Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
Jasbir Kaur vs Kuljit Singh on 27 August, 2009
FAO No.211-M of 2003                                           1



      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH



                                       FAO No.211-M of 2003
                                       Date of decision: 27.08.2009



Jasbir Kaur                                              ..Appellant

                                 Versus

Kuljit Singh                                             ...Respondent




CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA



Present:-      Mr.Arun Jain, Sr. Advocate,
               with Mr.S.S.Dinarpur, Advocate,
               for the appellant.

               Mr.G.S.Bhatia, 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.

Appellant/wife is in appeal against the judgment and decree

dated 5.8.2003 passed by the learned Additional District Judge, Patiala

allowing the petition filed by the respondent/husband under section 13 of

the Hindu Marriage Act, 1955 (for short the Act).

FAO No.211-M of 2003 2

Facts leading to the filing of the present appeal are that the

parties were married as per Sikh rites at Chandigarh on 3.4.1990. After the

marriage the parties resided together at Patiala with some interval till

10.2.1992 and there were cordial relations between the parties. After

10.2.1992 appellant/wife never came to live with the respondent and

deserted the appellant for more than 4 years immediately before the filing of

the petition. No child was born from this wedlock. The respondent/husband

was working as Sub Divisional Officer in the Punjab State Electricity Board

and was posted at Patiala at the time of filing of the petition, whereas the

appellant/wife joined as clerk-cum- Cashier on 2.5.1990 in the State Bank

of India, Branch Office, Mohali. The appellant used to travel from Patiala to

Mohali till December, 1990 in order to attend her office. Thereafter the

appellant started visiting Patiala at the end of every week till the date of

desertion i.e. 10.02.1992. The case of the respondent further was that he

had requested the appellant either to get herself transferred from Mohali to

Patiala or take leave for longer period or in the alternative resign, as the

appellant had sufficient means to lead a happy married life. Request of the

respondent was declined and she continued with her job against the wishes

of the appellant. This was said to be cruelty towards the appellant. It was

also pleaded case of the respondent that in order to keep matrimonial tie

alive he tried to get himself transferred to Chandigarh and submitted an

application to his department but his request was declined. In spite of

rejection of his request of transfer the appellant continued with the job

against the wishes of the appellant. It was claimed that this act of appellant

amounted to cruelty and further that the appellant was guilty of desertion.
FAO No.211-M of 2003 3

It was also pleaded case of the respondent/husband that even

during her stay with the respondent, her attitude towards the respondent was

cruel as she used to maltreat and insult the respondent in the presence of his

friends and relatives. She used to taunt that the respondent was interested in

somebody else and was not interested to keep her. These allegations were

said to be false and frivolous. It was also pleaded case that on one occasion

the appellant remarked that as respondent did not tie his beard he looked

like an owl in the presence of relations and friends. The respondent further

alleged that when his friends visited his house during her stay, she never

offered even water what to talk of tea and sweets and would start quarreling

and calling bad names to the respondent in the presence of relations and

friends. The marriage was said to be simple in which no dowry was given

by the parents of the appellant, nor it was ever demanded and expected by

the respondent. In spite of this the appellant and his father in order to harass

the respondent and his parents got registered a false case under Sections

406/498-A/120-B IPC and tried to get him and his parents arrested.

On an application moved by the respondent for anticipatory bail

he had to deposit a sum of Rs.1 lac as ordered by this Court for payment to

the appellant, and it was thereafter, that his application for anticipatory bail

was considered and allowed. Amount of Rs.1 lac was deposited by the

respondent by taking loan from G.P.F., friends and relations so as to avail

concession of anticipatory bail. Respondent claimed that he was still under

debt of his friends.

The appellant with the help of police conducted raid on the

house of the respondent and all goods lying in the house were removed by
FAO No.211-M of 2003 4

the respondent, though the goods belonged to the respondent. The appellant

by misrepresentation and concealment of true facts, took away all articles

and put respondent under heavy loss and harassment. It was also alleged

that behavior of the appellant and his parents was very cruel towards the

respondent from the very beginning. The respondent further claimed that he

tried to reconcile the matter and took Panchayat to the house of the

appellant in the month of February 1992, but the appellant and her parents

refused to accede to the genuine request of the respondent.

On the occasion of Dussehra in the year 1992, the respondent

tried to bring the appellant to her matrimonial home at Patiala with the help

of his uncle and other friends, but she refused to accompany them. As such

the appellant was guilty of cruelty of desertion.

It was also the allegation of the respondent that in the presence

of respectables she levelled false allegations against the respondent that he

was impotent. Allegations were said to have been levelled by the appellant

in order to torture and humiliate the respondent.

The petition was contested by the appellant by raising a

preliminary objection regarding the maintainability of the petition. It was

averred that as per the pleadings, the parties had last resided together at

Chandigarh and therefore, only Courts at Chandigarh had the jurisdiction to

try and adjudicate the petition. It was also the case set up by the appellant

that on 10.12.1993, a compromise was arrived at between the parties in a

duly convened Panchayat comprising respectable persons, and relatives of

both the parties. Meeting of the Panchayat was held in Gurdwara, Sector-34

and Sector-35. In the Panchayat, it was decided that both the parties shall
FAO No.211-M of 2003 5

reside at Chandigarh w.e.f. 10.12.1993. This arrangement was arrived at as

it was not possible for the appellant to reside at any other place away from

Chandigarh, because she was then working as Assistant Manager in the

State Bank of India, Local Head Office, Sector-17, Chandigarh. It was also

the case of the appellant that compromise was accepted by both the parties

and further the father of the respondent assured, that they shall not resile

from the compromise in any manner. On the basis of this assertion, it was

claimed that Court at Patiala had no territorial jurisdiction.

It was also the case of the appellant that petition for divorce

was filed as a counter blast to the criminal complaint filed under Sections

406/498-A and 120-B IPC against the respondent and his parents on

18.8.1994. The appellant claimed that she was maltreated with cruelty

which ultimately resulted in filing of the complaint.

It was the positive case of the appellant that prior to the filing

of the criminal complaint, all possible measures to save the matrimonial

home were taken and attempts were made by the relations and friends.

However, the respondent did not accept the request made by

her.

Another preliminary objection was that the respondent was of

very quarrelsome nature and his conduct was very suspicious and doubtful.

It was averred that before the marriage with the appellant, the respondent

was engaged to a Canadian Girl namely Smt.Inderjit Kaur, The engagement

and Shagun ceremony with Smt.Inderjit Kaur was performed at Delhi, in

which he had received a sum of Rs.2 lacs along with other costly gifts.

It was alleged that the respondent and his parents were greedy
FAO No.211-M of 2003 6

persons, and just a day prior to the marriage with Smt.Inderjit Kaur, they

demanded dowry worth Rs.4 lacs, on account of which the marriage could

not take place and engagement was broken. Respondent, however,

succeeded in retaining a sum of Rs.2 lacs and other valuable articles. On

the basis of above said allegations it was pleaded that the conduct of the

respondent showed, that he was habitual in spoiling the lives of girls, after

receiving handsome amount.

On merit, factum of marriage was admitted. However, it was

denied that parties had cordial relations. The case set by the appellant was

that from the very beginning of the marriage the respondent and his parents

started maltreating the appellant, as they were not satisfied with the dowry

brought by her. It was claimed that father of the appellant had given

sufficient dowry beyond his capacity, but the lust of respondent and his

family members remained unsatisfied. It was also pleaded case of the

appellant that during the first five days of marriage the respondent and his

parents continued harassing the appellant for the account of salary of five

years service period, prior to marriage. It was alleged that respondent

threatened to teach her a lesson, in case she failed to account for the salary

of five years period prior to marriage. It was also the case of the appellant

that the demand of cash and dowry continued growing with passage of time,

which made the life of the appellant miserable with each passing day.

It was also case set up by the appellant that after marriage, the

parties resided at Patiala for some time and thereafter, they continued

residing at Chandigarh upto 31.12.1993 under the compromise. It was

pleaded that just after ten days of marriage, the respondent told her that
FAO No.211-M of 2003 7

they should adopt a child, rather than having their own child which led to

apprehension in her mind that respondent may be suffering from impotency.

It was pleaded that appellant had joined the Bank service on 13.5.1985

and was working as Clerk-cum-Cashier in State Bank of India, Mohali

Branch, when the marriage was solemnized. After the marriage the appellant

remained on leave upto 1.5.1990 and thereafter, she remained on leave for

five months. The appellant thereafter continued coming daily from Patiala to

Mohali to attend office. It was also averred by the appellant that she tried

her level best to maintain her relationship with the respondent and his

family members, but the respondent at the instance of his parents continued

to harass and humiliate the appellant with utmost cruelty. Even after taking

huge amount, on the night of 9.2.1992, the respondent made an attempt to

eliminate the appellant, but could not succeed, because of tactful handling

by the appellant i.e. that she agreed to sign the LIC papers after some time

as demanded.

On 10.2.1992, early in the morning in-laws of the appellant

again gave her severe beating to force her to sign the LIC policy, but, the

appellant refused to do so. She was thereafter thrown out of her in-laws

house in bare three clothes. In spite of this incident, the appellant hushed up

the matter, so that relations are not strained. It was also pleaded, that the

appellant sacrificed her promotion to the next higher rank, so that the

relationship between the parties may not suffer further damage.

The appellant claimed that she was eligible for promotion to

officer rank in the year 1990, but she did not avail that opportunity, as she

always desired to remain in the company of the respondent. The appellant
FAO No.211-M of 2003 8

had even applied for her transfer from Mohali to Patiala on 7.5.1990, which

showed her bona fide intention to maintain the matrimonial relations intact.

It was alleged that the respondent/husband never remained

interested in making the married life happy, rather, she was treated with

cruelty and humiliation by the respondent and his parents. It was claimed

that the respondent was interested in her continuing with job and that was

the reason to seek transfer from Patiala to Mohali. It was further alleged that

the respondent had married the appellant only with a view to have an

earning spouse. It was asserted that the respondent never applied for his

transfer from Patiala, nor he ever disclosed this fact to the appellant even

during his stay at Chandigarh. The appellant had no knowledge at all about

his application for transfer. The appellant denied the allegation of mis-

behaviour, and insult in the presence of relations. She claimed that she

treated the respondent, his parents, relatives, friends and other visitors

gracefully, and in a very appropriate manner. Allegation of simple marriage

was denied. It was alleged that marriage was performed with great pomp

and show, and various dowry articles like jewellery and cash were given to

the respondent and his parents.

It was also pleaded that a case under Sections 406/498-A and

120-B IPC was registered against the respondent and his parents after

thorough investigation by the Police. It was also the case set up that the

appellant and her parents, had tried their level best to persuade the

respondent and his parents not to adopt unwarranted ways. She claimed that

on occasion of Dussehra, the appellant along with her parents and uncle met

her father-in-law and the respondent so that the dispute could be patched
FAO No.211-M of 2003 9

up, as her parents hoped for improvement. It was pleaded that the meeting

was held at the House of Shri Malik Singh i.e. No.3392, Sector-19-D,

Chandigarh, but no concrete solution was found. It was in the meeting that

it came to the knowledge of the appellant, her father and the relatives that

Shri Malik Singh and father of the respondent were the main culprits in

humiliating and spoiling the relations so that the marriage of the

respondent could be arranged with third girl, to fetch some more money.

In the replication, averments made in the petition were

reiterated whereas averments made in the written statement were denied.

On the pleadings of the parties the following issues were

framed by the learned Matrimonial Court:-

1. Whether the respondent deserted the petitioner for two

years immediately before the presentation of the

petition? OPP

2. Whether the respondent treated the petitioner with

cruelty? OPP

3. Whether the petition is not maintainable? OPR

4. Whether the petitioner is entitled to the decree for

divorce?

5. Relief.

In support of his case respondent/husband appeared as PW 5

and also examined Gurinder Singh PW 1, D.K.Kapoor PW 2, Joginder

Singh PW 3, Satnam Singh PW 4 besides adducing documentary evidence.

To rebut the claim of the respondent/husband, the

appellant/wife herself appeared in the witness box as RW 10 and also
FAO No.211-M of 2003 10

examined HC Gurmeet Singh as RW 1, Daljit Singh RW 2, Prem Singh RW

3, Taranjit Singh RW 4, SI Jagbir Singh RW 5, Manjit Singh RW 6,

Harbhajan Singh RW 7, Bhupinder Singh RW 8, Sardar Singh RW 9 and

also led documentary evidence.

Issues No.1 and 2 were taken up together by the learned

matrimonial court.

In the background of settled principle of cruelty learned

matrimonial court assessed the evidence led by the parties to the effect that

the allegations of cruelty are based on the grounds that the appellant

continued with her job against his wishes, that the appellant passed taunting

remarks that he looked like a owl in the presence of his friends and

relatives, that her behavior towards the relatives was not good, as she never

served water etc. to guests and lastly that she falsely alleged him to be

impotent person.

Learned matrimonial court held that the respondent had

pleaded in the petition, that the appellant alleged him to be impotent person

in the presence of relatives. This assertion was supported by him while

appearing in the witness box. The learned court held that there was no

specific denial to these allegations, in the written statement rather the

appellant took a stand, that after 10 days of marriage the respondent told

her that they should adopt a child, rather than having their own. In this way

it was revealed that the respondent may be suffering from impotency. Even

while appearing in the witness box as RW 10 the appellant did not deny

the allegations of impotency having been made by her. The statement of

appellant in examination-in-chief was not challenged in cross-examination.
FAO No.211-M of 2003 11

Learned matrimonial court held that the plea of the

respondent, in this regard got support from the document relied upon by the

appellant. Ex.R.28 was the complaint lodged by the appellant against the

respondent and his parents on the basis whereon FIR Ex.R.30 was got

recorded, and order of conviction was also passed against the respondent

vide Ex.R.31.

Even in the complaint she alleged impotency and unchastity

against the respondent. The learned matrimonial court observed that in her

statement she stated, that it appeared to her that respondent was impotent,

and further that he might have got illegal relationship with another girl

either in his office or elsewhere. The learned court held that matter did not

end there as during the pendency of the petition the respondent filed an

application to undergo medical examination regarding potency to disporve

the averments in the written statement. In reply to the application the

appellant reiterated that she had rightly pleaded in para No.5 of the written

statement that the appellant may be suffering from impotency. It was

asserted by the appellant that the allegations were neither frivolous nor

vexatious but based on well founded apprehension of the appellant, on the

basis of desire of the respondent to adopt a child rather than having their

own. The learned matrimonial court on appreciation of evidence came to

the conclusion that it stood proved, that the appellant had levelled false

allegations of impotency.

The plea of the appellant that it was the respondent who caused

cruelty to the appellant by stating that he did not want a child that too only

after 10 days of marriage was not accepted. It was held that there was
FAO No.211-M of 2003 12

consummation of marriage as it was not the case of the appellant that

marriage was not consummated or that she never had any sexual

relationship with him.

The learned matrimonial court came to the conclusion that in

the absence of plea of non-consummation of marriage, the allegations of

impotency were false which definitely caused pain and anguish to the

respondent which resulted in mental cruelty.

Plea of the appellant that there was no independent witness

produced, to prove these allegations was not accepted, as the learned

matrimonial court held that the sole statement was sufficient. Furthermore

from the document relied upon by the appellant, it was evident that

allegations of impotency were made. The learned matrimonial court, placed

reliance on the judgment of Hon’ble Andhra Pradesh High Court in the case

of Smt.Padmini Vs. G.Sivananda 2000 (2) CCC 325 wherein it was held

that the allegations of impotency of her husband which are conveyed to the

brother of the husband created intense mental cruelty, anguish and pain to

the husband to come to the conclusion that cruelty stood proved.

The learned matrimonial court held that allegations of impotency, did

not remain within the family and close circle rather it was made open to the

public when the respondent raised these allegations in Ex.R.28, which was

addressed to the Chief Minister, Punjab, Inspector General of Police, Union

Territory Chandigarh, Senior Superintendent of Police, Chandigarh/Patiala

and Chairman Punjab State Electricity Board, Patiala. On the basis of

complaint Ex.R.28 proceedings were also initiated under sections 406 and

498-A IPC and Dowry Prohibition Act. The case was decided vide
FAO No.211-M of 2003 13

judgment Ex.R.31. The judgment passed by the learned trial court was set

aside by appellate court.

Learned matrimonial court also held that even in the judgment

Ex.R.31 impotency was one of the basic issue raised by the appellant. The

learned court, therefore, held that the respondent faced these allegations

throughout the trial and on the basis of these, learned matrimonial court

came to the conclusion that allegations of impotency caused great pain and

anguish to the respondent.

The respondent also led medical evidence to prove that he was

capable of having sexual intercourse and to establish his potency he had

examined PW 2 Dr.Joginder Singh, Superintendent Office of Civil Surgeon

Patiala who proved the medical examination report qua the respondent

Ex.P.6. In the said report a positive finding was recorded that the

respondent was not suffering from impotency. Allegations of cruelty i.e.

non-preparation of tea etc for his relatives and friends, her misbehaviour

were treated to be general and not specific in nature and therefore, not

accepted. The allegations that wife had stated that respondent looked like

owl in the presence of relations and friends were also not accepted being

vague. Evidence of Shri V.K.Kapoor was not accepted in this regard. Other

allegations of cruelty were held to be not proved.

Learned matrimonial court also did not accept the version that

the appellant was working against the wishes of the respondent. Version of

the appellant that the respondent and his family members caused cruelty to

her as they were not satisfied with the dowry was not accepted. Learned

matrimonial court held that demand of dowry is certainly a cruelty, but
FAO No.211-M of 2003 14

these allegations have to be established by specific and trustworthy

evidence. In support of these allegations only oral evidence was led by the

appellant. The Learned matrimonial court observed that no allegations

regarding dowry were levelled till the filing of the complaint Ex.R.28 i.e.

on 18.4.1994, when the parties were living separately. The learned

matrimonial court further held that even in the criminal case the parents

were acquitted vide judgment Ex.R.31. The learned court also did not

believe the assertion of the appellant that the money from joint recurring

account opened by the parties was taken away by the respondent for buying

a plot, in view of her admission, that the recurring deposit amount, was

with her and she has invested it in her and her mother’s name. The learned

matrimonial court on the basis of evidence also did not accept the plea that

the respondent was a greedy person. The learned court also held that the

allegations that the respondent had tried to eliminate her on 9.2.1992 and

tried to force her sign on LIC papers were not believable, for want of

evidence in support thereof.

The learned matrimonial court also did not accept the version

of the appellant, that engagement with Smt. Inderjit Kaur was broken on

account of demand of dowry. The learned matrimonial court held that after

the marriage the parties had last resided at Patiala, and the version of the

appellant that after the compromise they resided at Chandigarh was not

believed due to the material contradiction in evidence. The learned

matrimonial court held that from the evidence it was established that the

appellant had not returned to the matrimonial home after 10.2.1992 and was

guilty of desertion.

FAO No.211-M of 2003 15

Issues No.1 and 2 were decided in favour of the

respondent/husband. Issue No.3 was not pressed. In view of the findings on

issues No.1 and 2, issue No.4 was decided in favour of the

respondent/husband and against the appellant. Resultantly, the marriage

between the parties was ordered to be dissolved by a decree of divorce.

Mr.Arun Jain, learned senior counsel appearing on behalf of the

appellant vehemently contended that the finding of the learned matrimonial

court on the ground of desertion cannot be sustained as there was no

evidence on record showing animus deserendi as the appellant was always

ready and still ready to join matrimonial home. The respondent himself is

not interested to keep her and has remarried in spite of appeal. The

contention of the learned senior counsel appearing on behalf of the

appellant was that after the separation attempts were made to reconcile the

matter and in fact, the parties had compromised the matter and started living

together.

It was also the contention of learned senior counsel appearing

on behalf of the appellant that in order to succeed on the ground of

desertion it was for the respondent to prove the separation and animus

deserendi for continuous period of 2 years immediately preceding the

presentation of petition.

It was also the contention of the learned senior counsel for the

appellant that she was not living separately without reasonable cause as she

is a working lady and was required to stay at her place of posting.

It was due to the act of cruelty and misbehaviour of the

respondent and his family members that it became impossible for her to visit
FAO No.211-M of 2003 16

her matrimonial home at Patiala. It was for these reasons that the

arrangement was made to stay together at Chandigarh. The arguments raised

by the learned senior counsel for the appellant looked attractive on the face

of it but when seen in depth it has no substance for the reasons to be stated

hereinafter.

The appellant had set up a positive case that compromise was

arrived at between the parties on 10.12.1993, where it was decided that the

parties were to live at Chandigarh. In pursuance thereto they, in fact, resided

at Chandigarh from 30.12.1993.This assertion was tried to be proved on the

ground that the stamp paper was also purchased by the respondent to write

the compromise arrived at between the parties in the meeting held in Park

in Sector 35, Chandigarh, but it was not written. Support in this regard was

sought from the statement of Daljit Singh RW 2, Prem Singh RW 3

Harbhajan Singh RW 7 and Bhupinder Singh RW 8. This plea cannot be

accepted as it was rightly held by the learned matrimonial court that no

explanation was forthcoming as to why no writing was written, if there was

actually a compromise, as alleged.

The stand of the appellant stood negatived, by the documentary

evidence, that appellant was in fact on tour from 7.12.1993 to 10.12.1993

to attend a court case which was fixed before Hon’ble Delhi High Court.

TA Bills were also produced to prove the tour programme by the

respondent, therefore, the version of the appellant that there was

compromise cannot be accepted. Furthermore, in the pleadings it was said

that compromise was arrived at Gurudwara, whereas in the evidence it was

stated to be arrived at in the park in Sector-35.

FAO No.211-M of 2003 17

It may further be seen that the learned matrimonial court

rightly held that the appellant was not able to give the name of landlord

under whom they lived as tenant nor rent receipts were produced, nor any

ration card, gas delivery card, voter list or any other document showing their

residence was brought on record.

It may also be noticed here that the specific allegations made by

the appellant that she was treated with cruelty were found to be false.

Taking of false defence leaves no manner of doubt that the respondent

succeeded in proving, the separation and animus deserendi, for a period of 2

years preceding the time of presentation of petition. The second marriage

was performed after the decree of divorce. The mere offer to live with the

husband at the time of reconciliation cannot be a ground to upset the

findings on desertion.

To challenge the finding of cruelty, it was vehemently

contended, that the allegations were made by the appellant on the basis of

reasonable apprehension, in view of the fact that the respondent within first

10 days of marriage, had desired that parties should adopt a chid as he did

not want to have their own child.

The contention of the learned senior counsel for the appellant

further was, that allegations of impotency were not made in public as is

clear from Ex.R.23 i.e. the first complaint made by the respondent in which,

no allegation of impotency was made. It was further contended by the

learned senior counsel that in the complaint filed on the basis of which

FIR was registered no specific allegations of impotency were made, but

only apprehension was shown in view of the desire of the respondent to
FAO No.211-M of 2003 18

adopt a child.

The contention of the learned senior counsel for the appellant

also was that husband cannot be allowed to take benefit of his own wrong

by claiming, that this false allegation of impotency was levelled against the

respondent so as to cause mental cruelty.

On consideration of matter, I find no force in the contentions

raised by the learned counsel for the appellant. The allegations of

impotency were not denied in the written statement filed by the appellant.

Rather the allegations were reasserted in the complaint filed with the police.

In reply to the application moved by the respondent for getting himself

medically examined to prove his potency those allegations were reasserted.

Merely because no allegations were made in the complaint Ex.R.23, cannot

be of any advantage to the appellant, as it is the settled law that allegations

made during the course of proceedings also amount to cruelty.

Hon’ble Supreme Court in the case of Vijay Kumar

Ramchandra Bhate Vs. Neela Vijay Kumar Bhate AIR 2003 SC 2462

has been pleased to lay down as sunder:-

” Hindu Marriage Act S.13(1)(ia) – Divorce- Grounds,

mental ‘cruelty’ meted out of wife – Allegations made by

husband in written statement extensively with enumeration of

instances and incidents against wife branding her as an

unchaste woman, keeping extra marital relations is a grave

assault on the character, honour, reputation, status as well as

the health of the wife and viewed in the context of an educated

Indian wife and judged by Indian conditions and standards.
FAO No.211-M of 2003 19

Allegations amount to worst form of insult and cruelty,

sufficient by itself to substantiate cruelty in law. Claim of wife

liable to be allowed. Withdrawal of such allegations

unilaterally by the husband by filing an application for

amendment of the written statement. Do not wipe out complete

all those allegations for all purposes and amendments carried

out subsequently does not absolve the husband from being held

liable for having treated the wife with cruelty. Moreso when

such allegations continue to remain on record.

Similar view was taken by the Hon’ble Supreme Court in the

case of V.Bhagat Vs. Mrs. D.Bhagat AIR 1994 SC 710.

Hon’ble Kerala High Court in the case of S.Latha Kunjamma

Vs. K.Anil Kumar AIR 2008 Kerala 203 has been pleased to lay down

that averments, accusations and character assassinations attributed to party

in the written statement and during the examination of facts also constitute

cruelty.

Similar view was taken by Hon’ble Delhi High Court in the

case of Smt.Savitri Balchandani Vs. Mulchand Balchandani AIR 1987

Delhi 52 and Ashok Vs. Santosh AIR 1987 Delhi 63. The allegations of

impotency, though respondent was found to be potent in medical

examination do amount to cruelty. The plea that these allegations were

based on reasonable apprehension, also has no legs to stand, as the parties

lived together and marriage was duly consummated.

The respondent was further treated with cruelty as false

criminal case was got registered against the respondent and his family
FAO No.211-M of 2003 20

members in which they stand acquitted. This act of the appellant itself is

sufficient to hold that the appellant had treated the respondent with cruelty.

In view of what is stated above, the finding of the learned

matrimonial court on the ground of cruelty is also affirmed.

Consequently, this appeal is ordered to be dismissed with no

order as to costs.


                                                    (Vinod K.Sharma)
 27.08.2009                                              Judge
rp
 

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