Rajinder Parshad vs Chander Prabha

G.C. Garg, J.—This appeal relates to a matrimonial dispute between the parties.

Rajinder Parshad appellant filed a petition u/s 13 of the Hindu Marriage Act (for short the Act) for a decree of divorce on the ground of cruelty and desertion. Marriage between the parties took place on December 11, 1980 according to Hindu rites. Respondent gave birth to a female child on November 7, 1981. Allegation of the appellant for seeking divorce is that the respondent had been cruel to him and ultimately deserted him. The allegation of the appellant is that the respondent had been cruel to him, his mother unmarried sisters and his younger brother. Few instances of cruelty as alleged are that the respondent used to visit her relations without the knowledge of the petitioner and ultimately gave on birth to a female child at her sister''s house The respondent had been humiliating the appellant in the presence of his friends and relations by not obeying his instructions and refusing to prepare even a cup of tea. The further allegation of cruelty is that she lodged a false complaint against the appellant in Police Station Fatehgarh Sahib and had been compelling him to live separately from his mother, brother and sister and ultimately, left the society of the appellant on May 23, 1982 in his absence by taking away all the jewellery with her. She thereafter never returned to the matrimonial home and thus, deserted the appellant for a period of over two years before the filing of petition for divorce.

Petition was contested by the respondent by filing a written statement. The allegations as made by the appellant were denied. She rather stated that she behaviour of the appellant, his mother, sisters and brother was not tolerable and they were cruel towards her. Besides denying the allegations, she stated that the delivered a female child at the house of her sister with the consent of the appellant. Filing of the complaint was admitted, but it was asserted that the complaint made by her against the appellant was based on true facts. The appellant on his family members gave her beatings and she got herself medically examined at the instance of the police. In the end she pleaded that she was turned out of the house by the appellant on May 21, 1982 after beating her.

The parties were put to trial on the following issues :

(1) Whether the respondent has treated the petitioner with cruelty as alleged in the petition ? OPP.

(2) Whether the respondent has deserted the petitioner for a period of more than two years prior to the presentation of this petition without any reasonable cause ? OPP.

(3) Relief.

Learned Additional District Judge, on consideration of the entire evidence produced before him, answered Issue No. 1 against the appellant by holding that the appellant had failed to prove by reliable and convincing evidence that the respondent was treating him with cruelty. On the other hand, a finding was recorded that in fact, the appellant was treating the respondent with cruelty. Under Issue No. 2, it was found that the respondent left the house of the appellant because she was given severe beatings, so she has not deserted the appellant without any reasonable cause. The petition was consequently dismissed. Hence. this appeal at the instance of the husband.

During the pendency of petition u/s 13 of the Act, the respondent wife filed an application u/s 7 of the Guardian and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardianship Act, 1956, for her appointment as a guardian of minor daughter and for letter''s custody. According to learned Counsel for the appellant, certain allegations were made by the respondent-wife in the said application. Consequently, an application was filed on behalf of the appellant under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, being Civil Misc, No. 4603/ C.II of 1987, for allowing additional evidence. For proper adjudication of the matter, it would be appropriate to first decide this application.

The allegations, as made in the application which is sought to be produced as additional evidence are that the appellant is of bad character and has several times poked his nose with the working lady employees of his office and other women against which several times action has been taken against him by the department on the complaints made by the lady employees. I find that the word ''bad character'' used by the respondent-wife in the application for seeking custody of her minor daughter is not in the sense that the appellant is characterless. The word ''bad character'' appears to have been used in the context of the allegations made in the application. In the context of the allegations, it only means that the appellant is in the habit of unnecessarily interfering in the affairs of others. The appellant while appearing as his own witness in Court has admitted that he was warned on several occasions by his superiors for this habit of his. The appellant thus, cannot take any advantage of the allegations made by the respondent wife in the application for seeking custody of the minor. Even otherwise, if the allegations as contained in the application are taken to be serious as is sought to be contend by the appellant, it does not help him. The allegation was made when the petition for seeking divorce was pending. The appellant took no steps to amend the petition u/s 13 of the Act by making this allegation to be a ground for grant of divorce. A mere allegation made in the application or in any other proceedings cannot be looked into and relief granted on that basis unless the allegations are made a part of pleading, put to trial and found to be correct. In the circumstances, I find no merit in the application for allowing to lead additional evidence and the same is rejected.

On merits, learned Counsel for the appellant submitted that the respondent is proved to be cruel towards the appellant and other family members. After going through the evidence with the help of learned Counsel for the appellant, I am of the view that learned Additional District Judge has rightly discarded the evidence produced by the appellant in support of his allegations of cruelty on the part of the respondent. In support of allegations of cruelty, the appellant produced Mohan Singh as PW1, Birbal Dass as PW5 besides appearing as his own witness as PW-10. The evidence of these witnesses has been rejected by giving cogent reasons. Birbal Dass PW5 is maternal uncle of the appellant. Mohan Singh PW1 who stated that he had gone to the house of the appellant for inviting them on the occasion of marriage of his sister and in his presence the respondent refused to prepare tea, could not even tell the month or date of marriage of his sister. Even otherwise, the refusal to prepare tea on a particular occasion, in my view, would not amount to cruelty on the part of a wife towards her husband or other family members. The wife may be justified in not preparing tea on a given occasions for a number of reasons. Such trifles are the normal routines of the married life and cannot be taken to be a ground of cruelty.

Sarwan Singh PW-2 and Piara Singh PW-4 have been produced in support of the allegation that the respondent had been quarrelling with the appellant. I have gone through the evidence of these witnesses. No reliance can be placed on the testimony of these witnesses. They are the employees of the Municipal Committee where the appellant is employed. They are thus, bound to toe the version of the appellant. Apart from this, their statements are contradictory to each other, as has been rightly noticed by the learned Additional District Judge. Som Nath PW-3 and Birbal Dass PW-5 have been produced to again support the allegation that the respondent had been quarrelling with the appellant. No help can be derived by the appellant from their statements also. Som Nath PW-3 categorically admitted that the respondent never insulted the appellant in his presence. Birbal Dass PW-5, as already noticed, is the maternal uncle of the appellant and thus, supposed to depose in line with the version of the appellant. The other witnesses produced by the appellant also do not support the allegations of cruelty or desertion.

It is, no doubt true, rather admitted case of the parties that the respondent did lodge an F.I.R. against the appellant. The version given by the respondent as also by the witnesses produced by her is that she was given severe beatings and locked in a room. Her brother was called through telegram Exhibit R. 1, wherein it was recorded that the respondent was seriously ill. Respondent''s brother reached the place of the appellant and found that she had been locked in a room and was in a bad shape. He has appeared as RW-2 in the Court. The F.I.R. was lodged thereafter and the respondent was got medically examined from doctor Jujar Singh RW-5. Report of the doctor has been placed on the record as Exhibit R. 4 which clearly proves that there were injuries on the person of the respondent and the duration thereof was one to three days. Thus, even if the F.I.R. was lodged by the respondent which was found to be based on true facts, the appellant cannot get any advantage from this for providing that the respondent was cruel to him. It is rather the other way-round. The sequence of events as alleged by the wife that she was being mal-treated by the appellant and his family members and ultimately shunted out of the house after beating, has been proved by evidence oral as well as documentary by her, especially in the shape of Exhibit P. 1 a copy of police report, Exhibit R. 1 a copy of telegram and Exhibit R. 4 a copy of the Medico Legal Report. The statements of the witnesses produced by the respondent are consistent whereas of those produced by the appellant are contradictory to each other. Under the circumstances, learned Counsel for the appellant has not been able to point out any material evidence justifying to take a view contrary to the one taken by learned Additional District Judge. The findings thus, as returned, are affirmed.

On the ground of desertion, learned Additional District Judge has returned a finding, as noticed above, in favour of the respondent-wife. The respondent while appearing as her own witness as RW-7, stated that she was prepared to accompany the appellant and that she never insulted him or refused , to prepare tea or to do any other work as a house wife. It is not disputed that the parties are living separately for the past about ten years. Evidence has been led by the respondent to show that several efforts made by her to join the company of the appellant were frustrated by the latter on every occasion. On the other hand, the evidence led by the appellant to show that the respondent herself left the house in his absence and lodged a false complaint against him cannot, in the circumstances of this case be believed. As noticed, she was given beating, confined to a room and thereafter left the house of the appellant in the company of her brother whereafter the complaint was lodged with the police and she was medically examined. A clear inference is thus, available that the respondent has not deserted the appellant without any sufficient cause. It is rather the appellant who has turned her out of the matrimonial home.

In the light of the above discussion and reasons aforesaid, I find no reason to interfere with the well-reasoned findings recorded by learned Additional District Judge. The appeal consequently fails and is dismissed. No order to as to costs.