Subhash Chander Gupta vs Brij Bala and Another

M.M. Punchhi, J.—This is an appeal by the husband. He claimed in the Court below divorce from his wife mainly on the ground of cruelty. Having remained unsuccessful, he has approached this Court reiterating his claim.

As averred by the Petitioner-appellant Subhash Chander Gupta, he was married to Brij Bala Respondent on 27.11.1977. At that time he was posted as a Patwari in District Bhiwani. The Respondent was posted as a teacher in district Kurukshetra. They lived in the first instance in district Bhiwani and then shifted to Kurukshetra taking a house on rent. A daughter was born out of the wed-lock. But while the wife was pregnant, there arose differences between them. The past life of the wife allegedly cast a shadow on their relation. It was alleged that she by birth was a Bania Mahajan but had been married of by Raj Kishen Verma Respondent No. 2 avowing himself to be her adoptive father. Since at Kurukshetra, the wife had left her matrimonial home and started living with Respondent No. 2, the Petitioner suspected that she had gone to resume illicit intimacy, as before, with her adoptive father This was projected as an instance of mental cruelty. Besides that, after walking out of the matrimonial home, she had lodged statedly a false complaint against the Appellant u/s 107/151 Code of Criminal Procedure before an Executive Magistrate. The allegation therein made by the wife was that she had been throttled by the husband for not meeting his demand of getting money from Respondent No. 2 to be spent on the marriage of the brother of the Appellant. The Appellant was required to execute a security bond for three months by the Executive Magistrate The order, however, was set aside by the Court of Session. This is termed as the second instance of cruelty. Furthermore, it was alleged that she had falsely accused the Appellant of having married a second time. The complaint in that regard made by her to his department was meant to get him dismissed from service. This attempt allegedly amounted to cruelty and was the third instance.

The wife as also the suggested adoptive father, Respondents 1 and 2, filed joint written statement, denying the husband''s allegations. They pleaded two new facts Firstly, it was stated that the Petitioner had earlier filed an application u/s 9 of the Hindu Marriage Act for restitution of conjugal rights, which was withdrawn by him. Secondly, it was pleaded that the wife had filed a complaint u/s 494, Indian Penal Code against the husband and his second wife and in which he was facing trial. It was also pleaded that Respondent No. 2 was an old man and Respondent No. 1 was his adopted daughter. It was further averred that Respondent No. 2 had performed the marriage of Respondent No. 1 and also done the ''Kanyadan''.

On the pleadings of the parties, as many as 9 issues were framed but the crucial ones were issues Nos. 1 to 4. They being inter-connected were dealt with by the trial Court together. Though they pertained to the claim of the Petitioner for divorce on account of disertion and adultery as well, but the Petitioner veered round to project his case solely on the ground of cruely. The evidence led by the Petitioner to further his case on the basis of cruelty depended on his own statement as P.W-3 as also documentary evidence of the previous litigation Similarly, the evidence in defence in that regard by the Respondents pertained to their own statements as RWs 2 and 3 as also documentary evidence in the form of pleadings incases afore-referred. The learned trial Court in a long and exhaustive judgment concluded in paragraph 15 thereof that in his opinion the Petitioner had failed to prove that Respondent No. 1 had treated him with cruelty.

Mr. Sarin, Learned Counsel for the Appellant has mainly relied on the fact that Respondent No. 1 is not related by blood or otherwise to Respondent No. 2 and that the former living with the latter was by itself a suspicious circumstance, enough to inflict mental cruelty on the Petitioner. He has pointed out from the evidence of Respondent No. 2 as RW-3 that he had come into contact with Respondent No. 1 only in the year 1978 when she was posted as a teacher at village Amin where he was residing with his wife and three sons. In his statement, Respondent No. 2 had disclosed that the father of Respondent No. 1 had died and then he bad offered the mother of Respondent No. 1 to treat the latter as his daughter and promised t(c) marry off as well. At that time, he stated, Respondent No. 1 was not keeping well and she was under the treatment of Respondent No. 2 for he was a Vaid. Now this conduct is projected by the Learned Counsel for the Appellant as very suspicious, for thereafter Respondent No. 2 had started living ultimately at Kurukshetra leaving his wife and sons to be living at Amin and other places but none of them visiting him at Kurukshetra. In this way, it is advanced that the conduct of Respondent No. 2 was of calculated debauchery causing grave mental cruelty to the Petitioner.

It cannot escape notice that whatever be the relationship of Respondents Nos. 1 and 2, it stood established even prior to the marriage between the parties. Undisputably the marriage was arranged by Respondent No. 2 and he performed the ceremonies essential for Kanyadan. As the evidence goes, he did not have a daughter of his own. The possibility cannot be ruled out that he might have extended his compassion towards the widow mother of Respondent No. 1, who had, besides the said Respondent, four other children. Such an humanitarian offer could not have easily been spurned by a helpless widow. But this state of affairs could not have escaped the notice of the Petitioner at the time when he settled marriage with Respondent No. 1 when it is the admitted case of the parties that the marriage was brought about with the aid of newspaper advertisement.

It also cannot escape notice that in his earlier petition u/s 9 of the Hindu Marriage Act, while claiming restitution of conjugal rights, the Petitioner did not disclose any such suspicion. Had he been subjected to mental cruelty on the above said basis he need not have filed the petition seeking restitution of conjugal rights The Petitioner has just put up a lame excuse that he withdrew the petition because he was assured by the Respondents that divorce by mutual consent would follow. A baseless suspicion of adultery was coined and entertained by the husband as an excuse for furthering ibe petition for divorce, when there were strained relations between the parties. The basis of that was something else.

It is no where clear on the record as to what happened to the complaint which Respondent No. 1 made to the department of the Petitioner. In any case, in sum and substance that allegation was formulated in a regular complaint u/s 49, Indian Penal Code. That complaint is still stated to be pending. At this stage, it is futile to contend that it is a false complaint or that the complaint lodged with the department was inherently false. On the other hand, the turn which the case took in proceedings u/s 107 Code of Criminal Procedure when the order of the Executive Magistrate was upset by the Court of Session vide order Exhibit P-5, necessarily could not lead to the conclusion that the version of the wife was false when she had alleged that the husband had tried to throttle her. It is quite a different thiig to say that the version did not inspire confidence as obstrved by the appellate Court. That judgment of the Criminal Court per se is not conclusive of the fact that the version of the wife was in all events false. It is noteworthy that the Court of appeal while accepting the appeal addedly took into account that no untoward incident had occurred between the parties during the period commencing the data of occurrence and the pendency of the petition, which was 1-1/2 years.

All the afore discussed instances of cruelty as projected by the husband Appellant are without any basis. The trial Judge was right in observing that the husband had failed to prove allegations in that regard. I am not inclined to take a different view even on reappraisal of evidence. Sequally, this appeal merits dismissal. Accordingly, the same is dismissed.

Appeal dismissed.