FAO No. M-111 of 2009 -1- In the High Court of Punjab & Haryana at Chandigarh FAO No. M-111 of 2009 (O&M) Date of decision : 03.2.2011 Mamta ..... Appellant vs Amritpal Singh ..... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. K. S. Sidhu, Advocate, for the appellant. Mr. Raman Mahajan, Advocate, for the respondent. Rajesh Bindal J. 1. The wife is in appeal before this court against the judgment and decree dated 27.2.2009 of the learned court below whereby in a petition under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act”), the husband has been granted a decree of divorce. 2. The facts as are available on record are that the marriage of the parties was solemnised on 17.9.2004 according to Sikh rites at Ludhiana. The husband filed a petition for divorce on 25.2.2006. The plea raised was that after the marriage the wife did not reside with him. The marriage was consummated but no child was born out of the wedlock. At the time of marriage, the appellant was working as Information Officer in Punjab Agricultural University, Ludhiana. After the marriage, she continued with her job and occasionally joined the company of the husband, who is residing at Mohali. She did not even resign from her job at Ludhiana or agree to join any service at Mohali or Chandigarh. She did not share with the husband as to how much was her salary and how much she was spending or saving. She was not obedient. Her conduct was always irritant. She caused mental harassment and agony to the husband. Her living apart and depriving the husband pleasure of matrimonial relations, was a constant source of mental torture. Maintaining secrecy, the wife got visa for UK and left on 23.7.2005 and since then she was not in contact with the husband and also did not disclose her place of residence or what she was doing there. FAO No. M-111 of 2009 -2- 3. After issuance of notice, the appellant wife filed reply to the petition under her signatures but as is evident from the evidence, she was not present in India at that time. While admitting the factum of marriage, she admitted that no child was born out of the wedlock but it was on account of the fault of the husband and his family members who got the pregnancy terminated. While denying the allegations regarding her service at Ludhiana or visit to Mohali, she stated that at the time of engagement, entire facts about her service and salary were disclosed. For the purpose of obtaining visa, the documents were got prepared by the husband himself. She was always obedient and performed her duties as a good Indian wife. To keep the matrimonial bonding, she used to visit Mohali thrice a week. The real problem, in fact, was that the husband and his family members were greedy persons and they used to harass and taunt her for not bringing sufficient dowry. On their pressure, her father had sent a cheque of ` 2 lacs, which was deposited in the joint account of the parties. Efforts were made to get a job near Mohali but the same did not yield any result. Her going to UK without the knowledge of the husband was denied by stating that the husband had got all documents prepared himself. In fact, the husband had gone to the Airport to see off the appellant. The telephone number given by her to the husband was misused by him by abusing and demanding dowry. Even the email address was also misused by writing the stuff which no normal person can read. 4. The stand taken by the wife in the reply was denied by the husband in the replication filed and whatever stated in the petition, was reiterated. 5. After completion of pleadings, the following issues were framed:- 1. Whether the respondent has reiterating the petitioner with cruelty? OPP 2. Whether the petition is not maintainable in the present form ? OPP 3. Relief FAO No. M-111 of 2009 -3- 6. In support of their pleadings, the parties led evidence. The husband besides himself produced in evidence his father Baldev Singh as PW2 and Paramjit Singh husband of his sister as PW3. The stand taken in the pleadings, was supported by them. Whereas on behalf of the wife, her brother Jaswinder and mother Smt. Pushpa appeared as RW1 and RW2 respectively and she herself appeared as RW3. 7. The noticeable fact is that after the wife was partly cross- examined, she did not present herself for further cross-examination, despite opportunities. Finally the learned court below, considering the evidence produced on record by the parties came to the conclusion that the appellant having treated the husband with cruelty, he was entitled to a decree of divorce. 8. Learned counsel for the appellant submitted that the judgment and decree of the learned court below is totally contrary to the settled principles of law. The husband filed the petition for grant of divorce on the ground of cruelty. Merely because the wife had gone to UK with the consent of the husband and to his knowledge, if for some unavoidable reasons, she could not come back for some time, it will not entitle the husband to grant divorce to the wife. The marriage is a long life relation. It is a mutual understanding between the parties. If the wife had gone abroad, it was keeping in view the future prospectus of the family. The wife alone will not be the beneficiary of her higher education and employment there. It was only on the asking of the husband that she had applied for visa of UK. In fact, both of them had applied but the husband did not get it. However, this fact was not disputed that after the appellant went to UK on 23.7.2005, she came back to India only once in March 2008 for the purpose of appearing as a witness in the divorce proceedings. 9. Learned counsel for the appellant further argued that fair opportunity was not afforded to the wife for leading evidence. In the present case the husband had approached the court and the onus was on him to prove that there existed ground for passing a decree of divorce. In fact, if the evidence led by the husband alone is considered, that itself is not sufficient to pass a decree of divorce then there was no need for the wife to lead any evidence. FAO No. M-111 of 2009 -4- 10. On the other hand, learned counsel for the respondent submitted that the judgment and decree of the learned court below is strictly in conformity with the law. Denial of pleasure of matrimonial life by the wife amounts to cruelty. In the present case, the marriage of the parties was solemnised on 17.9.2004. The wife at that time was serving at Ludhiana. She did not leave her job. She occasionally visited Mohali, where the husband was residing, to join his company in the matrimonial home. 11. It was further submitted by learned counsel for the respondent that about 10 months after the marriage, the wife left for England and till date, she visited India only once in March 2008 at the time of recording of her evidence. She did not disclose to the husband even the factum of her going to UK nor she disclosed her address, telephone number or what she was doing there. The wife is contesting this litigation in proxy with a view to harass the husband. Reply to the petition was filed, though under her signatures but when she was in England. After she was partly cross- examined, she did not appear for further cross-examination. Ever since then, she did not come back and even during her evidence, her address, phone number or what she was doing there, was not properly disclosed by her. Even her family members, who appeared as witnesses, did not disclose these facts. Even the present appeal was filed in this court by the mother of the appellant, as attorney. 12. Learned counsel for the respondent also submitted that no effort was ever made by the wife to remain in touch with the husband or to take him also to UK, or come back occasionally, in case her claim is that the intention was not to live separate and deny pleasure of matrimonial life to the husband. He further submitted that though the plea was sought to be raised that there was a demand of dowry or that the husband used some filthy language on the telephone number given by her or sent some mails on her email address, but no material was produced in support thereof. These were merely bald allegations. 13. Concluding his submission, learned counsel for the husband submitted that the judgment and decree of the learned court below cannot be faulted with as it is a clear case of cruelty whereby the wife has denied the pleasure of matrimonial life to the husband practically ever since the FAO No. M-111 of 2009 -5- marriage had taken place. She has no respect for the husband. She left for UK and the husband is not knowing her whereabouts. 14. Heard learned counsel for the parties and perused the relevant referred record. 15. The fact that the wife went to England on 23.7.2005 and came back to India once till date i.e. in March 2008, is not in dispute. Between the period from 17.9.2004 to 23.7.2005, there is dispute regarding the wife not living in the matrimonial home, as the claim of the husband was that the wife occasionally visited Mohali whereas the stand of the wife was that she used to visit Mohali thrice a week. 16. Another fact, which the husband has been able to prove on record is that ever since the wife left for England, there is no communication by her as even in her evidence she has failed to rebut the contention raised by the husband in that regard, though a vague stand was taken up that on telephone number disclosed by the wife, the husband has used some filthy language and also sent certain badly worded emails. 17. The stand was also taken that the husband and his family members were demanding dowry but there was nothing on record to prove this allegation nor any type of complaint made to any authority in this regard. Even in the affidavit filed by her in examination-in-chief, she had not disclosed as to where she was living in England and what she was doing there. The claim was made in the pleadings by the wife that ` 2 lacs were demanded by the husband after the marriage which were ultimately deposited in the joint account of the parties. However, in her part cross- examination, she had admitted that out of that amount, she had withdrawn ` 1.50 lacs on 19.2.2005 and deposited the same in FDR in her own name. 18. Further perusal of copy of passport of the wife, Ex. RW3/B shows that the passport was initially issued on 21.4.2004 in the name of Mamta with the column of surname blank. Even though she was married on 17.9.2004, later on she got an entry made in surname column of her passport as 'Malhotra', which was her maiden caste as the caste of the husband is 'Ghattaora' as is evident from the marriage certificate available on record at page 94. Another fact which is relevant in the passport is that the column of spouse's name was also blank. Meaning thereby that when the wife got her surname added in the passport after the marriage, she did not disclose the FAO No. M-111 of 2009 -6- factum of her marriage to the passport authorities. A perusal of the visa granted to the wife shows that it was for multiple entries valid from 20.6.2005 to 20.6.2006 under 'highly skilled migrant programme'. 19. The another glaring fact on record is that though undisputedly the wife after leaving for England on 23.7.2005 had visited India only in March 2008 to appear as witness in the case but still reply to the divorce petition was filed under the signatures of the wife mentioning her resident of House No. 908, Gaushala road Harbans pura Ludhiana and adding with the pen 'now at U.K.' It was not bearing any date. The counsel signed the reply and appended the date as '26/9/06' with the pen. Even at the time of evidence, brother and mother of the wife had not disclosed her address or employment details. 20. During the pendency of the petition before the learned court below, one application was filed by the wife for grant of maintenance pendent lite mentioning her address of Ludhiana with no place where the same was signed. Apparently the signatures appended on the reply and on this application differ on many counts. It is not in dispute that on 18.4.2007 the wife was not in India, when the aforesaid application was filed. As to who signed that application is not borne out from the record. 21. There is another undated application for grant of maintenance pendente lite filed by the wife on which she has not appended her signatures. While appearing in court on 7.4.2008, she produced in evidence her affidavit dated 18.3.2008 in chief. The signatures appended thereon are apparently different as compared to signatures on other documents. She was partly cross-examined and the case was adjourned for remaining cross- examination. At that stage, the wife filed application for seeking 4-5 months adjournment as she had to go to UK for appearance in her examination and also to attend last rites of her close relative. The case was adjourned for 8.4.2008. On 8.4.2008, the case was adjourned to 12.8.2008 for further cross-examination on which date the wife was not present and the case was adjourned to 28.8.2008 subject to payment of ` 500/- as costs. On 28.8.2008, the wife did not appear for her remaining cross-examination. Under the circumstances, the court closed the evidence of the wife and the case was adjourned for rebuttal, if any, and arguments. FAO No. M-111 of 2009 -7- 22. What is required to be noticed is that though on 7.4.2008 when the wife was partly cross-examined and the case was to be adjourned for her remaining cross-examination, adjournment for 4-5 months was sought which was declined by the court. But the fact remains that thereafter the case remained pending in the court for one reason or the other and arguments were concluded on 27.2.2009. No effort was made by the wife in the period of more than 10 months to get her remaining cross-examination completed. The aforesaid fact shows that she was not really interested in contesting the case. 23. It is further relevant that that after the closer of the evidence of the parties, the husband filed application dated 8.10.2008 for permission to produce on record a copy of the enquiry report of Deputy Superintendent of Police (S), S. A. S. Nagar. As per the said enquiry, both the parties had settled the dispute. A sum of ` 2 lacs was to be paid to the wife by the husband. It has been further reported therein that the wife will file her affidavit regarding giving no objection to grant divorce to the husband. The settlement was signed by the mother and brother of the wife. However, when the matter was compromised, it was only the mother of the wife who did not agree to the settlement and filed application in the Women Cell, Mohali, alleging harassment by the husband and his family members for bringing insufficient dowry. It was found by the police that the allegations levelled by the mother of the wife were false as the wife after some time of the marriage had left for England. The police has also reported that after investigation, no allegation of demand of dowry or harassment was found. To this application, reply dated 15.10.2008 was filed by the wife under the signatures of her counsel only. Even at that stage no prayer was made to get her remaining cross-examination completed. 24. Besides the aforesaid facts, nothing has been brought on record by the appellant wife that any effort was made by her at any stage to take the husband to UK or visit India ever since she left for UK and if for any reason she could not do any of the aforesaid things, no justifiable reason therefor. Even in the affidavit filed by her in her examination-in-chief no where it has been stated that she is still willing to come back or making efforts to take the husband along or willing to live with the husband. The husband in the FAO No. M-111 of 2009 -8- present case has been able to establish that the wife is depriving him the pleasure of matrimonial life without any justifiable reason. The wife has not been able to rebut that contention. 25. In Samar Ghosh vs Jaya Ghosh 2007 (2) RCR (Civil) 595, Hon'ble the Supreme Court gave certain illustrations which would amount to cruelty. The instances mentioned at serial number (xii) and (xiv) are relevant for the case in hand, which are reproduced as under:- '(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. xx xx xx (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 26. In Jasbir Kaur alias Pinky vs Dr. Harjinder Singh 2008 (3) CCC 386, this court dealing with a similar situation opined as under:- “Continuance of long separation of wife is certainly covered under the definition of mental cruelty, as provided by various judicial pronouncements under matrimonial law. Leaving the husband all alone will inevitably damage the health both mentally and physically without any fault on his part.” FAO No. M-111 of 2009 -9- 27. In Manisha Tyagi vs Deepak Kumar 2010 (2) RCR (Civil) 199, Hon'ble the Supreme Court opined that to establish cruelty, it is not necessary that physical violence should be used. However, continued ill treatment, cessation of marital inter-course, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. 28. If the facts of the present case are examined in the light of the enunciation of law, as referred to above, it can very well be opined that there is no will of the appellant wife to continue with matrimonial bonding as she has intermittently lived in the matrimonial home only between 17.9.2004 and 23.7.2005, when she went to England. In the last more than five years, she neither looked back to the matrimonial home nor made any effort to call the husband to England or visit India. 29. For the reasons mentioned above, I do not find that there is any error in the judgment of learned court below whereby it passed the decree of dissolution of marriage between the parties. 30. The appeal is dismissed. 03.2.2011 (Rajesh Bindal) vs Judge