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Sudesh Kaushal Vs. Darshan Bala - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 192 of 1982
Judge
Reported in1984(7)DRJ83
ActsHindu Marriage Act, 1955 - Sections 23
AppellantSudesh Kaushal
RespondentDarshan Bala
Advocates: K.B. Kalra,; A.B. Saharia and; S.M. Babu, Advs
Excerpt:
.....by the mother of the respondent that he should have taken the respondent for ,a honeymoon like other husbands including the husband of kamlesh sharma. it is well-known that a hindu wife would ordinarily not like to leave her matrimonial home unless she has special reasons for the same. it clearly shows that prior to this document, the appellant used to beat and abuse the respondent......became pregnant and on the asking of the appellant that delivery should be affected at her parents house, she was sent to her parents house on 17-9-79. a male child was born on 1-11-79 who unfortunately died on 4-1-80. the respondent again went to the house of the appellant on 4-1-80. she was abused and maltreated on the ground that the parents of the respondent had not given anything on the birth of the child and that the respondent was responsible for the death of the child. the respondent was shocked on these allegations and she tried .to satisfy the appellant in this respect but the appellant again forced her to leave the matrimonial home on 15-1-80 with the directions not to come to the matrimonial home again. the appellant thereafter went to naraina at the house of the.....
Judgment:

N.N. Goswamy, J.

(1) This appeal by the husband is directed against the judgment and decree dated 1-7-82 passed by the learned Additional District Judge, Delhi where by the marriage between the parties was dissolved by a decree of divorce in favor of the wife.

(2) The respondent wife filed a petition under Section 13(1)(ia) of the Hindu Marriage Act for a decree of divorce on the grounds of cruelty. It is alleged in the petition that the parties were married at Delhi on 10-3-78 according to the Hindu rites and ceremonies. After the marriage the parties resided together and cohabited as husband and wife- at the residence of the appellant for a week. The appellant was not satisfied with the dowry and he started maltreating, abusing and taunting the petitioner every now and then. The respondent visited her parents on or about 17-3-78. and narrated this fact to her brother and parents who pacified her that things would become normal in due course. The respondent was sent by the appellant to her parents on or about 20-4-78 to fetch money for him. She stayed with her parents for a fortnight and came back with the hope that better sense must have been prevailed upon the appellant. However, there was no change in the attitude of the appellant and he continued to abuse and maltreat the respondent. The respondent was turned out of the matrimonial home time and again for the .purpose of money and repeated demands.

(3) It is further alleged in the petition that on 25-6-78 the respondent was mercilessly beaten by the appellant and this fact was brought to the notice of the mother of the respondent by Shri Vinod Kumar Sharma brother-in-law of the respondent who used to reside in the same locality during those days. The mother of the respondent went there and in her presence the appellant again abused the respondent and asked her mother to take her away. The appellant further stated that she could not remain with the appellant unless his demands were fulfillled. The respondent was physically beaten and was mentally tortured so much so that her health started deteriorating. It became injurious for her to live with the appellant but she had been tolerating for the sake of happy matrimonial life. The appellant has also been sending letters to the respondent which show the taunting and his cruel behavior towards the respondent. The appellant also prepared a list of dowry items and told the respondent that the dowry given to him was not according to his status. The respondent became pregnant and on the asking of the appellant that delivery should be affected at her parents house, she was sent to her parents house on 17-9-79. A male child was born on 1-11-79 who unfortunately died on 4-1-80. The respondent again went to the house of the appellant on 4-1-80. She was abused and maltreated on the ground that the parents of the respondent had not given anything on the birth of the child and that the respondent was responsible for the death of the child. The respondent was shocked on these allegations and she tried .to satisfy the appellant in this respect but the appellant again forced her to leave the matrimonial home on 15-1-80 with the directions not to come to the matrimonial home again. The appellant thereafter went to Naraina at the house of the cousin of the respondent in May 1980 and he threatened to divorce the respondent in case his demands of dowry were not ful filled.

(4) The notice of the petition was issued to the appellant and he filed his written statement. In the written statement the factum of the birth and death of the child were not disputed. It was however, pleaded that the allegations regarding cruelty were unfounded. It was further pleaded that the appellant on the very first night .of their marriage had a conversation with the respondent in which he told her that enough dowry had been given by her parents and she should not except anything further from her mother or brother and should depend on the appellant for any future needs. He also pleaded that he visited the respondent's parents on 17-3-78 along with the respondent. On that date the mother of the respondent asked him to mend his ways, and habits aid she also taunted him for not taking her daughter for honeymoon to some hill station particularly in view of the fact that one Kamlesh of Shahdara a friend of the respondent had been taken by her husband for a honeymoon. The mother of the respondent further told him that he should shift his medical clinic from the village to a town so that he could also earn more like other doctors in the town. He came back while the respondent refused to accompany him to the matrimonial home. Subsequently, the respondent came to the matrimonial home on or about 2-4-79. Regarding the incident of 25-6-78 the appellant denied that he had given any beating to the respondent and/or had told her to leave the house. According to him when he came back to his house in the afternoon the respondent was going with her mother and sister along with a trunk and a suitcase and in spite of his requesting her not to go she left his house. He further pleaded that the respondent was insisting on living separately from his parents and according to her wishes he had separated from his parents on 16-6-78. The respondent having gone from the matrimonial home on 25-6-78, was brought back to the matrimonial home in October 1978. According to the alienations in the written statement he was not informed of the birth of the male child. Regarding the respondent having left the house on 15-1-80 he pleaded that he did not turn out the respondent but she went to her parents house on the pretext that she has some urgent work and that she would come back after 2 or 3 days. Since the respondent did not return to the matrimonial home he went to meet her on 28-4-80 at the Delhi Public Library, Railway Station by prior appointment. At the meeting the respondent had told him that she could stay with him provided she shifts to shahdara along with all the households and articles of business.

(5) The respondent filed her replication. She denied the averinents in the written statement and pleaded that on the very first night the appellant had pressed the respondent to ask her parents to give a Bajaj Scooter to him and a ring to his father which was not given at the time of the marriage. She further reiterated her allegations contained in the petition. She denied that she were ever keen to live separately or had asked the appellant to shift his business etc. to Shahdara.

(6) On the pleadings of the parties the learned trial judge framed the following issues.

'(1)Whether the respondent has treated the petitioner with cruelty after the solemnisation of the marriage If so to what effect (2) Relief.'

(7) The respondent had also filed an application under Section 27 of the Hindu Marriage Act where in she had claimed articles, cash, jewellery etc. This application was decided under issue No. 2 ; e. relief.

(8) The parties led oral as well as documentary evidence in support of their pleas. On consideration of the entire evidence on record, the learned trial Judge came to the conclusions that the appellant was not satisfied with the dowry and for that purpose he had been maltreating the respondent. The learned Judge further came to the conclusion that the incidents of 25-6-1978 and 15-1-1980 stood proved from the evidence on record.

(9) In this appeal I have been taken through the entire evidence on record. It is an admitted fact that there was a talk regarding dowry between the parties on the very first night of their marriage. According to the respondent-wife, the appellant had asked her that the dowry given by her parents was not according to his status and he must be given at least a scooter. However, according to the appellant, he had told his wife that her patents had given enough dowry and she could not asked for anything further. The version of the husband obviously cannot be believed, for the simple reason that there was no occasion to talk about the dowry on the very first night if the husband and his parents were satisfied with the same. From the subsequently facts, it is apparent that the plea of the respondent-wife has to be accepted. It is not disputed.that the husband went to the extent of preparing a list of dowry articles along with their value. The said list is Ex. Public Witness 6/1. The appellant has admitted in his statement that the list is in his hand, but according to him, he had prepared the same at the instance of the respondent. This story of the appellant has not been believed by the learned trial judge and in my opinion rightly. The list was admittedly prepared by him and the total was also done which come to Rs. 33.200.00 . The list was handed over to the respondent who has produced it on record. According to the respondent the list was prepared and she was asked to take it to her parents and tell them that the dowry given by them was insufficient and was not in accordance with the status of the appellant. The appellant wanted dowry worth about Rs. 1,00,000;-. In case the appellant was satisfied with the dowry there was no occasion to prepare the entire list of dowry .items along with their value and giving it to the respondent-wife. It is also an admitted fact that the appellant did not have the scooter at the relevant time and he wanted to buy a scooter. This is clear from the fact that subsequently he had purchased the scooter and has placed the necessary documents on record. The dissatisfaction regarding the dowry is further born out from the letter Ex. Public Witness 4/1 written by the respondent to her brother. In the letter, she has described her condition to be pitiable and has further stated that she is being taunted every day by her husband for bringing insufficient dowry. According to the letter, hardly a day passes when she has not to cry for the taunts given to her by her husband. She has described her condition to be pitiable.

(10) As regards the specific act of cruelty on 25-6-1978, the respondent examined P. S. Bansal as Public Witness 2, M. K. Sharma as Public Witness 3 besides examining herself, her brother and her mother. She also examined her brother in law namely Vinod Kumar Sharma as Public Witness 7. It is stated in the petition that on 25-6-78, the respondent was mercilessly beaten by the appellant and this fact was brought to the notice of her mother by Vinod Kumar Sharma, brother-in-law of the respondent who used to reside in the same locality during those days. On hearing from Vinod Kumar Sharma, the mother of the respondent went to the house of the appellant and in her presence the appellant again abused the respondent and asked her mother to take her away. This version is fully supported by Public Witness s. 2, and 3 who are independent witnesses. These two witnesses were put to very lengthy cross-examination but nothing could be brought about which would shake their testimony. According to them, they were passing from the house of the appellant and they noticed that the respondent along with an old lady were standing near a three-wheeler scooter. The appellant was abusing them and telling them to leave his house, and get lost. The old lady happened to be the mother of the respondent. These two witnesses are admittedly residing in the same locality. A suggestion was put to them in cross-examination that by were friends of Vinod Kumar Sharma, the brother-in-law of the respondent who was also residing in the same locality. This suggestion was denied by them and they stated that they did not know Vinod Kumar Sharma except for the fact that he was residing in that locality. They further stated that few months prior to their appearing.in the witness box they were contacted by Vinod Kumar Sharma who asked them whether they were present at the spot on the relevant date and time and whether they would like to appear as. witnesses since a case was going on between the parties. They stated that they had no hesitation in appearing as witnesses and tell the court what they had actually seen. Accordingly they were requested by the said Vinod Kumar Sharma to appear as witnesses. There is no further suggestion regarding their having any relations with the respondent or her relatives. It is also not disputed that they are residing in the same locality. It is further note-worthy that the incident has not been disputed by the appellant. However, his version is different. According to the appellant, when he came back to his house in the after-noon of 25-6-1978, the mother of the respondent was present in the house and she wanted to take the respondent with her. tried to stop them but the mother insisted on taking her to her house for short time. If this version of the appellant has to be believed, there is no reason why he did not inquire about her for the next four months because she admittedly returned to the house somewhere in October 1978. If the respondent had left the house without there being a quarrel there was no reason for the appellant not going to her parents house to bring her back to the matrimonial home. The appellant further pleaded in his written statement that on 25-6-1978 when the respondent went with her mother certain neighbours namely Bua Singh, Jumna and Arvind were also present at the spot and they had seen the respondent going with her mother. However, for reasons best: known to the appellant he produced only Bua Singh as a witness and did not examine the two other neighbours, who according to him, had seen the respondent going with her mother. Bua Singh has appeared as Pw 4. He deposed that he knew the parties and he had also attended their marriage. He further stated that about 3 months after the marriage, the respondent along with a lady left the house of the appellant in a rickshaw and they also .took along with them a trunk and suite-case. The appellant as also his mother requested the respondent not to go. In cross-examination her stated that he did not know as to why the respondent was going and he was told later that the old lady accompanying the respondent was her mother. He also admitted that he was on visiting terms with the appellant and he denied the suggestion that he was deposing falsely and had in fact ' seen nothing. I have carefully considered the evidence of this witness and I am of the opinion that he being the neighbour and a friend of the appellant has only tried to support the appellant. On consideration of the entire evidence, I do not find any error with the findings recorded by .the learned trial judge that the respondent was treated with cruelty on 25-6-78 and turned out of the house.

(11) Regarding the general acts of cruelty, the appellant has admitted that soon after the marriage, the respondent had gone to her parents house. He went to meet her on 19-3-78. The mother of the respondent had asked him to behave properly and further according to the appellant he was asked by the mother of the respondent that he should have taken the respondent for , a honeymoon like other husbands including the husband of Kamlesh Sharma. The said Kamlesh Sharma has appeared as Public Witness 1. She deposed that she was married on 31-3-1978. She was not cross-examined by the appellant. Thus the story of the appellant that he was taunted by his mother-in-law for not taking the respondent for honey moon, is baseless. The question of Kamlesh Sharma having been taken for honey moon by her husband on 19.3-78 did not arise because she was married on 31-3-78 i.e. after the alleged date. The further case of the appellant is that the respondent always insisted on living separately from the parents of the appellant and for this reason there was unpleasantness in the house. He has further admitted that he had separated from his parents on 16-6-1978. He having separated there was hardly any ground for the respondent to leave the matrimonial I home on 25-6-1978, particularly when her demand for living separately had already been met by the appellant. There is no other suggestion as to why she did not want to live with her husband. It is well-known that a Hindu wife would ordinarily not like to leave her matrimonial home unless she has special reasons for the same.

(12) In September 1979 admittedly the respondent was at an advance stage of pregnancy. According to the appellant, she wanted to go for the delivery to her brother's house and on 17-9-79 she was left by the appellant at her parent's house for the purpose of delivery. The child was born on 1-11-1979. This fact was known to the appellant that the child was expected on or around the said date. In spite or this, he never went to meet the child. The child unfortunately died on 4, 1980. In that date, the appellant was called to the house of the respondent's parents. After the death of the child, the respondent went to back to her matrimonial home on the same date. It is further the case of the respondent that she was ill-treated soon after she reached the house of the appellant. The appellant taunted her for not bringing the gifts which should have been given by her parents on the 10th day of the birth of the child. He also started blaming the respondent for the death of the child on the ground that she and her parents were responsible for the same Such nagging and taunting continued, according to the respondent up to 15-1-1980 and finally she was again turned out of the house on 15-1-1980. The statement of the respondent on this aspect inspires confidence and cannot be disbelieved. It is a very serious thing to blame the mother for the death of her child without there being any rhyme or reason. The fact that the appellant used to treat the respondent with cruelty is also born out from the document Ex. Public Witness 6/2. This document is in the handwriting of the appellant and the appellant has admitted the same. It is stated in the document that henceforth I shall neither beat nor abuse the respondent. It clearly shows that prior to this document, the appellant used to beat and abuse the respondent. The Explanationn of the appellant regarding this document is that he had executed this document at the instance of the respondent with they were living happily in the matrimonial home. This Explanationn obviously cannot be believed because if they were living happily there was no occasion to execute such a document. The document was executed obviously with the purpose of getting the respondent back after she refused to go back until an assurance was given to her that she will not be ill-treated. In spite of executing this document, the appellant as is clear from the material on record, continued to ill-treated her with a view to getting further dowry.

(13) The only other contention of the learned counsel for the appellant was that the respondent having lived and cohabited with the appellant up to 15-1-1980 had condoned the previous acts of cruelty. Firstly it has to be mentioned that no such plea was taken in the written statement or before the learned trial judge, secondly merely because the respondent has lived with the appellant for about 10 days, does not amount to condensation, particularly when it is clear from the evidence on record that even during these days she was taunted and accused for the death of the child. Assuming that the previous acts of cruelty were condoned by living together for these ten days, the acts are immediately revived when further acts of cruelty are committed. As I have found that the appellant continued to treat her with cruelty during these days also. The condensation, if any, disappears because of the subsequent acts and the previous acts stand revived.

(14) As regards the decree on the application under Section 27 of the Act, the same is based on the admissions contained in the list Ex. Public Witness 6/1. It was not disputed by the learned counsel for the appellant that the articles for which the decree was granted were joint of the parties. Exception was taken only to one item and i.e. cooker for which a sum of Rs. 2000.00 has been awarded. It was conceded by the learned counsel for the respondent that there was no admission in the list regarding the cooker and as such this sum of Rs. 2000.00 has to be deleted from the decretal amount.

(15) For the reasons recorded above, the decree of dissolution of marriage under Section 13(1)(ia) is maintained. However, the decree regarding the amount awarded for the dowry articles is modified to the extent that a sum of Rs. 2000.00 awarded for even is deleted. The rest of the decree is maintained. The respondent would be entitled to her costs. Counsel's fee Rs. 500.


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