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Amarjeet Singh Vs. Bhagwati Devi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 134 of 1979
Judge
Reported in1982(3)DRJ131; 1982RLR156
ActsHindu Marriage Act, 1955 - Sections 13(19)
AppellantAmarjeet Singh
RespondentBhagwati Devi
Advocates: B.P. Gupta and; R.K. Sharma, Advs
Cases ReferredSmt. Bijoli Choudhwy v. SukomalChoudhury
Excerpt:
.....allegations contained in the written statement cannot be made the basis for the grant of a decree of divorce. - - the appellant has appeared as public witness 2. but after reading the entire evidence, i find that he has failed to prove any ground of divorce against the respondent- wife. alice peters 1976 rlr 28, it has been observed that if a divorce petition on the ground of adultery does not contain time and place of the commission of adultery, it must fail. these four facts must be clearly proved before a decree of divorce can be granted (see :bipinchandra jai singh bai shah v. mere failure of the police to take action on reports does not mean that the reports made by the respondent were false. thus the petitioner is a man of weak moral fibre and an embodiment of total..........april, 1979 dismissing the petition of the appellant-husband for dissolution of his marriage by a decree of divorce under section 13(1), (i)(ia)(ib) of the act. briefly, the facts are that the: marriage between the parties was solemnised according to the hindu rites on 21st june, 1961 at village bharthal, delhi. the parties after marriage resided at village rewari, khera (district rohtak), haryana and lived together for a period of about ten years. the parties have one son, one daughter and another child born on 1st may, 1975. one more child born from marriage had died after birth. the appellant-husband used to reside in the village without any source of income. in august, 1968 he got an employment as a constable in the delhi police. the husband shifted to delhi. the respondent-wife, it.....
Judgment:

Sultan Singh, J.

(1) This first appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') is directed against the judgment and decree of the Additional District Judge dated 7th April, 1979 dismissing the petition of the appellant-husband for dissolution of his marriage by a decree of divorce under Section 13(1), (i)(ia)(ib) of the Act. Briefly, the facts are that the: marriage between the parties was solemnised according to the Hindu rites on 21st June, 1961 at village Bharthal, Delhi. The parties after marriage resided at village Rewari, Khera (District Rohtak), Haryana and lived together for a period of about ten years. The parties have one son, one daughter and another child born on 1st May, 1975. One more child born from marriage had died after birth. The appellant-husband used to reside in the village without any source of income. In August, 1968 he got an employment as a Constable in the Delhi Police. The husband shifted to Delhi. The respondent-wife, it is alleged, refused to live with the parents of the appellant in the village and she went to her father's house. The wife filed the petition for maintenance under Section 488 of the Code of Criminal Procedure in Feb., 1973 while the husband filed a petition for judicial separation on the ground of cruelty under Section 10 of the Act in March, 1973. Both these proceedings were, however, compromised on 16th May 1973. The husband withdrew his petition for judicial separation and the wife withdrew her application for maintenance. The husband, however, in the compromise petition for maintenance admitted that the wife never treated him with cruelty. According to the husband, the wife deserted him in June, 1973 while according to the wife she was given beatings by her husband on 12/13th February 1974 and at about 12.30 O'clock at night, she was thrown by him on the main road of village Bharthal and since then she has been living with her father. The wife lodged a report with the police station, Najafgarh Road, on 12th/13lh' February, 1974. The husband has alleged that the wife has been cruel to him, that she deserted him in June, 1973, that she had voluntary sexual inter course with any person other than him and that she gave birth to a child on 1st May, 1974. The wife on the other hand denies the allegations of the husband and asserts that the last son was the result of cohabitation between the appellant and the respondent. She denies that she ever deserted him or treated him with cruelty. The trial court dismissed the divorce petition on all the grounds.

(2) Learned counsel for the appellant submits that the respondent-wife had voluntary sexuality course with any person other than the appellant and she gave birth to a child on 1st May, 1974. He submits that in June, 1973 the wife had separated and deserted the husband and there was no occasion for any cohabitation between the two and thereforee the child born on 1st May, 1974 was on account of voluntary sexual intercourse by the wife with a third person. His next submission is that the respondent deserted the appellant for a continuous period of more than two years preceding the presentation of the divorce petition. He submits that the respondent deserted the appellant in June, 1973 while the present petition for divorce was filed on 25th August, 1977. He submits that the desertion by the wife was without his consent and without any cause on his part. Lastly, he submits that the respondent treated the appellant with cruelty. His case is that in August, 1972, the wife made a false report against him to the police, that she made an application on 9th February, 1974 before the Surpanch and that she sworn an affidavit before a Magistrate on 11th February, 1974 to the effect that she had obtained divorce from the appellant that she could not live with him, that they were not husband and wife and that she had no claim against him. He further says that on 13th February, 1974 the respondent-wife again made a false report to the police against him. The husband had made an allegation of adultery against the wife in the petition for divorce and the wife in the written statement alleged that the husband was most spendthrift, debauch and a depraved type of criminal, that he promiscuously indulged in drinks and prostitution and was found making obscene overtures towards innocent girls of the street. On these allegations contained in the written statement the learned counsel for the appellant submits that the ground of cruelty stands proved against the respondent-wife. Counsel for the parties have read the entire evidence before me. The appellant has appeared as Public Witness 2. But after reading the entire evidence, I find that he has failed to prove any ground of divorce against the respondent- wife. He has not deposed any fact or circumstance about the alleged sexual intercourse by her with any third person. He was not deposed that son born on 1st May, 1974 was not from him. He has also not deposed any fact constituting the ground of desertion. He has only deposed that the wife left him in June, 1973. As regards cruelty also, besides general allegations, nothing has been deposed by him. The respondent wife on the other hand has deposed that she never deserted him, that on 11th February, 1974 she was taken to Rohtak where the appellant and his mother obtained her thumb-impression at various blank papers after giving her a beating, that she never misbehaved with him, that she never put her thumb-impression on any application before the Surpanch or any affidavit before the Magistrate. She has specifically stated that the child born on 1st May, 1974 was on account of her cohabitation with the appellant. Hukam Chand, father of the respondent also appeared as a witness and supported the respondent-wife. Public Witness 1 Sant Ram Taneja, Advocate who is an attesting witness of the affidavit dated 11th February, 1974 has deposed that he identified the respondent before the Magistrate but in cross-examination he admitted that he did not know the respondent-wife earlier. Umed Singh appeared as Public Witness 3 and has deposed that the respondent wrote an application Ext. Public Witness 3 to the Surpanch and that he directed her to seek divorce from the court.

(3) A single act of voluntary sexual intercourse by wife with any person other than her spouse is a ground for a decree of divorce under Section 13(1)(i) of the Act as amended by Act 68 of 1976. In the present case the allegation of the appellant-husband is that the wife has been living separate from him since June, 1973 and she gave birth to a child on 1st May, 1974 and thereforee it must be held that the wife had voluntary sexual intercourse with a third person. The appellant in his petition for divorce has not given any particulars of the alleged act of adultery. He has not imp leaded as a party the alleged adulterer. The Hindu Marriage (Punjab) Rules, 1956 framed under Sec. 21 of the Hindu Marriage Act, 1955 are applicable to instant divorce petition. Rule 4 of the said Rules requires that all petitions of divorce shall state the matrimonial offences charged setting separate paragraphs with the times and places of their alleged commission. Rule 6 requires to give particulars of the acts of adultery alleged to have been committed by the respondent and Rule 10 of the said Rules further requires that adulterer be imp leaded as a party. On certain grounds the petitioner may with the permission of the court be excused from impleading the adulterer. The appellant-husband never sought any permission for not impleading the alleged adulterer. On the allegations contained in the divorce petition I find that the alleged act of adultery has not been properly pleaded. Moreover there is no evidence on record in support of the alleged allegation. Sec. 112 of the Indian Evidence Act provides that the birth of a child during the marriage is conclusive proof of legitimacy unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been together. There is no evidence on behalf of the appellant that they had no access to each other. On the other hand, the respondent-wife has deposed that she cohabited with the appellant as a result of which she gave birth to a child on 1st May, 1974. In Emmanuel S. Peters v. Alice Peters 1976 RLR 28, it has been observed that if a divorce petition on the ground of adultery does not contain time and place of the commission of adultery, it must fail. Rule 4 (VII) of the Hindu Marriage (Punjab) Rules requires the petitioner to mention the time and place of the alleged matrimonial offence. Nothing has been proved by the husband and thereforee t he ground of adultery fails.

(4) To prove the charge of desertion against the respondent the appellant was to prove (i) Intentions of desertion, (ii) factum of desertion, (iii) want of consent, (iv) want of reasonable cause. These four facts must be clearly proved before a decree of divorce can be granted (See : Bipinchandra Jai Singh bai Shah v. Prabhavati : [1956]1SCR838 . There is no evidence on record that the respondent wife even intended to desert him. On the other hand the evidence conclusively proves that on 12th/13th February, 1974 the husband gave a beating 'and threw her on the main road of village Bharthal at about 12.30 O'clock at night. From the evidence it stands proved that the respondent wife did not go to her father's house of her own accord but she was forced to do so by the appellant. It is correct that she has been living with her father since February, 1974 but for this separation, the appellant is responsible. was he who gave a beating to her and threw her on the road from where she went to her father's house. The ground of desertion thereforee also fails.

(5) Lastly the divorce is claimed on the alleged ground of cruel treatment of the appellant by the respondent. Learned counsel for the appellant submits that the police reports made by respondent-wife in August, 1972 and February 1974 were false. There is no evidence on record to that effect. The respondent- wife when threatened and beaten made reports to the police. But it appears that the police did not take any action. Mere failure of the police to take action on reports does not mean that the reports made by the respondent were false. The contents of the two police reports have not been proved on the record. Moreover on 16th May, 1973 there was a compromise between the parties in proceedings for maintenance under Section 125 of the Code of Criminal Procedure initiated by the respondent-wife. The appellant-husband in the compromise petition dated 16th May, 1973 admitted that the respondent- wife did not treat him with cruelty before that date. Under these circumstances it cannot be held that making of report to the police amounts to cruelty entitling the appellant to a decree of divorce.

(6) Learned counsel for the appellant emphatically argues that on account of false allegations made by the respondent in her written statement, the appellant is entitled to a decree of divorce on the ground of cruelty. His argument is that the allegations contained in the written statement are false and frivolous and they amount to an act of cruelty against the appellant. Learned counsel relies upon para (i) of the Additional pleas contained in the written statement dated 3rd December, 1977. This para reads as under :-

(I)Actually, the petitioner was found by the respondent to be most spendthrift, debauch and a depraved type of criminal. He promiscuously indulged in drinks and prostitutions, and sometimes he did not come to the house at all, and sometimes, he came at objectionable hours in the dead of night dead drunk, and on being objected even by neighbours, rowdy scenes to the annoyance of the neighbours were created by him. He was found making obscene overtures towards innocent girls of the street On account of this reason, the petitioner felt ashamed for his misconduct, and he had to change one home after another. Thus the petitioner is a man of weak moral fibre and an embodiment of total vices.

(7) The reply of the .husband contained in the replication to this para reads as under:-

'PARA(1) of Additional pleas is wrong and denied. The will allegations made in this para against the petitioner do not require any proof of cruelty by the respondent against the petitioner. The allegations itself are sufficient to prove that the respondent had always been trying to defame this petitioner and has always treated the petitioner with cruelty. The allegations in this para are sufficient enough for dissolution of marriage and decree for divorce.'

(8) Learned counsel for the respondent-wife in reply submits that an allegation of alleged cruelty in the written statement against the petitioner in a petition for dissolution of marriage by a decree or divorce cannot be the basis for the grant of relief. He submits that the petitioner has to allege and prove the grounds of divorce in his petition. In 'the alternative he submits that the allegations in the written statement as reproduced above are true which have not been denied by the appellant and thereforee he cannot claim a decree on the basis of these allegations. His argument is that Order 8 Rules 3, 4 and 5 of the Code of Civil Procedure provides that denial must be specific and if it is not the allegations shall be deemed to be accepted by the appellant. Reply on behalf of the appellant as contained in the replication does not specifically deny the allegations of the respondent-wife made in the written statement. He thereforee submits that these allegations are deemed to be admitted by the appellant under Order 8 Rule 5 of the Code of Civil Procedure. On a reading of the replication,I am of the view that there is no specific denial by the appellant of the allegations made by the respondent in the written statement and thereforee the allegations of the respondent shall be deemed to be admitted by the appellant. Otherwise also I am of the view that an allegation made in the written statement cannot be the Eases for the grant of a decree of divorce. If the appellant wanted to claim divorce on the allegation made in the written statement he ought to have made the same a part of his petition of divorce by amendment or otherwise in accordance with law. The appellant-husband has not done so, and thereforee he is not entitled to a decree of divorce on the allegations made in the written statement. The relevant portion of Section 13(1) of the Act reads as under :-

'13(1)Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty ; or (ib) has deserted the petitioner for a continuous period of not less than two years preceding the presentation of the petition.'.

(9) Sections 20 and 21 of the Act read as under :-

'20(1)Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and, except in a petition under section 11, shall also state, that there is no collusion between the petitioner and the other party to the marriage.' (2) The statement contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plants, and may, to the hearing, be referred to as evidence. 21. Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908'.

(10) Rules under section 21 of the Act were framed on 22nd November, 1956. These rules are the Hindu Marriage (Punjab) Rules, 1956 which are applicable to this court Rule 4 (vii) states, that a petition for divorce shall state the matrimonial offences charged set in separate paragraphs with the times and places of their alleged commission.

(11) The provisions of law reproduced above and the rules framed under the Act would show that for seeking relief of dissolution of marriage by divorce a petition is to be presented by a spouse mentioning therein as distinctly as the nature of the case permits the facts on which claim to the relief is founded. In other words if the matrimonial offence with the necessary is not mentioned in the petition for obtaining a decree of divorce, the spouse would not be entitled to claim the relief on the basis of the allegations contained in any other pleading under section 20 of the Act all these facts shall be verified according to Iaw applicable for verification of plants. Under section 21 of the Act, proceedings under the Act are to be regulated by that code of Civil procedure. Under order 6 rule I 'Pleading' means plaint or written statement. Thus replication is not a pleading for claiming relief. Rule 2 Order 6 of the Code provide that the pleadings shall contain a statement of Material facts on which the party relies for his claim and not the evidence. Thus reading the above provisions the irresistible conclusion is that all the allegations of fact which are the basis for the relief claimed by the petitioner must be made by him on the petition claiming dissolution of marriage by a decree of divorce. In other words, if the allegation are not made as such he would not be entitled to the relief In Messrs Trojan and Co. v. Rm N.N. Nagappa Cheltian : [1953]4SCR789 it has been held that the decision of a case cannot be based on grounds outside the pleadings of the parties and It is the case pleaded that has to be found. It has been further observed that without an amendment of the plaint the court was not entitled to grant the relief not asked for. Under section 13(1) of the Act decree of divorce may be granted on a petition alleging that the other party has treated the petitioner with cruelty. In other words in the absence of the facts constituting the act of cruelty in the petition no relief on that ground can be granted. In the present case there is also no evidence in support of the alleged act of cruelty. But even if there was any evidence in support of the alleged act of cruelty contained in the written statement, the same could not be read into evidence as it is beyond the pleas contained in the petition of divorce. In Mrs. Sunder Shan Bhagra v. Captain Subhash Chandra Bhagra, 1978 MLR 362 this court observed as follows :-

'I will first deal with the question as to whether the trial was justified in granting the decree for judicial separation on the basis of the allegations made in the written statement. The husband had not sought judicial separation on the ground that the wife had made any allegations qua him about his moral conduct amounting to cruelty. It is a ground which the trial court has taken of its own. In my opinion the trial court was not justified in doing as. A court has to decide a on the basis of the grounds which are put forth and is not required to invent grounds on its own.'

(12) In Smt. Gwbachan Kaur v. Sardar Swaran Singh, : AIR1978All255 the alleged act of cruelty made in the written statement were not taken as the basis for the grant of decree for dissolution of marriage. In Smt. Jarnail Kaur v. Sarwan Singh, 1979 HLR 415 it has been observed as under :-

'IN the present cases, the husband in his evidence did not say a word that the allegation in the written statement had affected him so much mentally that it would be torture for him to live with the respondent-wife. May be, if tomorrow the respondent is to seek a decree of restitution of conjugal rights against the husband and repeats the allegations of adultery against him, then such a plea may be available to him by way of defense to the petition, but mere allegation contained in the written statement, which has gone uncontested in the pleadings, coupled with the absence of any assertion that he suffered mental torture or agony as a result of the said unfounded allegation, would not justify a finding that the respondent-wife had. practiced cruelty on him, more particularly when such are allegation ought to have preceded the filing of the petition to enable him to seek relief on that ground.'

(13) In Smt. Sulochana v. Ram Kumar Chauhan, : AIR1981All78 it has been held that an allegation made in the written statement could not constitute an act of cruelty to warrant a decree being passed against the respondent I am, thereforee, of the view that the allegations contained in the written statement cannot be made the-basis for the grant of a decree of divorce to the appellant against the respondent.

(14) Learned counsel for the respondent further submits that under section 23 of the Act the appellant is not entitled to a decree of divorce as there has been unnecessarily improper delay on the part of the appellant in instituting the petition for divorce. His case is that the alleged act of adultery, desertion and cruelty took place in 1973 or 1974, while the present petition was filed in August, 1977. He says that this point was argued before the trial court but no finding was given. He further submits that there is no evidence on behalf of the appellant in support of any of the grounds for grant of decree of divorce and even if there is some evidence on record as deposed by the appellant, there is no corroboration of any act and that without corroboration it would not be proper to grant a decree of divorce. In Yaduraj Bansi v. Sunderbai, A.I.R. 1969 Guj 21 it has been held that ordinarily as a rule of law, in cases of matrimonial causes the court should always expect to get some corroboration from other evidence or even from circumstances in regards to the matrimonial particulars relating to the acts of cruelty alleged by one against the other. In A. B. Manual v. Mrs. Libian Margaren Manual and another, : AIR1970Mad178 it has been observed that the matrimonial Court cannot act on uncorroborated evidence of the petitioner. In Constable No. 446 Thakar Dass v. Smt. Krishna alias Kunti,1977 HLR 391 it has been observed that the sole evidence of the petitioner is too meagre to afford the basis for a decree for judicial separation. Similar observations were made in Smt. Bijoli Choudhwy v. SukomalChoudhury, : AIR1979Cal87 . SEL-the instant case, there is evidence of the appellant himself. The evidence of other witnesses does not refer to any alleged act of cruelty, desertion or adultery. It is not necessary to decide in the case whether there was a delay in instituting the petition as I am of the view that the appellant-husband has failed to prove any of the grounds available for the grant of decree of divorce under Section 13(1) of the Act

(15) There is no infirmity in the judgment of the trial Court. The appeal has no merit, and the same is dismissed with no order as to costs December, 18, 1981.


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