FAO No.76-M of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.76-M of 2008
Date of decision: 29.07.2009
Vandana ..Appellant
Versus
Deepak ...Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present:- Mr.Sanjay Majithia, Sr. Advocate,
with Mr.J.S.Gill, Advocate,
for the appellant.
Mr.Kanwaljit Singh, Sr.Advocate,
with Ms.Prachi Sharma, Advocate,
for the respondent.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
—
VINOD K. SHARMA,J.(oral)
Appellant/wife has filed this appeal against the judgment and
decree dated 13.03.2008 passed by the learned Additional District Judge,
FAO No.76-M of 2008 2
(Fast Track Court) Ambala, decreeing the petition filed by the
respondent/husband under section 13 of the Hindu Marriage Act (for short
the Act) seeking a decree of divorce.
Pleaded case of the husband/respondent was that the marriage
between the parties was solemnized on 31.1.1990 at Ambala Cantt
according to Hindu rites and ceremonies. After the marriage the parties
cohabited and lived together and out of this wed-lock 4 children i.e. three
daughters and one son were born. Daughter named Ashta was born on
1.2.1991, whereas daughter Prerna was born on 24.6.93 and daughter Kripa
and son Jawanshu were born as twins on 25.3.2000. Appellant/wife was
stated to be spend-thrift. After the marriage the parties resided at the
parental house of the respondent//husband at 154 Mahesh Nagar, Ambala
Cantt for few months only. The mother of the appellant was said to be
interfering in the matrimonial life of the parties, and further that the
appellant was also towing the lines of her mother.
It was also the case of the respondent/husband that the
appellant/wife started pressurizing the respondent/husband to have a
separate residence away from his parents. Constant interference and
wasteful expenditure habits of the wife started creating tension in the
family, and ultimately the husband got separated from his parents and took a
house on rent in Arya Nagar. The case set up by respondent was that in spite
of separate residence parents of the appellant continued interfering in the
matrimonial life. The respondent/husband claimed that he had sufficient
means and therefore, was providing all comforts of life to the appellant/wife
but her demands increased day by day. When objected to, she started
FAO No.76-M of 2008 3
insulting the respondent. It was also the case of the husband that the mother
of the respondent/wife was against the marriage and she was looking for an
opportunity to let down the respondent/husband, but the respondent had
been tolerating all this with a hope, that after birth of the children there
would be sea change in the nature of the respondent. However, she did not
change even after the birth of first child rather humiliation increased to the
extent that the landlord got the house vacated. The respondent/husband kept
on changing the rented accommodation. From Arya Nagar they shifted to
the area of Janak Puri, where parties lived for about one year. Again on
account of the attitude of the appellant/wife they had to shift to another
rented accommodation. Therefrom also they had to shift because of the
attitude of the appellant.
It was on account of the act and conduct of the appellant, and
her mother’s attitude, that the respondent was compelled to convene a
panchayat comprising Shri R.S.Walia and Shri Vinod Walia in May, 1994.
In the panchayat father of the appellant apologized for the acts of the
appellant and promised that his wife i.e. the mother of the appellant would
not interfere in the matrimonial life of the respondent. It was also decided
in the panchayat that the parties would shift to parental house of the
respondent but in spite of settlement the appellant again started creating
scenes, and the visits of the mother of the appellant became a routine affair.
Both the mother and the appellant humiliated the respondent. It was also the
case of the respondent/husband that he was being pressured to claim share
in the parental property. It was on account of this that he again had to shift
to House No.182, Mahesh Nagar, Ambala Cantt. The case set up further was
FAO No.76-M of 2008 4
that his parents refused to accept the demand of the respondent, for share,
then the appellant/wife along with her mother hatched a conspiracy and got
lodged FIR No.85 dated 23.5.1996 against the respondent/husband as well
as his younger brother Neeraj for alleged commission of offences under
sections 304B/511/306/511/498A/406 IPC with Police station Mahesh
Nagar. In the FIR, the respondent and his brother were arrested and released
on bail. They also faced agony of trial for about 3 years. However, they
were finally acquitted by the learned Sessions Judge, Ambala on 15.6.1999.
On 12.6.1999 the appellant executed a writing admitting therein that she
had realized her mistake in lodging the FIR.
The case set up, therefore, was that after deserting the
respondent for more than 3 years, the appellant joined the matrimonial home
in June, 1999 in rented house at Jain Nagar, Ambala Cantt but there was no
change in her attitude and her aggression continued. The appellant used to
visit beauty parlour at least twice in a week and was wasting the money on
clothes. On account of her habits the respondent became indebted to his
various friends and whenever she was checked to curtail expenses she used
to create scenes which resulted in the landlord asking them to vacate the
premises. The respondent/husband purchased House No.137, Durga Nagar,
Ambala Cantt in his name, after raising a loan on which the appellant/wife
misbehaved with him and slapped him in the presence of Uttam Rishi and
Parvinder for not having got executed the sale deed in her name. He claimed
that he was pushed out of the house and gate was locked from inside and
not permitted entry the house. The appellant was said to have gone to Bias
without informing the respondent and that the respondent had to take
FAO No.76-M of 2008 5
shelter in the house of friends. The respondent/husband complained about
the conduct of the appellant to her mother and father, but they showed their
helplessness. The appellant and her mother were alleged to have given him
beating for not transferring the house in the name of the appellant. This all
was claimed to have been tolerated by the respondent for the sake of
children. A complaint was also made to Superintendent of Police, Ambala
and a compromise was executed on 27.10.2004.
The case further set up was that even after the compromise
there was no change in the habits and she continued insulting the
respondent husband. A demand of Rs.2 lacs was raised for opening a
boutique, but as the respondent was unable to arrange that amount as he was
paying instalments of the house loan, the behaviour of the appellant became
worst and she even refused to cook the meals. She further started locking
the gate in the evening and respondent had to take shelter in the house of
his friends. It was further pleaded that on 20.4.2005 the appellant and her
mother asked the respondent for a sum of Rs.2 lacs and on his refusal he
was pushed out of the house.
It was also pleaded that in view of the acts of the appellant the
health of the respondent deteriorated and he consumed sleeping pills to
commit suicide. He was admitted in Civil Hospital, Ambala, where neither
the appellant nor her parents came to see him. The case set up by respondent
was that the appellant was in the habit of harassing, torturing and
humiliating him and making false allegations and complaint against him. It
was pleaded that the acts of cruelty were not condoned, in any manner.
Notice of the petition was given. The petition was contested by
FAO No.76-M of 2008 6
the appellant/wife by pleading that the petition was not framed in
accordance with the law and rules. Petition was said to be mala fide one. It
was pleaded that the respondent was trying to take benefit of his own
wrong. The case set up by the appellant/wife was that the respondent after
compromising the matter before the Biradari, as well as the police gave in
writing on 30.6.1995 that he will respect the appellant in future and will pay
a sum of Rs.10,000/- per month to her as well to his children. Instead of
complying with the said compromise the petition for divorce was filed.
It was also the case of the appellant that the respondent/
husband wanted to marry again, and spoil life of another lady. Other
averments made in the petition were denied. The case set up was that the
respondent is addicted to liquor and used to come late to house under the
influence of liquor, and to create a scene which compelled the parties to
change accommodation one after the other. Factum of lodging of FIR was
admitted, but it was submitted that subsequently compromise was arrived at
and therefore, the appellant did not lead any evidence, and the respondent
and his brother were acquitted.
It was admitted that Durga Nagar house was purchased in the
name of the respondent, but it was asserted that funds for purchase of house
were made available by the father of the appellant. It was also admitted that
the house was mortgaged with the bank. It was asserted that the
respondent/husband was creating evidence to get rid of the appellant. Stand
was taken that the appellant was rightly prosecuted for causing mental and
physical cruelty to the appellant but she forgave the respondent to save the
matrimonial life for the sake of children. The prayer was made for dismissal
FAO No.76-M of 2008 7
of the petition.
In the replication, the averments made in the petition were
reiterated and those made in the written statement were denied. On the
pleadings of the parties, the following issues were framed:-
1. Whether the petitioner is entitled for a decree of divorce
on the ground of cruelty under section 13(1) of the Hindu
Marriage Act as alleged? OPP
2. Whether the petition is not maintainable? OPR
2. Relief.
In support of the assertion made in the petition the
respondent/husband appeared as his own witness and did not produce any
other witness. The appellant appeared into the witness box and closed the
evidence without leading any other evidence.
Learned matrimonial court referred to the judgment of Hon’ble
Supreme Court in the case of A Jayachandra Vs. Aneel Kaur 2005 (1)
CCC 402, wherein it has been laid down that the cruelty has to be
considered in the light of norms of marital ties of the particular society to
which the parties belong, their social values, status, environment in which
they live, and that the cruelty can be physical or mental. The act
complained of must be something more serious than the ordinary wear and
tear of married life. Cruelty is to be understood in the ordinary sense of the
term in matrimonial affairs and if the intention of the party is to cause harm,
harassment or hurt which could be inferred by nature of the conduct or
brutal act complained of, cruelty can be easily established. The absence of
intention does not make any difference, and there may be instance of cruelty
FAO No.76-M of 2008 8
by unintentional but inexcusable conduct of a party. Cruelty largely depends
upon the type of life the parties are accustomed to or their economic and
social conditions and their culture and human values to which they attach
importance. Physical violence is not absolutely essential to constitute
cruelty, and a consistent course of conduct inflicting immensurable mental
agony and torture may well constitute cruelty. 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.
On the principle of law referred to above, learned matrimonial
court held that the allegations levelled in the petition were vague which
were otherwise denied by the appellant/wife. The learned matrimonial court
held that there were allegations and counter allegations against each other
without there being any substantive proof. Allegations were general as no
specific date or instance was given in the petition or in the written
statement, the learned court, therefore, ignored the allegations of cruelty.
The learned matrimonial court was of the view, that it was
admitted fact that FIR No.85 dated 23.5.1996 was got registered against the
respondent as well as his younger brother under sections 304-B/511,
306/511 and 406/498-A IPC in which the respondent as well as his brother
were tried. It was after 2½ years of agony that the respondent and his
brother were acquitted. The appellant had supported the version of the
prosecution but in cross-examination she showed volte face which resulted
in acquittal. Learned matrimonial court, therefore, came to the conclusion
that initiation of criminal proceedings which were found to be false,
amounted to cruelty.
FAO No.76-M of 2008 9
The plea that the case was not contested in view of the
compromise Ex.P.2 was not accepted. The learned court was further pleased
to hold that if compromise Ex.P.2 is meticulously gone through it would
reveal that the appellant had stated that she had realized her mistake and
decided to withdraw the case got registered by her. The learned court further
held that in the compromise the respondent had agreed to have a separate
residence and decided that he would be residing with the appellant.
Learned matrimonial court, therefore, placed reliance on the
judgment of this court in the case of Poonam Kaur Vs. Jagjit Singh 2006
(1) MLJ 285, wherein this court has been pleased to lay down as under:-
“33. As to what constitutes condonation as envisaged under
Section 23 (1)(b) of the Act has no where been elaborated
under the Act. Condonation is a conditional waiver of the right
of the injured spouse to take matrimonial proceedings and it
does not amount to forgiveness in the ordinary parlance.
Normally condonation carries with it a rider that the injury
shall not be repeated. Condonation cannot be taken to be an
absolute and unconditional forgiveness. Therefore, in case the
matrimonial offence is repeated even after an act of
condonation on the part of the spouse, it gets revived on the
commission of subsequent act resulting in matrimonial
disharmony. The spouse who has earlier condoned the cruelty
in order to bring harmony in the matrimonial alliance cannot be
put at disadvantage due to unadjustable and cruel behaviour or
a commission of marital offence by the erring spouse.”
FAO No.76-M of 2008 10
and thus, held that the cruelty stood proved.
Learned matrimonial court also held that though irretrievably
broken down marriage is not one of the statutory grounds on which the
court could direct the dissolution of marriage but still in extreme cases the
court can direct dissolution of marriage on this ground. Reliance in this
regard was placed on the judgment of Hon’ble Supreme Court in the case of
A Jayachandra Vs. Aneel Kaur (supra), and the judgment of Hon’ble
Supreme Court in the case of Naveen Kohli Vs. Neelu Kohli 2006 (2)
CCC 226.
The learned matrimonial court decided issue No.1 in favour of
the respondent/husband, whereas issue No.2 was decided against the
appellant. Consequently, a decree of divorce was passed in favour of the
respondent/husband.
Mr.Sanjay Majithia, learned senior counsel appearing on behalf
of the appellant vehemently contended that the judgment and decree passed
by the learned court below deserves to be set aside for the simple reason
that act of cruelty in lodging of FIR stood condoned by the
respondent/husband as subsequent to his acquittal in terms of the
compromise entered into between the parties they cohabited as husband
and wife and twins were born thereafter.
Other allegations of cruelty were not accepted by the learned
matrimonial court itself and therefore, impugned order cannot be sustained.
Learned senior counsel for the appellant referred to the
agreement entered into between the parties on 12.6.1999 during the
pendency of criminal case. The compromise entered into between the parties
FAO No.76-M of 2008 11
reads as under:-
” That both the parties have agreed and decided to
cooperative with each and it has also been decided that party of
Ist part shall take separate from her parents accommodation and
shall keep the party of second part and the children with all
love and affection.
That the parents of either party shall not interfere in any
manner in the affairs of parties to this agreement.”
In pursuance to the agreement the appellant/wife did not
support the prosecution which resulted in acquittal of the respondent and his
brother. He referred to the order passed by the learned Sessions Judge,
Ambala, acquitting the respondent/husband. The operative part of which
reads as under:-
“10. Vandana (PW-1) is the complainant and wife of accused
Deepak Ailawadi. Although, in examination-in-chief she has
supported the prosecution story, yet, when she was cross-
examined on behalf of the accused, she took a summer-sault
and stated that theirs was a love marriage and her husband and
his relations never demanded any dowry from her nor her
husband ever gave her beatings and that on 22.5.1996 she was
not feeling well and therefore, she was taken to the hospital by
her neighbours that Deepak never asked her to take compose
tablets and that they both are living separately from her parents-
in-law since 1991. It is then stated by her that she gave her
earlier statement under some misunderstanding and under the
FAO No.76-M of 2008 12pressure of the police and that she did not make any statement
before the police and her signatures were obtained on blank
papers. This witness was allowed to be cross-examined by the
learned public Prosecutor, but even then she did not support
the prosecution story. It is a well settled principle of law that
veracity of a witness is tested during cross-examination and if
during cross-examination, a witness does not support the
prosecution story, then even through/she supports the
prosecution in examination-in-chief, the prosecution cannot
take any help from the same. Therefore, in this case, as
Vandana (PW 1) has not supported the case of the prosecution
during her cross-examination, her statement is of no help to the
prosecution to prove the guilt of the accused. Manmohan Walia
(PW 5) is father of Vandana and he has not supported the
prosecution story at all, although he was allowed to be cross-
examined by the learned Public Prosecutor. It may be stated
here that other two material witnesses in the case namely
Karuna Devi, mother of Vandana and, Ranjit Singh, neighbour
of Vandana, were given up by the prosecution as having been
won over by the accused. Thus, there is noting on the file which
could connect any of the two accused with the offences for
which they have been charged.”
It is, thus, contended that the appellant/wife in order to save the
matrimonial home stood by the compromise and as already observed
above, the husband also accepted the compromise and the parties cohabited
FAO No.76-M of 2008 13
as husband and wife after compromise and twins were born. Therefore,
there can be no doubt that the act of cruelty stood condoned. Findings of the
learned matrimonial court on issue No.1, therefore, cannot be sustained.
Mr.Kanwaljit Singh, learned senior counsel appearing on
behalf of the respondent supported the judgment and decree by asserting,
that it was the cumulative effect of the acts which was required to be seen.
The evidence and pleadings of the parties proved the allegations that the
respondent/husband was treated with cruelty.
Learned senior counsel contended that specific pleadings were
made with regard to the false prosecution, by the appellant which fact was
admitted in the written statement. It is further the contention of the learned
senior counsel that specific averments with regard to the cruelty were also
levelled in the pleadings which were duly supported in evidence, therefore,
it could not be said that the allegations of cruelty were vague and were not
specific.
Learned senior counsel for the respondent further contended
that even single act of cruelty was sufficient for decree of divorce.
The factum of launching prosecution coupled with behaviour of
the appellant was sufficient to hold that the findings recorded by the
learned matrimonial court, calls for no interference. It was further
contended by the learned senior counsel for the respondent that the marriage
having been irretrievably broken down, no ground is made to interfere with
the judgment and decree.
The finding of the learned matrimonial court that the
respondent/husband was entitled to decree of divorce on the ground of
FAO No.76-M of 2008 14
irretrievably broken down marriage, also deserves to be set aside in view of
the law laid own by this court in the case of Gurdeep Singh alias Tota
Singh Vs. Jaspal Kaur 2009 (1) RCR (C) 593, wherein, after considering
the law on the point, it has been laid, that irretrievably broken down
marriage is no ground for grant of divorce.
On consideration, I find force in the contentions raised by the
learned counsel for the appellant.
Reading of the compromise and the order passed by the
criminal court, coupled with the fact that parties started residing as
husband and wife and twins were born, leaves no manner of doubt that the
act of cruelty complained stood condoned, and therefore, could not be a
ground to grant divorce. The other allegations levelled qua cruelty were not
proved on record. Instances referred to by respondent/husband as pleaded,
show that these were not specific and lacked material particulars,
furthermore these were not proved by the respondent by leading
independent evidence. In the pleadings he named certain persons in whose
presence he was said to have been humiliated, but none was produced to
support his version. Except for his bald statement, no evidence was brought
on record, in support of the allegations.
Learned matrimonial court, therefore, rightly held that the
allegations with regard to the habit of wasteful expenditure, and her living
levish life, and that in order to lead such life she was demanding money
repeatedly from the respondent, and that she was playing in the hands of her
mother, who was interfering in their matrimonial home, and further that he
was slapped and given beating by the appellant were not proved. These
FAO No.76-M of 2008 15
were specifically denied. Similarly, assertions made by the wife were also
rejected for want of evidence.
As observed above, divorce could not be granted on an act of
cruelty which stood condoned. Finding by the learned matrimonial court on
issue No.1, is, therefore, reversed.
Resultantly, this appeal is allowed. The judgment and decree
passed by the learned matrimonial court is set aside, and the petition filed by
the respondent/husband under section 13 of the Act is ordered to be
dismissed, but with no order as to costs.
29.07. 2009 ( VINOD K. SHARMA ) rp JUDGE