FAO No.250-M of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.250-M of 2008 Date of decision: 22.09.2009 Ranjit Kaur ..Appellant Versus Jaswant Singh ...Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present:- Mr.J.S.Cooner, Advocate, for the appellant. Ms.R.P.Dudeja, 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. By way of this appeal the appellant/wife has challenged the judgment and decree dated 18.09.2008 passed by the learned District Judge, Ludhiana on a petition filed by the respondent/husband under section 13 of FAO No.250-M of 2008 2 the Hindu Marriage Act, 1955 (for short the Act) for dissolution of marriage on the ground of cruelty and desertion. The parties were married on 13.7.1994 at village Chakohi Tehsil Khanna District Ludhiana according to Sikh rites and ceremonies. The parties lived together and cohabited as husband and wife for few days but no child was born out of this wed-lock. After some weeks the respondent/husband left for Korea. At the time of leaving, the respondent was given warm farewell by the appellant/wife. He had promised her that she would be called to join him at Korea. The case of the respondent/husband was that his life in Korea remained miserable and therefore he could not arrange visa for her. The case set up further was that the wife started neglecting him without reasonable and sufficient cause and she used to give threats to him that if he would not call her to Korea immediately then she would teach a lesson to his family members. He was further informed by the appellant that she had married him only to settle abroad. The case of the respondent further was that the appellant left the matrimonial home with valuable and costly articles without informing her in-laws. In order to harass the respondent the appellant/wife lodged a false complaint against him and his family members which was investigated by SHO Police Station Payal, District Ludhiana which was found to be false and the family members of the respondent were found to be innocent. It was the case of the respondent that the brother of the appellant was serving in police Department and under police pressure she succeeded in getting a false case registered against the respondent and his family FAO No.250-M of 2008 3 members vide FIR No.90 dated 9.8.1997 under sections 498-A/406 IPC at Police Station Sadar Khanna. Allegations in the complaint were said to be false, as also the allegations of maltreatment and cruelty. The case set up was that she did not even spare the minor brother and sister of the respondent. The case of the respondent/husband was that the allegations levelled by the appellant were so harsh, false and concocted which made the life of the family members and the minor brother and sister of the respondent miserable and due to the registration of the FIR the studies and career of both the minors were badly affect. Reputation of the respondent and his family members was also badly affected by the acts of the appellant. It was claimed that the respondent was subjected to mental as well as physical cruelty by her conduct. The respondent/husband returned from Korea in December, 2001 and met the appellant and requested her to resolve the matter amicably but she remained adamant. She rather threatened that she would further implicate the entire family in a false case. On notice petition was contested wherein she denied each and every allegation made against her by the respondent. Stand taken by the appellant was that at the time of marriage the parents of the appellant gave valuable articles, gifts and other dowry articles which were entrusted to Smt. Bhinder Kaur, mother of the respondent. After few days of marriage family members and relatives of the respondent/husband started finding fault with the quality of dowry articles and a demand of motor-cycle was raised. In lieu thereof a sum of Rs.35000/- (Rupees thirty five thousand only) in cash was given to the father of the respondent. It was also pleaded that sufficient dowry was given FAO No.250-M of 2008 4 at the time of marriage and huge shagun was also given by the friends and other members which was kept by the mother of the respondent. Thereafter demand of Maruti car and cash of Rs.1 lac (Rupees one lac only) was raised. She was given physical beating by the respondent and his family members and she was tortured both mentally and physically. It was the case of the appellant/wife that she was turned out of the matrimonial home on 16.12.1994 by the respondent and his family members in three plain clothes after merciless beating. All the dowry articles, Istridhan and gifts of appellant were retained by the respondent and his family members. The parents of the appellant left for Canada and she had to live at parental house with her brother Kuldip Singh and Ranjit Singh. It was pleaded that panchayats were also taken to the house of the respondent but they insisted on the demand of Rs.1 lac (Rupees one lac only) and Maruti case. It was also the case of the appellant that period from July, 1994 to December, 1994 was a period of torture and atrocities and she was so depressed that she even thought of committing suicide. When the parents of the appellant came back to India they approached the respondent for settling her in matrimonial home but they were shocked to know that the respondent had gone out of India. She was treated like a maid servant in the matrimonial home and it was due to the acts of the respondent and his family members she lodged an FIR. The plea of the respondent and his family members for quashing the FIR was dismissed except against the minors. The application moved by her under section 18 of the Hindu Adoption and Maintenance Act was also accepted but despite the order the FAO No.250-M of 2008 5 respondent did not pay any maintenance to her. In order to defeat her rights the respondent suffered a collusive decree in favour of his mother qua his land. The said decree also stands challenged. In the replication averments made in the petition were reiterated whereas averments made in the written statement were denied. On the pleadings of the parties the following issues were framed by the learned Matrimonial Court:- 1. Whether the petition filed by the petitioner is suffering from delay and latches? OPR 2. Whether the respondent has treated the petitioner with cruelty? OPP 3. Relief. In support of his case the respondent herein examined PW 1 Harbans Singh alias Bansa , PW 3 Nirbhai Singh, PW 4 Piara Singh, PW 5 Avtar Singh, PW 6 Amarjit Singh and he himself appeared as PW 2. The appellant wife examined RW 1 Gurbachan Kaur, RW 3 Charan Singh, RW 4 Zora Singh, RW 5 Gurdev Singh, RW 6 Kuldeep Singh and she herself appeared as RW 2. She also tendered in evidence copy of FIR Ex.R.1, copy of the order passed by the High Court Ex. R 3, copy of the order awarding maintenance Ex.R 4, decree sheet Ex.R.5, copy of plaint Ex.R.6, copy of another plaint Ex.R..7, copy of the statement of Harbans Singh Ex.R.2 and affidavit of respondent Ex.R 1/A. She thereafter moved an application for additional evidence which was allowed and she placed on record copy of the judgment Ex.R.6, whereby the respondent and his family members were convicted and FAO No.250-M of 2008 6 sentenced by the Criminal Court. Issues No.1 and 2 were taken up together. On appreciation of evidence learned matrimonial court was pleased to hold that registration of FIR No.90 dated 9.8.1997 under sections 406/498-A IPC against the respondent and his family members including his minor sister Pardeep Kaur aged 12 years and minor brother Rup Singh was an act of mental cruelty, as the Hon'ble High Court had quashed FIR against both the minors. However, subsequently order against Rup Singh, bother of the respondent was recalled and order qua Pardeep Kaur minor sister was kept intact. Learned matrimonial court reproduced observation made by this court in the quashing petition and held that implication of minor sister Pardeep Kaur in a false case resulted in great mental pain and agony to the respondent. The registration of the FIR could be a hurdle in solemnization of her marriage. Learned matrimonial court also held that due to registration of the case study and career of minor sister Pardeep Kaur and brother Rup Singh was badly affected, as they were unable to attend to school and studies properly. This act again resulted in mental cruelty to the appellant. The learned matrimonial court also held, that from the evidence it was established that the appellant lived only for a few days at the house of the respondent, thereafter he went abroad by assuring to call her. In his absence she started neglecting the family members and got registered an FIR. The learned matrimonial court also held that in view of the stand taken by the appellant regarding her miserable stay in the matrimonial home could lead to a conclusion that it was the appellant who FAO No.250-M of 2008 7 deserted the respondent and treated him with cruelty. The court further found that the allegation of demand of dowry, and that she was given beating by the respondent and his family members were ill-founded. The respondent on return to India had surrendered himself in court and was remanded to police custody and then to judicial custody. The learned matrimonial court held that torture by the Police amounted to great mental tension and harassment. The learned court found that in view of the litigation between the parties and further that there was no cohabitation for the last 14 years it was practically a dead marriage. The learned matrimonial court found that the stand taken by the appellant in the written statement, that due to torture she thought of committing suicide showed that she had suicidal tendency and therefore, this amounts to mental torture. The learned matrimonial court found that the evidence led by the appellant/wife did not inspire any confidence. Thus, both the issues No.1 and 2 were decided in favour of the respondent and decree of divorce was passed. Mr.J.S.Cooner learned counsel appearing on behalf of the appellant has challenged the impugned judgment and decree of the learned court below on the ground that the learned matrimonial court has taken the registration of criminal case to be an act of cruelty and mental tension, to the respondent. Furthermore, the allegations levelled by the appellant in the written statement about the demand of dowry was taken as subsequent event which itself amounted to mental cruelty. These findings being totally perverse deserved to be set aside. The contention of the learned counsel for the appellant was FAO No.250-M of 2008 8 that the registration of the FIR has resulted in the conviction of the respondent and his family members and therefore, the allegations could not be said to be false to hold that filing of criminal complaint amounts to mental cruelty. In support of this contention, learned counsel for the appellant placed reliance on the judgment of this court in the case of Radha Rani Vs. Har Bhagwan 2005 (1) Civil Court Cases 570, wherein this court was pleased to lay down as under:- “8. No doubt, it is correct that the relations of the wife have been convicted for an offence under Section 323 IPC and sentenced to pay a fine of Rs.300/-each but the fact remains, that there was no allegations against the appellant in the said proceedings. The effect of the actions of the brothers of the wife cannot fall on the appellant. Still further reliance of the learned trial court on the judgment in FIR lodged by the wife for an offence under Sections 498-A and 323 IPC is not sufficient to hold that the wife has treated the husband with cruelty. Initiation of legal proceedings for the redressal of the rights or for punishment to the wrong doer cannot be said to be acts of cruelty. No proceedings have been initiated against the wife to the effect that the prosecution by her was malicious. Similarly because she was not able to prove her allegations beyond a reasonable doubt so as to warrant the conviction does not mean that the allegations have caused cruelty. The judgment of the criminal court is only relevant to the effect that FAO No.250-M of 2008 9 the husband is acquitted but was acquitted from criminal proceedings by giving benefit of doubt cannot be termed as acts of cruelty.” It is well settled law that filing of a false criminal complaint and false prosecution is an act of cruelty, however, merely filing of a criminal complaint for redressal of grievance cannot be said to be an act of cruelty, which could entitle the other spouse to seek a decree of divorce. It is also well settled law and especially in view of the provisions of section 23 of the Act that a party cannot be allowed to take benefit of his/her own wrong. Husband and his family members cannot subject the wife to torture and humiliate her for want of dowry, and thereafter, on filing of FIR claim a decree of divorce. Learned matrimonial court completely ignored the fact that the respondent and his family members stood convicted by the criminal court, therefore the allegations of the wife could not be said to be totally false. Even acquittal by giving benefit of doubt does not entitle a spouse to get a decree of divorce on the basis of registration of a criminal case. It is only when the prosecution is held to be motivated, mala fide and false that the act of the wife can be taken, to be one amounting to cruelty. Learned matrimonial court further was wrong in holding that marriage being irretrievably broken down, being dead was liable to be dissolved by a decree of divorce. This finding of the learned matrimonial court is contrary to law laid down by this court in the case of Amarjit Kaur Vs. Gursewak Singh, 2009 (1) Marriage Law Journal 66 and Usha Rani Vs. Sham Lal 2009 (1) Marriage Law Journal 440. FAO No.250-M of 2008 10 It may further be noticed here that the learned matrimonial court though discussed the evidence led by the respondent in detail , but brushed aside the evidence of the appellant by merely mentioning that it did not inspire confidence, tough a judgment of criminal court was placed on record showing conviction of the respondent and his family members. Findings of the learned matrimonial court,therefore are perverse and deserves to be set aside. For the reasons stated above, findings of the learned matrimonial court on issue No.2 are reversed, and consequently this appeal is allowed, judgment and decree passed by the learned matrimonial court is set aside. The petition filed by the respondent/husband under section 13 of the Act is ordered to be dismissed but with no order as to costs. (Vinod K.Sharma) 22.09.2009 Judge rp