CIVIL APPEAL None on 3 June 1996

ORDER

Surya Kant, J.- This Appeal has been filed by the wife against thejudgment dated 3.6.1996 passed by the learned Additional District Judge,Bhatinda whereby a petition under Section 13 of the Hindu Marriage Act(for short the Act) on the ground of cruelty and desertion, preferred by therespondent – husband, has been accepted and their marriage has beendissolved by a decree of divorce.

[2].The marriage between the parties was solemnized on 19.2.1973at Patiala. At the time when the subject divorce petition was filed by thehusband on 21.10.1991, they had three male children born out of thewedlock and they were about 18, 16 and 12 years of age respectively. In his petition, the respondent alleged that the behaviour of the appellant towardsthe respondent and his old mother was “indifferent” from the verybeginning; that she is “suffering from some sort of mental disorder” with theresult that she refused to cook meals for him and the minor children; thatshe “levelled false allegations qua the character” of the respondent; that shegave severe beatings to the mother of the respondent on 22.9.1990 and thatas a result thereof, he filed a divorce petition in which the appellantallegedly made a statement on 13.3.1991 that she will not misbehave infuture with the respondent or his mother and undertook not to file anycomplaints against him either to the police or to the higher authorities of theBoard; that the matter was compromised and the petition for dissolution ofthe marriage was withdrawn.

[3].The respondent has further averred that soon after the abovestated compromise, the appellant allegedly refused to honour her words andstarted making “false and frivolous complaint” to the DeputyCommissioner, Bhatinda alleging that she had fear for her life at the handsof the respondent. The respondent alleged that he along with the childrenhas been forced to “live in the small rented house” and that he has a vastcircle of friends but the appellant allegedly refused to look after the visitorsand forced the respondent to “cook meals, clean utensils and wash theclothes of the children also”. This fact was allegedly noticed by therelatives and friends of the respondent who used to visit the house therebycausing great mental cruelty to him as the respondent's reputation stoodblotted. It was further alleged that the appellant in connivance with herfather “broke open the locks of the house which is under the possession ofhis mother and valuable articles were removed....”. It was also alleged that the appellant threatened the respondent “to get him physically liquidated”.On the strength of these allegations, the respondent sought dissolution oftheir marriage by a decree of divorce.

[4].The appellant contested the above stated petition vide her replydated 16.12.1992 and took a preliminary objection that the respondent infact was taking advantage of his own wrongs as it was he who subjected herto cruelty even though she wanted to lead a honorable life with him. Theappellant specifically averred that the respondent has deserted her “withulterior motive and has declined to give food and shelter”. On merits, theappellant took the plea that soon after their marriage, the respondent startedharassing her for bringing insufficient dowry and did not even attend themarriage of her brother held in the year 1974. She alleged that till the timeher father-in-law was alive, the respondent used to behave reasonably well,however, after his death in the year 1978, he started beating her mercilesslyand on many occasions refused to provide food or woolen clothes duringwinters. It was alleged that for the last over five years, the respondent hasbeen continuously beating her so badly and ruthlessly that it has alsoaffected her eye sight. She denied the allegations that she refused to cookfood for the respondent, their children or her mother-in-law or that she evermade any false complaints against the respondent to the authorities. In para6 of the written statement, the appellant specifically alleged that in fact therespondent “desired to re-marry and wanted to get rid of her”. She furtheralleged that the previous divorce petition was withdrawn by the respondentafter stating that he had compromised the matter and shall not beat her andwill behave properly in future. In fact the divorce petition was withdrawnby him to avoid maintenance pendente-lite and litigation expenses. The appellant specifically averred that she never refused to accompany therespondent, rather it is he “who refused to take the respondent to his home”.She further averred that since the respondent wanted to turn her out of thematrimonial home, he “himself left the house along with children andstarted residing in Ganesha Basti in House No.W-4/813 Bhatinda” andthereafter got filed eviction application against her from his mother allegingtherein that she was a tenant in the house. The appellant admitted that shehad to approach the Deputy Commissioner Bhatinda as her life and libertywas at stake for the reason that the respondent sent “hired unsocial elementsat midnight at her residence” on 2[nd] May, 1991 and 4[th] May, 1991 who waslater on caught by the neighbours and was given severe beatings.Fortunately, her father was with her at that time.

[5].In his rejoinder, the respondent – husband not only reiteratedthe allegations, he further averred that since he refused to pay Rs.25,000/- tothe brother of the appellant who wanted to expand his business of weldingmaterial, she became totally arrogant and threatened him that she will takerevenge later on. Admitting the poor eye sight of the appellant, therespondent averred that she is suffering from an “inherited disease.... whichcannot be cured....”. He denied the allegations that he wanted to re-marry.

[6].On the basis of the pleadings, following issues were framed bythe learned trial court:- “1. Whether respondent has deserted the petitionerwithout any sufficient and reasonable cause? OPAwithout any sufficient and reasonable cause? OPA

2. Whether the respondent is guilty of cruelty as allegedin the petition? OPAin the petition? OPA

3. Whether the respondent is entitled to special costs as alleged in the written statement? OPR

4. Whether the petitioner has no cause of action and locusstandi to file the petition?standi to file the petition?

5. Relief.”

[7].In order to discharge his onus qua issues No.1 and 2, therespondent examined formal witnesses Prem Kumar (AW1), who is arecord-keeper in the Sessions Division at Bhatinda and produced the file ofprevious divorce petition HMA No.35 dated 28.9.1990 decided on13.3.1991 as well as Surjit Singh (AW2), who being Reader to the Court ofAdditional District Judge Bhatinda on 13.3.1991, had recorded thestatements of the parties. The respondent also examined Om Parkash(AW3), ASI Kashmir Singh (AW4), Uzagar Singh (AW5), Amrik Singh(AW6), Constable Dalbir Singh (AW7), Head Constable Gurcharan Kaur(AW8), respondent, himself as (AW9) and Madan Lal Sharma (AW10) andalso relied upon documents Ex.A1 to A8.

[8].The appellant, on the other hand, examined her brother AmarNath Gupta (RW1) and she herself entered the witness box as (RW2). Shealso relied upon the documents Ex.R1 to R6.

[9].Upon appreciation of the above stated evidence and whiledeciding the issues No.1 and 2 together, the learned Additional DistrictJudge held that the appellant refused to prepare tea for the visitors, she oftenabused her husband and made false complaints against him to the police andhis colleagues/superiors. The appellant's statement dated 13.3.1991 (Ex.A1)in the previous divorce petition, which was compromised, has also beenrelied upon to arrive at the aforesaid conclusion. The learned trial court alsoplaced reliance upon Ex.A4, a report alleged to have been made by HC

Gurcharan Kaur and concluded that, “there is no rebuttal to documentaryevidence of the petitioner regarding the alleged cruelty by the respondent”and that the appellant “only wanted to extract money from the petitioner byfiling various petitions and applications before the police”. The learned trialcourt held that it was a case of causing 'mental cruelty' to the husband who“made every effort to join the respondent in his company”. The learned trialcourt further held that the appellant-wife has deserted the respondent“without any sufficient and reasonable cause...”. Both the issues wereaccordingly answered against the appellant, resulting into passing of theimpugned judgment and decree.

[10].I have heard Learned Counsel for the parties, perused thepleadings, the impugned judgment as well as the evidence on record.

[11].Before adverting to issue No.2, i.e., “whether or not therespondent is guilty of cruelty as alleged in the petition”, I firstly propose todeal with issue No.1, as to whether she had “deserted the respondentwithout any sufficient and reasonable cause?”.

[12].If one reads the petition under Section 13 of the Act dated21.10.1991 , it is evident in unequivocal terms that no allegations, what-so-ever, that the appellant ever deserted her husband without any sufficientcause, have been made. The entire petition is founded upon the allegationsof cruelty and it is in that process that the respondent in para 8 of thepetition has averred that he along with his sons, who are studying inConvent School and DAV College, Bhatinda respectively, “have beenforced to live in the small rented house”. No averment that the appellantvoluntarily left her matrimonial home and, thus, deserted the respondent,has been made. In the absence of such allegations, how issue No.1 was

framed, is beyond comprehension. Be that as it may, it is the admitted factthat house no.3880, Neeta Street, behind Gurdwara Singh Sabha, Bhatindais owned by the respondent or his mother. The parties were admittedlyresiding in the said house only, as the respondent himself gave the sameaddress for both the parties in his first divorce petition No. HMA35 dated28.9.1990. The parties were, thus, residing under the same roof not only inthe year 1990 but also at the time when they compromised their matrimonialdispute on 13.3.1991. In para 6 of her written statement, the appellant –wife has specifically averred that the respondent – husband “himself left thehouse along with children and started residing in Ganesha Basti in HouseNo.W-4/813 Bhatinda”. This fact has been admitted by the respondent inpara 8 of the divorce petition though in a different manner. Not only this,the appellant admittedly continues to stay in the same house owned by therespondent or his mother even though the respondent attempted to throw herout by getting an eviction petition filed through his mother. The appellant'sspecific stand that an eviction petition was filed by her mother-in-lawalleging her to be a tenant in the premises, has not been controverted by therespondent in his rejoinder. If that is so, the conclusion drawn by thelearned trial court that the appellant has deserted her husband without any“sufficient cause” is totally contrary to the evidence on record. It is therespondent who concededly left the matrimonial home and shifted to arented accommodation. The finding returned by the learned trial court onissue No.1, therefore, cannot sustain and is accordingly set aside.

[13].This takes us to the crucial issue as to who out of the twosubjected the other to cruelty of such a high degree that the matrimonial tiehad to be snapped by a decree of divorce.

[14].At the cost of repetition, it may be noticed that in order to provethe allegation of cruelty at the hands of the appellant, the respondent hasalleged that she (i) refused to cook meals for the family; (ii) levelled falseallegations on the character of the respondent; (iii) gave beatings to themother of the respondent; (iv) admitted these allegations in her statement on13.3.1991 in the previous divorce petition when she said that she will notmisbehave in future; (v) moved false and frivolous complaints to the DeputyCommissioner, Bhatinda; (vi) in connivance with her father, broke open thelocks of the house and removed the valuables; and (vii) threatened thepetitioner to get him physically liquidated.

[15].To prove the above reproduced first allegation, the respondentin addition to his own statement, has examined Om Parkash (AW3). Thesaid witness has deposed that whenever he “visited the house of thepetitioner and he requested the respondent to prepare tea, she refused for allthe times”. He, however, has admitted that “he did not know as to whetherthe respondent used to prepare meals for her husband, mother-in-law andchildren” as according to the witness, he “did not sit in the house all thetimes”. The statement of this witness inspires no confidence at all. He wasa family friend of the respondent. No date, month or year of his alleged visitto the house of the respondent has been disclosed by him. A sweepingstatement by an interested witness, which is totally vague in nature, cannotbe termed as a reliable evidence. So far as the respondent's own version isconcerned, no credence can be given to the same as it would be revealedthat he was hellbent on throwing the appellant out of her matrimonial homeon one pretext or the other. The second instance of cruelty is sought to besubstantiated through Uzagar Singh (AW5) who has deposed that the appellant “used to abuse” the respondent. In his cross examination, he hadto concede that he did not remember as to when did he visit the residence ofthe parties. He admits that the appellant visited his residence andcomplained that her husband is not “paying any maintenance nor keepingher with him”. If those were the state of affairs that the appellant wife hadto rush to one family friend or the other for her sustenance, how could theappellant be held guilty of subjecting the respondent to cruelty? The otherwitness Amrik Singh (AW6) - a Junior Engineer is also a colleague of therespondent. While he claims that the appellant used to go to the office ofthe XEN/SDO for making complaints against her husband and used to utterobnoxious remarks against him, he admits having no knowledge as towhether or not the respondent provided food and clothing to his wife and/orpaid maintenance. Interestingly, the complaint (Ex.A8) produced byConstable Dalbir Singh is a complaint made by the mother of the respondentagainst the appellant before the SSP, Bhatinda. How on the earth the saiddocument could be relied upon against the appellant to establish the allegedcruelty by her towards the respondent, is beyond any legal fiction. Thelearned trial court, however, has taken these self-serving complaints madeby the respondent or his mother also as an evidence against the appellant. [16].This takes us to the third incident, namely, a complaint by theappellant to the Deputy Commissioner, Bhatinda. The appellant hascandidly admitted in her written statement as well as in her deposition thatshe made a complaint to the Deputy Commissioner, Bhatinda. She has,however, given a specific reason, namely, that in the midnight of 2.5.1991and 4.5.1991 respectively, the respondent sent an unsocial element hired byhim to her residence who was caught and thrashed by the neighbours.

Fortunately, the father of the appellant was staying with her during thosedays. The respondent has not been able to dispute this occurrencespecifically. Had she been all alone, any untoward incident could havetaken place. In these circumstances when the respondent was adopting allsorts of dubious means to brow-beat and terrorize the appellant so as toforce her to vacate the house of his mother, what sin the appellant hadcommitted by approaching the district administration for the protection ofher life and liberty? This was a lawful action taken by her, which, with nostretch of imagination, can be termed as an act of cruelty on her part.

[17].Adverting to the allegation that the appellant gave beatings tothe mother of the respondent, firstly, no evidence of causing such beatings,like medico-legal report, etc. has been brought on record. No independentperson, who might have witnessed such an incident, has come forward todepose. Even the mother of the respondent has not come and deposed. Notonly this, the eldest child of the parties was 18 years old when the divorcepetition was filed. Even he could have been produced to depose the truth.In the absence of an iota of evidence, no reliance on the bald statement ofthe respondent, can be placed. There is no other evidence to support theallegation that the respondent was ever subjected to cruelty by the appellant.The conclusion drawn by the learned trial court on issue No.2 is also, thus,contrary to the evidence on record and is, therefore, reversed.

[18].There are, however, more than one reason to hold that therespondent founded his petition upon totally false allegations and it is ratherhe who has subjected the appellant with extreme cruelty. The evidence onrecord does suggest that she was physically tortured and has been deprivedof basic necessities for survival and to live with dignity. She has lost her eye sight due to cruel and callous attitude of the respondent who could notmuster the strength to deny the said truth though has sought to explain thatthe appellant was not taken for treatment, as she was suffering from an“incurable hereditary disease”. It cannot be overlooked that it was a casewhere the marriage was solemnized long back in the year 1973. No faultwas found with the appellant's behaviour when three children were sired andthey grew up enough to look after themselves independently. It is thereafteronly that the respondent started finding consistent faults with the appellant.From thezimniorders passed by the learned trial court, it is apparent that therespondent has been adopting one or the other unsavory means to delay ordeny the payment of maintenance to the appellant. She was forced to visitthe offices of higher authorities of the respondent as well as his friends inorder to persuade him to pay maintenance to her. The fact that therespondent also got filed an 'eviction petition' through his mother to renderthe appellant homeless, is yet another strong circumstance to exhibit hisvengeance against the appellant.

[19].The appellant's allegation that the respondent himself left thematrimonial home as he did not want to live with her, is further proved bythe fact that on 28.8.1993, the divorce petition was put before the LokAdalat where he compromised the matter and agreed to take the appellantwith him. He, however, turned around and later on made a statement thatthe “situation has changed and he is not ready to keep her”. It is also onrecord that even for the recovery of the arrears of maintenance, the appellantwas forced to file a civil suit.

[20].For the reasons afore-stated, the impugned judgment dated3.6.1996 passed by the learned Additional District Judge, being contrary to the facts and evidence on record, is liable to be set aside.

[21].The matter, however, is not as simple as to be rested here. Theparties were married in the year 1973. They have been admittedly livingseparately since the year 1991. Their children have grown up and aremarried. In order to find out an amicable solution, their eldest son was alsoasked to be present in Court. He did come. The parties were heard inperson also. The appellant is in a pitiable condition. She has almost turnedblind and is now confined to a one room accommodation, which is stated tobe in a dilapidated condition. The respondent has refused to carry out thenecessary repairs even when the appellant's right to residence is a part andparcel of her right to maintenance. (Ref: B.P. Achala Anand v. S. AppiReddy, (2005)3 SCC 313) She cannot spare money out of a meagre amountof Rs.600/- which she is getting as maintenance pendente-lite. Though theappellant's suit for recovery was decreed by both the courts below, however,the Regular Second Appeal preferred by the respondent was admitted andoperation of those judgments was stayed. She, thus, could not recover evena penny from the respondent. In these peculiar circumstances, theintervention of the parties' son was sought but he too expressed hishelplessness in resolving the dispute. As the respondent took a categoricstand not to take the appellant to her matrimonial home in any circumstance,the appellant was persuaded and she reluctantly agreed to part ways onpayment of a reasonable and respectable lump-sum amount, a part of whichshe urgently requires for her eyes' surgery and repair of the one room house.This was also not acceptable to the respondent.

[22].As the parties are living separately from the last 15 years andthe bad blood against each other is still boiling hot, it is undoubtedly a case of irretrievably broken marriage. The parties are at a point of no-return.While the respondent cannot encash his own misdeeds, the appellant alsoneed not be foisted upon him at this stage as he is not ready to accept herfor the re-beginning of their married life. The solution to such a dilemmalies in the principles enunciated by the Hon'ble Supreme Court in the case ofNaveen Kohli v. Neelu Kohni, 2006(4) SCC 558. Applying the dictum laidtherein and keeping in view the peculiar facts and circumstances of thiscase, as noticed above, I uphold the decree of divorce not on the ground of'cruelty' or 'desertion' as granted by the learned trial court, rather afterholding that it is a case of irrepairable broken marriage. The marriage istotally dead and has ceased to exist. The parties have no sentiments for eachother. The decree of divorce, granted by the trial court, therefore, is keptintact subject to, however, the condition that the respondent – husband shallpay a total sum of Rs.5 lacs to the appellant within a period of six months,i.e., a sum of Rs.1 lacs shall be paid by him within one month from the dateof receipt of a certified copy of this order and the remaining four lacs in twoequal installments of Rs.2 lacs each, the first one to be paid two monthsafter the payment of Rs.1 lac and the balance amount of Rs.2 lacs shall bepaid by him in another three months thereafter.

[23].The lump-sum amount has been awarded after taking notice ofthe fact that the respondent has not only got lacs of rupees towards retiralbenefits, he, along with his sons, is also running flourishing businessincluding an industrial unit. He is, thus, financially sound and capable topart with the aforesaid amount.

[24].However, if the respondent fails to pay the afore-stated amountto the appellant within the prescribed time schedule, in that event the appeal shall stand allowed and as a result thereof the judgment and decree dated3.6.1993 passed by the learned Additional District Judge, Bhatinda wouldbe taken to have been set aside with costs of Rs.15,000/-.

February 27, 2008.kadyan

[ Surya Kant ]Judge