Judgment:
Dev Darshan Sud, J.
1. This is the wife's appeal against the judgment and decree of the learned Additional District Judge (Fast Track Court), Solan, passed in a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) filed by the respondent-husband praying for a decree of dissolution of marriage on the grounds of cruelty and desertion.
2. The parties were married according to the Hindu rites on 14.10.1994. From this wedlock, one female child was born on 28.7.1995 who is now admittedly in the custody of the appellant-mother. The respondent-petitioner alleged that the appellant had deserted the respondent's company and left the matrimonial home for a continuous period of more than two years as on the date when the petition was filed that is 19.4.2001. Despite best efforts made by him, his parents and well wishers the appellant did not care to rejoin his company. He pleaded that he was working as a teacher in the Government Middle School in Tehsil Pachhad, District Sirmaur. His father is a government contractor and his mother is a retired teacher. He is the only son of his parents and looking after them in their old age. He pleads that the appellant did not like the respondent staying with his parents and was forcing him to separate from them. When she failed in this attempt, she made false and reckless allegations against the respondent, that she was being beaten up since she had not brought adequate dowry and was constantly taunted for giving birth to a female child etc. .
3. It is undisputed that prior to the institution of the present petition, the appellant had filed a divorce petition under Section 13 of the Act in the Court of learned District Judge, Solan on the allegations made therein, more especially of physical and mental cruelty, which petition was withdrawn by her unconditionally on 8.11.2000 vide Ex.P-4. The husband also alleges that he was being threatened on the telephone by her that she would inflict burn injuries on her person and blame the respondent for these acts and implicate him in false criminal proceedings.
4. The petition was resisted by the wife on a number of grounds. The appellant submitted that she was taunted for bringing inadequate dowry; she was tortured physically and mentally by the respondent and his family members and was repeatedly told that the respondent had better offers for marriage where the prospective bride was willing to give a car etc. as dowry. She was subjected to constant taunts/humiliation for giving birth to a female child, was never allowed to wear ornaments except when any photographs etc. were to be taken on function. She was asked to leave the house and was threatened that in case she ever made an attempt to return, she would be physically assaulted and her legs would be 'broken' (sic) fractured. The motive for filing divorce petition was to get rid of her so that the respondent could marry again and get hefty dowry. This is the gist of the pleadings of the parties.
5. The learned trial Court, on the pleadings on record framed four issues. On the first issue as to whether the appellant had deserted the respondent, the Court found in his favour. On the second issue of cruelty, the Court held in the affirmative holding the appellant of committing such acts and following a course of conduct which amounted to cruelty. On the other two issues, there was a definite finding by the Court that the appellant herein was never tortured physically or mentally and there was no demand of dowry. In these circumstances, petition was allowed. For reaching this conclusion, the Court relied upon the decision of the Supreme Court in Bipin Chandra Jai Singh Bhai Shah v. Prabhavati : AIR 1957 SC 176. On the evidence, learned Court held that the appellant and the respondents lived together till 10.8.1995 after which the appellant never returned to the house of the husband after she had left saying that she would be celebrating Rakhi with her brother. The learned Court holds that despite the petitioner making a number of phone calls and visiting her, she refused to return. The other witnesses examined on behalf of the respondent-husband are PW-2 Mohan Lal, PW-3 Om Parkash, father of the respondent and PW-4 Jitender Kumar. They have of course, supported the case of the respondent. PW-2 and PW-4 have testified that the appellant has not been treated with cruelty. PW-2 has been on visiting terms with the family of the respondent for the last 10-12 years and PW-4 Jitender Kumar has been visiting the family since the last 40-45 years. This evidence when read as a whole, establishes that the respondent husband has not been guilty and cannot be blamed for any wrong committed imputed to him, namely demand for dowry, taunting the appellant for giving birth to a female child or forcing the appellant out of the matrimonial home. The appellant herein appeared as RW-1 and has also examined other witnesses, namely RW-2 Smt. Sarla Sood who was working as a maid with the appellant, after she had given birth to a daughter of the parties, RW-3 Jitender Singh Panwar, Head Master, Senior Secondary School, Narog, District Sirmaur, Shri K.R. Gupta, Accounts Officer, Office of the Accountant General, Shimla, RW-5 Shri Sukh Dyal, father of the appellant. Both the appellant and her father have tried to substantiate the defense in the petition that the appellant was not at fault. The statement of RW-2 is general in nature and does not establish any cruel conduct on the part of the appellant. The other witnesses are official witnesses who have tried to prove that the nomination made by the respondent to the Provident Fund was in favour of his parents and that he had shown himself as unmarried in the forms so filled in.
6. It is undisputed before me that the appellant had filed a petition for divorce under Section 13 of the Act (Ex.P-2) which was later on withdrawn by her on 8.11.2000 vide Ex. P-4 when she made a statement that she does not wish to pursue the petition any further. The allegations made in the petition are replete in detail setting out the grounds constituting acts which would amount to cruelty. The learned Court below has extracted the pleadings in detail and need not be reproduced here. The gist of the allegations leveled are that the respondent and his parents were maltreating the appellant by making demands for dowry, had beaten her up black and blue which fact was concealed by her in order to maintain harmonious relations and to provide a chance to the respondent to improve his ways so that the marriage ties could continue. She was taunted for giving birth to a girl child and an atmosphere of mourning prevailed in the house of the respondent because of this fact, she was forced to part with money and asked to sign on blank cheques, the respondent had filled in the nomination form of his General Provident Fund showing his status as unmarried and nominated his father and mother as nominees of this Fund etc. She thereafter stepped into the witness box and reiterated all these allegations and to lend support and corroboration to what she had stated, the evidence of other witnesses was recorded. Exts. P-5, P-6, P-7, P-8 and P-9 are the statements of the witnesses and Ext. PW-4/A is the nomination form. As noticed, this petition was withdrawn on 8.11.2000 and thereafter on 9.4.2001, the present petition was filed.
7. Learned Counsel appearing for the appellant submits that she had legitimate grounds to withdraw from the company of the respondent as he has admitted in his cross examination that when the appellant used to ring him up to effect conciliation, the respondent's parents, sometimes the father and sometimes the mother would answer the telephone and threatened her with dire consequences to the extent of breaking her legs in case she ever dared to attempt to come to the respondent's house. This submission though prima facie attractive cannot be accepted for the reason that the respondent in his statement has admitted receiving calls from the appellant but has said that every time he answered the phone, she would turn aggressive and would abuse him in filthy language. The statement of this witness has to be considered as a whole and not in parts. It is also clear from the record and the admission made by the appellant that there has been no cohabitation between the parties since 1.8.1995. The evidence on both sides suggests that attempt were made to reconcile, but the blame for failure is being foisted on the other party. The record establishes that the allegations made in the previous petition for divorce instituted by the appellant (Ex. P-2) have remained unproved and these very allegations have again been made in reply to the petition out of which the present proceedings arise where also none of the acts attributed to the respondent have been proved on record of the case.
8. Learned Counsel for the appellant urges that the learned Court was clearly wrong in granting a decree for divorce. He submits that it was the respondent who had forced the petitioner out of her house and in these circumstances, she had no choice but to stay away. Her absence was not voluntary but owing to circumstances created by the respondent who refused to allow the petitioner to rejoin his company. He places reliance on a decision of this Court in Mohan Singh v. Smt. Leela Devi : 2007 (1) Shim. L.C. 327. He submits that the ingredients of Section 13 of the Act have not been established and that a pragmatic approach should be adopted to salvage the marriage. He relies upon a decision of the Supreme Court in Sujata Uday Patil v. Uday Madhukar Patil (2006) 13 SCC 272. Two other decisions relied upon by the learned Counsel for the appellants may be noticed. They are A. Jayachandra v. Aneel Kaur : (2005) 2 SCC 22 and Shyam Sunder Kohli v. Sushma Kohli alias Satya Devi : (2004) 7 SCC 747, holding that Court should not dissolve the marriage early and the matrimonial ties be accorded their true place in society.
9. The law is by now well settled. In Samar Ghosh v. Jaya Ghosh : (2007) 4 SCC 511, the Supreme Court, after considering the entire case law, held:
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 live 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.
(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 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 considerable period without there being any physical incapacity or valid reason 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 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.
10. The approach of the learned District Judge in appreciating evidence cannot be commended. Obviously, in cases of cruelty where allegations are made against a spouse and his family members, there is a very little possibility of finding independent witnesses. A pragmatic approach has to be adopted.
11. In the present case, one fact emerges clearly and that is the appellant had gone to Court under Section 13 of the Act pleading cruelty against the respondent and not only pleading but even leading evidence to establish the alleged acts of cruelty. After completing her evidence, she abandons the petition. Whether it was for natural love and affection for the respondent, is not established on record, but her explanation in evidence that it was on advise to secure the future of the child. This explanation seems to be rather twardy since she again led evidence but was not successful in proving these allegations in the defence set up by her in the present proceedings. The respondent was dragged to the Court possibly for the reason that she wanted to create a situation to show that she was not at fault but her absence from the matrimonial home was for legitimate reason of ill treatment by the respondent. The facts show that there is no love lost between the parties although the marriage between them had its origin in mutual attraction followed by Courtship whereafter the marriage was arranged. On the submission made by the learned Counsel for the appellant that the respondent had condoned the acts of cruelty alleged to have been committed by the appellant when she made the allegations in Ex. P-2 and followed it up with evidence, all that need be said is that the facts on record do not establish this as the respondent had petitioned the Court within a period of 3-4 months of the appellant abandoning her first petition. These allegations were again repeated by the appellant herein in defence in this case.
12. Learned Counsel for the appellant drew my attention to the cross examination of the petitioner which according to him establishes the case set up by the appellant herein to the effect that it was the parents of the respondent who obstructed her from joining his company. In particular, he has made reference to that part of the evidence wherein the respondent admits that his parents had actually threatened to break the legs of the appellant in case she dared enter the house of her in laws. This statement cannot be taken out of context and the entire evidence has to be read as a whole. The petition instituted by the appellant herein was replete with pleadings attributing acts of cruelty to the husband which petition was then abandoned. One of the grievances of the appellant herein was that the respondent had nominated his parents instead of the appellant herein as a nominee for the Provident Fund etc. and had shown his status as being unmarried. The statement of the appellant that she was beaten up and subjected to cruelty has not been believed by the learned trial Court. I do not find any reason to differ from that finding. It is undisputed that the parties are not living together since 10.8.1995 and there is no evidence on record to show that the respondent was in any manner responsible for keeping the appellant out of the matrimonial home. In the circumstances, the findings arrived at by the learned District Judge that the appellant has deserted the matrimonial company/house of the respondent is established on record of the case. It is also established that the appellant had in fact filed a petition for divorce on the grounds of cruelty which she abandoned unilaterally and the explanation offered by her does not inspire confidence. The facts on record show that what once was affection between the parties has not turned into total hate and there has been a continuous separation between the parties which would render their living together as a mere fiction. Principles (i) and (xiv) as laid down by the Supreme Court in Samar Ghosh's case supra are clearly attracted and established on record of the case. In the facts and circumstances of the case, I find no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. The right of the appellant, herein and the daughter to claim maintenance from the respondent has not been foreclosed by this judgment and they shall be entitled to claim such maintenance etc. in accordance with law.