F.A.O. No. 245-M of 2006 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 245-M of 2006 Date of decision: 16.02.2009. Sandeep Moudgil ...Appellant Versus Rama Moudgil ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Puneet Bali, Advocate, for the appellant. Mr. R.S.Chauhan, Advocate for respondent S.D.ANAND, J. Appellant-husband's bid to obtain dissolution of marriage proved abortive at the hands of the learned trial Court, thereby impelling him to file the present appeal. A stage-by-stage recapitulation of the respective pleadings of the parties, at the very outset, would enable the statement of fundamental issues, factual and legal on which bitter controversy was raged at the Bar. The marriage between the parties was solemnised as per Hindu Rites and ceremonies, on 17.2.2002. The partes cohabited as husband and wife, however, no issue was born out of their union. The appellant side did not raise any dowry demand. At the same time, a number of articles, detailed in list annexure P-1, were indeed given as customary gifts. From the very inception of the marriage, it was found that the respondent had a negative attitude towards life. She would always think negative. The appellant and his parents would always show love and affection to her and tried to impress upon her that she shall look up to the F.A.O. No. 245-M of 2006 -2- **** life from a positive angle. The respondent did not, however, change her attitude. She told the appellant that she was not interested in getting pregnant as she was to appear in her M.A. Part II examination. Even before appearing at the examination, she would entertain a feeling that she would not qualify the examination. On 17.7.2002, the appellant-husband was away to his place of practice; while his parents were away to the office of the Sub Registrar in connection with the registration of a document. 17.7.2002 happened to be the birth day of appellant's mother. On the morning of that day, the appellant and also the respondent wished happy birth day to the former's mother. While at the place of practice, appellant received a message that the respondent-wife had to be removed to Sector 32 Hospital, Chandigarh in an unconscious condition. The appellant rushed to that hospital and was informed by the parents of the respondent-wife that she had attempted to commit suicide as she failed in her attempt to clear M.A.Part II examination. The respondent regained consciousness on 19.7.2002. On that date itself, she was declared fit to make a statement. She informed the police (vide DDR No. 15 dated 19.7.2002-Annexure P-2) that she had consumed insecticide by mistake in place of the medicine she wanted to take to tackle severe headache. She was discharged from the hospital on 20.7.2002. She expressed a desire to stay at her natal house for some time. She, thereupon, went to her natal house with the consent of the appellant who, alongwith his parents, otherwise remained in touch with her even while she was at her natal house. Teej festival fell during the period of her stay at her natal house. The appellant, at the instance of his mother, gave customary gift and sweets to the respondent. She, thereafter, came over to the matrimonial house. Her birthday fell on 10.9.2002. On that F.A.O. No. 245-M of 2006 -3- **** day, she was given best wishes by the appellant and his parents who otherwise refrained from even making a mention to her failure at the examination and also the attempted suicide on her part. The appellant and his parents made very possible effort to ensure that the respondent-wife should over-come her feeling of fear and anxiety and should be able to lead a happy normal matrimonial life. As against it, the respondent-wife would have uncontrollable weeping spell. She would spend quite a while in the bed itself. Even when the appellant and his mother tried to involve the respondent in the house hold chores, she would decline to do so and would consider herself as a totally failed person. At times, she would indulge in self criticism and the counselling offered by the appellant and also his parents did not yield any tangible result. The respondent was on homeopathic medicine. On account of the consumption of insecticide, internal system of the respondent had been damaged and she informed the appellant that her mother had advised her to defer getting pregnant. The appellant even talked to his mother-in-law and requested her that he should be permitted to take the respondent to a Gynecologist for her proper check up. However, respondent's mother told the appellant in a firm tone that respondent was their responsibility and they will take due care of her. On 1.3.2003, the appellant and his mother returned from Delhi after attending a Kirya ceremony of a relation. On that date, both of them were observing fast as it was the day of Shiv Ratri. In their presence, the respondent started crying and yelling. She started talking about her fears about whether she would ever be in a position to conceive or pursue her studies or come up to expectations of the appellant who, in a bid to help her over come that negative feeling, showered love and affection upon her. F.A.O. No. 245-M of 2006 -4- **** However, the efforts made by the appellant did not bear any fruit. He went to sleep as he had travelled on that very day from Delhi to Panchkula. On getting up in the morning, at about 6.30 A.M., he found that the brother of the respondent was already available in the house and the respondent was ready with her bag and baggage to accompany her brother because she wanted to stay at her natal house. The respondent left in the company of her brother in the early hours of the day of 2.3.2003. As the respondent extended her stay at the natal house for an abnormally long period, the elders of the family of the parties met a number of times. The parties also met at a market place at Mohali. However, it was observed by the appellant that the mother of the respondent had adopted hostile, vindictive and revengeful attitude towards him and she went to the extent of shouting and announcing that she would tell the in-laws of the appellant's sister that poison had been forcibly administered to the respondent. Infact, mother of the respondent went over to Kurukshetra and carried out that threat on 17.7.2002. It was on the above allegations that the appellant applied for grant of a decree of divorce on plea of mental cruelty. The respondent did not dispute having consumed insecticide but averred that it was not on account of failure at the examination but that she had been compelled to do so on account of dowry related harassment caused to her by the appellant and his mother who were not satisfied with the adequacy of dowry brought by her and who used to always taunt her in that context. They would tell her that amount of Shagun given at the time of marriage (Rs.21000/-) was much less than the amount of Rs.51000/- which they had given to their daughter, alongwith number of other items like scooter, bed and washing machine etc. In the context of the DDR No. F.A.O. No. 245-M of 2006 -5- **** 15 dated 19.7.2002, she averred that she was pursuaded to make that statement so that the appellant and other members of her in-laws family did not face any legal problem. It was averred that, on their return from Delhi on 1.3.2003, the appellant and his mother accused her of having consumed milk without the consent of former (i.e. mother of the appellant). It was on that occasion that the mother of the appellant informed the latter that either of the two would live in the house. It was then that the appellant advised her to go over to her parental house. The promise made by the appellant was that as and when the situation normalised, she would be fetched from her natal house to the matrimonial house. It was on that understanding that the respondent accompanied her brother on 2.3.2003. On 18.3.2003, the appellant fetched the respondent from her natal house into a park where he told her that his mother is not, at all, willing to allow her to return to the matrimonial house and, thus, he too had no option but to obtain divorce from her. He further informed her that he cannot leave his parents as the house they were putting up belongs to them and he has no other place of shelter. The plea made by the appellant for a mutual divorce was declined by the respondent. Thereafter, the appellant came over to the parents of the respondent and reiterated the proposal which was declined by them too. Thereafter, the parents of the respondent convened two meetings at the house of the appellant on 4.4.2004 and 4.7.2004 but nothing fruitful could emerge. The trial proceeded on the following issues:- “1. Whether the respondent has treated the petitioner with cruelty?OPP 2. Whether the petition is maintainable ?OPD 3. Relief.” F.A.O. No. 245-M of 2006 -6- **** The learned Trial Court recorded a finding adverse to the appellant under issue no.1. The finding under issue no.2 i.e. qua maintainability was in favour of the appellant. I have heard Mr. Puneet Bali, learned counsel appearing on behalf of the appellant and Mr. R.S.Chauhan, learned counsel appearing on behalf of the respondent and have carefully gone through the record. In a forceful erudition, Mr. Puneet Bali, learned counsel appearing on behalf of the appellant, argued at the very outset that the finding recorded by the learned Trial Judge (to the effect that the appellant had condoned the act of cruelty on the part of the wife) is inappropriate. It was also argued that the evidence on record was not sufficient to grant a finding of condonation inasmuchas all that the appellant and his parents were trying to do was to comfort the respondent as a daughter-in-law so that she did not indulge in repetition of the act. The plea raised thereby was that the mere fact of their having allowed her to come over to the matrimonial house was not sufficient to sustain the finding of condonation. It was further argued, in that context, that the respondent committed an act of cruelty vis-a-vis appellant by having attempted to commit suicide because that act of her defamed him and his family in the eyes of society inspite of the fact that they were not responsible for it and the respondent tried to commit suicide as she was peeved at her unsuccessful attempt at clearing the M.A. Part II examination. Learned counsel for the respondent-wife argued the contrary, with equal passion, by a presentation that the respondent had, infact, exonerated the appellant and all members of his family from any accountability in the relevant behalf by having told the police (vide DDR No.15 dated 19.7.2002) that she consumed insecticide by mistake. In that F.A.O. No. 245-M of 2006 -7- **** very context, the attention of this Court was also invited to the suicide note wherein the respondent had categorically averred that the appellant and members of his family were not at all responsible for her (attempted) suicide. It was argued that the respondent behaved responsibly by getting pursuaded to 'exonerate' the appellant and his parents from any accountability for her attempting suicide. The fact that the respondent was found to have consumed insecticide is apparent from the record and would appear to be beyond the pale of controversy in the facts and circumstances of the case. The only point for determination is whether the respondent did so on account of failure at the examination (as pleaded by the appellant) or whether she was forced to consume insecticide on account of dowry-related harassment heaped upon her by the appellant and his parents (as alleged by the respondent). The appellant, who reiterated the above quoted pleadings at the trial, was subjected to a fairly lengthy cross-examination in the context. He conceded, as correct, a suggestion that the respondent had done her B.Ed. from Chandigarh. However, he could not recollect if the respondent obtained 68% marks at her B.Ed. Examination or not. He also could not say whether admission at Chandigarh is given on the basis of merit or not. It is in his statement that he had not seen academic testimonials of the respondent upto graduation level. He could not concede or deny that she had scored Ist Division upto graduation level. He conceded, as correct, a suggestion that the respondent had cleared her M.A.part I (Economic) examination before her marriage. He testified that he had not seen the Detailed Marks List of the M.A.Part I examination cleared by the respondent. He could not concede or deny whether the respondent had F.A.O. No. 245-M of 2006 -8- **** secured more than 60% marks in her M.A.Part I examination. It would be apparent from the above factual narration that the respondent had been able to prove that she had no reason to have a negative attitude towards her life because she had been securing Ist Division through out her academic life. Since she had, through out her academic career, been a Ist Division holder, it could not be expected that she would have fear of failure at the M.A.Part II examination. It is not a case where there was any inordinate lull in her last academic effort and the M.A. Part II examination. In order to wriggle out of the predicament of having to explain the above fact, the appellant opted to adopt an evasive attitude. The appellant is an Advocate by profession. As a husband, it would have been natural for him to have had a glance at the academic achievements of his wife i.e. Respondent. In any case, his evasive attitude does not show him in a good light, particularly in view of the controversy about the circumstances attending the abortive attempt at suicide made by her. In that very context, it may be pertinent to notice that the respondent had made a precise allegation that she was taunted for (her natal family) having given only a sum of Rs.21,000/- as Shagun; whereas a sum of Rs.51,000/- had been given by the parents of the appellant at the time of marriage of their daughter. The appellant opted to aver at trial that he had no idea about it. This fact was, however, conceded by his mother as PW-2-Mrs. Raj Moudgil. The cat was, thus, obviously out of the bag and the particular count of dowry-related harassment stands established on file. There are certain circumstances available on record which would indicate that the appellant and his parents had adopted inexplicably F.A.O. No. 245-M of 2006 -9- **** unreasonable attitude. By the very nature of things, if relations between the spouses are normal, a husband would be expected to attend the ring ceremony of his brother-in-law (wife's brother). As PW-1, the appellant conceded having been formally invited to attend his brother-in-law's ring ceremony but could not explain why he and his parents did not attend it. (“It is correct that there was ring ceremony of my brother-in-law. It is correct that respondent has attended that ring ceremony. It is correct that neither I nor my parents had attended the ring ceremony inspite of formal invitation.”) The appellant made an abortive attempt to explain the above absence by testifying that “my father was not feeling well where as I was busy in my profession and this was the reasons that I could not attend the function.” The explanation offered is apparently farcical in the facts and circumstances of the case, particularly when both the families were locally placed. Her mother also conceded those very facts. (“It is correct that marriage of the brother of the respondent was performed on 1.6.2002. There was ring ceremony of the brother of the respondent but I do not remember if the same was held on 26.5.2002. It is correct that no body from our family participated in that ring ceremony. It is correct that the invitation was given by the parents of the respondent to us to join the ring ceremony of their son.” It would appear therefrom that the relationship between the parties was far from easy even at that point of time when their marriage was 15-20 days old. Till that time, the respondent is not proved to have had any grievance vis-a-vis the appellant and his parents. There was, thus, no understandable reason for the appellant and his parents to refrain from attending the ring ceremony of the marriage of respondent's brother. F.A.O. No. 245-M of 2006 -10- **** Their unexplained abstinence on that occasion would be supportive of the averment made by the respondent that they were not satisfied with the adquacy of the dowry brought by her. The inexplicable attitude on the part of the appellant and his parents does not end here only. It would appear to be beyond the pale of controversy that the respondent did leave the matrimonial house, alongwith her brother, on 2.3.2002. As already noticed, the appellant pleaded that he “thought that respondent might have some appointment with the doctor so advised by her mother that is why her brother has come in the morning & respondent went alongwith her brother. Respondent extended her stay at her parental house though petitioner remained in constant touch with her.” If there was an iota of truth in the pleadings on behalf of the appellant, he would have been expected to make an effort for restoration of the respondent to the matrimonial house with the intervention of relations or respectables of the locality or otherwise. In that context, he conceded that “now the respondent is residing with her parents since 2.3.2003. Neither from my side nor from my parents side has convened any panchayat in between 2.3.2003 upto the filing of present petition at their house.” He did make an endeavour, abortive though, to wriggle out of that statement by beating a hasty retreat in the next sentence to testify that “otherwise we have tried to make the reconciliation. I myself used to talk her on telephone. Even I went there in her house.” At the same time, he conceded, as correct, a suggestion that the parents of the respondent had convened two meetings at his house on 4.4.2004 and 4.7.2004. (“It is correct that the parents of respondent has convened the meeting in my parents house on 4.4.2004 as well as on 4.7.2004.”) It is common ground that the appellant and his mother F.A.O. No. 245-M of 2006 -11- **** returned from Delhi on 1.3.2003. It may be noticed, in the context, that it was the appellant who conceded, as correct, a suggestion, that he and his mother returned from Delhi on 1.3.2003 and the respondent left the matrimonial house in the company of his brother on the very next day. (“It is correct that on 1.3.2003 I and my mother had returned from Delhi. It is also correct that on the very next day my wife has left her matrimonial home with her brother.”) This would be a clear case of inexplicable conduct on the part of the appellant. If things were normal, it would have been natural for the appellant (and also his mother) to have requested the respondent to desist from leaving the matrimonial house in the company of her brother, particularly when son and mother had returned from Delhi after attending the Kirya ceremony of a relation. It is, thus, apparent from the above that it was the respondent side which had been concededly making a patch up endeavour during the above indicated period and, as against it, the attitude of the appellant side was that of a mute character. The appellant would want the Court to believe that the respondent told him twice (once before she attempted suicide and, thereafter, on her return to the matrimonial house after a stay at the natal house following her discharge from the hospital) that she did not want to get pregnant and that she was under going some homeopathic treatment. The appellant pleaded at the trial that he told respondent's mother that he should be allowed to get the respondent examined from a Gynecologist but she did not agree. All this does not appeal to reason. It is not a case of a a spouse with deficit literacy level. The appellant is an Advocate by profession and, on his own showing, comes from a financially well off educated family. If all was well with his own state of mind, there was no F.A.O. No. 245-M of 2006 -12- **** reason why he had to talk to his mother-in-law to get her permission for the purpose of examination of respondent from a Gynecologist. He could very well do so at his own level. On the own showing of the appellant, the respondent had to be hospitalised on 17.7.2002, that she regained consciousness on 19.7.2002 and she was discharged from the hospital on 20.7.2002. Inspite thereof, he would want the Court to believe that he alongwith his father and the landlord, came back (from the hospital) to their house on 17.7.2002 at about 9/9.30 P.M. To the same effect is the statement of the appellant's mother. That would amount to the display of an absolutely unnatural human conduct. If the spouse of a husband is lying unconscious at a hospital and he is informed by his parents-in-law that she had attempted suicide on account of failure at examination and it is in his own statement that he and his mother had been trying to help the respondent to get over the attitude of negativity of life on her part, it would have been very natural on his part to stay over at the hospital itself (either with or without his parents or atleast either parent). There was no justification for him to her return to his house, leaving the respondent in an unconscious state at the hospital. Reliance placed by the learned counsel for the appellant upon Parveen Mehta Vs. Inderjit Mehta AIR 2002 Supreme Court 2582, Smt. Parkash Kaur Vs. Harbhajan Dass 2003 (2) HLR 184 and Manmohan Singh Vs. Aneeta Preet 2003(2) Civil Court Cases 110 is misconceived inasmuchas those cases were based upon peculiar facts of their own cases and there is no commonness of those facts with the facts involved in the case before this Court. In Parveen Mehta's case (supra), the husband raised an F.A.O. No. 245-M of 2006 -13- **** allegation that the wife caused mental cruelty to him by being non cooperative about sex from the first day of the marriage. There was a further allegation that the wife had raised a false plea of conception and miscarriage. In that case, the wife had refused to undergo medical examination. It was under those circumstances that the Apex Court held that the wife had caused mental cruelty to the husband. In Smt. Parkash Kaur's case (supra), it was found as a fact that the wife had been repeatedly threatening to commit suicide. It is those repeated threats which caused a reasonable apprehension in the mind of the husband that it would be difficult for him to live with the wife. It was that conduct of the wife which was held to amount to cruelty. In the present case, she attempted suicide only once and she has been found to have exonerated the appellant and members of his natal family inspite of the fact that it was on account of dowry-related harassment that the respondent had attempted suicide. In Manmohan Singh's case (supra), the facts were entirely different. In that case, the spouses were not found to be compatible from the very beginning. The Court further found that “the spouses have not been able to cement their relationship which came into existence on