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Bhagwant Kishore Vs. Sheela Devi

Judgement

 

Court: Punjab And Haryana High Court

Bench: JUSTICE D.V. Sehgal

Bhagwant Kishore Vs. Sheela Devi On 9 February 1987

Law Point:
Hindu Marriage Act, 1955 — Section 13 (1)(ia), (ib) — Cruelty — Desertion — Code of Civil Procedure, 1908 — Order 6, Rule 17 — Amendment of pleadings — Petition for divorce by appellant pleading desertion and cruelty — Respondent in defence pleaded appellant leading life of drunkenness and debauchery — Petition decreed — F.A.O. filed — Cases remanded back to trial court with the direction to frame issues on the point of alleged adulterous life led by appellant — Petition again decreed — Again appeal by wife — Decree again set aside — Case remanded — Appellant allowed to amend petition to plead specifically instances of cruelty — Petition dismissed — Appeal by husband — Whether the amendment when allowed relates back to the date of petition — Yes.

 

 

JUDGEMENT

 

1. This appeal is directed against the judgment and decree dated 20th February, 1986, passed by the learned Additional District Judge, Hoshiarpur, dismissing the petition for dissolution of marriage by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’), filed by the husband-appellant against his wife Sheela Devi respondent.

2. The marriage between the parties was solemnised on 6th June, 1978 at Hoshiarpur. They cohabited and lived together as husband and wife. However, no child was born out of the wedlock. The appellant through the instant petition, which was presented on 25-8-1980, sought dissolution of marriage on the ground that the respondent had deserted him since 16-8-1978. She and her parents had refused to send her to live with him at Hoshiarpur as his wife. He, his parents and close relations had approached her and her parents but without success. He also pleaded that she had been causing mental torture to him by use of abominable language of dislike with regard to him and thus she treated him with cruelty.

3. The respondent denied the allegations by filing her written statement. She instead asserted that the appellant leads a life of drunkenness and debauchery. He is besides a man of uncertain temperament and would fly into rage in season and out of season without any reason whatsoever. He is lost to all senses of decorum and would use extremely filthy language towards her. In the month of July, 1979 he maltreated her and turned her out of the matrimonial home in her wearing apparels. She, her parents along with other respectable and relatives came to him and requested him to rehabilitate her but he refused to do so.

4. A replication was filed by the appellant wherein, inter alia, it was asserted that the respondent without any foundation cast aspersions on his character, has called him a drunkard and debauch. This by itself amounts to cruelty and he is entitled to grant of decree of divorce on this ground alone.

5. On the pleadings of the parties the learned trial Judge framed the following issues on 8-10-1980 : —

(1) Whether the respondent has treated the petitioner with cruelty ?

OPP

(2) Whether the respondent has deserted the petitioner for a continuous period of two years or more immediately preceding the presentation of the petition ?

OPP

(3) Relief.

6. Learned District Judge, Hoshiarpur tried the petition, received evidence of the parties and granted a decree of divorce in favour of the appellant vide judgment dated 16-1-1981. An appeal (F.A.O. No. 32-M of 1981) was filed against the decree so granted, by the respondent, which was decided by I.S. Tiwana, J. vide judgment dated 13th January, 1983. It was observed that the learned District Judge had solely depended on the assertions made by the respondent in her reply, which were treated as an act of cruelly; that in view of the judgment of the Division Bench in Paras Ram v. Kamlesh, AIR 1982 P & H 60, this approach and conclusion of the learned District Judge could not be sustained because when any false allegation is made in the pleadings against a spouse, which amounts to cruelty in the eyes of law, such an allegation must be put to trial and it is only when its falsity or otherwise is determined that any legal consequence can flow therefrom. It was, however, pointed out that there was other evidence led by the appellant besides the aforesaid reply of the respondent on the record which might justify the conclusion recorded by the learned District Judge, Since he had not adverted to the entire evidence on the record and had primarily depended on the contents of the reply filed by the respondent to grant the relief to the appellant, the judgment and decree granting divorce was set aside and the case was sent back to the learned trial Judge for a decision afresh on merits in accordance with law.

7. After the remand the petition was once again decided by the learned District Judge, Hoshiarpur, vide judgment and decree dated 19-2-1983 After appraising the evidence adduced on the record by the appellant and led in defence by the respondent he held that both the grounds of cruelty and desertion stood establish and, therefore, granted a decree of divorce in favour of the appellant and against the respondent, dissolving the marriage between them. This second judgment and decree of the learned District Judge was again made the subject-matter of F.A.O. No. 54-M of 1983, filed by the respondent in this Court which was decided by M.M. Punchhi, J. on July 26, 1984. It was observed that the evidence that has been taken into consideration while granting the decree was not based on any pleadings. The acts of cruelty which were sought to be proved in the course of evidence were not specifically pleaded in the petition. On a prayer made on behalf of the appellant, he was allowed to amend the petition subject to payment of Rs. 1000/- as costs, so as to plead all those alleged facts which constituted cruelty according to the evidence adduced by him. The judgment and decree were, therefore, once again set aside and the case was remanded to the learned District Judge to proceed in accordance with law.

8. The amended petition was filed before the learned District Judge on 14-6-1985. Written statement to the same was filed by the respondent on 10-9-1985. A rejoinder was filed by the appellant on 289-1985. No fresh issue was claimed by the parties. At this stage the case was transferred to the court of learned Additional District Judge, Hoshiarpur. He afforded opportunity to the parties to lead evidence Learned counsel for the appellant made a statement on 26-11-1985 that he did not want to lead any evidence after amendment of the pleadings. The respondent, however, wanted to lead evidence. She produced Dharam Paul PW 5 who simply stated that when at the earlier stage the case was pending before the learned District Judge, a compromise was arrived at between the parties, which was sought to be produced in the Court but was not taken on record. Besides this no other evidence was produced and the respondent closed her evidence. After re-appreciating the evidence already on the record, the learned Additional District Judge decided both the issues against the appellant and held that neither the ground of cruelty nor that of the desertion was established. As a consequence, vide judgment and decree under appeal, the petition filed by the appellant was dismissed.

9. I have heard the learned counsel for the parties on 27-1-1987. On that date learned counsel for the appellant paid a sum of Rs. 280/- to the counsel for the respondent, as the balance amount of maintenance pendente lite upto 31st January 1987, after adjusting the amount deposited by the appellant towards maintenance under Section 125, Code of Criminal Procedure. Interestingly, despite the fact that in the first instance the decree of divorce was granted in favour of the appellant on the ground that the respondent had made unfounded allegations against him in her reply, assailing his character, which by itself constituted cruelty, he did not incorporate this ground in his amended petition. Likewise, while filing reply to the ameded petition the respondent did not repeat the allegations that the appellant was a drunkard or a debauch and instead stated that what had been alleged in the petition as acts of cruelty on her part, amounted to her vilification and character assassination. She, no doubt, added that the appellant was addicted to liquor and was in the habit of coming home after becoming drunk and deriving pleasure by abusing her in an irresponsible manner. It is to be noted that the appellant while amending the petition, introduced in the petition all those instances which according to him amounted to acts of cruelty on the part of the respondent, and in support of which he had already led evidence on the record.

10. Learned counsel for the appellant contends that the approach of the learned Additional District Judge to the case while appreciating the evidence was erroneous. The learned trial Judge has observed that the appellant has tried to incorporate in the petition in the year 1985 the pleas consistent with the evidence which he led in the year 1980 and which were conspicuously absent from the averments in the petition as originally filed by him. The learned trial Judge then proceeded to appreciate the evidence with suspicion and considered the same as afterthought. This approach of the learned trial Judge, according to the learned counsel for the appellant, was clearly wrong I agree with this submission. When an amendment of the pleadings is allowed, it relates back to the date when the pleadings were originally filed. After the amendment, the Court is required to look at the amended pleadings and leave out of consideration those before the amendment. It is thus, in this perspective that the evidence on the record has to be appreciated.

11. The appellant himself appeared as PW 1. He stated that on the date following the marriage, he returned to the house of his in-laws with the respondent, as Muklawa ceremony was to be performed. She was to return with him to the matrimonial home. However, on reaching her parents house, she became unwilling to return with him. Her mother also showed her disinclination to perform the Muklawa and to send her with nun. She told her mother that it was promised that she was required to go through the marital rites and was not to be sent with him. She did not accompany the appellant. When it became known at his place that the respondent was not being sent back, Krishan Lal PW reached his in-laws house. He advised them to send the respondent to the appellant’s house. On his persuasion they agreed to send her with him for two or three days at the most, stating that thereafter she would be brought back. The respondent came and lived with him at the matrimonial home for four days and then returned to her parents’ house. 15 days later he again went and brought her to his house. During the time she lived with him she kept on saying that she was not prepared to live with him. Though her parents had performed her marriage under compulsion, she could not be retained at his house forcibly. He kept trying to persuade her to be reasonable. Whenever he came home late from the office, she accused him of being a drunkard and a philanderer. She accused him of having liaison with other women. She used to remark that he possessed a dusky complexion and looked like a Bhaiya in appearance. She considered it unbecoming to be by his side because of his dark complexion. He deposed that she lowered him in the estimation of others. He started remaining dawn cast. She threatened to self-immolate her by pouring kerosene oil over herself and setting herself on fire, if any attempt was made to keep her in his house by force. She cast disparaging remarks about his family status and about himself. On 16-8-1978 her father came and took her away to his house. At that time she stated that she would never return to his house while her father assured him that he would send her back. He went to fetch her but her mother told him never to set foot in their house She also threatened his father Pishori Ram, PW 2, who had acted as a go-between at the time of marriage, went to his in-laws’ house but the respondent refused to return. Then he, accompanied by Dharam Paul Suri PW., went to his m-laws’ house but she again refused to come back. The appellant stated that he would not be able to live in peace in the company of the respondent. He was afraid that she might immolate herself and get him implicated in a criminal case. He further stated in cross-examination that the respondent passed derogatory remarks about his looks etc. before others including Shri Dharam Paul Suri and Dr. Krishan Lal PWs.

12. His version was supported by Pishori Ram PW 2, who stated that despite efforts, the respondent did not return to her matrimonial home. He deposed that the appellant as also the respondent ate closely related to him. He described his relationship with them. He admitted that the father of the respondent had given her dowry befitting his status. Her father is a man of means. He further deposed that the respondent is now residing continuously in the house of her parents for the last one year. Dr. Krishan Lal Sharma PW 3 deposed that the appellant is a close friend of his son-in-law. He had attended his marriage. He had gone to the house of the appellant on the day following the marriage to give shagun (cash gift) to the bride but she was not there. He was informed that she had gone to her parents’ house for the purpose of muklawa ceremony but was not being sent back with the appellant. Thereafter, he along with the father of the appellant went to the house of her parents. He advised them to send her to the matrimonial home and if she was not sent with her husband, both the families would lose face. Then she was sent with the appellant. He invited the parties to his house to a meal. The respondent stated to him that her husband appeared to be a bad character possessing a dusky complexion and the looks of a Bhaiya and she was not going to reside with him. He advised her to adjust her in her in-laws’ house and stop criticising the appellant. She, however, repeated that she could not live in the appellant’s house. The statement of this witness that he had invited the parties to meals at his house and that she made the remarks, afore-mentioned, was not questioned in cross-examination. He added in cross-examination that after the meals the respondent remained in the appellant’s house for one or 1-1/2 months. Dharam Pal son of Babu Ram Suri PW 4 stated that about two days before the respondent left the appellant’s house, she and the appellant had come to his house to watch television programme. At that time she stated to him that the appellant was a drunkard and a debauch and that he was beneath her looks and she was married to him against her wishes. She lived for 1-1/2 months after the marriage at the appellant’s house. When he advised her to see reason, she kept mum He once accompanied the appellant to his in-laws’ house to bring back the respondent. She was however, not sent with her husband. In cross-examination he stated that the appellant is his friend and also a friend of his brother-in-law. Their friendship dates back to the year 1973. He further stated that the respondent is now continuously living in her parents’ house for the last two years. He had gone to the in-laws house of the appellant four months after the marriage. No cross-examination was addressed to this witness about the remarks made by the respondent regarding the appellant’s character or about the fact that the parties had visited the house of the witness to see a television programme. Tilak Raj PW 5 is a first cousin of the appellant. He stated that twice or thrice the appellant had come to him and on his inquiry the appellant had told him that the relations between him and the respondent were strained and that she was away to her parents’ house at Garhshaokar and had not returned. He also deposed that the appellant told him that the respondent did not like his dark complexion and accused him of being a bad character. He testified that he knew the appellant well and that he was a gentleman. No cross-examination on this aspect was addressed to this witness Ram Dass PW 6 stated that he and the appellant were members of the same society propagating religion He plays different roles in religious plays conducted by the society. According to this witness the appellant is a gentleman to the core. The only reply elicited from him in cross-examination was that it was incorrect that he had deposed falsely.

13. The respondent appeared in the witness-box as RW 1. She stated that in the beginning, she was treated well by the appellant, but then he started returning home drunk and started assaulting her. His family too used to beat her. Her husband asked her to leave his house and then she came to her parents’ house and narrated to her family about the maltreatment given to her by the appellant. The appellant did not come to take her back. She denied in cross-examination that she disliked the appellant. She stated that in fact she liked him. She denied that she used to call him a dusky fellow, a bad character and a Bhaiya. She was even now prepared and willing to live with the appellant as his wife. Tilak Raj RW 2, Tara Chand RW 3, Dharam Pal RW 4, and Dharam Pal RW 5 stated that they made efforts to rehabilitate the respondent and tried to persuade the appellant, but he did not agree. Dharam Pal RW 5 also stated that a compromise had been arrived at between the parties at an earlier stage of the proceedings pending before the learned District Judge and even a written application was sought to be moved, but the same was not placed on record.

14. On reappraisal of the above evidence I find that the respondent has been levelling unfounded allegations about the character of the appellant. The statements of the appellant and his witnesses in this regard have not been questioned in cross-examination. She accused him of having liaison with other women. She called him a drunkard. She despised him for having dark complexion. The statement of the appellant that because of these insults and nagging on the part of the respondent, he felt downcast and insulted, has not been questioned. The statement of the respondent that after returning home drunk, the appellant used to beat her and even his parents used to beat her, is clearly an unfounded allegation as it is not based on her averments in her reply to the petition. It is by now well settled that persistent abuses and insults hurled by one spouse on the other do amount to mental cruelty The life of the spouse so offended is imperilled, his mental happiness and reputation are lost. Such a behaviour on the part of the offending spouse amounts to cruelty within the meaning of Section 13(1)(ia) of the Act. I find support for this view from Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534. I do not find any reason to agree with the learned Additional District Judge that the witnesses who have deposed in favour of the appellant have come out to do so because of their close relationship and friendship with him. I, therefore, find that issue No. 1 stands proved. The same is, therefore, decided in favour of the appellant and against the respondent.

15. Coming to issue No. 2, I do not find that the ground of desertion has been established. The statement of Pishori Ram PW 2 was recorded on 20th November, 1980. He stated in cross-examination that the respondent was now residing continuously in the house of her parents for the last one year, which would mean that she left the house of the appellant somewhere in the second half of the year 1979. The appellant cannot get out of the statement of his own witness. Further it is the case of the respondent that she left the house of the appellant because of the maltreatment given to her, in July, 1979. The instant petition was filed on 26th August, 1980. It is, therefore, not proved that the respondent deserted the appellant for a continuous period of two years preceding the date of presentation of the petition. This issue is, consequently decided against the appellant and in favour of the respondent.

16. As a result of my finding on issue No. 1 I hold that after the solemnisation of the marriage, the respondent treated the appellant with cruelty. Consequently, I set aside the judgment and decree under appeal passed by the learned Additional District Judge, and instead grant a decree of divorce by dissolution of marriage in favour of the appellant and against the respondent, by allowing his petition under Section 13 of the Act. The parties are however, left to bear their own costs.

Appeal allowed.

 

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