S.S. Saron, J. - (1.) THE appeal has been filed by the appellant -wife against the judgment and decree dated 28.07.2010 passed by the learned Additional District Judge, Yamuna Nagar at Jagadhari whereby her petition under Section 13 of the Hindu Marriage Act, 1955 ('Act' -for short) seeking dissolution of the marriage between the parties by a decree of divorce on the ground of cruelty has been dismissed.
(2.) THE marriage between the parties was solemnized according to Hindu rites and ceremonies in the presence of relatives and 'biradari' (brotherhood) with the help of Uthan Society, a NGO, in 1998. The marital status of the parties was that they both were unmarried before the solemnization of their marriage. From the marriage, they had a daughter namely Bhawna who was aged 8 years and a son namely Tushar who was aged about 5 years at the time of filing the petition for divorce by the appellant -wife, which was filed on 15.05.2008. The appellant did not have a father and her marriage was performed by her mother with the help of Uthan Society. Simple household articles were given by the said Society. The mother and other relatives of the appellant gave other necessary household articles like bed, chairs and other articles including jewellery etc. The same were entrusted to the respondent and his family members. Other relatives of the appellant also gave valuable clothes, other articles and cash at the time of festivals from time to time as also at the time of the birth of the children. In this manner, sufficient dowry articles amounting to Rs. 1.00 lac were given to the respondent with the assurance that the same would be given by the respondent and his family members to the appellant on demand for her use as and when required. After marriage, the parties resided at Guru Nanak Pura, Jagadhri, District Yamuna Nagar and they cohabited as husband and wife. According to the appellant, the attitude of the respondent and his family members was harsh towards heR.He raised a demand of Rs. 25,000/ - in cash and also a motorcycle. The appellant expressed her inability to fulfill this illegal demand. Due to this, the respondent at the behest of his mother started ill -treating and misbehaving with heR.The respondent started beating the appellant without any fault on her part. Her in -laws used to instigate the respondent so as to compel her to bring an amount of Rs. 25,000/ - from her parents. The respondent inflicted merciless beating to the appellant and kept her hungry. The respondent, it is alleged, also started misappropriating the household articles and he spent the money on drinking and gambling. When the appellant protested against the acts of the respondent, she was turned out of the matrimonial home many a times. However, each and every time, the respondent felt sorry and assured the family of the appellant that he would keep her with love and affection. Thereafter, he also misbehaved and taunted her on the demand for more and more dowry. At the time of birth of the children, the family of the appellant as per their custom gave ornaments for the child and valuable clothes for the respondent and for his parents and other near relatives. About a year earlier to the filing of the petition, the respondent turned the appellant out of the house without any fault on her part. She was asked to fulfill their demand of dowry; besides, also threatened that she will not be allowed to live with them without fulfilling their demand of dowry. She was turned out in three bare clothes with the children. Thereafter, the family of the appellant convened a 'panchayat' of the respectable persons of the 'biradari' (brotherhood) and common relatives. The respondent was also present in the meeting of the 'panchayat'. He, however, totally refused to keep and maintain the appellant and her children. Since the last one year from the filing of the petition, the appellant was living with her widowed mother under hunger and starvation at the mercy of God. In this manner, it is alleged that the respondent had spoiled the life of the appellant and her children. About 10 days earlier to the filing of the petition, when the family members of the appellant were not at home, the respondent came to their house and snatched the minor son namely TushaR.In this manner, the daughter of the parties namely Bhawna was residing with the appellant and the minor son namely Tushar was residing with the respondent. The appellant submitted an application before the local police and also moved applications to the high ups but no action had been taken till the time of filing the petition. On notice, written statement was filed by the respondent. He admitted the fact of marriage between the parties and also that both the parties were unmarried at the time of marriage; besides, the birth of the children was also admitted. It was, however, stated that another son was born and he died immediately after birth. The other allegations were denied. It is stated that at the time of marriage, father of the appellant had already died. Her mother was poor and she with the help of a voluntary organization i.e. Uthan Society, Yamuna Nagar solemnized the marriage at Yamuna Nagar with the help of charities collected by the Society. The Society collected the articles in charity from the public for performance of the marriage of the appellant. A small gold ring and a wrist watch were given to the respondent. A pair of ear ring tops and 'paijeb' were given to the appellant by the Society. A small cooker, two utensils and a glass dinner set; besides, attache case with two suits as also a pant and a shirt were given to the respondent and the appellant by the Society. It is stated that it was wrong to allege that the family of the appellant had given articles worth Rs. 1.00 lac to the respondent. The allegations are stated to be altogether false and frivolous. The breakfast in the marriage, it is stated was also arranged by the Society for the respondent and other 11 persons present at the occasion of marriage. No amount was spent on the marriage of the appellant by her family. It was stated as wrong to allege that any gift was given to the respondent or the appellant on the occasion of birth of the children. It was stated that immediately after marriage, the parties resided in the house of parents of the respondent at Partap Nagar, Sawan Puri, Jagadhri. It was wrong to allege that the parents of the respondent were harsh towards the appellant as alleged. No dowry articles or cash were ever demanded from the appellant or her widowed motheR.It was denied that the respondent ever demanded a motorcycle. It was also denied that the respondent or his parents had ill -treated the appellant. The house situated at Partap Nagar, Sawan Puri, Jagadhri was owned by the father of the respondent. After his death, the entries of the house in the house tax register were changed from his name to the name of Smt. Krishna Rani, mother of the respondent. Smt. Krishna Rani effected a family settlement amongst her three sons including the respondent in respect of the said house and another plot measuring 200 square yards. The mother of the respondent at the instance of the respondent gave 100 sq. yards with construction out of the said house to him. The transfer deed was executed in the name of the appellant as 'benami' on the expectation that the appellant and the respondent would live peacefully and amicably. The brothers of the appellant had been instigating the appellant on one pretext or the other and did not allow her to live peacefully as all the brothers of the appellant were greedy persons. The brothers of the appellant had been borrowing money on many occasions from the appellant in the presence of the respondent. The respondent never demanded Rs. 25000/ - either from the appellant or her motheR.It was wrong to allege that the respondent or his mother treated the appellant with cruelty. It was also stated as wrong to allege that the respondent was in the habit of drinking and gambling. The allegation was altogether false and frivolous. The respondent used to work in a stainless steel factory at the time of his marriage. He was earning his livelihood by doing labouR.The appellant had been cleaning utensils of different houses prior to her marriage with the respondent. She continued with the work of cleaning utensils even after her marriage. The brother of the appellant namely Kapil had been borrowing money from different persons known to the appellant on the surety and assurance of the appellant. Kapil raised a loan of Rs. 1500/ - from Shri Mali Singh of HUDA, Jagadhari known to the appellant which he could not return. The appellant stopped going in his house. Shri Mali Singh started demanding his money from Kapil and the appellant. Kapil had been putting pressure on the appellant and the respondent to give him money for payment to his lender to which the respondent had resisted. It is denied that the family of the appellant had ever given any valuables or ornaments to the appellant at the time of the birth of the children. It was also stated as wrong to allege that the appellant had gone about a year earlier from the house of the respondent as alleged. In fact the mother and brother of the appellant came to the house of the respondent about three months ago and took the appellant and the children along with them. He further took all the belongings of the appellant. The appellant left the son in the house of the respondent after about a month and since then the son of the respondent was living with him and his grandmotheR.The appellant kept the daughter with heR.It is stated as wrong to allege that the respondent ever demanded dowry as alleged. It is also stated as wrong to allege that the appellant had convened Panchayat as alleged. No Panchayat was ever held for reconciliation. In fact the brother of the appellant put pressure on her to get the house in possession of the respondent vacated and get back the possession so that he may sell and pay off their debts. The appellant was under the control of her brother and she had threatened that she would sell the house to someone and she shall live separately and independently. The brothers of the appellant moved an application to the Uthan Society who called the respondent and he narrated the entire facts to them. Neither the appellant nor her brothers approached the Society. Therefor, it was wrong to allege that the appellant was living separately for the last more than one yeaR.In fact she had left the society of the respondent since three months earlier to the filing of the reply. The appellant had visited the respondent four times and she left the house of the respondent. It is the appellant who was spoiling the peace and life of the respondent. The respondent had not turned out the appellant. In fact she had left the house of her own. It was stated as wrong to allege that the respondent had gone to the house of the appellant as alleged. In fact the appellant herself left the son with the respondent and kept the daughter with heR.It was, however, stated that the police had called the respondent and recorded the statement of the appellant and the respondent. Thereafter it asked the parties to live peacefully as no offence was made out against the respondent. It was prayed that the petition be dismissed.
(3.) ON the pleadings of the parties, the following issues were framed by the learned trial Court: - 1. Whether the respondent has treated the petitioner (now appellant) with cruelty on the grounds as mentioned in the petition, if so, to what effect? OPP 2. Relief.;