FAO No.84-M of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
FAO No.84-M of 2007 (O&M)
Date of decision: 11.11.2009
Smt.Anjana Kumari ..Appellant Versus
Rajinder Kumar …Respondent CORAM: HON’BLE MR. JUSTICE VINOD K. SHARMA
Present:- Mr.O.P.Hoshiarpuri, Advocate,
for the appellant.
for the respondent.
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
VINOD K. SHARMA,J. (Oral)
This is wife’s appeal against the judgment and decree dated 5.3.2007 passed by the learned Additional District Judge, Jalandhar on a petition filed under section 13 of the Hindu Marriage Act, 1955 (for short FAO No.84-M of 2007 2 the Act) for dissolution of marriage by way of decree of divorce, by the respondent/husband.
The respondent/husband filed a petition for dissolution of marriage on the ground of cruelty, on the plea, that after the marriage the appellant had treated the respondent with cruelty, as a result of which the respondent got apprehension in his mind that it would not be safe for him to live with her except at the cost of his life. Allegations of cruelty levelled were that the appellant/wife started quarrelling with the respondent just after few months of marriage by finding fault with him. The allegations of misbehaviour with the respondent and his family members were also levelled. Reason for this was stated to be that the appellant wanted to live separately from the joint family and on his refusal she was annoyed with him. It was also pleaded that the appellant had caught him from his neck and had slapped him. It was also alleged that the appellant did not prepare meals for the respondent which he had to prepare himself and further that she used to misbehave in the presence of his friends and relatives. It was also alleged by the respondent/husband that the appellant was in the habit of leaving the house without informing him or his parents and without caring for his minor children.
Other ground on which divorce was sought is that the appellant has filed a complaint with the police against the respondent and his family members wherein a compromise was effected. It was pleaded case of the respondent that she left the company of the appellant with all ornaments and cash and refused to join the company thereafter. The FAO No.84-M of 2007 3 appellant is also stated to have filed a petition under section 125 Cr.P.C for maintenance which admittedly was compromised between the parties and thereafter a complaint under section 107/151 Cr.PC was also filed in which the respondent/husband was detained by the police. A complaint was also filed against the respondent and his family members under sections 406/323/506/498-A IPC on the basis of which FIR was registered and case was still pending on the date of filing of the petition. On notice, petition was contested by the appellant, wherein the allegations of mala fide on account of dowry was reiterated. She also admitted to have filed a petition under section 125 Cr.PC and complaint under sections 406/323/506/498-A IPC on the basis of which FIR was got registered against the respondent and his family members. Respondent/husband also pleaded that he had filed a petition under section 9 of the Act which was also compromised between the parties. However, in the written statement stand of the appellant was that the respondent/husband filed this petition just to camouflage act of maltreatment of the respondent and also to avoid payment of maintenance under section 125 Cr.PC. Allegations were also levelled that attempt was made by the respondent and his family members to go for abortion, after coming to know that she is carrying a female child in her womb, to which she did not agree. It was thus pleaded that it was on account of refusal to go for abortion that the respondent and his family members refused to keep her with them. As already mentioned above allegations were again levelled that she was treated with cruelty for want of dowry.
FAO No.84-M of 2007 4 On the pleadings of the parties, the following issues were framed by the learned Matrimonial Court:-
1. Whether the respondent treated has treated the petitioner with utmost cruelty and has also deserted the petitioner without any reasonable and sufficient cause? OPP
2. Whether the marriage between the parties is liable to be dissolved by a decree of divorce? OPP
3. Whether the respondent was turned out from her matrimonial house and was maltreated by the petitioner, if so, its effect? OPR
In support of his case the respondent himself appeared as PW 2 and also examined his father Dilbagh Singh as PW 1 and Bishamber Dass PW 3 and closed his evidence, whereas the appellant appeared as RW 1 and also examined Baldev Singh, her father as RW 2 and Baldev Singh son of Ram saran as RW 3.
Issues No.1 and 3 were taken up together.
On appreciation of evidence learned matrimonial court was pleased to record a finding that the appellant/wife had treated the respondent with mental cruelty for which he was entitled to a decree of divorce. Reason for coming to this conclusion was that it was admitted case of the parties that on the complaint made by the appellant the respondent was kept in custody by the police on the complaint made under section 107/151 Cr.PC. The learned matrimonial court also took note of the fact FAO No.84-M of 2007 5 that the appellant had failed to look after her daughters as nothing was brought on record to show whether any attempt was made by her to get the custody of the daughter who were with the respondent. The learned matrimonial court found that the allegations levelled by the respondent about maltreatment for want of dowry or because of giving birth to two female children were not proved on record especially keeping in view that the complaints were filed not immediately after the marriage but after lapse of sufficient time. The learned matrimonial court also found that the allegations that a sum of rupees fifty thousand was paid by the father of the appellant was also not proved and they were not able to show the source of funds for the said purpose. The learned matrimonial court also came to the conclusion that as the wife had not applied for the custody of the children till date and had not shown her intention to see and meet them it is itself mental and physical cruelty to the husband. Thus, keeping in view the fact that criminal case was got registered by the appellant and further that the appellant had not taken any step to look after the minor children the learned matrimonial court came to the conclusion that the respondent was treated with mental cruelty.
In view of the findings referred to above marriage between the parties was ordered to be dissolved by a decree of divorce. Mr. O.P.Hoshairpuri, learned counsel for the appellant has challenged the judgment and decree passed by the learned Additional District Judge primarily on the ground that the findings recorded are the outcome of misreading of the evidence on record. Learned counsel for the FAO No.84-M of 2007 6 appellant referred to the cross-examination of the respondent himself, wherein, he had categorically admitted, that in fact there was no problem between the parties in the matrimonial home. Statement of the respondent in cross-examination reads as under:-
” The petition was filed under section 125 Cr.PC at Dasuya which was instituted on 17.3.03 and was decided on 9.10.04. I made the statement as on 14.1.04 in that petition. My father also made the statement on 24.7.2004. I have seen my signatures on my statement on 24.7.2004 before the court of JMIC Dasuya, the certified copy of my statement is Ex.R.1 and the certified copy of statement of my father is Ex.R.2. I correctly stated before the JMIC Dasuya. Anjana Kumari respondent in the present petition also made the statement. It is correct that after the statement made by me and my father Anjana Kumari did not proceed with the petition under section 125 Cr.PCand which was dismissed as withdrawn on 9.10.04. The respondent started living with me w.e.f. 25 July, 2004. and she remained with me upto 4.2.04. It is incorrect to suggest that I torture the respondent on the account that the respondent file the petition against me and I have to appear in the court therefor, the respondent is not worth keeping in the matrimonial home. I have never made up mind not to rehabilitate the respondent as my wife, uptil now, but I am not ready to rehabilitate her. I had decided not to rehabilitate her FAO No.84-M of 2007 7 from 25tyh July, 2004 on the day she came to the matrimonial home. I never disclose this fact to the court as on 9.10.04 when she has withdrawn the petition u/s 125 Cr.PC. A complaint u/s 498-A IPC is pending against me, my mother and my sister that is pending about 7/8 months ago. I do not know the qualifications of Anjana Kumari as she might be aware of this, I have never enquired. Her father is suffering from heart disease again said I do not know. After 24.7.04 I have visited the house of my in laws once or twice but I do not remember the date. I might have visited to my in-laws house after a month or fifteen days after 24.7.2004. I went in the morning but came back in the evening. Anjana also accompanied me. I had my lunch at my in-laws house and after taking my lunch I came back in the evening. I was cordially treated by my in-laws. My in-laws also came to my house once or twice. I do not remember if my in-laws has visited my house prior to my visit to their house or after the visit to their house. I cannot say if they came to my house before or after Diwali. I do not remember if I had visited my in laws house on the Diwali Day of2004. I do not remember when I met my father in law before filing the petition u/s13 of the H.M.Act. I filed the present petition on 24.1.2005.I last met Anjana on 4.12.04 thereafter I never tried to approach nor I met her. I do not know what she had taken away from my house and therefore, I did not lodge FAO No.84-M of 2007 8 any report against her. I have two daughters they are studying, who are with me. I am not prepared to keep the respondent as my wife. I do not know if the respondent is having no source of income she might be aware of it. Anjana filed complaint against me on 6.12.04. I filed the petition after the filing of the complaint by Anjana. It is incorrect to suggest that I was torturing Anjana on account of insufficient dowry. It is also correct that the case was registered against me u/s 406, 323, 506, 498-A IPC before filing the present petition regarding the occurrence dated 4.1.04. It is incorrect to suggest that I used to curse the respondent that I got married against my consent. It is also incorrect to suggest that I and my family member were threatened the respondent to kill her. It is wrong to suggest that I am in habit of drinking and gambling. It is also wrong to suggest that I had been torturing the respondent on account of insufficient dowry. It is wrong to suggest that when the respondent was pregnant and my family members came to know that she is having a female child in her womb she was compelled to go for abortion. It is wrong to suggest that I have been beating the respondent. It is also wrong to suggest that father of respondent approached me and my family members number of time and requested us with folded hand to rehabilitat4 the respondent but I and my family members refused to rehabilitate the respondent. It is also wrong to FAO No.84-M of 2007 9 suggest that I have filed a false petition and I sworn a false affidavit. It is also wrong to suggest that I have deposed falsely.”
Thus, the reading of the cross-examination would show that the only ground on which the respondent was seeking divorce was the filing of petition under section 125 Cr.PC and the factum of having filed a criminal complaint against the respondent and his family members. The learned matrimonial court, therefore, was not justified to hold that due to cruel behaviour of the appellant, the respondent was treated with cruelty. The only question to be determined, therefore, in the present case would be whether filing of petition under section 125 Cr.PC and criminal complaint for redressal of grievances would amount to mental cruelty?
It is not in dispute that a petition filed under section 125 Cr.PC was compromised between the parties, wherein the respondent and his father had undertaken to treat the appellant well, once on the assurance of the respondent and his father the appellant had chosen to withdraw the petition moved under Section 125 Cr.PC by no stretch of imagination it can not be said to be an act which would constitute cruelty to the respondent. It is also well settled law that mere filing of a criminal complaint to redress the grievance of the wife would amount to cruelty. It is only in case of false prosecution of a spouse and his family members which constitutes cruelty. In this case nothing was bought on record to prove that the allegations were false and matter was still under FAO No.84-M of 2007 10 investigation. There was no evidence to prove that the allegations were false, as in the petition under section 125 Cr.PC the matter stood compromised between the parties by giving assurance by the respondent that the wife would be treated well. The criminal proceedings on the basis of complaint are still pending.
It was on account of the allegations of maltreatment that the appellant filed a complaint which as already referred to above is pending adjudication in the court of competent jurisdiction. The respondent could have succeeded on the ground of cruelty in case he was able to prove that allegations were patently false.
The learned matrimonial court has held against the appellant merely for the reason that the appellant had failed to prove the allegations levelled in the written statement but failed to notice that it was for the respondent/husband to have proved his plea of false prosecution. It may also be noticed here that detention of the respondent was not in a complaint case under section 406/323/506/498-A IPC but under sections 107/151 Cr.PC for which no mala fide could be attributed to the appellant as admittedly subsequently the proceedings were dropped after apprehension of breach of peace was over. Allegations of illegal detention at the instance of the appellant were also not proved as the respondent had not taken any step to prosecute the person who is said to have illegally detained him.
These allegations which were not supported by any evidence. Cross-examination of the respondent would show that all allegations FAO No.84-M of 2007 11 levelled were false, rather he admitted these to be false by admitting that there was no dispute between the parties except for filing a criminal case, and a petition under section 125 Cr.PC.
For the reasons stated above, the findings of the learned Additional District Judge are reversed and it is held that the respondent failed to prove the allegations of cruelty levelled against the appellant. Consequently, this appeal is allowed. The judgment and decree passed by the learned Additional District Judge is ordered to be set aside and the petition filed under section 13 of the Act is ordered to be dismissed but with no order as to costs.