Kanta vs Om Parkash

Mehtab S. Gill, J.—Vide order dated March 12, 2003, counsel for the appellant had prayed for an adjournment to comply with orders

dated May 8, 2000 and March 5, 2003. Last opportunity was granted for the appellant to file an affidavit. No affidavit has been filed.

Petition for granting a divorce under Section 13 of the Hindu Marriage Act, 1955 was filed by the respondent against the appellant.

Different grounds were taken. One of them was of cruelty.

Marriage between the parties took place on May 24, 1982. They lived together in village Kalri Jagir. It has been averred in the petition, before

the trial Court that four female children were born to the present parties. Two of them, died and two are alive.

In the petition before the trial court, the present respondent averred, that the present appellant was a lady of short temperament. She was not

affectionate to the respondent. She was in the habit of wandering around and remaining absent from her house. She never prepared any meals. She

beat up the respondent on many occasions. Respondent used to go to his customers to get clothes and when he came back, he always found her

missing. A lot of cruelty was inflicted on the respondent. It has been further averred that challan under Sections 107/151 of the Code of Criminal

Procedure was presented 20 to 25 times against the respondent.

In the written statement filed by the present appellant, in para 3 thereof, she has not denied, that four children were born to her. In para No. 4 of

the written statement, she has not categorically denied that no proceedings under Sections 107/151 of the Code of Criminal Procedure took place

between the appellant and the respondent. But all she has said, is that it is a matter of record.

To prove his case, the present respondent, brought into the witness box PW1 Mam Chand, PW2 Jag Mal Singh, PW3 himself i.e., Om

Parkash, PW4 Nanu Ram and PW5 Ajmer Singh.

To prove her case, appellant appeared before the trial Court as RW1. Karambir, who had gone with the Panchayat, was produced as RW2.

Daya Ram, a lessee of the land, was produced as RW3. Nasib Kaur, mother of the present appellant, came into the witness box as PW4.

Learned counsel for the appellant has vehemently argued that cruelty has not been proved. It is, in fact, the respondent, who used to beat up the

appellant and went to the extent of, on one occasion, breaking her leg. Learned counsel has further stated that the appellant gave birth to five

daughters. Out of them, two died, two are living with the respondent and one is living with the appellant. Proceedings under Sections 107/151 of

the Code of Criminal Procedure were never initiated on the application of the appellant. She was a loyal and devoted housewife. It was the

respondent, who was a waivered (wayward ?) man, and he did not want to keep the appellant with him, as she gave birth to only female children.

Learned counsel for the respondent has stated that the appellant inflicted cruelty on the person of respondent, by making false allegations in her

statement, that respondent used to try the coerce the appellant to have sexual intercourse with his friends. Learned counsel has further stated that, it

was not the respondent, who used to beat up the appellant, but it was the appellant, who, at times, beat up the respondent. Respondent is a poor

Dhobi. The appellant used to stay away from the house and the fifth child, who was born, was not out of the loins of the respondent, but that of

some body else.

I have heard the learned counsel for the appellant and the learned counsel for the respondent, perused the record and the judgment of the

learned trial Court.

In the petition filed before the trial Court, the present respondent, in para 3 of the petition, has stated that, four daughters were born. Out of

them, two had died and two are living with the respondent. In reply to this para, there is nothing coming forward from the side of the present

appellant, that there were not four daughters, but five daughters, born. What has been stated in para 3 of the reply is that, it is not denied, thus,

conceding to this extent, that four daughters, were born to the parties.

The appellant, in her statement before the trial Court, has stated in her crossexamination that five children were born, out of the wedlock. All

five were daughters. Out of them, three are alive. Two of them, are living with the respondent and one is living with her. She has further stated that

for the last two years, she is living with her parents. This statement was recorded on August 12, 1995. In her crossexamination, she has stated that

the youngest daughter is 11/2 years old.

Going through the petition before the trial Court, written statement and the statement, it comes out that the fifth child was born after the parties

had separated. If there was a fifth child at the time of filing the written statement, she (appellant), in her written statement, would have stated that it

was not four, but five children were born to her.

Though the ground of adultery has not been taken, but there is a reference to the character of the appellant, to this aspect that in the petition, as

well as in the statement of Om Parkash respondent himself, who appearing as PW3, stated that the appellant would go out of his house early in the

morning and come back at 10.00/11.00 P.M.

Coming to the main ground of cruelty, in her statement before the Court, Kanta (appellant) has stated in her examinationinchief that the persons

by the name of Lilu, Channi and Jagmal would visit their home and her husband would ask her to have sex with them. This itself is a very serious

allegation on the respondent. Nothing has been said in the written statement regarding this allegation. There is no mention, that the appellant was

being compelled to have sex with the friends of the respondent.

Copy of document, Exhibit P1, which is an order of the Sub Divisional Magistrate, Karnal dated January 5, 1994, is regarding challan under

Sections 107/151 of the Code of Criminal Procedure titled as State v. Kanta Devi. Copy of document, Exhibit P2, is an order in Case No. 160 of

1994 titled as State v. Om Parkash, which is again regarding challan under Sections 107/151 of the Code of Criminal Procedure. Appellant has

not denied that 20 to 25 applications were given against the respondent to the police.

Learned counsel for the appellant has drawn my attention to a judgment of this Court rendered in the case of Suresh Bala v. Rajbir Singh,

1996(3) RCR(Civil) 61. This judgment does not apply to the facts of the case in hand. As in the judgment (supra), husband levelled allegation of

cruelty, but could not substantiate it. But in the present case, the allegation of cruelty has been proved by cogent evidence.

Learned counsel for the appellant has further drawn my attention to a judgment of this Court rendered in the case of Chanan Singh v. Avtar

Singh, 1996(1) RRR 536. This authority also does not apply to the case in hand. In the case cited (supra), the husband expressed his intention to

remarry his coteacher. It was held that the husband was guilty of ignoring his wife. But in the present case, the husband has not only been treated

cruelly, but is also fulfilling his social obligation of bringing up two daughters.

Learned counsel for the respondent has drawn my attention to a judgment of the Hon''ble Apex Court rendered in the case of G.V.N.

Kameswara Rao v. G. Jabilli, 2002(1) The Punjab Reporter 568 : 2002(2) RCR(Civil) 15 (SC), wherein the Hon''ble Supreme Court has held

that ""Mental cruelty faced by the appellant is to be assessed, having regard to his status in his life, educational background, the environment in

which he lived. The appellant could have traumatic experience because of the police complaint and the consequent loss of reputation and prestige

in the society. Appellant was subjected to serious traumatic experience which can safely be termed as cruelty.

The case cited by the learned counsel for the respondent covers the present petition in hand. Mental cruelty has been proved by cogent evidence,

which has been brought forward by the respondent.