Suresh Kumar vs Sham Lata

G.R. Majithia, J.—This is an appeal under clause X of Letters Patent against the judgment of the learned Single Judge dismissing the application of husband for divorce.

The husband filed a petition for divorce prior to the filing of the instant application alleging four instances of cruelty. The petition was withdrawn on January 7, 1983, without seeking permission of the Court to file a fresh petition on the same of action. The petition for divorce giving rise to the present appeal was filed on June 30, 1983, on the ground that a fresh ground of divorce had become available to him, which was not the subject-matter of the earlier petition. The fresh instance of cruelty, which was made the subject-re after of the present petition, reads as under-

That the Respondent moved an application on 10.8.1982 before the Senior Superintendent of Police. Bhiwani, levelling false allegations against the Petitioner; his parents, brothers and brothers'' wives, who were arrested by the police on 12.8.1982 and prosecuted under Sections 107/151 of the Criminal Procedure Code. Ultimately, the complaint was found baseless and dismissed on 4.2 1983 for want of prosecution. Such act of the Respondent has lowered the Petitioner in the eyes of his friends and public in general and the Petitioner has suffered loss in prestige.

The learned trial Judge, after recording evidence, came to the conclusion that the wife had made serious add false allegations against the husband leading to his arrest and his family members and such acts on her part amounted to cruelty entitling the husband to a decree of divorce.

The wife came up in appeal to this Court against the order of the trial Judge and the learned Single Judge came to the conclusion that the mere fact that the husband and his relatives had to face the enquiry under Sections 107/151 of the Code of Criminal Procedure, and that proceedings were dropped by the learned Executive Magistrate, does not per se establish that the prosecution was false and observed as under:

Such a matter, as the present one, has indeed to be viewed oh broad probabilities when, in every married life where parties fall apart, they voice loud their grievances, stating one thing at one time and omitting to mention it at another. Every thing, what a spouse says against another, if remained unproved, is not always wrong and, if wrong, not always deliberately false, and if false, not necessarily cruel, and if cruel, not necessarily of such a magnitude so as to come within the ambit of ''cruelty''on the strength of which, divorce can be granted Legal cruelty in the context, is far the above cruelty understood in the ordinary sense.

The correctness of the decision has been challenged by the husband.

Cruelty contemplated u/s 3(1)(ia) of the Hindu Marriage Act is a conduct of such a type that the Petitioner cannot reasonably be expected to live with the Respondent It has to be of a type which should satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent that due to the conduct of the other spouse it has become impossible for them to live together without mental agony, torture or distress. The learned Single Judge, rightly came to the conclusion that Shri Chandgi Ram, Sub Inspector of Police, persuant to the application, made by the wife whereby she alleged that she apprehended danger to her life from her husband and her relations, made oral enquiries into matter and found in the course of enquiry that the husband, his father and relatives became aggressive towards the wife. As a result of the enquiry, a calender under Sections 107/151 of the Code of Criminal Procedure, was registered against them. His statement corroborated the version of the wife that she apprehended danger to her life from her husband and his relatives. The proceedings were dropped by the Executive Magistrate but it does not establish that the prosecution was false or that the husband had been humiliated or lost his mental balance or suffered mental agony or torture. We do not find any infirmity in the conclusion arrived at by the learned Single Judge. The appeal deserves to be dismissed. The same is hereby dismissed.

During the pendency of the appeal, the husband filed an application under Order 41, Rule 27 read with Section 151, CPC Code, for bringing on record the judgment rendered by the Chief Judicial Magistrate, Bhiwani, in Criminal Case No. 1223 decided on October 16, 1987, and Criminal Case No. 239-2/354-1 of 85/86 decided on March 5, 1987. We do not think it a fit case where the husband can be allowed to produce additional evidence at the second appellate stage. The application is dismissed.

Sd/- V. Ramaswami, C.J.