IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL F.A. No.68 of 2009 Shashi Prakash S/o Kirti Prakash Sharma R/o M-67, Phase-I, Shivlok Colony Haridwar … Appellant. Vs. Smt. Mona Sharma W/o Shashi Prakash, D/o Satya Prakash Gaur, R/o 215/5, D.L. Road, Dehradun .. Respondent. Sri T.A. Khan, learned counsel for appellant. Sri Karan Anand, Advocate for respondent. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal, U/S 19 of Family Court Act, arises out against the judgment dated 10-02-2009, passed by Principal Judge, Family Court, Haridwar in Matrimonial Case No. 113 of 2004, Shashi Prakash vs. Smt. Mona Sharma, thereby dismissing the appellant’s petition for divorce against the respondent. 2- Brief facts of the case, in a nutshell, are that appellant filed a suit against the respondent for divorce before the Family Court, Haridwar, with the allegations that marriage between the parties was solemnized in accordance with Hindu Rites on 1.12.1999 at Vishnu Dharamshala Birla Road, Haridwar. The parents of the respondent concealed this fact with the appellant that the mental condition of respondent before her marriage was not good due to which she looses her temper and become violent and she was receiving treatment. According to the appellant/petitioner the respondent started her cruel behaviour from the very first day after her marriage. She dispersed the decoration of her room in fits of anger and this act of the respondent was not only seen by the petitioner and his family members, but by his relatives also and all of them became annoyed and felt deceived. At this the family members and relatives of the petitioner in order to keep up the honour in the society, asked him to forget the incident and start his life with the respondent. On 3.12.1999 in the night when the petitioner went in the room of the respondent, she started telling him her old love affairs due to which petitioner became mentally worried. After about one month, the respondent started quarrelling with the mother of petitioner and she stopped doing the household works. The respondent also insulted the petitioner in the presence of his friends. Being fed-up the petitioner called the parents of the respondent in the month of November 2000 and narrated the activities of the respondent to them. At this parents of the respondent carried her to Dehradun with them in order to make her understand and for her treatment. Thereafter petitioner went to Dehradun and brought the respondent at his house and started living peacefully with the respondent. The respondent became pregnant and she again started quarrelling with her in-laws. The respondent gave birth to a son. She did not change her attitude and started quarrelling repeatedly with the parents of the petitioner. On 24.11.2002 she along with her cloths and ornaments went to Dehradun with her father after giving threats to the family members of the petitioner. The respondent was treated by Dr. P.K.Gupta at Dehradun. According to the doctor disease of the respondent is related to her behaviour and she is habitual for it. The family members of the respondent did not allow the medicines to the respondent on the pretext of intoxicated medicines. The respondent also started scuffle with the petitioner. On 1.1.2003 the petitioner started living at Kankhal in a room where also there was no change in the behaviour of the respondent. In the month of April 2004 the respondent again became pregnant. She asked him to abort the pregnancy but the petitioner did not ready for it and for this reason also she became violent. On 1.5.2004 in absence of the petitioner, the respondent went to Dehradun and got aborted her pregnancy. The respondent also informed the petitioner that she did not want to reside at Haridwar and if he wants to live with her, he has to come to Dehradun to resident there. It is also alleged in the petition that the Hon’ble High Court at Nainital rejected the petition of the respondent praying for transfer of the present divorce suit to Dehradun and also stayed the maintenance case, in consequence of which, the respondent filed a false complaint on 14.6.2006 against the petitioner, his mother, sister and sister- in-law for ill-treating her for demand of dowry. Due to above facts, the petitioner is suffering from mental cruelty and it is not possible for him to lead a marital life with the respondent. Hence suit for divorce was filed. 3- The respondent contested the suit by filing her written statement, denying the allegations of the petitioner. According to her Smt. Poonam sister of the petitioner, took initiative of the marriage of the petitioner and the respondent and told that petitioner is earning Rs. 18,000/- per month, he has purchased land in Sahashtradhara road and shortly he is due to go to abroad but all this was incorrect. She further alleged that her mental condition is all right. She does not loose her temper and is not violent and the ill-feeling between them was due to the petitioner. According to her, her mother-in-law was making her false complaint to the petitioner and one day on her false complaint petitioner gave a slap to her due to which she fell down and started bleeding from her nose and abdomen and she had to be admitted at Bangali Hospital Kankhal for her treatment. She also alleged that she was left at her parents house in Dehradun by the petitioner himself for her safe delivery. She alleged that elder brother of the petitioner also got divorce from his first wife on false and frivolous grounds and the petitioner also wanted to get rid of her by filing this suit on frivolous grounds. The petitioner wanted dowry from the parents of the respondent and due to this reason he is alleging false charges against her. She also alleged that she is B.Sc. and did the N.T.T. Diploma and she is ready to live in the company of her husband and the suit is liable to be dismissed. 4- On the pleadings of parties, the learned Judge, Family Court, framed the following issues in the suit- 1- Whether the petitioner is entitled to get a decree of divorce on the grounds as described in the plaint? 2- To what relief, the petitioner is entitled to get? If so, what?. 3- Whether the respondent, during the pendency of suit, committed cruelty with petitioner and his family members by filing a false report against them on 14.6.2006, due to which the marital-tie between the parties has completely ended?. 5- Thereafter parties adduced oral evidence in support of their case. 6- The learned Judge, Family Court, after hearing learned counsel for parties and considering the entire evidence on record, dismissed the suit for divorce, vide impugned judgment dated 10-02-2009. 7- Feeling aggrieved, the petitioner/husband has preferred this First Appeal before this Court. 8- We have heard Mr. T.A. Khan, learned counsel for the appellant and Mr. Karan Anand, learned counsel appearing on behalf of the respondent, and perused the record. 9- Learned counsel for the appellant has submitted that the impugned judgment is against law and facts on record and the same is liable to be set aside. According to him the respondent had committed mental and physical cruelty against the appellant and it was not possible for the appellant to live with her. He also urged that the cruelty committed by the respondent with the appellant is fully proved by the evidence of the petitioner/appellant and his witness P.W.2, Jyoti Sethi, but the learned Judge, Family Court, has wrongly discarded their evidence on the point of cruelty. He also contended that the appellant remained in jail with effect from 16.7.2007 to 25.7.2007 on the false complaint of the respondent and this fact also prove the cruel nature of respondent towards her husband and now the behaviour of the respondent did not allow any resumption of the marital tie between the parties, therefore, the learned trial court should have passed the decree of divorce in favour of the husband. 10- On the other hand learned counsel for the respondent has made rival contentions and alleged that the respondent is mentally fit, she never ill- treated the petitioner and his parents. The petitioner wanted cash or set of house in dowry from her parents and on not fulfilling his aforesaid demand, he made up his mind to get rid of the respondent. The respondent is always ready to live with her husband. She also gave birth to a son Saurya with the cohabitation of the petitioner. The petitioner during the pendency of the suit, in reconciliation proceeding, refused to keep the respondent with him. Learned counsel also submitted that cruelty committed by the respondent to the petitioner has not been proved by cogent and reliable evidence, hence, the suit for divorce has rightly been dismissed. 11- The sole controversy involved in this appeal is- ‘whether the petitioner/appellant has succeeded in establishing the ground of cruelty taken by him in the petition for seeking divorce against the respondent or not?. 12- To prove its case the petitioner has examined himself as P.W.1 and Jyoti Sethi as P.W.2. The petitioner in his deposition has narrated the allegations made in the petition. Perusal of his deposition reveals that he has made general allegations of quarrelling by the respondent with him and his parents. He also deposed that parents of respondent concealed this fact at the time of marriage that the mental condition of respondent was not good and she loses her temper and become violent on and often and she was getting mental treatment. To prove this allegation petitioner did not file any medical prescription pertaining to treatment of the respondent. He could very well examine the doctor to prove the mental condition of the respondent, but he did not do so. As regards the allegation of the petitioner that the respondent got aborted her pregnancy at Dehradun, the respondent denied the same and alleged that she never aborted her pregnancy. The petitioner did not adduce any cogent and reliable evidence to prove the factum of abortion of pregnancy by the respondent. The assertion of the respondent in this regard is that the petitioner used to pressurize her to abort her pregnancy so that he may marry with some other lady. Therefore, this fact also remains disproved. 13- P.W.2, Jyoti Sethi, has deposed that petitioner is his friend and he has acquaintance with him for the last 15 years. He further deposed that petitioner was married with the respondent on 1.12.1999 and he was also present in the said marriage. According to this witness after one year of the marriage change was seen in the behaviour of the respondent, she often used to quarrel with the petitioner. The above statement is belied by the deposition of P.W.1, Shashi Prakash, who has deposed that from the very first day after marriage the behaviour of respondent was rustic. This witness P.W.2, Jyoti Sethi further deposed that whenever he used to go to the house of petitioner, and the petitioner asked her to prepare tea, some times she refused to prepare tea for him and some time she used to prepare tea for him. This witness further deposed that the respondent often insisted to go to Dehradun and settle there forever. From the evidence of this witness the allegations of cruelty by the respondent are not proved. He has also made general allegations of often quarrelling with her husband and to settle at Dehradun. This witness also did not tell about the bad mental condition of the respondent and petitioner does not get any benefit from his deposition. It is settled position of law that to become careless and discourteous on small occasions is not the other name of cruelty. Thus, we are of the considered view that the husband has failed to prove his case and he is not entitled to get decree for divorce. 14- On the other hand in support of her case, Smt. Mona Sharma has deposed that after marriage a son was born to her and she was looking after him. During the pendency of the suit the petitioner instituted a miscellaneous case No. 24 of 2004 U/S 7 of Guardian and Wards Act for the custody of the son and on her insistence the case was settled and she gave the custody of her son to the petitioner. She also deposed that the petitioner always pressurized her to bring dowry from her parents and treated her with cruelty. She also deposed that she is neither mentally sick nor physically weak. She has received education upto B.Sc. from D.P.S. College Dehradun. The petitioner wants decree of divorce on false and frivolous allegations to get rid of her by hook or by crook. 15- The respondent in support of her case also examined her father Satya Prakash Gaur as D.W.2. This witness has fully supported the deposition of the respondent. He has deposed that he has given scooter, ornaments, clothes, bed, utensils etc and expended about three lakhs in the marriage of respondent. The petitioner was not satisfied with the luggage given in the marriage and he wanted about 2 ½ lakhs in cash or a set of house and when his demand was not fulfilled, he filed false case against his daughter. He also deposed that his daughter is mentally and physically all right. She never treated the petitioner with cruelty. Therefore, it is clearly proved by the deposition of D.W.1, Smt. Mona Sharma and D.W.2, Satya Prakash Gaur that the allegations of cruelty levelled by the petitioner against the respondent are baseless, and it is proved that respondent was mentally and physically fit and she is always ready to live with her husband. 16- It is also clear from the petition as well as the deposition of the petitioner that the ground of mental cruelty taken by husband, does not come within the category of mental cruelty. According to petitioner respondent often lose her temper and become violent, but no instance of such a grave violence has been pleaded and proved by the petitioner. It has also come in evidence that during the pendency of the divorce suit, efforts for reconciliation were made and respondent was ready to reconcile with the petitioner, but petitioner was not agree, hence the same could not succeed. The petitioner has repeatedly asserted in his petition that there is irreparable breakdown of marriage between the parties, but the same is not a ground for divorce, for the reason that the petitioner has not been able to discharge his burden of proving the ground of cruelty taken by him for the decree of divorce. 17- In a nutshell the allegations of petitioner against the respondent can be summarized that she is very irritable, arrogant and whimsical always finding fault with petty matters and picking up quarrels with him and her mother-in-law with abusive and filthy language, thereby polluting the atmosphere of the family and husband felt insulted before his friends and it was a mental pain and shock to him. The allegations as stated above, can not make out a case of either physical or mental cruelty allegedly perpetrated by the wife upon the husband. 18- So far as the complaint filed by the respondent on 14.6.2006 against the petitioner and his family members for her ill-treatment by them due to their demand of dowry is concerned, as stated above, the petitioner and his family members were treating the respondent with cruelty due to not fulfilling their unlawful demand of dowry, therefore, she was compelled to file the complaint and filing complaint by her against petitioner and his family members, does not amount to any cruelty towards petitioner as she had lodged the complaint against the wrongful acts of the petitioner and his family members. 19- For the discussion made above, we find that the petitioner has not been able to prove his case against the respondent for a decree of divorce, therefore, the appeal is liable to be dismissed. 20- The appeal is dismissed. The impugned judgment is hereby affirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) June 17, 2010 ISB