Vinod K.Sharma, J.
1 Appellant/wife has filed this appeal against the judgment and decree dated 13.03.2008 passed by the learned Additional District Judge, (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.
2 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 wedlock 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 spendthrift. 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.
3 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 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.
4 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 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.
5 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 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.
6 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 installments 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.
7 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.
8 Notice of the petition was given. The petition was contested by 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.
9 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.
10 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 of the petition.
11 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
3. Relief.
12 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.
13 Learned matrimonial court referred to the judgment of Hon''ble Supreme Court in the case of A Jayachandra v. 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 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.
14 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.
15 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 304B/511, 306/511 and 406/498A IPC in which the respondent as well as his brother were tried. It was after 2 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.
16 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.
17 Learned matrimonial court, therefore, placed reliance on the judgment of this court in the case of Poonam Kaur v. 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."
and thus, held that the cruelty stood proved.
18 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 v. Aneel Kaur (supra), and the judgment of Hon''ble Supreme Court in the case of Naveen Kohli v. Neelu Kohli 2006 (2) CCC 226.
19 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.
20 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.
21 Other allegations of cruelty were not accepted by the learned matrimonial court itself and therefore, impugned order cannot be sustained.
22 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 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.
23 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 (PW1) is the complainant and wife of accused Deepak Ailawadi. Although, in examinationinchief she has supported the prosecution story, yet, when she was crossexamined on behalf of the accused, she took a summersault 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 parentsin law since 1991. It is then stated by her that she gave her earlier statement under some misunderstanding and under the pressure 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 crossexamined 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 crossexamination and if during crossexamination, a witness does not support the prosecution story, then even through/she supports the prosecution in examinationinchief, 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 crossexamination, 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 crossexamined 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.
24 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 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.
25 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.
26 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 leveled 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.
27 Learned senior counsel for the respondent further contended that even single act of cruelty was sufficient for decree of divorce.
28 The factum of launching prosecution coupled with behavior 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.
29 The finding of the learned matrimonial court that the respondent/husband was entitled to decree of divorce on the ground of 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 v. 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.
30 On consideration, I find force in the contentions raised by the learned counsel for the appellant.
31 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.
32 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 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.
