JUDGMENT
Sarojnei Saksena, J.
1. This is the husband’s appeal under Section 23 of the Hindu Marriage Act ( for short ‘the Act’) against the judgment and decree of the lower Court, whereby his divorce petition is dismissed.
2. Uncontroverted facts of the case are that on 1.7.1990 appellant was married to respondent in village Chaharwala as per Hindu rites. Since 1991 parties are living separately. Parties were not blessed with any pregnancy from this wedlock.
3. Briefly stated; the appellant’s case was that at the time of marriage, his father gave gold and silver ornaments to his wife. At muklawa ceremony, she stayed for two days with him and thereafter went to the parental home. She came back in September, 1990 and stayed with him for 9 days. During these 9 days, her behaviour was cruel towards him. According to him, she used to rebuke him, taunt him that he is not a man of her choice, she has been married against her wishes. She used to call him eunuch and did not allow him to consummate the marriage. Her behaviour towards him and his parents as well as other family members was also insulting and nagging. She refused to prepare meal and do other household works. After 9 days, she went to her parental home. He brought her back in January, 1991, then she stayed only for one day and went back with his father. Since then, she has not returned to the matrimonial home and has totally severed the marital relationship. Because of her cruel treatment towards him, he suffered mental and physical agony and was under depression. He remained under treatment of Dr. Prem Munjal, Mental Specialist, who admitted him in his hospital w.e.f. 24.6.1991 to 29.6.1991. He pleaded that he is still under treatment. His father took Panchayats in May, 1991. November, 1991 and January, 1992, but she declined to come back. Since January, 1992 (in fact it should be 1991) respondent has withdrawn from his society without any reasonable cause or excuse. Thus, he claimed divorce on the grounds of cruelty and desertion. He also averred that earlier he filed an application under Section 9 of the Act, which was dismissed as withdrawn as he had no means to pay litigation expenses of the case.
4. Respondent-wife filed her written statement and denied all the allegations made against her. She denied having been given any gold and silver ornaments by her father-in-law or she ever rebuked or insulted the appellant or did not allow him to consummate the marriage. According to her, she lived with the appellant in the matrimonial home and discharged her duties as a dutiful wife. The behaviour of the appellant was always cruel and insulting towards her. She tolerated his ill-treatment. Finally, she was turned out of her matrimonial home in bare wearing apparel. Her dowry articles were not returned, Since then she is living in her parental home. Appellant as well as his brother and Bhabhi used to beat her, as a result of which, she suffered mental and physical agony. She pleaded that the appellant and his parents are greedy persons. They expected more and more dowry and case from her parents. They wanted her father to transfer 11 Killas of agricultural land in favour of the appellant, but as her father declined, she was not rehabilitated. She has also denied that she has deserted the appellant. Appellant earlier filed the petition under Section 9 of the Act. She claimed maintenance which was awarded to her at the rate of Rs. 200/- per month along with Rs. 500/- as litigation expenses. To avoid this payment, appellant got his petition dismissed as withdrawn on 27.11.1992.
5. Appellant filed replication and denied the pleas raised by the respondent wife. The trial Court framed only two issues, one about cruelty and other about relief, no issue was framed with regard to desertion.
6. Appellant examined himself, his brother Ghasi Ram and his neighbour Mahabir and closed his evidence. Respondent examined himself and her father Fakir Chand.
7. On conspectus of evidence, the trial Court came to the conclusion that the appellant failed to prove the ground of cruelty and thus, the petition was dismissed.
8. Appellant’s learned counsel made a scathing criticism of the impugned order and assiduously argued that the trial Court failed to scan the evidence minutely. He fell into an error in not framing the issue about the ground of desertion. Anyhow, he is not praying that the case be remanded on that count, as according to him, both the parties have led evidence about this ground as well. He submitted that the marriage took place on 1.7.1990 and in January, 1991 respondent left the matrimonial home for ever. Thereafter, despite many efforts made by the husband, she refused to come back. Thus, according to him appellant has proved both the para-meters of desertion. He has proved that factum as well as animus deserendi on her part and on this ground, decree of divorce ought to have been passed in appellant’s favour.
9. He also commented on the petulant brhaviour of his wife. He argued that the husband has proved that she always insulted him, rebuked him, called him a eunuch refused to obey his orders and she never did any household work. She did not allow him to have sex with him. On that ground also, she treated him with cruelty. He was so much depressed because of her cruel treatment that he was admitted in the hospital of doctor Prem Munjal, for a week. We pointed out that PW-3 Mahabir has also corroborated the statement of the appellant, who was stated that once when he went to the appellant’s house, she refused to prepare tea. This witness has categorically stated that she was always quarrelling with him and was not obeying him. She was not doing any work. He is a neighbour of the appellant, there is a common wall between their houses. Thus, according to him, by adducing this evidence, the appellant has proved that wife has treated him with cruelty and he is entitled to a decree of divorce on this ground as well. According to him, wife has simply denied all three allegations. Her statement is not at all believable.
10. Respondent’s learned counsel contended that there is no evidence worth reliance on record to prove that respondent is a anthi pee. He pointed out that the husband has stated that she lived with him for two days, on first occasion, for nine days in September, 1990 and for one day in January, 1991 and she never allowed him to have sex during these days. He made a complaint of her cruel behaviour to his other family members, but even his own brother Ghasi Ram PW-2 is totally silent about it. He also argued that Ghasi Ram is also silent about the other alleged acts of cruelty, which are attributed to the respondent. Had it been true that respondent was always insulting, rebuking or calling him a eunuch, she would have behaved so in the presence of Ghasi Ram PW-2 as well and in that event Ghasi Ram would have corroborated the appellant on other points. Ghasi Ram PW-2 does not even say that respondent never did any house-hold work, conversely, he admits that on the last occasion, when respondent left matrimonial home, a day before that, she went with appellant in the fields. On the following day, she was taken away by her father. He submitted that sophistry of appellant learned counsel’s argument is obvious from this fact that Ghasi Ram PW-2 has admitted that in January, 1991 before she left the matrimonial home, she went to the field along with her husband. On that very day, her father came. Respondent and her father have proved the incident that took place on that very day. Fakir Chand, her father, RW-2 has stated that on that day, when he reached the village, she was not found at her husband’s home. Then he went to the fields and found her there. They came back to the matrimonial home. He was made to stay in the guest room in dhani. After some time, he was informed that Sunita is unconscious.
11. He went to her and saw her unconscious, he was told that she had a fit. This is not put to Sunita RW-1. Sunita’s father has also stated that on that night, there was a quarrel in the appellant’s house. Sunita RW-1 has proved that on that night, they asked her father to transfer his 11 killas of agricultural land in appellant’s name, her father refused to do so. In the night, she was beaten mercilessly. Appellant, his brother and Bhabhi had beaten her so much that she became unconscious. When she regained consciousness, she saw her father by her side. No doubt, she has deposed that she narrated the whole incident to her father, but her father is silent on that point. It is not put to Sunita RW-1 in cross-examination that she ever suffered from any type of fit. Even Ranbir Singh-Appellant PW-1 does not say so that on that night, she had a fit. From this incident, it is proved that the appellant and his family members were treating her with cruelty and they were also demanding transfer of 11 killas of land in the name of appellant. According to him, that was the reason, why she was mal-treated and was turned out of the matrimonial home.
12. So far as the point of discretion is concerned, he argued that Sunita RW-1 has stayed that on first visit, she stated at matrimonial home for four days. Thereafter when she went again, she stayed there for a month. They had marital relationship with each other. Her husband demanded Rs. 10,000/- for the purchase of scooter. Her father gave this amount to appellant’s father. Third time, she stayed at her matrimonial home for four months and lastly, when she was beaten by the appellant, his brother and Bhabhi and she became unconscious, thereafter, on the following day, she left with her father as he was also annoyed with the treatment meted out to her. She is categoric that her and her father were turned out of the matrimonial home. In cross-examination, she has categorically stated that she is still ready and willing to join the appellant, if he transfers the land in her name. She wants the land as security for his good behaviour. Thus, according to him, it cannot be said that the appellant has proved the necessary elements of desertion, i.e. animus deserendi on the part of the respondent.
13. On the meticulous examination of the evidence, in my considered view, appeal deserves to be dismissed. Appellant has stated that her behaviour towards him was not cruel. She used to insult him, taunt him, call him a eunuch and used to tell him that he is not a man of her choice. According to him, she never allowed him to share bed with her, though he never talked about it in the family. In cross-examination, he has admitted that he made a complaint to Mahabir, his cousin and also brought this fact to the notice of all other members of the family, but none has come forward to support him on this point. Even his brother Ghasi Ram PW-2 does not say that appellant ever made a complaint that the respondent has not allowed him to cohabit with her. If it would have been true, that would have been most natural conduct for the husband to make such a complaint to his near and dear ones. Silence of PW-2 Ghasi Ram on this point makes it clear that the appellant’s statement on this point is not reliable. If she would have been insulting, taunting him or not obeying the appellant, Ghasi Ram PW-2 would have said so but he is totally silent on these points also.
14. Ghasi Ram PW-2 is examined to rebut this evidence of respondent that she was beaten and mal-treated by her jeth and jethani as well. The trial Court has rightly observed that even of Ghasi Ram was not on talking terms with respondent, she cannot be disbelieved on this point that Ghasi Ram and his wife beat her. For beating, it is not necessary that the person must be on talking terms with one, who is being beaten. Appellant has also tried to prove that Ghasi Ram and his wife are living separately, though respondent and her father have stated that they are living together with the appellant. Be that as it may for cruel behaviour, it is not necessary that the person must be residing in the same house, wherein the wife is treated cruelly by the members of the family. Appellant has admitted in cross-examination that whenever, Sunita was residing in the matrimonial home, his Bhabhi had been meeting her daily. That further corroborated respondent’s statement that her jethani had an occasion to treat her cruelly. Ghasi Ram PW-2 has only stated that his wife told him that Sunita is sharp tounged.
15. Appellant has admitted unequivocally in cross-examination that Sunita never misbehaved with his Bhabhi.
16. From the statement of Ghasi Ram, it is evident that she used to go to the fields along with appellant, which proves that she was discharging her household duties.
17. Mahabir PW-3 is examined to prove that once when he visited the appellant’s house and she was asked to prepare tea, the respondent declined to prepare tea. On a meticulous examination of the statement of Mahabir PW-3, it becomes evident that according to him, appellant and respondent had been quarrelling with each other. Only once she refused to prepare tea for him. There is common wall between their houses. He uses to hear conversation of appellant and respondent. In this estimation, both were always quarrelling. Thus, it is obvious that the alleged cruel behaviour cannot be attributed to wife alone. If only once, she refused to prepare tea for any guest, it cannot be said that she treated her husband with cruelty. These are bare trivialities of marital life. Reasonable wear and tear between the husband and the wife amount only to disharmony and not cruelty. Appellant has utterly failed to prove the alleged petulant behaviour of the wife. Appellant has pleaded and has tried to prove that because of her cruel behaviour, he suffered mental depression and was treated by doctor Prem Munjal. He has gone to the hospital for a week, but no such documentary evidence is produced. Not even, doctor Prem Munjal is examined. Even his brother Ghasi Ram PW-2 does not say so.
18. Husband has proved that earlier, he filed the petition under Section 9 of the Hindu Marriage Act, which he got dismissed as he was unable to bear the litigation expenses of the case. Respondent has pleaded that in that case an order was passed in her favour granting her maintenance at the rate of Rs. 200/- per month and litigation expenses Rs. 500/-. Husband never wanted to pay this sum and he got his petition dismissed. Appellant has stated on oath that in that case there was a compromise that she will come back to the matrimonial home and hence, he got his petition dismissed. Respondent has submitted this alleged compromise in her statement, but she is categoric that it was decided that he will come to her parental home to take her, but she never came.
19. Appellant has tried to prove his father convened three/four panchayats to bring her back, but she never come back. According to him and his brother Ghashi Ram, Kanshi Ram, Sajan Singh, Mahabir, Tara Chand and Lal Chand were the members of these panchayats, but none of these persons is examined by the appellant. Even his father has not entered the witness-box to prove the alleged cruel and nagging behaviour of the respondent or to prove that when the left matrimonial home, he convened these panchayats and tried to bring her back, but she declined. Appellant has stated that only once, he went to her parental home to bring her back.
20. Sunita RW-1 and Fakir Chand RW-2 have testified that Fakir Chand convened the panchayat and persuaded the appellant to rehabilitate Sunita, but he declined. They have assigned plausible reason for their not rehabilitating her. Both these witnesses have proved that appellant initially made a demand of Rs. 10,000/- to purchase a scooter. Fakir Chand RW-2 gave Rs. 10,000/- to appellant’s father. Then appellant demanded that 11 killas of agricultural land be transferred by Fakir Chand in his name, but Fakir Chand declined to satisfy this demand, thereafter, whole trouble started. Sunita was mal-treated and was finally turned out of her matrimonial home. Fakir Chand is categoric in his statement that initially on two visits, Sunita was kept with love and affection in the matrimonial home. If immediately after the marriage, Sunita’s behaviour would have been insulting and nagging towards the appellant and his members of the family, she would not have been kept with love and affection in the matrimonial home.
21. Thus, on the point of cruelty as well as desertion, there is self serving statement of the appellant himself without any corroboration even from his brother or neighbourer’s statement. Conversely, respondent has proved that she was treated with cruelty by the appellant and his relations and was finally turned out of matrimonial home because of unreasonable demand of 11 killas of agricultural land. Her father, Fakir Chand RW-2, corroborated her. To put it pithily, appellant has utterly failed to prove both the grounds of divorce.
22. Hence, I am constrained to reject the prayer fervently advanced by the appellant’s learned counsel in his usual vehemence.
23. Consequently, appeal, being meritless, is hereby dismissed with costs.
