Virendra Kumar Kishanchand vs Santosh Kumari

Navita Singh, J—The trial Court dismissed the petition under Section 13 of the Hindu Marriage Act, 1955 (Act for short), filed by the appellant, which has led to the filing of the present appeal against judgment and decree dated 10.11.2006.

The petition was brought on the ground that the marriage between the parties was solemnized on 19.03.1988 at Ambala. One child was born on 12.08.1996, who was living with the appellant. Just after one week of the marriage, differences arose between the parties as the respondent was of a suspicious nature and used to insult the appellant in the presence of relatives, officers and colleagues. The appellant hoped that with the passage of time, the conduct of the respondent would change for the better, but his hope was shattered.

The appellant was posted in Jammu when the marriage was less than two years old, but when the appellant expressed his desire to have a child, the respondent said that she was not interested. The behaviour of the respondent was shocking because when the appellant showed some concern for the sister of the respondent, she retorted that if the appellant was so concerned about her sister, he could go and sleep with her. The conduct of the respondent disturbed the appellant, but he, with an aim to save the marriage, continued to strive towards that. In Jammu, the respondent was taken for medical consultation as she was not able to conceive and also Batra Hospital at Delhi was consulted. She was treated for two years, but there was no fruitful result. The appellant then, to his utter shock, discovered that the respondent was actually using contraceptive pills and when he confronted her, she admitted the fact that led to a fight and the respondent left saying that she would be living with her parents. However, after some time, she again joined the appellant at Jammu, but she started talking to people in the neighbourhood against the appellant and his family.

In 1993, the appellant was transferred to Assam and the respondent was taken to a hospital at Mumbai to consult a specialist, but she created a scene over there. However, on the advice of the doctors, she agreed to conceive and after that the child was born. The birth of the child did not change the respondent and she showed no interest in the child and did not take proper care. She was a source of embarrassment for the appellant when any one visited their house or when they went out. The marriage was more of misery than pleasure. In October, 2000, the respondent left the matrimonial home for four months, but came back in February, 2001. The appellant requested his mother to live with them for some time to ease the situation, but the respondent misbehaved with her mother-in-law and openly said that she would behave in the manner she liked. In May, 2002, she deserted the appellant and the child and went to live with her parents in Ambala.

A contest was put up to the petition by the respondent stating that the appellant was estopped by his own conduct from filing the petition. She pleaded that she was not allowed to meet the child and that while she was with the appellant, she was harassed for dowry and otherwise. Because of the harassment by the appellant, respondent''s mother died of a heart attack in 2002. She was turned out of the matrimonial home in October, 2000, after which she joined the company of the appellant due to intervention of the relatives, but ultimately in May, 2002, she was finally thrown out. All the ''stridhan'' was retained by the appellant and his family. Rather even the testimonials and certificates of the respondent were with the appellant.

The doctor at Mumbai had told her that she was not able to conceive because of depression and she was referred to a Psychiatrist, who advised the appellant to treat his wife with love and affection. Efforts were made in June, 2002, by the family of the respondent, i.e. her siblings, to patch up the matter, but the appellant did not allow them even to enter the house.

The appellant stepped in the witness box as PW5 and examined Sunil Kumar as PW1, Satpal Dhawan as PW2, R.S. Bajwa as PW3 and Vinod Kumar Kanathia as PW4, Raj Rani, his mother, as PW6. Respondent came forward to make her own statement as RW1 and brought O.P. Kashyap, her father, as RW2 and Sunil Kashyap, her brother, as RW3.

It was argued on behalf of the appellant that though there were allegations of demand of dowry against the appellant, but those were falsified from the cross-examination of the respondent. She had alleged that her mother had died on account of heart attack because of the torture extended to her daughter, but in the cross-examination, she said that her mother was hale and hearty and was having no illness prior to her death. This, however, would not lead to a conclusion in favour of the appellant because even a person who otherwise has no health problem can die of a heart attack due to excessive stress. The respondent said that she used to tell about demand of dowry to her parents and then said that her husband used to demand dowry, but there was no demand of specific article. Her mother-in-law or any other relative of the appellant did not demand anything. She then went on to say that when she used to visit her parents, they used to give her gifts in the shape of bed sheets, clothes for her and for her husband etc. and those were the things which her mother-in-law used to demand. She said that her earlier statement that her mother-in-law did not demand anything, was false. She, however, did not lodge any complaint before the police.

Reference was also made to the statement of O.P. Kashyap, father of the respondent, who said that at the time of marriage the appellant was Sub Divisional Engineer and was drawing a handsome salary and also that whenever he went to the house of his in-laws, he was nice towards his wife and never complained against her. He said that the instances of misbehaviour of the appellant and his family members, set out in the affidavit filed by the witnesses, were based on the information provided to him by his son, i.e. brother of the respondent.

It was contended by learned senior counsel for the appellant that the allegations of dowry and any cruelty meted out to the respondent having been falsified, it amounted to cruelty to the appellant, who was entitled to divorce on that count.

Much stress was laid by learned senior counsel for the appellant on the allegation in the petition that the respondent had made absolutely slanderous remarks and used shocking words while telling the appellant that if he was very concerned about his wife''s sister, he could go and sleep with her. It was argued that after such utterance, it was not possible for the appellant to live with the respondent. This aspect was, however, properly dealt with by the trial Court in para 17 of the judgment stating that though the use of such derogatory words may not have been heard by any one outside the four wall of the room of the parties, but evidence would show that the incident took place some where in 1990 when the parties were in Jammu, but they lived together till May, 2002, and, therefore, it could be inferred that the incident was forgotten by the appellant or at least he condoned the respondent for her behaviour if any such thing actually happened. It may be said that the appellant has been carrying things a little too far because any such utterance made years back could not constitute such cruelty that the appellant just could not live with the respondent or that he had made out a sufficient ground for grant of divorce. Though if such words were used by the respondent, her conduct could be said to be depreciable, yet there are many things which are said in anger or in a fit of passion which are indecent, intolerable and objectionable, yet any such remark made at some point in the past cannot be said to be something which would be sufficient to bring the marriage to an end, particularly when the parties continued to reside together.

On the other hand, it was argued on behalf of the respondent that the witnesses examined by the appellant had no first hand knowledge of any of the actual facts. The couple was judged the best couple and awarded for that by ONGC Club on two different occasions. Sunil Kumar (PW1) and R.S. Bajwa (PW3) were subordinates of the appellant and, therefore, their compulsion or interest in supporting the appellant is not far from obvious. In any case, one of them stated that in the absence of the appellant, the respondent used to care well for the child. Sunil Kumar (PW1) said that he had come to know from his wife that the respondent had been telling her that the appellant and his family were not good people. The evidence of the witnesses was, therefore, hearsay.

Satpal Dhawan (PW2) did not know what was the discord between the parties and he knew nothing about any incident pleaded. He had never visited the house of the appellant. He said that from 1998 to 2002, the respondent lived with the appellant. Regarding contraceptive pills, the evidence of all other witnesses is hearsay and the sole statement of the appellant without any corroboration would not be believable in the given facts and circumstances where no other allegation was proved. No medical evidence was led to show that due to excessive use of contraceptive pills, there was medical opinion that the respondent could not conceive. There may be other reasons for that and ultimately the couple had a baby by IVF.

The appellant deposed that at Raja Mundri he was insulted in the presence of Manoj Srivastav, Sanjiv Mehta and one Mr. Rao as well as his son. He had also been insulted by the respondent in the presence of Bhupinder Singh, who happened to be the cousin brother of the appellant. In Jammu, he was insulted in front of some persons whom he could locate and were easily available. However, he did not bother to examine any of the said witnesses and rather brought as witnesses the persons who were his subordinates who did not have much choice but to oblige their senior by deposing in his favour. The appellant tried to be very particular and elaborate about the conduct of the respondent and her derogatory behaviour towards him in the presence of many persons, but only those were examined who suited his convenience.

Raj Rani, mother of the appellant, came in the witness box as PW6 and stated that when the engagement of her son with the respondent had taken place, she had received some letters regarding temperament of the respondent from which she got certain wrong signals, but she disclosed nothing about those to any one in the family and tore the letters. She further said that she was not aware as to when the behaviour of the respondent was normal and when it was not normal towards her son as she had not been putting up with them. The respondent spread rumours about her son in the neighbourhood, but she did not know who were those persons. One of them was Mehindiratta, but then she said that she actually did not know. The appellant too had stated that his wife had humiliated him in the presence of persons in the neighbourhood and also tried to malign him by saying negative things about him to them, but none of those persons, though they were easily available as per the appellant himself, was examined.

Mother of the appellant further down in her cross-examination stated that since she did not spend much time in the company of the parties and most of the time she was not with them, she was not aware about their inter se relations. She said that while the appellant was posted in Jammu, she and her daughters frequently visited the parties. We are, therefore, at a loss to understand from the statement of this witness as to which part of her deposition should be believed because at one place she said that she had not been living with the parties and, therefore, she could not comment on the inter se relationship between them, whereas at another place she deposed that she was frequent visit to her son''s house at Jammu and at Ahmedabad etc. If she was frequently going and living with the parties, she should have been aware about the actual state of affairs. Rather from the statement made by her, the conclusion would be that most part of her deposition was hearsay and she failed in her attempt to paint the respondent black in order to help her son to get a decree of divorce.

It was rightly observed by the Court below that even the evidence led by the respondent showed that she had levelled allegations just for the sake of it and that her stand was not true. She had reversed her stand regarding demand of dowry and other things, but still the fact would remain that it was for the appellant to prove his case. There was nothing in the pleadings or evidence of the appellant which could be said to constitute cruelty. The respondent maintained her stand that she was ready and willing to live with the appellant. Also, the parties did live together for a very long time. The trial Court was right in holding that the friction between the parties was the just normal wear and tear of the married life and the allegations were omnibus.

It may also be pointed out here from the allegations made in the petition and the tenor of evidence led by the appellant, that he wanted to project that he was truth incarnate and a role model for tolerance and that the respondent was epitome of disdain and malevolence. He decided to get away from the marriage and remained adamant and persistent though he had no legs to stand on.

In the result, the appeal is dismissed.