Vinod K. Sharma, J.@mdashThis appeal by the appellant/wife is directed against the judgment and decree dated 01.10.2002 passed by the learned Additional District Judge, Patiala allowing the petition filed by the respondent/husband for dissolution of marriage u/s 13 of the Hindu Marriage Act (for short the Act).
2. Brief facts of the case are that the marriage between the parties was solemnized on 06.12.1990, at Patiala according to the Hindu rites and ceremonies. Out of the wedlock two male issues were born. The respondent due to ill-habits and cruel acts of the appellant filed a petition u/s 13 of the Act but on the basis of written apology the said petition was withdrawn on 27.08.1998. It was the case of the respondent that the appellant was in the habit of committing thefts i.e. jewellery and cash and whenever she was confronted, she used filthy language. On 01.04.1991 she was caught red handed while stealing gold ornaments from the almirah of mother of the respondent/husband. When confronted she left the matrimonial house in the evening. Respondent with his friend went to the house of the appellant and lodged protest but instead of feeling sorry she and her parents insulted the respondent. After about 2 months he again went to the house of the appellant and brought her back by requesting her to mend her behavior but she failed to change her habits. It was also the case of the respondent that she neither care for the respondent nor the children. It was also alleged that she again stole Rs. 14000/- (Rupees fourteen thousand only) from the house and handed over the amount to her brother Vinod Kumar, but to her bad luck currency notes fell on the ground. When her brother was confronted with this he gave beating to the respondent at the instance of the appellant. It was the case of the respondent that the appellant confessed that her brother was badly in need of money, that is why the amount was taken. The appellant further pleaded that on the asking of his parents, the respondent started living separately from his parents in Arorian Mohalla in March, 1995 but even there he had to prepare break fast for the children and to make them ready for school. He also arranged lunch box. Whenever children asked for meals they used to be beaten by the appellant. It was further the case of the respondent that she continued visiting her parents and did not leave her habit of committing thefts, in spite of objection by the respondent.
3. On 11.05.1998 the respondent did not go to his work being unwell. At about 11.30 A.M., father and brother of the appellant came to the matrimonial house thinking that he was away. When objection was raised to their visit he was giver beating. It was the case of the respondent that by that time the appellant had taken whole of the jewellery. On 04.06.1998 Vinod Kumar came to his house and took away appellant along with costly clothes and cash of Rs. 26000/- (Rupees twenty six thousand only). His younger son also accompanied them. It was the case of the respondent that the house was left unlocked by them. In the evening the respondent went to the house of the appellant with respectable but instead of feeling sorry they insulted all of them and also extended threat to life. The appellant refused to join his company till a house was purchased in her name and her brother was adjusted by the respondent in his business. On 19.06.1998 a written compromise took place between the parties and in pursuance thereto the appellant joined his company. After living in a proper manner for two months, she again started misbehaving. Her father and brother did not stop visiting his house in his absence. It was the case of the respondent that the appellant never prepared lunch and dinner to his taste, used filthy language and even slapped him. She also started visiting his workshop to humiliate him. On objection she threatened that she would commit suicide. On 10.01.2000 Vinod Kumar and maternal uncle of the appellant dropped Palkit Sharma younger son of the parties outside his house where he was found bitterly weeping. Since the child being young could not stay with the respondent, he and his sister Suman Sharma went to the parental house of the appellant in order to hand over the child. When they reached there, brother and father of the appellant started beating him. His brother-in-law Pardeep Sharma also reached there as they had not returned for a considerable time. He was also given beating. FIR No. 34 dated 13.01.2000 was lodged in Police Station Kotwali, Patiala under sections 325/323/34 IPC and the trial was pending in that case at the time of filing of the petition.
4. On 25.01.2000 some letters written by respondent were thrown in court yard of his house by somebody, and after going through the letters he came to know the reason as to why the appellant was not taking interest in her matrimonial life. A slip was also thrown showing that other letters and diaries written by the respondent could be supplied subsequently.
5. The petition was contested by raising a preliminary objection that the petition was barred by principles of res judicata, and that it was not maintainable in the present form.
6. On merits, relationship of the parties and birth of children was not disputed. The stand taken by the appellant was that sufficient dowry was given at the time of her marriage. The case set up was that demand of more dowry was main reason for the sore relationship between the parties. Allegations of cruelty were denied. It was pleaded that the petition u/s 13 of the Act was filed earlier on wrong facts, which was subsequently withdrawn, as the respondent was aware that it was likely to be dismissed. After withdrawal of the previous petition respondent again started raising demand of more dowry which could not be fulfilled. She denied the allegation of not cooking food and ill-treating the children. She also denied having committed theft in matrimonial home. Allegations of use of filthy language were also denied. She also denied that she was caught red handed on 01.04.1991 while stealing a gold necklace of her mother-in-law. It was pleaded that she was turned out of the matrimonial house after giving her beating. It was also the case set up that when second issue was born she remained in her parental house for about 6 months, but the appellant did not care or provide any maintenance to her. It was alleged that at the time of the birth of the child, handsome gifts were given. Allegation of theft of Rs. 14000/- (Rupees fourteen thousand only) was also denied. It was also denied that currency notes had fallen on the ground or that her brother was confronted with the incident. It was pleaded case of the appellant that in the beginning of March, 1995 the respondent and his parents gave beating to her and the Panchayat was convened by her father where the respondent was requested to keep her in a nice manner. It was then settled that the parties would live separately. The incident of 11.05.1998 of giving beating to the respondent was also denied. She also denied taking away of jewellery and amount. She also denied that any compromise was entered into between the parties on 19.06.1998. It was pleaded that some blank papers were got signed from her by the respondent in good faith which were misused. She also denied the allegations of leaving Palkit Sharma outside the house. The stand was that it was the respondent who came to her parental house in order to quarrel with them along with his brother-in-law Pardeep Sharma, and his brother. Where he started manhandling the appellant and her relations. FIR registered was said to be false. She also denied having written any letter as alleged.
7. In the replication, averments made in the petition were reiterated whereas averments made in the written statement were denied.
8. On the pleadings of the parties the following issues were framed by the learned Matrimonial Court:-
1. Whether the respondent treated the petitioner with cruelty? OPP
2. Whether the respondent has deserted the petitioner without any sufficient cause? OPP
3. If issues No. 1 and 2 are proved, whether the petitioner is entitled to a decree of divorce on the grounds of cruelty and desertion? OPP
4. Whether the petitioner is barred u/s 11 , Order 23 and Order 2 CPC? OPR
5. Relief.
In order to prove his case the respondent appeared in the witness box as AW1 and examined Constable Baldev Singh as AW2, Krishna Sharma, his mother as AW3, Pardeep Sharma his brother-in-law as AW4, Constable Ranjit Singh as AW5, Constable Rakesh Kumar as AW6, Sohan Lal Thakur as AW7, Jarnail Singh as AW8, Dr. Inderjit Singh, Handwriting and Finger Prints Expert as AW9.
9. The appellant on the other hand appeared as RW1 and examined her father Krishan Kumar Sharma as RW2, Navdeep Gupta Handwriting and Finger Print Expert as RW3 and Sanjiv Sharma as RW4 and closed her evidence.
10. Learned matrimonial court took up issues No. 1 and 4 together.
11. The respondent while appearing in the witness box supported the averments made in the petition, which were supported by Smt. Krishana Sharma AW3, mother of the respondent. Pardeep Sharma while appearing as PW4 deposed that he had visited the house of the in-laws of the respondent, where he found parties quarreling with each other. He also said that the respondent was being beaten up by Vinod Kumar, brother of the appellant and when he tried to intervene he was also beaten and a report in this regard was lodged with the police. He deposed regarding the injuries suffered by him and the respondent. Constable Ranjit Singh while appearing as AW5 deposed that the complaint made by the respondent was invested by DSP who submitted his report. Report was proved as Ex. PC. PW7 only deposed regarding the marriage being simple. He also deposed regarding attempts made to reach settlement between the parties where he was insulted. He also deposed regarding visit of father and brother of the appellant and beating given to the respondent, on his objection to their visit. He also proved the compromise Ex. PA. AW8 Jarnail Singh, a friend of the respondent also deposed regarding misbehaviour of the appellant and her family members on his visit for compromise. Dr. Inderjit Singh AW9, Handwriting Expert proved the writing of the appellant on the letters written by her.
12. On the other hand, the appellant supported her case in the written statement, which was corroborated by her father RW2. Sanjiv Sharma while appearing as RW4 deposed regarding dowry given at the time of marriage. He deposed that father and brother of the appellant had told him that they were beaten up. He also deposed regarding Panchayat taken for effecting compromise between the parties. He specifically stated that there was no talk about the character of the respondent. In his statement he also stated that during his visit to the house of the parties in Arorian Mohalla, he found that the appellant was not happy and was living in her parental house for the last 3-4 years. Handwriting Expert produced by the appellant opined that the letters placed on record were not written by her.
13. In view of the contradictory reports of Handwriting Experts, the learned matrimonial court compared the handwriting and found that the letters placed on record were written by the appellant showing that she was having extra marital affair with some other person i.e. Rishi Tandon.
14. Learned matrimonial court also found that earlier petition filed was withdrawn. Learned matrimonial court found that in the previous matrimonial dispute the following terms were settled between the parties:-
i) That party No. 1 shall behave nicely with party No. 2 and shall serve party No. 2 with full respect and honour.
ii) That party No. 1 further agree not to allow her brothers and parents to visit the house of party No. 2 and likewise party No. 1 shall herself not to visit her parental home.
iii) That party No. 1 shall do her marital duties with respect and honour and shall further do all the obligations towards party No. 2.
iv) That party No. 2 as usual shall maintain the family by making all the expenditures towards the house hold, towards party No. l and towards the children.
v) That in case party No. 1 took any poisonous substance or commit suicide in any form, it shall be the sole responsibility of party No. l herself. Party No. 2 or his parents shall not be liable for her illegal acts,
vi) That whatever the amount for expenditure shall be given to party No. l by party No. 2, she shall maintain the complete accounts. Learned matrimonial court found that from the compromise Ex. PA, it appeared that the behavior of the appellant was not nice towards the respondent. It also showed that brother and parents of the appellant used to visit the house of the respondent which was not liked by him. The appellant had also admitted the writing of compromise. Settlement showed that the appellant had admitted the allegations levelled in the divorce petition.
15. On the other hand, stand taken by the appellant is that no compromise took place but her signatures were obtained on blank papers.
16. Learned matrimonial court did not accept this version in view of the fact that in the cross-examination the appellant admitted that earlier divorce petition was withdrawn on account of compromise. Learned matrimonial court further held that the appellant had admitted the factum of compromise and that the parties had started living together thereafter. Learned matrimonial court also found that the judgment relied upon by the appellant in the case of Janak Raj v. Smt. Nirmla Devi 2001 (3) PLR 404 was not applicable to the facts of the present case as the parties had started living together after withdrawal of previous petition. Learned matrimonial court also found that the judgment in the case of Hardev Kaur v. Gurmeet Singh 1978 AIHLR 509 was also not applicable to the facts of the case. Learned matrimonial court came to the conclusion that the allegations of beating given to the respondent and her brother-in-law were proved on record thus, learned court came to the conclusion that even if the allegations of cruelty before 27.08.1998 levelled in the petition are not taken into consideration even then it is proved that the respondent was treated with cruelty. Learned matrimonial court also held that the incident of 10.01.2000 was proved. A criminal case was pending in this regard at Patiala. Learned matrimonial court took note of the letters which were allegedly thrown in the court yard of the respondent on 25.01.2000 showing that the appellant was having affair with somebody. Learned matrimonial court also found that the evidence led by the respondent was duly supported by his brother-in-law Sohan Lal Thakur and Jamail Singh, whereas the respondent besides herself had only examined her father. The learned matrimonial court held that allegations of cruelty stood proved and petition was allowed.
17. Mr. Harinder Sharma, Learned Counsel appearing on behalf of the appellant contended that the judgment and decree passed by the learned matrimonial court is liable to be set aside as it was proved that earlier petition filed by the respondent on the same grounds was dismissed as withdrawn, second petition was not competent. The contention of the Learned Counsel for the appellant was that the present divorce petition was filed merely by adding one incident subsequent to the withdrawal of the previous petition It was also contended by the Learned Counsel for the appellant that all the allegations in the divorce petition discussed, by the learned matrimonial court are the one which were covered by the previous judgment. It was also the contention of the Learned Counsel for the appellant that the allegations of cruelty levelled were general in nature and only interested witnesses were examined in support of the allegations.
18. It was also the contention of the Learned Counsel for the appellant that it was the respondent who was guilty of treating the appellant with cruelty and therefore, the respondent could not take advantage of his own wrongs.
19. On consideration of matter, I find no force in the contentions raised by the Learned Counsel for the appellant. Learned matrimonial court rightly held that even if the allegations of cruelty prior to the withdrawal of petition are not taken into consideration, the respondent successfully proved that he was treated to cruelty to such an extent that it was not reasonable for the respondent to live with the appellant.
20. The Hon''ble Rajasthan High Court in the case of
21. Even otherwise, as already observed above the incident of beating of respondent and his brother-in-law was duly proved on record. This act itself is sufficient to constitute cruelty. It may be noticed here that in the FIR registered, the brother and father of the appellant were convicted by the learned Judicial Magistrate Fist Class, Patiala vide judgment dated 08.01.2005, the appeal filed against the conviction was also dismissed by the learned Additional Sessions Judge, Fast Track Court, Patiala on 15.05.2009.
22. It is well settled law that relief of divorce can be granted on the basis of events that take place subsequent to the filing of the petition. Even the appellate court can take into account the facts which come into existence after passing of the decree. Reliance for this proposition can be placed on the judgment of Hon''ble Rajasthan High Court in the case of
23. The act of the appellant proved on record by cogent evidence and the fact of beating given to the respondent at the instance of the appellant for which the father and brother of the respondent stand convicted is an act of such cruelty, which reasonably causes an apprehension of injury to body, mind and health of the respondent.
24. The contention of the Learned Counsel for the appellant that the allegations were general in nature cannot be accepted as specific instances of cruelty were given and proved by the respondent by leading evidence.
25. The contention of the Learned Counsel for the appellant that it was the respondent who treated the appellant with cruelty also could not be accepted for want of evidence in this regard. Allegations were levelled by way of defence and therefore, were nothing but an afterthought to cover up her own lapses. The findings of the learned matrimonial court, therefore, on issue No. 1 are affirmed.
26. Consequently, finding no merit in this appeal it is ordered to be dismissed but with no order as to costs.
