482 0 FAO No2671 of 2005 1 4 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No267M of 2005 08cMI Date ofdecision14092009 1 CC Krishan Kumar ppellant 0 Versus C I C5 SmtNidhi Arora espondent I Z CORAM HON8LE MR JUSTICE VINOD K SHARMA I Presentl Mrokesh Sinhal Advocate 08 for theappellant Mrlshok Kaushik Advocate vmm forthc Z 1 Whethcr Reporters ofLocal Ncwspapers may be allowed to see thejudsincnt9 2 To be referredto theReporters ur not2 3 Whcther should bc reportedin Digest2 21LA12 This appealbv the is directed againstthc judgmentand decree dated 21 72005 passedby the learned Additiorial KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 483 FAO No2674 of 2005 2 District JudgeFaridabad vide which petitionOled by undersection 13 of the Hindu MarriageAct 1955 6forshort the Act9for dissolutionofmarriage was orderedto be dismissed The marriagebetweentheparties was solemnized on 28997 at Shiv Mandir Dharamshala TitarpurNew Delhi according to Hindu rites and ceremonies The parties cohabited as husbandand wife at Faridabadbut 0 110 child was born out of this wedlock The was employed 0 as Stenoin thePunjabNational Bank at New Delhi Therefore she usedto C5 goto her offlce from Faridabadand returnedto the matrimonial home after I dutyhours in theeveningThe allegations ofthe appellant were that after 2 Z monthsof the marriageltwas found that the was mere inclined 0 to her parentsand did not care or bother for the appellantsfamilyor the I matriinonialhome She spentweeklynightsal parental home alonewithout 08 thc consent of the appellantThe case set up by the appellant was that he wm tried to make her understandabout her matrimonial duties and gave a Z that she should avoid weeklystay at her parentalhome In Ll response to the suggestionthe disclosed that she did not cnioythe company of the familymembersof the appellantand for this reasonshe spentSaturday andSundayeveningswith her parents The case set up bytheappellant was thathe did not takeit ve rv seriouslywith the hopethat with the passageof time the thingscould iinproveOn 51 1997 the respondent askcd the appellantand his other familymembersto visit hcr Mausi naternal aunt9for lunch which was acceptedby thc appellantwhere he Went alongwith his elder brotherand KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 484 ll 1 CV FAO No267M of 2005 3 a his familyand came back in theevening On 5101997 the put up a demandfor home away from the parentsof the appellantThe stand of the appellant was thathe could not think of leavinghis parentsin their old agewhen his attendancewas most requiredThis stand of the appellantwas not liked by thc It was also the pleadedcase of the appellantthat the 0 was not interestedin the marriageas the appellantwas not of C I her liking She also disclosed that in fact the was only C5 interested in the marriage alliance with a person who was 1Il the banking induslrv The appellant also pleaded that he was told bythe that in case she had not married him she would have enjoyedIife in her own m way The respondentfurther disclosed that Faridabad is a small placeas I compared to Delhi whereshe usedto enjoycolourful Delhi in the late hours 08 whereasthc li fc standsstill at Faridabad after 9 PM The appellant made 7 understandthat beinga Hindu Indian familythe parentsof the appellantdid not like the culture of appellantremaining out in late hours tl But insteadof this she alwaysrequested theappellant to go Delhi and have dinner in different hotels It was also the case set up thatthinkingof the respondent was that what is use ofearningifa persondoesnot enjoylife On account ofthis the differences arose betweenthepartieswhich widened with the passagc of time ll was also pleadedcase of theappellantthat when the matter was told to the parentsof therespondentin stead of advisingher theytook her side The father of the respondentalso told the appellantthat when the KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 485 FAO No2671 of 2005 4 4 couplewas earninghandsomeamount theymust enjoythe life in young age aS lll lhe old age or after the passageof timethe couplewould haveto meet other formalities 01 life whereasthe thinkingof the appellantwas that it was betterto save money in earlier life because with the passageoftime the liabilityof children were likelyto come up Accordingto theappellantthis explanation was not effective The startedvisitingher parental 0 house directlyfrom workingplaceand startedlevellingallegations against C him furthermore the fatherofthe also started with C5 the appellan It was the allegation of the appellantthat father of the I startedwritingnastylettersto the father of the appellantwhich Z were baseless C In the letter dated 20 2997 written by the father of the I respondent llwas mentioned that in order to safeguard the interest of the 08 he proposedto hire a bank locker and forms were sent to the 7 appellant for his but herefusedto signthem on the pleathatgold Z should be retained at home It was also the case of the appellant that the Qm fact of takinglocker and takingway ofjewellerycameto theknowledge of thc appellantonly on lhe receiptof the letter It was also the case of the appellantthat vanous allegations were levelled in the letter againstthe appellantand his familymembers which caused mental torture and harassmcntto lhe appellantOn beingaskedby theappellant as to theobject ofthe letterdated20121997 therespondent answeredthat he should either have a separatematrimonial homc as the respondentwas not interestedto live in the j oint family The appellantthereafterdecided to separatethe KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 486 lN FAO No267W of 2005 5 1 kltchen by shiftingon the flrst floor in the matrimonial home ie House N0507 Sector31 Faridabadbut in spiteofshiflingon ftrst Ooor the woes of the did not end but increasedgraduallyAfter separation from the familythe startedharassing theappellant in one way or the other She even threatenedthat she would commil suicide either bytaklng 1 poisonor she would burn herself Parents of the appellanttherefore 0 conveneda meetingat Faridabadwith the parentsof the and the C I allegations of threatswere disclosed It was then decided that theappellant 0 and shall take an independenthouse 111Faridabad away from I the parentsof the appellantsHouse No1206 Sector 37 was taken on rent Z as per lhe choice and suggestion ofthe parentsofthe respondent r The initiallyrefused to wash clothes and thereafler shc also stoppedcookingfood for the appellantThe respondent gave deaf 08 ears to the advice of the appellantThe appellantclaimed that beinga a7 Government employeeworkingin the lnstitute for SystemStudies and Z AnalysisDefence Research8 OrganizationMetcaffe House tl Civil Lines Dclhi had respectin the ofOce as well as in the societyat large The case set up was that the attitudeof the becameadamantand she started with him by not allowinghim to enter the matrinlonial home The landladyof the house some time helpedlhe appellantln gettingdoor openedfrom the respondentfor his entrance Fatherof the respondent also encouraged his daughter to force theappellant to Iive in the manner as per the wishes of therespondentThe case pleaded thercfore was that this attemptwas made to force the appellanlto shift to KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 1 S 487 l11 FAO No2674 of 2005 6 r Delhi as Ghar Jawai whereas he was not interested On 225998 when the appellantwas away to Del hi on his official job the put a new lock on the wooden door of main entrance the keyof which was not available with the appellantwhereas the lock on theJali door had 2 keysone with theappellant and otherwith 1 C the respondentOn comingback from Delhi he found the wooden door 0 Iocked thekeysof which were with the Therefore he could not C enter the matrilnonial home Il was pleaded case of the appellant that this C5 was done with a sole motive of harassing and torturingthe appellantOn I tnquiry after 2 hoursthe appellant was informedbytherespondent that she was at her parentalplaceand that the Iock had beenput as she C was not to comc back to Faridabad The appellant went to his parental I houseand narratedthe entire incident Father of the asked the 08 appellant to shift to Delhi near theparental houseof the but this W2 was not accepted as theappellant as he thoughtthat if this was the attitude Z of thc while stayingat Faridabad what would be his fate Ll afterheshifts to Delhi Father of the respondent thereafterstartedsendinglettersand tclegrams levcllingfalse allegations againstthe appellantof beatingand of besidesraisingof other demands The case of the appellant was that the respondentnever camc back to matrimonial home after 2251995 ie lhe date when she locked the wooden door entrance of the matrimonialhc3me The goodslyingtherein remained intact The case of the appellant Was that thereafter a meetingwas arranged between the KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 488 FAO No267M of 2005 7 appellant and the father of the on interventionof the landlord at the office of Avdhoof Real Estate Consultants Sector 37 Faridabad on 276 1998 where it w7as settled that the would come to Faridabadto live on 2861998 but she never came to Faridabad The case of the appellant further was that he had to join the 1 Q MSc ComputerScience 6Sowarelat Madurai KamrajUniversityon 0 being by the employerof the appellant on 201998 The C appellant was to join the course on 1 7998 whereas he reached on C5 91998 wherehe remainedup to 1472000 The parentsofthe I visited Madurai with mala flde intention to defame the appellantby Z levellingfalse allegationlt was pleaded case of the appellantthat the parentsof the respondentcreated a scene at the UniversityCampus I Madurai and also met the Head of the of the appelIant The 08 parents of the thus lowered the imageof the appcllantin the 7 eyesofthe colleagues staffand the seniorsofthe appellantThe case ofthe Z appellantwas that the allegations levelled againstthe appellantby the Om parents of the also caused greathumiliation harassmentand rnental tension to theappellant The also wrote a letterslevelling false allegations againslthe appellantto Senior Officers of the appellant On theseallegations he was summonedand was put to query The writingof letterswas said to be cause ofmental cruelty It was pleadedfrom the act and conduct of the respondent it became impossiblefor the appellantto keep further relations with the respondent as wife and that the appellanthad not condoned the acts of KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 489 ll lV FAO No267M of 2005 8 9 cruelty on the partofthe and prayedfor a decreeofdivorce On notice and flled written statelnent admilting the marriagebut denied all other the allegations The standtaken by the was that the appellant was not interested in havinga child as was pointedout in the letter dated 86 1998 addressed to the was also not allowed to visit her parentsThe case of 0 thc further was that she usedto behavenicelywith theappellant C and all other familymembers includingthe parentsand relations and C5 further that she used to discharge all matrimonial obligations as a plous Hinclu wifc Thc appellanl and his familymembers on the other hand used Z to insult the parentsin the familygatheringin the presenceof 0 respondentThe case of therespondent was that it was difflcult to face the I SltuatiOl when the parentsand his familymembers openlyinsulted the 08 rcspondelltsparents 1n front of their relatives who paidvisit to the emn appellant house on 2610l97 to greetthem on Diwali The allegation that the wanted to separateresidence from lhe parentsof theappellantwas said to be quitebaselessand cooked up which was clear from lhe fact that even at the time of filingof petition the respondent was living separatefrom his parentswithout any valid reasons and grounclIt was also pleadedcase of the respondentthat the tnarriage was settled after holdingmeetingbetween the appellantand respondent and by her free will therefore thc questionofher dislikinghim did not arise She even denied that she desired the appellant to go out by sulomitting that it was humanlyimpossibleafter spendingwholc day 111 KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 490 0 GSJ FAO No2674 of 2005 9 4 office to talk of goingoutside for loiteringor takingdinner etc in Delhi Faridabad is also a prominentcityhavingmodern amenities of restaurants hotelsetc Allegations were said to be false Pleaded case of the was that real issue was dowry demand It was pleadedthat her parentsnever interferedin the matrimonial i affairs as it was for the husband and wife to understandeach other and 0 adjustaccording to the likes and dislikes with a view to have harmony 111 C the familyThe case of the respondent further was that the parentsof the CA9 respondenl never interfered in the familyaffairs of the The respondent was hardlyallowed tO VlSlt her parents It was further pleaded Z that the appellantand his familymemberscreated such situation which C compelledthe parentsofthe respondent to raisethe issue in black and white I to the familylife of the respondentThe pleadedthat 08 she was tortured by the appellantand his family members particularly 7 Mohan Arora The case pleadedby the was that the appellant Z had left for Madurai in consultation with his father with a hanging 0m matrimonial home problemThe took up the matter with the father of the appellantto get the issue resolved but instead of rendering any he refused to providethe addressof the appellant nor any action was takcn to reSolveissueofrented accommodation lt was further pleadedcase of therespondent that bybreaking open the lock her giftsgivenin the marriage were taken away presumably bythe landlord but neithertheappellant nor his fatherbotheredto takenote of this It was also denicd that the factum of takingof locker came to the KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 491 FAO No267M of 2005 10 4 notice of the appellantonly from the letter dated 20 0 997 The showed her surprisethat even after comingto know about this fact he took no steps to convert the locker in the joint name The further denied that she wantedto be separatefrom the familyof the appellantIt was the case of the that the allegations were 1 r Ievelled to cover up matrimonialoffence committedby the appellant and 0 his familymembers The reasoning givenfor this was that if there was any 0 I threat regardingsuicide or burningthen a close relation of the appellant 0 could not have takena decision to take separateaccommodation It was the I case set up by lhe that the appellanthad not disclosed the fact Z that he was havinggovernmentaccommodation at material timc The 2 allegations that the respondent never used to wash clothesand cooked food I were also denied and allegedto be false and baseless The case ofthe a5 was that the appellantposedhimselfto be a simpleperson but 7 in fact he was maintainingdouble standard Reason for this sland was that acllOll of the appellantin terrorizing the by to take liquorseekinglandlords helpin inflictingcrueltyon therespondentfalse promiseon 276998 for married life in disputedrented accommodation movingto Madurai under guardedsecret from the respondent with matrimonialhouseproblemhangingand observing silence brcakingopen of lock of the almirah in matrimonialhome nexuslcriminal conspiracywith the landlord in breakingopenof the lock of the house himself to be bachelor with plansto marry class mate Olingof divorce petition duringthe tlme sought before Police Authorities for KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 492 FAO No267M of 2005 11 4 malrimonialbond It was also pleaded case that lhe appellanl usedto comelateatnightThe that thoughthc appellant was blamingthe father of the but he failed to acccpt the fault of his father in not providing addresswhen the appellantlcft for Madurai or even when the lock of the house was broken by the landlord 1 r Requestof the respondentsfather to initiate action againstthe landlord 0 were thrown in the dustbin It was also the case of the that the 0 accomnlodationof her father was only of one room and there was another C5 girl to be lnarried therefore there was no questionto keepthe appellant as I Ghar Jawai Il was also the case of the that four near relatives Z of her were Iiving near to the respondentsfather and therefore 00 assl stancc was required by him Ailegations were said to be totallybaseless I lt was the case of the respondentthat ll was the appellantwho had 08 expressed his desirc to be GharJawaito grabthe assets of the parentsof 7 therespondenl Z lt was also the case of the that the appellantwas 0 not interestedto rcsolve the dispute as he had secret planto leave fOl Madurai to attend educationalprogrammefor 2 years lt was furthcrthecase of the rcspondent that settlement arrived at between the partieson 276 1998 at laridabad was also violated by lhe appellantShe denied the allegalionthat theappellantcould notopenthematrimonialhome Itwas thc casc of the rcspondent that settlement on 276 1998 was not bona fldc as he had alreadyplannedto join the educational programlne we 207 998 lt was thus pleadedthat lt was therespondeiltwho was trcated KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 493 FAO Noe267M of 2005 12 4 with cruelty as the disputeof rented accommodation resulted in loss of rnatrimonialassets and Istridhan due to the fault of the appellanlThe of the respondent had gone to Madurai to find out the whereabouts of theappellant and lo llnd solution to the rentedaccommodationas he was not when the career of their daughter was at stake This act of L theappellant was said to be a cause of greatpain agony and harassmentto 0 the and other membersof her familyThe appellant also refused C I to make any responsein the meetingat Madurai lt was for C5 this reason thatmeeting was soughtwith theHead of the Department It was I pleaded thal the allegcdhumiliation and mental tension on account of Z meeting with Head of the Department was his own creation which was r forced bythe on her parentsThe storywas therefore said to be I totally and unbelievable a5 Il was further the case of therespondent that theappellant was a7 working in a chalked out planThe appellant and his familymemberswere Z said to be greedyfor dowry more after highereducationofthe tl in Madurai The appellantposedhimself as bachelor at Madurai and was workingon planto solemnizesecondmarriage with a classnate All other material allegations were speciflcally denied It was also pleaded that the petitionlacked locus standiand that the appellant had no cause of action to maintain the petition Therefore prayedfor its dislnissal In thereplicationaverments madein thepetitionwere reiterated whereasaverments made in the written statement were denied KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 494 FAO No267I of 2005 13 P On the pleadingsof the partiesthe followingissues were framedby the IearnedMatrimonial Cour 1 Whethcr the has lcft the company of the petitioner and thereforewhether thepetitioner is entitled to getdivorce from the on this groundas 1 allegcd2 OPP 0 2 Whether the respondenthas treated the petitioner with 0 I crueltyas alleged2 OPD C5 3 Whether the petitionis not maintainable in the present I fonn9 OPR Z 4 Relief r Both the partieslcd oral as well as evidencc I On appreciationof evidence learned matrimonial court by 08 r placingreliance on thejudgment of Honble SupremeCourt in the case of e Laxman Uttam Chand VsMeena AIR 1964 SC 40 observedthatthe Z oflence of desertion commences wilh factum of separationand animus deserendi cocxisti ng but ltlS not necessarythat theyshould commcnce at thc salne timc but at onc pointof lime the animus deserendi had to corist Thc learned matrimonialcourt also took note of thejudgmcnt of Honble SupremeCourt in the case of Bipin Chander Jaisinghbhai Shah Vs Prabhawati AIR 1957 SC 176 to hold that the essential condilions for the offencc of desertion are iJ the factum of separation and 6ii9the l ntentlon lo bring cohabitalion perlnanently to an end 6animus deserendiland as regardsthe desertedspouse the elementsare Oi absence KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 495 FAO No267 of 2005 14 4 of consent ancii absence of conduct givlnga reasonable cause to the spouselcavingthe lnatrimonialhome to form thenecessaryintention ln this of the settledpropositionof law the facts andevidence were consideredbythe learnedmatrimonialcourt After noticingthe provenfactsthe learnedmatrimonial court a C held lhat the disputebetween the partieswas amicablysettled and a 0 compromise was executed which providedthat the partieswill reside C I neither at Faridabad nor at Delhi but at Gurgaonbut the appellant did not C5 make any arrangementfor accommodation at Gurgaon The learned I matrimonialcourt held that the evidence on record provedthe fact that the Z appellanthad left for Madurai on 31998 and remainedthere for 2 years till 1472000 The learnedmatrimonialcourt also held that the evidence Oll I rccord showed that the respondenthad made with thc 5 employerof the appellant which proved her eagerness to join the 7 matrimonial home and not to break the matrimonial ties Rather thc Z appellantimmediatelyon coming back from Madurai Oled the present tl pclition Thc learned matrimonial court found that the conduct of the respondent did not show intention not to cease cohabitation The learned court held that plea of desertion was nol proved Issue No l was accordinglydecideclagainsttheappellant The learned nlatrimonialcourt on issue No held that in order to prove crueltythe appellantexaminedRakesh Kumar as PW l Constable SurenderSinghPW 2 andUmesh Chand Sharmaas PW 3 besidesappearing himsellin lhe witnessbox KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 496 FAO No267M of 2005 15 Rakesh Kumar PW 1 an official of the court o f Judicial Magistrate First Class Faridabad deposed that challan in the case StateVs Krishan Kumar and othersbearingNol79 of 2001 under sections 4981 IPC was submittedto the court on 5 2002 All the three accused in the case were granledand released On bail and thereafter Oll r regularbail Hc also placedon record statementof MsNidhi 0 0 Arora recorded on 762001 and the statementof Prilam I 19assrccorded undcr section 161 of the Code of Civil Procedurc recorded C5 I on 52001 Photo copy of the FlR was also placedon record as Exl1 Z However he showed ignorance of personalknowledge about thc case Constable SurenderSinghPW 2 broughtthe record of caseFIR C N0279 rcgisteredunder section4984 1PC in Police Station Sarai Khawaja I 08 on the stalement of SmLNidhi Arora on 3152001 FIR was said to have been recordedby ASI RaghbirSinghon the staternentof MsNidhi Arora 7 Z Hc also had no personalknowledge about thecase nm Umesh Chand SharmaPW 3 deposed that the appellantwas servingas SeniorTechnical Assistant in the Instituteoflnstitute for System Studies and AnalysisMinistryof Defence and he resignedfrom servlce vide letter datcd 21 2001 Resignationof the appellantwas accepted Oll 152001 Hc also provedcopiesof letter of Nidlli Arora and PDVarang Wrltten to lhc Department Exsl6 to Exl25 and copy of Iettcr dated 152001 Ex6 However in crossexamination he staled thal he had brought the suinmoned record but was not aware of the date ofjoiningof thc appellantHe also could not tell whether the appellantwas provided KUMAR SURESH SHAM LAL 2012.08.25 12: 50 True Scanned Copy of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 497 FAO No2674 of 2005 16 4 4 Govt accommodation in Delhi as he did nol deal with the establishment section He was also not aware of the