Charanjit Talwar, J.
(1) By this common Judgment I propose to decide F.A.O. No. 244 of 1979 filed by Smt. Kiran Kapoor challenging the decree of divorce granted under section 13(1)(ia) of the Hindu Marriage Act, in favor other husband Surinder Kumar Kapoor, respondent herein, and also the Gross-objections (C.M. 351 of 1980) filed by the husband urging that he is also entitled to the same relief on the other grounds which have been rejected by the trial Court.
(2) Surinder Kumar Kapoor originally filed a petition under section 10 of the Hindu Marriage Act locking judicial separation on 20th May, 1976. During the pendency of that petition on the amendment of the Hindu Marriage Act (hereinafter called the 'Act') vide Act No. 68 of 1976, the petition was sought to be amended to one under section 13(l)(ia)(ib)(iii) of the Act. The amendment was allowed vide order dated 6th January, 1978. After trial, the petition has been granted on the ground that the wife has treated the husband with cruelty. Thus, the marriage between the parties solemnised on 13th August, 1974, was dissolved.
(3) In the petition several instances , cruelty were alleged. Apart from the ground of cruelty, decree of divorce was sought on two further grounds, i.e.(l) on the ground of desertion fora continuous period of two years under sub-section (ib) of section 13(1) and (2) that the wife was suffering from mental disorder.
(4) The wife had resisted the petition and totally denied the allegations of the husband. Her case was that the instances of cruelty enumerated in the petition were incorrect and imaginary ; that she had never deserted the petitioner or that she was suffering from any mental disorder. Her defense was that the husband had asked her to arrange the sum of Rs. 10,000.00 from her parents ; on her inability to arrange the funds she had been deserted by the husband. In spite of a number of requests made to him to take her back, he had refused to do so.
(5) On the pleadings of the patties, the following issues were framed :-
1. Whether the respondent had indulged in act of cruelty upon the petitioner, as alleged in the petition OPP. 2. Whether the respondent has deserted the petitioner, without any reasonable cause and excuse, as alleged OPP. 3. Whether the respondent suffers from occasional mental disorder and puts up abnormal behavior giving rise to reasonable apprehension on the part of the petitioner that his living with respondent would be unsafe to him? Opp 4. Relief '
(6) At the outset it may be noted that issue No. 2 was not pressed before the trial court. Mr. Jaspal singh, learned counsel for the husband, while urging the cross-objections, did not press the allegation that the appellant-wife suffered from occasional mental disorder. I may also note that issue No. 3 which covered this allegation has been decided against the husband by the trial Court.
(7) thereforee, the finding of the trial Court on issue No. 1 remains to be analysed.
(8) It is appropriate at this stage to notice the instances of cruelty which, according to the learned trial Court, have been established by the husband.
(1)The wife has completely deprived the husband of sexual relationship. She had declared on the third night of the marriage that she would have no sexual connection with him at all unless he shifted to Ghaziabad; (2) that accompanied by other persons she had visited the factory where the husband worked she threatened that she would have him dismissed from service. She further declared that she would have him killed; (3) that the wife was of irritable nature and foul of tounge. On one occasion had had matched the wrist watch from the hand of the husband on the ground that it was given to him by her parents and as such he had no right to use the same ; (4) that the wife had refused to prepare tea for a friend of the husband, Narain Dass, PW7, when he visited them , (5) that she refused to wash handkerchief of the husband, and (6) that she maligned the husband by submitting a petition. Exhibit Rw 1/1 to the Lt. Governor containing scandulous allegations regarding demand of dowry.
(9) In case the instances mentioned at items 1, 2 and six above are correct, no doubt those come within the purview of mental cruelty as per the law laid down in Dastane v.Dastane, : 3SCR967 . The third, fourth and fifth allegation by themselves, in my view, are not at all sufficient to establish the case of mental cruelty. The allegations of cruelty which were not established but are being pressed in the cross-objections by the husband are :-
(1)that the wife made attempts to commit suicide. (2) that the wife had 'questionable affairs' or 'objectionable relationship' with some other men. (3) that the wife believed in witch craft.
The defense of the appellant wife was that it was the husband who had turned her out as her parents were unable to meet his demand of Rs. 10,000.00 . The case sought to be made out by Mr. Makhija, learned counsel for the appellant is that the husband is trying to take advantage of his own wrong.
(10) The wife's version that her husband had abused her and her mother in August, 1975, in her house at Ghaziabad, was not believed. While rejecting the case of the wife, the learned trial Court has laid emphasis on the fact that she maligned the husband by filing a petition dated 28th July, 1976, Exhibit Rw 1/1, to the Lt. Governor of Delhi wherein scandulous allegations regarding demand of dowry etc. were leveled against the husband. The fact of the filing of the said petition has been held to be an instance of cruelty.
(11) As noticed above, the first ground found against the appellant is that she had completely deprived the husband of sexual relationship. As per averment in paragraph 5 of the amended petition, the husband's case was
'HEhas not been able to enjoy married life because of denial of sexual intercourse by the respondent to the. petitioner, who made the shifting of petitioner to Ghaziabad as a condition precedent to sexual relations and declared so on the very 3rd night after marriage. The respondent was adament to shift to Ghaziabad and the petitioner later came to know that the respondent was having questionable affairs with some persons at Ghaziabad. There has been mental torture to the petitioner by the acts and behavior of the respondent.'
(12) The above pica is in two parts, namely, first the denial of sexual relations and secondly that the respondent was adamant to shift to Ghaziabad as she was having 'questionable affairs' with some persons there. The case put up is that on the third night of the marriage .the wife made it a condition precedent for sexual intercourse only if he shifted to Ghaziabad. In support of this allegation the respondent while appearing as Public Witness 1, has inter alia, stated thus:
'THErespondent told me on the 3rd night that in case I want to have sexual relationship with her I will have to shift to Ghaziabad and dispute started on this. Since that day there has been no sexual relationship with the respondent. Later on I came to know that the respondent was having illicit relations with some persons at Ghaziabad.'
Further, in the second paragraph in his examination-in-chief the husband has stated:
'ON3.1.75 and 7.7.75 when I tried to have forcible sexual intercourse, the respondent attempted to commit suicide.'
In his cross-examination the very first sentence runs thus :
'Ihad only once sexual intercourse on the night of 14th August, 1975, with the respondent'. ('This date ought to read as '14th August, 1974'. It seems to be a typographical mistake):'
The wife in her statement stated that for about a year after the marriage the parties were having sexual relations.
(13) On appraisal of the evidence on this aspect of the case the learned trial Court based his conclusion on a suggestion put to the husband and held 'A persual of the statement of Public Witness I Surinder Kumar shows that it was suggested to him that the respondent felt annoyed only when the petitioner wanted to have forcible intercourse. This goes to show that it has been admitted by the respondent that whenever the petitioner wanted to have intercourse, the respondent felt annoyed.'
(14) The reasons for coining to the finding that there was a complete denial of coitus between the parties are given in paragraph 19 of the Impugned judgment. It is stated 'the respondent has no where made--a positive assertion that she was enjoying sexual life with the petitioner. She has simply contended herself by denying the averments made in the plaint. Thus the statement of the. respondent in her averment on oath that she used to 'have sexual relation with her husband during her 15 days stay at the house of the petitioner cannot:be taken into consideration.'
(15) In my view, from the pleadings which appear to be defective and the evidence on record this finding of the learned trial 'Court cannot be upheld.:
THEhusband has unambiguously admitted that at least once he had sexual intercourse. The suggestion, to the husband in his cross-examination that the wife used to feel annoyed whenever the husband forcibly attempted to have sexual intercourse with her, cannot be read .to hold that 'whenever the petitioner (husband) wanted to have intercourse, the respondent felt annoyed.'
(16) The above reasoning of the trial Court that the wife was not enjoying sexual life With the petitioner, cannot be made the; basis for the conclusion that there was complete denial of coitus. The husband has riot 'averred in the pleadings the-' ground of complete denial of coitus. His evidence also does not suggest that he never had sexual relations 'with' his wife. On the other hand, the wife has affirmatively averred in the pleadings and has said so on oath that the parties were having sexual relationship which they were to gether at the husband's house in Delhi for about 15 days''
(17) The reasons given by the learned trial Court for its finding that there was complete denial of sexual relationship between the. parties, do not appear to be sound. The preponderance of probabilities is otherwise. Possibly what was meant by the husband was that though marriage was consumated, yet he was deprived-of-further sexual relationship as the wife wanted him to shift to Ghaziabad as a condition precedent for allowing, that relationship. However, the further case in his pleadings-and in his statement on Oath is that she wanted to shift because she had questionable affairs with some persons at Ghaziabad.
(18) At this stage that allegation in the petition alleging 'questionable affairs' of the wife with other persons may be noticed. This averment long with the allegation of denial of sexual intercourse have been clubbed together in the pleading. The husband during his exmination in-chief stated that his wife was, having: 'objectionable relationship with other persons in; Ghaziabad.' In cross-examination he stated she was having illicit relationship. Thus, it is clear that he was alleging matrimonial offence which if proved entitles him to a decree of divorce on this groud under section 13(1)(i). In support of this plea of 'illicit relationship' although not specifically taken in the pleadinges as required under the law, he stated on oath that once at Ghaziabad Railway Station he heard a boy saying 'hello' to his wife. When questioned, the wife said that the boy was her class fellow. This according to him showed that wife was having an affair with that boy. The second instant of 'questionable relationship' which the husband gave was that he once found his wife talking to a male in a room while the door was closed. This he found at Ghaziabad at the house of the wife's parents. According to him, on opening of the door which was not bolted he found the man sitting in a chair while his wife was standing nearby. That man, he was told, was a tenant in that very house. This evidence in no way can be said to establish that the wife was having any illicit relationship or objectionable relationship as stated by the husband. This sems to be a wild allegation and has rightly been ignored from consideration by the trial Court.
(19) Now let me advert to the allegation of threats of the of the wife given by her to the husband in the factory. The wife has admitted the visits but has denied the allegation that she threatened the husband ; she denied having said that she would have him killed or that she would sec that he is dismissed from service.
(20) In support of this allegation the husband produced Vijay Malhotra (Public Witness 6) who was also working in the same factory, namely, M/S. Atul Glass, at Faridabad. According to him the wife came to the factory in his presence once during lunch time along With a man. This witness averred 'That man called the petitioner whereupon the respondent said that she would have the petitioner dismissed and would have him killed. She came once again along with 3/4 persons to the factory when the petitioner was in Poona. At that occasion she warned that the petitioner should be cautioned and for how long he will keep on running.' In cross-examination it was brought out that this witness was a senior supervisor in that factory. He stated that he did not report the incident in writing to his officers. He denied the suggestion that he was making the statement merely in support of a false case set up by the husband. He further stated that as he was senior to the petitioner (husband) as such was he not on 'much speaking terms' with him.
(21) In examination-in-chief the wife as Rw 1 admitted that she had visited the factory of the petitioner two or three times to persuade him to keep her and that on one of the occasions it was the husband who told her that this matter should be discussed at hil house and not in the factory. premises. She had thereafter gone to his residence at Delhi from the factory There is thus complete denial by the wife about the threats having been given by her to the husband. She further denied that whenever she went to Faridabad, i.e., to the fectory of the husband she was accompanied by bad characters. She, however, admitted in her cross-examination that on the first occasion when she went to the factory S/Shri Madan Lal and Asa Nand had accompanied her. Both these persons have been produced by the wife, as her witnesses.
(22) Madan Lal is RW2 and Asa Nand is Rw 5. They have not deposed about their accompanying the wife to the factory, Madan Lal was produced in support of the defense that an amount of Rs. 10,000.00 had been demanded by the husband after the marriage and that the husband was very greedy. RW5 Asa Nand was produced in support of the allegation that he had made efforts for a compromise between the partics.
(23) Mr. R.K. Makhija, learned counsel for the appellant-wife urged that PW6 Vijay Malhotra was a partisan witness and ought not be believed, particulaly so when he had not reported the matter in writing to the senior officers. According to the learned counsel if the said threat to get the husband killed had in fact been given, the husband would have reported the matter to the police. As noticed above, learned Additional District Judge has held that the version of the husband is correct. I do not find any reason to disagree with that finding. It is the wife's case that on one of the occasions when she visited the factory of the husband, he asked her not to talk about the differences between them, in the factory premises but to discuss it privately. The visit having been admilted the version given by Vijay Malhotra (Public Witness 6) could have been disproved by the persons who had accompanied the wife to the factory. Those two witnsses, Madan Lal and Asa Nand, do not say anything about this matter. The evidence of Vijay Malhotra, thereforee, cannot be rejected solely on the ground that he did not make a report in writing about the incidence. It has to be assessed on its own merits.
(24) Mr. Makhija submitted that even if the evidence of Vijay Malhotra is accepted, the wife, as she had legitimate grievance, was well within her right to inform the husband in the factory premises while pleading to be taken back that she would report him to his senior officers. It is urged that it is unbelievable that a Hindu wife would threaten her husband to be killed. The only fact which can be inferred from the evidence of the parties on this aspect of the case, relating to the visits of the wife to the factory of the husband, Mr. Makhija submitted, is that her repeated entreaties having not yielded any result, she had in desperation threatened to report against him to his superior officers. As this aspect of the case has bearing on the decision of this case, I will refer to it again while analysing the defense of the wife.
(25) So far as the allegations enumerated above in sub-paragraphs 3, 4 and 5 (at page 4) are concerned, viz., irritable nature of the wife, or she refused to prepare tea for a friend of the husband or that she had snatched the wrist watch from the hands of the husband, I do not think that individually or collectively these allegations amount to mental cruelty. The three instances even if assumed to be correct, only show that the wife is a little headstrong. In my view, these instances do not take the case of the husband any further. By themselves these allegations cannot be made the basis for granting a decree of divorce. The three instances only show that there were differences between the parties and because of that reason those instances which are otherwise trivial have been highlighted. Even in the present day so-called modern life, a taunt by the wife or her refusal to wash the handkerchief, or her refusal to prepare tea, are not matters which can be considered amounting to mental cruelty. In my view, these instances have been unnecesarily highlighted. I am ignoring, them as in law those do not amount to cruelty.
(26) The fact of the submission of petitioner, Makhija Rw 1/1, to the Lt. Governor by the wife which contained serious charges against the husband, may now be considered. This petition dated 28th July, 1976, runs into two pages typed in single space. She has given the details of the items of dowry which were presented by her parents and also stated that about Rs. 10,000 were given in cash at the time of the marriagei. There after it was stated that her husband as also her-in-laws were greedy and were always waiting her to arrange more money from her parents. The crux of the complaint was that her husband used to beat her mercilessly on her failure to arrange for more money. She was kicked out of the house in the night at about 11 p.m. and in spite of her repeated requests the door of the house was not opened. She further stated 'I am being treated like an animal and have also got apprehension to my life from the side of my husband and inlaws. I have left all hopes of my life if no timely intervention is made by authorities.' Accordingly, she requested the authorities to save her; her apprehension was that she was going to be killed.
(27) As noticed above, the learned trial Court has considered the allegations contained in this petition as scandulous and has held that these allegations amount to mental cruelty. The argument of Mr. Makhija, however, is that the said representation contained true facts and in any case the wife was provoked into. making that petition. The husband, it is submitted, did not leave her any other course. Having intentionally deserted her he cannot take advantage of his own wrong. These submissions need to be examined. .
(28) With the assistance of the learned counsel for the parties I have gone through the entire pleadings and evidence on the record, In the written statement there seems .to be a suggestion that if Rs. 10,000.00 were not paid by the wife's parents,. dire consequences such as threats of bodily injury to the wife were likely to follow. This is also one of the allegations in the above-said petition to the Lt. Governor. On the aspect of bearings having given to. the wife, the husband was cross-examined but no suggestion was put to him that he had ever threatened to kill her. Further, there was no suggestion that she had been turned out of the house in the manner as alleged. Even in her own deposition in examination-in-chief, she did not allege that her husband had ever threatned to kill her. Her case was that she was given beatings because she could not meet the demands of her husband.
(29) It is obvious that in her petition, Ex. R.W. 1/1, the wife had exaggerations ; she complained without any Cogent reasons that there was a threat to her life from her husband. There is no evidence in support of the allegation regarding the threat to her life. The authorities could well have initiated serious action against the husband which would have landed him in trouble. It appears that even on this petition (R.W. I/I) proceedings under Sections 107/150 of the Code of Criminal Procedure were taken against the husband. The Sub Divisional Magistrate however after recording the statement of the wife and other witnesses discharged the husband vide his order dated 7th July, 1977.
(30) thereforee, the finding of the trial Court that the allegations contained in Ex. R.W. 1/1 are scandulous are to be upheld. No wife has any right to level such a serious charge against her husband merely because her marriage had almost broken. Whatever be the differences the conduct of the wife in making this unfounded charge against the husband cannot be overlooked in this case. The husband could have ignored it but once he makes a grievance of it, the Courts have to take cognizance of this fact. The trial court, thereforee was right in coming to the conclusion that these un unfounded scandulous allegations as contained in Ex. R.W. 1/1 amount to mental cruelty.
(31) Seen in this light, the evidence of Vijay Malhotra (Public Witness 6) assumes significance. He stated that the wife had threatened to have her husband dismissed from service and also have him killed. I accept the testimony of this witness. His evidence read together with. petition Ex. R.W. 1/1, clearly brings out that the wife was attempting to put the husband in grave difficulties. That her efforts failed is of no consequence.
(32) The further submission that the wife was provoked into making these allegations is also not supported by any evidence on record. She says that she was turned out of the house in the middle of the night and deserted by the husband. She is not wanting divorce on that ground. The ground, however, is being made the basis to contest the petition only. As noticed by me above, it was not her case in the pleadings or evidence that she had been threatened to be killed by the husband. Assuming for the sake of argument that the wife was deserted on the ground of demand of dowry and was also given bearings so as to pressurise her to meet the demand, does it give a right to the wife to make unfounded serious charge regarding threat to her life? I may note here that the copies of the representation (Ex. R.W. 1/1) submitted to the Lt. Governor were also sent to other high Government officials and some political functionaries. The allegation made against the husband in that petition has been found to be baseless. In her evidence, as noticed above, she did not even allege this threat to her life. I further find that it was the wife who had threatened the husband with dire consequences at his factory. These averments cannot be condoned merely on the ground that the husband was in any case at fault. It is true that a husband who had deserted his wife cannot complain that he has no access to her or that she is not looking after him. As such he cannot file a petition for divorce on the ground that his wife had deserted him. That would amount to taking advantage of his own wrong. But such is not the position in the instant case. He did not provoke her into making the above-said two allegations which are obviously wrong. The plea taken on behalf of the wife is, thereforee, misconceived.
(33) I am satisfied that the wife by making these allegations had exceeded her right to protest against the alleged high handedness of her husband and his family. As far as this aspect of the case is concerned it cannot be said that the husband is taking any advantage of his own wrong.
(34) The judgment of the trial Court as regards its findings on the two instances of cruelty, discussed above, has, thereforee, to be upheld.
(35) In view of my discussion above the plea of the husband in C.M.. 2166 of 1980 that events subsequent to the passing of the decree which show further grounds of cruelty need not be considered.
(36) Now, the plea of the husband in cross-objections (C.M. No. 351 of 1980) that he is entitled to the decree of divorce on other grounds also may be noticed. The impugned judgment shows that there were as many as 11 instances of cruelty alleged by the husband. Learned trial Court granted degree while accepting only six of them. I have ignored., from consideration three of the instantces. The averment of the husband that the wife believed in witch-craft and once she bad intentionally mixed ash in the pudding or that she was an abnormal girl and used to laugh without any rhyme or reason; or that she tried to burn her clothes and threatened to commit suicide and that she did not care for the comforts of the husband and was disobedient have, in my view, been rightly rejected aa these picas are not borne out from the record.
(37) Accordingly, the decree of divorce passed by the trial Court is affirmed but only on the grounds which have been accepted by me above. The appeal and the cross-objections both fail and are hereby dismissed C.M. No .2166 of 1980 is also rejected.
(38) The parties are left to bear their own costs.