Dismissed

Ramesh Chand v. Leela Devi

Himachal Pradesh HC7 Sept 2022FAO/289/2011

Case brief

AI extract

What is this about?

This appeal against the dismissal of a divorce petition on grounds of cruelty and desertion was dismissed. The High Court held the appellant failed to prove cruelty by preponderance of probabilities and was disentitled from relief due to failure to maintain the family, police complaints lacked credibility, and condonation of the wife's acts.

What did the court decide?

Appeal dismissed, judgment and decree of the District Judge affirmed, pending applications disposed of, records sent back.

Ramesh Chand Vs Leela Devi — Matrimonial and Divorce | Himachal Pradesh HC (2022)

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Reportable/un-reportable

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA ON THE 7^th DAY OF SEPTEMBER 2022

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BEFORE

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HON’BLE MR. JUSTICE SATYEN VAIDYA

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FIRST APPEAL FROM ORDER (MVA) 289 OF 2011

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Between:-

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RAMESH CHAND SON OF SHRI UTTAM CHAND, RESIDENT OF VILLAGE SURJEHRA ALIAS KURIALA, TEHSIL & DISTRICT UNA, H.P.

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….APPELLANT.

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(SH. DIVYA RAJ SINGH, ADVOCATE)

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AND

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LEELA DEVI, WIFE OF RAMESH CHAND, DAUGHTER OF LATE SH. KHUSHI RAM, RESIDENT OF VILLAGE AMROH, TEHSIL BANGANA, DISTRICT UNA, H.P.

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....RESPONDENTS

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(DHEERAJ K. VASHIST, ADVOCATE).

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------------------------------------------------------------------------------Reserved on: 29.8.2022 Date of decision: 7.9.2022.

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This appeal coming on for hearing this day, the

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Court delivered the following:

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J U D G M E N T

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By way of instant appeal, the appellant has assailed judgment and decree dated 25.6.2011, passed by learned

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District Judge, Una, H.P. in HMA petition No. 30 of 2008, whereby the petition of the appellant was dismissed.

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Appellant filed petition under Section 13 of the Hindu Marriage Act, 1955 (for short the Act) before the learned District Judge, Una on 12.11.2008. The grounds for divorce were cruelty and desertion. The parties were Hindu by religion and their marriage was stated to have been solemnized in 1982 in accordance with hindu rites and customs. Two sons and a daughter were born out from the said wedlock.

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Appellant specifically alleged that respondent was a cruel and quarrelsome lady. She started torturing the appellant from the very beginning of marriage. Three specific dates i.e. 15.6.1983, 15.3.1985 and 30.1.1986 were mentioned on which, the appellant was abused with filthy language and illtreated by respondent. As per appellant, he went to Malaysia in 1992, after having found difficult to live with respondent. He further pleaded that from Malaysia, he was regularly sending maintenance amount to the respondent and children and had provided them with all basic facilities. He further alleged that in his absence, respondent turned the old mother and a brother of appellant out of house and made them to live in chow shed. Allegations were leveled against respondent that she always

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used to take help of her sister and a brother, who was posted in police.

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As per appellant he came back to India on 7.9.2001. Immediately thereafter, respondent managed to harass the appellant, his mother and brother through police machinery. Reports were stated to have been made to the authorities but without any result.

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Appellant further alleged that respondent involved him in a false case under Section 498-A of IPC, in which, he was later on acquitted. Respondent and her other family members instigated Yash Pal, one of the sons of appellant, to give him beatings and in respect of such instance also the matter was reported to the police. Further, the case of appellant was that on 22.9.2001, respondent along with her children left the house of appellant and decamped with all the money and gold, which he had brought from Malaysia and thereafter, started living in the house of her parents at Village Amroh, Tehsil Bangana, District Una, H.P.

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It was also submitted that respondent was working in some hotel and earning Rs. 5000/- per month. The son of the appellant named Yash Pal was also working in Indian Army and was paying his entire salary to the respondent.

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Respondent was further accused of having manipulated the children towards her and against the appellant.

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Respondent in her reply challenged the maintainability of the petition on the ground that earlier also, appellant had filed divorce petition against the respondent being HMA No. 26/2001, which was dismissed. Plea of estoppel was also raised on the ground that the divorce petition by appellant was filed after 28 years of married life, which was just an attempt to harass the respondent and her children by dragging them into unnecessary litigation. On merits, it was stated that the appellant was not even aware about the correct names of his children and had wrongly mentioned their names in the petition. The allegation that the brother of the respondent was an employee of police department was specifically denied. It was alleged in counter that appellant was habitual of dragging the respondent and her children and other family members into false and frivolous litigations. In fact, appellant and his family members had turned out the respondent and her children from the house. Feeling apprehensive as to their safety, the respondent was forced to live in her parents’ house. It was further submitted that appellant throughout neglected the respondent and the children. He did not pay anything towards maintenance to

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respondent and her children. He with ulterior motive even sold his house to one of his brother. The conduct of appellant was so deplorable that despite the orders of the Court to pay maintenance to respondent, he chose to spend time in judicial custody rather to pay the legitimate claim of respondent. Similarly, the appellant had been ordered to pay maintenance pendent lite by the Court, in his earlier divorce petition, but again the appellant failed to abide by the orders of the Court and for such reason his petition for divorce was dismissed.

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On the pleadings of the parties, learned trial Court framed following issues:-

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Whether the respondent treated the petitioner with cruelty as alleged? OPP.

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Whether the respondent deserted the petitioner as alleged? OPP.

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Whether the petition is not maintainable? OPR.

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Whether the petitioner is stopped by his act and conduct from filing the instant petition? OPP.

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Relief.

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Issues No. 1 and 2 were answered in negative,

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whereas issues No. 3 and 4 were answered in affirmative and the petition of the appellant was dismissed.

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Aggrieved against the dismissal of his petition, the appellant is before this Court by way of present appeal.

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The impugned judgment and decree has been assailed predominately on the ground that it is result of misappreciation of the evidence. It has also been asserted that the marriage has been broken down irretrievably between the parties, as both are residing separately for more than 20 years. On the other hand, learned counsel for the respondent has supported the impugned judgment on the ground that the view taken by learned trial Court is the only possible view on appreciation of evidence.

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I have heard learned counsel for the parties and have also gone through the record carefully.

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The allegations of cruelty that can be culled out from the contents of petition have been averred in vague manner. The Hindu Marriage Divorce (Himachal Pradesh Rules 1982) (for short the Rules) clearly provides that specific acts of cruelty and the time and place where such acts were committed and that the appellant has not in any manner condoned such acts of the respondent are to be specifically pleaded. The petition thus does not confirm to the requirement of 1982 Rules. The provision of Section 23 (i)(b) of the Act also makes it necessary, for passing of decree of divorce on the ground of

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cruelty for the Court to be satisfied that the petitioner has not in any manner condoned the cruelty.

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The petition of the appellant as well as affidavit accompanying such petition is completely silent on this aspect. Even in his deposition on oath before the Court, appellant has remained silent on this aspect. In these circumstances, the respondent was precluded from rebutting any such contention and more importantly, the Court could not record its satisfaction as to the requirement of petitioner having not, in any manner, condoned the cruelty.

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Though, no such objection was taken by the respondent before learned trial Court, even learned trial Court also omitted to consider the aforesaid requirement of law, yet these being jurisdictional issues, cannot be waived and required compliance. In absence of necessary pleadings and proof on the aforesaid question of fact and law, the petition filed by the appellant cannot be said to be maintainable.

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On merits of the case, learned trial Court after detailed appreciation of evidence has taken a view that the allegations of cruelty were not proved. Learned trial Court held that the appellant had alleged three specific instances, when respondent had allegedly misbehaved with him from 1983 to 1986 but had failed to prove any of such instances to the

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satisfaction of the Court. Such findings cannot be faulted and except bald statement of the appellant, there was no corroboration to his assertion.

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It is well settled that onus to prove the allegation of cruelty is on the person, who alleges it. In case Dr. N. G. Dastane vs. Mrs. S. Dastane, 1975 (2) SCC 326 , the Hon’ble Supreme Court has held as under:-

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“23. But before doing so, it is necessary to clear the ground of certain misconceptions, especially as they would appear to have influenced the judgment of the High Court. First, as to the nature of burden of proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with common-sense as it is so much earlier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act. But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order 10 judge whether the burden has been discharged ?

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24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" or as said by Lord Denning, "the

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degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear". But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.”

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Admittedly, the appellant had remained out of India from 1992 to 2001 and he has failed to prove that he had maintained his family including the respondent by providing them necessary subsistence allowance. Had he been sending money from Malaysia to his family, there definitely would have been some proof of such international transmission of money. No such evidence has been produced.

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Appellant had alleged another instance of cruelty at the hands of respondent when he stated that the respondent along with her children had turned the old mother and brother of the appellant out from the house by forcing them to live in cow shed. Again, except for his bald statement nothing has been proved. Neither the mother of the appellant nor his brother, who allegedly were made to live in cow shed were examined.

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Appellant had returned from Malaysia on 7.9.2001 and on 22.9.2001, the respondent left her matrimonial home and started living with her parents. In these fifteen days, multiple litigations were started. Appellant also did not lead any convincing evidence to prove that he along with his mother and brother were harassed by the police at the instance of respondent and her family members. In fact, what has transpired from the evidence is that though some complaints were filed by the appellant but no action was taken thereon. Nothing has further been established to show the credential of the family members of respondent. In absence of such material, it cannot be assumed that the respondent and her family members were so influential that they could manage the Superintendent of Police of the District and Director General of Police of the State.

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Noticeably, appellant examined himself as his own witness and also examined his brother Ram Pal and a witness named Mehar Chand as PW-4. The evidence on record clearly reveals that appellant and his brother Ram Pal were following the same foot marks. Both of them were married to two real sisters i.e. respondent and her sister. Both the brothers had filed divorce petitions against their respective wives almost on identical grounds. In such situation, it was natural for Ram

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Pal to support the case of the appellant, as the appellant also appeared as a witness in the divorce case of Ram Pal. As regards the statement of PW-4 Mehar Chand is concerned, much credence cannot be attached to such statement. He had submitted in the general terms that he knew the respondent, who was a quarrelsome nature. She had been fighting with her husband. Such, vague allegations cannot be said to be sufficient to prove the fact of cruelty. More importantly, none of the family members of the appellant supported him by appearing in the witness box.

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The family disputes are more often than not observed by the close family members. In this view of the matter, adverse inference was liable to be drawn against the appellant for not having produced best evidence.

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Keeping in view the holistic view after appreciating the entire material on record, it can be said with certainty that appellant had failed to discharge the burden of proof placed on him. No doubt, the standard of proof required in the petition for dissolution of marriage under Hindu Marriage Act is that of preponderance of probability but that does not absolve the person alleging cruelty from discharging his initial burden. Judging the case of the appellant, on the touch stone of aforesaid legal principles, this Court has no hesitation to hold

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that the appellant had failed to prove that respondent treated him with such cruelty, which made it impossible for him to live with respondent without being in consistent fear of danger to his health and life.

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Learned District Judge, Una while passing the impugned judgment has arrived at the conclusion after detailed and thorough consideration of the evidence coupled with all attending and material facts and circumstances of the case.

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There is yet another factor, which disentitled the appellant from claiming divorce from the respondent on the ground of cruelty. Section 23 (i) (b) of the Act reads as under:-

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“(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

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(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and”.

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As held above, appellant had miserably failed to

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prove that he had been discharging his legal obligation to maintain the respondent and her children. It has been proved on record that the children of the parties, who had grown up in

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age had not supported the case of the appellant at all. It cannot be assumed that even after attaining majority, they would be in the hands of their mother only. This fact is evident of the neglect of respondent and her children at the hands of appellant. It was also alleged that one of the sons of appellant had even given beatings to the appellant. Though, as per allegation, such act of the son of appellant was at the instance of respondent and her family members but again it is hard to assume that a grown up son would beat his father merely on some instigation.

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In reply submitted by the respondent, it was clearly mentioned that the appellant had not even given correct names of his children which again reflects the callousness of the appellant towards his children.

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In light of the above noted facts, the appellant was guilty of not fulfilling his matrimonial obligations toward the respondent and her children. In these circumstances, it can also be assumed that the petition for divorce was filed by the appellant in order to suppress his own wrongs. Thus, there is material on record to hold that appellant was disentitled from claiming the decree of divorce on the ground of cruelty, on account of his own wrong.

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As regards, the issue of desertion, the same has also been decided against the appellant. Learned trial Court has decided issue No.2 against the appellant on the ground that the respondent in the facts and circumstances of the case cannot be held having necessary animus to leave the company of the appellant. The entire evidence as discussed earlier suggests that it was the appellant, who had failed to maintain and look after the respondent. The allegations of cruelty have also been found to be motivated. In such situation, the respondent cannot be said to have no reasonable ground to leave the company of the appellant. Respondent had every reasonable and probable cause to live separately, as she had right to live with dignity. The appellant had thus failed to prove all necessary ingredients of desertion and on this count also, no fault can be found with the findings returned by the learned trial Court.

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Lastly, the learned counsel for the appellant has argued with vehemence that marriage between the parties has broken irretrievably and hence should be dissolved by a decree of divorce. It has been submitted that in some of the cases before Hon’ble Supreme Court, the marriages have been dissolved having irretrievably broken down. The appellant cannot derive any benefit from the fact that in some of the

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cases, Hon’ble Supreme Court has dissolved the marriage between the parties on the ground that there was no scope to reunite, as no such ground is envisaged under the Act and this Court lacks jurisdiction to pass a decree of divorce on any such ground, which does not find mention in the Act. The appellant otherwise cannot be allowed to raise this argument on account of the fact that he has been proved guilty of commission of material wrongs towards the respondent.

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In view of the above discussion, the appeal being devoid of any merit is accordingly dismissed. The judgment and decree passed by learned trial Court is affirmed. Pending applications, if any, also stand disposed of. Records be sent back forth.

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(Satyen Vaidya) 7^th September, 2022 Judge (kck)

Ramesh Chand v. Leela Devi

Case brief

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Ramesh Chand v. Leela Devi

Case brief

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