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Pal Ram Pal Vs. Santosh Rampal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal Nos. 237 and 238 of 1983
Judge
Reported in28(1985)DLT102; 1985(9)DRJ94
AppellantPal Ram Pal
RespondentSantosh Rampal
Advocates: S.L. Bhatia,; Arun Kumar and; S.K. Kaul, Advs
Excerpt:
.....the wife allegedly left the matrimonial home and the husband filed a petition for divorce on the ground of cruelty on 8-8-1978. on 21-11-1979 a petition for divorce on the ground of desertion was also filed. both the petitions were rejected by the trial court. the husband appealed. dismissing the appeals on merits the high court observed that while filing the first petition the husband is avering that he is not willing to keep the wife and at the same time for the purposes of desertion he is counting the same period and avering that he was ready to keep her but she is avoiding his company. it is thus clear that by august 1978 he had determined to end the matrimonial tie. - - the attempts at reconciliation have failed. he has found the witnesses of the husband as interested witnesses..........t.v. and the alleged deliberate suppression of telegram by the husband regarding the death of the wife's father. the assessment of the evidence is thus fair. the learned judge has found that assuming that some incidents were correct they were so minor, as to show the normal wear and tear in the matrimonial life. the learned judge, thereforee, refused the divorce on the ground of cruelty. (9) where the divorce is sought on the ground of cruelty the petitioner must prove that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. this appeals both to mental as well as physical acts of cruelty. dr. ng.dastanev. mrs. s.dastane, : [1975]3scr967 . the allegation of cruelty is.....
Judgment:

S.B. Wad, J.

(1) These appeals are filed by the husband against the order of the Additional District and Sessions Judge, Delhi, refusing decree for divorce on the ground of cruelty and on the ground of desertion. The husband filed a petition on the ground of cruelty first and thereafter a petition for divorce on the ground of desertion was filed. The two petitions were consolidated and disposed of by a common order of the Additional District and Sessions Judge dated 27-8-1983. The marriage between the parties took place on 20-11-1975. In October, 1976 a son was born. It is alleged that on 22-8-1977 the wife left the matrimonial home. The petition for divorce on the ground of cruelty was filed on 8-8-1978. On 21-11-1979 a petition for divorce on the ground of desertion by the wife was filed.

(2) Both husband and wife were working as Clerks in different Government departments at Delhi at the time of their marriage. In 1977 the husband got himself transferred to Ferozpur. Practically for the last seven years they are staying separate. The child is with the mother. The parties are young and the alleged grounds of cruelty were not serious. I, thereforee, made an attempt at reconciliation by speaking to the parties in chamber. According to the wife she was ready to go and stay with the husband even if it meant giving up her job. It is difficult to know how sincere this statement is. On the other hand, the husband feels so much harassed by the conduct and behavior of the wife that at this young age he has developed hypertension. The attempts at reconciliation have failed.

(3) The husband filed a petition on the ground of cruelty first because by that time two years had not elapsed from the alleged date of desertion. After completing the said statutory period a petition for divorce on the ground of desertion was filed.

(4) The husband has alleged mental cruelty against the wife. The incidents and circumstances alleged against the wife are......

(5) Within few days of the marriage the wife went to the home of her parents and did not return for 10/15 days. She avoided to return and as a result of the mental shock the father of the respondent had a stroke of paralysis. In January, 1976 the husband's father died due to paralysis. She used to go to her parents' house very often without information to the husband and when he raised objections he was rebuked and ill-treated. It is then alleged that within eight days of the death of the father the wife requested the husband to go to a movie which amounted to his mental distress. On return from Jullundur when the father had died, the wife did not go to the matrimonial home with the husband but went straight to her parents house. In February, 1976 it is alleged that the wife told the husband to pack up the luggage and to go and stay in the house of her parents at Moti Nagar. She wanted the husband to stay with her parents leaving the house at Shakurbasti. The further allegation is that the wife used to insult the husband and ill treat the relations when they visited their house. An instance of November, 1976 is cited where it was said that Public Witness . 4, Vijendar Mohan, a relation of the husband had visited their house with his wife. She refused to cook the meal with the result that they had to dine outside on a dhaba. A child was born to them in October, 1976. The delivery took place at Delhi and the husband's mother had come from Jullundur. But the wife misbehaved and the mother of the husband had to leave Delhi and go back to Jullundur. It is then alleged that the sister and sister-in-law of the husband had come from Punjab to see the child but they were not allowed to do so. It was also alleged that when the husband visited the house of the wife after the death of her father in June, 1977 the mother of the wife insulted the husband. It was also an allegation that the husband and wife Along with the husband's relations had gone to Simla in June, 1977 where she threatened to jump from the hill and to take her life. After the death of her father she did not return to the matrimonial home. It was also alleged that the wife had suggested that she should be paid a sum of Rs. 35,000.00 and that they should separate.

(6) The wife has denied all these allegations. She has submitted that the husband was not behaving properly with her and was insisting on getting a T.V. set for them. She has also submitted that when her father was ill a telegram was received by the husband at Simla but he deliberately suppressed this fact from her. It is then submitted that she was turned out of the matrimonial house by the husband because he had decided not to stay with her. For that purpose he got himself transferred to Ferozpur in the month of August, 1977 and filed a petition for divorce on the ground of cruelty.

(7) The husband has examined ten witnesses who are all the close relations. The wife has also examined six witnesses.

(8) Broadly speaking the assessment of the evidence of the parties by the learned District and Sessions Judge is correct. He has found that the number of allegations made by the husband were his own statements without any evidence. He has found the instances mentioned by the husband to be improbable and made for the purpose of making out his case of cruelty. He has found the witnesses of the husband as interested witnesses and not reliable. During the arguments I was taken through the evidence by the counsel for the parties and the counsel for the husband could not demonstrate how the findings of the Additional District and Sessions Judge were either wrong or contrary to the evidence. The learned Judge has also disbelieved the wife's story on the demand of T.V. and the alleged deliberate suppression of telegram by the husband regarding the death of the wife's father. The assessment of the evidence is thus fair. The learned Judge has found that assuming that some incidents were correct they were so minor, as to show the normal wear and tear in the matrimonial life. The learned Judge, thereforee, refused the divorce on the ground of cruelty.

(9) Where the divorce is sought on the ground of cruelty the petitioner must prove that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. This appeals both to mental as well as physical acts of cruelty. Dr. NG.Dastanev. Mrs. S.Dastane, : [1975]3SCR967 . The allegation of cruelty is a very serious allegation. The burden is heavy on the petitioner and is almost akin to the burden in a quasi criminal charge. The word 'treated' as used in Section 13(1)(ia) denotes the conscious actions on the part of the respondent. It is also established that the evidence of cruelty has to be appreciated in the context of the Society to which the parties belong, their social values, environment of the parties and similar circumstances. Co-habitation after the instances of alleged cruelty amount to condensation of cruelty.

(10) The incidents of the wife of going to her parents place and not returning in time are too trivial. The husband might feel irritated but they cannot be treated as acts of cruelty. It must be appreciated that the husband and wife were living in Shakurbasti in Delhi and the wife's parents were staying in Delhi. It is more natural for the wife to go to her parents place during the early period of her marriage. The allegation that the strained relations between the husband and the wife resulted into paralysis and eventual death is highly imaginary and unbelievable allegation as the father was staying at Jullundur and not at Delhi. He had no occasion to see how the husband was treated at Delhi. It is an admitted fact, which is also proved by the photographs produced, that at the time of the marriage itself the father of the husband was very old and paralysis at a very old age is not uncommon. These allegations up to the birth of a child in October, 1976 stand condoned because of the cohabitation between the parties. Even from 1976 to July/ August, 1977 the husband and wife were staying together at Delhi all by themselves. In between they had visited Mussoorie and Simla. It must be presumed that the young couple were cohabiting during this period for the simple reason that there is no allegation by the husband that during this period she had refused cohabitation. Almost all allegations of the husband in these circumstances, would fail to establish cruelty.

(11) When the father of the husband was taken ill the wife went with the husband to Jullundur by taking leave. Her leave was to expire on 31-12-1975 but she got it extended up to 4-1-1976. She returned to Delhi to report back on duty but having learnt that her father-in-law was dead she immediately rushed to Jullundur and lived there up to 20-1-1976. This conduct of the wife is not consistent with the allegations of cruelty and misbehavior of the wife. The allegation that within eight days of the death of the father she requested to husband to go for a movie cannot be taken too seriously. The learned Judge has disbelieved it considering the normal conduct of wives in Hindu Society, and also on the background of her being an educated lady. The further allegation that after returning to Delhi from Jullundur she straightaway went to her parents house from the Railway Station cannot be described by itself as a serious allegation as amounting to cruelty, even if it is assumed to be true. But again it must be traced that all these incidents are prior to the birth of the child in October, 1976 and the same stood condoned by cohabitation. The learned Judge has rightly noted that the mother was staying with her other sons at Delhi. The wife of the brother of the husband was also an employed lady and had to leave her child at home. The return of the mother from Delhi in few days was, thereforee, natural. There is no convincing evidence to show that because of the bad behavior of the wife with the mother, the mother was required to return to Jullundur. Similarly, there is no convincing evidence to show that the wife refused to show the child to the sister and sister-in-law of the husband when they had visited Delhi. The husband and wife were living in one room in Shakurbasti and the relations were bound to see the child if they were not staying with the couple. The story of the wife refusing to cook when Public Witness . 4 had visited their house with his wife has also been rightly disbelieved by the learned Additional District Judge. The evidence is that all of them including the wife went to nearby dhaba to take food. If the wife was angry with the relations or had misbehaved she would not have accompanied them to the dhaba. All these allegations should be appreciated on the background of The wife doing a job as a Government servant, and having a child of less than two months to be attended to. Similarly, the allegation that the wife threatened to jump from the hill when the couple had visited Simla in June, 1977 is fantastic. No immediate incidents or quarrels are even mentioned by the husband requiring the wife to end her life. The learned Judge has rightly pointed out that in spite of the seriousness of the alleged threat the husband did not ever right to the parents of the wife about the incident. The husband then complained that he was rebuked and ill-treated when he had gone to the wife's place for condolences after the death of her father. The evidence on record shows that not only the husband but number of his close relations had gone with him for that purpose. The learned Judge was quite right in his approach when he disbelieved the story on the ground that on the occasion of the death of the father-in-law nobody would indulge in the acts of insulting and rebuking the son-in-law. There is no allegation that the wife indulged in this misconduct. It is likely that as the wife did not get the information of the death of her father in time although a telegram was sent, some exchange of words might have taken place because of this fact.

(12) None of the alleged acts are such as would create a reasonable apprehension in the mind of a reasonable person that to live with a wife is dangerous to the husband. The husband has failed to discharge his burden to establish cruelty and he is, thereforee, not entitled to divorce on this ground.

(13) The husband filed a petition on the ground of cruelty on 8-8-1978 and also filed a petition for desertion on 21-11-1979. An interesting question arose out of the two petitions. On the husband's allegation that it was dangerous to live with his wife because of her acts of cruelty, it can be definitely said that he was not willing to keep the wife in the matrimonial home. For proving the ground of desertion it must be established by the petitioner that he is willing to live with the respondent but the respondent is avoiding cohabitation by deserting the petitioner. When he filed a petition for divorce on the ground of desertion fifteen months later, he was availing the same period during which the wife was allegedly practicing cruelty so as to complete the statutory period of two years. It would thus result into two inconsistent positions in law. The husband is not willing to keep the wife and at the same time for the purposes of desertion that he is ready to keep her but she is avoiding his company. But from the facts of the case it is clear that by August, 1978 the husband had determined to end the matrimonial tie. He got himself transferred to Ferozpur without inviting the wife to join him at Ferozpur. He did not even write any letter to her. Of course, the problem for the wife was that she was serving at Delhi and if she wanted to live with her husband at Ferozpur, either she had to get herself transferred to Ferozpur or to resign the job. For both these contingencies it was necessary for the husband to persuade the wife to secure her release from the job which she was doing at Delhi. The husband did not make any such attempt. In fact, he did not intend to do so is clear from the fact that in the month of August, 1978 he had filed the petition for divorce on the ground of cruelty. These facts go to show that the husband was not interested in the reconciliation but wanted to end the matrimonial tie. He left for Ferozpur deserting the wife and did not give her a chance to live with him. The matrimonial offences are to be understood in the context of of the social and economic status of the parties as well as their positions in matters of employment. The case of employed woman and her inability to join the husband when he is transferred away from the place of matrimonial home has to be appreciated in the context of the economic necessity for that strata of the society for both husband and wife to have gainful employment.

(14) As in case of cruelty the husband has failed to discharge the burden of showing that the wife had deserted her, he is not entitled to divorce on the ground of desertion either. The result is that both the appeals fail. Both parties have suffered enough for the last seven years and I will leave them to bear their own costs.


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