Narender Paul vs. Pushpa Devi

FAO(HMA) No. 128 of 2020 Reserved on : 04.09.2024 Decided on: 24.09.2024 Sh. Narender Paul .…Appellant Versus Smt. Pushpa Devi …Respondents Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Ankush Dass Sood, Senior

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Ajay Mohan Goel, Judge (Oral)
For the respondents	:	Mr. Ajay Kumar, Senior Advocate<br>with Mr. Rohit, Advocate.
		Advocate with Mr. Vivek Negi,<br>Advocate.

By way of this appeal, the appellant has challenged the judgment and decree dated 31.12.2019, passed by the Court of learned District Judge, Kinnaur at Rampur Bushehr, in terms whereof, the petition filed by the appellant under Section 13(1)(ia)(ib) of the Hindu Marriage Act for dissolution of marriage by way of decree of divorce has been dismissed.

2. Brief facts necessary for the adjudication of the present appeal are that as per the appellant, the marriage between the parties was solemnized as per the Hindu rites and customs in the

1 Whether reporters of the local papers may be allowed to see the judgment?

year 1996. After marriage, the parties cohabited at different places but mostly at Rampur. No issue was born out of the wedlock. Both the parties were in government job and used to reside at their respective places of posting. According to the appellant-petitioner (hereinafter to be referred as the 'petitioner') , the respondent within 2-3 days of marriage was having problem of uterine bleeding which he took to be normal, but when the problem persisted, he got the respondent medically checked up in the Hospital at Kullu as also at Rampur. The respondent did not disclose to the petitioner that she was having this problem even before her marriage. The petitioner took good care of the respondent and continued her medical treatment. The petitioner also got the respondent checked up at IGMC, Shimla and in General Hospital at Chandigarh. Thereafter, in the year 2004, the petitioner and respondent went to Chandigarh Diagnostics Centre and in the year 2010, at Chandigarh Fertility Centre, but there the doctors opined that respondent was not having sufficient ovaries and she could not conceive. According to the petitioner, the factum of having a baby was not a sine quo non for the married life but the respondent asked the petitioner to get himself medically examined to humiliate him. She never showed any respect to the efforts made by the petitioner towards her treatment rather she

remained indifferent and never bothered to care about the petitioner and most of the time, she was more concerned about her mother's well being. Respondent never showed any interest in the household activities and used to complain of being tired and exhausted. She was in the habit of bringing her office work home and ask the petitioner not to disturb her. The petitioner was also asked to cook food by the respondent and her behaviour was noncooperative with the petitioner. With the passage of time, she became more violent and quarrelsome and she used to take up quarrels on petty matters. Thereafter, in April/May, 2011, the respondent without informing the petitioner got herself transferred to a school near her parental house. He made several efforts to persuade the respondent to come back but in vain. In the month of March, 2012, father of the petitioner went to the parental house of the respondent and requested her to come back but she arrogantly refused. Again in the month of June 2013, the petitioner, his father as well as other tried to bring her back to matrimonial house but their efforts yielded no results. The respondent did not allow the petitioner to have physical relations with her. As the respondent willfully neglected the petitioner and deserted him for more than three years, hence the petition.

3. The stand of the respondent before learned Court below was that the contentions that were raised in the divorce petition were absolutely false. She was not having any history as alleged of excessive uterine bleeding. She was hale and hearty lady. It was incorrect that immediately after her marriage, she was having problems with regard to uterine bleeding as alleged. As per the respondent, in the year 1997, she became pregnant but there was a miscarriage. In the year 2002, she became pregnant but unfortunately again there was a miscarriage. False averments stood made in the divorce petition about the medical condition of the respondent. She was taken to the hospital only when she suffered the miscarriage. Even her medical check-up revealed that she was pretty normal. It was further her stand that it was the petitioner and his family members who were harassing and torturing her either to give written consent to second marriage to the petitioner or to dissolve the marriage. Both the petitioner and his father pressurized her to agree for divorce. The petitioner was having intimacy with a colleague of his and it was he who got her transferred from Rampur to Nither and he never visited the respondent nor allowed her to visit his residence. It was further her case that the relationship between the parties got strained after the petitioner developed intimacy with his colleague. In order to reconcile the matrimonial relationship, she asked the petitioner to allow her to live with him in the matrimonial house but the petitioner threatened her with dire consequences. The aim of the petitioner was nothing but to seek divorce from her so that he could contract a second marriage.

4. On the basis of pleadings of the parties, learned Court below framed the following Issues:-

"1. Whether the respondent-wife has treated the petitioner-husband with cruelty, as alleged? OPP 2. Whether the respondent-wife has deserted the petitioner-husband since April, 2011, as alleged? 3. Whether the petition is frivolous, vexatious and mala fide, as alleged? OPR

4. Whether the motive of the petitioner to file the present petition is to remarry and to disinherit the respondent from ancestral and self acquired property, as alleged? OPR

5. Whether the petition is liable to be dismissed on account of omissions and commissions of the petitioner, as alleged? OPR

6. Whether the petitioner has no cause of action to file the present petition, as alleged? OPR.

7. Relief.

5. On the basis of evidence led by the parties in respect of their respective contentions, the Issues so framed were decided by learned Tribunal as under:-

Issue No. 1	:	No.
Issue No. 2	:	No.
Issue No. 3	:	No.
Issue No. 4	:	No.
Issue No. 5	:	No.
Issue No. 6	:	Yes.
Relief	:	Petition is dismissed as per<br>operative part of the judgment.

6. Learned Court below after taking into consideration the stand of the petitioner as well as the evidence led by the parties, held that the petitioner has failed to prove the factum of cruelty, mental or physical and had also failed to prove that respondent had deserted him without any reasonable cause. While arriving at the said conclusion, learned Court took note of the deposition of the petitioner, who entered the witness box as PW1. Learned Court held that in the course of his cross examination, the petitioner stated that the parties resided together in Rampur till the year 2011 in government accommodation which was allotted to him. He also stated that at the same time, he also remained posted as Warden of Scheduled Tribe Hostel at Rampur. He also admitted that one Ms. Sangeeta was posted there as an Associate Professor, however, he denied that he developed intimacy with said lady. He admitted that the respondent was promoted while she was posted at Nither school and also admitted that in November 2014, she was transferred to GSSS, Rampur. He also admitted that he was residing Pipti in his own house in the year 2014. He admitted that in the year 1997, respondent became pregnant and in the month of December, 1997, she suffered miscarriage. He also admitted that he never went to the house of the respondent to bring her back nor issued any notice to her in this regard. Learned Court further held that PW2 Gulab Singh entered the witness box to support the case of the petitioner, who was a part time worker in Government College, Rampur and he stated that when he used to visit the house of the petitioner, it was the petitioner, who used to prepare tea and food etc. and the husband and wife used to reside in different rooms under same roof. He also stated that the respondent did not use to do any work nor was she having good relations with her husband. In his cross examination, he deposed that he used to work in the hostel from 6.00 am to 8.00 am and from 5.00 to 6.00 p.m. in the

evening. He also deposed that parties were residing in one house at that time and he did not know what kind of relations they were having. He also admitted that he was called by the petitioner to give evidence in his favour and petitioner used to help him monetarily as and when he required money.

7. Sh. Sadh Ram, father of the petitioner, entered the witness box as PW-3 and in his cross examination, he admitted that he was told that respondent was pregnant during the year 2004-2005 and thereafter, he was informed by his son in the year 2007, that the respondent cannot become a mother. He denied that he was pressurizing the respondent to give divorce.

8. PW4 M.L. Bansal, was the bother in-law of the petitioner and stated that the respondent was suffering from medical issues as narrated by the petitioner and petitioner left no stone unturned to have her cured.

9. On the other hand, the respondent appeared in the witness box as RW-1. She denied the allegation of the petitioner and deposed that the petitioner developed intimacy with one Sangeeta. She denied that she has ever treated the petitioner in cruel manner but it was the petitioner who wanted divorce from her.

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10. Smt. Sewa Dassi, entered the witness box as RW-2 and deposed that the respondent was pregnant twice but she suffered miscarriage. She also stated that respondent was not suffering from any disease before her marriage.

11. Chaman Lal RW3 stated that he had suggested the parties to adopt a child but the petitioner had not agreed for the same. Learned Court thereafter went on to hold that the instances of cruelty, as were narrated by the petitioner, were basically associated with the fact that the respondent was suffering from excessive uterine bleeding, that she was quarrelsome, she was not doing any household work, she was levelling false allegation upon the petitioner of having an affair with Ms. Sangeeta and the respondent was not allowing the petitioner to maintain physical relations with her. Learned Court held that cruelty for the purposes of the Hindu Marriage Act means where one spouse has not treated the other and manifested such feelings towards other so as to have inflicted bodily injury or have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. The evidence led by the petitioner in this regard was general in nature and no specific evidence was led by the petitioner to demonstrate that the respondent has treated him with cruelty. Learned Court also held

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that parties were married in the year 1996 and till the time the petitioner came to know that the respondent could not bear a child, relations between the parties were normal. It appeared, as was evident from the evidence, that it was only after the petitioner came to know that the respondent could not bear a child, that the relations between the parties became strained. Learned Court also held that the respondent was a working woman and PW2 was engaged to cook food and prepare tea etc. This did not amount to cruelty. It also held that the evidence on record demonstrated that the respondent was resisting the relationship of the petitioner with his colleague and this had also affected the relationship between the parties. Learned Court also held that the petitioner had not taken steps to reconcile the matter with the respondent and the breakdown of the marriage was more at the behest of the petitioner rather than on the side of the respondent. Learned Court also held that as far as issue of refusal to maintain physical relations was concerned, the parties were married in the year 1996 and they enjoyed the married life till 2011. It may be due to several factors such as age, physical inability etc. that the parties were not having physical relations but this fact alone could not be construed to be an appropriate act of cruelty. Learned Court also held that it clearly stood proved on record that the respondent had

become pregnant twice but there were unfortunate miscarriages on both the occasions and as the miscarriage took place in the year 2007, there was no occasion for the parties to adopt a child in the year 2003. Learned Court also held that in case the respondent was to reside at a separate place than that of her husband on account of her work, the same could also not be termed to be a cruelty. On these bases, learned Court dismissed the petition.

12. Feeling aggrieved, the husband has filed this appeal. Learned Senior Counsel for the appellant has submitted that learned District Judge has miserably misread and mis-appreciated the evidence on record from which it was apparent and evident that the petitioner was treated with both physical and mental cruelty by the respondent. He further submitted that it is apparent and evident that the disease of the respondent was concealed from the petitioner at the time of marriage and further as the respondent had deserted the petitioner without any valid and cogent reason, the petition ought to have been allowed and the findings to the contrary returned by learned Court below are not sustainable in the eyes of law. Learned Senior Counsel also submitted that the allegation of infidelity levelled against the petitioner by the respondent itself amounted to cruelty and

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therefore also, learned Court erred in not granting divorce in favour of the appellant. No other point was urged.

13. On the other hand, learned Senior Counsel for the respondent has submitted that there is no infirmity in the findings returned by the learned District Judge. He submitted that a perusal of the judgment demonstrates that the learned District Judge has at length dealt with the respective stand of the parties as well as the evidence led by the parties and on correct appreciation thereof, the petition has been rightly dismissed. He submitted that the petitioner miserably failed to prove that he was meted out any cruelty by the respondent as alleged. On the contrary, it also stood proved that to gain divorce, false and frivolous allegations stood levelled against the respondent in the petition, which the petitioner was not able to prove and therefore, as the judgment passed by learned Court below was on the basis of material as was before the Court, the same does not call for any interference.

14. I have heard learned Senior Counsel appearing for the parties and also gone through the record of the case as well as the judgment passed by the learned District Judge.

15. I have already dealt with hereinabove with regard to the respective stand of the parties and the findings returned by the learned District Judge on the issue. Record demonstrates that in order to prove his case, the petitioner has examined four witnesses, including himself, whereas the respondent has examined three witnesses, including herself. I have also carefully gone through the statements of the all the witnesses, more so, the cross examination part thereof. A perusal of the cross examination of the petitioner demonstrates that he admitted therein that till the year 2011, the parties stayed in the government accommodation which was allotted to him and at the relevant time, he was the Warden of the hostel concerned. He also stated in his cross examination that he never visited the paternal house of the respondent to reconcile the matter with the respondent. He also admitted that the respondent was promoted in the course of her employment. He admitted that the respondent was pregnant in the year 1997 but unfortunately miscarriage took place, though, he denied that thereafter the respondent had again become pregnant. He also stated that he neither went himself to call the respondent to reside with him nor he sent any notice etc. to this effect. PW2 in his cross examination, stated that he was a part time employee in the Government College, Rampur and he used to work in the house of the petitioner and used to prepare tea and food etc. there. He admitted that he was asked by the

petitioner to appear as a witness for him and the petitioner used to help him monetarily. He also stated that the parties used to reside together in the house. PW3 Sadh Ram, father of the petitioner, in his cross examination self stated that he was told about the pregnancy of the respondent in the year 2004-05. He further stated that it was in the year 2007 that his son informed him that respondent could not become a mother. PW4 happens to be the brother-in-law (Jija) of the petitioner. He stated that the couple stayed together till the year 2011 and amongst them, small disputes used to take place. Therefore, a harmonious reading of the evidence that was led by the petitioner before the learned Court below demonstrates that the main allegation which was levelled by the petitioner against the respondent that the respondent had a medical condition which was not disclosed to the petitioner before marriage, was not proved by him by leading any cogent evidence on record. Not only this, the allegation of his that the petitioner was not disclosed about the medical condition of the respondent and that the respondent was not able to bear a child on account of said medical condition, was also found to be incorrect averment because it is evident from the statements of the petitoner's witnesses, including that of the petitioner and his father that the respondent was pregnant but unfortunately, each time, she had a miscarriage. Even the allegation of cruel treatment of the petitioner or his family members has not been proved by the petitioner by leading cogent evidence to demonstrate a single occasion on which such kind of treatment was meted out to him or his family members by the respondent. The alleged desertion by the respondent has also not been proved by the petitioner as it stands proved that the respondent was a working lady, obviously, she had to put up at the places where she was posted, more so after her promotion. Not only this, the petitioner in the course of his cross examination had admitted that he did not make any endeavour to bring the respondent back to his house, which proved that the averments to the contrary in the petition were completely incorrect and concocted. On the other hand, a perusal of the statements of the respondent's witnesses and their cross examination, including that of the respondent, it could not be elucidated there from by the petitioner that there was any desertion of the petitioner by the respondent or that the respondent in fact had treated the petitioner with cruelty, either physical or mental, or that she was suffering from some medical condition, which was concealed from the petitioner before marriage. The stand of the petitioner that the allegation of infidelity itself amounts to cruelty, can also not be accepted in

view of the fact that the petitioner in his cross examination did admit that the lady, who was named by the respondent, was indeed posted in the same College in which the petitioner was posted, as a Co-warden at the relevant time. Besides this, the divorce petition had been filed by the petitioner by referring false allegations, which he was not able to prove in the course of proceedings that took place before learned District Judge because it was the husband who had dragged the lady to litigation under Section 13 of the Hindu Marriage Act. Learned Court below was primarily to see as to whether the husband had made out any case of cruelty or not. Having carefully gone through the evidence as well as findings returned by learned District Judge, this Court is of the considered view that the learned District Judge has rightly held that the petitioner was not able to prove the case of cruelty as was alleged by him in the divorce petition. This Court concurs with the findings returned by the learned District Judge that none of the grounds of cruelty as alleged by the husband were proved before the learned District Judge by leading cogent evidence. The allegations of cruelty were general in nature and more so, a concocted version rather than something concrete as the petitioner did not lead any evidence to prove any of the allegations.

Therefore, in view of above observations, as this Court does not find any infirmity with the findings returned by learned Court below and further as this Court does not find any merit in the present appeal, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.

(Ajay Mohan Goel) Judge

September, 24, 2024 (narender)