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CAPT. DEEPAK KUMAR Vs. MANISHA

Judgement

 
Court:PUNJAB AND HARYANA HIGH COURT

Bench: JUSTICE R.L. Anand

CAPT. DEEPAK KUMAR Vs. MANISHA On 01 May 2001

Law Point:
After departure Wife levelled such type of allegations which could not be Expected from Her which Amounts to Act of Cruelty.

 

 

JUDGEMENT

 

This is the husband’s appeal and has been directed against the judgment and decree dated 22.11.1999, passed by the Additional District Judge, Gurgaon, who dismissed the petition under Section 13 of the Hindu Marriage Act filed by Shri Deepak against his wife Smt. Manisha Tyagi. It may be mentioned at the first instance that the petition under Section 13 of the Hindu Marriage Act was filed at Meerut on 24.11.1993 being a Matrimonial Case No. 684 of 1993. Later on this petition was amended and the amended petition was filed in the Court of District Judge, Gurgaon on 28.11.1995. The Gurgaon Court got the jurisdiction to try this case under the orders of Hon’ble Supreme Court. Thus, I am incorporating the material pleadings of the parties in this judgment as per the amended petition.

2. The petitioner-appellant Shri Deepak Kumar inter alia pleads that marriage between the parties was solemnised on 17.11.1991 at New Delhi. After the marriage, the respondent cohabited with him and stayed with him up to 30.12.1992 intermittently. The parties are living separately since 31.12.1992. A female child was born out of this wedlock on 2.6.1993. It is alleged by the petitioner-appellant that during the period of cohabitation with the respondent he discharged all his obligations as a husband. However, respondent is a quarrelsome lady. She is rude in her behaviour. She is insolent and ill-mannered. She was never agreed to any suggestion made by the petitioner. Respondent had caused acute mental cruelty to him on innumerable occasions due to her quarrelsome nature, ill-mannerism, obstinacy, and schizophrenic attitude as a result of which his life had become miserable. Giving the instances of cruelty, it is alleged by the petitioner-appellant that in the first week of February, 1992 when he was watching a movie on the television, respondent rudely asked him to switch it off and when the petitioner-appellant failed to do so she got up and disconnected the same saying that petitioner had no business to use the television given to her by her parents. She repeated such type of behaviour later on also causing acute agony to the petitioner. Due to continuous insolent and erratic behaviour of the respondent, the petitioner brought her to his parental home at Noida on 11.4.1992. She was brought there so that she might be counselled to behave like the dignified wife of an army officer. The parents of the petitioner made all efforts to advise the respondent to mend her ways and behave in a dignified way. In place of following the valuable advice of his parents, the respondent acted very violently losing all sense of proportion. She hurled filthy abuses on petitioner and his parents. She left her matrimonial home of her own and went to her parental home. She even threatened the petitioner and his parents that she had been an Advocate and she along with her two uncles who are also Advocates, would make their lives miserable. The respondent stayed with her parents at Delhi for about two months. During this period ending with the middle of June, 1992, the respondent contacted the senior officers and colleagues of the petitioner-appellant at Meerut and levelled wild and baseless allegation passed unwarranted aspersion and agonising insinuations against the petitioner with the sole object of getting him humiliated and spoiling his military reputation. This also caused mental cruelty to the petitioner. In the middle of June, 1992, respondent came to her matrimonial home at Noida. She stayed there for about a month and during this stay, she made the life of his parents miserable. The petitioner also visited Noida during this period and requested her to improve her behaviour so that they could lead a happy and harmonious married life. It all went waste. In the second week of July, 1992, the respondent again picked up a quarrel with petitioner and his parents without any reasons. She hurled filthy abuses on them. She called her mother there who also joined her in the brawl and created the commotion in the house. The respondent left with her mother after passing unsavoury remarks against the petitioner and his parents. The respondent came to Meerut on 19.8.1992 of her own accord. During her stay at Meerut she again behaved in a rude and shocking manner. She started contacting the superior officers and colleagues of the petitioner and levelled all sort of wild and baseless allegations against his character and integrity. She made all efforts to malign his military reputation and made his life miserable. She even misbehaved with the petitioner in the presence of army jawans and maid servants. In the end of October, 1992, the parents of petitioner came to visit them at Meerut. The respondent quarrelled with the mother of the petitioner. She then walked out of the house and remained at neighbour’s house for the whole day. She talked loosely about the petitioner and his parents. She told to the wife of an officer that her in-laws had come to kill her. She made the stay of the parents at Meerut so miserable that they had to return to Noida within a couple of days. The petitioner respects his parents very much. The behaviour of the respondent towards them was shocking and caused acute mental agony to the petitioner. The respondent stayed with the petitioner at Meerut till 30.12.1992. Before she left that place, the petitioner led a traumatic tension-ridden and horrendous life on account of rude, irresponsible and reprehensible behaviour of the respondent. On 29.12.1992, the respondent asked the petitioner to accompany her to her parental home at Delhi. He could not oblige her and so she became very violent. She lost all her senses of proportion and started shouting loudly and created unhealthy scene in the Officers Mess Area in the presence of officers, jawans and maid servants. She called her mother and elder sister from Delhi and went with them without the consent of the petitioner. On 25.1.1993, the parents of respondent came to Noida at her instance. After addressing the petitioner and his parents awkwardly for two or three months, they started shouting loudly and levelling wild and baseless allegations against the petitioner. They commented adversely on the character of the petitioner. They told them that they came to know all that from the respondent. After creating the scene at the house of the petitioner’s parents for two hours, they left for Delhi. They threatened the petitioner of being eliminated if he did not behave as per the wishes of the respondent. It is further alleged by the petitioner that when respondent was with him her sexual behaviour was also erratic, inhuman and unbearable. She intentionally used to indulge in coitus interruption with the only object of causing mental agony to the petitioner. Many a times, she refused even to share bed with him. The petitioner along with his parents and relatives made all-out efforts to persuade the respondent to improve her behaviour but could not succeed. Due to all this behaviour of the respondent, the petitioner filed the petition for divorce.

3. While amending the petition, the petitioner added some complaints made by the respondents to the police, Women Cell and authorities of the army. According to the petitioner after coming to know of the filing of the divorce petition, the respondent went all out to file a number of totally false, baseless and malicious criminal complaints against the petitioner and his parents as a matter of retaliation and as a counter-blast to the divorce petition. She made a complaint to Women Cell, Nanakpura, New Delhi from where notice was received by the petitioner for appearance on 28.1.1994. She also lodged FIR No. 10 on 19.1.1994 with Police Station Keshav Puram, Delhi under Sections 406 and 498-A, I.P.C. The police raided the flat of the parents of the petitioner at Noida on 22.1.1994 with the respondent. She took away all her articles including Maruti Car. She even took the ornaments and other articles belonging to the petitioner and his parents. The petitioner and his parents had to approach the Court for anticipatory bail. She filed a petition on 10.12.1993 to the Army Headquarters for maintenance levelling worst kind of false allegations with a view to spoil the military reputation and character of the petitioner. She filed petition for interim maintenance before the Family Court, Meerut and she filed a false case with P.S. Civil Lines, Meerut. All this was done when notice of the divorce petition was published by the Family Court, Meerut, in Daily Newspaper because she avoided to accept the service of the notice. She filed petition for transfer of the petition from Family Court, Meerut. On the petition for transfer, the Hon’ble Supreme Court of India transferred this petition. While army authorities were processing her petition for the grant of maintenance, some clarifications were sought by them from the respondent about her income from legal practice. The respondent was asked to file an affidavit which she did not file and she chose to lodge a false FIR on 14.9.1994 against the petitioner and his father. The petitioner and his father had again approached the Court for anticipatory bail. The respondent later filed an affidavit to the army authorities denying any income from legal practice. She was allowed maintenance by the army authorities. She again filed an application on 13.3.1995 for cancellation of bail granted to the petitioner and his parents.

4. With these allegations of cruelty, the petitioner has prayed for a decree of divorce.

5. Notice of the petition was given to the respondent who filed the reply and denied the allegations. She took a number of preliminary objections such as the petition does not contain any ground and instances of cruelty; that it is premature and that the petitioner has concealed the material facts from the Court. According to the respondent, the cruelty had been committed by the petitioner himself when he made a demand of exorbitant dowry. She stated that when the demand of dowry could not be met, the petitioner started treating the respondent with cruelty. He wanted to destroy the present marriage in order to perform second marriage with some girl. He cannot take the advantage of his own criminal acts. According to the respondent consideration for marriage with respondent was monetary. She was ill-treated by the petitioner and by his parents. It is a mala fide petition and does not disclose any cause of action. Respondent admits the cohabitation with the petitioner and also birth of the child. She also admits that parties are living separately since 31.12.1992. She denied the allegations that petitioner had been discharging the obligation of a husband. According to the respondent even at the time of the delivery of the female child the petitioner did not arrange any medical aid nor called the respondent at her matrimonial home. He even refused to see the child. He intentionally neglected and evaded his social and matrimonial responsibilities. Respondent denied the allegations of the petitioner levelled against her behaviour. According to her, from the first day of her married life, the petitioner and his parents were making illegal demands of dowry i.e. cash, jewellery, electronic items and Maruti Car which was given. The marriage was celebrated under the shadow of extortion because on 16.11.1991 a day before the marriage, the father of the petitioner made a demand of Rs. 10,000/- from the father of the respondent. This amount was demanded for getting the car comprehensively insured and for purchase of gold ring for the husband of petitioner’s sister. This amount was taken by the father of the petitioner under threat of not bringing the marriage party if the demand was not met. From the very beginning, the petitioner and his parents started misbehaving with the respondent. She was taunted and she was told that they were expecting a sum of more than Rupees thirty lacs to be spent in the marriage because father of the respondent was working abroad. They felt cheated and conveyed this feeling to the respondent. They were unhappy over negligible dowry given in the marriage. On the very first day of her reaching her matrimonial home, the respondent was told by her mother-in-law that her son has been destined to marry twice as per his horoscope. This caused tremendous mental agony to the respondent who did not expect such a thing on that day. On 2.12.1991, the petitioner suddenly started behaving in a very strange manner. In his show of tempers, he threw household articles and clothes that were brought by the respondent and started shouting, cursing and beating the respondent for bringing insufficient dowry. The parents of petitioner were present at that time. They were instigating him saying that respondent deserved that type of treatment. She tolerated all this with the hope of improvement in future. The respondent was a practising lawyer before her marriage. She was taunted and called sarcastically “vakilni”. The respondent was beaten on one pretext or the other by the petitioner on the instigation of his parents with the only aim for putting pressure on her and her parents for getting more money as dowry. She denied the alleged allegations of cruelty.

6. According to the respondent on 17.4.1992, the father of the petitioner made a telephonic call to the mother of the respondent and demanded Rs. 50,000/- in cash. She was not in a position to pay this amount because she had already been made to part with a sum of Rs. 1,50,000/- in the end of March and first week of April, 1992. The amount was demanded as the price for not harassing the respondent. Respondent denied that she ever contacted any senior officer or colleagues of the petitioner at Meerut or levelled any allegations. The respondent alleged that in the month of June, 1992, when she was at her parental home, the petitioner rang up telling her that his father had undergone a surgery and money was required to meet the hospital expenses. The respondent went to Noida with a sum of Rs. 5,000/- which was given to her by her mother. To her surprise, the father of the petitioner was found to be in good health, having not undergone any surgery. She was told by the mother of the petitioner that her mother had not done good thing by refusing to pay Rs. 50,000/-. Respondent alleges that she is a law graduate lady. She cannot be expected to have used abusive language for her parents-in-law. She claimed that she became pregnant in April, 1992 while she was at Meerut. The parents of petitioner got annoyed on learning this news. They declared that they did not want any child from the respondent that they told the respondent that she would not be allowed to give birth to a child till her mother pays a sum of Rupees one lac. The respondent refused to convey this demand to her mother. The mother-in-law of the respondent got infuriated and gave a blow in the stomach of the respondent. As a result, she suffered miscarriage in third week of June, 1992. She was not provided with any medical help. She was not even permitted to contact her mother. She was virtually held as a captive. The petitioner also did not visit her during this period despite his being aware of it. Thereafter, the petitioner and his parents demanded a sum of Rupees two lacs, a music system and Tata Sierra Diesel Car. The amount of the Rupees two lacs was required to pay the loan raised while purchasing Flat No. 698, Sector 28, Noida by the parents of the petitioner. The car was required because the same was running on low cost diesel. The respondent told her mother about the latest demand and her sufference at the hands of her in-laws. The respondent was suggested by her mother-in-law to commit suicide. She was caught by her hair by her mother-in-law and was taken to the kitchen where a gas stove was already lit and her head was lowered on the gas stove and substantial portion of her hair were burnt. She could manage to escape with a lot of efforts. It is admitted that the respondent reached Meerut on 18.9.1992 of her own accord. She never misbehaved with the petitioner and not contacted the senior officers and colleagues of the petitioner and she also refused of having levelled any allegation against the character and integrity of the petitioner. She was interested to make this marriage success. She again became pregnant in September, 1992 and this time again the parents of the petitioner did not like the news. They want to terminate the pregnancy but they could not succeed. She fell ill on 28.12.1992. The petitioner did not take her to the hospital and went to his duty. He came back when some army officials rang him up. She was taken to Military Hospital where the doctor advised some medical tests and complete bed rest for respondent as she was very weak. The petitioner did not get the tests done and brought her back to the house. Coming to know about her illness, the petitioner became enraged and told her that she would have to get the pregnancy terminated if she wanted to live with him as his wife, on her refusal to get the pregnancy terminated, she was pushed out to the terrace and the respondent had to stay for the whole night on the terrace in the month of December, 1992. He did not allow her to enter the room despite all her pleadings. On the next morning she managed to inform her mother about her illness who came there and after unsuccessfully try to bring about rapproachement between the parties, she brought her with her. The respondent denied having picked up a row with the mother of the petitioner in October, 1992 at Meerut. She also denied having become violent. After denying each and every allegation of the petitioner, respondent prayed for the dismissal of the petition under Section 13 of the Hindu Marriage Act.

7. The petitioner filed a rejoinder to the written statement in which he reiterated his allegations made in the amended petition by denying those of the written-statement and from the pleadings of the parties the Trial Court framed the following issues :

(1) Whether respondent has been exercising such cruelty towards the petitioner so as to entitle the petitioner to the dissolution of the marriage ?

OPP

(2) Whether the petitioner has been ill-treating the respondent and as such, cannot take benefit of his own cruel and tortuous acts, if so, to what effect ?

OPR

(3) Whether the petition is bad as premature ?

OPR

(4) Whether the petition is mala fide ?

OPR

(5) Relief.

8. The parties have led voluminous oral and documentary evidence and on the conclusion of the trial, issue Nos. 1 and 2, which were tried together, were decided against the petitioner and in favour of the respondent-wife and it was held by the Trial Court that the petitioner-husband has not been able to prove the ground of cruelty as alleged by him and that he is not permitted to take the benefit of his own wrongs. Issue Nos. 3 and 4 were decided against the respondent as those were not pressed. In view of the findings given by the learned Trial Court on issue Nos. 1 and 2, the petition of the husband was dismissed for the reasons given in para Nos. 8 to 27 of the judgment and not satisfied with the judgment and decree, the petitioner-appellant filed this appeal.

9. I have heard Mr. Rajiv Bhalla, appearing on behalf of the appellant and Shri S.P. Gupta, appearing on behalf of the respondent and with their assistance have gone through the record of this case.

10. It is a case of allegations versus counter allegations.

11. On the one hand, Deepak Kumar appellant has alleged that respondent Smt. Manisha Tyagi is quarrelsome lady and her behaviour remained insolent. She was ill-mannered; she never agreed to anything; she caused acute mental cruelty to the petitioner-appellant on a number of occasions; she is ill-mannered so much so she is a case of schizophrenic attitude and on account of the act and conduct of the respondent his life has become miserable. She was proudy and started claiming the dowry articles like her personal property. Every advice given to her fell upon her deaf ears and so much so the respondent even threatened the petitioner and his family members. She even went to the extent of complaining to the superiors of the petitioner without any rhyme or reason and by making unfounded allegations to the extreme. She had caused mental cruelty to such an extent that it had become difficult for him to live with her. She could not prove as a good wife even on the bed and she went to extreme when she started filing false complaints to the Women Cell. She lodged FIR 10 of 1994 under Sections 406/498-A, I.P.C. in the year 1994 after about 2 years of her marriage which clearly suggests that this FIR is counter blast to the petitioner under Section 13 of the Hindu Marriage Act. Not only this, she filed one more FIR No. 173 of 1994 under Sections 417/419/429, I.P.C. in which the petitioner-appellant and his family members were discharged and even the revision of the State has been dismissed against the order of discharge.

12. In short, the petitioner wanted to convey through his petition that this is an extreme act of cruelty on the part of the respondent which has not been rightly appreciated by the Trial Court which refused to grant a decree for divorce.

13. On the contrary, respondent had alleged that petitioner and his family members made her life hell. They are greedy persons. Sufficient dowry was given including the Maruti Car. Still the petitioner and his parents had been raising one demand or the other. The petitioner never liked the respondent from the very beginning. He had inclination with some other girl. The performance of the petitioner even on the bed was like a beast as he even went to the extent of committing sodomy. The respondent was not taken care of. She was beaten off and on. When she was pregnant at the first instance, no care was taken, therefore, she was brutally dealt with by the mother of the petitioner at the instance of other son. She kicked in the abdomen, as a result of which miscarriage took place. Even at the time of second conception no proper care was given to her. She delivered a child not to the liking of the petitioner and his family members and the petitioner cannot take the advantage of his own wrongs when he himself has committed the acts of cruelty and had deserted her without any sufficient cause.

14. Parties have also drawn my attention to the voluminous evidence. First to all, I will say with my impression on going through the evidence that both the parties are at fault. I have tried to analyse the evidence from an angle of vision as to where the things went wrong. It is a matter of November, 1991. Even before the marriage of the parties, there was an exchange of correspondence between the parties as is evident from letter Ex. R1, dated 8.9.1991 which has been written by the husband to the wife. In this letter it is written as under :

“Whenever I could reach of you I found you very simple in mind, clean hearted and excited about this whole idea, I had expected you to be more self-composed and calculating in a worldly way as an Advocate. However, you are totally on the contrary. Perhaps you are that way in the High Court when arguing the cases and were totally natural when we met.”

15. There is one more letter dated 30.9.1991 written by the father of the appellant to his son in which again something good has been said about the respondent. Even after the marriage the appellant had been sending greeting cards on the birthday occasion of the respondent. Ex. R13 is the letter on reading of which would show that respondent was completely engrossed in the personality of the petitioner. So is the position in the letter dated 16.6.1992 Ex. R14. Not only this, the record of the Trial Court also shows that from time to time occasional greetings were exchanged between the husband and wife and Ex. R29, Ex. R30, Ex. R31, Ex. R32 and Ex. R34 are some examples.

16. This is one aspect of the case and the second aspect of the case is quite horrible when respondent Smt. Manisha started levelling allegations against her husband by writing to the Chief of the Army Staff through Ex. PW2/1 and it will be relevant if I refer to the few paras of this long letter written by her.

17. In para No. 11 she nagged the petitioner and his family members and she states that right from the very beginning when she entered into the matrimonial home she was told by the mother of the petitioner that in the horoscope of the petitioner it predicted that he would enter a second marriage. She also alleges that right from the very beginning she was treated with cruelty. She was put to such a mental situation that she was forced to conceive an idea of committing suicide. Unreasonable demand of dowry made by the petitioner and his parents has made her life hell. So much so she stated that on 2.12.1991 just after few days of the marriage the petitioner threw the household articles and clothes all around the room and he mimicked the sound of animals including the sound of barking dog. He used to be heavily drunk. Other allegations were also levelled such as retention of jewellery etc. Those allegations are perhaps within the purview of a wife who really has met with cruelty but some allegations are to the extent that husband while sharing the bed, was in the habit of committing rape also. It is alleged that on one day her father-in-law tied her hands with her Duppata and her husband put his Khukri (weapon) and threatened her to kill. In para No. 31 of this letter it has been mentioned as follows by the wife :

“My health started deteriorating. My mind was disturbed to the extreme. Now another form of torture, unnatural sex. He would thrust on me at odd hours. I was no longer a human being but a slave to his wild passions.”

18. I also consider my duties to narrate the letter Exs. R43 appearing on page No. 287 of the file in which the lady has made a complaint to her mother on 2.6.1992 that she is being harassed like anything. She was highly mentally upset. The family of the petitioner’s husband is not satisfied with the marriage. They are making a demand of Tata Sierra Diesel Car and every type of taunts are given to her.

19. The appellant-husband on the contrary is relying upon a letter Ex. P.W. 2/A appearing at page 447, Ex. P2 FIR No. 173 of 1994 of page 399, FIR Ex. P1 under Sections 406/498-A, I.P.C. page 377, Ex. R12 letter dated 18.6.1992 page No. 223, letter Ex. R14 page No. 238, Ex. R15 page 239, including Ext. R43 page 287, by stating that these FIRs which are counter blast to the main petition itself indicate the mental mind of the respondent that she was out and out to spoil the reputation of the appellant not in the society but also in the service. She had fabricated the record in order to show that appellant had some affair with some girl. She wrote the words “Kiss Kiss Kiss” in a greeting card. The prescription of miscarriage indicates that it was not an act of cruelty. Rather it was a spontaneous miscarriage on account of other factors but a twist has been given by the respondent to convince the Court as she was subjected to cruelty by the mother of the appellant. She had even gone to the extent of lodging the false FIR after long delay in order to humiliate the appellant and his family members. So much so they had to rush to the Law Courts for anticipatory bail. On one occasion his father fainted when the police came to his house in order to arrest him in the FIR No. 173/1994. The accused have been discharged. Revision has also been dismissed. The unfounded reckless allegations to the extreme that the appellant is a sodomite itself is a ground for allowing the petition.

20. Counsel for the appellant wanted to show me that respondent had crossed all limits of decency not only in the capacity of a wife but also in the capacity of a woman. She did not care about the consequences of her acts and her sole object was to bring incalculable miseries for his parents and his family members.

21. On the contrary, the learned Counsel for the respondent submitted that in order to keep the marriage alive the respondent had been showing respect to the appellant and his family members. She had to keep her appearances so that the peace of the matrimonial home may not be disturbed but factual position is that the appellant and his family members are greedy persons. They were looking for a family and a girl which should give them huge amount of dowry in spite of the fact that marriage was performed in a decent manner and sufficient dowry was given including a vehicle still it did not suit to the hidden desire of the appellant perhaps for the reason that he is serving in the army. While marrying the respondent the appellant had divided his love and affection for somebody else also. The truth is contained in the letter which was written by the respondent to her mother. The FIR has been lodged by the respondent in order to exercise her right when she was deprived of her dowry articles and when her dowry articles were misappropriated by the appellant. Also it was submitted that the letter written by the respondent to the Chief of Army Staff is a narration of the looked facts and if under the emotional stress the respondent had exceeded her language to narrate her experience of a married life it should not be considered as an act of cruelty and the appellant should not be allowed to take the advantage of his own wrongs.

22. I have considered the contentions of the parties with reference to the documents and first of all I must say her that respondent had crossed “Lakshman Rekha”. I do not deny that a woman has no rights after the lawful marriage. She expects love and affection, financial and physical security, equal respect and lots more but at the same time, the wife must remain within the limits. She should not perform her acts in such a manner that it may bring incalculable miseries for the husband and his family members. She should not go to that extent that it may be difficult for her to return from that point.

23. I am not convinced with the argument of the learned Counsel for the appellant that the letter written by the respondent to her complaining the conduct of the appellant, is a forgery. In such situation, the woman tries to write her family members in confidence. It is not a created evidence but an expression of spontaneous facts. Respondent is an educated lady. The marriage hardly survived for about 1½ years because it is the case of the appellant that respondent resided with him intermittently up to 30.12.1992. The female child was born on 2.6.1993. The parties became separate from each other with effect from 31.12.1992. Meaning thereby that respondent was on the family way when she left the matrimonial home. Why a lady with love background would leave the house of her husband without any rhyme or reason. To this extent, I am inclined to accept the reasons given by the Trial Court but it was none of the business of the respondent to make allegations against the appellant that he was sodomite and that he had been committing rape on her. Such a baseless acquisition could spoil the career of the appellant who is a Major in the Army and Engineer. It is a common case of the parties that respondent has given birth to a female child. She was born on 2.6.1993. Presently, she is about 7½ years. She is in the custody of the respondent. Appellant has not so far given any love and affection to her. What is the fault of the child if differences have crept in amongst her parents. I have stated above at the first outset that it is a case where both the parties are at fault. On one hand, appellant had created such a situation which had compelled the respondent to leave the matrimonial home but after departure respondent had levelled such type of allegations which could not be expected from her and this certainly amounts an act of cruelty but chances are there that parties may unite on one of the birthday of a female child and under these circumstances I have to examine whether it will be justified for the Law Courts to pass a decree of divorce in favour of the appellant against the respondent.

24. This question I will answer again in the subsequent portion of the judgment but first of all, I would like to discuss the oral evidence led by the parties and from the oral evidence I would try to show that it is a fit case where the provisions of Section 13 of the Hindu Marriage Act should not be applied. Rather some other relief can be discussed and given to the appellant.

25. Like documentary evidence, the parties did not lag behind in leading the lengthy oral evidence which I have gone through with the assistance rendered by the learned Counsel for the parties.

26. In order to prove the charge of cruelty as many 8 witnesses were examined from the side of the husband, namely Major K. Ramesh, P.W. 2, Shri I.D. Tyagi P.W. 3, Smt Anita, P.W. 4, Lt. Col. S.D. Yadav, P.W. 5, Shri Om Parkash relative of the petitioner. P.W. 6, Shri O.P. Marwah P.W. 7, Smt. Savitri Devi mother of the petitioner P.W. 8 and the petitioner appeared as his own witness as P.W. 1.

27. Smt. Manisha Tyagi, appeared as R.W. 1 and she examined Jai Lal Reader as R.W. 2, Shri Sushil Kumar Ahmad R.W. 3, her sister Madhu Tyagi R.W. 4. Mr. Bir Singh Rana, Advocate, R.W. 5, Meenu Sharma younger sister of the respondent R.W. 6 and Geeta Tyagi her mother as R.W. 7.

28. As many as one dozen acts of cruelty were alleged by the petitioner when he came in the witness box by stating as follows :

(i) Respondent said that I have no business to use the articles given by her parents at the time of the marriage.

(ii) She made false allegations before the Commanding Officer wife based at Delhi that I was not looking after her well.

(iii) Respondent did not prepare meals for his parents when he returned to the home and he came to know from his parents.

(iv) Respondent left the house against his wishes and she was not beaten.

(v) Respondent was avoiding sexual cohabitation and he was totally dissatisfied with the response given by the respondent in enjoyment of sex.

(vi) Respondent filed a complaint against him to the Chief of Army Staff.

(vii) On account of the bahaviour of the respondent it had became impossible for him to cohabit with the respondent.

(viii) The parents of the petitioner were treated with cruelty.

(ix) The respondent made allegations that petitioner is living beyond his means.

(x) Respondent alleged that petitioner created sounds and behaved like a dog.

(xi) Respondent alleged that petitioner had an unnatural sex with her.

(xii) Respondent filed complaints in the Women Cell without any basis.

(xiii) Respondent lodged FIR No. 10 of 1994 as a result of which the police raided the house of the father of the petitioner who became even unconscious apprehending his arrest.

(xiv) The petitioner had to seek anticipatory bail.

(xv) Respondent filed FIR under Sections 406/408, I.P.C. falsely and the number of the FIR is 173 of 1994.

(xvi) Respondent manipulated certain documents regarding the proof of income.

(xvii) That respondent lodged a false report in the Police Station Civil Lines, Meerut and as a result of this the petitioner was kept under surveillance by the army authorities.

With all these instances of cruelty, the petitioner-appellant has made a vehement appeal through his Counsel for the decree of divorce.

29. On the contrary, respondent has her own defence that earlier the petitioner was deeply interested in the love of one Sucheta and unreasonable demands of dowry were made by the petitioner and his parents. So much so they made a demand of Rs. 10,000/- for getting the vehicle comprehensively insured; they made a demand of the money for the operation of the father of the petitioner-appellant inspite of the nice dowry given by the respondent’s parents including a car. The petitioner was not satisfied. It is also alleged by the respondent in the cross-examination that petitioner wanted to commit sodomy with her and it was resisted by her as a result of that the petitioner told her that in case she fulfills his demand of unnatural sex then she will be comfortable. The petitioner never visited the newly born child even after his return from some foreign assignment; that petitioner had performed marriage for money consideration; that petitioner wanted to procure some parts from the foreign through the assistance of the brother of the respondent; that petitioner did not like the marriage with the respondent from the first day, rather it was the choice of his parents. The other oral witnesses are corroborating and defending the cases of each other because both the parties have produced in evidence their close relations and friends in support of their allegations.

30. I have made an independent assessment of the oral evidence and am of the opinion that both the parties are at fault. The respondent exceeded the limits of decency when she went to the extent of lodging a false FIR and when she tried to humiliate the appellant in the eye of his superiors by writing a very damaging letter Ex. PW2/1 without knowing its consequences.

31. Section 13-A of the Hindu Marriage Act lays down as follows :

“In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except insofar as the petition is founded on the grounds mentioned in case (ii), (vi) and (vii) of Sub-section (1) of Section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.”

32. In this case, the parties were married in the year 1991. Out of this wedlock respondent gave birth to a female child. She is hardly aged 7½ years. Everything has gone under a mistrust which by the passage of time can be sorted out as the parties are educated. Time is a great healer.

33. In these circumstances, I hold that while respondent has committed the act of cruelty qua the appellant-petitioner but those acts have not gone to this proposition so as to give a finding in favour of the appellant that he is entitled to a decree of divorce on those acts of cruelty. Rather this Court is of the opinion that it is just to pass a decree for judicial separation under Section 10 of the Hindu Marriage Act. Resorting to this step under Section 10, the Court will definitely allow the parties to ponder upon again so that they may be able to unite atleast for the welfare of the child who is in the custody of the respondent. Still the parties do not resume the matrimonial obligations within the statutory period of one year, it will be open to either of them to seek a decree of divorce.

34. Resultantly, I modify the finding of the Trial Court on issue Nos. 1 and 2 and hold that though the respondent is guilty of cruelty but the appellant is not entitled to a decree of divorce.

35. In view of my findings on issue Nos. 1 and 2 the appeal is partly allowed; impugned judgment and decree is hereby set aside. Instead I pass a decree of judicial separation under Section 10 of the Hindu Marriage Act in favour of the appellant-husband against the respondent-wife. The parties are left to bear their own costs.

Appeal partly allowed.

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