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Harbhajan Singh Monga Vs. Amarjeet Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 48 of 1983
Judge
Reported inAIR1986MP41
ActsHindu Marriage Act, 1955 - Sections 13
AppellantHarbhajan Singh Monga
RespondentAmarjeet Kaur
Appellant AdvocateR.G. Waghmare and ;R.R. Waghmare, Advs.
Respondent AdvocateK.P. Bhargava, Adv.
DispositionAppeal allowed
Cases ReferredN. G. Dastane v. S. Dastane
Excerpt:
.....was making-grounds of extracting more money from the defendant's father. he is fairly well off financially though possibly not as affluent as his father-in-law is, but this by itself is no ground for the inference that he is dower hungry. shri waghmare submitted that the respondent wife complained to the bank authorities about certain alleged frauds committed by the husband. and this concession is available to the family members, which is available for husband, wife and children, what the plaintiff appellant appears to have done while availing that concession possibly is that visited nanded a place of sikh pilgrimage in maharashtra, he had taken his sister, well to the knowledge of the respondent wife and on this basis the trial court has concluded 'this shows the conduct of the..........that if a wife slaps her husband and as in the instant case it stands proved according to the learnedcounsel, would it not amount to cruelty. he has invited attention to the statement of p.w. 1 para 8 of the judgment wherein he has categorically stated that his wife slapped him on 27-2-79 and admonished him not to trouble her in the night. this statement has been made by the plaintiff, while describing the sexual relationship between the parties. it is in this context that the statement needs appreciation. the trial court approaches this statement with reference to the letter ex. d1, and negatives this fact as not to be found in the letter ex. d1.19. the court further says that it has not been pleaded that every instance, of cruelty is not required to be pleaded. the context in.....
Judgment:

V.D. Gyani, J.

1. This appeal under Section 28 of the Hindu Marriage Act is directed against the order dt. 22-4-83 passed by the Additional District Judge, Ujjain in Hindu Marriage Case No. 3A/82 dismissing the appellants suit for divorce. The appellant and the respondent came of affluent families. The appellant is serving in a Bank. The respondent daughter of a businessman from Bhawani Mandi (Rajasthan). She is a graduate from Vanasthali near Jaipur. They married on 25-2-79. After the marriage they lived together till Sept., 1979 and thereafter the respondent left for her parental home and joined the appellant in July, 1980 and was blessed with a child. On or about 19-11-80 the respondent left the appellant.

2. The appellant filed a case for divorce on the ground of cruelty. The instances of cruelty attributed against the respondent are :

(a) Disobedience,

(b) Refusal to cook,

(c) Insulting to appellant in presence of others.

(d) Ill-treating the appellant including beating.

(e) Threatening the appellant to commit suicide.

(f) Refusal to render any service and

(g) Refusal of cohabitation and

(h) not allowing access in the house and

keeping the appellant waiting outside the house for hours. All these instances, and circumstances, the appellant alleged lead their matrimonial life unhappy, as these instances according to the appellant, constituted cruelty. The respondent resisted the petitioner's claim and on the other hand pleaded certain facts, which constitute cruelty against her. The appellants examined himself and other witnesses including Surendrapal Singh, Gurubachansingh, Dr. V. P. Mungi, Iqbalsingh and Rajendra Singh Kang. The respondent examined himself and Ramcharansingh, Narendersingh, Dharampalsingh. The appellant's claim for divorce was dismissed by the Trial Court on the ground that the appellant failed to establish cruelty. Hence, this appeal.

3. Shri Waghmare learned Counsel appearing for the appellant, has referred copious passages from the judgments and also the statements of witnesses and contended that cruelty in the instant case has been amply established so as to entitle the appellant to a decree for divorce. He has strongly placed reliance on two stands that the appellant husband was slapped by his wife, the respondent in presence of his friends and according to the learned counsel this fact by itself is sufficient to constitute cruelty. The other fact that the learned counsel has strongly relied upon is to keep the appellant, outside the house making him wait for long periods, on his return from the Bank is extremely humiliating situation which also goes to constitute cruelty entitling the appellant to a decree for divorce. Shri Bhargava learned Counsel appearing for the respondent has pointed out two such instances, tracking through the numereous letters, has argued that if there was any cruelty it was not to the husband appellant but to the respondent wife, but at this stage this Court is not considering the grant of any relief to the respondent as she has not approached the Court for any relief. The precise question which falls for consideration is whether on the basis of the facts as proved, the appellant is entitled to any relief, in case 'cruelty' is proved against him. In this connection Shri Waghmare appearing for the appellant submitted that the Trial Court appears to have been inclined in favour of the respondent wife but that is not so, may be a stray sentence here or there in the judgment gives this impression. But the judgment if readas a whole, does not merit such a criticism.

4. The Trial Court has enumerated instances of cruelty in paragraph 9 of the judgment :

(i) Whether wife is of bad temperament. She is adamant, thinks high of herself and low of the plaintiff and plaintiffs members of the family.

(ii) She insults the plaintiff and the members of the plaintiffs family. Thus, whatever she likes tortures the plaintiff.

(iii) On the date of marriage the plaintiffs brother-in-law had purchased a bottle of Beer and while it was held by plaintiffs cousin the wife snatched it and threw it away.

(iv) The wife refused to help in making plaits and folding his Turban.

(v) The wife used to insult the petitioner by saying that even her father's servants had better standard of living.

5. The respondent wife refused to clean the dining table and insisted for servants and in order to insult the appellant asked him to clean the table himself and prepare tea as well.

6. At times she refused to cook with the result, that the appellant had to go hungry to his office.

7. At times the wife would not open the door of the house and the plaintiff had to keep standing for about half an hour.

8. The respondent wife would not permit the appellant husband to sleep with her saying that he was not worthy of even picking her chappals. The respondent wife invariably threatened to commit suicide involving the appellant husband and his family members in criminal case so as to ruin them.

9. Cohabitation was ordinarily a difficult thing if at all it could be done it was at the behest of the wife respondent. She was never soft and affectionate. The appellant's desires were never honoured. As a result of the bad temperament and treatment meted out the appellant suffered from Hyper-tension and high blood pressure. The learned Counsel appearing for the respondent while taking through the documents, the letters, submitted that in these letters Ex. D1, D2, D3, D4, D5, D6, D7, D8, D9, D11 and D12 no such behaviour is complained of. So far as the question of holding out threats to commitsuicide is concerned, the Trial Court had disbelieved the same as the plaint itself is silent on this aspect of the matter but Shri Waghmare, learned Counsel for the appellant submitted and discarded the allegation as an afterthought. But it is to be noted that this is not justifiable. This cannot be said to be a justifiable approach when the fact of holding out threats to commit suicide is found in the notice Ex. P1, issued prior to the filing of the suit and para 5 thereof clearly states that such threats were held out by the respondent wife. The Trial Court was, therefore, clearly wrong in discarding the allegation as an afterthought.

10. Paragraph 28 and paragraph 35 of the Trial Court's judgment deal with this question of holding out threats of committing suicide. In paragraph 28 the learned Judge of the Trial Court has disbelived this allegation mainly on the ground that the letters, referred to above do not contain any reference to suicide although it was very serious matter. The Trial Court further notes that the fact has come by way of an amendment in the plaint which after the plaint was presented in Jan, 1981 while the amendment was done on 29-4-82 after the commencement of evidence. Thus, the learned Judge concludes 'this can be taken as an afterthought and makes a strong case of cruelty against the defendant and in this respect I must accept the evidence laid by the defendant and reject the evidence made by the plaintiff. As stated above paragraph 5 of Ex. P1 the notice contains a categorical statement about the threats of suicide and implicating the plaintiff appellant and his family members in a criminal case as the notice contains a pointed-out reference to the threat. It cannot be said that the allegations of holding out threat of committing suicide was an afterthought on the part of the plaintiff appellant. Although at the very outset of this paragraph 28, the learned Judge says that the evidence should be objectively appreciated but while so appreciating the very vital point has been missed by the learned Judge. The learned Judge also says in his judgment para. 28 that he had taken-up the pleadings with this aspect of the matter first because this was one of the main reasons why the plaintiff was seeking the divorce. So far as the letters referred to by the Trial Court are concerned, suffice it to say that they cannot be read out ofcontext and these letters written on different occasions, on different names, it cannot be expected that holding of such threats should have found a mention in the letters Exs.D1 to D12.

11. For these reasons it is established that the defendant respondent held-out threats of committing suicide. It is needless to add that such threats constitute cruelty.

12. Shri Waghmare learned counsel appearing for the appellant submitted that the approach of the Trial Court, in appreciating the evidence adduced by the parties was not proper. The plaintiff appellant has been viewed as one who was after dowry. In this connection it would be pertinent to refer to paragraph 44 of the judgment wherein the learned Judge has concluded ''that the plaintiff appellant was blowing hot and cold all the while to extract money from his father-in-law whom he thinks to be very rich.' To meet this end he had made-out this false case of cruelty against the defendant. Having failed in his pursuit he has come forward to fight his false case against the defendant and he must be condemned for his conduct. Now this conclusion arrived at by the Trial Court, appears to have been raised on certain observations or inferences which the Court has drawn from the plaintiffs pleadings. In paragraph 14-iii the Court as further observed while dealing with the question of dowry, that looking to the plaintiffs version, it can be said that very little was given to the plaintiff during the marriage. The Court further adds 'Almost pointed-out once again that the plaintiff has made a hallo of the status of the defendant's father from the beginning as is evident from plaint para 2'. Shri Waghmare learned Counsel submits that reading the plaint as a whole and the evidence adduced by the parties, there is no justification for drawing such an inference against the plaintiff appellant. It is submitted that the statements contained in plaint para should be judged in the light of all the attending circumstances of the case and not in isolation thereof. This proposition cannot be disputed. The plaintiff has tried todays (sic) facts constituting cruelty, by trying to show the behaviour indulged in by the defendant respondent, and such behaviour, to be appreciated in the background of her father's financial position and status in life. There isno cogent evidence arrived at to aforesaid conclusion as the Trial Court did. It may again be pointed out that while dealing with the letter Ex.D1, a letter dt. 7-5-1979 it merely contains an expression of appellant's dislike for the respondent. The Court in an attempt to probe for marrying the respondent, in face of the dislike expressed in D1 posed a question as to what was the reason for marrying the defendant whom he never liked right from the beginning and the answer given by the Court to this question is 'was it the wealth of the defendant's father which has illusioned him because he was expecting much more dowry from the defendant's father or he was making-grounds of extracting more money from the defendant's father. This view of the Trial Court does not appear to be wholly justifiable although it is again suggested by the Trial Court on the basis of a stray sentence in the plaintiffs statement before the Court that he knew his value and demanded Rs. 50,000/-.

13. The Court came to the conclusion that the plaintiff-appellant was out to extract money. The sentence relied upon by the Trial Court reads as :--

^^eSus viuh ifRu ;k vius llqj ls dHkh ;g ekaxugha dh fd eSa T;knk is 2'&'O]OOO :i;k vkSj ns nsA**

There is absolutely no scope for the inference drawn by the trial Court on reading such a sentence in juxtacity with the letter Ex. D1 as also the statements of S.W. 1 Amarjeet Kaur and D.W. 4 Dharampal Singh. No doubt these witnesses in their statements have stated that Rs. 25000/- to 50,000/- were demanded by the plaintiff appellant but the suggestion has been repelled by the appellant in his cross-examination. Therefore, to say that he was out to extract money, is not justifiable.

14. The Trial Court has further observed in paragraph 24 of the judgment while considering the effect of Ex. D2, the Trial Court again poses a question why such a harsh and insulting letters had been written by the plaintiff and the answer given is 'the only answer that can be is that the under-current was entirely different have already been pointed out that the petitioner was auctioning himself and wanted Rs. 25,000/- to 50,000/- and for this end he was playing one game or the other.

15. This line of approach on the part of the Trial Court, to search for the under-currentline under the letters, does not seem to be proper. These, letters if read in proper context, they do not even remotely suggest that he was out to extract money from his father-in-law. The plaintiff is an Officer in the Bank drawing about Rs. 1800/- per month. He is fairly well off financially though possibly not as affluent as his father-in-law is, but this by itself is no ground for the inference that he is dower hungry.

16. The same erroneous approach, is adopted by the Trial Court while interpreting the effect of the letter Ex. D5.

^^chjth vki tks cM+s usrk dks vkSjrks dh rjgckrfpr djrs 'kksHkk ugha nsrk ;fn vkidks ckrfpr djuh gh gS rks enksZ dh rjg vkdjvkeus lkeus cSBdj ckr fdft,A**

formulating certain questions the Trial Court poses a question does it not mean that the plaintiff was preparing his mind to directly demand money from the defendant's father because his indirect efforts were proving futile. Such an inference cannot be deduced from the above statement. At any rate, it cannot be the only reason, may be that it is attributable to his militant nature which in the present set of circumstances appears to more probe. Thus, the whole reasoning of the Trial Court revolves around the theory of extracting money, it is not borne out from the evidence as it stands in the case.

17. The learned counsel appearing for the appellant has submitted that the incompatibility of temperament between the spouses and the extrencities, instances of which have been enumerated above cumulatively constitute cruelty against the husband. The Trial Court while considering the question of cruelty has given prominence to the appellant's acts as against the respondent, overlooking for a while that it is the plaintiff appellant, who has come to seek a relief. The respondent wife does not seek any relief. It is not to suggest that her case should not have been considered. She is also entitled for consideration so as it goes to negative the claim advanced by the plaintiff husband. But the judgment if read as a whole, gives an impression as if the relief sought was not by the plaintiff husband but by the respondent wife.

18. The learned Counsel submitted that if a wife slaps her husband and as in the instant case it stands proved according to the learnedcounsel, would it not amount to cruelty. He has invited attention to the statement of P.W. 1 para 8 of the judgment wherein he has categorically stated that his wife slapped him on 27-2-79 and admonished him not to trouble her in the night. This statement has been made by the plaintiff, while describing the sexual relationship between the parties. It is in this context that the statement needs appreciation. The Trial Court approaches this statement with reference to the letter Ex. D1, and negatives this fact as not to be found in the letter Ex. D1.

19. The Court further says that it has not been pleaded that every instance, of cruelty is not required to be pleaded. The context in which the statement has been made, should have been appreciated in its true perspective. So far as the question of pleading is concerned, suffice it to say that in paragraph 10 of the plaint the appellant has placed sufficient facts about the matrimonial relationship, in which context slapping occurs.

20. The other point submitted for consideration by the learned Counsel for the appellant is that the respondent wife treated the appellant and his family members with disrespect. She would speak low of them in termsas such as rqe esjh pIiy mBkus ds Hkh dkchu ugha gks-

As though the appellant was not worthy of picking up her chappals. If this is the way of behaviour on the one hand as borne out from the evidence and the claim advanced by the respondent wife to have been bred and brought-up in an atmosphere of truly Indian culture, as she is a graduate of Vanasthali, it is difficult to see how a lady bred and brought-up in true Hindu traditions would be so disrespectful to her husband and her in-laws. The instant case referred to in this connection by the learned Counsel, is that the respondent refused to help the appellant in folding plaits of his turban and tying the same, any sick women for that matter would possibly take pride in rendering such help but such is not the case here. The other instance is asking the husband to clean the dining table in presence of his friends. The trial Court, has referred to boils developed by the defendant in doing house-hold work. Making all concessions, still it is not mere refusal to do a particular household work, but it is the occasion and the manner in which it is refused which will result in mental torture and not as an isolated act. Inthe series the appellant's Counsel also submitted that she would keep her husband waiting outside the doors on his return from the office, at times for half an hour, if it is a regular feature and as in this appears to be, this also amounts cruelty and the total effect of all these instances, cannot but be cruelty to the person who is subjected to such a treatment.

21. In paragraph 37 of the judgment the Trial Court has observed even assuming that the defendant had not properly behaved with the plaintiff and the members of the plaintiffs family, he is equally responsible for all this for he was very cruel to the defendant right from the beginning as is evident from letter Ex. D1 and he never cared about the condition of his , wife due to pregnancy and boils. The carelessness on the part of the husband, even if appreciated as an ancillary circumstance, although the trial Court has given up due prominence to it, it cannot be inferred from the letter Ex. D1 as it is, similarly the Trial Court in the same paragraph has brushed aside all these allegations as trifling saying :

'But even assuming the allegations to becorrect firstly they are trifling matters andsecondly in view of the defendants condition,mere probe is required to find out why thedefendant was disobedient to the plaintiffscommand.'

What is termed as trifling, at times in matrimonial life take a serious turn. It is not as much a question of disobedience as shown in the record of the husband, asking him to clean the dining table and wash the dishes in presence of his friends, showing disrespect to the family members, to the extent of slapping the plaintiff husband. They cannot be brushed aside as mere trifles. The totality is so-called trifles, constitute cruelty to the husband.

22. There is yet another aspect of the whole matter. Shri Waghmare submitted that the respondent wife complained to the Bank Authorities about certain alleged frauds committed by the husband. Paragraphs 38 and 39 of the trial Court's judgment deal with this aspect of the matter. The allegation of forgery made against the plaintiff husband is that he had withdrawn certain amounts deposited in the name of the defendant by making her forge signatures such an allegation if proved to be true, would have resulted in the plaintiffs dismissal from service. However, the Trial Court belittles it by saying that it was misconceived on some facts and has further sought support from facts that the plaintiff had used bank letter pads, envelopes for his personal correspondence. Technically speaking this may possibly amount to some offence but is it expected of a wife to make a complaint about all these things to the employers. There is another grievance which the respondent wife has made, it is a matter of common knowledge, that the bank employees get certain concessions and benefits for travelling with the family known as L.T.C. and this concession is available to the family members, which is available for husband, wife and children, what the plaintiff appellant appears to have done while availing that concession possibly is that visited Nanded a place of Sikh Pilgrimage in Maharashtra, he had taken his sister, well to the knowledge of the respondent wife and on this basis the Trial Court has concluded 'this shows the conduct of the plaintiff that he can deceive the bank and mis-use the stationary of the bank. If the defendant in fact wanted the plaintiff to be put in trouble or the defendant wants to put him in trouble there is sufficient material for doing so.' Thus, certain allegations against the plaintiff in respect of withdrawing the amount by deceiving means should not be taken very seriously. The matrimonial cause is not to be converted into a criminal trial. What was more important is the nature of complaint made by the defendant wife and the consequences likely to result therefrom. If such a conduct is indulged in and as in this case it is amply proved to have been indulged in by the defendant wife, then it certainly amounts to cruelty towards the husband irrespective of the trifling nature of the allegations or the fact that the employer bank has not pursued the same but it certainly points to cruelty indulged in by the respondent towards her husband.

23. Shri K. P. Bhargava learned counsel appearing for the respondent submits that this is not a case of physical cruelty and on the basis of the facts as proved the mental torture or agony, required for constituting cruelty is also not established, if at all it is cruelty towards the respondent wife much then the husband appellant. The learned counsel has referred to paragraph 6 of the judgment for basing thisargument. He has also submitted with reference to para 20 of the plaint that from July to Nov. 1980 the parties have lived together and assuming for a while that any such act or acts, indicated above even if committed the spouses having lived together results in condonation of the acts complained of. The learned counsel has also referred to certain omissions as regards these acts in the plaint or in the notice or the letters Exs. D1 to D12. They have already been discussed above.

24. Both the parties have placed heavy reliance on Dastane's case. The learned Counsel has referred to the instances of throwing of a beer bottle by the respondent wife which according to the learned Advocate was quite natural for a girl brought up in the Indian cultural atmosphere at Vanasthali, and also the refusal to help in tying the turban, even if held to have been proved stands condoned by the appellant's actions. As regards the threat of committing suicide the learned Counsel vehemently argued that its omission in the plaint as originally filed, goes to disprove the allegation, but as stated above the fact is contained in the notice, and, therefore, it cannot be discarded as an afterthought.

25. Cruelty has not been defined in the Act. However, as held by the Supreme Court in N. G. Dastane v. S. Dastane, AIR 1975 SC 1534 (1535) harm or injury to health, reputation, the working career or the life would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. It is also not necessary, as under the English Law that the cruelty must be in such a character as to cause danger to life, limb or health as to give rise to a reasonable apprehension of such a danger. It is also held by the Supreme Court that the decree of proof required for cruelty under the Hindu Marriage Act is not a proof beyond reasonable doubt which generally governs criminal trials. It has also been held in Dastane's case that a threat by the wife to her husband that she will put an end to her own life or that she will make him loose his job or persistent abuses and insults at the husband, these are all factors which harm and imperil the mental happiness, job satisfaction and copulation of the husband. Viewed from this angle, the appeal deserves to be allowed and is accordingly allowed and the judgment and decree of the Trial Court is set aside.

26. There is no escape from the conclusion that there is no chance or possibility of any conjugal harmony restored between the parties. Reading the evidence as a whole the irresistible conclusion which falls is that by incompatibility of temperament the respondent wife can no more live together with the appellant. Although she has all along maintained that she does not wish to separate herself from her husband but reading the evidence as a whole, the conclusion cannot be escaped that the marriage has broken down irretrievably and, therefore, deserves to be dissolved.

27. The cross-objections preferred by, the respondent on 29-9-83 stand rejected.

28. Taking a totality of view of the evidence on record the incompatibility of temperament to the two spouses virtually rendering conjugal harmony as impossible. The inevitable course is to separate the two quarrelling parrots if they cannot live together in the same cage. Dastane's case has been strongly relied upon by both the parties and following the principle laid down therein this appeal deserves to succeed, it is accordingly allowed. The judgment and decree of the trial Court is set aside. The appellant is entitled to a decree for divorce on the ground of cruelty and the same is granted. The marriage between the parties stands dissolved. A decree for divorce be passed accordingly.

29. The appellant shall pay alimony Rs. 500/- as maintenance allowance to the respondent wife and Rs. 200/- per month to the son, as has been observed by the Trial Court in paragraph 6 of the impugned judgment. There is already an order to this effect under Section 125 Cr. P.C. This impugned order is just and reasonable, keeping in view the facts and circumstances of the case.


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