IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (HMA) 176 of 2002. Judgment Reserved on 24.6.2008. Date of decision June 27, 2008. Smt. Krishna Gupta ….Appellant. Versus Shri Hira Lal Gupta ….Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioner Mr. T.S.Chauhan, Advocate. For the respondent Mr. Sandeep Sharma, Advocate. Dev Darshan Sud, J. This appeal has been filed by the wife against the judgment and decree of the learned District Judge, Bilaspur, in H.M.A. Petition No. 17 of 1999. The facts as narrated are rather unfortunate where, in the sunset of their lives, the husband and wife would want to separate. At the time when the petition was filed in 1999, the parties were aged about 65 years. At present, they 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes - 2 - are in the 70s and as the learned counsel informed me, both have been hospitalized. The husband approached the Court with the grievance that the wife had deserted him and had treated him with cruelty within the meaning of Section 13(1)(i)(a) and (i) (b) of the Hindu Marriage Act, 1955 (hereafter referred to as the Act). On the ground of cruelty, the Court found that the witnesses namely, the petitioner (respondent herein), (PW-1) Sub Inspector Anant Ram (PW-2), Hari Krishan (PW-3) and Rajiv Gupta (PW-4) alongwith Ex.PA, which is the FIR filed against the respondent by the appellant and complaint Ex.PB (filed against the respondent/ husband, son and daughter in law), anticipatory bail orders Ex.PC to PE and police challan Ex.PF coupled with the cancellation report Ex.PG were sufficient in law to prove mental cruelty to which the respondent had been subjected. It is undisputed before me that out of the wedlock, three sons namely Sanjeev Gupta, Rajiv Gupta and Jai Deep Gupta were born, who were aged 25 to 30 years at the time when the petition was filed. The husband states in his evidence before the trial - 3 - Court that in 1987, the appellant wife had kept one girl Reema who used to stay in her bed room constantly and this was done with the specific purpose of denying any sexual cohabitation to the husband. He further states that she never discharged her duties as wife and when he used to come back from his regular service duties in Delhi, he was even turned out of the house. In 1999, FIR Ex.PA was lodged by the wife against him under Sections 452, 373, 500 and 323 IPC on false allegations. Ex. PB is a complaint lodged by the wife against the husband, her son Rajiv Gupta and her daughter in law Babita, that is, wife of Shri Rajiv Gupta stating therein that they had committed criminal tres pass in her house. On 12.5.1999, the husband, his son Rajiv Gupta and daughter in law Babita obtained anticipatory bail from the Court of learned Sessions Judge, Bilaspur where they were directed to furnishing a personal bond in the sum of Rs.5000/- with one surety in the like amount with a further direction that the husband and his son and daughter in law would make themselves available for interrogation etc. Ex. PC, PD and PE are certified copies of the bail orders. Ex.PG is the challan and - 4 - Ex.PH is the cancellation report filed in the Court. The genesis of the dispute seems to be a Will which the respondent had executed in favour of his son Rajiv Gupta. PW-2 Sub Inspector Anant Ram has proved the complaint Ex.PB, FIR Ex. PA and cancellation report Ex.PH. PW-3 Hari Krishan Gupta is the nephew of the respondent. He is also a witness to the feud between the parties where the wife was demanding a separate residence etc. Their son Rajiv has also appeared as PW-4 and has testified regarding the lodging of the criminal case etc. The wife appeared as RW-1 and denied the allegations. In addition, one Shri Haminder Lal appeared as (RW-2) to support her case. The learned trial Court, on a consideration of the entire evidence, found that the FIR and the complaint coupled with the fall out of such criminal cases being lodged, resulted in considerable amount of mental tension and torture to the husband. On the entirety of the evidence, the learned Court found that the criminal cases lodged against the husband were false and frivolous. The Court also found as a fact that since the time the wife had kept another girl with her, there was no normal cohabitation - 5 - between the parties and this constituted desertion on the part of the wife as she did not allow access to him to cohabit and live together as husband and wife. Learned counsel appearing for the appellant submits that the respondent has condoned the acts of cruelty as in the year 1997, they performed a Jag (religious ceremony) together in Bilaspur. He further submits that it was the husband who had created a situation whereby the parties could not live together and he could not now take advantage of his own wrongs. He places reliance on the judgment of Hon’ble C.K.Thakkar, C.J. in Prem Chand Sharma v. Smt. Sudershana Sharma 2001 (2) Shim. L.C.91. Before the ratio of this judgment is applied, the appellant has to establish the factual matrix which can be evaluated in terms of the ratio of the judgment. I do not find from the evidence any act committed by the husband which can be construed to mean that he is taking advantage of his own wrong. In fact the evidence on record shows that it is the wife who had created a situation which was intolerable. What was the need of keeping another girl by the wife with her and - 6 - using that as a ploy to deny the husband normal conjugal relations? There is no explanation forthcoming on the record. Surely, it is not normal behaviour to lodge criminal cases against one’s own husband and son and daughter in law and then turn around and say that it is the fault of the husband. So far as the question of inheritance is concerned, she has no right to say that the husband cannot dispose of the property by a testamentary instrument in a manner in which he so chooses. Of course, she would be entitled to her maintenance etc. in accordance with law. The Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 has considered the entire law on cruelty. I find that this case is squarely covered by this judgment. It cannot be said that the acts of the wife, when considered in isolation or conjointly, do not constitute mental cruelty. The wife’s conduct of deliberately abstaining from normal conjugal relations definitely constitutes cruelty and desertion as contemplated by the Act. Her conduct in driving the family, i.e. husband, son and daughter in law, to criminal litigation without justifiable cause, are also abnormal acts and constitute - 7 - cruelty. This appeal is accordingly dismissed. There shall be no order as to costs. June 27, 2008 (PC). (Dev Darshan Sud), J.