IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. F.A.O. No. 175 of 2004. Reserved on 15.11.2010. Decided on 29.11.2010. _____________________________________________________ Meena Devi. …Appellant. -Versus- Santokh Singh. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the appellant. : Mr. Sanjeev Bhushan, Advocate. For the respondent : Mr. Kartar Singh Pundeer, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This appeal is directed against the judgment dated 28.05.2003, passed by the learned Additional District Judge, Solan in H.M.A. Petition No. 15-S/3 of 2000. 2. The material facts necessary for adjudication of this petition are that the respondent-husband had filed a petition against the appellant-wife under Section 13 (1a) (1b) of the Hindu Marriage Act, 1955 for dissolution of marriage. The marriage was solemnized between the parties in December, 1985 according to Hidu rites. Two children, namely, Rajan and Poonam were born out of the wedlock. The son was living with the husband. The relations between the parties for about 7-8 years were cordial. However, according to the averments contained in the petition, the wife started mis-behaving with the husband and his parents and started impressing upon him to live separately from his parents. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - He was maltreated by her. She used to abuse him and his parents in filthy language in the presence of family, friends and relatives. The respondent was working in H.P. Police Department and was posted at different stations. The appellant used to threaten him that she will consume poison in order to implicate him. She also lodged a complaint against him with the Director General of Police, which was enquired into, but no substance was found in the complaint. She left the matrimonial house in the month of January, 1998 without his consent. 3. The appellant-wife filed reply to the petition filed by the respondent-husband. She had admitted that they have three children out of the wedlock. The third issue, namely, Anjli was born on 08.12.2000. The girls, namely Poonam and Anjli are living with the appellant. She denied the allegations with regard to cruelty. She also denied specifically the grounds of desertion, pleaded by the husband. It is also stated in the reply that the family members of the husband had been torturing her and had been pressing upon her to leave the house. It is in these circumstances that she had to leave the house of her husband six months back. She had also filed a petition under Section 125 of the Criminal Procedure Code in the Court of Additional Chief Judicial Magistrate, Arki and the petition under Section 13 of the Hindu Marriage was filed in retaliation to the same. It is also averred in the reply that it is the husband who had deserted the her and subjected her to cruelty. 4. Respondent-husband has filed rejoinder to the reply filed by the wife. According to him, the averments contained in the rejoinder, wife had withdrawn from the matrimonial home in the - 3 - month of June, 1998 and there was no cohabitation between him and her as husband and wife, so the question of birth of third child on 08.12.2000 from the wedlock did not arise. The respondent has levelled the allegations that his wife was living in adultery with someone. He had denied the filing of petition under Section 125 of the Code of Criminal Procedure in the Court of learned Additional Chief Judicial Magistrate, Arki by the wife. 5. Respondent-husband had produced four witnesses. Appellant–wife had produced three witnesses. The learned Additional District Judge allowed the petition on 28.05.2003 and decree of divorce was granted in favour of the husband. Hence, the present appeal. 6. Mr. Sanjeev Bhushan, learned counsel for the appellant has strenuously argued that the judgment of the learned Additional District Judge, Solan is contrary to the principles of law. According to him, the learned Additional District Judge has not correctly appreciated the oral as well as documentary evidence. According to him, it is the husband, who has deserted his wife and it is he who has caused cruelty to his client. 7. Mr. Kartar Singh Pundeer, learned counsel for the respondent has supported the judgment dated 28.05.2003, passed by the learned Additional District Judge. According to him, the wife had deserted the husband and had been causing cruelty to his client. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Husband has appeared as PW-1. According to him, the marriage was solemnized in the month of December, 1985 - 4 - according to Hindu rites. The relations between him and his wife were cordial for 7-8 years and thereafter, she started mis-behaving with his parents and she had been impressing upon him to live separately from his parents. She used to abuse him and his parents in filthy language in the presence of family, friends and relatives. She used to threaten to consume poison to falsely implicate him. In his cross-examination, he deposed that two issues were born out of the wedlock, namely, Rajan and Poonam. He denied the suggestion that third daughter was also born on 08.12.2000. He also denied the suggestion that he and his wife used to meet occasionally even after June, 1998. He has admitted that his wife had filed a complaint Ex. P-1 against him before the Director General of Police. The matter was enquired into, but no substance was found during the course of enquiry. 10. PW-2, Paras Ram has supported the version of PW-1. In his examination-in-chief, he has testified that the husband and wife used to fight from the very beginning. She used to fight with the husband’s parents. She had not maintained good relations with her in-laws. She used abusive language and used to run away to her matrimonial house and used to come after 5-6 months. 11. PW-3, Shri Gurmeet Singh, Junior Assistant (Police) has produced the record from the office. He has proved the complaint Ex.P-1, enquiry report Ex.P-2 and the order passed by the Director General of Police Ex. P-3. 12. PW-4 Lalit Kumar has produced the record from the Court of learned Additional Chief Judicial Magistrate, Arki, where - 5 - the petition under Section 125 of the Criminal Procedure Code has been filed. 13. Appellant-wife has appeared as RW-1. According to her, the marriage was solemnized in the month of December, 1985. Three issues were born out of the wedlock. The boy, namely, Sandeep is the eldest and two are daughters. The third daughter was born on 8th December, 2000. The boy was living with the father and the girls were staying with her. She deposed that they were living separately for the last 1 ½ years, but they used to meet in between. According to her, husband used to call her to Shimla. She had tried to live with him, however, he has refused to accept her. In her cross-examination, She deposed that she was thrown out by her in-laws in the month of June, 1999 and thereafter, she has not gone back to her in-laws house nor her husband has visited her. However, she volunteered that he used to contact her on telephone. She had admitted about the complaint filed vide Ex.P-1. She has denied the suggestion that only two issues were born out of the wedlock. She has admitted that she used to impress upon her husband to live separately from her in-laws. She has also admitted that she had gone to her matrimonial house in the year, 1992. 14. RW-2 is Shri Paire Lal Sharma. He has deposed that Meena Devi had been living in the matrimonial house for the last 1 ½ years. However, in between she used to visit her husband. In his cross-examination, he deposed that Meena Devi has approached him to advise her husband. He has tried, but did not succeed. - 6 - 15. RW-3, Kanta Devi has also deposed that Meena Devi had been living with her parents for the last 1 ½ years, but during this period, she had been visiting her husband. She had denied the suggestion that Meena Devi wanted to live separately from her father-in-law and mother-in-law and for that reason, she used to quarrel. This is the evidence led by the parties. 16. What emerges from the oral and documentary evidence led by the parties is that the marriage was solemnized between the parties in the month of December, 1985. Their relations were cordial for a period of 7-8 years, as admitted by PW- 1 himself. According to PW-1, Meena Devi (wife) used to impress upon him to live separately from her in-laws. She used filthy language in the presence of close relatives and friends. PW-1 has not given even a single instance when she had used filthy language. He had not given the details and names of the relations before whom she used filthy language. He has only admitted that two issues were born out of the wedlock. He has denied that Anjli was born out of the wedlock. According to him, the action of the wife to file a complaint against him before the Director General of Police and using of filthy language had caused him mental cruelty. According to him, she has deserted him in the month of June, 1998. PW-2 Paras Ram has deposed that the husband and wife used to fight from the very beginning. There is contradiction in the statements of PW-1 and PW-2. According to PW-1, the relations remained cordial for 7-8 years. However, PW-2 says that they used to fight after solemnization of their marriage. PW-2 has also deposed that Meena Devi used to coerce her husband to live - 7 - separately from her in-laws and she used to run away to her matrimonial house and used to come back after 5-6 months. 17. PW-3, Shri Gurmeet Singh, Junior Assistant (Police) has produced Ex.P-1, whereby Meena Devi has filed a complaint before the Director General of Police, stating therein that she was harassed by her in-laws for bringing insufficient dowry. She was not looked after properly by her husband and in-laws. She also specifically mentioned in the complaint that she was accused of stealing `50,000/-. The matter was looked into and the complaint was found false as per Ex.P-2. The complaint was false as per letter dated 26th September, 2000. She has also moved an application under Section 125 of the Criminal Procedure Code in the Court of learned Additional Chief Judicial Magistrate for maintenance. 18. RW-1, Smt. Meena Devi has denied that she has ever deserted her husband. She has deposed that she is living with her parents for 1 ½ years, however, in between she used to visit her husband. She has admitted about the complaint Ex.P- 1. She has also admitted about the petition filed under Section 125 of the Criminal Procedure Code. 19. RW-2 Paire Lal Sharma ,and RW-3, Smt. Kanta Devi have deposed, as noticed above, that Meena Devi started living with her parents, however, she used to visit her husband. According to RW-3, the husband and wife generally are in contact on telephone. 20. According to learned Additional District Judge, Solan, filing of complaint by the wife against her husband as well petition, under Section 125 of the Criminal Procedure Code - 8 - amounted to mis-behaviour and mis-conduct, which according to him, amounted to mental cruelty, caused by the wife. The Court is of the considered view that mere filing of complaint before the Director General of Police for the redressal of grievance cannot constitute mental cruelty. Meena Devi (wife) in her complaint, as per Ex.P-1, has highlighted the manner in which, she was maltreated by her in-laws for bringing insufficient dowry. She has also mentioned that she was not properly fed. She has to borrow money from her parents and relations. It is true that an enquiry was instituted and the same was found false as per Ex.P-2 and Ex.P-3. The husband has made serious allegations against his wife that she was living adulterous life. He has disowned Anjli Devi. In these circumstances, she had no alternative, but to file the complaint to bring to the notice of the higher authorities the manner in which she has been maltreated. She was also constrained to file a petition under Section 125 of the Code of Criminal Procedure, claiming maintenance. It is reiterated that filing of a complaint and claiming compensation under Section 125 of the Criminal Procedure will not constitute mis-conduct. These actions cannot be treated as acts of cruelty. 21. Case of the husband is that Meena Devi (wife) has deserted him. However, there is no ample evidence on record to prove this fact. According to RW-2, Paire Lal Sharma and RW-3, Smt. Kanta Devi, she (Meena Devi) though had been living with her parents, but she used to visit her husband. In view of the statements of RW-1, RW-2 and RW-3, it is the husband, who has deserted his wife. The wife had all the intentions to live with her husband. The statement of husband was also recorded on - 9 - 26.07.2001 by the learned Additional District Judge. He has deposed that under no circumstances he will ever arrive at a compromise with his wife and the case should be decided on merits. When the petition was filed by the husband, the boy was eight years old and the 2nd daughter was six years old. The husband has taken the ground that his wife is living in adultery with someone in the rejoinder. It is a serious allegation and if his wife was living adulterous life, he ought to have taken this ground in the main petition instead of rejoinder. 22. The respondent-husband has failed to prove desertion, rather, surprisingly, there is no finding recorded by the learned Additional District Judge on the ground of desertion. He has only decided the petition on the ground of complaint made by the wife against the husband and the petition preferred under Section 125 of the Criminal Procedure Code before the learned Additional Chief Judicial Magistrate. 23. Their Lordships of the Hon’ble Supreme Court in Sanat Kumar Agarwal Versus Nandini Agarwal (1990) 1 Supreme Court Cases 475 have held that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to actual act of separation. Their Lordships have held as under: “5. It is well settled that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression - 10 - of intention, both interior and subsequent to the actual act of separation. The case of the petitioner ' Sanat Kumar with regard to desertion was that he was married to Nandini on 11-6-1978 and on the same day his sister Shakuntala was married to Shivnarain, brother of Nandini. Thereafter some differences had arisen between the parties with the result that Nandini returned back to her parents house and the appellant's sister Shakuntala also left her husband's house and came to her parents house.' On 28-11-1978 the appellant along with his sister Shakuntala and his mother came to meet Shivnarain, and then another meeting took place on 1-12-1978 and the parties came to a settlement. Following the settlement, the appellant Sanat Kumar took Nandini to his house while Shivnarain, took Shakuntala to his house after performing Vida ceremony. It has been alleged by the appellant that on 8-12-1978 Shakuntala reached her parents house from her in-laws house and on 9-12-1978 Nandini also went to her parents house after leaving her matrimonial house. It has been alleged that the appellant is a highly educated person belonging to a cultured family. He is posted as a Science Officer in the Nuclear Power Department. The respondent, Nandini is also M.Sc., B.Ed. and is employed as a teacher. According to the appellant the duration of matrimonial relations between the parties continued only for six months. During this short period they had to face tremendous ups, and downs in their matrimonial relationship, in which the solemnization of marriage between the parties according to 'GURAWAT' system had played an important role. On 9-12-1978 Nandini went to her parents house herself and since then she has been residing with her parents. Despite the appellant having forbidden her she passed B.Ed. and joined service as a teacher - 11 - against the wishes of the appellant. Nandini left the matrimonial house on 9-12-1978 without any cause or reason and thereafter did not resume her matrimonial obligations nor returned back to the matrimonial house and this amounts to desertion. The present petition for divorce was filed on 6-2- 1982. It may be mentioned that Shivnarain had filed the petition for divorce against Shakuntala, sister of the appellant on 1-1-1982. Learned Ist Additional District Judge, while dealing with issue No. 2 regarding desertion though believed the statement of the appellant yet decided the question of desertion against the appellant by making following observations: "Even if, this statement is accepted to be correct, it does not reveal that the respondent had decided to put an end to marital relationship and co-habitation and had gone from the matrimonial house to her parents house. On the contrary, the respondent has stated that she was always ready and willing to reside with the petitioner". 24. Their Lordships of the Hon’ble Supreme Court in S. Hanumantha Rao Versus S. Ramani (1999) 3 Supreme Court Cases 620 have explained the term ‘Mental cruelty’ to mean mental pain, agony, or suffering, caused by wife and makes it impossible for the party that has suffered to live with the other party. Their Lordships have further held that hypersensitivity and panic reaction of complainant-spouse cannot be used to cast blame on and make out a case of mental cruelty in case wife’s parents sought help of Women’s Protection Cell in bringing about reconciliation between estranged spouses. However in panic husband and family members seeking anticipatory bail, their - 12 - Lordships have held that representation made by wife’s parents to Women’s Protection Cell did not amount to mental cruelty. Their Lordships have held as under: “8. Before we deal with the submission it is necessary to find out what is mental cruelty as envisaged under Section 13(1)(ia) of the Act. Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party. It is in this background we have to test the argument raised by the learned counsel for the appellant. The respondent after having admitted the removal of Mangalsutra stated, that while in privacy the husband often used to ask her to remove the chain and bangles. She has also stated that in her parent's house when her aunt and mother used to go to bathroom they used to take out Mangalsutra from their neck and, therefore, she thought that she was not doing anything wrong in removing Mangal- sutra when she was asked to do so by her husband. She also stated that whenever she removed Mangalsutra, she never thought of bringing an end to the married life and was still wearing her Mangalsutra; and it is when her husband made hue and cry of such removal of Mangalsutra, she profusely apologized. From all these evidence the High Court concluded that the incident was blown out of proportion and the appellant attempted to take advantage of the incident by picturising the same as an act of cruelty on the part of the wife. The question, therefore, arises whether the removal of the Mangalsutra by the wife at the instance of her - 13 - husband would amount to mental cruelty within the meaning of Section 13(1)(ia) of the Act. It is no doubt true that Mangalsutra around the neck of a wife is a sacred thing for a Hindu wife as if symbolises continuance of married life. A Hindu wife removes her Mangalsutra only after the death of her husband. But here we are not concerned with a case where a wife after tearing her Mangalsutra threw at her husband and walked out of her husband's house. Here is a case where a wife while in privacy, occasionally has been removing her Mangalsutra and bangles on asking of her husband with a view to please him. If the removal of Mangalsutra was something wrong amounting to mental cruelty, as submitted by learned counsel for the appellant, it was the husband who instigated his wife to commit that wrong and thus was an abettor. Under such circumstances the appellant cannot be allowed to take advantage of a wrong done by his wife of which he himself was responsible. In such a case the appellant cannot be allowed to complain that his wife is guilty of committing an act of mental cruelty upon him, and further by such an act, has suffered mental pain and agony as a result of which married life has broken down, and he is not expected to live with his wife. It also appears to us that, whenever the appellant asked her wife for removal of her Mangalsutra, the respondent never comprehended that her husband at any point of time would react to such occurrences in the way he did. Under such circumstances, the appellant was not expected to have made an issue out of it. We are, therefore, of the view that removal of Mangalsutra by the respondent would not constitute mental cruelty within the meaning of Section 13(1)(ia) of the Act. - 14 - 11. The last act of the respondent, which according to the learned counsel for the appellant, amounts to mental cruelty is that she lodged a complaint with the Women Protection Cell, through her uncle and as a result of which the appellant and the members of his family had to seek anticipatory bail. The respondent in her evidence stated that she had never lodged any complaint against the appellant or any members of his family with the Women Protection Cell. However, she stated that her parents sought help from Women Protection Cell for reconciliation through one of her relative who, at one time, happened to be the Superintendent of Police. It is on the record that one of the functions of the Women Protection Cell is to bring about reconciliation between the estranged spouses. There is no evidence on record to show that either the appellant or any member of his family were harassed by the Cell. The Cell only made efforts to bring about reconciliation between the parties but failed. Out of panic if the appellant and members of his family sought anticipatory bail, the respondent cannot be blamed for that. Thus, we are of the opinion, that representation made by the parents of the respondent to the Cell for reconciliation of the estranged spouses does not amount to mental cruelty caused to the appellant.” 25. Their Lordships of the Hon’ble Supreme Court in R. Balasubramanian Versus Vijayalakshmi Balasubramanian (Smt), (1999) 7 Supreme Court Cases 311 have held that the unfounded allegation of adultery against wife is a serious allegation amounting to cruel conduct by the husband. In this case the husband has sought divorce on the ground of cruelty and desertion. Their Lordships up-held the decisions of the - 15 - Courts below since the