{"id":49497,"date":"1994-09-26T00:00:00","date_gmt":"1994-09-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mrs-abha-gupta-vs-rakesh-kumar-gupta-on-26-september-1994"},"modified":"2019-03-01T09:16:27","modified_gmt":"2019-03-01T03:46:27","slug":"mrs-abha-gupta-vs-rakesh-kumar-gupta-on-26-september-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mrs-abha-gupta-vs-rakesh-kumar-gupta-on-26-september-1994","title":{"rendered":"Mrs. Abha Gupta vs Rakesh Kumar Gupta on 26 September, 1994"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Mrs. Abha Gupta vs Rakesh Kumar Gupta on 26 September, 1994<\/div>\n
Equivalent citations: I (1996) DMC 71, (1995) 109 PLR 453<\/div>\n
Author: G Garg<\/div>\n
Bench: G Garg<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
G.C. Garg, J.<\/p>\n
1. This is wife’s appeal which is directed against the
\njudgment dated October 29, 1991 of the learned Additional District Judge,
\nFaridabad. The learned Additional District Judge granted divorce on the petition
\nfiled by the husband under Section 13(1)(ia) of the Hindu Marriage Act (for short
\n‘the Act’) seeking dissolution of marriage by a decree of divorce. The husband at
\nthe time of his marriage was a practising Chartered Accountant at Faridabad and
\nthe wife was a Doctor in medicine. They were tied in the matrimonial bonds on
\nFebruary 11,1989 by solemnising the marriage according to Hindu rites at Kosi
\nKalan, district Mathura in Uttar Pradesh. The parties were pursuing their
\nstudies at Agra in the year 1984-85 where they became friendly and prior to their
\nmarriage, they had been exchanging letters with each other. Ultimately, they
\nwere married, as mentioned already, in February 11, 1989. Unfortunately,
\nthis marriage did not prove a success and within one and a half year of the
\nmarriage, the husband filed the present petition seeking divorce out of which
\nthis appeal has arisen. The broad allegations of cruelty on the strength of which
\nmarriage was sought to be dissolved by a decree of divorce may be noticed as
\nunder.\n<\/p>\n
2. The husband alleged that the wife did not allow him to consummate
\nthe marriage right from day one till the date of filing the petition and whenever
\nhe desired to consummate the marriage, be that at Faridabad, Agra or Mussorie,
\nthe latter flatly refused to have an access to her person inspite of his pursuation
\nthat it was an essential aspect of married life. But all the times, the wife showed
\nher repugnance and even on some occasions used abusive language, as a result
\nthe husband suffered mental agony and shock. She ultimately went to Russia in
\nNovember, 1989 without the consent, permission or knowledge of the husband.
\nIt was also pleaded that he did not know her address in Russia as she did not
\ncorrespond with him. It was thus pleaded by the husband that all the acts of the
\nwife amounted to cruelty against him and he was entitled to seek dissolution of
\nmarriage by a decree of divorce. The allegations as levelled in the petition were
\nstoutly denied by the appellant-wife by filing a lengthy written statement. She
\nrefuted almost all the vital allegations. It was pleaded by her that the parties to
\nthe marriage consummated the marriage at Faridabad and Agra where they
\nstayed in hotels and the relationship of husband and wife continued between them
\nwithout any interruption or displeasure on the part of either of the spouses. The
\nallegation of mental agony or shock was thus denied. The wife asserted that the
\ntenure of her studies in the USSR was of a short duration which was arranged
\nwith full knowledge and consent of her husband. She further stated in her written
\nstatement that it was wrong to say that there was any such conduct on her part
\nwhich could inflict any sort of cruelty to her husband. She stated that she gave
\nprior information of her visit to India to her husband. It was also denied that she
\ndid not visit the husband or his family members during her visits to India. Rather
\nshe pleaded that after her return from the USSR, her husband started maltreating
\nher by threatening that he would get himself married again and desert her and ever
\nsince then her husband had not allowed her to stay with him. Besides denying the
\nallegations taken in the petition, the wife specifically pleaded that her husband
\nhad openly declared that somehow or the other, he would get her divorced by
\nmeans whatsoever at his command.\n<\/p>\n
3. The husband filed replication controverting the allegations contained in
\nthe written statement and reiterating those taken in the petition. On the respective
\npleadings of the parties, the following issues were framed :\n<\/p>\n
1. Whether the petitioner is entitled to a decree of divorce, on the
\ngrounds mentioned in the petition ? OPP<\/p>\n
2. Whether the petition is not maintainable in the present form ? OPR<\/p>\n
3. Whether no cause of action accrued to the petitioner ? OPR<\/p>\n
4. Whether the petitioner has not come to the Court with clean hands ? OPR<\/p>\n
Additional issues:\n<\/p>\n
4-A. Whether the Court at Faridabad has the territorial jurisdiction to
\ntry this petition ? OPP<\/p>\n
5. Relief.\n<\/p>\n
4. Issue No. 4-A was answered in favour of the husband and against the
\nwife by observing that the parties to the marriage last resided together at
\nFaridabad, hence the Court at Faridabad had the jurisdiction to try the petitioner.
\nIt was also observed that at the time of filing the petition, the husband was residing
\nat Faridabad and the wife was away to USSR. Under issue No. 1 it was held that
\nthe wife was guilty of cruelty and the husband was entitled to seek dissolution of
\nmarriage by a decree of divorce on that ground.\n<\/p>\n
5. During the pendency of the appeal, the wife moved Civil Misc. No. 2111\/
\nC.II of 1992 under Order 41, Rule 27 of the Code of Civil Procedure seeking
\npermission to produce the record of the Central Bank of India, Krishna Nagar
\nBranch, Mathura regarding the hiring of locker No. 148 alongwith the record
\nof its operation and surrender. This Civil Misc. Application was moved to show
\nthat the parties last resided together at Mathura and, therefore, the Court at
\nFaridabad had no jurisdiction to entertain the petition for divorce. Such an
\napplication was also moved before the Trial Court but the same was declined.
\nLearned Counsel submitted that if the appellant had been permitted to produce
\nadditional evidence, she would have shown that the parties last resided together
\nat Mathura and record of the bank would have established this fact. The contention
\nhas no merit. In the first instance, if the parties had last resided together at Mathura
\nthe appellant would know the address of Mathura and should have produced
\nthe same. The appellant has neither disclosed the address of Mathura in her
\napplication nor has she disclosed it during the course of arguments. It is thus clear
\nthat the application was moved only to delay the disposal of the dispute between
\nthe parties on its own merits. Even otherwise the appellant while appearing as her
\nown witness as RW-1 clearly stated that after her internship was shifted from Agra
\nto Mathura she used to go to Kosi Kalan practically everyday and in case it was not
\npossible she used to stay with her uncle Shri Ramesh Chand Garg, Advocate at
\nMathura. It is thus clear that no purpose whatsoever would be served by granting
\nthe application or by summoning the record of the bank. Civil Misc. Application
\nfor production of additional evidence is consequently dismissed.\n<\/p>\n
6. Learned Counsel for the appellant next contended that the Court at
\nFaridabad lacked territorial jurisdiction to try the petition. Learned Counsel
\nreferred to Section 19 of the Hindu Marriage Act to contend that Faridabad was
\nneither the place where marriage was solemnised nor the respondent was
\nresiding there at the time of presentation of the petition for divorce. Learned
\nCounsel submitted that the parties did not establish a matrimonial home at
\nFaridabad and they also did not last reside together at Faridabad. According to the
\nlearned Counsel for the appellant their casual stay for a day or two at Faridabad
\ncould not be taken to mean that the parties last resided together at Faridabad and
\nsuch casual stay could not confer jurisdiction on the Court at Faridabad. Learned
\nCounsel in support of his submission placed reliance upon Smt. Kalpana Devi v.
\nRanjit Kumar Choudhary and Anr., 1980 HLR 787. However, I am of the
\nopinion that the contention has no merit. Clause (iii) of Section 19 of the Act
\nconfers jurisdiction on a Court where parties to the marriage last resided
\ntogether. It was not the case of the appellant that they had established
\nmatrimonial home at a place other than Faridabad. Normally the residence of the
\nhusband is the place of matrimonial home unless shown otherwise. In this case,
\nthe husband is a practising Chartered Accountant at Faridabad and after the
\nmarriage the parties came to Faridabad and stayed there. The parents of the
\nhusband also held a reception for the newly weds at that place. The parties to the
\nmarriage did not take any other house on rent where they might have lived or
\nhad the intention to live or settle. Temporary stay for a day or two at Agra or
\nelsewhere would not be taken to be the place where they last resided together, or
\nestablished a matrimonial home. Address on the passport of the wife, Exhib it PX,
\nis again that of Faridabad and the marriage, if at all, was consummated at
\nFaridabad where they first stayed together after the marriage. Doctrine of permanence
\nof residence, in the facts and circumstances of this case also applies to Faridabad
\nand no other place because of professional obligations of the husband, especially
\nwhen it was neither alleged nor shown that they ever resided together at any other
\nplace. The husband while appearing as PW1 as his own witness clearly stated that
\nhe was a qualified Chartered Accountant and was practising as such at Faridabad
\nsince 1984 and had established a good practice at that place and had become
\npermanent resident of the town and that Shri R.K. Aggarwal was his partner in the
\nprofession and that he was maintaining his permanent residence at House No. 565,
\nSector 7-B, Faridabad and the office was also in the same house. The husband was
\nnot cross-examined on this aspect of the matter. Thus it has to be taken that the
\nmatrimonial home was at Faridabad and there was no change in the said address
\ntill at least the date of filing of the petition. Stay of the parties for a day or two at
\na place other than Faridabad did not and could not take away the jurisdiction of
\nthe Court at Faridabad.\n<\/p>\n
7. Reference may also be made to Section 21 of the Code of Civil Procedure
\nin that behalf. It provided that no objection as to the place of suing shall be allowed
\nby any Appellate or Revisional Court unless such objection was taken in the
\nCourt of first instance at the earliest possible opportunity and in all cases where
\nthe issues are settled on or before such settlement and unless there has been a
\nconsequent failure of justice. In the present case, the first two conditions are
\nsatisfied. The third condition regarding failure of justice, however, is not satisfied.
\nLearned Counsel for the appellant could not refer to any fact on record that the
\nwife did not have a fair trial at Faridabad and as consequence thereof there was
\na failure of justice. The appellant has led full evidence on the merits of the
\ncontroversy between the parties. There is no failure of justice to the appellant
\nagainst whom a decree has been granted by the Court at Faridabad. It will on the
\ncontrary be total unjust and occasion a failure of justice to the husband in case
\nthe objection as to jurisdiction is upheld at this stage. As already noticed, no
\nprejudice whatsoever has been shown to have occasioned to the wife regarding
\nfair trial at Faridabad. No other place where the parties had last resided together
\nhad been indicated by the wife either in the written statement, in her statement
\nin Court or even during the course of arguments. In the absence of any finding
\nof failure of justice, decree passed by thfe Court below cannot be set aside by
\naccepting the contention of the wife that the Court at Faridabad lacked jurisdiction.
\nSupport for this view can be had from R.S.D.V. Finance Co. Pvt. Ltd. v. Shree
\nVallabh Glass Works Ltd.,<\/a> (1993) 2 Supreme Court 130, Koopilan Uneen’s
\ndaughter Pathumma and Ors. v. Koopilan Uneen’s Son Kuntalan Kutty<\/a> dead
\nby L.Rs. and Ors., A.l.R. 1981 S.C. 1683 and Suraj Bhan and Ors. v. Hans Raj
\nand Ors., 1983 Current Law Journal 16.\n<\/p>\n
8. In the absence of special circumstances, the husband acting bona fide is
\nentitled to determine the locus of matrimonial home. In this case as already
\nnoticed, the husband has settled at Faridabad and has a permanent residence there.
\nEven after the marriage, the husband alongwith the appellant-wife came to
\nFaridabad where they stayed for some days. It is not a case where the parties to the
\nmarriage last resided at a place other than Faridabad. They did not take any other
\npremises at any place on rent or otherwise with the intention to reside there
\npermanently or for a sufficiently long time. It is difficult to comprehend that Clause\n<\/p>\n
(iii) of Section 19 of the Act is not applicable to the facts of this case at all. It is not
\neven the case of the appellant. Thus, in the circumstances, it can safely be concluded
\nthat the parties to the marriage last resided at Faridabad. The appellant cannot
\ndraw any support from Smt. Kalpana Devi’s case (supra).\n<\/p>\n
9. Clause (iv) of Section 19 of the Act further provides that the petition under
\nthis Act shall be presented to District Courts within local limits of whose ordinary
\ncivil jurisdiction the petitioner is residing at the time of the presentation of the
\npetition, in a case where the respondent is, at that time, residing outside the
\nterritories to which the Act extends. In this case, the appellant left India for USSR
\non November 4,1989 and finally came back to India on August 18,1990 though her
\nvisa was valid upto December 20, 1990. The petition for divorce was filed on
\nAugust 17,1990.\n<\/p>\n
10. In the aforesaid situation, I am of the opinion that the objection of the
\nappellant as to the place of suing has no merit and it was rightly held by the learned
\nAdditional District Judge that the Court at Faridabad had jurisdiction to try the
\npetition.\n<\/p>\n
11. Before proceeding further, it is necessary to notice still another
\ncontention of the learned Counsel for the appellant. According to he learned
\nCounsel, in order to succeed on the ground of cruelty, it was necessary to prove
\nthat the wife had persistently or repeatedly treated the husband with cruelty as to
\ncause a reasonable apprehension that it was harmful for him to live with her. The
\ncontention was raised on the premises that marriage between the parties was
\nsolemnised at Kosi Kalan in district Mathura of Uttar Pradesh. Hence, the cruelty
\nas defined by the Uttar Pradesh Act XIII of 1962 [The Hindu Marriage (Uttar
\nPradesh Sanshodhan) Adhiniyam, 1962] shall prevail. The contention in my
\nview has no merit. Prior to the enforcement of the Marriage Laws (Amendment)
\nAct, 1976 cruelty was not a ground for seeking divorce under Section 13 of the Act.
\nA spouse was entitled to obtain a decree for judicial separation under Section 10
\nof the Act after proving that the petitioner had been treated with cruelty as to cause
\na reasonable apprehension in his mind and that it would be harmful or injurious
\nto live with the other party. The Legislature of Uttar Pradesh vide U.P. Act XIII
\nof 1962, which Act had not been reserved for the consideration of the President of
\nIndia, added Clause (i-a) after Clause (i) of Sub-section (1) of Section 13 of the
\nHindu Marriage Act to provide cruelty as another ground for seeking divorce.
\nThe amendment enabled a spouse to obtain divorce if the complaining spouse had
\nbeen persistently or repeatedly treated by the other spouse with such cruelty as to
\ncause a reasonable apprehension that it will be harmful or injurious to live with the
\nother. The Parliament by Central Act No. 68 of 1976 has amended Section 13 of the
\nAct and has provided an occasion to a spouse to obtain divorce by proving that
\nhe\/she had been treated with cruelty by the other party. Marriage and divorce
\nis a subject on the concurrent list at Entry No. V of the VII Schedule to the
\nConstitution of India. Thus, in view of the provisions made in Article 254 of the
\nConstitution of India, the amendment made by the Parliament shall prevail over
\nthe provisions made by the State Legislature. A spouse is thus, entitled to seek
\ndivorce by simply proving that he\/she has been treated with cruelty and it is not
\nnecessary for the said spouse to prove anything more, the U.P. Act having been
\nimpliedly repealed by the Central Act in terms of the provisions of Article 254 of
\nthe Constitution of India.\n<\/p>\n
12. Reverting to the grounds of divorce, it can safely be said that the husband
\nsought divorce on the ground of cruelty, mental and not physical. No hard and fast
\nrules have either been laid down nor can be so done for holding one spouse to be
\nguilty of cruelty qua the other. It necessarily will depend on the facts of each case.
\nNorms of society, social obligations, bindings and education of parties will
\ncertainly be relevant factors for coming to the conclusion if the husband has been
\nable to prove mental cruelty in this case so as to enable him to seem divorce on
\nthe ground of mental cruelty. In V. Bhagat v. Mrs. D. Bhagat,<\/a> [1994(1) All India
\nHindu Law Reporter 74 (S.C.) = I (1993) DMC 435 (SC)], it was observed by the
\nApex Court as under :\n<\/p>\n
 “Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct
\nwhich inflict upon the other party such mental pain and suffering as
\nwould make it not possible for that party to live with the other. In other
\nwords, mental cruelty must of such a nature that the parties cannot
\nreasonably be expected to live together. The situation must be such that
\nthe wronged party cannot reasonably be asked to put up with such
\nconduct and continue to live with the other party. It is not necessary to
\nprove that the mental cruelty is such as to cause injury to the health of the
\npetitioner. While arriving at such conclusion, regard must be had to the
\nsocial status, educational level of the parties, the society they move in, the
\npossibility or otherwise of the parties over living together in case they are
\nalready living apart and all other relevant facts and circumstances which
\nit is neither possible nor desirable to set out exhaustively. What is cruelty
\nin one case may not amount to cruelty in another case. It is a matter to be
\ndetermined in each case having regard to the facts and circumstances of
\nthat case. If it is a case of accusations and allegations regard must also be
\nhad to the context in which they were made.”\n<\/p>\n
13. Adverting to the facts of this case, it may be seen that the husband sought
\ndivorce on the ground of mental cruelty and to prove mental cruelty, he has
\nbroadly alleged two facts, one that the appellant did not allow him to consummate
\nthe marriage and as and when he tried to persuade her to see reason, she would
\npick up quarrel and start abusing. The second allegation is that she went to the
\nUSSR on November 4, 1989 without his consent, knowledge and without
\ninforming him.\n<\/p>\n
14. Learned Counsel for the appellant vehemently contended that the
\nhusband miserably failed to prove that the appellant refused to cohabit with the
\nrespondent and thereby did not allow the marriage to be consummated. Learned
\nCounsel submitted that if the allegation had been true, relations between the two
\ncould not remain cordial. Learned Counsel referred to letters Exhibit R. 5 dated
\nFebruary 20, 1989, Exhibit R.8 dated March 2, 1989, Exhibits R. 6 and R. 37 dated
\nMay 14,1989, Exhibit R.7 dated July 17,1989, Exhibit R. 9 dated August 7,1989
\nand Exhibit R. 10 dated October 16,1989 to highlight that there was not even a
\nslightest indication in any of the letters, which were admittedly written by the
\nhusband, to the wife that the wife at any time had declined to cohabit or was
\nrepugnant to the idea of cohabitation and did not allow the husband to
\nconsummate the marriage. According to the learned Counsel, no evidence has
\ncome on the record to prove this allegation except the statement of the husband
\nwhich has been controverted by the appellant. Learned Counsel pointed out that
\nall these letters are full of love and affection towards the wife. He further
\nsubmitted that the appellant went to the USSR for higher studies and she sought
\nadmission there with the consent and full knowledge of the husband. He went
\non argue that even the passport of the appellant was not issued by the respondent.
\nLetter Exhibit R. 35 dated December 28,1988 was referred to in that behalf.\n<\/p>\n
15. In order to appreciate the contentions raised, it is necessary to broadly
\nnotice the evidence led in the case. Rakesh Gupta, respondent herein while
\nappearing as P.W. 1 as his own witness brought out the sequence of events pointing
\nout that the appellant did not allow him to consummate the marriage and pushed
\nhim aside by stating that she had no interest in sex and she was only interested
\nto attain the highest degree in medicine and that the consummation of marriage
\nwould be an obstacle in her way to achieve the professional qualifications. He also
\nstated that the appellant on the other occasions did not allow him to indulge in sex
\nby saying that her profession did not allow her to indulge in sex and thereby giving
\nbirth to the children and she married only to have the status of a married woman.
\nHe went on to state that he came to know in November, 1989 that the appellant had
\nleft for USSR without his consent and knowledge. He came to know of this through
\nhis relations at Kosi Kalan and that she did not inform him or any other member
\nof his family about her plan or of her address of USSR. He came to know on
\nSeptember 18,1990 itself that she had come back from USSR. He further went on
\nto state that even after coming back from USSR she did not even once come to
\nreside with him or his parents or any other family member. He stated that the
\nmarriage between the parties had not been consummated and he suffered a lot of
\nmental agony on that account and this has ruined has professional career as a
\nChartered Accountant. The appellant while cross-examining the respondent-
\nhusband had not been able to shatter his testimony made in the examination-in-
\nchief.\n<\/p>\n
16. PW 2 Murari Lal Gupta father of the respondent appeared as a witness
\nand he supported the case of his son on all material points. He denied the
\nsuggestion that on the occasion of Dusshera, the parents of the appellant had not
\nbeen informed about the matrimonial dispute between the parties. Further
\nsuggestion that it was only told that she should not go to USSR and no other talk
\ntook place about the marital relations of the parties on account of non-cooperation
\nof the appellant and in not allowing the husband to have sexual relationship with
\nher was denied. The further suggestion that he, witness or his wife did not talk
\nto the appellant about marital relationship between the parties was also denied.
\nThe witness went on to state that his son had been telling him about marital
\nproblems orally. He, however, stated that neither he norany member of his family
\never wrote any letter in that regard.\n<\/p>\n
17. The appellant while appearing as her own witness as RW-1 stated that
\nshe stayed with her husband on about fifteen occasions and marriage was
\nconsummated and that she never refused to have sex with her husband. She
\nfurther stated that after landing in the USSR she informed her husband about her
\naddress of the USSR on phone and wrote two\/three letters during her entire stay
\nin USSR but he did not respond. She was subjected to lengthy cross-examination.
\nDuring the course of her cross-examination, she had to admit that she visited India
\non four occasions during the period of her stay in USSR and that she left the course
\nin between and that she had written only one letter addressed jointly to her
\nfather-in-law and mother-in-law. She further stated that she did write letters from
\nUSSR to her friends, parents, brothers, sisters as also other relations and that all
\nof them responded. The witness also stated that on one occasion of her visit from
\nthe USSR to India, she stayed in India for about a week and in between went to
\nEngland where she stayed for about 10\/15 days and that she had not informed
\nabout it either to her husband or in-laws. The appellant also stated that after her
\ncoming back from USSR and till she joined the All India Institute in New Delhi, she
\ndid not contact her husband and that even after joining at New Delhi she did not
\ncontact him till the date of her making the statement except during the reconciliation
\nproceedings that took place in the Court. She had to admit that after her coming
\nback from USSR she had not written any letter to her husband. She further admitted
\nthat she came to know of divorce petition in December, 1990 and till then she did
\nnot come to Faridabad to see her husband after coming from USSR in August, 1990.\n<\/p>\n
18. Mr. S.C. Aggarwal, father of the appellant also appeared as a witness as
\nRW 2 in support of the case of her daughter. He deposed that neither the husband
\nof the appellant nor his parents ever told him or his wife about non-cooperation of
\nthe appellant in the matter of discharge of her matrimonial obligations. In cross-
\nexamination, the witness stated that to his knowledge, the appellant never stayed
\nor resided at Faridabad at the house of her husband. He stated that after Diwali,
\n1989, the appellant did not reside with her husband. He, however, admitted that
\nthe appellant did not go to see her husband or stayed with him when she visited
\nIndia during her studies in the USSR and he never enforced her to go and stay with
\nher husband and he also never asked his son-in-law, respondent herein to take her
\nwith him.\n<\/p>\n
19. In the context of the evidence noticed above, I am of the opinion that the
\ncontentions raised by the Counsel for the appellant have no merit. A perusal of
\nletters referred to by the learned Counsel for the appellant goes to show that
\nthe contention has merit to the extent that no grouse was made by the husband
\nregarding non-consummation of marriage or that the wife did not permit him to
\nconsummate the marriage at any point of time. It may also be noticed that
\naccording to the husband, the appellant-wife stayed with him, may be at
\nFaridabad, Agra, Dehradun or Mussorie or elsewhere for only 6 to 8 days during
\nthe period February 11, 1989 to November 4,1989, when she left India for USSR.
\nAccording to the appellant she stayed with the respondent at the aforesaid
\nplaces for a day or two more than what had been alleged by the husband. In the
\nsituation, it is very difficult to record a firm finding, whether the marriage had
\nbeen consummated or not. The circumstances however, lead one to believe that
\nthe allegation as levelled by the husband is correct, at least to the extent that the
\nappellant was repugnant to the idea of sex. Love affair between the parties
\nculminated into marriage, though an arranged one. The parties to the marriage,
\nas already noticed, are highly educated. As a decent husband it seems to me that
\nhe kept all restraints in exposing himself or his wife to the relations about non-
\nconsummation of marriage or the appellant being averse to sex and showered all
\nlove and affection on her not only through letters as noticed above but even
\notherwise. On an earlier occasion, the parties to this litigation had appeared before
\nthis Court in Civil Misc. 1498\/C.II of 1991 when an effort was made for
\nreconciliation. The appellant had then flatly refused to join the husband and had
\nstated that it was not possible for her to stay in the matrimonial home. The
\nhusband had at that time made a sincere effort to settle her in the matrimonial
\nhome. It may also be noticed that admittedly, the appellant went to USSR on
\nNovember 4, 1989 for one year and she did not inform her husband about her
\ndeparture and she left India without his knowledge, consent and permission.
\nLetter Exhibit R. 36 dated September 26, 1989 written to the appellant by her
\nmother-in-law clearly goes to show that the appellant had been requested not to
\ngo to the USSR. This clearly gives an indication that the husband and his mother
\nwere not at all interested in the visit of the appellant to the USSR. If relations
\nbetween the parties were cordial as was sought to be argued by the learned
\nCounsel for the appellant, there was no reason for the appellant to leave India
\nfor studying abroad without informing her husband of her proposed visit to the
\nUSSR. The appellant cannot take advantage of letter Exhibit R. 35 dated December
\n28,1988 as it was written much before the date of the marriage. Furthermore, the
\nappellant stayed in USSR from November 4,1989 to August 18,1990 and during
\nthis period she visited India on three \/ four occasions. Admittedly, she did not visit
\nher husband on any of these occasions and even did not inform him of his visit to
\nIndia. She admitted while appearing as her own witness that she had been
\nwriting to her husband from USSR but brought nothing on the record to show that
\nshe had been so doing. The very fact that she did not visit her husband or informed
\nhim of her visit to India, clearly goes to show that she had not been writing to him
\nduring the period she stayed in the USSR. This inference is clear because she had
\nnot informed her husband about her departure from India to the USSR and it was
\nkept a secret. During her visit to India she as per her own statement, visited certain
\nrelations but not the husband.\n<\/p>\n
20. It is the admitted case of the appellant that she came to India on August
\n18,1990 and from that day till December 1990, she did not go to see her husband
\nor wrote any letter to him or informed him of her arrival in India. She even did not
\ntell her husband about her visit to England. This shows that she never wanted
\nto come to the matrimonial home. Thus, the conduct of the appellant of going to
\nUSSR without informing her husband and against his wishes coupled with her
\nsubsequent conduct lead credence to the case of the respondent that the appellant
\ndid not allow him to consummate the marriage and in any case she was remiss
\nin the discharge of matrimonial duties. She is more conscious of her career as a
\ndoctor. It is further obvious that she or her father made no effort whatsoever
\nto settle her in the matrimonial home. This, in my view, gave a clear cause to
\nthe husband to seek divorce on the ground of cruelty.\n<\/p>\n
21. Mental cruelty can only be adjudged by having regard to the facts of the
\ncase. It can only be perceived and not defined. It will depend on the facts of each
\ncase. Inaction or omission or series of such acts of a spouse may cause injury to
\nthe other spouse which may further cause mental agony amounting to mental
\ncruelty. Sex is a binding force to keep two spouses together and the denial thereof
\nby one spouse to the other would, in my view, effect mental health amounting to
\nmental cruelty especially in a case where the parties are young and have recently
\nmarried after a prolonged courtship. Reference in that behalf may be made to
\nPreet Singh Bhullar v. Kamaljit Bhullar, 1990(2) All India Hindu Law Reporter
\n203 (SC).\n<\/p>\n
22. Even if it be taken that the appellant was not remiss in the discharge of her
\nmatrimonial obligations, I am still of the view that the respondent husband was
\nentitled to a decree of divorce on the ground of cruelty. The broad admitted facts
\nas noticed from the evidence are that the appellant left for USSR on November
\n4, 1989 without knowledge, consent or permission of her husband. She did not
\nwrite to him from USSR and did not bother to see him by visiting him or talking
\nhim on three\/four occasions when she visited India while studying in the USSR.
\nShe did not even inform her husband about her visits to India. If there was no
\nresentment or objection to her going abroad she would not have behave the way
\nshe has done. She even went to England during one of her visits to India. This, in
\nmy view, clearly gives a cause to the husband to seek divorce on the ground of
\ncruelty. The acts of the appellant are such which would cause mental agony and
\ntorture to the husband amounting to cruelty. She finally came to .India on August
\n18,1990 and she came to know of the divorce petition only in December, 1990. Even
\nduring this period i.e., August 18, 1990 to December, 1990 she made no effort to
\ncontact her husband either by visiting him or otherwise. From her statement and
\nthe statement of her father, it is clear that she was not interested to see her husband
\neven before the filing of the divorce petition as it had been mentioned to her during
\none of her visits to India that her husband was thinking of marrying again. Her
\nconduct during the pendency of the divorce petition also leads me to believe that
\nshe is not interested to settle in the matrimonial home. There is a complete neglect
\non her part. It is abundantly clear from what has been discussed above that
\nmarriage between the parties has broken down irretrievably and there is no chance
\nof their coming together or living together again. The inevitable conclusion
\ntherefore, is that the husband is entitled to a decree of divorce.\n<\/p>\n
23. For what has been observed hereinbefore, this appeal fails and is hereby
\ndismissed. However the parties are left to bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Mrs. Abha Gupta vs Rakesh Kumar Gupta on 26 September, 1994 Equivalent citations: I (1996) DMC 71, (1995) 109 PLR 453 Author: G Garg Bench: G Garg JUDGMENT G.C. Garg, J. 1. This is wife’s appeal which is directed against the judgment dated October 29, 1991 of the learned Additional District Judge, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-49497","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nMrs. Abha Gupta vs Rakesh Kumar Gupta on 26 September, 1994 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mrs-abha-gupta-vs-rakesh-kumar-gupta-on-26-september-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mrs. Abha Gupta vs Rakesh Kumar Gupta on 26 September, 1994 - 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