record, it is pertinent to mention that to constitute cruelty, the conduct
complained of should be 'grave and weighty' so as to come to the conclusion
that the petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more serious than ordinary wear and tear
of married life. Equally true is that the conduct has to be considered in the
background of several factors such as social status of parties, their
education, physical and mental conditions, customs and traditions etc.
Cruelty must be of the type as to satisfy the conscience of the Court that the
relationship between the parties has deteriorated to such an extent due to the
conduct of the other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle the complaining
spouse to secure divorce.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO M 309 of 2014 (O&M)
Date of decision: 16.11.2015
Surat Singh .
V
Harvinder Kaur
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
Citation: 2017(1) ALLMR(JOURNAL)49
The present appeal lays challenge to the judgment and decree
dated 10.07.2013 passed by the Additional Sessions Judge, Kaithal (in
short, 'the trial Court'), dismissing the petition filed by the appellant for a
decree of divorce under section 13 of the Hindu Marriage Act, 1955.
The facts relevant for disposal of the present appeal are that
marriage of the parties was performed on 16.11.2007 and a child was born
out of the wedlock. The appellant husband has prayed for a decree of
divorce on the ground of cruelty by raising allegations viz; (i) the
respondent had been coaxing the appellant to resign from army service and
start a Karyana shop at Nissing; (ii) she withdrew Rs.2.50 lacs from the
joint account of the appellant and the respondent and misused the money
(iii) the respondent misbehaved with the appellant and had beaten his old
aged parents; (iv) she left the company of the appellant without any
sufficient cause; and (v) the respondent has lodged an FIR for offence
punishable under Section 498-A of the Indian Penal Code (in short, 'IPC')
against the appellant and initiated proceedings under The Protection of
Women from Domestic Violence Act 2005 causing mental cruelty.
The respondent-wife filed the written statement and in turn
denied all the allegations accusing her of treating the appellant and his
family members with cruelty or deserting the appellant. It is pleaded that
she was harassed and maltreated on account of demand of a Car that was
raised at the time of performance of marriage ceremony. She was thrown
out of the matrimonial home on 14.12.2010 in the presence of Panchayat
consisting of Sahab Singh son of Balkar Singh, Mukhtiar Singh son of
Balkar Singh, Subeg Singh son of Chain Singh, residents of Nissing and
Charanjit Singh son of Sucha Singh of village Bakal. The appellant in
collusion with his family members with an intent to eliminate the
respondent and got the house vacated from her poured hot kerosene oil upon
the respondent and an FIR for offence punishable under Sections 323, 324,
498-A read with Section 34 IPC was registered against the appellant and his
family members. She was compelled to initiate criminal proceedings and to
file an application under Section 12 of The Protection of Women from
Domestic Violence Act 2005 after the incident dated 15.03.2011. She has
denied all other material averments set out in the petition with a prayer for
dismissal of the petition with costs.
The controversy between the parties led to framing of following
issues by the learned trial Court:-
1. Whether the conduct of the respondent as
pleaded in the petition tantamount to subjecting
the petitioner to cruelty, if so its effect?OPP
2. Relief.
The parties were permitted to lead evidence in support of their
respective contentions.
The appellant appeared in the witness box and examined
Charanjit alias Buta (PW2), Sukha Singh son of Amar Singh (PW3), Suresh
Kumar, Manager, PNB, Kheri Sharaf Ali, Tehsil Assandh, District Karnal
(PW4) and Constable Gulab Singh (PW5).
To rebut evidence of the appellant, the respondent examined
herself and Manpreet Singh son of Kartar Singh (RW2) and Subeg Singh
son of Chain Singh (RW3).
The learned trial Court, on consideration of the pleadings of the
parties, evidence adduced and rival submissions made by their respective
counsel, answered issue No. 1 against the appellant and as a consequence,
the petition was dismissed with no order as to costs.
Feeling aggrieved by the verdict of the learned trial Court, the
present appeal has been preferred by the appellant husband.
Counsel for the appellant has contended that the learned trial
Court failed to appreciate the averments raised in the petition and the
evidence adduced during trial resulting in committing a grave error by nonsuiting
his claim for divorce. It is vehemently argued that the appellant
raised specific allegations of misconduct on the part of the respondent and
adduced sufficient evidence to substantiate his allegations. The judgment
passed by the learned trial Court is the result of non-application of mind and
misinterpretation of evidence and thus liable to be set aside. It is prayed
that as marriage between the parties has no future, a decree of divorce may
be allowed.
Counsel for the respondent, on the contrary, has supported the
judgment passed by the learned trial Court with the submissions that the
appellant is a guilty spouse and cannot be allowed to take advantage of his
own wrong. He has failed to raise any specific allegation much less to
substantiate those allegations by adducing cogent and convincing evidence.
The appellant for the reasons best known does not want to live with the
respondent and has initiated proceedings with an intent to put pressure upon
the respondent to leave the matrimonial home wherein she is residing in a
separate portion. The FIR got registered by the appellant in regard to
withdrawal of amount Rs.2.50 lacs from joint account of the parties has been
filed by the police. The appellant and his parents are guilty of treating the
respondent with cruelty against whom criminal proceedings were initiated
by lodging FIR with the police after the occurrence dated 15.03.2011. The
respondent was constrained to file an application under Section 12 of the
The Protection of Women from Domestic Violence Act 2005 as she was
illegally being thrown out of the matrimonial house.
We have heard counsel for the parties and perused the records.
The appellant-husband has sought a decree of divorce primarily
on the ground that the respondent wife is guilty of treating him with cruelty.
Before proceedings to deal with the pleadings and evidence on
record, it is pertinent to mention that to constitute cruelty, the conduct
complained of should be 'grave and weighty' so as to come to the conclusion
that the petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more serious than ordinary wear and tear
of married life. Equally true is that the conduct has to be considered in the
background of several factors such as social status of parties, their
education, physical and mental conditions, customs and traditions etc.
Cruelty must be of the type as to satisfy the conscience of the Court that the
relationship between the parties has deteriorated to such an extent due to the
conduct of the other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle the complaining
spouse to secure divorce.
In the case at hand, the appellant-husband has accused the
respondent for committing cruelty in view of the facts and circumstances
detailed hereinbefore. The learned trial Court has adverted to each of these
facts and circumstances in paras 27 to 31 of the judgment and negated the
plea of the appellant. The appellant has alleged that the respondent wife
forced him to resign from army service and start a Karyana shop at Nissing.
No particulars much less the date, time, year and person in whose presence
such a demand was raised by the respondent has been elicited. The
respondent in the written statement as well as in her statement on oath has
emphatically denied if any such demand was ever raised by her. The learned
trial Court has rightly refused to accept the plea of the appellant that the
respondent committed cruelty by coaxing the petitioner to leave the job in
army.
Another allegation raised by the appellant is that the respondent
withdrew an amount of Rs.2.50 lacs from the joint account of the appellant
and the respondent in which the money was being deposited by him for
household expenses. The respondent wife has not denied withdrawal of
amount but has raised the plea that the said amount was withdrawn by her
for meeting household expenses. Admittedly, an FIR was got registered by
the appellant against his wife for offence punishable under Sections 406 and
420 IPC in regard to misappropriation of the amount has been cancelled.
This apart, when the appellant and the respondent opened a joint account,
the respondent had an authority to operate the said account and make
withdrawal from it. Secondly, the appellant has failed to adduce any
tangible evidence that the respondent is guilty of mis-utilizing that amount.
The conduct of the appellant in getting an FIR registered against his wife in
the circumstances of the present case amounts to cruelty on his part.
The appellant has also failed to establish his plea in regard to
misbehaviour of the respondent with his old aged parents. No specific date,
month and year of any such misconduct on the part of the respondent has
been incorporated in the petition in compliance with the provisions of Rule
4 of Punjab and Haryana Rules and Orders Volume II, Chapter-I Part-E.
Not only this, the appellant has failed to lead evidence to establish his plea
in this regard.
The appellant has also accused his wife of leaving his
company without any sufficient cause though the said withdrawal is stated
to be immediately before institution of the present petition in December,
2010. Admittedly, the respondent wife is residing in a part of the
matrimonial house. She has instituted proceedings under The Protection of
Women from Domestic Violence Act 2005 so that she may not be ousted
from the matrimonial house. She has also lodged criminal proceedings
against the appellant and his family members in regard to an occurrence
dated 15.03.2011 wherein she allegedly sustained injuries during her stay in
the matrimonial home. As the respondent is persistent in her demand to stay
in the matrimonial home, it is beyond imagination as to how the plea of the
appellant can be accepted that the respondent wife is either guilty of
desertion or depriving him of conjugal bliss. Taken from any angle, we do
not find any reason to differ with the findings recorded by the learned trial
Court holding that the appellant has failed to prove that the respondent wife
is a guilty spouse or has subjected the appellant to cruelty of 'grave and
weighty' nature so as to form the basis of a decree of divorce.
For the reasons aforesaid, finding no merit, the petition is
dismissed, leaving the parties to bear their own costs.
(Rajive Bhalla) (Rekha Mittal)
Judge Judge
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