Smt. Maya v. Brij Nath .

This appeal under Section 28 of the Hindu Marriage Act, 1955 (herein after referred to as ‘the Act’) by the wife is directed against the judgement and decree of the Additional District Judge, Delhi dated 27th Nov. 1980 dissolving the marriage by a decree of divorce on the ground of cruelty and desertion. The marriage between Maya Devi, appellant and Brij Nath-respondent was solemnised according to Hindu rites on 10th July, 1970. The husband filed the petition for divorce under S. 13 of the Act alleging acts of cruelty and further stating that the wife had deserted him in Jan. 1975. The wife denied the alleged acts of cruelty. The trial court disbelieved the pleaded acts of cruelty but granted a decree on an alleged act of cruelty which was never pleaded by the respondent. The court further held that the wife was guilty of desertion. Hence this appeal by the wife.

2. Learned counsel for the appellant submits that as the offence of desertion and the pleaded act of cruelty have not been proved, the divorce petition was liable to he dismissed. He submits that the trial court was not justified in holding that the wife was guilty of any cruel act, which was never pleaded and that there was no evidence of desertion. Learned counsel for the respondent on the other hand submits that the trial court was wrong in rejecting the pleaded acts of cruelty. He further submits that the husband is entitled to a decree of divorce on both the grounds of cruelty and desertion. I have thus to deal with all the alleged acts of cruelty and the allegation of desertion against the appellant-wife.

3. The respondent-husband in his petition for divorce has alleged the following acts of cruelty :

(i) The behaviour of the wife from the date of marriage has been rude towards him, she has been reluctant to discharge her marital obligations, she did not respond to sexual intercourse resulting in mental as well as physical cruelty to him she has always been eager to go to her parents' house, that on Diwali festival in 1974 he arranged for two tickets to witness a show at Vishal Cinema, and requested her to go to cinema but she refused and lost her temper. She started quarrelling and abusing him. She did not prepare food and he had to prepare himself.

(ii) That on 1st Jan. 1975 he with his wife and two friends went for lunch in a hotel where the wife cursed him and started misbehaving and created a public scene.

4. The husband has further alleged that the wife left matrimonial home in the first week of Jan. 1975 and since then she has not turned up, that he has not been aware of her whereabouts since then in spite of his best efforts, that she has withdrawn from his society without his consent and without any cause.

5. The appellant-wife in her written statement has denied all the allegations. She alleges that she did not leave the matrimonial home in Jan. 1975, that after marriage she was never eager to stay with her parents, that she has always been discharging her marital obligations but her husband neglected her and therefore there was no issue from the wedlock, that her parents were not in a position to pay dowry worth Rs. 40,000/- to Rs. 50,000/- demanded by her husband mand his parents, that her husband never had ticket for any cinema show on the day of Diwali festival in 1974, that relatives from her side came to their house and he was requested to take them to cinema but he mercilessly beat her. Her husband never took her to any hotel and there was no question of her misbehaviour, that she was given beating by sticks and was turned out from the matrimonial home in 1978, and since then she has been residing with her parents, that the disputes arose on account of dowry. She emphatically denies the alleged acts of cruelty and desertion. On the contrary she filed a counter-claim under S. 9 of the Hindu Marriage Act seeking restitution of conjugal rights alleging that her husband without reasonable excuse withdrew from her society.

6. The statutory provision relating to divorce on grounds of cruelty and desertion is contained in S. 13 of the Act which read as under :

“S. 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)xxxx

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or”

Cruelty has not been defined. But it is now well settled that the conduct should be grave and weighty so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. The cumulative conduct taking into consideration the circumstances and the background of the parties has to be examined to reach a conclusion whether the act amounts to cruelty. The petitioner in a divorce petition has to prove that he was treated with cruelty. The burden of proving the cruelty lies on him.

7. With regard to cruelty the respondent-husband as PW 1 has deposed that immediately after marriage she started harassing him and his parents, that she never behaved properly and whenever she was requested for sexual intercourse she used to refuse and whenever she was not co-operating and therefore due to her indifference he was not in a position to enjoy. He has further deposed that on the day of Diwali 1974 he purchased two tickets of Vishal Cinema, one for himself and one for his wife and requested her to accompany him but she refused on the excuse that she was to go to her parents house, that his friend Sushil Kumar at about 5.30 P.M on that day, came to his house and his wife came out of the room in the verandah, stating that she was not to go to see the picture and she further said that on account of his father's death Diwali was not to be celebrated in his house but at her parents home. He has further deposed that after listening this talk his friend left and his wife continued to quarrel with him up to night and that she abused him, his mother and other family members that she did not cook the food and he himself cooked food on that night. With regard to the incident of hotel on 1st Jan. 1975 he has deposed that he went to Taj Hotel with his wife and two friends, Subhash and Manmohan Chawla. When the bearer was arranging food on the table the wife told him that he was spending extravagantly. He requested her to talk slowly but she got up and threw the glass full of water on earth and left the hotel. Sushil Mehra, PW 2 has deposed that he went to the respondent's house at 5.30 P.M to invite him to his place as the respondent was in grief on account of his father's death, that he was informed that the respondent was going for a movie for which he got the tickets while the conversation was on between him and the respondent, a voice from inside was heard saying that she was not going for the movie and the respondent should accompany her to her parents house. The respondent's friend further states that he felt it a disgrace to go to his house afterwards and he did not go there for about seven months. The respondent is in Delhi Telephones and his friend PW 2 is also working in Directory Department of Delhi Telephones as admitted by him in cross-examination. Saroj PW 3 sister of the respondent has deposed that the appellant used to quarrel with her, her brother and mother. Radhika Devi, mother of the respondent, appearing as PW 4 has deposed that the appellant used to quarrel with her, her son and daughter. She has further deposed that the appellant has told them that Diwali festival would be celebrated by her at her parents house in 1974. In cross-examination she has denied the suggestion that she used to give beating to the appellant for bringing insufficient dowry. The appellant, appearing as RW 1 has deposed that there was never any quarrel between her and respondent husband, that the quarrel used to be with her mother-in-law on the topic of dowry, that she never went to cinema with the respondent, that she and her husband never invited any of his friends after marriage and that no friend visited their house in her presence. In cross-examination she denied that on 1st Jan. 1975 they went to Taj Hotel. She also denied that she ever broke any glass tumbler. She also denied the suggestion that Sushil Mehra, friend of her husband, visited their house on the day of Diwali 1974. She has further deposed that there was quarrel between her and her mother-in-law. She denied the suggestion that she used to refuse to have sexual intercourse with the respondent, she said that they used to have intercourse. She has denied that there was any programme on Diwali 1974 to go to cinema. The trial court held that there was no reliable evidence on record to support the acts of cruelty pleaded in the petition. Learned counsel for the parties have also taken me through the entire evidence on record and I find that there is no ground to differ from the conclusion of the trial court. The two friends who were in hotel on 1st Jan. 1975 have not appeared as witnesses. In any case the acts pleaded are ordinary acts of wear and tear of married life. I hold that the above alleged acts of cruelty pleaded by the respondent were not proved.’

8. There is however another factor on the basis of which the trial court granted a decree of divorce on ground of cruelty. It has arisen out of questions asked in cross-examination by the appellant's counsel from the respondent. The question and answer read as under:

“Question : You have illicit relations with Smt. Prem Lata who is widow and you were also having illicit relations with her prior to her marriage?

Answer : It is incorrect.

Question : The respondent was given poison by your mother to kill her and the doctors saved her life?

Answer : It is incorrect.”

9. The trial court on the basis of these two questions concluded that these allegations amounted to acts of cruelty and therefore passed a decree of divorce. The respondent-husband never pleaded these acts. The wife in her written statement had pleaded that her mother-in-law poisoned her. The trial court having reached the conclusion that the pleaded acts of cruelty were not proved ought to have rejected the ground of cruelty as the basis of divorce. Acts of cruelty have to be specifically pleaded. The husband never pleaded the said acts of cruelty. It is well known that no amount of evidence can be looked into on a plea which was never pleaded. These questions no doubt were put in cross-examination but there is a limit for putting questions in cross-examination.

10. Sec. 138 of the Evidence Act, 1872 reads as under :

“S. 138 : Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.”

This section provides that the examination and cross-examination of a witness must relate to the relevant facts. It further provides that the cross-examination need not be confined to the facts deposed by a witness in his examination-in-chief. In other words, cross-examination is not limited to the matters upon which the witnesses has already been examined-in-chief but extends to the whole case. The section requires that the cross-examination must be on relevant facts. The words ‘relevant facts’ in this section, however, must have a wider meaning than the term when applied to examination-in-chief. Section 146 of the Evidence Act provides that a witness in cross-examination may be asked the questions to test his veracity to discover what is his position in life and shake his credit. Under S. 148 of the Evidence Act the court is conferred power to decide when questions relating to a matter not relevant to the suit or proceeding can be asked and the witness can be compelled to answer. Such questions are not to be asked without reasonable grounds. Thus in cross-examination questions which relate to the relevant facts in suit or proceeding may be asked with the exception as provided in Ss. 146, 148, 149, 150, 151 and 152 of the Evidence Act. In the instant case, I am of the view that the two questions reproduced above did not pertain to any fact in issue between the parities or were relevant under Ss. 146 to 153 of the Evidence Act and therefore the trial court ought not to have allowed those questions in cross-examination. In any case if the trial court has not exercised its power at the time when the questions were asked the same cannot be made the basis for grant of relief to the husband. In other words, the respondent-husband cannot claim a decree of divorce on facts i.e alleged acts of cruelty which were never pleaded by him. Moreover, the appellant as RW 1 has deposed that she knew Prem Lata who was on visiting terms to her husband's house, that Prem Lata used to sit by the side of her mother-in-law in her house and they used to talk. The appellant has not suggested in cross-examination regarding the relations of her husband with Prem Lata or regarding administering poison by her mother-in-law. Thus I am of the view that there is no ground for the grant of a decree of divorce on the ground of cruelty to the respondent-husband against the appellants-wife. The trial court has gone wrong in taking note of the said two questions asked in cross-examination which were relevant neither to the facts in issue, nor under any other section of the evidence act. Learned counsel for the respondent-husband relies upon Parihar (Priti) v. Parihar (Kailash Singh) AIR 1978 Raj 140 in support of his contention that subsequent events should be taken into consideration and relief be granted to him. In that case the alleged acts of cruelty arising after the institution of the divorce petition were contained in some letters by the wife against her husband, and those facts were parts of the pleadings and therefore were made the basis for the relief of divorce. (Para 29)

11. The next point is: whether the appellant deserted the respondent within the meaning of S. 13(1)(ib) of the Act. Desertion has not been defined in the Act. The Supreme Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176 after referring to the English and Indian law on the subject has observed as follows (at p. 183):—

“If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.” xxx

“Desertion is a matter of inference to be drawn from the facts and circumstances of each case.”

12. The petition for divorce was filed on 26th March, 1980 alleging that the appellant-wife left the respondent in the first week of January, 1975 and that since then she had not turned up. It has been further alleged that the appellant withdrew from his society without his consent and without any reason or cause. The appellant, on the other hand, pleaded that she was given beating with sticks and was turned out from the matrimonial home in 1978 and that since she has been taking shelter in the house of her parents (paras 9 and 10 of the written statement). In her counter-claim for restitution of conjugal rights she pleaded the same facts in para (ii) but she did not mention the year 1978 and the space is lying blank. It appears that the trial court has noticed the blank space in para (ii) but not para 10 where the year when she was turned out from the respondent's house was mentioned. Evidence on behalf of the respondent-husband on this point consists of his mother, P.W 4 and himself. As P.W 1 he has deposed that in the first week of January 1975 the appellant's brother came to his house to take her when he was away on duty on the pretext that she was to attend some marriage, that since then she has not come back and her whereabouts were not known to him and that she did not meet him and had no connection with him. He says, “Now I am not ready to keep her. I want divorce. The respondent is very cold”. It is also in evidence that he did not get her medically examined if she was cold. The respondent's mother stated that the appellant had been away from their house for more than 5½ years. The appellant on the other hand as R.W 1 has deposed that she has been living with her parents for the last 1½ years. Her statement was recorded on 28th Oct., 1980. She has further deposed that her husband left her at her sister's house saying that his mother harassed her and that he would take her back as soon as he was able to arrange for a separate house. She has further deposed that whenever approach for reconciliation was made, the respondent-husband did not agree to talk on the subject and that there were quarrels with the mother-in-law and not with her husband. In cross-examination also she deposed that she had been living with her parents for about two years. In other words, it would mean that she has been living separately since 28th Oct., 1978. As already stated, the divorce petition was filed on 26th March, 1980 and therefore, the separation was not for a period for two years preceding the presentation of the petition for divorce. There is no cross-examination about her beating by sticks. No evidence has been pointed out to draw the inference that the appellant ever intended to bring cohabitation permanently to an end. On the short point that the alleged desertion has not continued for a period of two years immediately preceding presentation of petition for divorce it must be held that the respondent is not entitled to a decree of divorce. The continuous period of two years preceding the presentation of the petition of divorce is mandatory.

13. The respondent-husband has not produced any reliable evidence except his own statement and that of his mother, that his wife left matrimonial home in January, 1975. On the contrary he has deposed definitely that he does not want to keep her as she is alleged to be cold and not performing her matrimonial obligation.

14. Section 13 of the Act confers a discretion upon the court to dissolve a marriage by a decree of divorce on any of the grounds mentioned therein. The entire evidence on record has been considered with the assistance of the learned counsel for the parties and I am of the view that in this case there is no ground to dissolve the marriage by a decree of divorce. The husband himself was responsible for forcing the wife to stay away from him. The trial court was not justified in passing the decree of divorce. The appeal is, therefore, accepted. The judgement and decree of the trial court are set aside. The petition for divorce filed by the respondent-husband is hereby dismissed with no order as to costs.

Appeal allowed.