Poonam Devi Vs Narinder Kumar 13 HMA False 498a CrPC 125

 

FAO No.219-M of 2008 1    IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                     CHANDIGARH

CM No.17677-CII of 2009 &

                               FAO No.219-M of 2008 (O&M)

                               Date of decision: 4.09.2009

  Poonam Devi ..Appellant  Versus

Narinder Kumar …Respondent    CORAM: HON’BLE MR. JUSTICE VINOD K. SHARMA

  Present:- Mr.H.S.Gill, Sr. Advocate,

            with Mr.Vivek Goyal, Advocate,

            for the appellant.

            Mr.Gulzar Mohd. Advocate,

            for the respondent.

                   —

      1. Whether Reporters of Local Newspapers may

            be allowed to see the judgment?

       2. To be referred to the Reporters or not?

       3. Whether the judgment should be reported in Digest?

                        —

VINOD K. SHARMA,J. (Oral)

            With the consent of the learned counsel for the parties the main
appeal is taken up for disposal.

            This is wife’s appeal against the judgment and decree dated
7.8.2008 passed by the learned District Judge, Jalandhar on a petition filed FAO
No.219-M of 2008 2    under section 13 of the Hindu Marriage Act, 1955 (for
short the Act) for  dissolution of marriage by way of decree of divorce by the
respondent/husband.

              The marriage between the parties was solemnized on 19.9.1999  at
Baba Lal Dayal Mandir near Partap Bagh, Jalandhar according to Hindu  rites and
ceremonies. Out of the wed-lock a female child namely Deepali  was born on
26.10.2000 who is residing with the appellant. The parties after  the marriage
were living in the parental house of the respondent. It was the  case of the
respondent that the parents of the appellant wanted the transfer  of the
residential house in her name but the parents of the respondent did  not agree
to this. On account of this the appellant started leaving the house  without his
and his parents’ consent. In order to keep peace in the  matrimonial home
parents of the respondent shifted along with other family  members to a
different place. As the parents of the respondent did not agree  to the transfer
of the house in her name she in connivance with her parents  filed a criminal
case No.219 dated 21.10.2003 under sections 328/307/498-  A/34 IPC at Police
Station Division No.3, Jalandhar. The respondent and  his parents were arrested
by the police and they remained in jail for two  months. On presentation of the
challan the case was committed to  Additional Sessions Judge, Jalandhar. The
appellant even engaged a private  counsel to get the respondent and his parents
convicted. The appellant as  well as her parents deposed against the respondent
and his parents.  However, the Learned Court acquitted the appellant and his
parents.  It was the case set up by the respondent that allegations were  false,
baseless, vexatious and malicious, which resulted in mental and FAO No.219-M of
2008 3    physical cruelty, therefore, he reasonably apprehended that it would
be  dangerous to live with the appellant. It was also the case of the respondent
that the appellant deserted him for a continuous period of more than 2 years
immediately preceding the filing of the petition without any reasonable and
sufficient cause with an intention to put an end to matrimonial ties
permanently. It was the case of the respondent that acts of the cruelty were
not condoned and that the petition was filed without any improper and
unnecessary delay.

            The petition was contested by the appellant wherein she  admitted
that the marriage between the parties was solemnized on 19.9.1999  and that one
female child was born out of the wedlock. She also admitted  having lodged FIR
No.219 against the respondent and his parents. Factum  of their acquittal was
also admitted. She reasserted her allegations that the  respondent and his
parents used to taunt and maltreat her on the pretext of  having brought
insufficient dowry. The case set up by the appellant was that  the respondent
and his parents pressurized her to bring a Maruti car and  Rs.2 lacs (Rupees two
lacs only) in cash from her parents if she wanted to  live in the matrimonial
home, but due to poverty she could not meet this  demand.

            It was further pleaded by the appellant that several panchayats
were convened in order to rehabilitate her in the matrimonial home. It was  also
said that on 21.10.2003 Santosh, mother of the respondent came to her  with her
father-in-law and gave her Parsad to eat, and after eating the  Parsad her
condition deteriorated as poison was mixed in the Parsad. She  asserted that she
was admitted in hospital where she was medico legally FAO No.219-M of 2008 4
examined and it was found to be a case of suspected poisoning. On her  statement
recorded in the hospital FIR No.219 dated 21.10.2003 was  registered. It was the
case of the appellant that it was on the assurance of the  respondent and his
parents, that she did not support the prosecution and  gave oral consent for
their acquittal. It was also the case of the appellant  that it was due to
intervention of the Presiding Officer that she along with  the respondent
visited Shri Devi Talab Mandir, Jalandhar. On the next  date she showed her
satisfaction regarding behaviour of the respondent. It  was pleaded that after
this the parties lived together at Hargobind Nagar,  Nurpur Colony, Dhogri Road,
Jalandhar for about 20/25 days but during  this period the mother of the
respondent used to quarrel with the appellant.  The respondent thereafter took a
room on rent at Avtar Nagar, Ludhaina  where they lived together for 3-31/2
months, but thereafter the respondent  left her at her parental house, and went
to Delhi for purchase of Printing  Press, by assuring her that she would be
taken to the matrimonial home  after 4 days, but he never came back to take her.
When the appellant went to  find out the whereabouts of the respondent she was
abused by the  respondent, and threatened to be kidnapped. It was also said that
a  criminal case would be filed against her. On the same evening she received
summons of the matrimonial case filed by the respondent. Allegations of  cruelty
on her were reasserted, but she showed her willingness to join the  matrimonial
home.

             In the replication averments made in the petition were reiterated
whereas averments made in the written statement were denied.  On the pleadings
of the parties the following issues were FAO No.219-M of 2008 5    framed by the
learned Matrimonial Court:-

            1. Whether the respondent treated the petitioner with  cruelty? OPP

            2. Whether the respondent has deserted the petitioner for a  period
of more than two years immediately preceding the  filing of the present
petition? OPP

            3. Whether the petition is not maintainable? OPR

            4. Relief.

            In support of his case the respondent appeared as PW 1 and  also
examined his mother as PW 2, Satish Kumar, Record Keeper as PW 3.  Whereas
appellant herself appeared as RW 1 and examined  her father Dayal Chand RW 2,
and Kesar as RW 3.

            On appreciation of evidence learned matrimonial court was  pleased
to decide Issue No.1 in favour of the respondent/husband by  recording following
findings:

            “11 ………….It cannot be believed that the Presiding Officer of
the status of an Additional Sessions Judge would acquit the  accused on merits
in view of some understanding between the  parties for saving their matrimonial
ties. The falsity in the plea  of the respondent has become very much clear from
the perusal  of her cross-examination. She stated that she was not present in
the Court when the accused were acquitted. That totally  falsifies the stand
that after the efforts were made by the  Presiding Officer for a settlement, she
was taken by the  petitioner to the Temple and that they had appeared in the FAO
No.219-M of 2008 6    Court the next day and on the reply given to the Court the
accused were acquitted. It was admitted by her that it was in the  criminal case
got registered by her that the petitioner and his  parents were arrested and
were kept in jail for three months  before they were released on bail and that
she herself and her  father appeared as prosecution witnesses and they had
engaged  a private counsel also for prosecuting that complaint………….

                13. From the evidence produced on the record and  from my above
discussion, I conclude that false criminal case  was got registered by the
respondent against the petitioner and  his parents in which they remained in
jail for three months. The  case was hotly perused by the respondent but the
petitioner and  his parents were acquitted on merits. Position was similar in
Gajjala Shankar’s case (supra). In that case the husband, his  parents and
sister were tried in the criminal complaint field by  the wife under Section
498-A IPC but were acquitted in that  case. Three of them suffered imprisonment
for some time  initially. It was held that the trauma and sense of difidence
suffered by them can easily be imagined. On the basis of that  evidence it was
held that the husband had been able to prove  persistent physical and mental
cruelty and the divorce was  granted to him. Similarly Sadhana Srivastava’s case
(supra),  false criminal proceedings were initiated by the wife against  the
husband and on that account husband suffered traumatic  experience because of
his arrest and confinement in prison. It FAO No.219-M of 2008 7    was held that
the same amounts to mental cruelty and decree of  divorce was granted in favour
of the husband. The ratio of  these rulings fully apply to the facts of the
present case. The  petitioner has successfully proved that on the basis of false
criminal complaint filed by the respondent he and his parents  remained in jail
for three months and were subjected to  criminal prosecution. He had been in
trauma during that period  and this act of the respondent amounts to the
treatment of the  petitioner with mental cruelty. Therefore,this issue si
decided  in favour of the petitioner and against the respondent.”  For want of
sufficient evidence qua the date of desertion issue  No.2 was decided in favour
of the appellant. It was held that the petition  was maintainable and decree of
divorce was passed in favour of the  respondent.

              Mr.H.S.Gill, learned senior counsel for the appellant  vehemently
contended, that the judgment and decree passed by the learned  matrimonial court
cannot be sustained in law, as the learned District Judge  has accepted the plea
of cruelty merely because of filing of a criminal case  in which the respondent
and his parents were acquitted.  The contention of the learned senior counsel
for the appellant  was, that the respondent and his parents were acquitted, in
view of the  settlement between the parties, under which the respondent had
agreed to  rehabilitate the appellant, and furthermore, thereafter the parties
resided  together and thus cruelty, if any, stood condoned.  In support of this
contention learned senior counsel for the FAO No.219-M of 2008 8    appellant
placed reliance on the judgment of this court in the case of Radha  Rani Vs. Har
Bhagwan (2004-3) PLR 335, wherein this Court has been  pleased to lay down as
under:-

            “8. No doubt, it is correct that the relations of the wife have
been convicted for an offence under section 323 IPC and  sentenced to pay a fine
of Rs.300/- each but the fact remains  that there was no allegations against the
appellant in the said  proceedings. The effect of the actions of the brothers of
the  wife cannot fall on the appellant. Still further reliance of the  learned
trial court on the judgment in FIR lodged by the wife  for an offence under
sections 498-A and 323 IPC is not  sufficient to hold that the wife has treated
the husband with  cruelty. Initiation of legal proceedings for the redressal of
the  rights or for punishment to the wrong doer cannot be said to be  acts of
cruelty. No proceedings have been initiated against the  wife to the effect that
the prosecution by her was malicious.  Similarly because she was not able to
prove her allegations  beyond a reasonable doubt so as to warrant the conviction
does  not mean that the allegations have caused cruelty. The  judgment of the
criminal court is only relevant to the effect that  the husband is acquitted but
were acquitted from criminal  proceedings by giving benefit of doubt cannot be
termed as acts  of cruelty.”

            On the other hand Mr.Gulzar Mohd., learned counsel  appearing on
behalf of the respondent contended that filing of a false case FAO No.219-M of
2008 9    in which the husband is tried and acquitted, amounts to cruelty.
Therefore,  no fault can be found with the judgment passed by the learned
matrimonial  court. In support of this contention learned counsel for the
respondent  placed reliance on the judgment of Hon’ble Allahabad High Court in
case  Smt.Sadhana Srivastava Vs. Arvind Kumar Srivastava 2006 (1) Civil  Court
Cases 347, wherein Hon’ble Allahabad High Court was pleased to  lay down as
under:-

            “19. It cannot be doubted that the respondent-husband must  have
suffered traumatic experience because of the arrest and  confinement in prison
of the entire family including himself.  The arrest and imprisonment must have
resulted in the loss of  reputation and prestige of the husband and his family
in the  society. The mental agony of being arrested and imprisonment  in a false
case resulting into loss of reputation and prestige in  the society would also
amount to cruelty. Again we see no  illegality in the trial Judge coming to the
conclusion that false  criminal proceedings initiated against the husband
amounted to  mental cruelty entitling him to a decree of divorce on the said
ground.”

            Reliance was also placed on the judgment of Hon’ble Andhra  Pradesh
High Court in the case of Gajjala Shankar Vs. Anuradha 2006  (2) Civil Court
Cases 298, wherein Hon’ble Andhra Pradesh High Court  was pleased to lay down as
under:-

            “14. As pointed out by the Apex Court, every small difference  or
reason cannot be a ground to file a petition for divorce. But FAO No.219-M of
2008 10    in the instant case, it is the specific case of the appellant-
husband that he was subjected to ‘mental cruelty’ and to that  effect evidence
was also let in the form of testimony of PWs 2  to 4. Therefore, from an overall
consideration of the evidence  of PW 1 corroborated by that of PWs 2 to 4 we are
of the view  that the appellant-husband could successfully prove the  persistent
physical and resultant mental cruelty on the part of  the respondent-wife and
the facts of the filing of the criminal  case under Section 498-A IPC and the
petition under Section  125 Cr.P.C. would demonstrate that she was not a willing
party  to join her husband.

            15. Mere filing a criminal case under Section 498-A IPC  itself may
not be a ground for divorce but when it is coupled  with the other ground i.e.,
cruelty which was established  successively by the appellant-husband, we deem
that it is a fit  case to grant divorce to the husband. It is not in dispute
that the  spouses have been living separately for the past 13 years with  the
bad taste still on the tongues.”

            On consideration of matter, I find no force in the contentions
raised by the learned senior counsel for the appellant. The judgment of this
court in the case of Radha Rani Vs. Har Bhagwan (supra) can be of no  help to
the appellant. It is now well settled that mere initiation of criminal
proceedings may not amount to cruelty, but false allegations which result in
prosecution of the husband and his family members would certainly amount  to
mental cruelty. The stand of the appellant that the respondent and her FAO
No.219-M of 2008 11    family members were acquitted because of the compromise
stands belied  from the judgment which shows that the respondent and his family
members  were acquitted on the ground that the case was totally false.  \
Learned Additional Sessions Judge, Jalandhar recorded a  positive finding that
the allegations of the demand of dowry were patently  false. The learned court
was pleased to hold that as the evidence of the  appellant, her father and that
of her relations, could not prove as to why  there was necessity for the
respondent to raise demand of Maruti car and a  sum of Rs.2 lacs. The
allegations were not convincing regarding  maltreatment, or harassment of the
appellant. It was held that the plea of  appellant was an afterthought just to
harass the respondent and his family  members. Allegation regarding
administering of some poisonous substance  in Parsad was also found to be false.
On appreciation of evidence learned  Criminal Court was pleased to record as
under:

            ” The prosecution has created a novel and afterthought  story that
one small packet of zink Phosphide was found in a  room of accused Narinder
Kumar. If rat poisoning was in the  house of the accuses, then what was the
necessity of bringing  poisonous Parsad from outside. The whole story of
administering Parsad containing some poisonous substance is  concocted one which
does not appeal to reason. Absolutely no  basis is made out to prove the charges
levelled against the  accused.”

            Besides the finding of criminal court referred to above,  evidence
was also led before the learned Additional District Judge shows FAO No.219-M of
2008 12    that the allegations were false. The appellant failed to prove those
allegations before the learned matrimonial court.  In view of the proven fact
that the respondent and his family  members were prosecuted on the basis of
false allegations for which they  even had to spend time in jail, leaves no
manner of doubt that the  respondent was treated with cruelty by the wife.
Findings of the learned  matrimonial court on issue No.1 are, thus, affirmed.
For the reasons stated above, finding no merit in this appeal it  is ordered to
be dismissed but with no order as to costs.    (Vinod K.Sharma)

 

Link Here :

http://www.indiankanoon.org/doc/929808/

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