FAO No.376-M of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.376-M of 2010 (O&M) Date of decision:8.8.2011 Narinder Kaur ...Appellant Versus Sukhwinder Singh ...Respondent CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Sanjeev Manrai, Advocate, for the appellant. Mr.Ashit Malik, Advocate, for the respondent. -.- JITENDRA CHUAHAN, J. The present appeal is directed against the judgment and decree dated 21.10.2010 passed by the learned District Judge, Kurukshetra, whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (for short `the Act') filed by the respondent was allowed. The brief facts of the case as pleaded in the divorce petition are that the marriage between the parties was solemnized on 27.2.1993. From the wedlock, two children were born. The petitioner was serving with a co- operative society at Jalgaon (Maharashtra) and used to visit his native place during vacation. The behaviour of the appellant was improper towards the petitioner, his parents and children. She never performed household duties with devotion. The mother of the respondent used to cook and other FAO No.376-M of 2010 2 household work. Besides this, the appellant neglected the children as well. The respondent left his job in the year 2002, hoping some change in the behaviour of the respondent. The respondent owns ½ acres of land at his native village Diwana. As the respondent left his job, the earning of the family decreased. Due to this, the respondent became further harsh and arrogant. She even started beating the children. The appellant was encouraged by her mother as well as her sister for such type of activities. The appellant would frequently go to her parents without any intimation to her husband and other family members. It was also pleaded in the petition that the appellant involved herself in Tantrik activities. On 12.3.2005, the appellant left her matrimonial home in the absence of the respondent and took away all the valuable ornaments with her. The respondent tried his level best to rehabilitate the appellant. A panchayat was also convened, but no settlement could be achieved. In these circumstances, the respondent filed the petition under Section 13 of the Act. The appellant -wife filed the reply and stated that she was still ready and willing to join the company of the respondent. The respondent always refused to keep her as his wife despite many efforts made by her, through convening the Panchayats. The family members of the respondent repeatedly raised the demand of dowry on not being able to fulfill their demands, they started harassing her. She was beaten up by her husband and was thrown out from the matrimonial home during night hours. The appellant also pleaded that the respondent-husband had illicit relations with sister-in-law, namely Darshan Kaur (brother's wife of the respondent). The appellant also took the stand that due to the behaviour of the respondent, she also filed a petition under Section 12 of the Protection of Women from FAO No.376-M of 2010 3 Domestic Violence Act, 2005. After framing of issues and allowing the parties to lead evidence, the trial Court vide judgment and decree dated 21.10.2010 accepted the petition of the respondent and granted a decree of divorce on the ground of cruelty and desertion. Hence, the present appeal has been preferred by the appellant. Learned counsel for the appellant has submitted that petition of divorce was preferred by the respondent after a gap of 15 years of the marriage with the allegation that the behaviour of the appellant was improper towards the parents of the respondent as well as children. It has further been submitted that the appellant has been visiting various `tantriks' in order to appease the souls and with a hope that this will give untold material richness. Learned counsel has also submitted that the appellant bore all the expenses of the studies and upbringing of her children inasmuch as Prabhjot Singh was studying in 10th class and Simran Kaur was a student of 8th class. The respondent-husband has been negligent and has not even care to provide sustenance and maintenance to the appellant-wife or to bear the expenses for the maintenance of the children. In the application under Section 12 of the Domestic Violence Act, it has been also alleged that the respondent is living a life of adultery and has illicit relations with Darshan Kaur, the wife of respondent's brother. It has also been submitted that the respondent never made any effort to rehabilitate the appellant, who gave birth to two children. Learned counsel has also submitted that the children deposed against the wife as they were under the control and supervision of their father-respondent. The FAO No.376-M of 2010 4 appellant was thrown out from the matrimonial home as she failed to fulfill the demand of dowry raised by the respondent. On the other hand, learned counsel for the respondent-husband has submitted that there is no positive proof, which suggests that the respondent ever raised any demand for dowry. The appellant-wife left the matrimonial home at her own accord. He has further submitted that in the beginning the respondent used to pay handsome amount to the appellant for day to day expenses. However, the appellant never performed household work including cooking. Besides this, the appellant involved herself in witchcraft activities, due to which, the atmosphere of the family was polluted, which is evident from the statements of the children. I have heard the learned counsel for the parties and perused the record with their able assistance. This Court made efforts to see unite the litigating couple, but the effort ended into failure, as the parties refused to appreciate the view point of each other. In the circumstance, this Court has no option but to proceed further on merits. From the perusal of record, it is made out that the appellant left the matrimonial home at her own will on 12.3.2005. There is nothing on record to suggest that she ever tried to contact the respondent or make an effort to meet the children to find out their welfare. The appellant never filed a petition for handing over the custody of minor children, after she left the matrimonial home. It is also made out from the perusal of record and the statements of the children Simran Kaur, PW5 and Parabhjot Singh, PW6 that the appellant had been visiting various tantriks without permission of her husband and other family members. The children also deposed that FAO No.376-M of 2010 5 their mother was never beaten or maltreated by their father. The allegation of living an adulterous life by the respondent with one Darshan Kaur also does not inspire confidence as she is none-else, but the sister-in-law of the respondent and residing happily with her husband and other members of the family. The appellant did not refer to any instance to the effect that the respondent and Darshan Kaur were ever seen in objectionable manner. The false allegation of this nature having illicit relations with the wife of his brother constitutes mental cruelty. The application under Section 12 of the Protection of Women from Domestic Violence Act filed by the appellant is the counter blast of divorce petition filed by the respondent. The appellant never filed a complaint with the allegation that she was beaten up by her husband. The husband filed divorce petition on 25.7.2008. On coming to know about filing of this petition by the husband, she filed petition under Section 12 of the Protection of Women from Domestic Violence Act on 12.8.2008. Mental cruelty as examined by the Hon'ble Supreme Court in Parveen Mehta vs. Inderjit Menta (2002) 5 SCC 706, thus:- “Cruelty for the purpose of Section 13(1)(ia) is to be taken as behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioral pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and FAO No.376-M of 2010 6 circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.” Keeping in view the statements of the children and the conduct of the wife/appellant, I feel that mental cruelty and desertion on the part of appellant is proved. In the circumstances, it is not possible for the husband/respondent to live with the wife/appellant. In rejecting the stand of the wife that she wants to live with her husband, this Court observed that she was deliberately feigning a posture, wholly unnatural and beyond comprehension of a reasonable person. For the reasons mentioned above, the present appeal is dismissed. The impugned judgment and decree is maintained. Although, the respondent/husband is maintaining two children, yet, this Court grant permanent alimony of `4,000/- per month to the appellant- wife under Section 25 of the Act , keeping in view her age and FAO No.376-M of 2010 7 the fact that she has not contacted second marriage, from the date of decree of divorce i.e. 21.10.2010. 9.8.2011 (JITENDRA CHAUHAN) mks JUDGE Note: Whether to be referred to the Reporter? Yes / No