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KAMLESH KUMARI Vs. VINOD KUMAR

Judgement

Court:HIMACHAL PRADESH HIGH COURT

Bench: JUSTICE D. Sreedevi

KAMLESH KUMARI Vs. VINOD KUMAR On 7 May 2011

Law Point: False case registered against Husband and his family members only to settle personal scores. Attitude of appellant wife in leaving matrimonial home at her sweet will and pleasure and showing disrespectful attitude to husband and family members, without any justifiable cause is cruelty towards Husband. Parties living apart for 6-7 years, which is admitted and proved on record — Divorce granted.

 

 

JUDGEMENT

 

1. This appeal has been preferred by the appellant/wife against the judgment and decree of learned District Judge (F), Shimla dissolving the marriage between the parties to this appeal by a decree of divorce on the ground of cruelty as pleaded by the respondent/husband.

2. Petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as Act) was instituted by the respondent-husband. It was pleaded that the marriage between the parties was solemnized on 7.3.2000 at Village Bagoti. The case pleaded by the respondent/husband is that immediately after the marriage, the appellant herein started treating the respondent with cruelty. Number of grounds were urged before the learned Trial Court to substantiate this plea. Primarily amongst them were:

(a) That the appellant used to leave the matrimonial home without informing the petitioner or his parents which act, she had been committing on number of occasions. To paraphrase, the incident referred to above (i) the appellant refused to cook food for the family members stating that she did not know how to cook as the mother had been doing this for her. (ii) On 8.4.2000 she left the home at night and returned only in the morning and refused to disclose her whereabouts, (iii) On 7.4.2000, the respondent had joined Army but on account of cruel behaviour of the appellant herein he was being subjected to lot of pressure and left service in October, 2000. (iv) The appellant had herself aborted twice by taking medicines/drugs provided by her mother. On 27.2.2001 when the respondent went to the house of the parents of the appellant, requested her to join company with him but she refused, (v) On 1.3.2001 when the respondent enquired from the appellant as to whether she had brought any prescription slip from the doctor, she opened her purse and threw the slip into the harth. (vi) On 3.3.2001, the appellant refused to water the cattle though her mother-in-law requested her to do so as she was not well. She threw a tantrum, throwing out the bag containing clothing, etc. and ran away from the house, (vii) On 17.3.2001, 25.3.2001, 7.4.2001 the parents of the respondent along with his father and Daya Nand, as also Vice-President Gram Panchayat Barog Dharam Parkash and Sunder Lal Verma went to the house of the appellant to bring her back but she refused to comply with the request, (viii) On 8.4.2001 she returned with reluctance but again on 7.6.2001 she fled away. It is also pleaded that she took away keys of the house and ornaments, etc. On 24.6.2001 and on other dates as detailed, same action and behaviour was resorted to by her.

(b) The second ground alleged is that a false case under Section 498(A) of the Indian Penal Code was filed against the respondent and his family members as a result they had to obtain bail as well as face trial for a period of about 3 years and ultimately they were acquitted by the Judicial Magistrate, Theog on 29th September, 2004 after a full-fledged trial, as such respondent and his entire family members were subjected to harassment which amounts to cruelty. This in a nutshell is the case set out by the respondent.

3. The learned Trial Court after considering the evidence of the parties, concluded that it was proved on record that the appellant had left for her parental home on number of occasions without any justifiable cause or informing the petitioner, as also instituted a criminal case without any justifiable cause. The learned Court held that the acts of the appellant in isolation as well as jointly constitute cruelty justifying grant of decree for divorce as prayed for. While concluding, the Court held that the parties had been residing separately for the last more than two years before the institution of the divorce petition (petition was instituted on 11.1.2005). It rejected the explanation given by the appellant for leaving the company of the respondent without sufficient cause.

4. On the other two issues raised by the appellant herein that the respondent was estopped from filing the petition and that he suppressed material facts. The Court held that these were never urged nor argued by the learned Counsel for the appellant when the petition was taken up for arguments.

5. Learned Senior Counsel appearing for the appellant urges that the findings of the learned Trial Court are erroneous. No cruelty has been established on the record and, therefore, the acts complained of are not covered by Section 13 of the Act. It is urged that the Trial Court has assumed the factum of animus deserendi which is not established on record. It has merely relied upon the fact that the parties have been living separately for the last more than two years before the institution of the petition, which was insufficient in law for substantiating the conclusion. One more argument was advanced that issue Nos. 3 and 4 relating to estoppel and suppression have been decided without considering the plea of the petitioner herein.

6. Adverting to the last submission, the findings of learned Trial Court cannot be disputed as the judgment itself establishes issue and plea abandonment as both these issues have not been urged and argued before the Court below. Adverting to the fact that a false criminal case having been instituted which constitutes cruelty, learned Counsel for the respondent refers to the decision of learned Judicial Magistrate, 1st Class, Theog (Ex. P1) in case 159-1 of 2001, instituted on 28.8.2001 and decided on 29.9.2004 titled State of H.P. v. Vinod Kumar, Neela Dass and Kaushlya Devi being the husband, father-in-law and mother-in-law respectively of the appellant. The judgment narrates the facts on the basis of which prosecution was lodged. The criminal case was registered on the report of the appellant (Ex. PA) stating that she was married to the respondent one and half years ago and her husband/respondent treated her properly for some time but thereafter, all three accused started maltreating her, used to abuse her and physically assualt her. The husband even tried to kill her by inserting/jamming his thumb in her throat, but she succeeded in saving her life. The demand of dowry were raised in the month of March, 2001 when she was forced to bring a golden ring from her parental home which was handed over to the accused. But despite this fact, the ill-treatment/physical torture of the appellant continued unstated and accused also raised a demand for a car or money equivalent to its value and she was told in no uncertain terms that in case she did not do so she would be kept as a servant in the house as the respondent would be marrying again. So much so, she was threatened to be burnt alive with acid and was also asked to sign some blank papers. It is on these basis that the report was registered.

7. The findings of the case are revealing. The Court held:

“The complainant is very specific in Ex. PA that the accused used to raise demand for dowry and in process they asked for golden ear-rings and a car or equivalent amount. But the alleged allegations about the demand so shown do not appear to be cogent and reliable on its perusal with the evidence on record. The aforesaid facts and circumstances on record established it beyond reasonable doubt that an endeavour has been made by the complainant party to have false implication of the accused persons. Hence, it can be safely held that the prosecution has failed to establish the guilt of accused beyond reasonable doubt. Hence point No. l is accordingly answered against the prosecution.”

8. Learned Senior Counsel appearing for the appellant submits that the complaint was lodged by the appellant for her protection and vindication of her rights and the police investigated the case. For the failure of prosecution or its lackadaisical investigation the appellant cannot be held responsible. It is the right of every citizen to get justice and to put forth his/her case before the competent Court and dismissal of the case cannot be construed as an act of cruelty under Section 13 of the Act justifying the dissolution of marriage. He placed reliance upon the judgment of High Court of Calcutta in Smt. Piyasa Ghosh v. Somnath Ghosh, I (2011) DMC 789 (DB)=AIR 2009 Cal. 90, holding:

“11………………..It has been, thus, established from the evidence that money was taken from the mother of the wife for construction of the additional room in the house of the father of the husband. If a husband after taking Rs. 50,000 from the widowed mother of the wife for making construction of the room in his father’s house for leading matrimonial life, send summons for the suit for divorce to his wife on the ground of desertion and cruelty, there is nothing wrong on the part of the wife to lodge complaint before the police. At least, it cannot be said that the allegations made before the police has been found to be baseless justifying grant of divorce on the ground of cruelty on the basis of the post suit events. We are, therefore unable to approve the decree for divorce grained by the learned Trial Judge only on the ground of initiation of criminal proceedings as, in our view, there was just reason for filing complaint and such complaint has not been established to be false. It further appears that in spite of making allegations against Chameli Ghose, the wife of the cousin of the father of the husband, neither the said Chameli Ghose nor her husband has come forward to deny the allegations. Even none from the side of the father’s family has deposed in support of the husband and the letters written by the wife to her in-laws and produced by the husband indicate that the wife had a good relation with them.”

(Page 93)

9. Learned Senior Counsel then submits that a similar view has been taken by the High Court of Bombay in Deeplakshmi Sachin v. Sachin Rameshrao Zingade, AIR 2010 Bom. 16, that the mere initiation of case under the Domestic Violence Act does not constitute cruelty within the meaning of the Act. In particular, learned Counsel relied upon the principle laid down by the Court:

“16. So far as filing of the case under the Domestic Violence Act is concerned, the learned Counsel for the appellant submitted that because of the ill-treatment and acts of incidents out of anger at the hands of in-laws, she was subjected to strangulation which forced her to file the complaint. Except this solitary criminal complaint, she has not filed any other complaint. It is required to be noted that the said case is still pending. The competent Court has not found that it is a false complaint. In our view, filing of the complaint itself can never be considered as an act of cruelty unless it is found by positive evidence that it was a false complaint. The said complaint has not yet been decided and is still pending. When the said case is pending before the competent Court, the learned Trial Judge should not have given so much weightage about the factum of filing of such complaint and trying to find out as to whether the allegations in the said complaint are correct or not. If ultimately the said complaint is dismissed, naturally one can presume that the wife if guilty of filing false cases and making reckless allegations against the husband. When the Act permits the wife to approach the Court under the provisions of Domestic Violence Act and if that remedy is availed of, such act should not be treated as an act of cruelty, otherwise in no case a lady can file any complaint, if the filing of complaint is to be treated as an act of cruelty. Simply because the wife in her cross-examination admitted that she did not want to live an animal life and that she is not interested in marital life, one cannot jump to a conclusion that the wife is at wrong. A wife is also entitled to have her own freedom after marriage. In the instant case, even during the time of pregnancy, she was serving and was required to do household work after coming from the office.”

(page 22)

10. Before adverting to the submissions made by learned Senior Counsel, the decision of the Supreme Court in Samar Ghosh v. Jaya Ghosh, I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=(2007) 4 SCC 511, may be noticed. Considering the ambit and scope of mental cruelty as contemplated by Section 13(1)(i-a) of the Act the Court held that it would be difficult to define exhaustively what constitutes cruelty. The Court held:

“101. No uniform standard can ever be laid down for guidance, yet it is deemed appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive—

(i) On consideration of the complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make it possible for the parties to live with each other, could come within the broad parameters of mental cruelty;

(ii) On a comprehensive appraisal of the entire matrimonial life of the parties, if it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party;

(iii) Mere coldness or lack of affection cannot amount to cruelty; but frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable;

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time, may lead to mental cruelty;

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse;

(vi) Sustained justifiable conduct and behaviour of one spouse actually affecting the physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty;

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness, causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty;

(viii) The conduct must be much more than jealousy, selfishness, possessiveness which cause unhappiness and dissatisfaction and emotional upset, but may not be a ground for grant of divorce on the ground of mental cruelty;

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day- to-day life would not be adequate for grant of divorce on the ground of mental cruelty;

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty;

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and, similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty;

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty;

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty;

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

(pages 546-547)

11. Learned Counsel appearing for the respondent urges that the criminal prosecution was deliberate with a motive to harass the respondent and his family members. He refers to the decision of the Supreme Court in Naveen Kohli v. Neelu Kohli, I (2006) DMC 489 (SC)=II (2006) SLT 43=II (2006) CLT 100 (SC)=128 (2006) DLT 360 (SC)=AIR 2006 SC 1675. The Court held:

“80. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in the proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news items is concerned, the status of the husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In next para 69 of the judgment that in one of the news items what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a director along with Mrs. Neelu Kohli who held 94.5% shares of Rs. 100 each in the Company. The news item further indicated that Naveen Kohli was acting against the spirit of the article of association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He had stealthily removed produce of the Company, besides diverted orders of foreign buyers to his proprietorship firm M/s. Navneet Elastomers. He had opened the bank account with forged signatures of Mrs. Neelu Kohli and fabricated the resolution of the board of directors of the Company. Statutory authority under the Companies Act had refused to register documents filed by Mr. Naveen Kohli and had issued show-cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the Company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.”

(Pages 580-581)

12. Learned Counsel further referred to the decision of the Supreme Court in Maya Devi (Smt.) v. Jagdish Prasad, I (2007) DMC 325 (SC)=II (2007) SLT 639=AIR 2007 SC 1426. Where the Court considering the consistent course of conduct by wife which not only included harassing of minor children but also when she was charged of the offence under Section 302 of the Indian Penal Code, she instituted a false case alleging dowry demand against the husband and his family members. The final report as made out by the police discloses that the case lodged was false. In particular the Court also considered the fact that the act of lodging a false case also constituted cruelty:

“6. The Trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to her behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened to kill the husband and prosecute him. It was also noted by the Trial Court that the allegation made by her alleging dowry demand was disbelieved and the police gave final report stating that the case was falsely lodged. The Trial Court granted the decree of divorce which was, as noted above, confirmed by the High Court in appeal by dismissing the appellant’s appeal.”

(Page 139)

13. Learned Counsel also placed reliance on the decision of this Court in Mandeep Kaur v. Sukh Dev Singh, AIR 2006 HP 97, in which the wife not only harassed the husband but also had him arrested, handcuffed and paraded. The Court held:

“16. By now the law is well settled that the police should not handcuff any person even those involved in grave and serious offences unless there is sufficient material for the police to believe that they may escape. Indeed, the Apex Court has time and again given directions in this behalf. Admittedly the police handcuffed the husband and his father. They were not charged with murder or rape. They are businessmen and there was no chance of their absconding. From the evidence and material on record it is obvious that the husband and his father were handcuffed at the instance of the wife and her father. This can also be gathered from the fact that the wife and her parents had accompanied the police from Amritsar to Mandi. This by itself shows that she wanted to teach her in-laws a lesson.”

(Page 405)

14. Learned Counsel further placed reliance upon the decision of this Court in Shri Chand Prakash Sharma v. Smt. Kaushlya Devi, I (2008) DMC 176=2008 (1) Shim.LC 198, in which a false complaint had been lodged by the wife against her husband making number of allegations. This Court has held that such an act constitutes cruelty within the meaning of the Act.

15. I may notice the decision of the Supreme Court in Jagdish Singh v. Madhuri Devi, II (2008) DMC 8 (SC)=V (2008) SLT 55=AIR 2008 SC 2296, which has been relied upon by learned Counsel for the respondent. He urged that the appellate Court is expected to bear in mind the findings recorded by the Trial Court on evidence before it. The Trial Court had an advantage and opportunity of seeing the demeanour of witnesses and its findings should not normally be disturbed. Though the appellate Court has ample powers/same powers as that of the original Court, but they have to be exercised with proper care, caution and circumspection.

16. Learned Counsel also relies upon the decision of the Supreme Court in Sujata Uday Patil v. Uday Madhukar Patil, I (2007) DMC 6 (SC)=I (2007) SLT 47=AIR 2007 SCW 896, and urges that where there is a deliberate course of conduct and incidents held and that such acts constitute cruelty. The Court held:

“7. The word ‘cruelty’ and the kind of degree of ‘cruelty’ necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the Court in these kinds of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or pervasion (sic perversion) whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty.

(Pages 277-278)

17. I may also notice the decision of the Delhi High Court in M.K. Malhotra v. Smt. Kirti Malhotra, I (1987) DMC 188=AIR 1987 Del. 266, holding that false complaints made by wife to the Prime Minister against husband constitutes grave acts of cruelty.

18. Similarly, a Division Bench of the High Court of Rajasthan in Rakesh Sharma v. Surbhi Sharma, AIR 2002 Raj. 138, held that where the wife was repeatedly leaving the matrimonial home without the consent of the husband and not returning thereafter as also making false complaints regarding demand of dowry that he was leading an adulterous life, the acts constituted cruelty.

19. It is in the totality of the ratio of the judgments as also of the facts pleaded and proved on record that there is no denying the proposition that Samar Ghosh’s case lays down the broad guidelines for considering as to what constitutes cruelty. On the question as to whether the filing of the criminal case under Section 498 (A), IPC which resulted in the acquittal of the respondent and his family members constitutes an act of cruelty on the part of the appellant, I have no doubt in my mind that on the findings as given by the learned Trial Court that such an act does constitute cruelty calling for the intervention of the Court for dissolving the marriage. The submissions made on behalf of the appellant that she was pursuing her claim bona fide, she was helpless and it was the prosecuting agency which was duty-bound to place sufficient evidence before the Court and the manner in which the trial was conducted, I cannot accept this submission for the reason that the prosecution was launched on the application having been submitted by the appellant to the police containing specific allegations with respect to number of acts having purportedly committed by the respondent as also by his family members. It was not an incident where the prosecuting agency/police had not taken suo motu action but the specific averments made in the complaint formed and constituted the basis and core of the entire case. The complaint was specific with respect to the acts of cruelty which included physical and mental torture inflicted on the appellant viz. repeated beatings given to her, demand for gold, car or sum equivalent to the value of the car and threats that in case she and her parents did not fulfill these demands, she would be burnt alive or permanently disfigured/incapacitated with acid. By any standard, these are serious allegations. The evidence was primarily of the complainant and her family members. The judgment (Ex. PI) itself shows that the case was pending for three years and during this period, the respondent and his parents had to face criminal prosecution and live under the mental tension/trauma of a false case hanging on their head like a sword on domocles. So much so, the respondent was serving in the army and the impact on his service/carrier profile can well be imagined. There is also no denying of the fact that the respondent and his family members had to obtain bail. What clinches the entire matter are the findings of the learned Trial Court that a false case has been registered against the respondent and his family members only to settle personal scores. When considered in the light of the judgment cited by the learned Counsel for the respondent as noticed supra and coupled with the other incidents as pleaded in the petition, it has been established on record that the attitude of the appellant in leaving the matrimonial home at her sweet will and pleasure and showing disrespectful attitude to the husband and the members of his family, without any justifiable cause, I have no doubt in my mind that in isolation or in conjunction with these facts filing of a criminal case which was held to be false, the respondent has been subjected to cruelty which is actionable. The submission that the acts, complained of constituting the desertion by the husband did not constitute such course of conduct as proving animus deserendi having not been established cannot be accepted. Reliance has been placed by learned Senior Counsel for the appellant on the decision of a Division Bench of this Court in Inder Paul Singh v. Smt. Khimla Devi, 1995 (2) Shim.LC 80, does not support his contentions. The case considered by the Court was that it has to be seen whether the respondent intentionally and permanently abandoned the appellant without his consent and without reasonable cause. Even applying this principle in this case what I find is that there is no explanation or reasonable cause for leaving the matrimonial home. However, such act of desertion is not being considered in isolation but coupled with the act of the appellant herein in launching false criminal proceedings which have been held so by the learned Trial Court. I may also consider one more fact and that is that both the parties now staying apart for the last 6-7 years which fact is admitted and proved on record. In this situation, the case is clearly covered by condition Nos. (i) (ii) (iv) and (v) as set out in Para 101 of Samar Ghosh’s case. There is thus no merit in this appeal and it is rejected accordingly.

Appeal dismissed.

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