IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (HMA) No. 36 of 2005 Reserved on : 7th May, 2009 Date of Decision: 2nd June, 2009 Dinesh Kumar Appellant Versus Santosh Kumari Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Tarlok Chauhan, Advocate. For the respondent: Mr.Shrawan Dogra, Advocate. Sanjay Karol, J. The appellant-husband, who was the petitioner before the Court below has assailed the impugned judgment and decree dated 1.1.2005 passed by the District Judge, Hamirpur, H.P. in Petition No.97 of 2002, titled as Dinesh Kumar vs. Smt. Santosh Kumari, dismissing his petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). The appellant filed petition under Section 13 of the Act seeking dissolution of marriage which was solemnized with the respondent on 16.6.1997, according to the Hindu customary rites. Out of the wedlock parties have two male children. The petition was filed on the ground that Whether the reporters of Local Papers are allowed to see the Judgment? 2 the respondent’s attitude and behaviour towards the petitioner and his family members has been extremely abusive, insulting and humiliating and she also physically assaulted the petitioner. There is a general allegation that the respondent even refused to do routine household work. One specific instance of neglect mentioned in the petition pertains to November, 2001, when respondent refused to take care of petitioner’s mother who was admitted in the Hospital at Ludhiana. She deprived the petitioner of matrimonial obligations and refused to have any physical contact with him and therefore of her own started living separately at her parental house. All the aforesaid acts of the respondent caused grave mental cruelty to the petitioner-husband. The respondent wife not only refuted the allegations, but in fact attributed physical assaults and harassment meted out by the petitioner and his family members to him. She was finally thrown out of the house by them on 8.9.2002, when she had to take refuge at her parental house. She was continuously tortured and teased for having brought insufficient money and petitioner always pressed his demand for more money. On two occasions his demand of Rs.40,000/- and Rs.70,000/- was met by her parents. With regard to specific instance of November, 2001, respondent clarified that she had been taking care of the petitioner’s maternal grand- mother, who had been living at the matrimonial house alongwith them at the relevant time. She specifically denied having refused to carry out any household work. The petition was malafidely filed with the purpose of pressurizing the respondent to meet the dowry demand. Based on the pleadings of the parties, the Court below framed the following issues:- 3 1. Whether the respondent has treated the petitioner with cruelty, if so to what effect? OPP 2. Whether the petitioner is estopped due to his act and conduct to file the petition? OPR 3. Whether there is no cause of action in favour of the petitioner to file the petition? OPR Opportunity to lead evidence was afforded to the parties. The petitioner examined four witnesses, namely, Shri Dinesh Kumar (PW-1), Smt. Bimla Devi (PW-2), Shri Dinesh Kumar (PW-3) and Smt.Kaushalya Devi (PW-4) and in rebuttal the respondent also examined four witnesses, namely, Shri Dhian Singh (RW-1), Shri Ramesh Chand (RW-2), Smt. Rukmani Devi (RW-3) and Smt. Santosh Kumar (RW-4). Appreciating the material on record, the Court below came to the conclusion that not only the petitioner could not prove the allegations of cruelty, whereas, on the contrary the record proved that the respondent had been forced to leave her matrimonial house due to cruelties meted out by the petitioner. The petition, as such, was dismissed. Mr.Trilock Chauhan, has assailed the impugned judgment on the ground that the Court below has erred in returning erroneous findings by misappreciating the material on record. Mr.Shrawan Dogra, on the other hand has supported the judgment for the reasons set out therein. Petitioner Shri Dinesh Kumar (PW-1), on oath has undoubtedly reiterated his case set out in the petition, but, however, has categorically admitted that he was not willing to live with the respondent in spite of the fact that the respondent had desired to join him at her matrimonial house. On the aspect of cruelty not much reliance can be placed 4 on his oral deposition as the same is extremely vague and unspecific. With regard to the specific instance of November, 2001 petitioner has admitted that while his mother was undergoing treatment at Ludhiana, his maternal grand mother was being taken care of by the respondent at his house. Thus his allegations that the respondent refused to do household work stands falsified. With reference to beatings alleged to have been given by the respondent on 7.8.2002, petitioner deposed that he had gone to search for the respondent at the Janta Bakery where she was hiding. The respondent not only refused to come with him but also physically assaulted him. This uncorroborated statement stands falsified by the version of the owner of the Janta Bakery Shri Dhian Chand (RW-1), according to whom when the petitioner had come to his shop to look for the respondent he had caught her from the neck and physically assaulted her. With his intervention the matter was sorted out after the police was called. The petitioner’s other witnesses, namely Smt. Bimla Devi (PW-2), Shri Dinesh Kumar (PW-3) petitioner’s neighbour and Smt.Kaushalya Devi (PW-4) petitioner’s mother, do not advance his case. PW-2 has admitted that respondent’s behaviour with her and the other villagers was cordial and the respondent had been looking after her children properly. She also admitted that whenever respondent used to visit her parental house she would take permission from her mother-in-law. PW-3 has only deposed that on his visiting the petitioner’s house he found respondent sleeping and never working. She refused to even do household work. This statement, however, stands contradicted by PW-2. That apart, this witness has admitted that petitioner’s maternal grand-mother was being 5 looked after by the respondent at the time when petitioner’s mother was away at Ludhiana. Smt. Kaushalya Devi (PW-4), no doubt fully supports the petitioner’s case, but, however, her statement alone cannot be made basis for affirmatively determining the factum of cruelty meted out by the respondent. She has admitted that while she was under treatment at Ludhiana her mother continued to remain at the house. She has also admitted that no report with regard to respondent’s alleged misbehaviour was ever lodged with the police. In any event, the deposition of the witnesses is vague, unsubstantiated and silent with respect to any specific instance of cruelty. The appellant has not lead any cogent, reliable or trustworthy evidence to prove his case. On the contrary, the President of Gram Panchayat Shri Ramesh Chand (RW-2) specifically deposed that when the dispute between the parties was brought to the notice of the police, an endeavour was made to have the matter reconciled. The respondent specifically agreed to join the petitioner, but, however, petitioner refused to sign the compromise. An Endeavour was made by the petitioner to establish that the respondent was a lady of unsound mind. To rebut the same, the respondent examined Ward Punch Smt. Rukmni Devi (RW-3), who deposed that the petitioner was mentally and physically sound performed her duties like any ordinary woman. The respondent (RW-1) has alleged that the petitioner intends to contract second marriage, therefore, he refused to take her back to the matrimonial house. She never refused physical contact. Petitioner took 6 money from the respondent’s father at the time of construction of house. He not only gave her beatings but turned her out of the matrimonial house alongwith their younger son. She had always been taking care of the petitioner’s family members, doing household work and fulfilling her matrimonial obligations. In her cross-examination there is nothing which would even faintly show that she is not a trustworthy or a reliable witnesses. The Court below, in my considered view, has correctly considered and appreciated the material in its entirety. The findings that the petitioner’s allegations to the effect that the respondent not carry out any household work or that she kept on sleeping throughout the day did not inspire confidence, in my view, are totally borne out from the record. The allegations of physical and mental cruelty having been meted out by the respondent are also not true. In fact it is the other way round. The respondent, who had been always willing to join the petitioner as stands established from the record, was actually turned out from the matrimonial house. The respondent was compelled to stay away from the petitioner as also the matrimonial house. It is the petitioner, who in fact has caused mental agony, torture and duress to the respondent. It stands established from the record that the respondent’s behaviour with the villagers and other members of the family had been cordial. Respondent cannot be held to be a troublesome lady. In Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176, the Apex Court has held that in proceedings of divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt and the Court insisted upon the corroborative evidence unless its absence is accounted for to the satisfaction of the Court. 7 In Dr.N.G.Dastane vs. Mrs. S.Dastane, (1975) 2 SCC 326, the Apex Court while dealing with the provisions of Hindu Marriage Act, 1955 has held as under:- “The belief regarding the existence of a fact must be founded on a balance of probabilities. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note. But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved.” In Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, the Court reiterated the principles laid down in Lachman Utamchand Kirpalani (supra), and has further held that desertion cannot be equated with separate living by the parties to the marriage and the constructive desertion can be inferred from the attending circumstances as desertion is a matter of inference to be drawn from the facts and circumstances of each case and the approach of the Court to preserve the marriage and reluctant to dissolve the marriage merely on the asking of one of the parties. The marriage cannot be dissolved merely on the averments made by one of the 8 parties that as the marriage has broken down no useful purpose would be served to keep it alive. The Court further held as under:- “Cruelty has not been defined under Section 13(1)(ia) of the Hindu Marriage Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, lib or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of the other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.” Learned counsel for the appellant has argued that the respondent’s pleadings and evidence are scandalous and defamatory and have thus caused cruelty to the petitioner. I have minutely examined the same, and to my mind there is nothing from which it could be inferred that the same are either derogatory or defamatory, thus causing mental cruelty to the petitioner. Hence, ratio of law laid down in Smt.Rajbala vs. Sukhbir 9 Singh, 2003(2) Hindu L.R. 360, Saroj vs. Vinod Kumar Tanwar, 2003 (2) Hindu L.R. 678 and G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296 as referred to by the learned counsel for the appellant is not applicable to the facts of the present case. For the aforesaid reasons, the present petition being devoid of merit is dismissed. 2nd June, 2009 (Sanjay Karol) (C) Judge.