IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 281 of 1997. Judgment reserved on: 26.5.2008 Date of Decision: 30th July, 2008 Ram Nath Thakur ..Appellant. Versus. Smt.Kanta ..Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Appellant: Mr.Ramakant Sharma, Advocate For the Respondent: Mr.Vinod Gupta, Advocate Deepak Gupta, J. This appeal under Section 28 of the Hindu Marriage Act, 1955 is directed against the judgment and decree dated 1.7.1997 passed by learned District Judge, Solan in Hindu Marriage Petition No.26-S/3 of 1995 whereby the petition filed by the appellant (hereinafter referred to as the husband) under Section 13 of the Hindu Marriage Act for grant of divorce has been rejected. Briefly stated the facts of the case are that the parties are Hindus and their marriage was solemnized as per Hindu rites on 5.12.1979 at Solan. Out of this wedlock two children Ms.Aarti and Pankaj were born in the years 1981 and 1982. According to the husband the relations between the parties were cordial and like any normal couple in the initial years of the marriage. In the year 1988 the - 2 - wife also got a job. Thereafter, the husband found that the attitude of the wife changed towards him. The petitioner was transferred to Bilaspur in December, 1989. According to the petitioner when he used to visit Solan on week-ends he noticed a change in the behaviour of the wife. On some occasions he also found some strange persons in his house. The husband alleges that when he inquired from his son as to who these persons were the son stated that he did not know these persons but according to the son when these persons came home his mother used to instruct him to sit outside. When the husband confronted the wife with these allegations, she became furious. According to the husband once in the year 1991 when he visited the house he saw that the children were not present and the respondent was in bed with a neighbour in a compromising position. He therefore immediately left the house. According to the husband his neighbours had also told him about the visits of some persons to his wife. The husband also alleged that when confronted with her behaviour the wife turned hostile and filed a false criminal complaint under Section 498-A IPC against him. She also filed a petition under Section 125 Cr.P.C. before the Gram Panchayat besides making various false complaints to the office of the Superintendent of Police. The husband was transferred from Bilaspur to Oachghat in May, 1993. He states that thereafter the wife did not even talk to him and even stopped cooking food for him and thereafter the husband was forced to leave the house and shifted to Oachghat with his son Pankaj. The daughter is living with the wife. On these grounds divorce was sought. The wife in her reply contested the averments made in the petition. She denied all the allegations levelled against her as false - 3 - and malicious. The wife in fact claimed that it was the husband who had been cruel to her as he levelled false allegations of unchastity against her. According to the wife the husband maligned her in the eyes of neighbours and relatives and also made false complaints to the authorities. According to her she was forced to file a complaint under Section 498-A and 125 Cr.P.C. on account of the actions of the husband. On the pleadings of the parties, the following issues were framed: “1.Whether the respondent has treated the petitioner with cruelty?..OPP 2.Whether the respondent has had voluntary sexual intercourse with any other person than the petitioner after commencement of the marriage of the parties?....OPP 3.Whether the respondent has deserted the petitioner within the meaning of Section 13(1)(i-e) of the Hindu Marriage Act?...OPP 4.Whether the petition is bad for non-joinder of necessary parties and not framed in accordance with the Rules prescribed therefore?...OPR 5.Relief.” Parties led evidence. Thereafter, the learned trial Court heard the matter and decided all the issues against the petitioner and dismissed the petition. I have heard Sh.Ramakant Sharma, learned counsel for the petitioner as well as Sh.Vinod Gupta, learned counsel for the respondent. I have also gone through the evidence led by the parties. The petitioner while appearing in the witness box has again levelled allegations of cruelty. The main allegations of cruelty are that the wife would not cook food for him when he used to come late to the house and he had to cook food himself. While appearing in the witness box the husband stated that some persons such as Mani Ram, Birbal and Madan Mohan used to visit his house in odd hours in - 4 - his absence. This is something which he has not stated in the petition. In the evidence, the petitioner has embellished his statement and added certain facts which should have been mentioned in the petition. It is well settled law that when allegations of cruelty and divorce are made the petition should be in consonance with the provisions of the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982. At this stage it may be pertinent to refer to the provisions of the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982. These Rules have been framed by this Court and lay down the procedure and form of filing petition under the Hindu Marriage Act. Rule 5 provides that in addition to the particulars required to be given under Order VII, Rule 1 of the CPC, a petition filed under Sections 9 to 14 of the Hindu Marriage Act shall also contain certain particulars. We are concerned with Rule 5(g)(ii), (iii) and (iv), which read as under: “5.Contents of the petition.- In addition to the particulars required to be given under Order VII, Rule 1 of the Code and section 20(1) of the Act, all petitions under sections 9 to 14 of the Act shall state:- (a)to (f). xxxxxxxxxx (g)the matrimonial offences charged or other grounds, upon which relief is sought, setting out with sufficient particularity, the time and place of the acts alleged, and other facts relief upon but not the evidence by which they are to be proved, e.f.: (i)xxxxxxxx (ii)If the petition is for judicial separation/divorce by either of the spouse on the ground that the other party has, after the solemnization of the marriage had voluntarily sexual intercourse with any other person, other than his or her spouse, the petitioner shall state the name, occupation and place of residence of such person or persons, so far as they can be ascertained, the specific act of sexual intercourse and the occasion when and the place where such acts were committed; (iii)In case of the desertion, the date and circumstances in which it began; - 5 - (iv)In the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed and that the petitioner has not in any manner condoned such acts of the respondent;” A perusal of these Rules clearly shows that the party seeking divorce on the ground of adultery has to give the name, occupation and place of residence of such person with whom the offending spouse has committed adultry. The specific acts of sexual intercourse and the occasion and the place where the same were committed are also required to be set out in detail. In the case of cruelty it is expected that the party seeking divorce should specifically mention the acts of cruelty and the occasion(s) and place(s) where the acts of cruelty took place. In the present case though a lot of general allegations have been made in the petition, there were no specific allegations with regard to adultery in the petition. Even in respect of cruelty the allegations were very general and not specific. Even taking a liberal view of the matter and permitting the petitioner to rely upon the pleadings and the evidence led in Court, I am afraid that the evidence does not inspire any confidence. The petitioner has levelled general allegations of adultery which are not supported by any material on record. His allegations of cruelty are also to the effect that his wife would not cook food for him. Importantly he also states that she would not cook food for him when he used to come home late. Parties have both examined their children. The son who is living with the father has obviously supported his father. It is indeed a sad state of affairs that the father has tried to produce his young son to prove allegations of adultery against the mother. This shows the - 6 - level to which the father has stooped in order to secure divorce. He has not thought of or visualized what will be the impact on his small child when he asked him to make the statement of the nature the child has made in Court. The child has stated that when his father was not present in the house their neighbours Birbal and Madan Lal used to visit the mother and the mother would send him out of the house on one pretext or the other. In cross examination he has admitted that both Birbal and Madan are neighbours. It would be important to note that this child has not spoken a word about the alleged acts of cruelty stated to have been committed by the wife on the husband. His whole testimony is to prove the adulterous behaviour of his mother. PW-3 Sh.Sudershan Kumar states that in the year 1989-90 the husband met him. The husband was in a disturbed frame of mind. The husband informed the witness that when he came home from Bilaspur he found that his wife was sleeping with one Birbal. According to this witness he runs a PCO and the wife used to come to the PCO and ring up Madan and Satish and talk with them. Statement of PW-4 Ram Lal is only to the effect that about one year back the wife had threatened to teach the husband a lesson. His evidence is not really relevant. Statements of PW-5 and PW-6 are to the similar effect. On the other hand the wife has examined herself and also examined her daughter and a number of other witnesses. From a perusal of the evidence, as far as the ground of cruelty is concerned, it is apparent that there is no allegation of cruelty which has been proved on record. No specific act of cruelty has been pleaded in the petition and even in the evidence only general allegations have been made. The other witnesses have spoken about - 7 - fights having taken place between the parties. Fights take place between any married couple and during such fights a lot of things are said. However, cruelty has not only to be pleaded but proved. No act of cruelty has been proved in the present case. As far as the allegations of adultery are concerned, the less said about them the better. In the petition, no name of any person was given and the only allegation was that when the husband used to visit Solan on weekends he found some unwanted persons in the house. It was also alleged that in the year 1991 when the petitioner had come back from Bilaspur the wife was in a bed with one of his neighbours in a compromising position. If that was so and the person was a neighbour it was the duty of the husband to have named the person in the petition and should also have made him party to the petition. In the petition no specific allegations have been made. Therefore, the evidence which is not in consonance with the pleadings cannot be looked into. As far as the issue of desertion is concerned, according to the husband he himself left the house on account of the acts of cruelty of the wife. Since he has failed to prove any act of cruelty it is apparent that the husband left the house of his own accord and there is no question of the wife having deserted him. It would be important to remember that in the present case the husband has levelled vary serious allegations of adultery against his wife. It was his duty to have proved these allegations. In the absence of proof of such allegations it is the husband who is guilty of cruelty and he cannot take any benefit of his own cruelty. This Court in - 8 - Smt.Suresh Sharma vs. Dr.Sukhdev Sharma, Latest HLJ 205 (HP) 958, held as follows: “34.Under Section 23 of the Hindu Marriage Act a party who is a wrong doer is not entitled to any relief. In view of the above discussion, I am of the considered opinion that the husband has failed to prove that the wife had treated him with cruelty. In fact he is the wrong doer who first made false allegations against his wife. It was his conduct which was responsible for breaking the matrimonial home and as such he is not entitled to grant of any relief…….” Sh.Ramakant Sharma has cited a large number of authorities in support of his case. Some of these authorities have no relevance to the facts of the case at all and therefore I do not consider it necessary to cite all these authorities. It would be pertinent however to mention that one of the authority cited is A.Jayachandra vs. Aneel Kaur, AIR 2005 SC 534 wherein the Apex Court has explained the expression ‘Cruelty’ in the following terms: “The expression ‘cruelty’ has been used in relations to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a mater of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or - 9 - admitted. To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.” It would be pertinent to mention in this case itself the Apex Court has held that mental cruelty may consist of verbal abuses and insults by using filthy and abusive language. This authority in fact helps the respondent wife. The husband by leveling false charges of adultery has committed the act of cruelty on the wife. Faced with this situation Shri Ramakant Sharma has urged that the marriage between the parties has irretrievably broken down and the husband may be granted divorce since the marriage is dead. In support thereof he has relied upon certain judgments of the Apex Court wherein the Apex Court has granted divorce on the - 10 - ground that the marriage has irretrievably broken down. Reference may be made to; (1) K.Vengadachalam vs. K.C. Palanisamy and others, (2005) 7 SCC 352, (2) Naveen Kohli vs. Neelu Kohli, AIR 2006 SC 1675, (3) Vinita Saxena vs. Pankaj Pandit, (2006) 3 SCC 778 and Sanghamitra Ghosh vs. Kajal Kumar Ghosh, (207) 2 SCC 220. On perusal of the aforesaid judgments it is apparent that the Apex Court has clearly noted that the irretrievable breakdown of marriage is no ground of divorce under the law as it exists today. In fact in some of the cases the Apex Court has directed the Union of India to consider amending the law and making this ground as one of the ground for divorce. In all the cases the Apex Court while granting divorce has exercised jurisdiction vested in the Apex Court under Article 142 of the Constitution of India. No such jurisdiction is vested in this Court. It is true that a learned Single Judge of this Court in Prem Lal Gupta vs. Suman, Latest HLJ 2006 (HP) 1050 has granted divorce also on the ground that the marriage has irretrievably broken down. However, in that case the Court has also found that the wife was guilty of cruelty and the ground of irretrievable break down of marriage was only used as an additional ground. A Division Bench of this Court in Bharti Sharma vs. Surinder Kumar Sharma, 2003(2) Sim.L.C. 255, has clearly held that irretrievable break down of marriage by itself is no ground for dissolution of marriage but can be taken into account along with other grounds on which divorce can be granted. It is thus obvious that - 11 - merely because the marriage is irretrievably broken down is not by itself a ground for divorce. Keeping in view all the aforesaid discussion, there is no merit in the appeal which is dismissed with costs assessed at Rs.10,000/-. July 30, 2008. ( Deepak Gupta ), PV Judge.