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Cruelty and desertion

G. ARAVINTHAN ,
  01 September 2010       Share Bookmark

Court :
Punjab & Haryana High Court
Brief :
The Indian Penal Code, 1860 The Code Of Criminal Procedure, 1973 Section 18 in The Indian Penal Code, 1860 The Hindu Marriage Act, 1955
Citation :

 

Rajesh Bindal J.

The wife is in appeal against the judgment and decree dated 20.1.2010, passed by the learned court below, whereby in a petition filed under Section 13 of the Hindu Marriage Act, 1955 (for short, `the Act') by the husband, decree of divorce has been passed in his favour on the ground of cruelty and desertion.

Briefly, the facts, as are evident from the impugned order, are that marriage of the parties was solemnized according to Hindu rites and ceremonies on 5.5.1992 at village Thurana, District Hissar. After the marriage, the parties cohabited with each other, but no child was born out of the wedlock. The case set up by the respondent-husband was that the appellant-wife treated him with cruelty from the very beginning. Her behavior used to hurt the feelings of the husband as well as his family members. After the marriage, the appellant lived with the respondent in his village Alipura for about a week and then she left in the company of her brother and did not turn up for about six months, in spite of various messages sent to her. The appellant was stated to be under the influence of one Swami Krishnanand Ji of Shri Deeptanand Kanya Gurukul Ghirai. A panchayat was convened prior to Diwali festival, however, the appellant flatly refused to join the company of the respondent and stated that she would come only after the festival of Diwali in 1992. When she came back after Diwali festival, she stayed with the respondent only for about a week, but even during this period she was proved to be a nuisance as she used to pick up quarrels even on petty matters. FAO No. M-101 of 2010 [2]

There was no co-habitation during this period. She insisted that the respondent should live separate from his family or live in Gurukul premises. She again left the matrimonial home after about a week. As the appellant did not join the company of the respondent for more than two years thereafter despite repeated requests and had made up her mind to divorce him, she brought a panchayat in the month of January, 1997 at village Alipura. The local panchayat also joined with them to settle the dispute between the parties. As agreed upon before the Panchayat, all the dowry articles were returned and a cash amount of Rs. 50,000/- was paid to the appellant as permanent alimony, but in spite of that, things did not settle down. As the effort of the appellant was merely to harass and humiliate the respondent and his family members, she moved a complaint before Senior Superintendent of Police, Hissar on 21.12.1998 under Section 498-A IPC. On investigation, the complaint was found to be false. Thereafter, other petitions under Section 125 Cr.P.C. and 494/120 IPC were filed, which were followed by a petition under Section 18 of the Hindu Adoption and Maintenance Act. With these pleaded facts, the respondent filed petition for divorce on 30.8.2006. The appellant in her written statement while raising preliminary objections, refuted all the allegations. She stated that she never treated the respondent with physical or mental cruelty. All the allegations leveled in the petition were false and defamatory. In fact, she is an educated lady having qualification of M.A., B.Ed. She cannot be under the influence of any person as is sought to be alleged. She lost her father about 30 years back and had only one brother. She never intended to live in the company of Swami Krishnanand Ji, as alleged. The family members of the respondent were never treated with cruelty. Co-habitation was never refused. Shri Deeptanand Kanya Gurukul Ghirai was set up only in the year 2000, hence, there was no question of her being under the influence of Swami Krishnanand Ji before that. In fact, she was maltreated by the respondent and turned out of the matrimonial home on 20.1.1997, as the demand of the respondent was for a Maruti car and Rs. 50,000/- in cash. The respondent had, in fact, contracted second marriage on 18.6.1998 with one Sushma. It was submitted that the appellant filed a complaint in the court, in which the respondent and his family members were facing trial after being summoned. She was compelled to file various cases, which were based on correct facts. The prayer was for dismissal of the petition for divorce.

FAO No. M-101 of 2010 [3]

On the pleadings of the parties, the learned court below framed the following issues:

"1. Whether the respondent had treated the petitioner with cruelty as alleged if so its effect ?OPP

2. Whether the respondent has deserted the petitioner for a continuous period of more than two years as alleged if so its effect ?OPR

3. Whether the petitioner has no cause of action to maintain and file the present petition ?OPR

4. Relief."

The respondent-husband in support of his petition produced six witnesses, whereas the appellant produced three witnesses. After considering the evidence led by the parties, the learned court below granted the decree of divorce in favour of the respondent on account of cruelty as well as desertion. It is against this judgment and decree that the appellant-wife is before this Court. Learned counsel for the appellant submitted that the appellant in the present case is not at fault. She is the sufferer in the hands of the respondent. She was not permitted to settle in the matrimonial home. In fact, she was beaten up and turned out of the matrimonial home and circumstances were such that she could not return back. Even now, she wants to live with the respondent. The fact that she is serving in the Gurukul of the Swami Ji is not in dispute. However, the same is only for the purpose of Sewa. She being an educated lady is teaching the girl students there, as the Gurukul is meant only for girl students. She is not getting any salary therefrom and is dependent on meager amount of maintenance being paid by the respondent. She had to initiate various cases against the respondent, as that time, she had no other choice. No doubt, the complaint made by her to the police under Section 498-A IPC was found to be false on investigation, but a protest petition filed by her is pending. Even against acquittal of the respondent in proceedings under Section 494 IPC, revision is still pending. She had to file application for maintenance per force, as she had no source of income to maintain her.

Heard learned counsel for the appellant and perused the paper book. Though in first appeal against the judgment of the learned court below, normally the court issues notice to the other party, however, considering the facts of the present case, where on the basis of the material on record, it is evident that ever since the parties married on 5.5.1992 till the time the divorce petition was FAO No. M-101 of 2010 [4]

filed on 30.8.2006, i.e., more than 14 years, the parties lived together only for 19 days; they are admittedly living separately since the end of year 1992, the fact even admitted by the appellant, while appearing as RW2, and also other material being referred to in the preceding paragraphs, I deem it appropriate to consider the merits of the case at this stage so that agony of the parties is not prolonged further. The facts, as noticed by the learned court below in paragraph 17 of the judgment about the period the parties lived together after the marriage till the end of year 1992 were not disputed by learned counsel for the appellant. It is that after the marriage, the parties lived together for about a week. Thereafter, she joined the company of the husband nearly after six months and stayed there for about 5 days and finally after Diwali festival of 1992, the appellant again joined the company of the respondent and stayed with him for about a week and since then she is living separately. No effort was made by either of the parties till 1997, when it is alleged by the respondent that a panchayat was convened which settled the matter for separation, which fact is admitted by the appellant. Still the fact remains that from 1998 onwards, the appellant is involving the respondent and his family members in number of criminal as well as civil cases. She filed complaint under Section 498-A IPC, which was found to be false. She initiated prosecution of the respondent under Sections 494/120 IPC, in which the respondent was acquitted, against which the revision is stated to be pending. Besides that, petitions were filed under Section 125 Cr.P.C. and also under the Hindu Adoption and Maintenance Act. The learned court below noticed in the impugned judgment that as many as 10 cases were filed by the appellant against the respondent and his family members and in most of them, she was not able to substantiate the claim made by her. In spite of the fact that the parties started living separate in the end of year 1992 and a panchayat was convened in the year 1997, but still no effort was made by the appellant to join the matrimonial home, rather, the effort was to indulge the respondent in criminal as well as civil litigation, which was initiated from 1998 onwards. FIR No. 314 of 1999 was got registered with Police Station, Narnaund, which was ultimately cancelled. However, a protest petition was filed by the appellant, which is stated to be pending. Petition under Section 494 IPC filed by the appellant was dismissed, as sufficient evidence could not be produced by her. However, a revision is stated to be pending against that. She is stated to be in service since 1998. All what the appellant produced in her evidence was two witnesses from the Gurukul, where she was working, in addition to her own self- serving statement. No independent witness was produced regarding the matrimonial life. As against that, the respondent had produced five witnesses in FAO No. M-101 of 2010 [5]

addition to his own statement.

The aforesaid facts, in my opinion, were sufficient to hold that a case for grant of divorce on the ground of desertion and cruelty was clearly made out and ` no fault can be found with the judgment and decree passed by the learned court below. Accordingly, the appeal is dismissed.

 
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Published in Family Law
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