Court:PUNJAB AND HARYANA HIGH COURT
Bench: JUSTICE J.V. Gupta
BALRAM SINGH Vs. SUKHWANT KAUR 8 September 1987
False Allegation by wife that Husband contracted second marriage during subsistance of first marriage with her. Such allegations against her husband constitute mental cruelty on her part.
This appeal is directed against the judgment and decree of the Additional District Judge, Amritsar, dated August 30, 1986, whereby the petition filed on behalf of Balram Singh, appellant, for divorce was dismissed.
2. The marriage between the parties was solemnised on November 25, 1973. One child was born out of the said wedlock who died subsequently. The wife left the matrimonial home to December, 1977. The petition for divorce was filed on January 28, 1985. According to the case set up by the husband, the wife, from the very-beginning insisted upon living separately, but the husband tried to persuade her that it was not possible because he had yet to establish in life. The wife did not agree and put her proposal that the husband should shift to the village of her parents to look after the affairs of her parental family because her mother was widow and the brothers were young. The husband did not agree to this proposal. According to him, it was not possible for him to live separately from his parents being the eldest son in the family. He tried to persuade the wife but her attitude was indifferent. She used to pick up quarrels with him and his other family members. The wife used to insult the other family members of his husband. When the matter was brought to the notice of his mother-in-law by the husband, she took the side of her daughter. According to the husband, this conduct on the part of the wife constituted physical and mental cruelty. Ultimately, in December, 1977, the wife was taken away on the pretext that there was some marriage in the family of the wife. After waiting for a fortnight, the husband went to her parents house and requested her to accompany him to the matrimonial home, but she refused. Not only that, he was insulted by her and her mother. On February 25, 1982 wife filed a criminal complaint under Sections 494 and 120-B, Indian Penal Code, against her husband Balram Singh and his mother Mohinder Kaur that Balram Singh had contracted second marriage with Yugraj Kaur, during the subsistence of his first marriage with her. The said complaint was ultimately dismissed vide order dated November 28, 1984, Exhibit P. 4. In view of this treatment on the part of the wife, the husband filed the petition for divorce against her. In the written statement fried by her, she denied the allegations levelled against her. She pleaded that she was always ready and willing to go to the matrimonial home, but it was the husband who was not interested to keep her. He bad Bled a suit for judicial separation against her earlier, but the same was dismissed. She many times approached her husband, but he deserted and neglected her without any cause or excuse. She had to file a petition under Section 125, Code of Criminal Procedure, for maintenance which was still pending. She also alleged that the husband had contracted a second marriage with one Yugraj Kaur who was a Staff Nurse and that she bad already filed a complaint under Section 494, Indian Penal Code, against her husband and his family members. On the pleadings of the parties, the trial Court framed the following issues :
1. Whether the respondent is guilty of cruelty towards the petitioner ?
2. Whether the respondent had deserted the petitioner for a continuous period of more than two years prior to the presentation of the petition ?
3. What is the effect of the dismissal of the petition under Section 10 of the Hindu Marriage Act brought by the petitioner against the respondent.
4. Whether the petition is barred for the reasons mentioned in the additional plea about the dismissal of the previous petition under Section 13 of the Hindu Marriage Act ?
Under issue No. 1, the learned trial Court found that the husband had failed to prove the cruelty as alleged against his wife and that the complaint filed by her was not a false one. The other issues were not pressed. Consequently, the divorce petition was dismissed.
3. The learned counsel for the appellant submitted that the filing of the criminal complaint, which was ultimately dismissed by the criminal Court vide order, copy, Exhibit P. 4, constituted mental cruelty on the part of the wife. Not only that, she still persisted that her husband has remarried one Yugraj Kaur, though this plea was found to be false by the criminal Court. Thus, argued the learned counsel, on the facts admitted, the husband was entitled to the decree of divorce. In support of the contention, the learned counsel relief upon Rajkishore Prasad v. Raj Kumari Devi, 1986 (2) HLR 36 and Smt. Rajinder Kaur Gill v. Prof. Sital Singh, 1983 HLR 219. On the other hand, the learned counsel for the respondent submitted that the allegations made by her that the appellant had contracted second marriage with Yugraj Kaur were not false. Therefore, the complaint filed by her could not be said to be a false one.
4. I have heard the learned counsel for the parties and have also gone through the relevant evidence on the record.
5. Admittedly, the wife Sukhwant Kaur did file the criminal complaint on February 25, 1932, against her husband balram Singh and his parents as well as Yugraj Kaur. In the said complaint, it was found,—
“In the absence of any cogent evidence to prove second marriage of accused Balram Singh with Jagraj Kaur, accused, it cannot be said that the evidence on the record is sufficient which if unrebutted would warrant conviction of the accused and as such no case for framing charge against the accused is made out who were hereby discharged.”
As a matter of fact, it was after this order of discharge was passed, that the husband had no option, but to file the petition of divorce. The wife persists that the allegations made by her was correct. Under the circumstances, it is evident that the respondent has levelled wild allegations against her husband which did constitute mental cruelty on her part. The approach of the trial Court in this behalf was wholly wrong and misconceived when it was observed,—
“No doubt,” the petitioner has been discharged in the case on technical ground. Shri D.S. Chatha, Addl. Chief Judl. Magistrate, Amritsar, who vide order dated 28-11-1984, Ex. P. 4, has discharged the petitioner, but has held that Tejinder Kumar, saw both the accused, moving around and living as husband and wife and from the over all assessment of evidence, it seems that whereas Balram Singh and Jugraj accused knew each other and were moving round together. From this finding, the complaint was not false one as the Magistrate has held that both were living as husband and wife and were moving together.”
As a matter of fact, no charges were framed in the criminal complaint and the accused were discharged. Moreover, if the wife still levels the said charges against her husband, it could not be successfully argued on behalf of the wife that it did not constitute mental cruelty. It was observed by this Court in Rajinder Kaur Gill’s case (supra),
“Therefore, one thing is clearly proved in this case that the wife was levelling the allegations of adultery against her husband and was not found to be false he was clearly entitled to a decree of divorce because such a serious allegation of adultery has been considered in law to amount to mental cruelty. See in this connection the latest Division Bench judgment of this Court in case Paras Ram v. Kamlesh, ILR 1982 (II) P & H 33.”
It may be observed that efforts were made in this Court for a reconciliation between the parties. At one stage, the wife agreed to go with her husband. However, on March 18, 1987, it was stated by the counsel for the wife that the appellant slipped away and did not take her with him whereas on the other hand, the counsel for the appellant stated that the wife was not agreeable to go with him. Under the circumstances, it was found that the reconciliation was not possible between the parties.
6. As a result of the above discussion, this appeal succeeds and is allowed. The judgment and degree of the trial Court are set aside and the decree for divorce is passed in favour of the appellant husband and against the respondent.
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