Judgment:
FAO not M 30.of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- FAO not M 30.of 2010 (O&M) Date of decision: December 18, 2012 Mahender .......Appellant Versus Rajesh .......Respondent Coram: Hon'ble Mr.Justice Rajive Bhalla Hon'ble MRS.Justice Rekha Mittal -.- Present: Mr.J P Yadav, Advocate for the appellant Mr.Jaivir Yadav, Advocate for the respondent -.- 1.
Whether Reporters of local papers may be allowed to see the judgment?.”
2. To be referred to the Reporter or not?.”
3. Whether the judgment should be reported in the Digest?.
Rekha Mittal, J.
This appeal has been directed against the judgment and decree dated 13.08.2010, passed by the Court of Additional District Judge, Rewari, whereby the petition filed by respondent, namely, Rajesh, seeking dissolution of marriage of the parties under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'HMA').was allowed.
The facts relevant for the disposal of the present appeal are that the marriage of the appellant and the respondent was solemnized on 11.05.2003 at village Gudiyani, Tehsil Kosli, District Rewari, as per Hindu rites and ceremonies.
No issue was born out of the wedlock.
The respondent (petitioner before the trial Court) pleaded that after marriage, her husband (Mahender).brother-in-law (Surender).mother-in-law (Bhateri) FAO not M 30.of 2010 (O&M) 2 and sister-in-law (Suresh) harassed her for bringing less dowry.
They threatened to throw her out of the matrimonial home and often gave beatings.
On 12.11.2003, the appellant and his family members gave her merciless beatings and demanded a motor-cycle.
The younger sister of the respondent, namely, Nirmla is married with younger brother of the appellant, namely Surender.
On 17.03.2004, the respondent (Mahender) demanded Rs.1, 00,000/- from the respondent's family for purchasing a new ‘Gaddi’.
The father of the respondent arranged the money from his relatives and satisfied the demand made by Mahender.
An application was made in Police Station Kosli on 17.05.2004 qua demand of dowry and the matter was resolved in a Panchayat convened on 19.05.2004.
Thereafter, the appellant again started harassing the respondent for demand of Rs.50,000/- On 27.10.2005, a Panchayat was convened at village Gudiyani and the appellant gave an assurance in writing that the respondent will not be harassed in future.
On 28.10.2005, the respondent went to her matrimonial home with her father Shri Sube Singh, but she was insulted, humiliated and was threatened that she would be killed if she dared to come to her matrimonial home in future.
The respondent gave an application to the Women Cell, Rewari and a criminal case has been registered against the appellant and his family membeRs.which is pending consideration.
The appellant filed written reply, controverting the allegations of the petition and, in turn, raised the plea that the respondent and her sister are under the influence of their father.
They are ladies of quarrelsome nature.
They always threatened to involve the appellant and his family members in a false case of demand of dowry.
The respondent and her sister refused to do the household work despite the fact that they were kept with FAO not M 30.of 2010 (O&M) 3 respect in the matrimonial home.
The respondent and her sister left the matrimonial home along with ornaments and cash.
The pleadings of the parties led to framing of following issues by the trial Court:
1.
Whether petitioner is entitled to decree of divorce under section 13 of the Hindu Marriage Act, 1955 on grounds pleaded in petition?.
OPP 2.
Relief.
The trial Court permitted the parties to lead evidence in support of their respective claiMs.Respondent-Rajesh appeared in the witness box and examined Balwan Sharma, Assistant, Sunder Lal and Sube Singh, her father, to support her cause.
On the other hand, the appellant appeared in the witness box as his own witness and examined Chotu Ram and Naresh Kumar to rebut the evidence of respondent/petitioner.
Counsel for the appellant submits that the trial Court grossly erred in law by accepting the claim of the respondent.
The trial Court neither appreciated the evidence on record not the position of law and the judgment and decree is based on conjectures and surmises.
It is further submitted that the trial Court has erroneously recorded a finding that the marriage has broken down and there is no possibility of reconciliation.
It is further submitted that the respondent has failed to lead any satisfactory much less cogent and convincing evidence to establish her plea that the appellant or his family members made any demand of dowry or subjected to her cruelty, harassment, mal-treatment and beatings on account of demand of dowry.
It is further argued that the respondent and her sister lodged false FAO not M 30.of 2010 (O&M) 4 criminal cases in respect of demand of dowry and cruelty under the influence of their father, Shri Sube Singh.
According to counsel, normal wear and tear of marriage cannot be made a ground for divorce.
Counsel for the respondent, on the other hand, submitted that the respondent and her sister under compelling circumstances and finding no alternative lodged a report to the police in respect of mal-treatment meted out to them in the matrimonial home by their respective husbands and other family membeRs.It is further submitted that the appellant and his younger brother confessed their misconduct in writing when Panchayats were convened in May, 2004 and October, 2005, respectively.
It is further argued that no girl would like to leave her matrimonial home if she is happy there and is getting due care and respect.
We have heard counsel for the parties, perused the records of the trial Court and the judgment recorded by the learned trial Court.
Before proceeding to discuss the merits of the case, it is necessary to mention at the outset that the expression ‘cruelty’ has not been defined in the Act.
Cruelty can be physical or mental or both.
Cruelty, which is a ground for dissolution of marriage, may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mentally, or as to give rise to a reasonable apprehension of such a danger.
The question of mental cruelty has to be considered in the light of norms of martial ties of the particular society to which the parties belong, their social values, status, environment in which they live.
In a delicate human relationship like matrimony, one has to look to the probabilities of the case.
The concept of proof beyond the shadow of doubt does not apply in civil matters and certainly not to matters of such delicate FAO not M 30.of 2010 (O&M) 5 personal relationship as those of husband and wife.
Unlike physical cruelty, it is difficult to prove mental cruelty by leading direct evidence.
The same is to be inferred from the facts and circumstances pleaded and established.
A Court has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complaining spouse, because of the acts or omissions of the other spouse.
In ‘Geeta versus Mohan’ (1992) DMC 121.the Kerala High Court held that cruelty is a couRs.of conduct by the offending spouse which makes it impossible for the complaining spouse to live with him.
The Hon’ble Supreme Court in ‘Smt.
Mayadevi versus Jagdish Prasad’ 2007 (2) CCC 144.held that 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.
Now, analyzing the facts of the case in hand in the light of various principles discussed here-in-above, it is necessary to recapitulate certain admitted facts on record.
Respondent (Rajesh) and her sister (Nirmla) were married simultaneously to Mahender and Surender, who are real brotheRs.The marriage was performed on 11.05.2003.
Both the sisters i.e.Rajesh and Nirmla, filed separate petitions, seeking dissolution of their marriage on the same set of allegations of harassment, torture and mal- treatment on account of demand of dowry.
The claim of Rajesh and Nirmla was accepted by the trial Court, which is subject matter of separate appeals before this Court.
Respondent Rajesh, in her statement on oath, has reiterated her version in respect of demand of dowry and she being harassed and humiliated by her husband and his family membeRs.Her testimony finds corroboration from the statements of witnesses examined by her.
FAO not M 30.of 2010 (O&M) 6 Admittedly, an application was filed in Police Station Kosli in May, 2004, complaining against the appellant and his brother Surender, husband of Narender.
The appellant has failed to explain the circumstances which compelled the respondent or her family members to approach the police/panchayat in the year 2004 and 2005, if there was nothing wrong with the behaviour of the appellant and his family members towards the respondent.
The respondent from time to time had been raising an issue that she was being subjected to mal-treatment on account of demand of dowry.
Admittedly, in due couRs.of time, the respondent eventually lodged an FIR against the appellant and his family members under sections 406, 498-A and 34 of Indian Penal Code which is pending trial before the Court of a Magistrate.
The respondent has successfully established her claim that she was being tortured, mal-treated and harassed by her husband and his family members on account of demand of dowry, which ultimately led to her separation from her husband.
The appellant-husband, in his reply, has raised a plea that the respondent –wife is the guilty spouse as she is of quarrelsome nature and refused to do household work.
This plea of the appellant is falsified and belied in view of the statement of his cousin brother, Naresh Kumar (RW2).who has stated, in his cross-examination, that Rajesh and her sister Nirmla used to go to the fields to do work.
He has further stated that Rajesh and Nirmla stayed at the matrimonial home peacefully for 4-5 yeaRs.Rajesh was admittedly married in May, 2003.
She has not been staying in her matrimonial home since 2006-2007.
If Rajesh could go to the fields to do work, it is difficult to accept that she refused to do domestic work.
The very fact that she had been staying in her matrimonial home peacefully for 4-5 FAO not M 30.of 2010 (O&M) 7 yeaRs.indicates that she was not the reason for any disturbance or problem in the matrimonial home.
The appellant-husband has failed to establish his plea that the respondent-wife is the guilty spouse and thus, cannot be allowed to take advantage of her own wrong.
Respondent-Rajesh and Nirmla are the real sisteRs.daughters of Shri Sube Singh.
In the Indian set up, parents of a girl find it difficult to get a suitable match for their daughter.
The situation becomes all the more difficult, if a match is to be found for a divorcee daughter.
It is difficult to believe that a father would like to dislodge his daughter from her matrimonial home merely to satisfy his ego.
Equally true is that no girl, who is happy in her matrimonial home, would like to leave her husband’s home at the cost and risk of living at the mercy of her parents, brothers and bhabhis (sisters-in-law).A girl with a disturbed matrimony or for that reason, a divorcee girl, unfortunately, becomes an eyesore for her parents and an easy prey for society.
The people often address her as ‘baechaari’ (poor hapless girl) and apart from empty sympathy, she becomes an outcast.
In this view of the matter, it is difficult to accept that a girl would like to leave her matrimonial home without any substantial reason.
The appellant- husband has failed to plead any such fact which could weigh with the respondent-wife to leave her matrimonial home and to live with her parents.
The trial Court has correctly recorded its findings in favour of the respondent.
Counsel for the appellant has failed to convince this Court that the judgment and decree passed by the trial Court is erroneous much less illegal, warranting interference.
In view of what has been discussed here-in-above, there is no merit in this appeal and the same is, accordingly, dismissed, leaving the FAO not M 30.of 2010 (O&M) 8 parties to bear their own costs.
Decree sheet be drawn up accordingly.
(Rekha Mittal) Judge (Rajive Bhalla) Judge December 18, 2012 mohan