IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (HMA) 462 of 2005. Judgment Reserved on June 2, 2008. Date of decision 20th June, 2008. Shri Rajesh Kumar Chaudhary ….Appellant. Versus Smt. Sunita Chaudhary ….Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant Mr. Bimal Gupta, Advocate. For the respondent Ms. Vidushi Sharma, Advocate. Dev Darshan Sud, J. This is the husband’s appeal against the judgment and decree of the learned Additional District Magistrate (sic), Fast Track Court, Kangra at Dharamsala, denying him decree of divorce by way of judicial separation as prayed for. The husband approached the Court on the allegations that the marriage between the parties 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - was solemnized on 2.11.1997 at village Bharmar, Tehsil Jawali, Distt. Kangra, according to Hindu rites. The averments are that the petitioner is a Bachelor in Pharmacy and prior to his posting, he was working in Meridian Laboratory and remained posted there upto August 1997. Thereafter he changed jobs and worked at various places, the last such posting being at Khanna District in Punjab. At the time of filing of the petition, he was working in Gagret. In a nutshell, the averments are that the respondent deserted him and did not rejoin his company. He seeks a decree of dissolution of marriage on the ground that the respondent has not made any effort to rejoin his company. The averments made in the petition are denied by the wife. She alleges that she was left at the residence of her Taya (uncle) by the petitioner and his brother and no attempt was made to take her back. In fact, the intention of the husband from the very beginning was not to keep her in the matrimonial house. Learned trial Court, on appraisal of evidence found that there was no act of - 3 - desertion or mental cruelty as contemplated by Section 13 of the Act, entitling the petitioner to a decree of divorce. The petition was dismissed. Hence the present appeal. Before considering the relevant facts, I must notice with concern that none of the parties was present in Court when the judgment was pronounced. Learned counsel for the petitioner urges that the evidence on record conclusively established that the respondent has deserted the petitioner and has not taken any steps to rejoin his company. I cannot accept this contention urged on his behalf. The learned trial Court, on appreciation of evidence on record concluded, and rightly so, that the evidence of the petitioner did not establish desertion or cruelty. For reaching this conclusion, he considered in detail the entire evidence on record, i.e. evidence of the petitioner who appeared as PW-1, PW-2 Shri Kamtesh Kumar Chaudhary, PW-3 Shri Inder Chaudhary, Advocate, Nurpur, PW-4 Shri Umesh Kumar, elder brother of the petitioner and PW-5 Om Parkash. Learned counsel has taken me through their evidence. A reading of this evidence only - 4 - shows that the parties have developed differences amongst themselves, which does not in any manner, indicate that there is any irretrievable breakdown of marriage. The wife, while appearing as her witness, has categorically admitted that the exigencies of her employment placed her under considerable mental and physical strain and that she was working constantly from morning to night trying to look after her job and also family affairs. She also states in her evidence that when she was left at her Taya’s place, no effort was made to bring her back to the family as the petitioner-appellant herein had stated that it would not be congenial to keep her in the matrimonial house, because his parents did not want her to live there. She has gone to the extent of stating that she was subject to derision because she was dark complexioned. She has stated that her father in law’s elder brother died a few months after she had been married in the family and by some stroke of ill luck, her husband lost his job and she was considered as a bad omen for the family and she was named as Kalo Mayi (black woman in the derogatory sense). Her evidence has - 5 - remained un-rebutted when she says that every time her husband visited her, they were cohabiting together as husband and wife and having normal sexual relations. Learned counsel for the appellant submits that the learned trial Court was wrong in not considering the fact that it was the appellant who was making effort for reconciliation, but it was the respondent who was not accepting these gestures. There is no evidence on record to show that the respondent had not made any attempt to join the company of the husband. In fact she repeatedly stated in her evidence that she was not allowed to join the company of her husband despite her willingness. The appellant himself admits that he was willing to accept the respondent but for the fact that his parents did not want her. Even otherwise, I do not find anything in the evidence to show that it is the respondent who is at fault. Surely, being a newly married lady, the family of the appellant should have been sensitive to her and not taunted her as a bad omen in the family and also not addressed her as Kalo Mai (black - 6 - woman). The colour of the skin is not something within the control of a person, but is what he / she is born with. The happening of a calamity or an event is controlled by forces not within the control of human beings. The death of a family member is unfortunate and cannot be attributed to the mere entry of somebody in the family or his/her presence therein. In these circumstances, even if the respondent was to live apart from the husband, she would be justified in doing so. The evidence on record does not at all establish any act of cruelty as alleged. The question as to whether the notices themselves constitute allegations of cruelty cannot be decided in favour of the appellant as writings sometimes constitute expression of frustration more than anything else. The law on cruelty has been considered fully by me in Shri Chand Prakash Sharma v. Smt. Kaushlya Devi , 2008 (1) Shim. LC 198, holding on the basis of judgment of the Supreme Court in Samar Ghosh v. Jaya Ghosh , (2007) 4 SCC 511, that mere sensitivity does not constitute irretrievable breakdown, nor can utterances made in emotion be constituted as acts of cruelty. This appeal is - 7 - accordingly dismissed. There shall be no order as to costs. June 20, 2008 (PC). (Dev Darshan Sud), J.