IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (HMA) No. 342 of 2007 Reserved on: 19.06.2009 Date of decision: 07.07.2009 Kuldeep Singh ... Appellant Versus Smt. Chand Rani … Respondent Coram : The Hon’ble Mr. V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. C.N. Singh, Advocate. For the respondent: Mr. Ajay Chandel, Advocate. V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955, against the judgment passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, dated 5.6.2007, dismissing the petition filed by the appellant under Section 13 of the Hindu Marriage Act, hereinafter referred to as the Act, for grant of decree of divorce in favour of the appellant/petitioner. Brief facts of the case are that a petition under Section 13 of the Act was filed by the petitioner for grant of decree of divorce. The petitioner alleged that their marriage was performed on 29.11.1983. The parties lived together as husband and wife and a 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 female child was born on 17.11.1984. The petitioner sought the decree of divorce on the grounds of cruelty and desertion. The facts alleged to substantiate the ground of cruelty were that the respondent started showing disrespect towards the parents of the petitioner and other relatives that the petitioner in the year 1984 got employment in DAV School, Dehra, started living in a rented accommodation near that place and refused to stay in her matrimonial house. The respondent started misbehaving with the petitioner, got a false case registered against the petitioner under Sections 107/151 Cr.P.C., in which the petitioner was arrested and the proceedings were dropped finally. It was further alleged that the respondent lodged a false complaint against the petitioner under Section 498-A I.P.C. and the challan was filed in the Court and is pending trial. The respondent in her reply admitted the pleadings in regard to the marriage, birth of a female child and denied the remaining allegations. She denied having shown disrespect to the parents of the petitioner and rather pleaded that the petitioner’s parents started accusing the respondent for having brought insufficient dowry articles, which were duly given at the time of the marriage. The respondent pleaded that her misery increased with the birth of a female child since the petitioner wanted a male child and the harassment continued at the hands of the petitioner and his parents. It was also alleged that the petitioner threw the small child of few months on the floor and when the respondent attempted to save the child, she was given beatings and her arm was fractured. It was alleged that the petitioner was taken to bad habits, used to come in a drunken condition and used to beat the respondent. She also pleaded that in 1988 she became pregnant but the petitioner got the abortion done since the foetus was that of a 3 female child. In January, 1989, she was again pregnant and the said child died in bomb because of the beatings given by the petitioner. She became pregnant in 1992 but since it was female foetus, the petitioner and her parents got the pregnancy terminated since they wanted a male child. Thus, it was pleaded that the petitioner was not entitled to the grant of decree on the grounds of cruelty and desertion. On the pleadings of the parties, the learned trial Court framed the issues as under:- 1. Whether the respondent has treated the petitioner with cruelty and deserted him without any reasonable cause? OPP 2. Whether this court has no territorial jurisdiction to try this petition? OPR 3. Whether there is a bar under section 23 of Hindu Marriage Act? If so, its effect? OPR 4. Whether the petition is not in accordance with Hindu Marriage and Divorce Rules? If so, its effect? OPR 5. Whether the petitioner has treated the respondent with cruelty? OPR 6. Relief. Parties led their evidence and the learned trial Court decided Issue No. 1 and other issues as against the petitioner and in favour of the respondent and dismissed the petition. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the parties are not living together since 1993. The respondent had made complaint to Women Cell and his department and also filed a case under Section 498-A I.P.C. against the petitioner, which has resulted in acquittal. It was also pleaded that the respondent has 4 simply pleaded that demand of dowry articles was made, but no specific articles were mentioned. It was further pleaded that there is no MLC of the respondent that she suffered a fracture as a result of the beatings allegedly given by the petitioner. It was also pleaded that three abortions took place, which were not at the instance of the petitioner and the learned trial Court had wrongly observed that the petitioner had friendly relation with one Neelam who had signed the papers of admission of the petitioner in the hospital and wrong conclusions were drawn by the learned trial Court and, therefore, the findings are liable to be reversed. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein. It was submitted that the parties have lived together upto 1993. It was also submitted that three abortions took place at the instance of the petitioner and the petitioner never cared for the female child and even no maintenance was paid, which was paid at the instance of the Court. It was further submitted that since the cruelty has been proved on behalf of the petitioner and not on behalf of the respondent, the petition was rightly dismissed. Before I refer to the evidence led by the parties, I may make a reference to the following decisions relied upon by the learned counsel for the appellant in support of his submissions:- The decision in Parveen Mehta Vs. Inderjit Mehta, (2002) 5 Supreme Court Cases 706, shows that a reference was made to the facts of the case, in which the wife had refused to undergo medical test and treatment since she was of ill health, there was lack of cooperation in establishing normal cohabitation and repeatedly causing social embarrassment to respondent husband. It was also held that 5 false complaint was made to the police and accordingly, it was held that the husband was entitled to the decree of divorce and this fact was also taken note of by their Lordships that the husband has remarried and the decree for divorce should not be disturbed. The observations made by the Lordships were made in view of the facts of the case. The decision in Vijaykuimar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, (2003) 6 Supreme Court Cases 334, shows that in that case, allegations were made against wife of unchastity, indecent familiarity with another person and extramarital relationship. These allegations were made in the written statement filed by the husband which were later on withdrawn by seeking amendment of written statement. It was held that the allegations made cannot be wiped out by amendment of the written statement unilaterally withdrawing those allegations. The facts of that case were different from the present facts. The decision in Satish Sitole Vs. Ganga, AIR 2008 Supreme Court 3093, shows that the respondent was unable to make out grounds of cruelty and desertion and however, facts showing that parties lived separately for 14 years making acrimonious allegations against each other. It was observed that attempts at reconciliation proved futile. Continuance of such marriage would itself amount to cruelty. In the light of the above decisions, a reappraisal of the evidence led by the parties can be made, which has been discussed in detail by the learned trial Court. From a perusal of the statement made by the petitioner as PW-1 this fact stands established that the respondent became pregnant and stated that the child died but denied that the said child died due to his beating. He admitted that the 6 pregnancy was got terminated by the respondent but stated that the respondent got pregnancy terminated at her own but denied that it was at his instance. He also denied that she again became pregnant in the year 1992 but he is not aware if it was a female foetus and denied that he got the pregnancy terminated since it was female foetus. The petitioner has denied the allegation that he got pregnancy terminated and stated that it was got done by his wife but has not stated as to what was the reason for getting pregnancy terminated by the respondent. He did not state that it was not confirmed that it was female foetus or the petitioner got the pregnancy terminated herself for the one reason or the other and has not able to give any satisfactory explanation for the termination of pregnancy more than once. He did not state that the pregnancy was got terminated by the respondent without his consent. The only inference that can be drawn is that since it was a female foetus he got the pregnancy terminated twice and once there was a termination due to some other reasons as have been pleaded differently by both the parties. Once a person is getting pregnancy terminated twice, the only conclusion can be drawn as above that since he wanted a male child and, therefore, the pregnancy was got terminated which shows that mind set of the petitioner. As per the assertions made by the respondent, petitioner was harassing her since she was not able to deliver a male child. In the present society, if a person insists upon a male child and gets pregnancy terminated of his wife, it can only lead to an inference that it amounts to cruelty and he cannot take any benefit of his own cruelty meted upon the respondent. Once he treats his wife in a cruel manner and then takes a plea that they are living apart and he was being deprived of company, he cannot take benefit of his own wrong. 7 In regard to the other assertions made that a complaint was made to the Women Cell or so he has admitted that no action was taken by the Human Rights Commission or Women Cell. He has not placed on record the copy of any complaint lodged with his department or the action taken by the department against him. He has stated that a case under Section 498-A I.P.C. was filed on 7.7.2001 and filed the copy of bail order Ext. P-1 on record and there is nothing on record to substantiate that those allegations were found to be false by the Court, though it was argued during the course of arguments that those proceedings had resulted in acquittal of appellant but no such copy of judgment has been proved on record. There is nothing to substantiate his plea that the said complaint was false and had been held to be false by the trial Court. A copy of said judgment has not been proved in evidence and according to PW-2 H.C. Onkar Chand, this case was pending. However, it appears that a copy of the judgment is attached with the case file but the same has not been tendered or proved in evidence. Therefore, it cannot be looked into. The petitioner admitted in his statement in regard to the contention that he had not been paying maintenance or looking after his daughter. He admitted that when the case was filed at Chandigarh by his daughter, he had been paying maintenance to her. However, he is not aware as to where she is living at Chandigarh in a private residence or at which place, since he stated that he has no contact with her since 2000. The statement of other witnesses including the testimony of PW-4 Anil Sharma examined are not very material, who has been examined to show that the petitioner was given beatings and was got arrested. To my mind, statements of the petitioner and the respondent have to be carefully appreciated and a perusal of the same 8 shows that it is the petitioner who had treated the respondent with cruelty and that may be the reason for the respondent living apart and it cannot be said that she is living apart without any reasonable cause. There is no specific evidence in regard to the demand of dowry or any specific articles. In regard to the filing of case under Section 107/151 Cr.P.C. as against the appellant, which proceedings were dropped, these proceedings are dropped after passage of time i.e. after six months after issuance of notice and this cannot continue for long time. The mere fact that the proceedings were dropped, no inference can be drawn that these allegations were made falsely by the respondent. PW-1 petitioner had taken a plea that when he was admitted in the hospital, instead of respondent serving upon him, made allegations that one Neelam Kumari has been kept by him and in that regard, the learned trial Court had referred to a fact that one Neelam had given her consent for his operation in the hospital and had drawn inference accordingly and made the observation that no explanation has been given by the petitioner in regard to the said woman Neelam. There is nothing on record to show that any such questions were put up to the petitioner as to who Neelam was who was attending upon him in the hospital and had given consent for his operation. In the absence of any specific questions having been put up to the petitioner in this regard, no inference can be drawn that this conduct of the petitioner amounted to cruelty as observed by the learned trial Court. I am in disagreement with the observation made by the trial Court in this regard, otherwise evidence has been discussed properly and it is clear that findings of trial Court holding that it is the petitioner who had treated the respondent with cruelty leading to her living apart and as such, he was not entitled to the grant of decree of divorce on the ground of cruelty 9 or desertion. The petition has not been filed on the ground that the marriage has irretrievably broken and, therefore, the petitioner should be entitled to the grant of decree. The petition was filed on the ground of cruelty and desertion, which were not substantiated by the petitioner and the findings as against the petitioner as recorded by the learned trial Court call for no interference by this Court. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly alongwith costs including lawyer’s fee assessed at Rs.2,000/-. Memo of costs be prepared. ( V.K. Ahuja ), July 07, 2009 Judge (BSS)