Ravinder Nath Rattan vs Kanta Devi
2021 Latest Caselaw 3657 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                         FAO(HMA) No. 98 of 2011
                                                         Reserved on: 29.07.2021




                                                                                      .
                                                         Decided on: 06.08.2021





        Ravinder Nath Rattan                                                      .......Appellant





                                                     Versus

        Kanta Devi                                                            ......Respondent

        Coram





        The Hon'ble Mr. Justice Satyen Vaidya, Judge.
        Whether approved for reporting?1 Yes.
        For the appellant:                         Mr. B.C. Verma, Advocate.
        For the respondent:
                                 r                 Mr. Vijay Chaudhary, Advocate.

                                                   (Through video conferencing)

         Satyen Vaidya, J.

By way of instant appeal, the appellant has assailed

the judgment and decree dated 22 nd February, 2011 passed by

learned District Judge, Mandi in HMA petition No. 12 of 2008,

whereby the petition filed by the appellant under Section 13 (1)

(ia) of the Hindu Marriage Act, 1955 (in short 'the Act') for

dissolution of marriage has been dismissed.

2. Facts necessary for adjudication of this appeal are as

under: -

3. On 06.05.2008, appellant filed the above noted

petition with the averments that the parties were Hindu and

were married on 27.09.1984 at Village Panoh Tehsil Bangana,

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

District Una, H.P. Out of wedlock, two sons and one daughter

were born.

.

3. As per appellant, the respondent from the very

beginning of married life had the habit of creating scene on petty

matters. The appellant tolerated, but behaviour of respondent

become bad to worse. After birth of youngest child, respondent

forced the appellant to live separately from his parents and on

his refusal, she along-with her minor girl child aged about 11

months went to her parental house in the year 1990. The matter

was got compromised with the intervention of family members of

the appellant. Respondent never provided moral education to

children, whereas appellant discharged all the responsibilities of

being father.

4. In 2002, appellant took respondent to District Mandi

at his place of posting, where she got job of Drawing Teacher in

Government school. After getting the Government job,

respondent become more adamant. Her behaviour became

more cruel towards the appellant. She started insulting the

appellant in front of his family members and even used abusive

language. She never left any opportunity of insulting the

appellant. He suffered mental agony and had to spend sleepless

nights. He became laughing stock in the society.

5. Appellant and respondent though shared the same

house in District Mandi but were separate in mess since 2005

and were not continuing marital relations with each other.

Appellant was forced to take food outside as she would not cook

.

food for him. Respondent willfully refused to perform marital

obligations towards the appellant.

6. On 25.12.2007, at the time of death of the father of

appellant, respondent created scene. She forced the appellant

to get the land transferred in her name which appellant had

purchased in the name of his mother. Respondent threatened

the appellant of dire consequences in case he failed to transfer

such land in her favour. She inflicted bite injury to the appellant

on his wrist, which caused deep bleeding wound. Respondent

caught hold of petitioner by collar and pushed him down.

7. Respondent contested and denied the allegations,

raised in the petition by the appellant, by filing written reply.

She raised the objection as to maintainability of petition and

estoppel etc. It was submitted by the respondent that appellant

was separated by his parents in 1997. He remained posted at

Kaza from 2002 to 2007.

8. As per respondent, she was appointed as Drawing

Teacher in District Mandi in September, 2002 and was posted at

Surari under complex of Kotli School. Appellant also got himself

transferred to District Mandi in July, 2003 and joined the

company of respondent.

9. Respondent specifically contended that the

behaviour of appellant towards her changed drastically when he

.

was transferred to Kaza. He started scolding the respondent on

every petty matter. Appellant, in fact, wanted to marry another

lady and, therefore, wanted to get rid of respondent. It was

further submitted that the respondent was residing with

appellant and both were maintaining marital relations as

husband and wife. The parties had jointly constructed the house

at village Jhiri in District Mandi and the respondent had also

made

substantial financial contribution besides providing

guarantee for the house loan.

10. The respondent further stated that she had found

some objectionable SMS in the mobile phone of appellant and

when confronted, he got annoyed and made false police reports

against the respondent.

11. In his rejoinder, appellant controverted the contents

of reply filed by the respondent with reiteration of the contents

of the petition.

12. Learned trial Court framed following issues from the

pleadings of the parties:-

1. Whether the respondent has treated the petitioner with cruelty as alleged? OPP.

2. Whether the respondent has deserted the petitioner as alleged? OPP

3. Relief.

13. Appellant examined himself as PW-5 by submission

.

of his affidavit in examination-in-chief as PW-5/A. He also

tendered photocopies of documents Ext.P-1 to P-24. In cross-

examination he admitted that in 1992-93, the family of his elder

brother had separated, but feigned ignorance about the factum

of litigation of his brother and his wife in matrimonial court. He

also admitted that during his posting at Kaza, respondent

remained at his native village. He denied that he had cordial

relations with respondent at the time of her joining the job in

District Mandi. It was also admitted by the appellant that in

2003, he was posted in Panarsa in District Mandi. He denied that

respondent contributed towards the construction of house at

village Jhiri and that respondent had issued cheque in the sum of

Rs.50,000/-. It was, however, admitted that the respondent was

guarantor for repayment of loan taken by the appellant for

construction of house at Jhiri. It was also admitted that the

respondent had lodged an FIR under Sections 323, 325, 451 and

506 IPC at police station, Aut, District Mandi against the

appellant, besides this, she had also made a complaint against

the appellant before the Superintendent of Police, Mandi.

Though he denied that the children used to visit their mother

only but further qualified that they visited him as well as their

mother. He denied that he had relations with lady named Sonam

Norjee at Kaza. He denied that on 29.10.2004, he signed an

agreement with the said lady at Kullu. He further denied that he

.

paid Rs.85,000/- to Sonam Norjam, besides purchasing an

insurance policy in the sum of Rs.1,00,000/- in the name of her

child. He denied that he maltreated the respondent.

14. PW-1 Head Constable Bhim Singh from police station,

Aut produced daily diary report No. 12 dated 26.04.2008 and

proved its copy as Ext.PW-1/A. Similarly, he proved copy of DDR

No. 9 dated 11.06.2008 as Ext.PW-1/B. In cross-examination, he

admitted that no FIR was registered on the basis of either of the

daily diary reports Ext.PW-1/A and Ext.PW-1/B.

15. PW-3 and PW-4 S/Sh. Jagdish Ram and Kishan Singh

also appeared as witnesses for the appellant and echoed the

version of appellant. PW-2 Ram Dayal claimed himself to be a

neighbour of appellant and PW-3 is the real brother of appellant.

In cross-examination, PW-2 has categorically admitted that till

2004, he was residing at Kanpur along-with his family. When

confronted with certain dates and events, he could not answer

satisfactorily. He fairly admitted that dispute with respect to

transfer of land did not occur in his presence and appellant had

not received injury in his presence. PW-3 being brother of

appellant tried to corroborate his version. He stated that before

2002, no report was lodged against the respondent. Report of

the incident of 25.12.2007 was also not made. He denied that

he was party to maltreatment of respondent. He, however,

admitted that a compromise was effected and further

.

volunteered that compromise was made in Police Station. PW-4

Sh. Kishan Singh also echoed the version of appellant in his

examination-in-chief. He maintained in cross-examination that

he visited the house of appellant only once or twice and feigned

ignorance about material facts put to him in cross-examination.

16. On the other hand, respondent examined herself as

RW-2 and reiterated her case as set-up in the defence by way of

submission of affidavit in examination-in-chief. She specifically

stated that the appellant used to receive phone calls and

messages on his mobile from some lady and whenever he was

confronted, he used to fight with the respondent. She, however,

maintained that the appellant used to threaten her of divorce.

Respondent in her examination-in-chief categorically stated that

the appellant had relations with another lady and when this fact

came to her knowledge, the appellant entered into an

agreement with said lady at Kullu, in which appellant and that

lady had also made mention of their daughter. In cross-

examination, nothing material could be elicited on behalf of the

appellant.

17. RW-1 Sh. Subhash Chand appeared on behalf of

respondent. He stated that he was a document writer at Kullu

and had brought his register. This witness proved a copy of

extract from his register dated 29.10.2004 Ext.RW-1/A, which

was an agreement got written by one Devinder Nath. As per

.

version of this witness, other party to the agreement was Sonam

Norjam. In cross-examination, RW-1 clarified that the appellant

present in the Court was the same person who got the

agreement scribed from him. He maintained that he obtained

signatures of the parties on the register. He further maintained

that he personally knew appellant as he was posted as Junior

Engineer in HP PWD at Kullu. RW-3 is Sh. Abhinandan Rattan,

who is son of the parties. He stated in his examination-in-chief

that he came to know that his father had illicit relations with

some lady and this was a cause of dispute between his parents.

RW-4 is Smt. Pini Devi, but her statement is not of much

relevance. RW-5 is Sonam Norjee, who specifically stated that

appellant had married her by suppressing the factum of his

marital status. She stated that the appellant lived with her for

about 1½ years and they had one daughter from this

relationship. When she came to know about the already existing

marriage of the appellant, she was asked to divorce the

appellant. The divorce was effected and Ext RW-1/A was

executed at Kullu, in which she as well as appellant had

appended their signatures. She specifically stated that the

appellant gave her Rs.85,000/- in lieu of divorce and also

purchased an insurance policy in the sum of Rs.1,00,000/- in the

name of their daughter. In cross-examination again nothing

material could be elicited on behalf of the appellant.

.

18. Learned District Judge, Una after holding the trial,

proceeded to dismiss the petition filed by the appellant.

19. I have heard learned counsel for the parties and have

gone through the records.

20. The petition for dissolution of marriage was filed by

the appellant on 06.05.2008 whereas their marriage had been

solemnized on 27.09.1984. The allegations, which according to

appellant constitute cruelty, were alleged to be initially of the

period before 1990 and secondly, after 2002. Meaning thereby

that as per appellant also, the relations between the parties

remained cordial between 1990 to 2002. Though there is no

convincing evidence on record to prove the allegations of

appellant with respect to commission of acts constituting cruelty

prior to 1990, yet as per his own saying, appellant had condoned

such alleged acts of cruelty and thereafter the parties lived

peacefully till 2002.

21. Coming to the allegations of cruelty after 2002,

raised in the petition, the same are also very vague and general

in nature. The Hindu Marriage and Divorce (Himachal Pradesh)

Rules, 1982 framed by Himachal Pradesh High Court specifically

requires the allegations of cruelty to be specified in the petition

with sufficient particularity with time and place of the act alleged

and other facts relied upon. The contents of the petition are

completely non-compliant to above referred rules.

.

22. Appellant has tried to get his version corroborated

through the statements of PW-2 Ram Dayal and PW-3 Jagdish

Ram. As far as the statement of PW-2 is concerned, that does not

inspire confidence, in view of specific admission on his part that

till 2004, he resided at Kanpur. He has not given specific

instances as to when and where was he present to witness the

alleged mis-behaviour of respondent towards the appellant. In

fact, in cross-examination he has denied happening of any such

incident in his presence, which makes his testimony hearsay.

Moreover, the parties after 2002, resided in District Mandi. The

statement of PW-3, who is real brother of appellant, as such, his

statement has to be seen with circumspection as he definitely

had interest in the success of the case of the appellant. Much

reliance cannot be placed on the testimony of this witness

especially when the appellant himself had not been able to plead

and prove the allegations of cruelty against the respondent in

accordance with law. The documents tendered by the appellant

in his statement Ext.P-1 to P-24 are merely photocopies, which

have not been proved in accordance with law. In any case, the

making of unilateral complaints by the appellant against the

respondent repeatedly will not prove his case as no action was

taken on such complaints. Most of these complaints were made

by the appellant after filing of the petition, which can be a ploy

of the appellant to create evidence in his favour. The fact that

.

respondent was guarantor for repayment of loan taken by

appellant for construction of house, also makes the version of

appellant doubtful. Had the relations between the parties been

as bad as projected by appellant, respondent would not have

prudently provided guarantee for the loan taken by appellant or

seen from another angle appellant would not have asked

respondent to stand guarantee for his loan.

23.

It is well settled that onus to prove the allegations of

cruelty is on the person who alleges it. In Dr. N.G. Dastane vs.

Mrs. S. Dastane (1975) 2 SCC 326, Hon'ble Supreme Court has

held as under:-

"23. But before doing so, it is necessary to clear the ground of

certain misconceptions, especially as they would appear to have influenced the judgment of the High Court. First, as to

the nature of burden of Proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her

case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it., This principle accords with commonsense as it is so much earlier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of section 10 (1) (b) of the Act. But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt ? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is

the standard of proof to be applied in order to judge whether the burden has been discharged?

24. The normal rule which governs civil proceedings is that a

.

fact can be said to be estabilshed if it is proved by a

preponderance of probabilities. This is for the reason that under the Evidence Act,section 3, a fact is said to be

proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding

the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various

probabilities he finds that the preponderance is in favour of

the existence of the particular fact. As a prudent man,so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this

process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable

at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this

choice which ultimately determines where. the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer

scrutiny than those like the loan on a promissory note "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue"(1) ; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" (2). But whether the issue is one of cruelty or of a loan on a promote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."

24. From the material, as discussed above, it can be said

with certainty that appellant has failed to discharge the burden

.

of proof placed upon him. No doubt, the standard of proof

required in the petition for dissolution of marriage under Hindu

Marriage Act is that of preponderance of probabilities, but that

does not mean the party alleging acts of cruelty can succeed

without satisfying the Court as to existence of alleged facts in

accordance with law.

25.

Judging the case of the appellant on the touch stone

of aforesaid legal principles, this Court has no hesitation to hold

that the appellant has failed to prove that respondent treated

him with such cruelty which made it impossible for him to live

with respondent without being in constant fear of danger to his

health and life.

26. Learned District Judge, Una while passing the

impugned judgment has arrived at the conclusions after detailed

and thorough consideration of the evidence coupled with all

attending and material facts and circumstances of the case. The

judgment passed by learned District Judge, Una does not suffer

from illegality.

27. There is another factor which dis-entitles the

appellant from claiming divorce from the respondent on the

ground of cruelty. Section 23 (1) (a) of Hindu Marriage Act reads

as under: -

"23. (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that

(a) any of the grounds for granting relief exists and the

.

petitioner [except in cases where the relief is sought

by him on the ground specified in sub-clause (a), sub- clause (b) or sub-clause (c) of clause (ii) of section 5]

is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and in such case and not otherwise, the court shall decree such relief accordingly."

28.

In the present case, there is sufficient material which

dis-entitles the appellant from obtaining the decree of divorce as

prayed by him. Respondent raised a specific plea against the

appellant that he had maintained illicit relations with another

lady. This fact stands duly proved on record. RW-5 Sonam

Norjam on oath verified this fact by stating that the appellant

had married her by suppressing the fact his earlier marriage.

She specifically maintained that they had a daughter from this

relationship. According to this witness, a document was

executed between her and the appellant as an evidence of

divorce inter-se them. She further stated that the appellant had

given her Rs.85,000/- in lieu of divorce and had also purchased a

policy of insurance in the name of their daughter. PW-1 has

proved document Ext.RW-1/A, which is the agreement executed

between the appellant and the respondent evidencing the

factum of divorce. He specifically identified the appellant to be

the person having signed the said document in his presence.

This witness thereby clarified the fact that name of the

executant in Ext.RW-1/A in fact was wrongly recorded whereas

.

person at whose instance the said document was scribed was

the appellant himself.

29. In the light of the above noted proved fact, the

appellant is definitely guilty of conduct which was immoral vis-a-

vis his married life. The allegations of respondent that it was on

account of his illicit relations with another lady that appellant

had started ill-treating her and also wanted her to give him

divorce, cannot be brushed aside. This fact has been

corroborated by none else but the son of the parties, who has

stated that the relations between his parents were disturbed

after his father indulged in extra marital relationship.

30. Learned counsel for the appellant has argued with

vehemence that the marriage between the parties has broken

irretrievably and hence the same deserves to be dissolved by a

decree of divorce. Reliance has been placed on the judgments

reported in 2007 (4) SCC 511, 2017(2) Civil Court Cases, 223,

2018(2) Civil Court Cases 649 and 2018(1) Civil Court Cases 328.

With due reverence to the ratio laid down in all the above cases,

the appellant cannot derive any benefit therefrom for the reason

that no such ground is envisaged under the Act and this Court

lacks jurisdiction to pass a decree of divorce on any such

grounds which does not find mention in the Act. The appellant

otherwise cannot be allowed to raise this argument on account

of the fact that he has been proved to be guilty of commission of

.

matrimonial wrong towards respondent.

31. As far as the issue of desertion, framed by learned

District Judge, Una, is concerned, it appears to be totally mis-

conceived. There were no pleadings on record to warrant

framing of Issue No.2.

32. In view of the discussion made above, the appeal

being devoid of any merits is dismissed with no orders as to

costs. Pending application(s), if any, shall also stand dismissed.

    August 06, 2021                                   ( Satyen Vaidya )
                                                            Judge


          (naveen)