Court:Punjab And Haryana High Court
Bench: JUSTICE Sukhdev Singh Kang
Girdhari Lal Vs. Santosh Kumari On 22 October 1981
Hindu Marriage Act, 1955 — (as amended in 1976) — Desertion (Sec. 13(1)(ib)) — When wife maltreated by her husband, she was justified in remaining away from him i.e. there was a reasonable cause of deserting the petitioner-husband.
1.This is an appeal against the judgment and decree dated 30th of April, 1980 of the learned Additional District Judge, Jullundur, who has dismissed the petition of the appellant for dissolution of marriage by a decree of divorce under Section 13 of the Hindu Marriage Act.
2. Brief facts of the case are that Girdhari Lal appellant was married to Smt. Santosh Kumari, respondent on 28th of April, 1974 at Jullundur. The parties are Hindus and the marriage was solemnized according to Hindu rites. The parties lived as husband and wife and cohabited at Sirhind, district Patiala from 29th of April, 1974 to 18th of May, 1977. Unfortunately, no issue was begotten out of this match. The case of the appellant is that a few months after the marriage, the respondent treated the petitioner with cruelty and deserted him. It was presumably at the behest and incitement of respondent’s parents, sister and other relations. The appellant was not respected by the respondent and her relations. He was ridiculed and looked down upon by her relations. The parents of the respondent came to the appellant’s place and created a scene. The matter went to the police. The image of the appellant was lowered in the eyes of the persons of the locality. Eventually, the parents of the respondent came to the house of the appellant on 18th of May, 1977 along with some other persons. They threatened the appellant and took away all the ornaments and other articles lying in his house. They also took along the respondent. After about a fortnight of this incident with a view to harass and humiliate the appellant and his relations, the respondents in collusion and connivance of her parents and relations, lodged a wholly false report with the police, saying that the appellant, his parents and sister came to the house of the respondent at Jullundur, sprinkled oil on her and were about to set her on fire when her brother in law and a tenant in the house intervened and saved her. A case under Sections 307, 506, 148 and 149, Indian Penal Code was registered on 5th of June, 1977 at Jullundur. The learned Additional Sessions Judge came to the conclusion that the charge against the appellant and his co-accused was false and frivolous. He acquitted them. In the meantime, the respondent-wife filed an application under Section 125 of the Code of Criminal Procedure on 12th of January, 1978 for grant of maintenance.
3. The appellant alleged that the respondent-wife was cruel and he had not in any way condoned this cruelty. The respondent-wife filed a written statement. She declined the allegations made by the appellant and made counter allegations that soon after she went to the house of her husband, his mother and sister started passing taunting remarks against her and her family members for bringing insufficient dowry. She was ill-treated and turned out from the house on 3rd of Sept., 1974 by the husband and members of his family. They had removed her jewellary. She narrated this incident to her parents who convened a Panchayat and the appellant on 15-2-1976 agreed to rehabilitate her. He showed regret for his previous conduct and gave an assurance that he would keep her as wife in a nice and proper way. He executed a writing to this effect. The respondent went with the appellant to his house on 15th of February, 1976 from Jullundur and lived with him there up to 19th of May, 1977. During this period, the appellant and his family member ill-treated and maltreated her. They used to taunt her. The parents of the respondent came to know about this fact and they came to the house of the appellant and inquired as to why the respondent was being illtreated. She was given beatings in the very presence of her parents. Consequently, the matter was reported to the police at Sirhind on 28th of December, 1976, when the appellant and his parents were called to the Police Station. The appellant assured the parents of the respondent and the respectables present there that he would keep her in a nice way and would not maltreat her. It was alleged by the respondent that the appellant and his family members were demanding Rs. 10,000 from the parents of the respondent and when they could not pay the same, she was beaten in the presence of Sarwan Singh and Ram Saroop etc. The respondent’s mother reached Sirhind and in her presence, she was given beatings by the appellant at the exertation of his mother and other family members. Sarwan Singh, Ram Saroop and other neighbourers and residents of the locality collected and intimation was sent to respondent’s father, who reached Sirhind and found the respondent being confined in a room without any food and water. The neighbourers collected and they tried to patch up the matter. The matter was again reported to the police. The appellant did not rehabilitate the respondent.
4. The respondent admitted that she had got a case registered with the police and the allegations were made therein. The pleadings of the parties led to the framing of the following issues :—
1. Whether after the solemnization of the marriage, the respondent has treated the petitioner with cruelty ?
2. Whether the respondent has deserted the petitioner for a continuous period of two years proceeding the filing of the divorce petition by him ?
5. The appellant made his statement in support of his pleas. He did not examine any other evidence. He reiterated the averments made in the divorce petition and recounted the alleged maltreatment received by him at the hands of his wife, parents and relations. He denied the other allegations. However, he highlighted the fact regarding registration of the false case with the police at the behest of Smt. Santosh Kumari, respondent, against him and his other family members. He stated that this imputation was false and he and his relations had undergone the agony of incarceration on false allegations. This amounted to cruelty.
6. Smt. Santosh Kumari examined two witnesses namely Raj Rani (RW. 2) and Sarwan Singh (RW. 3). She appeared as her own witness. Raj Rani is related to both the parties but she did not say anything further. Sarwan Singh who is the neighbourer of the appellant and is an independent witness, has stated that Girdhari Lal, appellant, had been giving beatings to the respondent. He did so in the presence of her mother, the neighbourers collected and the matter could not be compromised because Girdhari Lal did not care to keep his wife any longer. After that, they went to the Police Station where she lodged a report. From the statements of both these witnesses, it is clearly, established that the appellant had been maltreating his wife and she was justified in remaining away from him. She is not guilty of desertion. I confirm the finding of the learned trial Court on Issue No. 2.
7. However, the appellant has been able to prove that the respondent-wife has treated him with cruelty. The conduct of Smt. Santosh Kumari in lodging the false report against her husband and his relations to the effect that they had gone to her house at Jullundur, that they sprinkled kerosene oil on her and were about to set her on fire when her brother-in-law and a tenant intervened and saved her, amounts to cruelty towards the appellant. The appellant and his relations were arrested. They remained in custody for a number of days and they had to undergo the ordeal of a protracted trial. Then they were acquitted. The respondent, in support of these allegations, made her statement in the Court. This part of her statement does not inspire confidence. It is highly improbable that the appellant and his relations would dare to try to burn the respondent in her own house. If so many persons had made up their mind to burn her and have been able to sprinkle oil on her clothes, it is difficult to believe that they would not have been able to set her on fire. There is no corroboration of this highly improbable version. It is difficult to believe that after all this nefarious act, the appellant and all his companions would be able to make good their escape from her house at Jullundur which is in an inhibited locality. No other witness has been examined to support this story. As noticed earlier, the statement of the respondent on this aspect is not worthy of credence. By repeating these false allegations she has aggravated the cruelty.
8. Mr. Awasthy, learned counsel for the respondent argued that this incident at Jullundur should not be viewed in isolation. The past history of the case should be kept in mind. Even if this contention is accepted, the strained relations of the parties may have provided only a motive to the respondent to seek revenge. One wonders why the appellant and his relations will try to burn the respondent at Jullundur ? If they were so mind, they had ample opportunity to do so at Sirhind itself. It cannot be accepted that the circumstances compelled the respondent to make a false report. The pressure of circumstances cannot be a justification for falsely involving the other spouse and his relations in a criminal case. The decision in Mrs. Kiran Hare v. Shri Ashok Kumar Hare, 1980 HLR 758, is not applicable to the facts of the present case. Here the allegations have been made recklessly and malaciously. In the above case, the Judge had believed the story of the wife. No proposition of law has been laid down in this decision. Similarly, the decision in Gurnam Singh v. Labh Kaur, 1981 HLR 127, also does not help the learned counsel. This decision was given on the facts of that case. It does not lay down any proposition of law as such. Mr. Awasthy then contended that even the conduct of the respondent in lodging the report and prosecuting the appellant and his family members does not amount to cruelty. This argument has simply to be stated to be rejected. When a wife makes very serious but false allegations leading to the arrest of her husband and other family members and their continued custody and trial in a criminal Court, it surely amounts to cruelty.
9. Mr. Awasthy then argued that the appellant had condoned the cruelty, if any. The learned counsel took me through the statement of the appellant wherein he had stated that sometime after his implication in the criminal case, he had approached certain relations to prevail upon the respondent to come to him. According to the learned counsel, this amounts to condonation. However, the mere effort on the part of the husband to reconcile with his wife does not amount to condonation. Condonation has come to acquire special meanings over the long years through its interpretation by the English Courts and the Courts in this country. It has been distinctly explained in a recent decision of the Supreme Court in Dr. N.G. Dastane v. Mrs. S. Dastane, I (1981) DMC 293 (SC), wherein it has been observed :—
‘‘Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, there must be, therefore, two things; forgiveness and restoration. The evidence of condonation in this case is, as strong and satisfactory as the evidence of cruelty.”
10. In this case, the appellant had only shown his willingness to bring his wife. It can at best be said that he had forgiven her but that is not sufficient. To constitute condonation, the forgiveness has to be followed by restoration. If the wife had come to the appellant and they had cohabited, then it could be said that the appellant had condoned the cruelty but no such thing has happened. The respondent has been proved to be guilty of cruelty. There is no condonation. The learned trial Court has not applied correctly principles to law to the evidence on this issue and has fallen in error in deciding this issue in favour of the respondents. I reverse that finding and held that the respondent has been guilty of cruelty and the appellant has not condoned the same.
11. In view of the above discussion, I allow this appeal, set aside the judgment and decree of the learned trial Court and accept the petition for divorce and grant a decree of divorce in favour of the appellant dissolving his marriage with the respondent. However, there shall be no order as to costs.
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