FAO No.219-M of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.17677-CII of 2009 & FAO No.219-M of 2008 (O&M) Date of decision: 4.09.2009 Poonam Devi ..Appellant Versus Narinder Kumar ...Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present:- Mr.H.S.Gill, Sr. Advocate, with Mr.Vivek Goyal, Advocate, for the appellant. Mr.Gulzar Mohd. Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- VINOD K. SHARMA,J. (Oral) With the consent of the learned counsel for the parties the main appeal is taken up for disposal. This is wife's appeal against the judgment and decree dated 7.8.2008 passed by the learned District Judge, Jalandhar on a petition filed FAO No.219-M of 2008 2 under section 13 of the Hindu Marriage Act, 1955 (for short the Act) for dissolution of marriage by way of decree of divorce by the respondent/husband. The marriage between the parties was solemnized on 19.9.1999 at Baba Lal Dayal Mandir near Partap Bagh, Jalandhar according to Hindu rites and ceremonies. Out of the wed-lock a female child namely Deepali was born on 26.10.2000 who is residing with the appellant. The parties after the marriage were living in the parental house of the respondent. It was the case of the respondent that the parents of the appellant wanted the transfer of the residential house in her name but the parents of the respondent did not agree to this. On account of this the appellant started leaving the house without his and his parents' consent. In order to keep peace in the matrimonial home parents of the respondent shifted along with other family members to a different place. As the parents of the respondent did not agree to the transfer of the house in her name she in connivance with her parents filed a criminal case No.219 dated 21.10.2003 under sections 328/307/498- A/34 IPC at Police Station Division No.3, Jalandhar. The respondent and his parents were arrested by the police and they remained in jail for two months. On presentation of the challan the case was committed to Additional Sessions Judge, Jalandhar. The appellant even engaged a private counsel to get the respondent and his parents convicted. The appellant as well as her parents deposed against the respondent and his parents. However, the Learned Court acquitted the appellant and his parents. It was the case set up by the respondent that allegations were false, baseless, vexatious and malicious, which resulted in mental and FAO No.219-M of 2008 3 physical cruelty, therefore, he reasonably apprehended that it would be dangerous to live with the appellant. It was also the case of the respondent that the appellant deserted him for a continuous period of more than 2 years immediately preceding the filing of the petition without any reasonable and sufficient cause with an intention to put an end to matrimonial ties permanently. It was the case of the respondent that acts of the cruelty were not condoned and that the petition was filed without any improper and unnecessary delay. The petition was contested by the appellant wherein she admitted that the marriage between the parties was solemnized on 19.9.1999 and that one female child was born out of the wedlock. She also admitted having lodged FIR No.219 against the respondent and his parents. Factum of their acquittal was also admitted. She reasserted her allegations that the respondent and his parents used to taunt and maltreat her on the pretext of having brought insufficient dowry. The case set up by the appellant was that the respondent and his parents pressurized her to bring a Maruti car and Rs.2 lacs (Rupees two lacs only) in cash from her parents if she wanted to live in the matrimonial home, but due to poverty she could not meet this demand. It was further pleaded by the appellant that several panchayats were convened in order to rehabilitate her in the matrimonial home. It was also said that on 21.10.2003 Santosh, mother of the respondent came to her with her father-in-law and gave her Parsad to eat, and after eating the Parsad her condition deteriorated as poison was mixed in the Parsad. She asserted that she was admitted in hospital where she was medico legally FAO No.219-M of 2008 4 examined and it was found to be a case of suspected poisoning. On her statement recorded in the hospital FIR No.219 dated 21.10.2003 was registered. It was the case of the appellant that it was on the assurance of the respondent and his parents, that she did not support the prosecution and gave oral consent for their acquittal. It was also the case of the appellant that it was due to intervention of the Presiding Officer that she along with the respondent visited Shri Devi Talab Mandir, Jalandhar. On the next date she showed her satisfaction regarding behaviour of the respondent. It was pleaded that after this the parties lived together at Hargobind Nagar, Nurpur Colony, Dhogri Road, Jalandhar for about 20/25 days but during this period the mother of the respondent used to quarrel with the appellant. The respondent thereafter took a room on rent at Avtar Nagar, Ludhaina where they lived together for 3-3½ months, but thereafter the respondent left her at her parental house, and went to Delhi for purchase of Printing Press, by assuring her that she would be taken to the matrimonial home after 4 days, but he never came back to take her. When the appellant went to find out the whereabouts of the respondent she was abused by the respondent, and threatened to be kidnapped. It was also said that a criminal case would be filed against her. On the same evening she received summons of the matrimonial case filed by the respondent. Allegations of cruelty on her were reasserted, but she showed her willingness to join the matrimonial home. In the replication averments made in the petition were reiterated whereas averments made in the written statement were denied. On the pleadings of the parties the following issues were FAO No.219-M of 2008 5 framed by the learned Matrimonial Court:- 1. Whether the respondent treated the petitioner with cruelty? OPP 2. Whether the respondent has deserted the petitioner for a period of more than two years immediately preceding the filing of the present petition? OPP 3. Whether the petition is not maintainable? OPR 4. Relief. In support of his case the respondent appeared as PW 1 and also examined his mother as PW 2, Satish Kumar, Record Keeper as PW 3. Whereas appellant herself appeared as RW 1 and examined her father Dayal Chand RW 2, and Kesar as RW 3. On appreciation of evidence learned matrimonial court was pleased to decide Issue No.1 in favour of the respondent/husband by recording following findings: “11 .............It cannot be believed that the Presiding Officer of the status of an Additional Sessions Judge would acquit the accused on merits in view of some understanding between the parties for saving their matrimonial ties. The falsity in the plea of the respondent has become very much clear from the perusal of her cross-examination. She stated that she was not present in the Court when the accused were acquitted. That totally falsifies the stand that after the efforts were made by the Presiding Officer for a settlement, she was taken by the petitioner to the Temple and that they had appeared in the FAO No.219-M of 2008 6 Court the next day and on the reply given to the Court the accused were acquitted. It was admitted by her that it was in the criminal case got registered by her that the petitioner and his parents were arrested and were kept in jail for three months before they were released on bail and that she herself and her father appeared as prosecution witnesses and they had engaged a private counsel also for prosecuting that complaint............. 13. From the evidence produced on the record and from my above discussion, I conclude that false criminal case was got registered by the respondent against the petitioner and his parents in which they remained in jail for three months. The case was hotly perused by the respondent but the petitioner and his parents were acquitted on merits. Position was similar in Gajjala Shankar's case (supra). In that case the husband, his parents and sister were tried in the criminal complaint field by the wife under Section 498-A IPC but were acquitted in that case. Three of them suffered imprisonment for some time initially. It was held that the trauma and sense of difidence suffered by them can easily be imagined. On the basis of that evidence it was held that the husband had been able to prove persistent physical and mental cruelty and the divorce was granted to him. Similarly Sadhana Srivastava's case (supra), false criminal proceedings were initiated by the wife against the husband and on that account husband suffered traumatic experience because of his arrest and confinement in prison. It FAO No.219-M of 2008 7 was held that the same amounts to mental cruelty and decree of divorce was granted in favour of the husband. The ratio of these rulings fully apply to the facts of the present case. The petitioner has successfully proved that on the basis of false criminal complaint filed by the respondent he and his parents remained in jail for three months and were subjected to criminal prosecution. He had been in trauma during that period and this act of the respondent amounts to the treatment of the petitioner with mental cruelty. Therefore,this issue si decided in favour of the petitioner and against the respondent.” For want of sufficient evidence qua the date of desertion issue No.2 was decided in favour of the appellant. It was held that the petition was maintainable and decree of divorce was passed in favour of the respondent. Mr.H.S.Gill, learned senior counsel for the appellant vehemently contended, that the judgment and decree passed by the learned matrimonial court cannot be sustained in law, as the learned District Judge has accepted the plea of cruelty merely because of filing of a criminal case in which the respondent and his parents were acquitted. The contention of the learned senior counsel for the appellant was, that the respondent and his parents were acquitted, in view of the settlement between the parties, under which the respondent had agreed to rehabilitate the appellant, and furthermore, thereafter the parties resided together and thus cruelty, if any, stood condoned. In support of this contention learned senior counsel for the FAO No.219-M of 2008 8 appellant placed reliance on the judgment of this court in the case of Radha Rani Vs. Har Bhagwan (2004-3) PLR 335, wherein this Court has been pleased to lay down as under:- “8. No doubt, it is correct that the relations of the wife have been convicted for an offence under section 323 IPC and sentenced to pay a fine of Rs.300/- each but the fact remains that there was no allegations against the appellant in the said proceedings. The effect of the actions of the brothers of the wife cannot fall on the appellant. Still further reliance of the learned trial court on the judgment in FIR lodged by the wife for an offence under sections 498-A and 323 IPC is not sufficient to hold that the wife has treated the husband with cruelty. Initiation of legal proceedings for the redressal of the rights or for punishment to the wrong doer cannot be said to be acts of cruelty. No proceedings have been initiated against the wife to the effect that the prosecution by her was malicious. Similarly because she was not able to prove her allegations beyond a reasonable doubt so as to warrant the conviction does not mean that the allegations have caused cruelty. The judgment of the criminal court is only relevant to the effect that the husband is acquitted but were acquitted from criminal proceedings by giving benefit of doubt cannot be termed as acts of cruelty.” On the other hand Mr.Gulzar Mohd., learned counsel appearing on behalf of the respondent contended that filing of a false case FAO No.219-M of 2008 9 in which the husband is tried and acquitted, amounts to cruelty. Therefore, no fault can be found with the judgment passed by the learned matrimonial court. In support of this contention learned counsel for the respondent placed reliance on the judgment of Hon'ble Allahabad High Court in case Smt.Sadhana Srivastava Vs. Arvind Kumar Srivastava 2006 (1) Civil Court Cases 347, wherein Hon'ble Allahabad High Court was pleased to lay down as under:- “19. It cannot be doubted that the respondent-husband must have suffered traumatic experience because of the arrest and confinement in prison of the entire family including himself. The arrest and imprisonment must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and imprisonment in a false case resulting into loss of reputation and prestige in the society would also amount to cruelty. Again we see no illegality in the trial Judge coming to the conclusion that false criminal proceedings initiated against the husband amounted to mental cruelty entitling him to a decree of divorce on the said ground.” Reliance was also placed on the judgment of Hon'ble Andhra Pradesh High Court in the case of Gajjala Shankar Vs. Anuradha 2006 (2) Civil Court Cases 298, wherein Hon'ble Andhra Pradesh High Court was pleased to lay down as under:- “14. As pointed out by the Apex Court, every small difference or reason cannot be a ground to file a petition for divorce. But FAO No.219-M of 2008 10 in the instant case, it is the specific case of the appellant- husband that he was subjected to 'mental cruelty' and to that effect evidence was also let in the form of testimony of PWs 2 to 4. Therefore, from an overall consideration of the evidence of PW 1 corroborated by that of PWs 2 to 4 we are of the view that the appellant-husband could successfully prove the persistent physical and resultant mental cruelty on the part of the respondent-wife and the facts of the filing of the criminal case under Section 498-A IPC and the petition under Section 125 Cr.P.C. would demonstrate that she was not a willing party to join her husband. 15. Mere filing a criminal case under Section 498-A IPC itself may not be a ground for divorce but when it is coupled with the other ground i.e., cruelty which was established successively by the appellant-husband, we deem that it is a fit case to grant divorce to the husband. It is not in dispute that the spouses have been living separately for the past 13 years with the bad taste still on the tongues.” On consideration of matter, I find no force in the contentions raised by the learned senior counsel for the appellant. The judgment of this court in the case of Radha Rani Vs. Har Bhagwan (supra) can be of no help to the appellant. It is now well settled that mere initiation of criminal proceedings may not amount to cruelty, but false allegations which result in prosecution of the husband and his family members would certainly amount to mental cruelty. The stand of the appellant that the respondent and her FAO No.219-M of 2008 11 family members were acquitted because of the compromise stands belied from the judgment which shows that the respondent and his family members were acquitted on the ground that the case was totally false. \ Learned Additional Sessions Judge, Jalandhar recorded a positive finding that the allegations of the demand of dowry were patently false. The learned court was pleased to hold that as the evidence of the appellant, her father and that of her relations, could not prove as to why there was necessity for the respondent to raise demand of Maruti car and a sum of Rs.2 lacs. The allegations were not convincing regarding maltreatment, or harassment of the appellant. It was held that the plea of appellant was an afterthought just to harass the respondent and his family members. Allegation regarding administering of some poisonous substance in Parsad was also found to be false. On appreciation of evidence learned Criminal Court was pleased to record as under: “ The prosecution has created a novel and afterthought story that one small packet of zink Phosphide was found in a room of accused Narinder Kumar. If rat poisoning was in the house of the accuses, then what was the necessity of bringing poisonous Parsad from outside. The whole story of administering Parsad containing some poisonous substance is concocted one which does not appeal to reason. Absolutely no basis is made out to prove the charges levelled against the accused.” Besides the finding of criminal court referred to above, evidence was also led before the learned Additional District Judge shows FAO No.219-M of 2008 12 that the allegations were false. The appellant failed to prove those allegations before the learned matrimonial court. In view of the proven fact that the respondent and his family members were prosecuted on the basis of false allegations for which they even had to spend time in jail, leaves no manner of doubt that the respondent was treated with cruelty by the wife. Findings of the learned matrimonial court on issue No.1 are, thus, affirmed. For the reasons stated above, finding no merit in this appeal it is ordered to be dismissed but with no order as to costs. (Vinod K.Sharma) 4.09.2009 Judge rp