FAO No. M-234 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No. M-234 of 2007 Date of Decision : September ,2009 Shri Rattan Singh .......... Appellant Versus Mrs. Manjit Kaur ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Raman Mahajan, Advocate for the appellant. Mr. Dhiraj Chawla, Advocate for the respondent. **** VINOD K. SHARMA, J. The appellant / husband by way of this appeal has challenged the judgment and decree dated 8.9.2007, passed by the learned District Judge, Chandigarh vide which petition filed by the appellant under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') for grant of decree of divorce was ordered to be dismissed. The facts leading to the filing of the petition in brief are :- (1) That the parties were married as per Hindu Rites and Ceremonies on 19.06.1962. From the wedlock, three children were born i.e. FAO No. M-234 of 2007 2 (i) Mr. Kesar Singh (ii) Mrs. Parminder Saini (iii) Mr. Ravinder Saini. All the children were married at the time of filing of the petition, they also have grand children. (2) The house No. 1253,Sector 33-C, Chandigarh, was the matrimonial home of the parties. This house was said to have been purchased through GPA / agreement to sell, with the funds remitted by the appellant, in the name of the respondent. (3) The title of the property, however, in the name of the respondent / wife. (4) The appellant served the India Navy for 20 years and thereafter, did jobs at Dubai for four years and in Germany for two years. (5) From there he remitted money regularly through bank to the respondent with the sole purpose to built up properties and maintenance of his children. (6) The appellant also carried on his own business for about 5 years and also worked with Narula Company for two years, with the Sacred Heart School, Chandigarh for six years and at Chandigarh Club for another six years. He sought the decree of divorce on the basis of cruelty alleging as under :- “(i) He alleges that right from the year 1962 the respondent has treated him with utter disrespect by shouting and yelling at the top of her voice at him. Initially the pinch was not felt FAO No. M-234 of 2007 3 because the appellant remained posted at his work places. Despite patience on the part of the appellant, respondent never realised her mistakes nor ever repented for her foul and imitable temperament towards the appellant and her sons. (ii)The respondent used to assault the appellant even physically on numerous occasions in the very presence of her daughters-in-law and grand children without any cause. This act of the respondent was disgusting and shameful to the appellant as well as to the children and grand children of the parties. In this regard, the respondent used to be controlled, guided and incited by her parental side and by her younger son Ravinder Saini. (iii) The respondent is not allowing the appellant to live in the aforesaid matrimonial home (House No. 1253, Sector 33-C, Chandigarh) and also not allowing the appellant to enjoy the valuables and his clothes lying in the aforesaid house. (iv) Due to mounted pressure of the respondent and her irritable tongue, Kesar Singh, the elder FAO No. M-234 of 2007 4 son of the parties was forced to vacate the aforesaid House No. 1253 and to shift to a rented accommodation in Sector 22, Chandigarh. This separation was unbearable for the appellant and caused him cruelty. On the pursuation of the appellant, Kesar Singh shifted back to house No. 1253 in December 1997. (v) Despite the fact that both the sons of the parties set up their separate kitchens, the respondent started creating differences between them. Her behaviour towards the appellant was very ruthless. Due to this, the appellant was forced to leave the said house in depression w.e.f. 01.05.1998 and took shelter for five years in Nepal for his mental peace and solace. During this period the respondent did not bother to inquire about his whereabouts and well being. (vi) In the absence of the appellant to Nepal, Ravinder Saini younger son of the parties solemnised his marriage without the knowledge of the appellant. (vii) In between, the appellant used to go to Chandigarh and stay with his friends and relations FAO No. M-234 of 2007 5 for a day or so. In the third week of March 2003, the appellant visited House No. 1253, Sector 33-C, Chandigarh. The respondent and his son Ravinder Saini did not allow Kesar Singh elder son of the parties and his wife to stay comfortably in the house. Matter was reported to the police. Due to police intervention Kesar Singh and his wife again opted to move out of House No. 1253. Finding living with the respondent impossible, Kesar Singh, his wife and children subsequently acquired House No. 3230, Sector 27-D, Chandigarh. Life of the appellant on 20.03.2003 was saved from the hands of the respondent and Ravinder Saini due to intervention of the police and the appellant had also to suffer shame. Finding no place to stay, the appellant took shelter at the Punjab Sainik Rest House, Sector 21, Chandigarh for about 3 or 4 days. (viii) On the pursuation of Kesar Singh elder son of the appellant, the later started living w.e.f. 07.10.2003 in House No. 3230, Sector 27-D Chandigarh, purchased by Kesar Singh, as he was not FAO No. M-234 of 2007 6 allowed to stay in his own House No. 1253, Sector 33-C, Chandigarh. (ix) The appellant used to be forced to prepare his meals himself in the kitchen and to wash his clothes and dust his rooms himself without assistance from the respondent and other family members. His presence was felt and required only for making provisions of grocery, clearing of bills etc. Otherwise, the respondent never bothered for the appellant. (x) The respondent has no inclination towards spiritual life. She does not know how to read and write. She cannot, therefore, educate herself through papers or magazines. Consequently, she has got nothing to do except to act wickedly and dubiously. (xi) On one occasion, the appellant learnt that owner of House No. 1254, Sector 33-C, Chandigarh (neighbour of the appellant) had died. The appellant and his son Kesar Singh went to attend the Bhog ceremony. Swelled by fatherly affections and emotions, the appellant decided to meet his younger FAO No. M-234 of 2007 7 daughter-in-law in the matrimonial home (House No. 1253) and his younger son Ravinder Saini to bless them. He was standing at the gate of House No. 1253. The respondent started shouting and yelling at him. At that very time, Ravinder Saini also came outside. He pushed the appellant with force. Respondent and Ravinder Saini both shouted at the appellant and told him that he had no place in House No. 1253. The appellant felt ashamed and belittled in the presence of his younger daughter-in-law, who was a mute spectator. The respondent and Ravinder Saini also assaulted the appellant and did not exchange any niceties even with Kesar Singh. When the appellant tried to enter House No. 1253, by ignoring the respondent, she pushed him out of the house. The appellant was kicked by the respondent and his son Ravinder Saini. Right from 22.12.2003, the appellant waited that the respondent or his younger son might approach him with the request to return to the matrimonial fold, but in vain. All the belongings of the appellant including wearing FAO No. M-234 of 2007 8 clothes are lying in House No. 1253.” On notice the respondent contested the petition. She denied having treated the appellant with cruelty. She also denied having used foul and irritable language towards the appellant and children. It was also pleaded that, in the long absence of the appellant, in the days of very dire financial stringencies, she only knew how she was able to feed and bring them up. It were her parents who supported her in the times of crises. It was pleaded that, the appellant did not contribute a single rupee towards the marriage expenses of the children, further in spite of request by all the family members, he did not attend the marriage of his younger son Ravinder Saini. It was also pleaded case of the respondent that, the appellant used to drink liquor heavily and to physically assault her in front of the children and neighbors. The appellant was only concerned about his carrier and money, while he acquired properties but starved his family. It was the case of the respondent that the children were brought up by her single handed. The appellant used to remit minimum possible and inadequate money from abroad. It was also the case set up by the respondent that, the parties remained together off and on till the service of the appellant in the Indian Navy. They lived together in Bombay, Cochin and Calcutta from 1967 to 1977 and during this period, the appellant used to abuse and physically assault her, but in spite of this she tolerated the behaviour of the appellant and served him with care and devotion. The case set up by the respondent was that in the year 1979, a FAO No. M-234 of 2007 9 7½ marlas plot was purchased in Sector 33-C, Chandigarh. It was built up by her with the assistance of her parents and brothers up to the level of ground floor. The appellant stayed in Dubai for three years when elder son of the parties Kesar Singh was 16 years, Parminder Kaur was 10 years and Ravinder Saini 5 years old. It was also the case of the respondent that, from the year 1980 to 1985, the appellant stayed in Chandigarh but he did not have any money with him. He desired to start transport business and to buy a Matador. He was able to buy it with the financial help rendered by family of the respondent. The appellant started sale of Hosiery garments and had also opened a shop in Zirakpur for this purpose. It was the case of the respondent that she herself used to go to Ludhiana to bring woolen garments to augment the income and sell them from her residence, besides looking after the children and doing all the household work. From 1985 to 1987, after returning from Germany, the appellant tried his hands at various jobs in Chandigarh. He worked at Narula's at a salary of Rs. 1200/- per month. At that time, Kesar Singh was doing L.L.B from Panjab University, Chandigarh, Paraminder Kaur was doing B.Com, from M.C.M., D.A.V., College, Chandigarh and Ravinder Saini was studying in Sector 33 Model School. The appellant used to spend his pension and most of his salary on himself. In order to meet the family expenses half of House No. 1253, Sector 33-C, Chandigarh, was given on rent. As a Swimming Coach in Chandigarh Club, the appellant was getting a salary of Rs. 7,000/- per month. FAO No. M-234 of 2007 10 It was the case of the respondent that, in the year 1989, Kesar Singh completed his Law Course and he started earning and keeping his earnings with himself. He also started drinking liquor and due to this reason, relationship between the appellant and Kesar Singh started deteriorating which led to altercations between the parties. In the year 1992, Parminder Kaur got married and Kesar Singh also got married in 1993 but the appellant did not contribute any money towards the marriages of both the children. This created tension in the family. It was the case of the respondent that, in the April 1993, she got baptized in Sector 34, Gurduwara. The appellant was fond of wine and non- veg food, therefore, did not like the baptism of the respondent. It was the case of the respondent that, in December 1993, the appellant left the house for Nepal and he was brought back to chandigarh by Kesar Singh but again in March 1994, the appellant went to Nepal without informing anybody. It was the case of the respondent that, Kesar Singh, her son and respondent both went to Nepal to bring him back. The respondent further pleaded it was decided that Kesar Singh would move away from the house to avoid altercations with the appellant, for that reason Kesar Singh shifted to a house in Sector 22, Chandigarh in May 1994. In August 1994, Ravinder Saini went to Bangalore for his studies in Hotel Management and during this period, the appellant and the respondent were the only two souls living in House No. 1253. At that time, the appellant was working in the Chandigarh Club. In the year 1997, Ravinder Saini came back to FAO No. M-234 of 2007 11 Chandigarh and started working. The wife of Kesar Singh was expecting her second child in December 1997 and therefore, respondent invited Kesar Singh to return to House No. 1253 for the delivery of his second child. This caused further problems between the appellant and the respondent, as the appellant was not happy with the return of Kesar Singh to House No. 1253. It was also pleaded by the respondent that, on 01.05.1998, the appellant left for Nepal without inquiring about the well being of the respondent. Since September 1997, the appellant totally stopped giving money to the respondent for household expenses, though, he was getting a handsome salary of Rs. 7,000/- per month from the Chandigarh Club, beside monthly pension of Rs. 3,000/- from the Indian Navy. The respondent used to meet the household expenses, with the help of her children. She had to undergo a very tough time emotionally and financially. It was claimed that, she had no source of income, whereas the appellant had bought few plots in Ambala. Before leaving for Nepal in the year 1998, the appellant sold his ancestral property comprising of his house in village Bhabhat near Zirakpur, a shop and land in Zirakpur for substantial amount. The sale proceeds were deposited in the Bank and some part was utilized for purchase of plots. It was the case of the respondent that, appellant had huge bank balance and he tried to buy property in Chandigarh and around. It was pleaded case of the respondent that, the appellant himself stayed away from the family and was not forced to leave the matrimonial home. It was alleged that, the appellant ran away from his responsibilities, FAO No. M-234 of 2007 12 as a husband and a father. It was pleaded case of the respondent that the appellant was a fun loving person with extravagant habits of consuming liquor heavily and then abusing and assaulting the respondent in front of the family without any provocation. The respondent denied that any jewellery or any other valuables belonging to the appellant are lying in House No. 1253. It was also the case of the respondent that, after Kesar Singh, their son, started earning, relations between the appellant and Kesar Singh became bad, as they used to quarrel over money. The appellant wanted, that Kesar Singh should hand over all his earnings to him, which was objected to by Kesar Singh. Kesar Singh was also said to have married out of his own choice and the appellant did not spend any money on his marriage. It was also alleged that, on 10.03.2003, the appellant came to Chandigarh and was supposed to stay with the family for some days. On 20.03.2004, the appellant and Kesar Singh drank up heavily and he took up fight with Ravinder Saini and the respondent. The respondent and Ravinder Saini were beaten up brutally by the appellant and Kesar Singh, the police was called from Sector 34, Police Station. The respondent and Ravinder Saini were hospitalised as they were badly injured. The appellant and Kesar Singh fled, before the police reached, House No. 1253 and returned on the next day. A compromise was arrived at vide which Kesar Singh agreed to shift to a separate residence. It was also pleaded that, the appellant again left for Nepal and did not attend the marriage of Ravinder Saini on 14.07.2003. FAO No. M-234 of 2007 13 It was also the case of the respondent that Kesar Singh purchased his own house in Sector 27-D, Chandigarh and started living there. However, she denied that the appellant was living with Kesar Singh. It was pleaded that, he had stayed with Kesar Singh only for a few days, but due to his indecent behaviour, bad habits of consuming liquor and uttering obscenities in front of his daughter-in-law and grand children, he was asked to leave the house, and was not residing with Kesar Singh. The allegation that the appellant was forced to perform household chores was also denied. It was also the case of the respondent that on 22.12.2003, the appellant came to House No. 1253 and started shouting and abusing at her and Ravinder Saini. He was said to have heavily drunk. This act of the appellant attracted neighbourers and other people, he was pacified and asked to leave. It was pleaded that no belongings of the appellant were left with her, as he had taken away all his belongings. It was also pleaded that, there is a delay of 42 years in filing this petition, as the bad behaviour of the respondent was alleged since 1962. In the rejoinder averments made in the petition were reiterated and those in the written statement were denied. On the pleadings of the parties, the learned Matrimonial Court framed the following issues :- “1. Whether the respondent treated the appellant with cruelty? If so its effect?OPP. 2. Relief.” FAO No. M-234 of 2007 14 In support of the case the appellant examined himself as PW.1, and also examined PW.2 Hukam Singh father-in-law of his son Ravinder Saini. However, Hukam Singh did not appear for cross-examination, thus, only evidence on record is that of the appellant. The respondent, on the other hand, appeared as her own witness as RW.1. She also examined her son Ravinder Saini as RW.2. The learned Matrimonial Court came to the conclusion that, the testimony of the appellant remained uncorroborated on the plea of cruelty. The learned Matrimonial Court held that, the allegations of the appellant were that respondent used to shout and yell at the top of her voice on him since 1962, but the Court found this to be a common feature of normal households, that the spouses do shout and yell at each other on account of different backgrounds from which they come. The learned Court also found that, the allegations of the appellant that she never repented for her foul and irritable temper qua him and her sons could not be accepted as no specific words which were said to have been uttered by the appellant were pleaded or proved. The learned Court also came to the conclusion that Kesar Singh son of the appellant did not appear in the witness box whereas another son Ravinder Saini appeared as RW.2, who had shifted the entire blame on the appellant and supported the case of the respondent. The Court also found that, no specific instance of physical assault by the respondent in presence of his daughter-in-law and grand children was disclosed, except the one at the time of death of a neighbour. FAO No. M-234 of 2007 15 The Court also held that, the allegations of the appellant that he sent money for purchase and construction of house, could not be accepted, as he failed to lead any cogent evidence in support thereof, whereas the house was in the name of the respondent. The learned Court also found that, the evidence on record prove that the appellant could not make up even with Kesar Singh his elder son, thus, held that the respondent had no role to play in this, as respondent was admittedly not staying with Kesar Singh. The learned Matrimonial Court also held that, the allegation of the appellant that he was not being allowed to enter in the house, were denied by the respondent. The Court further held that, the appellant was to stand on his own legs. The appellant utterly failed to prove by way of cogent evidence that, he was treated by respondent with cruelty. Issues No.1 was decided against the appellant. The learned Matrimonial Court held that, the appellant had also moved an application under Section 27 of the Act for directing the respondent to hand over vacant possession of H. No. 1253, Sector 33-C, Chandigarh and other movable properties to him. The learned Matrimonial Court held that, the appellant had failed to prove the ownership, and allegations of cruelty. The application under Section 27 of the Act was also ordered to be dismissed. In view of the finding on issue No.1, the petition filed was ordered to be dismissed. FAO No. M-234 of 2007 16 The learned counsel for the appellant challenged the impugned judgment and decree on the ground that, it was proved and admitted fact on record that the appellant was not allowed to stay in the house, and was turned out by the respondent and Ravinder Saini, his younger son. It is pertinent to mention here, that the fact that the appellant was staying separately due to the allegations and counter allegations between the parties, stood proved on record. The appellant was not permitted to stay in the matrimonial home by the respondent and her younger son, is also not in dispute. In order to ascertain the facts, offer was made to the respondent by this Court to allow the appellant to stay in one room in the matrimonial home i.e. H. No. 1253, Sector 33-C, Chandigarh, but this offer was refused by the respondent. It is, thus, proved on record that, the appellant is not allowed to stay in the matrimonial home, though, the allegations of the respondent are that it was due to the bad behaviour of the appellant that, it was not possible for the family to live with him. Still it cannot be disputed that, appellant has not been allowed to enter the matrimonial home. The act of the wife not allowing the husband to live in the matrimonial home, certainly is an act which constitute both physical and mental cruelty, it therefore cannot be safe for the appellant to live with the respondent in matrimonial home, merely because there was no corroboratory evidence, can not be a ground to reject the evidence led by the appellant in support of allegations of cruelty. FAO No. M-234 of 2007 17 If the evidence led is seen in the context of pleadings of the parties, with the conduct of the respondent in not accepting the offer of the appellant to permit him to live in one room in the matrimonial home, proves beyond doubt that the appellant was treated with cruelty. The other allegations of cruelty were rightly rejected by the learned Matrimonial Court for want of specific particulars and corroboration. It is settled law that even one act of cruelty is sufficient to grant decree of dissolution of marriage. The fact of not allowing the appellant to enter the matrimonial home is one such act. The finding of the learned matrimonial Court on issue No.1 is, therefore, reversed and it is held that the respondent has treated the appellant with cruelty. In view of the reversal of finding on issue No.1, this appeal is allowed, the judgment and decree passed by the learned Matrimonial Court is set aside and the petition filed by the appellant under Section 13 of the Act is allowed. The marriage between the parties is ordered to be dissolved by a decree of divorce. The finding of learned Matrimonial Court on application under Section 27 of the Act is upheld, as admittedly the respondent is registered owner of the property and further the appellant failed to prove any