2, Partap as RW-3 and Ram Saran as RW-4. She also tendered in evidence

document Ex. R1.

After hearing learned counsel for the parties and perusing the evidence, learned District Judge, Family Court, Hisar dismissed the petition

preferred u/s 9 of the Act by wife Sonia and accepted the petition u/s 13 of the Act tiled by husband (Rakesh) vide impugned judgment and

decree dated 01.09.2009.

Feeling aggrieved of the abovesaid judgment and decree, the wife-Sonia has preferred appeals u/s 19 of the Family Court Act, 1984 which

were admitted vide order dated 27.05.2011 and 18.07.2012, respectively.

Lower court record was requisitioned and received.

While assailing the impugned judgment and decree dated 01.09.2009 passed by the learned District Judge, Family Court, Hisar, it has been

argued with vehemence that the same are absolutely against the evidence and settled cannons of law. Misappreciation of the evidence and the

proposition of law applicable to the facts and circumstances of the case in hand have resulted into miscarriage of justice. Learned trial court has

failed to consider that the marriage between the parties was solemnized on 09.05.1998 and out of their wed lock one son namely Anil was born in

November, 2000. Wife/appellant was thrown out of the matrimonial home in the month of January, 2006 and thereafter, there had been no

reunion. Learned trial court has mainly acted on mere conjectures and surmises. There was a specific stand of the appellant/wife in para No. 6 of

the petition filed u/s 9 of the Act in which it was stated as under:--

That the said younger brother of respondent died in a road Accident on 25.2.2001 and thereafter the respondent and his family members started

harassing the petitioner for the sake of dowry and also put forward their demand for cash. All the cruelties and the misdeed of respondent and his

family members are not forgiven by the petitioner but the same are not mentioned here for the sake of hope for leading peaceful married life.

Moreover, the petition u/s 13 of the Act filed by the respondent/husband was nothing but a counter blast to the petition under. Section 9 of the

Act filed by the wife. The petition u/s 9 of the Act was preferred on 12.04.2006 and the respondent-husband filed the petition u/s 13 of the Act on

19.04.2006, i.e. after a week thereof, leveling false allegations. Learned trial court has also ignored the admission of the respondent/husband

emerging in his statement dated 17.03.2008 and in the statement of his father (RW-2 Ram Sarup), who deposed that the parties in the instant

appeal were separated in the year 2004. Then both husband and wife lived at Bhatia Nagar, Tohana for a period of one year after separation from

the joint family. Similarly, PW-3 has also admitted that the appellant and respondent resided together at Tohana for about one year.

In fact the respondent-husband and his parents were not satisfied with the dowry given at the time of marriage to the appellant wife, though a

huge amount of Rs. 1,50,000/- was incurred. She was given beatings mercilessly by the respondent/husband a number of times and they also

raised the demand of dowry. However, due to the goodness of Sudesh, the younger brother of the respondent-husband, the appellant wife was

not harrassed in his presence. Sudesh breathed his last in a road accident on 25.02.2001 and thereafter, respondent and his family members

started harassing the petitioner for not bringing sufficient dowry and also for a demand of Rs. 2 lacs. Moreover, respondent has miserably failed to

establish the ground of cruelty which is the basic requirement for the dissolution of marriage u/s 13(1)(ia) of the Act. Rather, it is explicit from the

statement of the appellant/wife Sonia (RW-1) that it was the respondent/husband who had deserted her without any reasonable cause or excuse

and further that she was harassed and maltreated by him for not meeting the demand of dowry and cash amount. Therefore, the impugned

judgment and decree deserves to be reversed by way of acceptance of the instant appeal. The appellant/wife is entitled for decree u/s 9 of the Act

for restitution of conjugal rights whereas the petition preferred by the respondent/husband u/s 13 of the Act is liable to be dismissed.

These arguments have been controverted by the learned counsel for the respondent by contending that the impugned judgment and decree

dated 01.09.2009 is absolutely in consonance with the evidence available on file and welt reasoned. It is only on the basis of the evidence adduced

by the respondent/husband which could not be rebutted by the appellant/wife has been made the basis while passing the impugned judgment and

decree. The allegations put forth by the appellant/wife against the respondent/husband are simple, vague and general. It has only been alleged by

her that the respondent was not satisfied with dowry at the time of marriage and further that he compelled her to bring more dowry and cash

amount. The parties lived happily from May, 1998 to April, 2004. So, allegations are nothing but to make out a ground to file the petition. Infact,

after the death of Sudesh, younger brother of the respondent/husband, she raised dispute and left the matrimonial home. She has leveled false

allegations that the respondent/husband intended to remarry with the widow of his younger brother who had expired in a road side accident on

25.02.2001 and this allegation could not be established by her. Not only this, she also lodged a complaint under Sections 498-A, 406 and 506

read with Section 34 of. IPC, in which, the respondent/husband as well as his parents were summoned to face trial vide order dated 03.08.2008

by the Court of learned District Judge, Family Court, Hisar. Moreover, a complaint was also lodged to the Nodal Cell, Hisar in which a

compromise was got effected by a committee constituted for the said purpose which submitted its report Ex. R-1 As per the contents of the said

report, there was no allegation with regard to the demand of the dowry or the cash amount or that the husband intended to remarry with the wife of

his younger brother. Even it has also appeared in Ex. R-1 which was unfolded by the present appellant that no quarrel took place in between her

and her husband or his father. Rather she used to leave the house without any permission or against the wishes of the respondent/husband or his

parents. She is residing separately since April, 2004 and did not join the company of the respondent-husband despite the fact that a lot of efforts

were made.

The petition was preferred u/s 13 of the Act by the respondent-husband on 19.04.2006 after more than two years of the leaving of the

matrimonial home by the appellant/wife. So, in such circumstances the respondent/husband has been successful to establish the ground of cruelty

and desertion by way of evidence. As such, the instant appeal being devoid of any merits preferred by wife deserves to be dismissed.

We have given a thoughtful consideration to the rival contentions of the learned counsel for the parties besides going through the evidence

available on the file. Both the parties have leveled allegations against each other that he or she have been treated with cruelty by his or her spouse.

The expression cruelty'' has not been provided in the Act which is otherwise elaborated by the Hon''ble Apex Court while dealing with the case

Smt. Mayadevi Vs. Jagdish Prasad, which reads as under:--

The expression ""cruelty"" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage

may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to

a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the

particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental

cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established

and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other

spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship tike matrimony, one has to see the

probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly

not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case

and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or

omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in

the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to

probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence

in matrimonial disputes.

The expression cruelty'' has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of

matrimonial duties and obligations. Cruelty is a course of conduct of one, which is adversely affecting the other. The cruelty may be mental or

physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is

mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the

mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter

of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case

where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact of injurious effect on the other spouse need

not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

A glance at the aforesaid observation transpires that the cruelty can be physical or mental which is one of the grounds of dissolution of marriage

and can be defined as willful and unjustifiable conduct so as to cause danger to life and health physically or mentally. Moreover, each case has its

own facts. The cruelty has to be considered keeping in view the facts of each case. Generally, the marriage is said to have been made in heaven

and is considered to be sacrosanct. For the dissolution thereof, petty quibbles and trifling differences and general wear and tear in the family should

not be annexed with much importance. Such incidents are required to be weighed from that point of view for determining what constitutes ''cruelty''

in each particular case.

The instances of cruelty highlighted by the parties before the trial court as well as before this Court have been enumerated in the foregoing

discussion. As regards the intention of the respondent husband to remarry the widow of his younger brother Sudesh, there is no evidence.

Moreover, this instance was also not given by the appellant/wife while either filing the petition u/s 9 of the Act or while by filing written statement to

the petition u/s 13 of the Act preferred by respondent-husband. Such a question came for consideration before the Hon''ble Apex Court in case U.

Sree Vs. U. Srinivas, , in which, it was observed that wild allegations were made by the wife about conspiracy of the family of her husband to get

him re-marry for the greed of dowry and there is no iota of evidence on record to substantiate the same. This, in fact, is an aspersion not only on

the character of the husband but also a maladroit effort to malign the reputation of the family.

Similarly, it has been alleged by her in her affidavit when appeared in the witness box that the respondent and his family members raised a

demand of cash amount to the tune of Rs. 2 lacs but such a figure does not find mention in her petition preferred u/s 9 of the Act. Lodging of

complaint under Sections 406, 498-A read with section 34 of IPC, and summoning of the respondent/husband and his parents are also admitted

facts. Even otherwise, it stands proved from the documentary evidence Ex. P-1, the copy of summoning order. Moreover, question regarding

demand of dowry or cash amount to the tune of Rs. 2 lacs does not arise after more than eight years of the marriage from his wife or her parents

especially in the circumstances that even as per the averments made in the petition u/s 9 of the Act only a sum of Rs. 1.5 lac was incurred at the

time of marriage. The gold and silver jewellery is already with the appellant/wife.

As regards the ground of desertion, it is well established that desertion for the purpose of seeking divorce under the Act would mean

intentionally and permanently forsaking and abandonment of one spouse by the other without that of other''s consent and without reasonable cause.

It is not simply withdrawal from a place, but it has to be withdrawal from a state of things. In other words, it would be a total repudiation of

obligation of marriage i.e. not permitting or allowing cohabitation between the parties continuously for a period of two years prior to the filing of the

divorce petition.

In the case in hand, a period of two years could not be established by the husband as it has been simply stated by him that his wife left the

matrimonial home in the month of April, 2004. No exact date has been given whereas petition u/s 13 of the Act has been preferred by him on April

19, 2006. So, the findings of the learned lower court with regard to the desertion are reversed. On the basis of the above discussion, we are of the

considered view that the impugned judgment and decree dated 01.09.2009 is perfectly in accordance with the evidence available on file as well as

the legal proposition and the decree for dissolution of marriage is affirmed/upheld on the ground of mental cruelty. Both the appeals being without

merits are dismissed but with no orders as to costs.