FAO No. M-203 of 209 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. M-203 of 2009 Date of decision: March 24, 2011 Ranjita .. Appellant v. Gagandeep Singh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Harsh Aggarwal, Advocate for the appellant. Ms. G. K. Mann, Advocate for the respondent. Rajesh Bindal J. 1. The wife is in appeal before this court against the judgment and decree dated 6.2.2009, passed by the learned court below whereby the petition filed by the respondent-husband for divorce was accepted. 2. Briefly, the facts, as are available on record are that marriage of the parties was solemnised as per Sikh rites on 2.2.1997 at Ludhiana. After the marriage, both the parties lived together and cohabited with each other at Ludhiana. Out of the wedlock, one child-Gurjap Singh was born on 29.7.2000, who at present is living with the appellant (mother). 3. The divorce petition was filed by the respondent-husband on the grounds of cruelty and desertion on the plea that behaviour of the appellant and her family members towards the respondent-husband was rude and unbecoming from the very beginning. The family of the appellant was continuously interfering in their matrimonial life. Father of the appellant, who was employed as District Manager in Markfed was involved in a corruption case and FIR No. 75 was registered against him on 1.5.1996 at Police Station, Jagraon for embezzlement of paddy. On account of this reason, the appellant was pressuring the respondent to live in her parental home as Ghar Jawai as there was no other earning member FAO No. M-203 of 209 [2] in the family. The appellant used to spend lavishly on herself and also her other family members including two unmarried sisters without taking care of the members of the family in the matrimonial home. 4. On 25.9.1999, charges were framed against the father of the appellant. At that stage, the appellant pressurised the respondent to accompany her and live in her parental home, to which he did not agree. Ultimately, she left the matrimonial home on 5.11.2000 along with her son. While leaving, she took along with her all gold ornaments and other costly items. After all efforts to bring the appellant back to the matrimonial home failed, the respondent filed a petition for restitution of conjugal rights on 13.5.2001. Though in that petition, the stand taken by the appellant was that she was ready and willing to join the company of the respondent-husband, but her attitude was totally indifferent. During the pendency of the aforesaid petition for restitution of conjugal rights on 13.6.2002, the appellant along with her family members and other persons came to the house of the husband, where a fight took place. The matter was reported to the police. The family members of the appellant were taken into custody by police but later on let off considering the dispute to be matrimonial. For the aforesaid incident, when no action was taken by the police on the complaint made by the respondent-husband, a private complaint was filed in the court on 3.9.2003 against the appellant and her family members in which they have been summoned vide order dated 5.8.2004 (Ex. P20) to face trial. The aforesaid complaint is still pending. 5. It was further pleaded by the respondent-husband in the divorce petition that on 20.6.2002, FIR No. 207 (Ex. P2) was got registered by the appellant against the husband and his family members including far off relatives under Sections 406 and 498-A IPC. Though other family members got the concession of anticipatory bail, however, the respondent-husband was arrested on 3.9.2002; was remanded in police custody for two days and thereafter was kept in judicial custody for two days and was released on bail only on 7.9.2002. The aforesaid FIR being totally false, cancellation report was submitted by the police, which already stands accepted by the court. However, the appellant/complainant FAO No. M-203 of 209 [3] in the aforesaid FIR being not satisfied filed protest petition, which was considered as a private complaint and is still pending. However, the accused therein, namely, the respondent-husband and his family members are still to be summoned. The matter did not end here as immediately thereafter one FIR No. 322 was got registered by the father of the appellant against the respondent-husband and others on 19.8.2002 (Ex. P1) under Sections 451 and 506 IPC. The same was investigated by the police and cancellation report was submitted, which stands accepted by the learned Magistrate and father of the appellant being not aggrieved of the same did not file any protest petition or complaint. 6. After release from jail on 7.9.2002, the respondent-husband withdrew the petition filed by him for restitution of conjugal rights on 11.9.2003 and subsequent thereto filed the petition for divorce on 12.2.2004 with the aforesaid allegations. 7. In reply to the divorce petition, the appellant denied all the allegations, rather, it was claimed that the appellant is having respect for each member of the family of her in-laws. It is their behaviour which was not cordial towards her. The FIR, which was registered against the father of the appellant, was false. It was denied that the respondent was ever pressurised to live in her house as `Ghar Jawai'. The father of the appellant is running a good business after retirement and earning handsomely. She was turned out of the matrimonial home along with the minor child of 3-1/2 months. When the parents of the appellant approached the respondent and his family members, they were asked to get 25% share of the property of her father. The withdrawal of petition filed by the respondent under Section 9 of the Act was malafide. On 13.6.2002, the appellant along with her parents and the minor child had gone to her matrimonial home, but the attitude of the respondent and his father was quite rude. The father of the respondent took out a gun and compelled the appellant and her family members to leave the house. The allegations regarding any fight having taken place were denied. 8. On the pleadings of the parties, the learned court below framed the following issues: FAO No. M-203 of 209 [4] “1. Whether the petitioner is entitled to a decree of divorce for the dissolution of his marriage against the respondent, on the ground of cruelty ? OPP 1-A Whether the respondent is guilty of desertion of petitioner? OPP 2. Relief.” 9. Issues No. 1 and 1-A were taken up together. On consideration of the evidence led by the parties, the learned court below decided both the issues in favour of the respondent-husband and against the appellant-wife and a decree of divorce was passed, which has been impugned by the wife in the present appeal. 10. Learned counsel for the appellant-wife submitted that in the present case from the date of marriage, which was solemnised on 2.2.1997 till the filing of divorce petition on 12.2.2004, the entire period can be divided into two parts, namely, one part from 2.2.1997 to 5.11.2000, the date on which the appellant-wife was turned out of the matrimonial home after giving severe beatings (whereas the claim of the respondent-husband is that the appellant-wife herself left the matrimonial home) and the second part being from 5.11.2000 to 12.2.2004, when the appellant-wife was living in her parental home. He submitted that ever since the marriage of the parties had taken place, the wife had been living happily in her matrimonial home giving no reason of complaint to any of the members of her in-laws' family. The appellant never pressurised the respondent to leave his home and live in her parental home, as was alleged in the divorce petition. The intention of the appellant-wife for living in the matrimonial home forgetting all what had happened in the past, is evident from the fact that she had so stated at the very first occasion in reply to the petition for restitution of conjugal rights filed by the husband. Even today she is ready and willing to join the company of the husband and live in the matrimonial home unconditionally. 11. He further submitted that even though the appellant had been shunted out of the matrimonial home on 5.11.2000, but still no adverse action was taken against the respondent or his family members, rather, FAO No. M-203 of 209 [5] efforts were made for reconciliation. The litigation was initiated only by the husband or his family members when a complaint was filed to the police for the incident of 13.6.2002 on 18.6.2002. It was only thereafter that FIR under Sections 406 and 498-A IPC was got registered by the appellant-wife against the respondent and his family members on 20.6.2002. Subsequently on account of trespass and threatening by the respondent-husband and his friends, one FIR was got registered by the father of the appellant on 19.8.2002. As against that, the respondent had indulged the appellant and her family members in various litigations. Firstly, he filed a petition for restitution of conjugal rights which was dismissed as withdrawn; then a petition was filed for seeking custody of the child which was dismissed in default; a suit for claiming damages was filed against the appellant and her family members which is still pending and petition for divorce, which is subject-matter of present appeal. A criminal complaint for defamation was filed, which was dismissed on 8.11.2005 and further a criminal complaint for the alleged incident which took place on 13.6.2002 was filed in which the appellant and her family members have been summoned. 12. The aforesaid facts clearly establish that in fact the husband did not want to keep the appellant. He further submitted that though divorce was sought on the grounds of cruelty and desertion, however, there was no pleading in the divorce petition to that effect. Nothing has been mentioned in the divorce petition regarding any incident which may have taken place upto the date the appellant was residing in the matrimonial home. All the incidents pertain to the period thereafter. The entire evidence led by the husband is beyond pleadings which otherwise is required to be ignored. Even as per the stand of the husband, the appellant had left the matrimonial home on 5.11.2000 under stress. This cannot be said to be a case of desertion. It was the duty of the husband to have stood by the wife in the need of hour and give her moral support. In fact, he had succeeded in his ill-design to throw the appellant and her son out of the matrimonial home. Placing reliance upon Ravi Kumar v. Julmi Devi, 2010 (2) RCR (Civil) 178; Neelam Kumar v. Dayarani, 2010 (3) RCR(Civil) FAO No. M-203 of 209 [6] 577 and Gurbux Singh v. Harminder Kaur, 2010(4) RCR (Civil) 822, it was submitted that even in terms of settled position of law, no case was made out by the respondent-husband for grant of divorce on the basis of material on record. 13. On the other hand, learned counsel for the respondent- husband submitted that the wife had left the matrimonial home on 5.11.2000 of her own. Though in her pleadings or examination-chief, it was claimed that she was beaten and turned out of the matrimonial home, however, in her cross-examination, she stated that on the aforesaid date, a small fight had taken place on account of some clothes worth ` 500/- to be bought for the son. There was nothing about beating of the appellant by the respondent. The aforesaid fact is corroborated in the cross- examination of the father of the appellant, namely, Pritpal Singh (RW-3), where he stated that he does not know anything about what had transpired on the day his daughter was turned out of the house by the respondent- husband. She further stated that after the appellant left the matrimonial home, number of efforts were made but the same did not yield any result on account of stubborn attitude of the appellant. Still the husband filed a petition for restitution of conjugal rights on 13.5.2001. Though a plea was sought to be taken by the appellant in reply thereto that she was ready and willing to join the company of the husband, but it was merely an eye-wash as the real intent was otherwise. 14. The aforesaid fact is established from the subsequent events, namely, when the appellant along with her parents and other persons stormed the house of the respondent on 13.6.2002 and had a fight there, the matter had to be reported to the police as the life of the respondent and his family members was in danger. The appellant, her parents and others were taken into custody by the police, however, later on were let of considering the dispute to be matrimonial. The ill-designs of the appellant and her family members did not stop here, as immediately thereafter they got FIR No. 207 registered against the husband and his family members including far off relatives on 20.6.2002 (Ex. P2) under Sections 406/498- A IPC. Though the parents and other family members of the respondent FAO No. M-203 of 209 [7] got the concession of pre-arrest bail, however, the respondent-husband was arrested by the police on 3.9.2002. He was remanded in police custody for two days and thereafter keeping him in judicial custody for two days, he was released on regular bail on 7.9.2002. The appellant and her family members were not satisfied as their effort was to keep the respondent in jail for quite some time. Another FIR No. 322 was got registered by the father of the appellant against the respondent and others on 19.8.2002 under Sections 451/506 IPC. The falsity of the allegations made in both the aforesaid FIRs got registered by the appellant and her father is evident from the fact that after thorough investigation, the police filed cancellation report in both the cases, which was accepted by the court. Though in FIR No. 207 dated 20.6.2002, the appellant had filed protest petition, which is now being considered as a complaint, but the accused therein are yet to be summoned by the court, whereas father of the appellant was satisfied with the cancellation of the second FIR. As the police did not take any action on the complaint made by the respondent for the incident, which had taken place on 13.6.2002, a private complaint was filed on 3.9.2003 against the appellant and her family members in which the accused were summoned on 5.8.2004 (Ex. P20) and the trial is still pending. 15. The aforesaid facts establish that effort of the appellant and her family members was merely to harass and teach a lesson to the respondent and his family members, may be by levelling false allegations, whereas in the complaint filed by the respondent for the incident of 13.6.2002, after considering preliminary evidence on record, the accused have been summoned. 16. In addition to that, the husband had filed a petition seeking custody of the child. However, the same was got dismissed in default considering the fact that the child had been tutored against the father and he became furious even seeing him in the court. Considering that fact, the respondent thought it appropriate not to proceed with the case. 17. Learned counsel for the respondent-husband submitted that none of the evidence led by the respondent-husband is beyond pleadings. FAO No. M-203 of 209 [8] The factum regarding registration of FIR has been mentioned in the divorce petition. 18. She further submitted that the ill-design of the appellant and her family members to somehow or the other harass the respondent and his family members is evident from the fact that they did not even feel shy of mis-stating the facts while getting the complaints lodged. For the alleged incident for which FIR was got registered on 19.8.2002, the stand of father of the appellant, who was the complainant, was that at the relevant time the appellant had gone to the market with her sister, whereas the stand of the appellant was that she was present at home. This clearly establishes that the story sought to be projected was concocted and in fact it was found to be so even by the police after investigation. Both the FIRs got registered by the appellant and her father against the respondent- husband and his family members having been found to be false clearly shows that the respondent-husband or his family members never harassed the appellant till such time she lived in the matrimonial home and there was no reason to have shunted her out as is sought to be claimed. If she had gone of her own on account of some stress, she was welcome to come back as well. None stopped her. As she had gone after fighting and taking jewellery and other valueables, she did not come back. In fact, the temperament of the appellant from the very beginning was not normal. It is only that the respondent and his family members were tolerating with the hope that a day will come when she may realise that her real home is the matrimonial home, however, unfortunately she did not realise her folly. It is too late in the day now for the appellant-wife to claim that she is ready and willing to join the company of the respondent-husband after even getting him jailed. Placing reliance upon G. V. N. Kameswara Rao v. G. Jabilli, AIR 2002 SC 576; Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675; Gajjala Shankar v. Anuradha, 2006(1) RCR (Civil) (AP) and a judgment of this court in FAO No. M-101 of 2010 –Smt. Sunita v. Ramesh Kumar, decided on 8.3.2010, the prayer was that the appeal deserves to be dismissed being mis-conceived. 19. Heard learned counsel for the parties and perused the relevant FAO No. M-203 of 209 [9] referred record. 20. The undisputed facts in the present case which have come on record are that marriage of the parties took place on 2.2.1997. A male child was born on 29.7.2000. The parties are living separate since 5.11.2000. The contention of the appellant-wife is that she was turned out of the matrimonial home after giving beating on that day, whereas the case set up by the husband is that she of her own had left the matrimonial home. The husband filed a petition for restitution of conjugal rights on 13.5.2001. On 13.6.2002, a fight took place at the residence of the husband where the appellant-wife and her family members with deadly weapons had come. The police had to be called. They were taken into custody. A complaint to that effect was made by the husband to the police on 18.6.2002 (Ex. P-18). On 20.6.2002, the appellant-wife got one FIR No. 207 registered against the husband and her relatives under Sections 406/498-A IPC. Though all other members of the family were granted concession of pre-arrest bail by the court, however, the husband was arrested on 3.9.2002 and remanded in police and judicial custody for two days each before he was released on 7.9.2002. On 19.8.2002, FIR No. 322 was got registered by the father of the appellant against the respondent- husband and her relatives under Sections 451/506 IPC. In both the aforesaid FIRs, after thorough investigation, the police filed cancellation report in the court, which was accepted. A protest petition filed by the wife against the cancellation of FIR under Sections 406/498-A IPC was treated as a private complaint, which is still pending in the court and even the accused therein are yet to be summoned. A complaint (Ex. P19) was filed by the husband on 3.9.2003 against the appellant and her family members for the incident which happened on 13.6.2002 at the residence of the husband in which the accused have been summoned to face trial on 5.8.2004 (Ex. P20), which is still pending. The present petition for divorce was filed by the husband on 12.2.2004. A petition for custody of the child was filed by the husband which having not been pursued was dismissed in default. A criminal complaint for defamation filed by the husband was dismissed against which appeal is stated to be pending. A FAO No. M-203 of 209 [10] civil suit for damages filed by the husband against the appellant and her parents and one Avtar Singh Dhindsa is stated to be still pending. 21. Learned counsel for the appellant has sought to argue that after the marriage of the parties was solemnised, the period till the filing of petition for divorce can be divided into two parts, namely from 2.2.1997 to 5.11.2000, the date upto which the parties lived together and second being from 5.11.2000 to 12.2.2004. His submission was that there are no acts of cruelty stated by the husband in the divorce petition till the parties lived together. A male child was born on 29.7.2000, while the appellant was living in her matrimonial home. From this fact, it can be inferred that till such time the parties had been happily residing in their matrimonial home and cohabited. The question of desertion till that date does not arise. 22. He further submitted that divorce has primarily been sought and granted by the learned court below on the basis of certain events, which had taken place after 5.11.2000. The contention of the wife in the pleadings was that on 5.11.2000, she was beaten and turned out of the matrimonial home, whereas the stand of the husband was that she of her own had gone being under stress on account of the fact that her father had been charged in a corruption case. Had she gone herself having not been shunted out of the matrimonial home by the husband, she could very well come back. There is nothing wrong in case the wife had gone to her parents' house on account of certain problems being there, but under those circumstances she could always come back. The case as set out by the parties before this court was not that the wife had come back to the matrimonial home after some time and she was not permitted. The stand taken by the wife that she had been beaten up and thrown out of the matrimonial home was falsified in her own cross-examination, where she categorically stated that on 5.11.2000, when she left the matrimonial home, there was a fight between the parties on account of purchase of a dress worth ` 500/- for the child. She did not reiterate her stand taken in the pleadings or affidavit filed in examination-in-chief that she was beaten and thrown out of the matrimonial home. Even her father also stated in his FAO No. M-203 of 209 [11] cross-examination that he did not know what happened on the day when his daughter left the matrimonial home. He may not be present at the time of incident, but he did not even state that this is what was told by his daughter to him. If this episode is taken from other angle, namely, considering the allegations made by the wife that she was beaten up and thrown out of the matrimonial home, still there is no positive evidence led by the appellant to show that what efforts were made by them to see that difference, if any, between the parties is resolved and the parties live in their matrimonial home happily. First effort was made by the husband by filing a petition for restitution of conjugal rights. Though the stand sought to be taken by the wife is that she had stated that she is ready and willing to join the company of the husband, but nothing substantial could be pointed out as to why it did not materialise. 23. From the events, which took place from 13.6.2002 onwards, what can be easily concluded is that the intention of the wife was not to join her matrmonial home. The episode of 13.6.2002 was the turning point when the appellant-wife along with father and other relatives went to