IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(HMA) No.321 of 2010. Date of decision: 30.05.2011 Sanjay Kumar … …Appellant Versus Kiran Kumari … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.M.S. Guleria, Advocate. For the Respondents: Mr.Ashok Sood, Advocate. Dev Darshan Sud,J. The parties are present in Court. I have talked to Smt.Kiran Kumari and her father in detail. She has stated in clear and in no uncertain terms that she is reluctant to join the company of her husband. I have also talked to her husband for half an hour. The father of the respondent is also unwilling to send his daughter with the appellant. 2. This appeal is taken up for final hearing today. The appellant instituted this appeal against the judgment and decree of the learned District Judge, Mandi, dismissing the petition for divorce instituted by the appellant herein on the allegations that the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 marriage between the parties was solemnized on 12.12.2002 in District Mandi in accordance with Hindu rites and custom. The allegation is that after the solemnization of the marriage, she told the appellant that there is temple `Mata Ka Rath’ in her parental house which has a large following and resultantly huge income from offerings. The proposal put forth by the respondent was that the appellant should reside there with her and the income from the temple would be sufficient for both of them. On the refusal of the appellant to do so, the respondent refused to discharge his matrimonial obligations, picked up quarrels on trivial matters on any pretext. She accused him of being an alcoholic, short tampered and a person unfit to live with her. When the appellant tried to pacify her, she threatened that in case he stopped her from visiting her parental house she will commit suicide and would have the petitioner as also his family members arraigned/charged for offences under the IPC. The pleading continues that there was an attempt made by the appellant on 28.5.2004 to resolve the matter in an amicable manner in which the father of the respondent alongwith his relatives and parents of the appellant alongwith the President and Vice-president of Gram Panchayat, Nalsar participated, but of no avail and the respondent withdrew from the company of the appellant without any justifiable excuse. 3 3. Undeterred, the appellant tried to pacify and call her on telephone to join his company, but he was abused by her. He was told in no-uncertain terms that in case he makes any attempt to visit her in her parental house, she would commit suicide. The pleading is that she has withdrawn from the society of the appellant without any justifiable excuse. 4. The petition was resisted. The allegations are denied by the respondent. Learned trial Court tried for conciliation, but of no avail. Thereafter, two issues were settled, the first relating to `desertion’ and the second relating to `cruelty’. On both these issues learned trial Court has found against the appellant herein. Hence this appeal. 5. I have heard learned counsel for the appellant and have also gone through the record. 6. Both the issues of `desertion’ and `cruelty’ were taken up together by the learned trial Court. In order to prove his case, the appellant relied upon oral evidence as also Ex.PW-1/A, which is a compromise entered into between the parties on 28.5.2004. In addition, the learned Court also considered the evidence of the petitioner and three other witnesses, PW-2 Vinod Kumar, President Gram Panchayat, Nalsar, PW- 3 Swaran Singh, who is neighbour of the appellant, and PW-4 Laxmi Chand on behalf of both the parties. The respondent, in addition, appearing as her own witness, relied upon the evidence of her father Shri Amar Singh 4 RW-2, Shri Chint Ram RW-3, Shri Hans Raj RW-4 and Shri Padam Singh RW-5. 7. Adverting to the evidence, the learned trial Court has discussed the evidence in detail. It refers to the cross-examination of the appellant in which he admits that according to Ex.PW-1/A, the father of the respondent had to be informed about the time when he would take her back home after he recovered from illness. He expresses ignorance as to whether he actually contacted those people and made any attempt to bring her back. The learned Court then proceeds that according to the respondent, her case was that she had gone to her parental house as she was not keeping good health. On a detailed consideration of the evidence, the learned trial Court holds that nobody was sent by the appellant to bring his wife back. PW-2 Shri Vinod Kumar, who is scribe of Ex.PW-1/A, admits in his cross- examination that the father of the appellant told the respondent’s father that he should take the respondent to his house for about three months and as soon as she recovers from her illness she would be called back by them. On this, the father of the respondent and Chint Ram took the respondent to her parental house. 8. Adverting to PW-3 Swaran Singh, who was examined to prove the acts of cruelty, the court notes that, “he stated that after the marriage, once he visited the house of the petitioner and when the petitioner asked the respondent to prepare tea, she 5 replied that she did not care for petitioner or his friends”. His evidence and the evidence of PW-4 have been rejected by the Court. The reasons for not believing PW-3 Swaran Singh is that even the appellant never stated regarding such occurrence having taken place. Learned Court rejects the evidence of PW-4 Laxmi Chand on the ground that he stated that on 28.5.2004 the respondent came with her father and one Chint Ram to the house of her in-laws at Darbathu. 9. I need not advert to the evidence of the respondent for the reasons that once the case of `cruelty’ and `desertion’ has not been established, the respondents evidence need not be examined in detail. From the material on record, it is not established that the respondent left her matrimonial home without justifiable cause. In-fact, the evidence establishes that she was taken to her parental house to undergo medical treatment. Again, it is not established on the record that any attempt was made by the appellant herein in terms of the statement Ex.PW-1/A to bring the respondent back to her matrimonial home. On the question of cruelty, the lesser said the better. 10. In these circumstances, I do not find any merit in this appeal which is accordingly rejected. No order as to costs. May 30, 2011. (Dev Darshan Sud) (aks) Judge.