R.L. Anand, J.@mdashThis is an appeal and has been directed against the judgment and decree dated 26.4.2000 passed by the Court of learned District Judge, Jalandhar, who dismissed the petition u/s 13 of the Hindu Marriage. Act filed by Shri Ram Dass husband against his wife Smt. Kusam for the dissolution of the marriage.
2. The case set up by the petitioner-appellant before the trial Court and before the High Court is that the marriage between the parties was solemnised on 10.6.1993 at Jalandhar, The parties lived in Jalandhar after the marriage as husband and wife. They co-habited with each and out of this wedlock a female child by the name of Palak was born on 27.5.1994. It is alleged by the appellant that right from the very beginning the behaviour of the respondent was not respectful to him and his family members. She used to insult him without any sufficient cause. Respondent used to tell him that he was not as per her status and his family was also not up to status of the family of the respondent. Respondent used to make taunts by saying that the family of the petitioner-appellant was uneducated and its standard of living is very poor. The respondent compelled the petitioner to have a separate house or he should start living in the parental house of respondent as Ghar Jamai. The petitioner-appellant is unable to live separately from his helpless widow mother and his brother whose wife had died leaving a minor female child upon which the respondent became angry. Respondent used to lose temper when the appellant used to take care of the child of this brother. Respondent was in the habit of not attending the domestic duties. She refused to prepare tea and meals etc. for the petitioner and his relatives. She used to shirk work. Then on 13.1.1996, the respondent left the house with all valuable clothes and jewellery. She also took away with her the minor child. On 6.5.1996 the respondent with two unknown persons came to the house of the petitioner and on the asking of the respondent those two unknown persons gave beating to the petitioner and then ran away. On 8.5.1996, the mother of the petitioner arranged a Panchayat and the petitioner and the other members of the Panchayat went to the house of the parents of the respondent and made a request for the rehabilitation of the respondent but the respondent and her parents insulted the petitioner and the other members of the Panchayat. With these allegations the appellant has prayed that a decree of divorce on the ground of cruelty by filing the petition which was instituted in the trial Court on 6.9.1996.
3. Notice of the petition was given to the respondent who filed the written statement and denied the allegations. According to respondent she gave birth to a female child on 27.5.1994 but the child was born when the petitioner has turned out the respondent from the matrimonial home and all the expenses of that child were borne out by the parents of the respondent. The respondent denied that she ever insulted the petitioner or his family members or had ever said that petitioner and his family was not of the status or that she was educated or that family of the petitioner was uneducated. She pleaded that she always treated the petitioner and his family members with love and affection. Respondent denied that she had left the house on 13.1.1996. She also denied that any occurrence took place on 6.5.1996. It was pleaded that this was quite false and concocted story. According to the respondent she was physically and mentally tortured on account of the demand of more dowry. After the marriage she was harassed and humiliated. She was not provided with food. Her jewellery and clothes were snatched by the appellant and his family members. They made a demand of VCR and cash. In this situation respondent was compelled to leave the house by stating that she could come back only if the demand is fulfilled. On her refusal she was turned out when she was at the advance stage of pregnancy. The petitioner never came to enquire about the welfare of the respondent and her newly born child. He never came to take away the child. With the intervation of the respectables, she was rehabilitated in the house of the petitioner in November 1994. The wife of the brother of the petitioner-appellant died on account of the bum injuries for which a criminal case was registered against the petitioner and his family members. The respondent was being threatened that if she did not fulfil the demand then she would also meet with the same fate. She was turned out on 13.1.1996. All the jewellery articles were retained by the appellant and his family members and in spite of the various requests the appellant did not rehabilitate the respondent. With this defence, the respondent prayed for the dismissal of the petition u/s 13 of the Hindu Marriage Act.
4. The petitioner filed a replication to the written statement of the respondent in the trial court in which he reiterated his allegations made in the petition by denying those of the written reply and from the pleadings of the parties the trial court framed the following issues :-
1. Whether respondent treated the petitioner with cruelty as pleaded in the petition ? OPA
2. Relief.
5. The parties led evidence in support of their case and on the conclusion of the trial the learned trial Court while deciding issue No. 1 came to the conclusion for the reasons stated in paras No. 6 to 11 of the impugned judgment that husband has not been able to prove the cruelty on the part of the respondent after the solemnization of the marriage. The allegations are general in nature which can be of normal type in any house. Re-sultantly, issue No. 1 was decided against the appellant and in favour of the respondent and finally the petition was dismissed.
6. The appellant-husband is not satisfied with the judgment and decree of the trial Court dated 24.4.2000. Hence the present appeal.
7. I have heard Shri G.S. Sandhawalia, learned counsel appearing on behalf of the appellant and Shri Ashwani Talwar, learned counsel appearing on behalf of the respondent and with their assistance have gone through the record of this case.
8. Before I deal with the submissions raised by the counsel for the parties, I consider my duty to reproduce paras No. 6 to 11 of the judgment of the trial Court, which are as under :-
"6. In evidence, petitioner Ram Dass has appeared as his own witness and supported his allegations. AW2 Jeewan Jyoti is brother of the petitioner. He had supported the petitioner''s case as pleaded in the petition. However, he admitted that he did not see the said two persons who had given slaps to his brother. Swaran Singh AW3 had stated that the petitioner lives in his street and he has social dealing with him. That once he had gone to the house of the petitioner. Petitioner Ram Dass had told his wife to prepare tea which she refused saying that she was not able to prepare tea on which he (witness) felt insulted and came back to his house. Balbir Rai AW4 had stated that on 8.5.1996, he along with petitioner Ram Dass, Ashok Kumar and some other persons had gone to the house of the father of the respondent and had requested the parents of the respondent to send Kusum but they had refused.
7. Kusam respondent had appeared as RW1 and had supported her case as pleaded in the written statement. Vidya Wati RW2 had stated that she had . attended the marriage of the petitioner with the respondent. That her house was just opposite to the residence of the respondent''s parents. Sufficient dowry articles were given but petitioner and his parents were demanding more dowry articles and there had been dispute due to this fact. Kusum was kept by the petitioner only when she was going with some articles but she was again turned out. She further stated that in the month of January 1996, mother of Kusum had told that she will go with Lohri gifts to the house of the petitioner. Then on 13.1.1996, she (witness) and mother of Kusum were ready to go to the house of the petitioner and were preparing the things to be taken as Lohri gifts. Then Kusum came to her mother''s house all atone in a rickshaw. She had brought nothing. She had some signs of having been beaten. Then she, parents of Kusum ana one Ashok Kumar had gone to the house of the petitioner. Ram Dass had said that Kusum had just gone in the morning and he was not ready to bring back her immediately and she be kept at least for six months. Kusum is residing in her parental house since then.
8. Counsel for the petitioner has argued that story regarding demand of VCR and cash amount cannot be looked into as it is beyond pleadings. He pointed out that it was admitted by Kusum that she had filed security proceedings under Sections 107/151 Cr.P.C. against the petitioner, his brother Jeewan Jyoti and Swaran Singh. It was argued that the evidence of the petitioner has remained unrebutted as far as non-cooperative attitude of the respondent towards the petitioner and his family members and not attending to house hold job, is concerned. Counsel for the petitioner had argued that where wife disrespects and misbehaves with the husband in the presence of his friends or relatives, then she is guilty of cruelty and the petitioner was entitled to decree of divorce. He argued that when security proceedings were started by the wife, that was afso an act of cruelty. Thus, the husband was entitled to divorce. He has relied upon authorities reported as Krishna Rani v. Chuni Lal Gulati 1981 All LR 16, Rajinder Singh Boon v. Smt. Tara Wati 1980 All L R 534, Smt. Chander Prabha v. Chander Mohan Baluja 1979 All LR 563 and Smt. Rajinder Kumari v. Shri Daryodhan Lal 1980 All LR 1980.
9. This petition was filed on 7.9.96. Kusum while admitting the security proceedings had started on her complaint, had further stated that it was during the pendency of the present petition. No document was produced to show that wife had started security proceedings against her husband before the present petition for divorce was filed by the husband. After a divorce petition is filed, then there can be many disputes and starting of security proceedings will not be a ground for granting divorce and will not amount to cruelty. As per allegations of the petitioner, slaps were given by some unknown persons to him at the instance of Kusum on 6.5.96 but it is further case of the petitioner himself and supported by Balbir Rai PW 4 that on 8.5.1996, petitioner and some other persons had gone to the house of the respondent with a request to rehabilitate her in the house of the petitioner. It will show that cruelty if any from the acts of date before 8.5.1996 i.e. incidence of 6.5.1996 had been condoned. Moreover, from the perusal of the allegations in the petition and as deposed by the petitioner in the Court, it would appear that these are normal domestic problems where wife may not obey husband''s directions as per wishes of the husband. Counsel for the respondent has relied upon
10. Counsel for the petitioner had laid much stress on document Ex.P.1 which respondent admitted to be in her own hand. This document is of a torn paper from some diary in which it had been writ- ten that she will go tomorrow she will not return that she will not allow to see and meet the child and she will not allow to see the face of the child. From this counsel for the petitioner has argued that conduct of the respondent had always been cruel. That she went to the extent of writing that she will not allow the petitioner to see the child. In this connection, the respondent had explained that it was rather under pressure when she was in advance stage of pregnancy. Counsel for the respondent pointed out that since the child was not born, therefore, neither the name of the child was there nor it had been explained as to whether the child was male or female. From this document, which is only three lines on a paper torn from a diary, it cannot at all be said that it is voluntary nor constitutes cruelty.
11. In this case, cruelty, if any stands condoned on 8.5.1996. Parties are admittedly living separate since that atleast. Not a single instance of cruelty has not been specifically given and the allegations are just of general nature, which can be normal in any house. It cannot be said that the respondent has treated the petitioner with cruelty entitling the petitioner to divorce on this ground. Issue stands disposed of accordingly."
9. The learned counsel appearing on behalf of the appellant submitted that the trial Court has dismissed the petition of the husband mainly on the ground that he had condoned the various acts of cruelty when the appellant took a Panchayat on 8.5.1996 and thereafter, no incident of any alleged cruelty had taken place. Secondly, the trial Court has not believed about the alleged incident dated 6.5.1996.
10. Mr. Sandhawalia drew my attention to the evidence of the appellant and other witnesses in order to show that there was a cruelty on the part of the respondent entitling the appellant to seek a decree of divorce. Shri Sandhawalia further submitted that the appellate Court can take into notice the subsequent events. The conduct of the respondent had reached to the extent that she filed proceedings under Sections 107/151 Cr.P.C. Those proceedings were dropped and this act on the part of the respondent was none else but to bring the prestige of the appellant to the lower stage, therefore, the respondent is guilty of cruelty. So much so Mr. Sandhawalia even stated to the extent by saying that moment it is established on the record that the defence of the respondent is false when she alleged that appellant allegedly made a demand of more dowry, the false defence itself is an act of cruelty.
11. Some case law was also cited by the counsel for the appellant which I will discuss in the subsequent portion of the judgment.
12. On the contrary, learned counsel for the respondent submitted that appellant has miserably failed to prove the allegations of cruelty. In fact he has concocted the allegations of cruelty. No incident dated 6.5.96 or 8.5.96 had taken place. In fact, respondent was treated with cruelty by the appellant. The family of the petitioner is such that it is a greedy family as the wife of the brother of the petitioner had to die on account of the bum injuries. A criminal case was registered against the petitioner and his family members. She was turned out when she was pregnant. In spile of the fact that respondent joined the company of the petitioner-appellant in the month of November, 1994, yet she was again turned out on 13.1.1996. The respondent did not want to leave the company of the appellant. She was turned out with disrespect even after 13.1.1996. The appellant was in the habit of threatening the respondent and if respondent had adopted the legal remedy under Sections 107/151 Cr.P.C., this is not enough to say that the said legal remedy had been adopted with a malafide intention and in order to bring haired for the appellant. In fact no panchayat was brought by the appellant on 8.5.1996. The conduct of the appellant is very strange that according to his own version he was ready to rehabilitate the respondent on 8.5.1996 but when he made the statement before the Court on 13.2.1998, he categorically stated that he was not interested in the respondent. The only inference which can be drawn from this statement of the appellant is that he wanted to get rid of the respondent. No genuine efforts have been made by the appellant for the rehabilitation of the respondent and the appellant cannot take the advantage of his own wrong. Moreover, the appellant had to stand on his own legs in order to succeed in the petition. If the alleged acts of cruelty had not been proved by any preponderance of evidence, the appellant cannot take the advantage of the weakness of the defence of the respondent.
13. I have considered the submissions raised by the learned counsel for the parties and I am of the considered opinion that this appeal must fail.
14. The petitioner-appellant had filed the petition before the trial Court on the ground of cruelty. The phrase "cruelly" has not been defined in the Hindu Marriage Act, 1955 but as I understand from this phrase, the cruelty consists of unwarranted and unjustifiable conduct on the part of one spouse causing other spouse to endure suffering and distress, (hereby destroying peace of mind and making living with such spouse unbearable, completely destroying the real purpose and object of marriage. If a person by his or her conduct creates a situation where he or she is reasonably expected to face some consequences, actions leading to that consequence cannot be deemed to be cruelty. With regard to the argument of Mr. Sandhawalia that the respondent filed the proceedings u/s 107/151 Cr.P.C., it is stated that to file these proceedings is not an offence. Even those proceedings have been dropped by the Court. The question is whether there is any finding of any competent court of jurisdiction that the launching of the proceedings was false, frivolous vexatious or malicious otherwise nobody will be in a position to pursue a legal remedy which is open to him or her under the law. It is the case of the respondent-wife that she was threatened even after she was turned out from the house. In these circumstances, if she has resorted to the launching of the proceedings under Sections 107/151 Cr.P.C. just to deter the appellant not to indulge further into the infarious activities, such action on the part of the wife cannot be termed as cruelty.
15. Further the act of cruelty complained of will not come within the realm of cruelty unless it is further established or proved on the record that such complaining act was so hazard and was so serious that it had become difficult for the spouse complaining of such cruelty to live with the spouse against whom the cruelty has been alleged.
16. Petitioner appeared as his own witness as AW1. Though he tried to support his case in the examination-in-chief but his case stands totally exposed in the cross-examination. He admitted in the cross-examination that he was ready to keep the respondent on 8.5.1996 but not now. 8.5.1996 was the date when alleged Panchayat went to the house of the parents of the respondent.
17. Not a single witness of the locality of the respondent''s parents have been examined to prove the genuineness that any panchayat was taken by the petitioner. It has been further admitted by the appellant that he did not go to take the respondent after 8.5.1996. It does not took probable that when appellant was insulted on 6.5.1996 in his own house by two unidentified persons in the presence of his wife when those persons gave beating to the appellant, the appellant would go in the shape of a Panchayat on 8.5.1996. This appears that appellant has concocted a story of 8.5.1996. It further appears that appellant is in the habit of managing false evidence for his benefit and Ex.P.1 is the example. It is a three line note written by the respondent. The contents of Ex.P.1 shows that the appellant took this writing forcibly from the respondent on some dale as the date is not written in Ex.P.1. The contents are interesting, which are reproduced as under L.
"Main Kal jaungi to phir nahin auingi aap ke bache ko bhi milne nahin dungi. Ek Ek Taraf uski surat bhi nahin dekhne dungi."
This note is not signed by the respondent. It is undated as I just stated above. Meaning thereby that the appellant wanted to collect evidence so that the same may be exploited or utilised against the respondent. As against this, there is a cogent explanation given by the wife that this document has been taken up from her under forcing circumstances and after giving her beating.
18. With regard to the incident dated 6.5.1996 I must say that it is a false version. Had such serious incident taken place, what should have been the normal conduct of the appellant and his family members ? The appellant admitted that he could not tell the number of the Scooter on which two unknown persons along with the respondent came. In spite of the fact that his mother and sister were present they did not try to catch hold of those persons. The appellant did not get himself medically examined. He did not lodge the report with any authority. So much so he did not go to the house of any respectable in his own locality. Nobody has been examined to prove the alleged incident. In such situation it is difficult for this Court to hold that any incident dated 6.5.1996 had taken place. The appellant had to admit that the wife of his brother Shri Prem Kumar died on account of the burn injuries and his brother Shri Prem Kumar was prosecuted for an offence u/s 304-B of the Indian Penal Code.
19. Now let us examine the probabilities of this case. Why respondent should leave the house of the appellant as alleged by him. Respondent is not employed lady. She was to depend herself upon the income of the appellant. She had a female child in her lap. She would be the last person to desert the house of the appellant unless she is economically sound or her parents are so sound that they were in a position to afford the expenses of the respondent and her child for all times to come. Appellant had admittedly not taken any steps after the alleged visit of 8.5.1996. He has not sent any amount of maintenance either for the child or for the wife. In such a situation, it is difficult for me to hold that respondent had treated the petitioner with cruelty.
20. With regard to the general allegations that respondent did not prepare the meals or that she used to insult or that she used to nag the appellant in the presence of his friends or relatives, there is no satisfactory evidence. Jiwan Jyoti AW2 is a student. He admitted that he did not see any person giving slaps to his brother as he was studying at the first floor. Statement of Shri Swaran Singh also looks to be a tissue of lies. The land of witness is in Tehsil Dasuya. He does not do any job in Jalandhar. He cannot tell the date or month in which he had gone to the house of the appellant when the incident had taken place when respondent refused to prepare tea etc. Similarly I am not inclined to give much importance to the statement of Shri Balbir Rai AW-4.
21. As against this, there is a categorical statement of the wife that in spite of the sufficient dowry given in the marriage, the petitioner-appellant and his parents were mal-treating her on the ground that dowry brought by her was below to their expectation. According to the respondent even a scooter was given in dowry still a demand of VCR and cash of Rs. 20,000/- was made. Cash was demanded for the business of the brother of the petitioner. The demand could not be met. She was turned out in the month of May, 1994 when she was in the advance stage of the pregnancy and she delivered the child on 27.5.1994. It has also come in the statement of the respondent that in November, 1994, her parents along with Mohallawalas went to the house of the appellant and made a request for her rehabilitation in her presence. She was allowed to be kept there but after about 10/15 days she was again turned out. She was given the taunt that in case demand of dowry is not fulfilled she would also be put to death as it was done with the wife of the Shri Prem Kumar. She was turned out finally on 13.1.1996 and till then she is residing in the house of her parents. Of course, respondent admits about the launching of the prosecution under Sections 107/151 Cr.P.C. which was filed during the pendency of the main petition u/s 13. There cannot be a smoke without a fire. There must be compelling necessity on the part of the respondent and that is obvious reason that she has to file a complaint under sections 107/151 Cr.P.C. She had given her explanation with regard to the writing Ex.P.1 by stating that it was got written from her after giving her beating and this was written after about 8/9 months of her marriage when she was on the family way. A suggestion was given to this witness that on 13.1.1996 she locked herself in the room. This is not even the case of the appellant in his petition. Since the onus of issue No. 1 was upon the appellant, therefore, the appellant cannot take the advantage by saying that respondent has not been able to prove that appellant ever made a demand of dowry.
22. It has been held in 2000(1) HLR 229 Vegi Jagadesh Kumar v. Radhika that for establishing the cruelty, the party complaining shall prove that the other party committed wilful and unjustifiable acts inflicting pain and misery on the complainant and causing injury to his/her health. The conduct of the complainant must be serious and higher than the wear and tear of married life. Mere complaints, taunts by one another do not constitute cruelty if they are not wilful in nature. In the present case the appellant has not been able to establish the acts of cruelty as complained by him.
23. Also, it was held in 2000(1) HLR 292 Shrikant Ramsajiwan Tripathi v. Saroj that a party should plead all material facts in support his allegations regarding the ground of cruelty. Mere vague and general averment of cruelty would not constitute proper pleading. In the present case, there are general allegations of cruelty that respondent was not inclined to do the domestic work. Specific incident of cruelty as alleged in the petition has been found as false. Even if it is assumed for the sake of argument that respondent has not been able to prove her defence, it cannot amount to mental cruelly to the appellant because the burden to prove the allegations of cruelty is always on the party which claims the divorce on the ground of cruelty.
24. The learned counsel for the appellant, however, relied upon 2000(2) RCR 394 (Allahabad)(DB) : 2000(1) S C C226, Smt. Abha Agarwal v. Sunil Agarwal and submitted that in order to constitute condonation, forgiveness and restoration to the original status is necessary. Mr. Sandhawalia then submitted that though the appellant stated in Court that he is not interested to rehabilitate the respondent but the visit dated 8.5.1996 should not be treated as condonation to the cruelty because after 8.5.1996, the respondent did not join the society of the petitioner-appellant. In my opinion, Mr. Sandhawalia has not given the right interpretation to the facts of the case. In order to constitute condonation, two things are necessary. Of course, two things are forgiveness and restoration but the question is whether there was any panchayat on 8.5.1996 as alleged when the inci- dent had already taken place on 6.5.1996. Even if it is assumed for the sake of argument that the appellant had not condoned the alleged act of cruelty, the question for determination is whether the respondent had treated the petitioner-appellant with cruelty at any point of time and the answer of this Court is in the negative for the reasons stated above.
25. Counsel for the appellant relied upon 1981 HLR 16 Krishna Rani v. Chuni Lal Guluti. The facts of this case are distinguishable. In the cited case it was proved on the record that the wife was arrogant. She neglected her children and stayed away from house for days together without consent of husband and that she continuously deserted and misbehaved with the husband in the presence of his friends. Nothing is proved on the record. Reliance was not placed on 1995(3) RCR 345 (P&H) : 1995(2) HLR 315 Rama Kanta v. Mohinder Laxmidas Bhandula. This judgment is again distinguishable on facts. There is no evidence on the record to show that the behaviour of the respondent was not cordial or respectful or that she used to insult every member of family of the petitioner-appellant.
26. My attention was invited to 1993 S C C 410 Kanchanapalli Lalithakumari v. Kanchanapalli Ramaprasada Rao, in which it was held that if malicious, wild, baseless, scandalous and false allegations have been levelled in the written statement and if those allegations are not proved or remained unsubstantiated it can become a ground of cruelty. There is no quarrel with the preposition of law but before this preposition is to be applied to the facts there must be evidence. A genuine defence has been taken by the respondent that she was turned out from the house as the appellant and his family members were greedy persons. In spite of the sufficient amount of dowry including a scooter a demand of Rs. 20,000/- was made and when that demand could not be made the things went wrong. So much so, the wife of the younger brother of the appellant had to commit suicide and the case was registered. The mind of a Hindu woman is very sensitive. Woman by nature is suspicious. If she sees unusual behaviour either on the part of her husband or on the part of his family members, it becomes a valid basis for her to make her own interpretation. The moment a woman is confronted with a situation like demand of dowry she starts losing charm of the married life. The moment she feels disaffection on the part of her husband and his family members, she goes in passion but it does not mean that her defence was frivolous, scandalous or unjustifiable.
27. I have considered all the prons and cons of this case and am of the considered opinion that this appeal is without any merit. Thus, the present appeal is hereby dismissed with costs. Counsel fee is assessed at Rs. 500/-.
28. Appeal dismissed.
