IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO(HMA) No. 183 of 1999. Judgement reserved on: 10.5.2006 Date of decision : May 18, 2006. ____________________________________________________________ Des Raj ……….. Appellant. Versus Smt. Neena Kumari ……. Respondent. ____________________________________________________________ Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting? For the appellant: Mr. S.S.Mittal, Sr. Advocate with Mr. Dinesh Bhanot & Mr. Arvind Sharma, Advocates. For the respondent: Mr. B.C.Negi, Advocate. _____________________________________________________________ Surjit Singh J. Appellant Des Raj, is aggrieved by the judgement and decree of the learned District Judge, whereby his petition under Section 13 of the Hindu Marriage Act, 1955, which he filed, seeking dissolution of his marriage with respondent Smt. Neena Kumari on the ground of cruelty, stands dismissed. Appellant’s grievance is that the learned District Judge has not appreciated the evidence and the law in the right perspective and this has led to the wrong dismissal of his petition. _____________________________________________________________ Whether reporters of local Papers may be allowed to see the judgment? - 2 - Appellant filed a petition for the dissolution of his marriage with respondent, pleading that the marriage between him and the respondent had taken place on 15.9.1994. Soon after the marriage, respondent started treating the appellant and other members of her in- law’s family with contempt. She often proclaimed that the appellant and all the members of the family were mad, lunatics and needed treatment for lunacy. She also did not do any household work. She would deliberately put excessive salt and chillies in the food, so that she was not again asked to prepare the meals. As a result of the aforesaid behaviour of the respondent, petitioner- appellant filed a petition, under Section 13 of the Hindu Marriage Act, on 15.12.1995, seeking dissolution of the marriage. That petition was compromised. Respondent returned to the matrimonial home and started living with the petitioner. However, a few days thereafter, she again started misbehaving and making false allegations. Two-three months thereafter, she left the matrimonial home and started leaving at Pathankot, where she runs some clinic. The appellant then filed the petition out of which this appeal has arisen, seeking dissolution of the marriage on the ground of cruelty. Following specific acts of cruelty were alleged in the petition:- (a) Respondent treated the appellant and other members of her in-law’s family with contempt from the very beginning. (b) Respondent spread rumour that the appellant was a drunkard, gambler and womanizer. (c) After the compromise between the parties arrived at in the earlier instituted case for dissolution of marriage, the respondent though went with the - 3 - appellant, but she lived with him only for total period of twenty days in parts during a period of three months and would often leave the house without informing the appellant in the company of a man, named Kamal. (d) The respondent during the aforesaid stay of twenty days used to add extra salt and chillies to the food served to the mother of the appellant and also ill- treated her. (e) Besides hurling abuses at the appellant and his mother and other members of the family publicly, she once proclaimed that the entire family of the appellant was of lunatics and they needed to be treated for lunacy. (f) Respondent instituted a false case, under Sections 406, 498-A, 506 read with 34 of the Indian Penal Code, in the court of Judicial Magistrate, Pathankot, which was dismissed by the court. (g) Respondent also filed a petition for maintenance, under Section 125 of the Code of Criminal Procedure, making false accusation similar to the ones made in the complaint under Section 406, 498- A, IPC, and that petition was also dismissed by the court. (h) Respondent started threatening that in case she was not allowed to live the way she wanted, she would commit suicide leaving a note that could put the appellant and all his family members behind the bar. (i) On 20.3.1996, the respondent started shouting in the Bazar of the town, where the appellant lives that the - 4 - appellant had illicit relations with other woman and it was not possible for her to live with him. She also proclaimed that she had a clinic of her own at Pathankot, where she paid more salary to her servants than the amount of salary received by the appellant from his employer and thereafter she left for Pathankot and ever since she has not returned. The respondent contested the petition. She denied almost all the allegations specifically. However, she did not deny that on 20.3.1996, she left the matrimonial home for her parental place in Pathankot and has not gone back to the matrimonial home thereafter. She however did not deny that she had filed a case, under Section 406, 498-A, 506 of the Indian Penal Code, and a petition for maintenance, under Section 125 of the Code of Criminal Procedure, claiming maintenance had also been filed, as alleged in the petition, and that both the cases stood dismissed. She alleged that as a matter of fact, she was ill-treated at the matrimonial home for not bringing sufficient dowry and was often beaten up by the appellant on being instigated by his mother, sisters and other family members. It was also alleged that the petition was not maintainable in the form in which it had been laid and was barred by time. Further it was alleged that the petition was bad for non-joinder of the alleged man with whom the respondent was allegedly having adulterous relation. The District Judge framed the following issues:- 1. Whether the respondent has treated the petitioner with cruelty as alleged? OPP. 2. Whether the petition is bad for non-joinder of necessary parties? OPR. - 5 - 3. Whether the petition is not within time? OPR 4. Whether the petition is not maintainable? OPR 5. Relief. The learned District Judge concluded that the appellant had failed to prove that he was treated with cruelty by the respondent and hence the petition was not maintainable. Consequently, the petition was dismissed. I have heard the learned counsel for the parties and gone through the record. Admittedly, the parties have been living separately for the last more than ten years. It has specifically been alleged in the petition that in March, 1996, the respondent left the matrimonial home and has not visited the appellant even once thereafter. The allegation is not denied by the respondent in the reply or otherwise. Now the very fact that the parties have been living separate from each other for the last ten years suggests that they have some serious differences. This cannot be said to be a case of routine wear and tear of marriage or a case of ordinary quarrels between the husband and the wife. The allegation made by the respondent in the reply that she was ill- treated for not bringing sufficient dowry and was even beaten up by the appellant does not stand proved. The making of a false accusation of demand of dowry and the beating up due to non- fulfilment of that demand itself is an act of cruelty. It is in this background that the evidence led by the parties needs to be appreciated. Appellant, Des Raj, appeared as PW 1 and testified about the alleged acts of cruelty pleaded by him, including the one that the respondent often left the matrimonial home for Pathankot in the company of a young man named Kamal. This part of the testimony of - 6 - the petitioner was not challenged in the cross-examination and, therefore, presumption is that the respondent does not dispute the correctness of this part of the testimony. PW 2 Deva Nand and PW 3 Onkar Singh, Up-Pardhan of Gram Panchayat, Dhameta (Dhameta is the name of the village of the appellant) testified that after the respondent had gone to her parental place at Pathankot, after quarreling with the appellant, they went with the appellant to Pathankot to persuade the respondent to return to the matrimonial home, but she refused to return to the matrimonial home saying that she was unable to live at Dhameta, because the living standard of the appellant and other members of her in-law’s family was quite low. Respondent while in the witness box as RW 1, denied that she left for Pathankot on 20.3.1996, of her own and stated that as a matter of fact, appellant accompanied her to Pathankot and on reaching her parents’ place at Pathankot, the appellant gave her beatings in the presence of her parents and other persons of the locality and that is why she has not joined the company of the petitioner-appellant after that day. This deposition of the respondent is contrary to her pleaded version. As already noticed, she did not deny the averment made in the petition that she left the matrimonial home of her own on 20.3.1996. Also, she did not plead in the written reply that she went to Pathankot in the company of the appellant but did not return to the matrimonial home, because the appellant gave her beatings at her parents’ place in the presence of her parents and the people of the locality. The making of false statement to this effect clearly shows that the respondent has no justification for staying back at her parents’ - 7 - place. She has admitted that she filed a complaint in the court of Judicial Magistrate Ist Class, Pathankot against the appellant, his sisters and mother, alleging that she was tortured for not bringing sufficient dowry. It is made out from the evidence on record that appellant’s and respondent’s is an inter-caste marriage. The appellant is `Brahmin’ by caste while the respondent belongs to `Mahajan’ caste. The case of the appellant is that no dowry was given nor taken as it was an inter-caste marriage and that the accusation regarding demand of dowry made by the respondent in the complaint filed in the court of Judicial Magistrate Ist Class, Pathankot, as also in the petition, under Section 125 of the Code of Criminal Procedure, were false to her knowledge. The plea is testified by the appellant, while appearing as PW 1. The testimony of a witness examined by the respondent, namely RW 2 Rattan Chand Sharma, also gives the impression that no dowry was given. The witness claims to have his residence in the neighbourhood of the respondent’s parents in Pathankot. He has stated that once when the respondent visited her parents and was looking sad, he inquired the cause of the sadness and was told that the appellant had started ill-treating her to force her to bring dowry, as no dowry was given at the time of the marriage. This statement of a witness of the respondent itself falsifies her plea that dowry was given at the time of the marriage, but the appellant started demanding more dowry and for putting pressure on her and her parents to meet the said demand, she was ill-treated. Further the respondent, while in the witness box as RW 1 stated that she was kept well by her in-laws for about one month, but thereafter the appellant started saying that she had been working for seven years prior to the marriage and she should - 8 - give the entire amount of earnings pertaining to those seven years to him so that he could buy a scooter. Nobody has corroborated this statement of the respondent. Even in her reply, she did not make such an allegation, though she did plead that she was harassed for not bringing sufficient dowry. From the above discussion, it can legitimately be concluded that the respondent had been leaving the matrimonial home against the wishes of the appellant in the company of a young man, named Kamal, she made false accusation of demand of dowry against the appellant, his mother, brother-in-law and sister-in-law, she lodged a false complaint, under Section 406, 498-A and 506 of the Indian Penal Code, and also filed a petition, under Section 125 of the Code of Criminal Procedure, making false allegation therein that she was harassed and tortured for not bringing any dowry and, therefore, she was entitled to maintenance even while living separate from the appellant. These acts and conduct of the respondent certainly amount to cruelty, within the meaning of Section 13 of the Hindu Marriage Act. The above stated position apart, admittedly the parties have been living separate since 1996. The parties are admittedly unable to live together. This is a clear case of irretrievable breaking down of the marriage. The Hon’ble Supreme Court in Naveen Kohli vs. Neelu Kohli, [ JT 2006 (3) SC 491 ], has held that where the parties have separated and the separation continues for sufficient length of time and one of them presents a petition for divorce, it can well be presumed that the marriage has broken down. It has further been held that here the marriage has been wrecked beyond the hope of salvage, public interest lies in recognition of the fact. - 9 - In the case before the Hon’ble Supreme Court the parties had been living separately for more than ten years. A large number of criminal and civil cases were going on between the parties. It was held that the marriage between the parties was defunct de facto and that the public interest and interest of all concerned lay in declaring the same defunct de jure. It was further held that the High Court ought to have visualized that preservation of such marriage was totally unworkable, which had ceased to be effective and was a source of misery for the parties. It was also held that in such a situation declining a decree of divorce would be disastrous for the parties. The ratio of the aforesaid judgement of the Hon’ble Supreme Court is applicable to the facts of the present case on all fours. Otherwise also, as discussed here-in-above, it stands established that respondent has treated the appellant with cruelty. Therefore, the appeal is accepted, the decree of the learned District Judge, dismissing the petition for dissolution of marriage, is set-aside. Consequently the petition, filed by the appellant for dissolution of marriage, is allowed and decree of divorce, dissolving the marriage between the appellant and the respondent, is passed. May 18, 2006 (Surjit Singh), (Hem) Judge.