IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (HMA) No. 128 of 2006 Reserved on: 26.10.2009 Decided on: 30.10.2009 Shyam Lal ……………Appellant Versus Smt.Mathura Devi ……………Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the Appellant : Mr.G.D. Verma, Senior Advocate with Mr.Romesh Verma, Advocate. For the Respondent : Mr.V.D. Khidta, Advocate. Dev Darshan Sud, J. This appeal has been preferred by the husband against the judgment of the Learned District Judge, Kinnaur, dismissing the petition preferred by him under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’) declining a decree for divorce, as prayed for, by the appellant herein, on the grounds of cruelty, both mental and physical to which he pleaded that he was subjected to by his wife, who is the respondent herein. The parties to this appeal were married in April, 1989 at village Nor, Tehsil Nirmand, District Kullu, according to Hindu rites and custom prevailing in the particular area. It is pleaded that after the marriage, they lived as husband and wife in village 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Kandi in Rampur and out of the wedlock, two children, i.e. one daughter and one son, were born. On the date when the petition was filed which is 1.7.2004 the son was aged about 9 years and daughter 12 years. The appellant pleads that his wife has been treating him with cruelty from the very beginning and making it impossible for him to live with her. He alleged that she was in the habit of abusing him and his parents and sister in filthy language and used to pick up quarrels with them and insult them on the slightest pretext. He pleads that he was injured in an accident while he was driving a scooter while returning from Jhakri to Rampur on 2.4.2004 and his leg was fractured and he was referred to Indira Ghandhi Medical College, Shimla by the hospital at Rampur. He remained admitted in the hospital but the respondent did not attend on him. When she visited him on one solitary occasion, instead of looking after him or providing solace and comfort, she scolded him and abused him in front of one of his colleagues Udham Singh. She even threatened to break this leg and put him out of his misery. On one occasion, she is alleged to have kicked the appellant on the injured leg and shouted that she would break it once for all. The appellant submits that an application was filed by him before the Sub Divisional Magistrate on 27.4.2004 requesting for protection from his wife from whom he feared physical violence. On 11th May, 2004 she left the matrimonial home and has not returned ever 3 since. His patience was exhausted when she registered a false case against him under Section 498-A of the Indian Penal Code. In support of the allegations, the appellant appeared as PW1 as his own witness and produced one Shri Pawan Kumar PW2, who looked after him when he was admitted after the accident in the Sanatorium hospital at Shimla. He reiterated the allegations made by him in the appeal and has stated that the respondent used to browbeat him, insult him and subject him to filthy abuse. She maltreated the appellant’s mother and sister whom she turned out of the house. She has left the matrimonial home and was not interested in joining his company or to discharge her obligations as a wife. In his evidence he states that after the accident, he was shifted to Shimla on that very day for medical treatment. Thereafter, on 6.4.2004 he changed the hospital and was admitted to Sanitarium hospital where he remained admitted till 19.4.2004. On 3.4.2004 respondent wife visited him in hospital where she insulted him, humiliated him, abused him and forced him to part with a sum of Rs. 500/-, then left without caring for him. He is emphatic in his testimony when he says that she never looked after him when he was injured and never enquired about his welfare. He testifies that Udham Singh did not appear as a witness because he is related to the respondent. In the hospital, it was PW-2 Pawan Kumar who looked after him. 4 Because of his physical incapacity he had to perform the call of nature on the bed itself and PW2 Pawan Kumar attended on him and looked after his welfare. On 27.4.2004 he visited Racholi where the respondent locked him in a room and threatened him that she would put an end to his misery by completely severing his injured leg. Thereafter, he was repeatedly threatened by her on telephone with dire consequences. A report was lodged by her with the Sub Divisional Magistrate alleging that the appellant had disappeared. On 10.7.2004, the respondent left the matrimonial home on her own accord. The appellant states in clear terms that since the year 1995 there has been no sexual co-habitation between him and the respondent and they are not living the normal life of husband and wife. He has been subjected to extensive and searching cross-examination but his testimony has remained un-rebutted. PW2 Pawan Kumar has stated that the appellant was admitted at Sanatorium hospital at Shimla after he was injured in the accident and that he never saw the respondent visiting the appellant in the hospital or looking after his welfare, cleaning him or attending to him. This witness has also been subjected to extensive cross-examination but nothing material has been elicited from him which may in any manner destroy the veracity of his evidence in examination in chief. 5 Adverting to the cross-examination of the appellant, two documents Ext. DA and Ext. DB have been put to him. The appellant has admitted his signature on Ext. DA appended by him on 26.9.1995. In this document he accepts that he will look after his wife and children, in case he does not do so then he may be given any befitting punishment. Ext. DB is another writing which has been executed by the appellant. In this he sates that he has had a quarrel with his wife. A suggestion was put to him that he hit her and broke her teeth to which he has stated that she was wearing a denture which fell out during the scuffle between both of them. On the material aspect as to whether the respondent had attended the appellant and ministered to his needs when he was admitted in the hospital and whether they had been co-habiting and living together as husband and wife there is no substantive evidence on the record either elicited in cross-examination of this witness or the examination-in-chief of the respondent. These two facts were crucial to the decision of the case. The respondent has appeared as RW1 as her own witness and has denied all the suggestions made by the appellant. She has accused the appellant of having illicit relations and living in adultery with another woman. This is the entire evidence on the record. I have heard the learned counsel for the parties and have 6 gone through the record. At the out set, I must observe that the evidence on record discloses a deep seated irreconcilable hatred between the parties. There is no love lost between them. Learned counsel appearing for the respondent has drawn my attention to the cross-examination of the appellant to urge that he did not want to keep his wife as he was living in adultery with another woman. I cannot accept this submission as the evidence on the record is clear. A suggestion put to him that he did not live with his wife as he was living with another lady from whom he had a child, has been denied by him. The method for assessing evidence is not by referring to one or the other line but considering the evidence as a whole in its totality to reach a logical conclusion and to test the veracity of the statement. Three crucial aspects of the case need to be noticed. One that it is not disputed between the parties that the appellant was admitted in the hospital where he remained for more than a fortnight. The second aspect as disclosed by the evidence is that the respondent wife never looked after the appellant while he was admitted in hospital which fact is corroborated by PW2 Pawan Kumar. It was but expected that when the husband was hospitalized the wife would at least minister to his welfare, medication etc. and would look after him and care for him during his hospitalization. The evidence of the husband that he was subjected to 7 insult and threats even when he was in an injured state has remained un-rebutted. Thirdly, the parties have not cohabited as husband and wife since the year 1995. This is the gist of the evidence on record. The learned District Judge while considering this evidence holds that the appellant has set up a new case in evidence and that the allegations made against the respondent are not proved on record. The learned Judge holds PW2 as a “Manufactured witness”. How and under what circumstances the Court came to this conclusion is not clear. Surely, if PW2 Pawan Kumar is a procured witness, his cross-examination was crucial which could establish that his evidence is not worth believing. I do not find any such exercise having been undertaken by the learned Court, which completely ignores the proved fact that Udham Singh could not be produced by the appellant since he was related to the respondent and there is no evidence to the contrary. On the second issue that as to whether the appellant is estopped to filing the petition, the court holds that the appellant is related to one lady named Santosh Kumari at Jeori and this is sufficient excuse for the respondent to withdraw. I do not find this fact having been established either from the evidence of the respondent or from the cross-examination of the appellant. The allegations of adultery are easier levelled than proved. The conclusion of the learned Court that the appellant admits that he is living with 8 one Santosh Kumari, is not correct. In fact he has denied this suggestion in his cross-examination and is categoric that they are not living as husband and wife. The principles for assessing evidence are by now well established that complete reading of the entire testimony of witness has to be considered and not stray lines either from examination in chief or the cross examination. There is nothing on the record to show that the veracity of the testimony of the appellant has been in any manner rendered unworthy of credence either by his cross-examination or by the evidence of the respondent herself. Learned counsel appearing for the parties have placed reliance on various judgments in support of their respective contentions. In Ramesh Kumar Sharma Vs. Smt. Akash Sharma, Latest HLJ 2008 (HP) 632, this Court relying upon the decision in Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 held that the cruelty could not be confined to a fixed definition which would be applicable universally to all cases. In Smt.Mayadevi Vs Jagdish Prasad, 2007(2) Civil Court Cases 144 (S.C.), the Supreme Court has reiterated the principle that mental cruelty can consist of abuses and insults by using filthy and abusive language by any spouse leading to constant disturbance to mental peace and vitiating the matrimonial harmony. Cruelty can be physical or mental and such as to give a reasonable apprehension in the mind of the 9 party complaining that it would not be possible for him/her to live with the offending spouse. This principle has later on been elaborated by the Supreme Court in Suman Kapur vs Sudhir Kapur, 2009 (1) SCC 422. The court held that :- “43. Recently, in Samar Ghosh v. Jaya Ghosh, this Court held: (SCC pp.546-47, para 101) “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to life with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. 10 (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to- day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or 11 abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for consideration period without there being any physical incapacity or valid reasons may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (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 or 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.” In Smt. Shyam Lata Vs. Subhash Chand, Latest HLJ 2007 (HP) 1137, this court has held that un- substantiated allegations of adultery amount to cruelty. Looking into the totality of the facts and circumstances of the case, I find that the wife has not at all cared to look after the welfare of the husband when he was in hospital and the allegation made by him that she used to abuse him in filthy language and he was threatened with dire consequences has been established by the evidence on record. The allegations of adultery have remained unsubstantiated. It must be noted that when such allegations are made they not only 12 ruin the reputation of the person against whom they are made but also the person who is alleged to be involved in such extra marital activities. The lady against whom the allegations have been made has not been impleaded as party to these proceedings which was crucial so that atleast she would have got a chance to save her reputation which was otherwise being maligned behind her back. The allegations are serious in nature and cannot be taken lightly. The conduct of the wife in filing unsubstantiated complaints is also not normal. There has been no cohabitation as husband and wife and sexual relations between the parties to this petition and the respondent has been unable to prove that the withdrawal from the company is because of the conduct of the appellant. In the facts and circumstances of the case, I hold that the appellant has been able to make out a case of grant of dissolution of the marriage by a decree of divorce. This petition is accordingly allowed. The judgment and decree of the trial Court are set aside and it is directed that the marriage between the parties be dissolved by a decree of divorce. There shall be no order as to the costs. October 30, 2009 (Dev Darshan Sud) (vs/aks) Judge.