FAO No.62-M of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.62-M of 2006 Date of decision: 5.11.2009 Smt.Poonam ..Appellant Versus Surender Kumar ...Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present:- Mr.Sanjay Verma, Advocate, for the appellant. Mr.Amit Jhanji, 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. This appeal is by the appellant/wife against the judgment and decree dated 4.1.2006 passed by the learned Additional District Judge, Jagadhri vide which petition filed by the appellant under section 13 of the FAO No.62-M of 2006 2 Hindu Marriage Act, 1955 was ordered to be dismissed. The marriage between the parties was solemnized on 9.6.2002 according to Hindu rites and ceremonies at village Fatehpur Tehsil Jagadhri District Yamunanagar. It was pleaded by the appellant that immediately after the marriage the respondent and his family members started maltreating the petitioner for bringing less dowry and raised a demand of colour TV and refrigerator. It was further pleaded that on account of poverty of her parents as she could not meet the demand she was beaten mercilessly. It was also pleaded that after 4 days of the marriage in the presence of her brother Subhash Chand and his wife Rani Devi who had come to her matrimonial home to see her, a demand of TV and fridge was reiterated. On their refusal to meet the demand, her in-laws misbehaved with them also. It was also the case of the appellant that even at the time of Phera ceremony i.e. after 9 days of marriage the demand of TV and fridge was raised. It was pleaded by the appellant that when the father of the appellant intervened in the matter, an assurance was given that the respondent and his family members will not raise any demand in future and would keep the appellant properly, but on her return to matrimonial home demand was again repeated and she was beaten and kept without food for a number of days. It was alleged that after 15 days of marriage an attempt was made to strangulate her, but she managed to save her life by bolting herself in a room. The case set up by the appellant further was that she was given beating and turned out of matrimonial home on 29.6.2002 and told that unless and until TV and fridge was brought from her parental home she FAO No.62-M of 2006 3 would not be kept at the matrimonial home. Attempts made for reconciliation also failed because of the fact that the respondent and his family members were adamant with their demand. A case under sections 498-A/406 IPC was got registered against the respondent and his family members. On the allegations referred to above divorce was sought on the ground of cruelty and desertion. The petition was contested. While admitting the factum of marriage all other allegations levelled were denied. It was specifically denied that the respondent or his family members ever raised the demand of TV or fridge or any other dowry articles. Allegations regarding cruelty were also denied. It was pleaded that from the very beginning the appellant wanted to live separately from other family members for which the respondent did not agree but instead of understanding the problem she started quarreling with him on petty matters. It was also denied that the appellant was turned out of the matrimonial home. Rather the stand taken was that he appellant had left the matrimonial home without any reasonable cause. On the pleadings of the parties learned matrimonial court framed the following issues:- 1. Whether the respondent is guilty of cruelty so as to grant divorce under section 13 of the Act? OPA 2. Relief. Both the parties led evidence in support of their respective claims. FAO No.62-M of 2006 4 The appellant supported her case as set up in the petition and examined one Sandeep Jain Criminal Ahlmad of the court of Shri Virender Malik Judicial Magistrate to prove that a case under sections 406/498-A IPC was pending against the respondent. The version given by her was also supported by PW 2 Rani Devi i.e. brother's wife of the appellant. She also examined her brother Subhash Chand as PW 4. Evidence was led by the respondent to disprove the allegations made in the petition. In support of his version he examined Pala Ram of village Chharpura as RW 3, Tara Chand for village Indergarh as RW 4 and Balabir Singh of village Indergarh as RW 5. He also examined Jas Lal RW 2 i.e. real brother of the appellant besides Puran Chand of village Satango as RW 6. On appreciation of evidence learned matrimonial court was pleased to record the finding against the appellant by taking into account the fact that the mother of the respondent was blind and that real brother of the appellant had categorically stated that no demand of dowry was made. Rather it was the appellant who was pressurizing the respondent to live separate. The only allegations levelled against RW 2 were that he was living separately from the family and was not on a speaking terms with them. The leaned matrimonial court also noticed that whereas the respondent had examined independent witnesses, the appellant failed to examine any independent witness in support of her case, except examining his brother and sister-in-law, who were certainly interested witnesses. On appreciation of evidence referred to above learned matrimonial court decided issue No.1 against the appellant and FAO No.62-M of 2006 5 consequently dismissed the petition. Mr.Sanjay Verma, learned counsel appearing on behalf of the appellant vehemently contended that the judgment and decree passed by the learned matrimonial court is liable to be reversed in view of the fact that there was evidence on record to show that the appellant was maltreated on account of the demand of dowry. He referred to the affidavit filed by the appellant in support of her case and also referred to the statement of PW 2 Raj Rani wife of Subhash Chand to contend that the demand of dowry stood proved by the evidence. The evidence coupled with the fact that the FIR against the respondent and his family members was registered, proved the harassment on account of dowry. This act constitutes cruelty, therefore, the appellant is entitled to the decree of divorce. Mr.Amit Jhanji, learned counsel appearing on behalf of the respondent, however, supported the judgment and decree on the plea that the allegations of cruelty were on the face of it vague and stood disproved by the independent witnesses examined by the respondent/husband. He referred to the statement of the respondent's witnesses to show that the version of the respondent to rehabilitate the respondent had failed due to the adamant attitude of the appellant. On consideration of matter, I find force in the contention raised by the learned counsel for the respondent. It cannot be disputed that maltreatment of a wife by demand of dowry amounts to mental and physical cruelty but the mere allegations which are not proved cannot be a ground for grant of divorce. In the present case it was rightly held by the learned matrimonial court the appellant FAO No.62-M of 2006 6 besides herself examined interested witnesses i.e. her brother and sister-in- law, whereas the evidence led by the respondent was of independent witnesses including real brother of the appellant who categorically stated that there was no demand of dowry or harassment by the respondent or his family members. Even otherwise, it is proved on record that the appellant lived with the respondent only for a period of 20 days, where the relation of the respondent was also married to her brother, therefore, there was hardly a reason for the respondent to demand dowry, or harass the appellant. It is also pertinent to notice here that the allegations were totally vague and lacked material particulars, whereas the stand of the respondent was more probable and inspired confidence, especially when it is supported by independent evidence. No fault, therefore, can be found with the finding recorded by the learned matrimonial court on issue No.1, holding therein that the appellant had failed to prove cruelty to entitle her to a decree of divorce. The appeal being without any merit is ordered to be dismissed, but with no order as to costs. (Vinod K.Sharma) 5.11.2009 Judge rp