FAO No.189-M of 1999 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.189-M of 1999 Date of Decision : 21.07.2011 Veena Jain .......Appellant Versus Ashok Kumar Jain .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Amit Jain, Advocate, for the appellant. Mr. K.S. Bassi, Advocate, for the respondent. **** JITENDRA CHAUHAN, J. The appeal in hand has been filed by the wife against the impugned judgment and decree dated 02.11.1999, passed by the learned Additional District Judge, Chandigarh, vide which, the marriage between the parties has been dissolved by a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short ‘the Act’. Brief facts of the case in hand are that the respondent- husband, Ashok Kumar Jain, preferred a petition under Section 13 of the Act, before the learned Additional District Judge, Chandigarh, seeking decree of divorce for dissolution of marriage. In his petition, 1 FAO No.189-M of 1999 the respondent-husband has levelled very serious allegations of mental cruelty, physical assault and desertion against the appellant-wife, not only towards him and his family members, but also towards the children born out of the wedlock. Several instances and incidents of such cruelty find narration in the main petition. However, keeping in view the nature and language used, this Court feels that it may not be in the fitness of things to reiterate the same as many such incidents have been mentioned which cross the limits of decency. The wife contested the petition denying all the allegations of cruelty and pleaded that the husband asked her to bring `2.00 lacs for the treatment of her father-in-law and on her refusal, she was mercilessly beaten up. She was ousted from her matrimonial home and was threatened that if she returns back, she would be murdered. From the pleadings of the parties, following issues were framed :- 1. Whether after the solemnization of the marriage of the parties, the respondent has treated the petitioner with cruelty ? OPP. 2. Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition ? OPP. 3. Relief. In order to prove his case, the respondent-husband, Ashok Kumar Jain, appeared in the witness box and supported his case. PW2, Arun Jain, brother of the respondent, and PW3, Aman 2 FAO No.189-M of 1999 Jain, son of the respondent, also appeared and supported the case of the husband. Sohan Singh, Head Constable, appeared as PW4, and stated that the DDR summoned from his office has since been destroyed. PW5 Krishan Kumar, Clerk, PGI, proved that Pawan Kumar, son of T.C. Jain was admitted in the hospital on 4.5.1994 and was discharged on 14.6.1994. Pawan Kumar Jain, father of the respondent also supported the allegations against the appellant-wife. On the other hand, the appellant-wife appeared as RW1, and produced Kailash Kumar Jain, her brother, as RW2, and Prem Chand Jain, her uncle, as RW3. Issue No.1 was decided in favour of the respondent- husband by holding that the appellant-wife had treated the husband with cruelty. While deciding issue No.3, it was held that the petition, on the ground of desertion, is premature. Resultantly, the divorce petition filed by the respondent-husband was allowed and the marriage between the parties was dissolved by a decree of divorce. Aggrieved against the judgment and decree dated 2.11.1999, the appellant-wife preferred this FAO for setting aside the same, which was admitted on 8.12.1999. Learned counsel for the appellant wife argued that the respondent husband had filed the divorce petition on the ground of cruelty and desertion. The issue of desertion has already been decided against the husband. Now, the only ground available to the husband is the alleged conduct of cruelty. It is an admitted fact that in March 1994, the husband had arranged a family pleasure trip to a hill station and condoned the earlier acts of cruelty of the wife. So, the ground of 3 FAO No.189-M of 1999 cruelty also evaporated. On 1.5.1994 she was ousted from the matrimonial home for which there was no ground. So, the petition for divorce filed by the husband deserves to be dismissed on the sole ground of condonation. The counsel for the appellant further argued that the husband demanded a sum of Rupees Two Lacs from the wife which had created a rift in the family life of the parties. This fact has been proved by RW2 Kailash Kumar Jain, brother of the appellant- wife and RW3 Prem Chand Jain, uncle of the wife. The learned counsel further argued that PW3 Aman Jain, son of the parties, is a tutored witness and his testimony cannot be relied upon. On the other hand, the learned counsel for the respondent husband has drawn attention of this court to Ex.R.1 DDR No.15 dated 13.6.1994 and Ex P.4 MLR which proves that during the pendency of this divorce petition the appellant wife has tried to forcibly enter the house of the husband and there was no condonation of acts of cruelty. There are numerous incidents of cruelty after March 1994 i.e. abusing the parents, then hitting the son with a flying bottle, injuring the petitioner with burning hot fry pan, and roaming all alone at mid night. The learned counsel further argued that even if the cruelty continues after reunification, the prior cruelty will be taken into consideration and cannot be ignored. He cites Smt Krishna Rani vs Chuni Lal Gulati- AIR 1981 Punjab & Harman 119, on this point. I have heard the learned counsel for the parties and carefully gone through the entire lower court record with their able assistance. 4 FAO No.189-M of 1999 Hon'ble the Supreme Court in the case of ‘Parveen Mehta vs Inderjit Mehta (2002) 5SCC 706’ defined 'Cruelty' as under:- “Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour of 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 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 assign the attending facts and circumstances in which the two partner 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 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 circumstance emerging from the evidence on record and then draw a fair 5 FAO No.189-M of 1999 inference whether the petitioner in the divorce petition has been subject to mental cruelty due to conduct of the other.” PW3 Aman Jain, who is the son of the parties, aged about 18 years on 17.1.1998, i.e., the date of his deposition, stated that “We do not want to live with our mother at any cost and would prefer to die rather than living with her”. From both the sides, blood relations appeared as witnesses to support the case of his/her kith and kin. PW1 Arun Jain, is brother of the husband while PW6 Pawan Kumar Jain, is father of the husband. Similarly RW2 Kailash Kumar Jain, is brother of the appellant-wife, while RW3 Prem Chand Jain, is uncle of the wife. PW2 Ashok Jain, is the husband, while RW1 Smt Veena Jain, is the wife. Their testimonies are testimony versus testimony. For the sake of arguments, if we ignore the entire testimony of the interested witnesses and that of the parties, there is no reason to ignore the testimony on oath of PW3 Aman Jain, who is none else but the son of the parties. The testimony of PW3Aman Jain, completely brushes aside the alleged demand of money from the wife by the husband for the treatment of the son and the father of the husband. The demand appears to be ridiculous as the husband is a bank officer drawing handsome salary. The learned trial court has rightly believed the version of PW3 Aman Jain. Narrating the words spoken by the wife i.e. the mother of this witness from time to time, this witness stated that since the time he has come to senses, his mother, i.e., the appellant has been using the words “diseased eatern; mother fucker; sister fucker, kana, kanjri; dog and kanjar” to her son, husband, father 6 FAO No.189-M of 1999 in law, mother in law and sister in law. No young son would like to depose against her mother in a divorce petition between his parents. Even an infant would not like to go far away from the embraces of his parents. The testimony of PW3 Aman Jain is worth reading which fully proves the grounds of cruelty. This witness narrating the incident dated 2.10.1993, stated that when his birth day was being celebrated, the appellant abused his ‘Bua Ji’ and ‘Phupha Ji’ in the presence of his classmates, colleagues of his father, grandmother, relatives, friends and 25/30 persons, by uttering the words 'kanjari' 'phulwari wala' and 'karjai' to them. When this witness forbade her, she slapped him. Most of the gathering left without taking anything. This witness stated that how in September, 1993, crossing all limits of decency by denuding herself in the presence of children, the appellant explained as to how their father performed sexual intercourse with her due to which they were born. Not only once, she repeated this 3 or 4 times later on. He further stated that his mother had been compelling her to steal small items from market. This witness stated that whenever his father told his mother to take care of children and to give them food, she used to say “Kanjara your hands are not broken, you can wash the clothes and cook the food for the children, why don't you do it.” His parents had been living separately in two different rooms, with a separate kitchen in one dwelling unit. This witness keeps on saying that “She has virtually beaten the hell out of our life and now we are happily residing with our father and grand parents.” This witness further stated that his mother had been found strolling all alone in the night. On 27.3.1994, when the entire family went to Sunam to enquire about the 7 FAO No.189-M of 1999 health of father of the husband, they were planning to contribute money for the operation of the father, the mother of this witness started abusing the entire family and said that “Kana has still not died and we will not contribute even a single penny”. In order to avoid further confrontation, all the other family members suggested them to leave that house immediately. She hit the husband during heated exchanges with a bottle which caught this witness on his arm. She hit the father of this witness with a fry pan which caught this witness on his left leg. From the side of the wife, there is no plausible explanation as to why her own son is deposing against her. This court is unable to find any ground to ignore the testimony of this witness. The learned trial court has rightly decided issue no.1 in favour of the husband holding that the wife has treated the husband with cruelty, which findings are hereby affirmed. Now coming to the point as to whether the earlier acts of cruelty stood condoned in March, 1994, this court differs with the learned trial Court. The learned trial Court held that “the earlier acts of misbehaviour by the respondent with the petitioner and his parents as well as children although condoned in March 1994 for the sake of children”. In Smt Krishna Rani vs Chuni Lal Gulati (supra), this Court has held that “Where a continuing course of conduct on the part of a spouse, which tantamount to causing mental cruelty, is made the basis of relief sought from the matrimonial court, then no condonation can be pleaded because the subsequent and the latest act of cruelty would wipe out the effect of condonation of earlier acts of 8 FAO No.189-M of 1999 misconduct”. The family trip arranged by the husband in March 1994 was a sincere effort on the part of the husband to forget the earlier incidents and bring back the wife to the fold of the family but it did not help at all. If the cruel treatment continues even after reunification, the prior cruelty may be taken into consideration and cannot be ignored because the wife had not changed his behaviour towards her family. As such, even if it is presumed that condonation was in effect for a brief period, the subsequent cruel behaviour will revive the earlier cruelty and also completely negate condonation. It must be understood that condonation is not an isolated and precise act. It is an initiative which is to be accepted and acted upon by the defaulting side. Inability to correct oneself will have the effect of washing away the initiative of condonation. We now come to the issue of desertion. The divorce petition was filed on 25.5.1994 and admittedly the parties are residing separately since 3.5.1994. On the date of the filing the divorce petition, two years time had not yet completed and so the learned trial court has rightly held that the ground of desertion was premature. No other point has been argued. Keeping in view the entire family back ground, this court comes to the conclusion that there is no scope to interfere in the findings of the learned trial court granting decree of divorce, which is, upheld. For the reasons stated above, this FAO No.189 M of 1999 fails and is dismissed without costs. ( JITENDRA CHAUHAN ) 9 FAO No.189-M of 1999 21.07.2011 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No 10