FAO No.M-150 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.M-150 of 2010 Date of decision : 20.07.2011 Rajnish Kumar .......Appellant Versus Manvi .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Sanjay Mittal, Advocate, for the appellant-husband. Mr. Hitesh Pandit, Advocate, for the respondent-wife. **** JITENDRA CHAUHAN, J. (ORAL) The present appeal is filed by the husband-appellant, against the judgment and decree passed by the learned Additional District Judge, Narnaul, vide which petition under Section 13 of the Hindu Marriage Act, for dissolution of marriage, was dismissed on 3.03.2010. The brief facts, as per the record, are that the marriage of the appellant was solemnized on 23.06.2004, with the respondent-wife, as per the Hindu rites and ceremonies, at Narnaul. It was a simple marriage. The parties lived together as husband and wife, however, no issue was born. It was alleged that the respondent-wife is a quarrelsome lady and soon after the marriage, she started quarreling with the appellant and his family. The FAO No.M-150 of 2010 -2- respondent-wife did not attend to the domestic work and threatened to go back to her parental home. The appellant apprised the parents of the problem faced by him, but he was not properly treated. Rather, they pressurized the appellant to set up a separate household, away from his parents. Keeping the suggestion in view, the appellant shifted to Gurgaon, but the behaviour of the respondent-wife did not change. She did not cook, carried out the household work and kept quarrelling with the appellant- husband. She threatened to implicate him and his family members in a dowry case. It is further alleged that the wife insulted the husband in the presence of the family and friends. She pressurized the husband to reside with her parents as live-in husband, as she has no brother. It is further alleged that the respondent refused to perform marital obligations and left the matrimonial home on 30.06.2005 along with her ‘Istridhan’, in the absence of the appellant. She refused to take up the calls made by the appellant. When the appellant-husband went to bring her back, she refused to join him and insisted him to stay as Live-in-Son-in-law, ‘Ghar Jamai’. The Panchayats were convened by the husband but no fruitful result could be achieved. It is alleged that the appellant-husband was slapped and was turned out of the parental house of the respondent-wife in the presence of the Panchayat. The respondent contested the petition, wherein it was alleged that a sum of Rs.4.00 lacs was spent on the marriage. After 2-3 months of the marriage, the appellant-husband and his family members started taunting the respondent for bringing less dowry and the agreed amount a lac of rupees. She was regularly beaten up by the appellant. After 2-3 days of the marriage, the husband conveyed his displeasure that the motorcycle given in FAO No.M-150 of 2010 -3- the marriage was not according to his expectation. In the month of December, 2004, the issues were settled, and she joined the respondent on Makar Sakranti Day. She was given beatings by the appellant and his family members and was not provided food. The respondent conveyed her family of the problems faced by her. The respondent was sent to her house in wearing apparels. The allegations made in the divorce petition regarding cruelty were denied by the wife. It is alleged that the father of the respondent tried his level best to settle her daughter but the husband and his family members demanded dowry of Rs.10.00 lacs, upon which FIR No.13 dated 12.1.2007 u/s 498-A, 496-A, 34, IPC, was got registered against the appellant and his family members. From the pleadings of the parties, the following issues were framed:- 1. Whether the petitioner is entitled to a decree of divorce on the ground mentioned in the petition ? OPP 2. Relief. After examining the evidence adduced by the parties, the learned District Judge, Karnal, vide judgment dated 3.3.2010, dismissed the divorce petition. Hence, husband appellant came up in the present appeal. The learned counsel for the appellant-husband argued that the respondent-wife treated the appellant with cruelty. He has drawn the attention of this Court to the testimony of appellant, PW1; Om Prakash, PW2; Ashok Kumar, PW3; Parmod, PW4; and Ramesh Kumar, PW5 (father). He argued that the respondent-wife pressurized the appellant to become Ghar Jamai, her behaviour towards the appellant and his family FAO No.M-150 of 2010 -4- members was rude. The learned counsel further argued that on 01.07.2005, the respondent deserted the appellant-husband. The learned counsel has also drawn my attention to the copy of FIR registered against the husband and his family members. On the other hand, the learned counsel for the respondent-wife submits that the wife is still ready and willing to accompany the husband. The learned counsel further submits that the judgment and decree of the learned Additional District Judge is well reasoned. I have heard the learned counsel for the parties. The point for determination in this appeal is as to whether the husband has established the grounds of cruelty and desertion. In Parveen Mehta Vs. Inderjit Mehta, (2002) 5 SCC 706, ‘Mental Cruelty’ has been examined as under:- “Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by only 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 behavioural 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 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 FAO No.M-150 of 2010 -5- 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 misbehaviour 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 subject to mental cruelty due to conduct of the other.” No hard and fast rule can be laid down as to the acts and conduct which will amount to cruelty; cruelty in one case may not be so in another case it may be. In order to decide whether legal cruelty is established the Courts have to consider the various factors. The onus to prove cruelty lies on the spouse who alleges it. This Court, with the assistance of the counsel for the parties, has gone through the evidence on record. The appellant-husband has failed to prove cruelty. In his petition, he alleged the refusal of the wife to do domestic work, constituting cruelty. No specific instance has been given. Each spouse can discover many a cause for complaining against the other but these arise mostly from incompatible temperaments; These do not amount to cruelty and furnish no cause for dissolution of marriage; It is only grave incidents which cause reasonable apprehension in the other spouse’s mind which amount to cruelty; whether it is cruelty or not depends on the Court’s objective satisfaction, not the complainant’s subjective satisfaction. FAO No.M-150 of 2010 -6- To constitute cruelty, the act and conduct of the other spouse should be such that it becomes impossible to live together. The acts and conduct of the wife raised by the appellant refers only to normal wear and tear of matrimonial life. The refusal to do domestic work is not of such type of cruelty which may be treated as legal cruelty. The next argument of the learned counsel for the appellant that the wife got registered an FIR against the appellant and his family members, is not a ground for divorce, because the wife is seeking remedy available to her under law. No wife would like to break her matrimonial life unless and until there are compelling circumstances. If the contents of the complaint or FIR lodged by the wife are true and correct, and based on true facts, it cannot amount to an act of cruelty. In Ravinder Kumar Vs. Nirmal, 1995 (3) PLR 364, it was held as under:- “Where the husband sought divorce on the ground of the cruelty said to have been perpetrated upon him by the wife having filed a “false” complaint against him under Sections 406 and 498-A of the Indian Penal Code, held, in view of the fact that the criminal complaint still pending, it could not be said to be false; the wife was entitled to safeguard her interest and fight for her rights if the husband had, without any just and reasonable cause, maltreated and turned her out of the matrimonial home.” There is no document on the file to show that the criminal proceedings initiated on the complaint by the wife terminated in the honourable acquittal of the husband and his family members. FAO No.M-150 of 2010 -7- The next argument of the learned counsel for the appellant- husband is that the wife had been compelling appellant to reside with her family as ‘Ghar Jamai’, also does not inspire confidence. In Syed Abdul Khader Vs. A K thari Sultana and another, 2006(2) RCR (Crl.)) 130, it was held that if the wife is not leading peaceful life in the family of the husband, marital life demanding privacy and comforts and the wife is justify to insist on putting up a separate family. A suggestion by the wife to the husband to live separately from his parents by itself would not amount to cruelty merely because it results in some sort of mental torture of the husband. Every unhappiness in marriage by itself is not cruelty in law. The last submission of the learned counsel for the appellant that the wife insisted upon him to live as ‘Ghar Jamai’, appears to be an afterthought. If the in-laws intended to keep their son-in-law as Live-in son-in-law, ‘Ghar Jamai’, such an intention would have been disclosed at the time of settlement of the relationship. The ground that the wife insisted the husband to live as ‘Ghar Jamai’ is not established. The evidence lead on the point of cruelty is not convincing. The best witnesses in such cases are always the inmates of the house. But the husband-appellant has failed to establish the ground of cruelty. He examined his father, Ramesh Kumar, PW5, who states that he has not visited Gurgaon, where the parties shifted. Now, coming to the ground of desertion, it is settled law that desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the consent and reasonable cause. It is a total repudiation of the obligations of marriage. Animus deserendi is an absolutely essential ingredient of desertion for obtaining divorce on that FAO No.M-150 of 2010 -8- ground; it postulates a determination to put an end to the relationship of marriage; mere absence, howsoever long, from the matrimonial home does not necessary terminate the marital relationship. To constitute desertion mere separation is not sufficient. In addition, the necessary animus also has to be proved. In this case, the conduct of the husband-appellant cannot be ignored. A party cannot get benefit of his own wrongs, committed by him towards his other spouse. Admittedly, a criminal trial against the husband- appellant and his family members were initiated at the instance of the wife, wherein serious allegations of demand of dowry etc. were made. In the circumstances, separate residence of wife at her parental home, appears to be justified. The husband cannot take it as a ground for separation to seek divorce from the wife. There is no infirmity in the judgment and decree of the learned Additional District Judge, dismissing the divorce petition filed by the husband. Resultantly, this appeal fails and is dismissed with no order as to costs. ( JITENDRA CHAUHAN ) 20.07.2011 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No