divorce granted on 498A acquittal : Punjab and Haryana high court

where the wife files false criminal complaint
against the husband and his family members under Sections 406, 498A
of the Indian Penal Code which results in their acquittal, this act of the
wife causes mental cruelty and the husband is entitled to a decree of
divorce under Section 13(1)(ia) of the Act

 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No. 233-M of 2001 (O&M)
Date of decision: 18.2.2015
Charanjit Singh
//Appellant
Versus
Harkiran Kaur
/..Respondent
CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL
HON’BLE MRS. JUSTICE SNEH PRASHAR
Present: Mr. BBS Sobti, Advocate and
Mr. Ram Pal Verma, Advocate for the appellant.
Mr. Arihant Jain, Advocate for the respondent.
Ajay Kumar Mittal,J.
CM No. 27461-CII of 2014
This is an application under Order 41 Rule 27 read with
Section 151 of the Code of Civil Procedure for producing on record the
certified copy of judgment dated 14.11.2009 passed by the Judicial
Magistrate Ist Class, Ludhiana in FIR No. 103 dated 1.8.1996, under
Sections 406, 498-A of the Indian Penal Code, registered at Police
Station Division No.2, Ludhiana by way of additional evidence as Ex.AX
and certified copy of judgment dated 9.9.2011 passed by the Additional
Sessions Judge, Ludhiana as Ex.AY.
Notice of this application was issued. Short reply opposing
the prayer has been filed.
After hearing learned counsel for the parties, the application
is allowed as these judgments were passed after the decision of the trial
court in 2001 and the certified copies of the judgments dated 14.11.2009
as Ex.AX and dated 9.9.2011 as Ex.AY are taken as additional evidence
on record.
FAO No. 233-M of 2001
1. This appeal has been preferred by the appellant-husband
against the judgment and decree dated 16.10.2001 passed by the
Additional District Judge, Ludhiana, whereby the petition filed by him
under section 13 of the Hindu Marriage Act, 1955 (in short, “the Act”) for
dissolution of marriage by a decree of divorce, was dismissed.
2. A few facts relevant for the decision of the controversy
involved as available on the record may be noticed. Marriage between
the parties was solemnized on 17.10.1987 at Ludhiana by way of Anand
Karaj ceremony, i.e. Sikh religious rites and ceremonies. After the
marriage, the parties cohabited at Ludhiana as husband and wife and
out of the said wedlock, a male child, namely, Karan was born on
21.9.1988. The marriage was a simple affair and no dowry was given or
taken. From the beginning of the marriage, the attitude of the
respondent was not good and she used to create trouble on trifles. She
used to insult the appellant and his family members and abused them in
the presence of relatives and friends. The appellant tolerated all this
with a hope that good sense would prevail upon her with the passage of
time but her behaviour went from bad to worse. In the month of April,
1990, the respondent left the matrimonial home after taking gold
ornaments and other precious household articles without informing the
appellant and his family members. The appellant and his mother
convened a panchayat and went to the parental house of the respondent
and after great persuasion, the respondent came back to the
matrimonial home. After a few days, she again started creating troubles.
Her behaviour towards the minor was also cruel and she used to give
severe beatings to him. On 14.9.1991, the respondent sprinkled
kerosene oil on herself and minor Karan for committing suicide. The
appellant lodged a report in this regard with the police. The family
members of the appellant stopped the respondent from doing so but she
threatened that she would repeat such acts and would implicate them in
criminal cases. On 25.3.1992, she again left the matrimonial home
without informing the appellant and his family members. The appellant
convened a panchayat and went to the parental house of the respondent
on 8.4.1992 and brought her back to the matrimonial home. On that
very day, she gave in writing that she would not repeat threat of suicide
and would live like an ideal wife. After a few days, the respondent again
started harassing the appellant. She left the matrimonial home early in
the morning without informing the appellant or his family members and
returned late at night. Such acts of the respondent caused mental
cruelty to the appellant and it was difficult for him to live with the
respondent. She left the matrimonial home last on 14.5.1993 and was
residing in her parental house since then. The appellant lodged a report
with the police in this regard. The appellant convened a panchayat
again on 17.5.1993 and went to the parental house of the respondent
but she refused to accede to their request and insulted them and also
threatened that she would implicate the appellant and his family
members in criminal cases. Accordingly, the appellant filed a petition
under Section 13 of the Act for dissolution of marriage by a decree of
divorce. Upon notice, the respondent appeared and filed written
statement controverting the averments made in the petition. Besides
raising various preliminary objections, it was pleaded that she had been
residing in House No. 2460, Ajit Nagar, Near Amarpura, Ludhiana with
the respondent since the date of her marriage. Minor son was also
residing there with them. However, the appellant had deliberately given
a false address of the father of the respondent, i.e. House No. 2870-
2305/2, Jattanwala Chauntra, near Sanari Adda, Mohalla Roop Chand,
Patiala with a view to obtain exparte decree of divorce. After filing of the
divorce petition, the appellant attempted to turn her out and her minor
child from the matrimonial house but with the timely help of certain
respectables, said attempt was foiled. Even in her application for
maintenance pendente lite, the respondent had given her address as
House No. 2460, Ajit Nagar, near Amarpura, Ludhiana. The respondent
also filed a suit for a decree of permanent injunction restraining the
appellant and his family members from interfering in her peaceful
possession over the room and verandah situated on the first floor with
common right to use the room, kitchen, bathroom, verandah, open space
on the ground floor and open space on the first floor and also staircase
from ground floor leading to first floor forming part of House No. 2460,
Ajit Nagar, Issa Nagar, Pulli, Ludhiana. The said suit was pending and
interim injunction was granted in favour of the respondent and her minor
son. The local commissioner appointed by the court went to the spot on
7.6.1999 and found the respondent and her minor son to be in
possession of the aforesaid premises. The appellant had been treating
the respondent with cruelty. He along with his mother and other
relations had been creating such a situation so as to get her out of the
matrimonial home. It was the result of strong will and conviction on the
part of the respondent that she was putting up in that house with a hope
that with passage of time things might improve and the appellant might
accept her and the minor son giving him fatherly love. The divorce
petition was filed by the appellant to take advantage of his own wrongs.
The parents of the respondent besides giving a sum of ` 21,000/- in
cash had also given various other articles including gold items.
However, before the marriage, the brother of the appellant demanded an
amount of ` 50,000/- in cash from the father of the respondent. Her
father after arranging a sum of ` 40,000/- had paid the same to him.
After marriage, on reaching the matrimonial home, the appellant and his
family members demanded ` 1 lac in cash and a car. On her refusal to
fulfil the said demands, her life was made a hell. She had to work from
early hours of the day till late night and no proper food was offered to
her, therefore, she was reduced to a skeleton. The appellant was joined
by his sister to torture the respondent. When she was in a family way,
she was not looked after properly. On the birth of a male child, her
parents had given gifts and cash amount but the appellant and his family
members raised a demand of ` 1 lac and a car. She was turned out
from the matrimonial home and with great persuasions of her parents,
other relations and friends, she was rehabilitated in the matrimonial
home. In 1988, the father of the respondent paid ` 32,000/- to the
appellant. The appellant along with his relations maltreated and
misbehaved with the respondent so as to commit suicide or to cause
grave injury or danger to life, limb or health. According to the respondent,
she never attempted to commit suicide but it was her mother-in-law who
attempted to kill her by sprinkling kerosene oil and a report in this regard
was lodged with Police Station, Division No.2, Ludhiana on 17.9.1991.
The other averments made in the petition were denied and a prayer for
dismissal of the same was made. The averments made in the written
statement were controverted by the appellant by filing replication. From
the pleadings of the parties, the trial court framed the following issues:-
1. Whether the respondent has treated the
petitioner with cruelty after the solemnization of
the marriage as alleged? OPA
2. Relief.
3. The trial court on appreciation of evidence led by the
parties, decided issue No.1 against the appellant holding that the
appellant had failed to prove the grounds of cruelty and desertion.
Accordingly, the trial court vide judgment and decree dated 16.10.2001
dismissed the divorce petition. Hence the present appeal.
4. We have heard learned counsel for the parties and perused
the record.
5. Learned counsel for the appellant submitted that the trial
court erred in law in dismissing the petition under section 13 of the Act
filed by the appellant. Her behaviour towards the appellant and his family
members was not good from the very beginning. She had no intention to
live with the appellant. The behaviour of the respondent caused mental
cruelty to the appellant. It was further contended that the appellant and
his family members were acquitted by the trial court vide judgment dated
14.11.2009, Ex.AX in FIR No. 103 dated 1.8.1996, under Sections
406/498-A of the Indian Penal Code, Police Station, Division No.2,
Ludhiana got lodged by the respondent. The appeal filed against the
said judgment dated 14.11.2009 was also dismissed by the learned
Additional Sessions Judge, Ludhiana vide judgment dated 9.9.2011,
Ex.AY. With these contentions, learned counsel prayed for a decree of
divorce on the ground of cruelty.
6. On the other hand, learned counsel for the respondent
supported the impugned judgment and decree.
7. Section 13(1)(ia) of the Act empowers the Court to dissolve
the matrimonial ties between the parties by a decree of divorce on a
petition by either spouse where the said spouse has been treated with
cruelty after the solemnization of the marriage. Cruelty has not been
defined in the Act but various pronouncements of the Apex Court and
other High Courts have outlined the scope of the term ‘cruelty’. Cruelty
is evident where one spouse treats the other and manifests such
feelings towards him or her as to cause reasonable apprehension that it
will be harmful or injurious to live with the other spouse. Cruelty may be
physical or mental. Whether a spouse is inflicted with physical cruelty or
not, it can be judged on the basis of direct evidence whereas mental
cruelty is to be inferred on analyzing the factual matrix of each case and
drawing conclusion thereon.
8. In Vidhya Vishwanathan vs. Kartik Balakrishnan, 2014(4)
RCR 563, it was held by the Apex Court as under:-
“13. In Vinita Saxena vs. Pankaj Pandit (2006) 3
SCC 778 regarding legal proposition on aspect of
cruelty has made the following observations:
“31. It is settled by a catena of decisions that
mental cruelty can cause even more serious
injury than the physical harm and create in the
mind of the injured appellant such apprehension
as is contemplated in the section. It is to be
determined on whole facts of the case and the
matrimonial relations between the spouses. To
amount to cruelty, there must be such wilful
treatment of the party which caused suffering in
body or mind either as an actual fact or by way
of apprehension in such a manner as to render
the continued living together of spouses harmful
or injurious having regard to the circumstances
of the case.
32. The word “cruelty” has not been defined
and it has been used in relation to human
conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties
and obligations. It is a course of conduct and
one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or
unintentional. There may be cases where the
conduct complained of itself is bad enough and
per se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be
enquired into or considered. In such cases, the
cruelty will be established if the conduct itself is
proved or admitted.”
9. In K.Srinivas Rao vs. D.A.Deepa, (2013) 5 SCC 226,
similar view was taken.
10. A perusal of the record shows that the marriage of the
appellant with the respondent was solemnized in the year 1987. Due to
disputes between the parties, the respondent finally left the matrimonial
home on 14.5.1993. The respondent had lodged FIR No. 103 dated
1.8.1996 under sections 406, 498A of the Indian Penal Code against the
appellant and his family members at Police Station Division No.2,
Ludhiana. The trial in this FIR had resulted in acquittal of the appellant
and his family members vide judgment Ex.AX dated 14.11.2009. An
appeal filed against the aforesaid order was also dismissed by the lower
appellate court vide judgment Ex.AY dated 9.9.2011. It has been
authoritatively held by the Apex Court in K. Srinivas Rao’s case (supra)
and a Division Bench of this Court in Imlesh v. Amit, AIR 2014 Punjab
and Haryana 89 that where the wife files false criminal complaint
against the husband and his family members under Sections 406, 498A
of the Indian Penal Code which results in their acquittal, this act of the
wife causes mental cruelty and the husband is entitled to a decree of
divorce under Section 13(1)(ia) of the Act. The trial court, thus, was not
right in dismissing the petition filed by the appellant-husband.
Considering the overall facts and circumstances of the case, we do not
find any ground to uphold the findings recorded by the trial court. As a
result, we set aside the impugned judgment and decree dated
16.10.2001 passed by the trial court relating to cruelty. The appeal filed
by the appellant stands allowed. The appellant is granted decree of
divorce on the ground of cruelty caused by the respondent-wife.
(Ajay Kumar Mittal)
Judge
February 18, 2015 (Sneh Prashar)
gbs Judge