Harbans Lal vs Smt. Santosh
2006 Latest Caselaw 1831 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 3442

1. In this appeal, under Section 28 of the Hindu Marriage, the correctness of an order of the learned Additional District Judge, dated 14-3-2002 dismissing a petition moved under Section 13(1)(i)(ia) and (ib) of the Hindu Marriage Act, by the appellant husband (hereafter the Act) has been challenged.

2. The parties were married to each other according to Hindu rites, on 13-11-1982. Both parties were divorcees before the marriage; the appellant had three sons from the previous marriage, and the respondent had no issues from her previous marriage. Three daughters were born out of the wedlock. The allegation in the divorce petition was that the respondent wife had developed illicit relationship with one Shanti, when he (the appellant) was posted in the Delhi Airport, as a Delhi police personnel. It is alleged that the respondent used to sleep with, and have sexual intercourse with the said Shanti, particularly when he was away on night duty at the airport. This, it was alleged, was noticed by his daughters and neighbours; when he allegedly confronted the wife with these facts, she felt sorry, and apologised. It is also alleged that due to her guilt, she left the matrimonial home on 23-7-1995; ever since she deserted the appellant. She stopped cohabitation with the appellant from that date.

3. The appellant had alleged that apart from the above incidents, the respondent wife had also incited one Seema to leave and run away from her matrimonial home, and in fact helped her abduction. A police report was lodged, and the respondent was interrogated. The respondent's actions led to the appellant's character too being questioned; this resulted in his humiliation, and defamation. In the statement the respondent had allegedly said that she was living with the petitioner as his keep.

4. The respondent had not caused appearance; she was accordingly proceeded ex parte. The petitioner examined himself as PW1. During the pendency of the proceedings one registered letter, said to have been sent by the respondent was received by the trial court,in which she alleged that she has been deserted by the petitioner. The Appellant was posted in police. He used to give her beatings, had left her at her parent's home and promised to take her back to Delhi after one week. Yet, the Appellant did not return to take her back. The Appellant, it was alleged, was in the habit of consuming liquor. When her father reached at the appellant's residence, he was insulted by him (the Appellant). The respondent also alleged that a friend of the Page 3443 appellant, being in the police service, had sent police to her residence, who harassed her and her parents. She was tortured and harassed by the Appellant on the ground of insufficient dowry. The respondent alleged that she is living at her parent's house for the last seven years. The Appellant had never written to her nor has cared to maintain her. She is earning her livelihood by cleaning utensils at her neighbour's house. The Appellant has refused to keep and maintain her. He has abandoned her with the intention to put an end to the matrimonial ties. This letter was brought to the notice of the Ld. Counsel for the Appellant.

5. The trial court held, on the ground of adultery that the Appellant failed to prove his case, as the alleged adulterer was never made a party in the proceedings. In the petition the Appellant did not give any particulars about the adulterer and simply alleged him to be one Shanty, without furnishing his address. The petition had alleged that Shanty used to sleep and had sexual intercourse with the respondent and that fact was noticed by his daughters and neighbours. No details, regarding dates, who noticed the allegations, etc were given, about when the respondent was caught red handed having illicit relations with the said Shanti. The trial court also held that in his testimony the Appellant deposed that the illicit relations of the respondent continued with Shanty for about 2/3 years; nothing was brought on record to show that any complaint was lodged by the petitioner against Shanty or against the respondent. The evidence led by the Appellant was disbelieved. It was held that the testimony of the Appellant was based on hearsay evidence. In his deposition before the Court the Appellant stated that his elder daughter Pooja threatened the respondent to inform the appellant about her relations with Shanty, which led to the respondent threatening Pooja to put her on fire by pouring kerosene oil. The Appellant did not examine Pooja to sub stantiate his allegations. In the petition the Appellant alleged the neighbours had witnessed the illicit relations between the respondent and Shanty. No name of the neighbour has been disclosed in the petition. In his testimony as PW1 too Appellant did not disclose the name of any neighbour who had allegedly seen the respondent having illicit relations with any Shanty. Allegations of adultery were held to be very serious and grave. But there was no shred of evidence either oral or documentary on record to infer if the respondent was having illicit relations whatsoever, with Shanty. The court held that a mother of three daughters married to a person employed in Delhi police cannot be imagined to continue illicit relations with any person without the consent, permission or connivance of her husband. As regards allegations that the respondent had incited one Seema to run away from her matrimonial home and had helped her in her abduction, it was held that the allegations were vague and evasive, without any details, or any evidence in that record. The court noticed that in his testimony as PW1 the Appellant did not depose at all if the respondent had ever helped Seema to run away from the matrimonial home. Since there was no evidence on record, whatsoever, to infer adultery, no relief could be granted to the Appellant on that score.

6. As far as the ground of cruelty, was concerned, the court was of the view that the Appellant failed to produce any evidence to show if he was ever Page 3444 treated with mental or physical cruelty by the respondent. No specific instance was revealed when he was treated by the respondent with cruelty. It was also noticed that no other conduct and behavior of the respondent was proved to constitute cruelty either physical or mental.

7. On the issue of desertion, the trial court noticed that the parties were living separately since 23.7.95. However, mere separation was insufficient to constitute desertion. The Appellant had to prove that he was deserted without any sufficient cause by the respondent; he had to show Animus desrendi, by the wife. No evidence was produced by the Appellant that the respondent had left the matrimonial home along-with her jewellery with Shanty. The Appellant did not examine the daughters who had allegedly informed him that the respondent had left the matrimonial home Along with Shanty. In the petition nothing was stated by the Appellant to show if any efforts were made by him to bring back the respondent to the matrimonial home. It also held that nothing was brought on record to show if he ever sent any money to the respondent to maintain her; no details were given to show when efforts were made by the Appellant to search the respondent. On the other hand, the trial court held that a perusal of the registered letter received from the respondent reveal that she is living in her parent's village. So, contention of the Appellant that he could not trace the respondent has no force. The Appellant admitted that after selling the house and quitting his job, he had started residing at Rohini; nothing was shown to the trial court if at any time the Appellant ever intimated the respondent about his fresh address to enable her to join the matrimonial home, or that he sought restitution of conjugal rights under Section 9 of the Act. The trial court took note of the letter received from the respondent in the form of an affidavit, to hold that it showed her her plight, i.e that she was unable to meet her expenses for livelihood and is said to have been maintaining herself by cleaning utensils at the neighbour's house. The Court held that she could not be expected to travel to Delhi to contest the petition. The Appellant did not step forward to offer to send maintenance to the respondent to enable her to contest the petition.

8. The court held that merely because the respondent is ex parte, no adverse inference could be drawn as she has sent her affidavit showing her poor condition. The Appellant's case, it was held, has to stand on his own legs to prove the ground of divorce even if the respondent is ex parte. On a conspectus of the nature of evidence, and also the fact that the appellant failed to explain the delay in filing the petition, the trial court declined the reliefs claimed by him.

9. The proceedings before this Court too, were ex-parte. By orders of court, substituted service was effected. Even thereafter, the respondent did not appear in these proceedings

10. Ms. Shazia Ambrim, learned Counsel submitted that the trial court committed an error in not appreciating the facts in their correct perspective. It was submitted that allegations of adultery are extremely difficult to prove, and that they are usually a matter of inference to be drawn by the court, having regard to the circumstances. Counsel submitted that the evidence on record showed that the petitioner's daughter, Pooja had witnessed the acts of adultery, and even been threatened with dire consequences by the Page 3445 respondent. The court ought not to have ignored these circumstances. It was also submitted that no man would willfully allege adulterous behavior by his spouse; the facts of this case show that the appellant had to undergo a lot of humiliation due to the respndent's behavior.

11. Ms. Ambrim also submitted that the nature of behavior by the respondent reflected her cruelty. Although she apologized for her misdeeds, yet she chose to abandon the appellant husband. The acts of the respondent in inciting Seema and helping in abducting her, leading to the Police enquiring into the matter, led to mental agony and humiliation. Though the petitioner did not take any action, the respondent made no attempt to return to the matrimonial home. It had to be therefore, inferred that she had no intention to co-habit with the appellant.

12. Learned Counsel further relied upon the judgment of the Supreme Court in Naveen Kohli-vs- Neelu Kohli 2006 (4) SCC 558, and submitted that the present case was a fit one where the court had to infer that the marriage had irretrievably broken down, requring a decree of dissolution. She also relied upon the judgment of the Supreme Court in Amarjit Singh -vs- State of Punjab to submit that there can be no hard and fast rule as to the type of corroboration of evidence in a given case, and that everything would depend on the totality of the circumstances.

13. The appellant had examined himself in support of the petition. He stated about the marriage performed between the parties on on 13.11.1982 at village Khatkara, District Jalandhar. The marriage was consummated and three daughters were born to the respondent out of this wedlock. All those daughters were residing with the appellant; he deposed that one of them is married. He deposed that in 1992, he was posted at Delhi Airport, when at times he had to attend night duties. The respondent developed illicit relations with one Shanty, and used to call him at her residence, by telephoning him when the appellant used to be out on night shift. He deposed that his daughters used to sleep in a separate room; the respondent used to sleep with Shanty in another room. The appellants elder daughter Pooja allegedly threatened the respondent to inform him about her relations Shanty, at which she threatened the said daughter, that all the daughters would be put on fire after pouring kerosene oil on them.

14. The appellant deposed that the alleged illicit relations of the respondent, continued with Shanty for about 2/3 years and his daughter did not inform him due to fear. On 23.7.95 the respondent left the matrimonial home in his absence taking all her jewellery along with Shanty. He came to know of that, when his daughters informed him. He claims to have made efforts to search the respondent, but could not trace her. He quit his job in 1997, and sold his house, after which started he residing at Rohni. The appellant performed the marriage of his elder daughter Pooja.

Page 3446

15. The appellant has alleged three distinct matrimonial offences, viz adultery, cruelty and desertion. As noticed by the trial court, no evidence apart from his own testimony was led. Although the trial court seems to have adversely commented on the appellant not producing his daughter (who at the relevant time was perhaps a minor) and such an approach might not be appropriate, nevertheless, there is some substance in the approach adopted by it. Adulterous behavior is a very serious allegation. It cannot be lightly or casually levelled. Indeed, the objection that the alleged adulteror was not made a party, is a legitimate one. The court cannot go by hearsay testimony, certainly not on sole deposition of the litigant, who is not a primary witness, as in the present case.

16. The allegation of cruelty levelled against the respondent wife hinge mainly on the narration of her adulterous conduct. No independent acts of cruelty have been alleged, much less proved. Apart from stepping into the witness box, the appellant did not adduce evidence of any relative, or friend, to support the case of cruelty.

17. In S. Hanumanta Rao v. S. Ramani the Supreme Court observed as follows:

Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party.

What constitutes cruelty in matrimonial affairs have also been stated in American Jurisprudence 2nd Vol 24 page 206. These are;-

The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.

18. Therefore to find out marital cruelty, though ordinarily a whole series of acts or conduct should be weighed to infer cruelty yet an isolated act can lead to such inference, if its gravity or seriousness is of such a kind that it is likely to cause grave injury to physical or mental health of victim spouse. A complete picture should be available as to the acts, incidents or conduct for ascertaining whether they amount to cruelty-physical or mental. In the present case, there is absolute dearth of such evidence or material to conclude that the respondent wife was guilty of cruelty.

19. In Smt. Sushma Kohli @ Satya Devi v. Shri Shyam Sunder Kohli 2003 (1) DMC 52 a Division Bench of this Court dealt with, exhaustively, the meaning of desertion under the Act, and the need for the spouse alleging that conduct Page 3447 to prove it. The ingredients of desertion are- (i) the factum of desertion and (ii) the intention of a party to bring cohabitation permanently to an end (animus deserendi). Therefore, in a petition for divorce by husband on the ground of desertion, it is not enough if it is established that the wife left the marital home without reasonable excuse and against the wishes of husband, it must further be shown that the intention was to bring cohabitation permanently to an end. (Ref. Bipinchandra Jaisinghabai Shah v. Prabhavati ; Lachman Utamchand Kirpalani v. Meena alias Mota ).

20. In Smt. Sushma Kohli (supra) it was held that:

29. Desertion is the break up in the matrimonial home, which is by one spouse from the company of the other. When one spouse has to leave the matrimonial home under compulsion, the same would not amount to desertion. Physical leaving of home by itself would not amount to desertion unless animus deserdendi is established. One of the spouses by reason of circumstances obtaining in the matrimonial home may be forced to leave. In the instant case, the learned Trial Judge has categorically held that the respondent was forced to leave the matrimonial home by reason of acts, omissions and commissions on the part of the appellant and his parents.

21. Speaking on the issue of burden of proof, by the party asserting the matrimonial misconduct by the other, it was held in Lachman Uttamchand Kriplani's case (supra) that:

In other words, even if the wife, where she is the deserting spouse does not prove just cause for her living apart, the Appellant-husband has still to satisfy the Court that the desertion was without just cause.

The above proposition of law has been followed by this Court in Ashok Kumar Bhatnagar -vs- Shabnam Bhatnagar .

22. In the present case, the appellant has not been able to substantiate the allegation of desertion by the wife. No doubt, the wife has been living apart. But as observed by the trial court, her letter, along with affidavit has given a clue as to the rationale. That may itself be not conclusive, because she was not subjected to cross examination. Yet, the husband has not shown any materials or evidence that the respondent withdrew from co-habitation without a cause. He only relied on his testimony.

23. This Court, in the Division Bench decision in Smt. Sushma Kohli (supra) underlined the need to not upset the findings of the trial court in such matters, unless there are compelling circumstances warranting that course. The court held as follows:

34. It is now a well-settled principle of law that the appellate court normally would not interfere with the findings of fact arrived at by the learned Trial Judge. In Kalipada Saha v. Sm. Lila Rani Saha (1995)(1)CAL. HC Notes 284, it was held:

Page 3448

52. Moreover the learned Court below upon appraisal of the evidences brought on records accepted the plea of marriage. Such a finding based on oral testimonies of the witness shall not be ordinarily interfered with by the Appellate Court.

53. In Mandholal v. Official Assignee of Bombay reported in AIR 1950 Federal Court page 21, it has been observed:

It is true that a Judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on question of fact but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the Appeal court should not lightly interfere with the judgment.

To the same effect is the judgment of the Supreme Court in Madhusudan Das v. Narayani Rai in this case, the learned trial Court had considered the testimonies of the witnesses examined on behalf of the plaintiff relating to the fact at issue. I find that the findings arrived at by the trial court are reasonable and as such there is no reason as to why this Court would differ with the said findings on the aforementioned point.

24. I am not persuaded to accept the plea of the learned Counsel for appellant that the marriage between the parties has irretrievably broken down, and therefore, the court, following the decision in Naveen Kohli v. Neelu Kohli ought to dissolve the marriage. Although the reasoning is attractive, the court has to be circumspect in arriving such a conclusion, which has necessarily to be after weighing the facts of any given case. This is particularly more so in view of the fact that Parliament has not yet amended the law, and incorporated that ground as a head of divorce, under the Act. The Supreme Court had in Shyam Sunder Kohli v. Sushma Kohli sounded a note of caution that such a ground can be resorted to only in extreme circumstances.

25. For the above reasons, I find no infirmity with the impugned judgment and order of the Additional District Judge. The appeal therefore fails, and is accordingly dismissed, with no order as to costs.