Court:PUNJAB AND HARYANA HIGH COURT
Bench: JUSTICE Dr. Sarojnei Saksena
RANI Vs. AMAR NATH On 11 September 1996
Section 13(1)(ia) –– Cruelty — Acts of wife proving her incorrigible conduct –– Amounts to cruelty towards her husband –– Wife can’t be allowed to take advantage of her own wrong.
Wife has filed this appeal under Section 28 of the Hindu Marriage Act (for short the ‘Act’) against the judgment and decree of the matrimonial Court dated 28.4.1987, whereby her divorce petition filed under Section 13 of the Act on the ground of cruelty was dismissed.
2. Uncontroverted facts of the case are that the parties were married 8 years before the date of filing of divorce petition (25.7.1986) as per Hindu rites. After three years of the marriage, she gave birth to a female child. Since 1981 parties are living separately, female child is living with the appellant-wife. In the divorce petition, wife avers that after the birth of daughter, respondent’s behaviour became quite indifferent and cruel towards her. On this count alone that she has not given birth to a son, respondent started beating her off and on. She tried to pacify him, but to no effect. Ultimately, 1½ years before filing of the divorce petition, after giving her beating respondent turned her out of the matrimonial home in wearing apparel alongwtth minor daughter. She went to her parental home. Thereafter, her father convened a Panchayat consisting of Gopal Singh Lambardar and two other respectables for persuading the respondent to rehabilitate her. In consequence of such Panchayat, appellant went to her matrimonial home alongwith her daughter, but within 4/5 months, she was again beaten and was turned out of nuptial home by the husband. Since then she is living in her parental home. Thereafter, also twice Panchayats were convened for rehabilitation, but the respondent refused to rehabilitate her. Thus, according to her, on account of desertion and cruelty, she is entitled to a decree of divorce.
3. Respondent countenanced all the allegations of cruelty made in the divorce petition. He averred that she on her own left the matrimonial home on the pretext of meeting her mother, but thereafter, she never came back. He is still ready and willing to keep her in the marital home. He denied that he beat or treated her cruelly on the ground that she gave birth to a female child. He pleaded that he is God fearing person. He has never shown any resentment or unhappiness over the birth of a female child. He was maintaining petitioner-appellant with love and affection, but she left the matrimonial roof on her own. He also denied that the appellant and her parents convened Panchayats for her rehabilitation or she declined. When his father died, he sent message to her to come back, but she declined. Again he sent two persons to call her to attend the Bhog ceremony of his late father. Even at that time, she did not come. His mother has died. He is living all alone in his house. Assailing the prayer of divorce, he alleged that the petitioner-wife cannot take advantage of her own wrong and hence, petition is liable to be dismissed.
4. On these pleadings, issues were framed. Each party examined two witnesses more apart from themselves.
5. While deciding issues 1 and 2, the Matrimonial Court minutely scanned the evidence adduced by the parties and came to the conclusion that wife has failed to prove that her husband treated her with cruelty and turned her out of the matrimonial home on the count that she has given birth to a female child. Resultantly, the divorce petition was dismissed.
6. Appellant’s learned Counsel contended that the lower Court has not minutely scanned the evidence of the parties. She was turned out of the matrimonial home in 1981. She waited for 5 years for her rehabilitation and only in 1986, when all her hopes of rehabilitation went in thin air, she was forced to file the divorce petition. There was no reason to disbelieve her oath that she was beaten by the husband and was treated cruelly by him on the Court that she has not given birth to a son. There was no other reason of estrangement between the two, Or, this count, she was maltreated, beaten, and was finally turned out of matrimonial home alongwith minor child. He also stressed that appellant examined two more witnesses who proved that thereafter appellant and her father made attempts to rehabilitate her; Panchayats were convened; her father as well as other respectables went to respondent’s house, tried to convince him to rehabilitate her. After one such meeting, she was sent alongwith female child to the respondent’s house, but after 3/4 months, again he turned her out after beating her.
7. Appellant’s learned Counsel valiantly argued that woeful story narrated by the appellant-wife merited consideration, but the lower Court has brushed it aside on flimsy ground. If she would not have been treated cruelly by the husband, she would not have left the matrimonial home and would not have lived as a parasite in her parental home alongwith her minor child. He also argued that it is pertinent to note that after being turned out from the matrimonial home till she obtained an order from the Court for grant of maintenance, respondent-husband did not pay anything to her for her daughter’s maintenance. Husband never took care of the daughter and never enquired about her welfare. This conduct of the husband by itself proves that he never wanted to rehabilitate the wife.
8. Relying on Ram Murti v. Sohan Lal, 1980 HLR 47, he lastly contended that it is a case of broken marriage altogether. Parties are unable to reconcile themselves; they are living apart since 1981. Hence, on this ground also, the appellant-wife to get a decree of divorce.
9. The facts of Ram Murti’s case (supra) are distinguishable. In that case, husband filed the divorce petition; wife alleged cruelty against the husband, but she could prove only solitary instance of beating wherein she sustained minor injuries. The Court held that she has failed to prove cruelty. In the Trial Court, wife took a categorical stand that she does not want to live with the husband apprehending danger to her life, though she failed to prove cruelty. Attempts of rehabilitation were made, but they proved abortive. The Court held that the conduct of the parties shows that it is not possible for them to live together. Hence, husband was granted a decree of divorce.
10. In this case wife has filed the divorce petition alleging cruelty on the part of the husband. Husband has categorically stated in his statement that he is still ready to take her back to the matrimonial home, but she is totally silent on the point. She does not say that she is apprehending danger to her life, she does not want to go back to the matrimonial home. So far as allegations of cruelty are concerned, her solitary testimony is not corroborated by any witness on that point. There is oath against oath. The statement of husband is more convincing, reliable and dependable. Wife has examined Gopal Singh PW-2 and Charan Singh PW-3. They have simply stated that after three years of the marriage, wife was turned out by the husband from his house after giving her beating. This statement of the witnesses is based on the statement made by the appellant in her parental home. They have not witnessed any such act of cruelty committed by the husband against the wife.
11. Wife has admitted in cross-examination that her mother-in-law died after 10 months of her marriage. She has admitted that she did not go to the husband’s house when her father-in-law died. The reason assigned by her is that she never received any such message of the death of her father-in-law but husband as RW- 1 has stated that after the death of his father, he sent Malook Chand to her village to inform her about the death of his father and also to bring her with him, but Malook Chand reported that she has declined to come. He also categorically stated that for attending the Bhog ceremony of his late father, he sent Sohan Lal and Mohan Lal to call from parental home, but again she disappointed him. Husband Amar Nath has also testified that thereafter he alongwith Balbir Chand, Sarpanch, Malook Chand and Sohan Lal went to her parental home to bring back but she refused. He is duly corroborated by the statements of Malook Chand RW- 2 and Balbir Chand RW-3.
12. Respondent Amar Nath has also stated on oath that in June, 1986, he was taken to the Police Station, Goraya at the instance of wife and her parents and he was forced to divorce the petitioner-wife with the help of police. He was detained there for five days and finally, at the intervention of Balbir Chand, he was released from the police station. Balbir Chand RW-3 has corroborated him on this point as well. He has also given the date on which husband was called at the Police Station, Goraya, i.e. 22.6.1986. Thus, the witness has stated that Amar Nath respondent was detained in the police station for 5/6 days and he was pressurised to give divorce to the petitioner-wife, but as he declined, later on, at his intervention, the police released him. This is not a cock and bull story set up by the husband. Gopal Singh PW-2 has admitted in cross-examination that he alongwith others had also gone to Police Station, Goraya, where respondent (husband) was summoned by the police. According to this witness there also respondent-husband refused to rehabilitate the petitioner. This circumstances shows that wife and her father duly assisted by other villagers were pressuring the respondent to give divorce to the petitioner. They even went to the extent of seeking intervention of police and in that attempt, respondent was not only pressurised and harassed by the police but was also kept in police custody for 5/6 days. When such attempts are being made by his wife, no husband would like to send any money to the wife for her maintenance or for maintenance of the child. Even after, being so humiliated and tortured in such like events, respondent is still willing to take her back, but the appellant has not said a word that she is willing to go to her husband.
13. So far as the alleged cruelty is concerned, wife has not given any specific instance of alleged acts of cruelty. She has made only omnipotent statement that her husband gave her beating on the count that she has given birth to a female child. Even if she is to be believed that some times her husband beat her on any count but that is an ordinary wear and tear of matrimonial life, which only amounts to disharmony and not to cruelty. She has not stated at which place she gave birth to the child, but her husband has clearly stated on oath that this female child was born to her at her parental home after 3½ years of the marriage. When the child was two months old, petitioner-wife returned to the matrimonial home, but she is not cross-examined on this point. Husband has also stated that after coming back to the matrimonial home, she lived with him for about one year. This concludes that the parties were married in the year 1978; she gave birth to the female child in the year 1981 and in 1982 she went back to her parental home on her own. If really, the husband was displeased with the birth of the female child, he would not have allowed her to enter his house when she come back to him with the child of two months and would not have allowed her to live with him for one year.
14. Husband has categorically stated that after living with her for one year after the birth of the child, she went to her parental home by saying that she will come back within 4/5 days, but when she did not return after waiting her arrival for about 15/20 days, he went to her parental home to bring her back. Her maternal aunt told him specifically that she will not go back with the husband. He has also stated on oath that at that time he told that his father is still ill, there is nobody to look after him, but she was not sent and within 10 days his father expired. Wife does not know when her father-in-law died. If the wife is behaving in such a way that husband comes to take her back, she declines to go; when she is told that her father-in-law has died and her husband is calling her, but she does not rejoin him in the moment of despair and melancholy, on being informed that Bhog ceremony is to be performed of her late father-in-law, she again does not join her husband at that moment of need, all these acts only prove her incorrigible conduct which amounts to cruelty towards her husband.
15. So far as the statements of her witnesses are concerned, the lower Court has rightly disbelieved their version for the reasons mentioned therein. These witnesses are unable to state as to when and in which month and year, they went to the husband’s house for reconciliation. They did not enter his house, they went to the Panchayat premises; they do not know the names of other persons, who were there; they did not call any relation of the husband to join the Panchayat delegation. All these facts only indicate that their testimony are not dependable. Charan Singh PW-3 has gone to the extent of saying that when he being a member of the Panchayat, went to the village of respondent, on both such occasions, they collected in Panchayat Ghar, the mother of respondent-husband had not come to the Panchayat whereas father of the respondent refused to participate in talks between the Panchayat members. The fact that even the petitioner has admitted that within 10 months of the marriage, her mother-in-law died, so, there was no occasion for calling respondent’s mother at the time of the Panchayat, which was conveyed by these persons in husband’s village. This further clinches the point that these witnesses are not truthful witnesses.
16. It is admitted by the appellant’s Counsel that after the order of the Matrimonial Court, respondent is continuously paying maintenance to the appellant. This conduct of the respondent also reveals that he is to rehabilitate her, but the wife in her obstinacy and abduracy is not willing to go back to her husband.
17. Thus, in my considered view, the wife has treated the husband with cruelty. She cannot be allowed to take advantage of her own wrong. The Matrimonial Court has not fallen into any error in dismissing the wife’s divorce petition.
18. Resultantly, appeal, being meritless, is hereby dismissed.