FAO No.313-M of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.313-M of 2009 Date of Decision : 18.08.2011 Braham Parkash .......Appellant Versus Mukesh .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. J.S. Bedi, Advocate, with Ms. Kanika Sharma, Advocate, for the appellant. Mr. Amit Shivrain, Advocate, for Mr. Kulvir Narwal, Advocate, for the respondent. **** JITENDRA CHAUHAN, J. This FAO has been filed by the husband against the judgment and decree dated 28.7.2009, passed by the learned Additional District Judge, Rohtak, granting a decree of divorce on the ground of cruelty in favour of Mukesh-wife, against her husband, Braham Prakash. On 16.1.1997, Smt. Mukesh, wife, filed a divorce petition No.2 of 1997, under section 13 of the Hindu Marriage Act, in the Court of learned Additional District Judge, Karnal, which was returned due to lack of territorial jurisdiction. Thereafter, the wife filed the present petition under section 13 of the Act at Rohtak, on the grounds that the marriage between FAO No.313-M of 2009 -2- the parties was solemnized on 18.6.1992, as per Hindu rites. It is alleged in the petition that the marriage could not be consummated as the husband was impotent and incapable of having intercourse with the wife. No child was born out of this wedlock. It is alleged that the husband is addicted to intoxicants and drugs. The wife was shunted out of the house by the husband on 1.9.1995, without any reason. The husband had also broken TV, mirror of the dressing table and other household articles. The wife filed a petition under Section 125 Cr.P.C. which was dismissed as withdrawn on account of compromise. The wife alleged that on 17.7.2001, she was transferred from Nathupur to Village Kamla, District Karnal, on her request, as it was very difficult to live in the company of the husband and her life became hell. On 17.7.2001, the husband reached at her place of posting from where she was to be relieved. The husband created a great drama and insulted and humiliated the petitioner-wife in the presence of the staff members. The respondent-husband also gave beatings to the wife on that day. Since then, she is stated to be residing with her parents. Another instance quoted by the wife is that on 16.12.2001, the marriage of the younger sister of the petitioner was held and the respondent husband was invited there for the purpose of reconciliation. The respondent came there and also played a drama at the house of the wife in the presence of the relatives and respectables of the locality. The husband again insulted and abused the wife including her parents at the time of the marriage but the petitioner remained silent. After insulting the entire family of the wife, the husband left the house on the same day without taking dinner in the marriage of the sister of the wife. Another example of cruelty quoted by the wife is of 25.12.2001, when the wife went to the house of the respondent to FAO No.313-M of 2009 -3- collect her clothing and other articles lying in her in-laws’ house. It is alleged that when the wife entered the house the husband started shouting there and abused the wife and her parents after seeing her there. When the husband came to note that she wanted to take her valuable articles and daily use articles, the husband pushed her out of the house. She was not even allowed to take a glass of water or tea there and he humiliated the wife in the presence of the neighbours. FAO No.313-M of 2009 -4- The husband contested the petition denying all the allegations. The husbands alleged that the allegations of impotency are afterthought and were raised for the first time in this petition filed on 25.7.2005. In the earlier divorce petition, and petition under Section 125 Cr.P.C., no such allegation was there. Even in written statement to HMA case No.49 of 1996 filed on 24.7.1996 by the husband, no such allegation was there. The husband alleged that the wife is habitual of filing false petitions. It was submitted that in the year 1993, the wife got pregnant but unfortunately, there was a miscarriage due to some health problem. She was medically treated from Dr. Mrs. Uma Pant, and Rita Vaish, in the year 1993-94 and from Sir Ganga Ram Hospital, New Delhi, in the year 1998. It is stated that in the earlier petitions, the wife had admitted that they cohabited with each other as husband and wife and the marriage was consummated. The allegations of taking of drugs and intoxicants were denied. It is alleged that the wife and her sister were married with the husband (appellant in this case) and his brother, Suresh Chand, respectively, at the same time and place. The wife at the time of marriage was 10+2. Thereafter, she did her B.A. and J.B.T. Course, and joined the service as a teacher. It is further pleaded that the husband is a Government servant, working as Section Officer in the Ministry of Communications, New Delhi. From the pleadings of the parties, the following issues were framed:- 1. Whether the marriage between the parties is liable to be dissolved by a decree of divorce on the grounds mentioned in the petition, as alleged ? OPP FAO No.313-M of 2009 -5- 2. Whether the pettion has been filed without any cause of action and is not maintainable, as alleged ? OPR 3. Whether the petitioner is estopped from filing the present petition by her own act and conduct as alleged ? OPR 4. Whether the pettion on account of impotency is barred by limitation as alleged ? OPR 5. Whether the petitioner has suppressed the material facts from the Court, if so, to what effect ? OPR 6. Relief. After appraisal of the evidence on record, the learned additional District Judge, Rohtak, granted a decree of divorce dated 28.7.2009, for dissolution of marriage between the parties. Feeling aggrieved against the same, the husband has come up in this appeal. Learned counsel for the appellant has argued that the judgment and decree of divorce is erroneous, against law and facts. The counsel argued that the allegations of taking of drugs and intoxicants by the husband are not proved on record. The incidents of alleged cruelty are normal wear and tear in the matrimonial life and cannot be termed as cruelty so as to grant decree of divorce. He further argued that even if the so called incidents are taken to be true, these are only misconduct on the part of the husband due to occasional outburst of anger or austerity of temper but these are not grave acts of cruelty. From the entire evidence, it is clear that the wife has herself withdrawn from the company of the husband by getting herself transferred to a far away place from the matrimonial house. At the FAO No.313-M of 2009 -6- end, he maintained that the divorce petition filed by the wife may be dismissed. Learned counsel for the wife argued that both the parties are Government servants and belong to a civilized society. Using of abusing language, beating, and humiliating the wife in the presence of her official colleagues, relatives and parents, constitute grave acts of cruelty. Both the spouses are expected to have love and affection for each other and treat each other well in the presence of colleagues, relatives, friends and parents. The incidents dated 17.7.2001, 16.12.2001 and 25.12.2001, cannot be termed as normal wear and tear of the matrimonial life. These incidents have been fully proved on the record by independent witnesses. I have heard the learned counsel for the parties and perused the record with their assistance. At the very outset, it is mentioned here that the wife had abandoned the plea of impotency as is apparent from order dated 4.4.2009, wherein, she had made a statement in the trial court that she does not press these fresh allegations. So, the allegations regarding impotency were rightly not dealt with by the learned trial Court. In Vinita Saxena Vs. Pankaj Pandit, (2006) 3 SCC 778, Hon’ble the Apex Court, has held as under:- “It is settled by a catena of decisions that mental cruelty can cause even more serous injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. it is to be determined on the whole facts of the case ad the matrimonial relations between the spouses. To amount to cruelty, there FAO No.313-M of 2009 -7- must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. The word “cruelty” has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. it is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.” The divorce is sought on the basis of three incidents dated 17.7.2001, which occurred at the place of posting of the wife; dated 15.12.2001, at the residence of the wife where the marriage of the sister of the wife was being performed; and dated 25.12.2001, at the residence of the husband, when the wife went to collect her belongings, lying at her matrimonial home. The wife, in her affidavit, Ex.PW1/A, narrated the allegations of cruelty in detail, which are corroborated by PW2, Raj Singh; PW3, Suraj Mal; PW4, Mrs. Sudha Sharma; and PW5, Kishan Singh. No wife would like to break her matrimonial house unless and until there are FAO No.313-M of 2009 -8- compelling reasons to do so. In this case, it is an admitted fact that at the time of the marriage, the wife had studied upto 10+2. She did her B.A. and J.B.T. Course after marriage and got a Government job. The wife alleged that when the husband did not change his behaviour and attitude towards her, she got herself transferred from Village Nathupur, which is near to her matrimonial home to a distant place, i.e., Village Kamla, District Karnal. When the husband came to know about this fact, he came to her school on 17.7.2001 and he insulted and humiliated the wife in the presence of her staff members and caused beatings to her. Consequently, she did not go to her matrimonial home and since then she is residing with her parents. This fact is fully proved from the testimony of PW5, Kishan Singh, the husband of her colleague teacher, who was also present there and came there to drop his wife in the same school. PW5, Kishan Singh, stated that he tried to pursue the husband but he gave such abuses which a prudent man could not narrate. He is an independent witness. He has no axe to grind. His presence is natural and probable and cannot be doubted. On the other hand, the testimony of RW5, Dilbagh Singh, is unbelievable that no such incident happened as alleged. In the cross-examination of PW5, Kishan Singh, in a suggestion put to this witness, it is proved that there was some altercation in the school. Next episode is dated 15.12.2001. It was the day of marriage of the sister of the wife, when the husband was expected to behave properly and nicely. In our society, on such like functions, special and warm welcome is extended to the sons-in-law. It was expected that on such a function, better sense may prevail upon the husband and he would attend the function happily. But the husband came at about 11.00 am and started FAO No.313-M of 2009 -9- humiliating and insulting the wife and her parents in the presence of relatives and respectables of the locality. The husband might have thought it to be a proper time to humiliate and insult the in-laws, to lower down the prestige of the wife in the eyes of others. The wife had to bear all this, being a silent spectator. After humiliating and insulting her and her entire family, the husband left the place without taking dinner. This incident dated 15.12.2001 is proved by PW2, Raj Singh; and PW3, Suraj Mal. The husband has admitted his presence in the marriage along with his friend, RW2, Rajinder Singh Punia. From the cross-examination of the husband and RW2, Rajinder Singh, one fact is clear that the husband left the house before departure of ‘Doli’ of his sister-in-law. It is again mentioned here that the real brother of the husband is also married to the real sister of the wife. The husband was given special treatment and arrangement for his stay was made in the neighbourhood, so that he along with his friend might feel comfortable, away from the huge gathering. The husband stated that it was the wife and her family who had insulted him. The last incident of cruelty is stated to be of 25.12.2001. The wife alleged that she went to fetch her clothes and daily use articles lying in her matrimonial house. On seeing her, the husband started shouting and abusing her and her parents. She was pushed out of the house. The husband, what to talk of offering a glass of water, humiliated and insulted her in the presence of neighbours. To prove this fact, the wife has produced an independent witness, Mrs. Sudha Sharma as PW4. This witness is most reliable and believable being the neighbour of the husband. She had no ill- will or animosity with the husband. No other point has been raised. FAO No.313-M of 2009 -10- Keeping in view the entire facts and circumstances of the case, one thing is abundantly clear that the husband had been treating the wife with utmost cruelty and it is impossible for the parties to live together. The feeling of deep anguish, disappointment, frustration in one spouse, caused by the conduct of the other, in the presence of the colleagues, friends and relatives, is grave kind of mental cruelty. It cannot be cured by mere filing of petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights as was done in this case but later on, was dismissed as withdrawn by the husband. The circumstances show that the matrimonial bond in this case is beyond repair and the marriage is a fiction. The learned Additional District Judge, has fully appreciated the entire evidence on record. There is no scope to have a second view in the matter. The decree of divorce has been rightly granted to the wife and the same is upheld. For the reasons stated above, this FAO No.313-M of 2009, fails and is dismissed, without costs. ( JITENDRA CHAUHAN ) 18.08.2011 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No