JUDGMENT Mukteshwar Prasad, J.
1. These two appeals at the Instance of wife are directed against the Judgment and order dated 28-4-1998 passed by Sri V. N. Shukla the then Family Judge. Gorakhpur. whereby he dismissed the petition under Section 13(1)(1-a) of the Hindu Marriage Act and allowed the petition of the husband under Section 9 of the Hindu Marriage Act (hereinafter referred to as the "Act") and directed the wife to discharge her marital obligations within two months.
2. Smt Kala Kumari wife of Ram Bhawan Anand filed a petition for dissolution of her marriage with the husband by a decree of divorce on the ground of cruelty meted out to her by her husband.
3. This petition was filed on 10-10-1996, Subsequently. In January 1997, the husband filed a petition for restitution of conjugal rights. Both the petitions filed by the parties were heard together and disposed of by a common Judgment and order dated 28-4-1998. Therefore, both the appeals filed by the wife against the aforesaid judgment and decree were heard together and are being disposed of by a common order.
4. Admittedly, the marriage of Smt. Kala Kumarl was solemnized with Ram Bhawan Anand on 23-4-1985 and out of this wedlock, one daughter Ankita and one son Divya were born. It was alleged by the wife that after birth of son, the relationship between the parties became strained and the husband caused mental cruelty by questioning her chastity. She was assaulted and was insulted several times by her husband in the house as well as In her office. The husband used abusive language and developed Illicit Intimacy with several women. She saw her husband in objectionable condition in the month of January 1996. When she objected, the respondent became angry and threatened to cause injuries. She made all possible efforts for reconciliation but all in vain.
5. The husband filed written statement admitting his marriage with the petitioner as well as birth of two children out of this union. This was also admitted by the husband that the petitioner was employed as a Senior Clerk in N.E. Railway at Gorakhpur. He however, totally denied other allegations and pleaded that he provided education to her wife and she completed her M.Sc. B.Ed. and never tried to Insult his wife nor assaulted nor suspected her fidelity as alleged in the petition. The husband further pleaded that the petitioner used to visit the house of her Mausa without his permission and ultimately left her Sasural on 25-9-1996 along with her younger brother Vinod Kumar and since then, she was living there.
6. A replication was filed by the petitioner reiterating her allegations levelled in the petition. She alleged that she saw her husband in compromising position with one Chandra Prabha and the husband used filthy language in her office also.
7. Learned Family Judge framed necessary issues in this case. The petitioner in support of her petition examined four witnesses including her own brother Vinod Kumar as P.W. 1, Samuel Sarin, Office Superintendent, N. E. Railway Gorakhpur as P.W. 2 Bajrangi Lal a typist of the Section in which the petitioner was employed as P.W. 3 and the herself as P.W. 4.
8. On the other hand, the husband examined Parag, who is his class follow as D.W. 1, Lakhpat Prasad a resident of adjoining village as DW. 2 and himself as D.W. 3.
9. The husband sought a decree for restitution of conjugal rights mainly on the ground that the wife had withdrawn from his society since September 1996 without reasonable excuse and was not coming to her Sasural despite his best efforts.
10. The wife contested the petition mainly on the ground that differences arose between the parties after birth of their son and the petitioner was not a man of good character and had developed Illicit relationship with several women. When she objected, the husband levelled false charges against her character and insulted her by suspecting her fidelity.
11. The necessary issues were framed in this petition also by the court below. In the petition for restitution of conjugal rights, the husband produced Parag as P.W. 1, Lakhpat Prasad as P.W. 2 and himself as P.W. 3.
12. On the other hand, wife examined Samuel Sarin as D.W. 1, Bajrangi Lal as D.W. 2 and herself as D.W. 2.
13. After having learned counsel for the parties and considering the entire evidence led by the parties, the learned Family Judge concluded that the husband did not suspect fidelity of his wife nor assaulted her, The wife has failed to prove cruelty on the part of the husband and he decided Issues in favour of husband. The lady further failed to prove the Illicit relationship of her husband with other women. He further found that the wife had withdrawn from society of her husband without any reasonable excuse. With these findings, the learned Judge allowed the petition of husband for restitution of conjugal rights but dismissed the petition of the wife under Section 13(1)(ia) of the Act.
14. Aggrieved by the judgment and decree, the wife has come up in appeal.
15. In these two appeals the following points arise for determination :--
1. Whether wife-appellant was treated with cruelty by her husband and she is entitled to decree of divorce on this ground?
ii. Whether the appellant had withdrawn from the society of her husband without reasonable excuse, as alleged by the respondent in his petition.
16. We have heard learned counsel for the parties at length and perused the record carefully.
17. Learned counsel appearing for the petitioner-appellant has urged with vehemence that admittedly the petitioner is a highly educated woman and is employed in N.E. Railway, Gorakhpur. The marriage of the parties took place in the year 1985 and out of this wedlock two children were born. After the birth of son, differences arose and the husband treated his wife with cruelty, which includes mental as well as physical cruelty and Court below did not arrive at a correct conclusion and erred in appraisal of oral evidence adduced by the parties.
18. It was contended on behalf of the appellant that even if we assume that the physical cruelty has not been proved by the wife, there was sufficient and reliable evidence on record to conclude that the lady became victim of mental cruelty and the husband used to assault and humiliate her at the public places including her office. The finding recorded by the Court below is perverse and cannot be accepted and is liable to be set aside. It was also argued by the learned counsel for the appellant that the Court below has erred in passing a decree for restitution of conjugal rights when relationship between the parties were very much strained and on account of bad habit of the husband and constant threat to the appellant, it was not possible for her to live with her husband in her Sasural. Reliance was placed by the counsel for appellant on the following decisions :--
(i) Ramesh Chanderv. Smt. Savitri, 1995 (25) ALR 536 : AIR 1995 SC 851.
(ii) Dharmendra Kumar v. Smt. Usha Kumari, 1977 (3) ALR 490 ; AIR 1977 SC 2218.
19. On the other hand, earned counsel for the husband respondent supported the finding recorded by the Court below and argued that the cruelty on the part of the husband and alleged in the petition was not at all proved by reliable evidence and the petition of the wife for a decree of divorce was rightly dismissed. Further the learned Judge committed no illegality in allowing the petition for restitution of conjugal rights and both the appeals at the instance of the wife are liable to be dismissed.
20. We have considered the submissions made on behalf of the parties carefully. We are inclined to accept the contention of the learned counsel for the appellant that the mental cruelty on the part of the husband was proved and same is sufficient for a decree of divorce.
21. It is well settled that the cruelty may be physical as well as mental in the instant case, lady pleaded that she was physically assaulted by her husband who caused mental cruelty also. P.W. 1 Vinod Kumar, brother of the appellant, testified that the respondent after the birth of son levelled false accusations against the character of his sister. According to him, the respondent indulged in hathapal in the office of the petitioner. He stated that respondent locked his sister at Uttarkashi and left for his office.
22. P.W. 2 Samuel Sarin, who is on independent witness and Office Superintendent testified that the appellant was working in his Section and parties exchanged hot words during office hours. He disclosed in unambiguous words that it was respondent who used to initiate discussions and used hot words in the office for his wife. He asked the husband to go out and in cross-examination, the witness gave out that the husband lost temper in his office and requested him to mediate.
23. P.W. 3 Bajrangi Lal, a typist in Section of the appellant, supported the appellant's version and> testified in clear words that the respondent asked him to watch the activities of the appellant in the office. According to him the respondent visited the office of appellant in July/August 1997 and asked her to live with him when she replied that her petition for divorce was pending in the Court and expressed her inability to live with him, the husband used objectionable language for her and addressed her as a prostitute (Veshya). In cross-examination also, the witness reiterated his earlier statement and gave out that the husband asked him continuously to have a watch on the appellant. The appellant herself gave out in clear words that she was humiliated and insulted several times by her husband in her office in the presence of her colleagues and a false charge was levelled that she was a woman of loose moral and was leading an adulterous life. In her cross-examination, the lady disclosed in clear words that her husband always suspected her fidelity.
24. On the other hand, D.W. 1 Parag and D.W. 2 Lakpat Prasad failed to help the respondent and testified that the husband never suspected fidelity of his wife. The respondent himself denied the allegations made in the petition. He, however, admitted that he had no enmity with Samuel Sarin and admitted that he expressed his anger in presence of Samuel Sarin.
25. From a thorough scanning of the evidence on record led by the parties, it is crystal clear that the husband ill-treated his wife and he used to visit the office of his wife where he humiliated her by using objectionable language in presence of her colleagues and called her a prostitute. Thus, he lowered her reputation and prestige in the eyes of her colleagues.
26. It is true that Samuel Sarin and Bajrangi Lal are colleagues of the appellant but they are independent witnesses and have spoken the truth. We see no valid reason to discard their testimony or disbelieve their evidence merely on the ground that they happened to be colleagues of the appellant.
27. We, therefore, hold that the learned Judge did not arrive at a correct conclusion and erred in recording a finding that the appellant was not treated with cruelty by her husband. In our opinion, she was subjected to physical as well as mental cruelty. The Court below erred in dismissing the petition of wife for a decree of divorce.
28. We are inclined to allow the petition of the wife under Section 13 of the Act. Therefore, there is no question of considering the petition filed by the respondent under Section 9 of the Act for restitution of conjugal rights. Consequently, the findings in this regard recorded by the Court below and the decree passed accordingly are liable to be set aside.
29. In the result, the judgment and decree passed by the Court below are hereby set aside and the petition of the appellant under Section 13(1)(ia) of the Act is allowed and marriage of the parties stands dissolved by a decree of divorce and the petition of the respondent under Section 9 of the Act is dismissed. Costs on parties.
30. Let a copy of this judgment be placed in the record of the connected First Appeal No. 559 of 1998.