Ramesh Chand vs Smt. Sushila

N.N. Goswamy, J.—This appeal by the husband is directed against the judgment and decree dated 14th September 1984 passed" by the Additional District Judge, Delhi, whereby his petition u/s 13(1)(1a)(1b) of the Hindu Marriage Act, was dismissed.

The appellant filed a petition for dissolution of marriage on the grounds of desertion and cruelty. As far as the ground of desertion is concerned the same was found to be against the appellant on the short ground that admittedly the parties had lived together till 13th December, 1981 and the petition having been filed on 13th September, 1982, the period of two years had not elapsed and as such this ground was not available to the husband. The Learned Counsel for the appellant rightly did not challenge the findings as far as the ground of desertion Is concerned.

The only remaining ground is that of cruelty. It was alleged in the petition that right from the inception of the marriage the respondent was forcing the appellant to have a separate independent accommodation to live. The second ground of cruelty as alleged was that the respondent used to leave the matrimonial home and go to her parents'' house without the express permission of the appellant. The third act of cruelty as alleged was that a child was born to the respondent on 19th November, 1979 at her parents'' house and the appellant was not informed of the same. The fourth ground is that on 15th August, 1981 the respondent wrote a letter to her uncle stating therein that she was treating the appellant as her brother and she was not ready to obey the appellant. The Learned trial Judge on perusal of the entire evidence on record came to the conclusion that mere asking the spouse to take an independent house was not cruelty, there was nothing to show that the respondent was going to her parent''s house without the consent of the appellant, as regards the birth of the child the appellant should have known when the child was due to be delivered. The respondent had stated that he was informed by her brother. Regarding the letter dated 15th August, 1981 the Learned trial Judge came to the conclusion that the story put up by the appellant could be believed and the alleged letter was taken under coercion and threat. Consequently the petition was dismissed.

After hearing the Learned Counsel for the parties, I am of the opinion that it is not necessary to go into the details regarding the first three alleged acts of cruelty. Admittedly the parties were living separately till 31st July, 1981 on which date there was a panchayat meeting and the disputes between the parties had been resolved. Thereafter on 31st July, 1981 the respondent came to the matrimonial home as a consequence of the settlement. She stayed with the appellant till 13th December, 1981, that is, for a period of about four and a half months. All acts of cruelty alleged prior to 31st July, 1981 stood condoned as the settlement was in these terms. In the petition there is nothing to show that any of those acts were repeated by the respondent after 31st July, 1981, and as such the acts which had been condoned could not be revived. There is only one act of cruelty which has been pleaded after 31st July, 1981, and that is the alleged letter written to the uncle by the respondent on 15th August, 1981. According to the appellant this letter was written by the respondent on 15th August, 1981 and the letter indicates that it was sent by post on that date. According to the appellant the uncle of the respondent brought the letter to the appellant on 15th August, 1981 itself. After bringing the letter he tried to explain to the respondent to behave properly and the appellant took the letter from him and the letter has been produced by the appellant. The Learned Trial Judge rightly observed that 15th August, 1981 was a postal holiday and to presume that the letter was written on that date and was despatched on the same date and was further received by the uncle on the same date was impossible. In any case the said uncle (who is not a real uncle but a family friend) has appeared as a witness and has produced the letter which he had received from the respondent. He had categorically denied that the alleged letter dated 15th August, 1981 written by the respondent was ever received by him or that he had handed over the same to the appellant. The respondent in her statement as also in her written statement has explained that number of letters and notes were got written by the appellant under threat and coercion. In those circumstances she had no option but to write whatever was dictated by the appellant. The Learned trial Judge has believed this part of the statement of the respondent and I do not find any reason to take a contrary view. The letter read as a whole and certain other letters which have also been referred to, clearly indicate that no woman in her senses would write such letters voluntarily and they could only be written under threat and coercion or pressure.

The Learned Counsel for the appellant also tried to argue another act of cruelty and that is, that the respondent has leaded that her husband has illicit relations with his Bhabhi and this itself is an act of cruelty. Firstly such an allegation made in the written statement cannot be considered to be cruelty till the other spouse takes it as cruelty and decides to amend the pleadings in order to enable the person making such allegation to prove the same. Secondly even in his examination-in-chief the appellant has not said a word about these allegations to say that particular act is an act of cruelty, it is incumbent that the person must say that it was either a physical cruelty or mental cruelty and that it gives him mental agony or shock. There is not a word in his statement in this effect. In fact this alleged act of cruelty has not even been mentioned in his statement. In these circumstances such an act cannot be considered to be an act of cruelty particularly when the respondent had not called upon to prove the allegation made by her in the written statement. No other point has been argued before me. Consequently, I find no merit in this appeal and dismiss the same with costs.