IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (HMA) 518 of 2003. Judgment Reserved on 28.4.2009. Date of decision 5.5.2009. Smt. Heema Devi …Appellant. Versus Shri Arvind Kumar …Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant Mr. G.R.Palsra, Advocate. For the respondent Mr. Sanjeev Kuthiala, Advocate. Dev Darshan Sud, J. This is the wife’s petition against the judgment and decree of the learned District Judge, Mandi passed on the petition under Section 13 (1)(i-a) of the Hindu Marriage Act, 1955 (hereafter referred to as the Act) filed by the husband praying for a decree for divorce on the ground of cruelty and desertion. 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - The undisputed facts are that the parties to this appeal were married according to Hindu rites on 30.6.1989. It is pleaded that they lived together harmoniously as husband and wife for six months, but the behaviour of the wife changed thereafter and she used to leave the matrimonial home without any justifiable cause and started threatening him that in case he objected, she would commit suicide and implicate him in false criminal cases etc. The husband urges that in 1990, she left the matrimonial home without any justifiable cause and despite intervention by a number of respectable persons of the locality where the appellant was residing and repeated efforts by him, she did not relent from her behaviour and join his company. On 19.6.1995, a compromise Ex.PA was arrived at between the parties wherein she promised to join his company but after signing this compromise she again refused to live with him without any justifiable cause. Earlier, the respondent husband had filed a petition in the Court of the learned District Judge, Kullu which was dismissed for want - 3 - of jurisdiction with the direction that he should institute it in a Court of competent jurisdiction. The petition was resisted by the appellant on a number of grounds and all the allegations made have been denied. The crux of the defence as set out by the petitioner herein is in paragraphs 4, 11 and 12 of the written statement which was filed wherein it was pleaded that she was maltreated by the respondent but being a obedient Hindu wife tolerated the purported atrocities committed on her. An allegation has been made in paragraph 12 that the petitioner respondent maintains illicit sexual relations with one Smt. Rup Dassi from whom he has one illegitimate child. The allegation reads: “12. This para of the petition is wrong and denied. As a matter of fact, the petitioner has kept Smt. Rup Dassi alias Tara as his concubine with whom he has also produced one female child out of the same wedlock and at her instance, the petitioner is not behaving nicely with the respondent and she being threatened with dire consequences, as the petitioner does not want to keep the respondent with - 4 - himself and as such the respondent is being tortured unnecessarily. Though she is residing with the petitioner.” The learned District Judge, after consideration of the oral and documentary evidence of the parties, allowed the petition and dissolved the marriage between the parties by a decree of divorce holding both grounds of cruelty and desertion established by clear and cogent evidence on the record. Learned counsel for the appellant submits that the judgment of the learned Court is not based on reliable evidence and that the defendants evidence has not been evaluated in consonance with law. Had this been done, all allegations levelled against the appellant would have been disproved. He submits that on the pleadings and evidence it was clear that it was the respondent/ husband who was responsible for forcing the appellant to leave the matrimonial home. He submits that it was established on record beyond any doubt that the respondent was cohabiting with one Rup Dassi alias Tara which fact is proved by - 5 - Ex.RA which is copy of an extract from the Register, Births and Deaths and statutorily maintained by the Panchayat, which shows that one daughter was born to Sh. Arvind Chauhan on 24.6.1999 through Smt. Tara Chauhan. He has taken me through the evidence of RW-1 Shri Shiv Singh, Secretary, Nagar Panchayat, Manali, who has testified that at Sr. No. 180 in the Register Ex.RA, there is an entry that a daughter was born to Shri Arvind Chauhan, resident of Katrain, through his wife Smt. Tara Chauhan. In cross examination, this witness states that this information had been received from Mandi hospital by post. The letter on the basis of which this entry has been made has not been produced. He has expressed ignorance regarding the identity of the informant. These facts are being noticed in some detail as living in adultery would furnish a legitimate ground to the appellant to withdraw from the company of the respondent. Adultery is a serious allegation. One of its negative effects is the imputation of concubinage on the lady against whom such allegations are leveled. In Hindu society, chastity is a valued virtue and spousal - 6 - fidelity the very foundation of a happy married life. Allegations of adultery and sexual misconduct also adversely affect the reputation and standing of the parties in society apart from branding them as amoral. Such conduct if proved or allegations leveled which are not established destroy the very fabric of matrimonial ties. The learned District Judge rightly holds that Ex.RA is insufficient to prove adultery/ adulterous behaviour on the part of the respondent husband. This finding cannot be disturbed. The implication of not proving this allegation on record is two fold. Firstly, the unproved allegation itself would entitle the husband to a decree for divorce as it would be squarely covered by mental cruelty as envisaged by Section 13 (1) (ia) of the Act and secondly, the justification that the appellant had a legitimate cause for not staying with the respondent would be negatived. If the evidence of RW-1 Shiv Singh is considered in detail, there is nothing which establishes that the daughter as alleged was in fact born to the respondent. Name of the father of the child has been mentioned as Arvind Kumar, but the parentage - 7 - of Arvind Kumar has not been mentioned. The scribe of the entry has not been produced in evidence. The alias of the mother of the child has also not been established, that is to say the identity of Rup Dassi as Tara has not been proved. It is one thing to plead adultery as a ground of justification for withdrawing from the company of the husband. It is another thing altogether to prove such ground. Having made the allegation, the appellant has gone to the logical conclusion of leading evidence through RW-1 and RW-7 Dr. N.K.Sharma, who also tried to establish that one woman who disclosed her name as Rup Dassi was found at the residence of the respondent. He has been disbelieved by the learned District Judge not only on the ground that his testimony is vague, that he is a person who is not at all conversant with the facts of the case and has made the statement only for the sake of supporting the appellant and is a procured witness. Learned counsel then urges that despite the compromise Ex.PA, communications Exts. PB and PC from the Parivar Pramarsh Kendra, the respondent has not joined the company of the respondent. - 8 - While dealing with this submission, the learned District Judge considers the evidence of RW-7 N.K.Sharma. This witness states in evidence that he had received application from the appellant’s father and had issued notices to the parties, but the respondent did not present himself for participation in further proceedings. He says that he had gone to the respondent’s house where he found one lady washing clothes who disclosed her name as Rup Dassi, wife of the respondent. He had investigated this case though he had no powers to do so and he had made no effort or attempt to ascertain the identity of the lady. The learned District Judge has disbelieved his evidence and labelled him as a procured witness which I find is a correct way to deal with his testimony. On letters Exts. PH, PY and PZ tendered in evidence to establish the willingness of the appellant to live with the respondent, the learned Court holds that there is nothing to establish as to who had written these letters and who had signed them. They were merely tendered in evidence without proof. Looking to the totality of the evidence, I do not find that on appreciation of the evidence - 9 - on record, the learned District Judge has come to a conclusion which is perverse or not borne out from the record of the case. I hold that the appellant had deserted the respondent for a continuous period of more than two years as contemplated by Section 13(1)(ib) of the Act read with the Explanation there-to without justifiable cause. I further find that the allegation of adultery has not been proved despite the fact that RW-1 Shiv Singh and RW-7 Dr. N.K.Sharma tried to establish this fact. This allegation has no factual foundation. The allegations made amounts to mental cruelty. These are allegations which are not made in the heat of moment for which any remorse may have been expressed at a later stage, but the allegations have been made in writing to be adjudicated by a Court of law. No attempt has been made to withdraw this part of the pleading, but as the record shows the appellant has led evidence to establish these allegations. There can be no other conclusion except that the allegations were leveled with deep thought and contemplation. This conduct cannot be considered to be within the parameters of “normal wear and tear of life”. - 10 - In fairness, I must notice judgments relied upon by the learned counsel for the appellant. He places reliance on the judgment of this Court in Narain Singh v. Krishna Devi , Latest HLJ 2008 (HP) 947 holding therein that acts of cruelty have to be distinguished from the ordinary wear and tear of life. He then submits that this Court in Ramesh Kumar Sharma v. Smt. Akash Sharma , Latest HLJ 2008 (HP) 632 has laid down the parameters of what constitutes cruelty. He has laid stress on the fact that vague allegations by the husband would not amount to cruelty within the meaning of the Act and supports this contention by reference to the decision of Punjab and Haryana High Court in Smt. Asha Gupta alias Anju Gupta v. Rajiv Kumar Gupta, AIR 2005 Punjab and Haryana 134. He has urged that the husband was responsible for forcing the wife to withdraw his company and he cannot be allowed to take benefit of his own wrongs and places reliance on a decision of this Court in Bharti Sharma v. Surinder Kumar Sharma, 2003 (2) Shim. L.C. 255. Lastly, he supports his contention by the decision of the Supreme Court in A. Jaichandra v. Aneel Kaur, AIR 2005 SC 534 holding - 11 - inter alia that to constitute cruelty, the conduct complained of should be grave and weighty and not covered by the normal wear and tear of married life. In that case, the Court also considered the fact that mental cruelty may consist of verbal abuse, insult by using filthy and abusive language leading to constant disturbance of mental peace. The entire case law of what constitutes cruelty was considered in detail by the Supreme Court in Sammar Ghosh v. Jaya Ghosh, 2007 (4) SCC 511. The Court concluded that it is not possible to lay down definition of cruelty or to restrict it to enumerated factors. The Court did specify certain parameters which covered the concept of cruelty. One of them being “sustained reprehensible conduct on the part of a spouse, causing acute mental pain, agony and suffering etc.” The evidence on record of this case clearly establishes that the appellant was intent upon establishing that she was made to leave the matrimonial home as the husband’s conduct was one of living in adultery and she had no choice despite the fact that even then she was willing to live - 12 - with him. This allegation has been disproved on record and such unsubstantiated allegations constitute mental cruelty within the meaning of Section 13 (1)(i-a) of the Act. There is no dispute to the proposition of law as laid down by the case law cited by the learned counsel for the appellant. However, the facts of these cases are distinguishable. As I have held in the present case, the appellant has withdrawn from the company of the respondent without reasonable cause as contemplated by the Act and secondly unsubstantiated allegations of adultery and sexual misconduct have been made which in law are sufficient for the grant of a decree as prayed for. There is thus no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. May 5, 2009(PC). (Dev Darshan Sud), J.