Punjab-Haryana High Court
Makhan Singh vs Gurmej Kaur on 5 March, 1993
Equivalent citations: I(1994)DMC624
JUDGMENT Amerjeet Chaudhary, J.
1. This "appeal is directed against the judgment of Additional District Judge, Jalandhar dated 27.8.1990, who had dismissed the husband's petition seeking dissolution of marriage by a decree of divorce under Section 13 of the Hindu Marriage Act.
2. The appellant had sought divorce on the ground of cruelty and desertion.
3. The case of the petitioner as set up in the petition is that on 29.2.1976, the marriage between the appellant and respondent-wife was performed according to Sikh religious rites. The parties cohabited as husband and wife at village Pharwala and from the wedlock of tie parties, a male and a female child were worn. The relations between the parties remained cordial for 7/8 years. After some time, the respondent-wife's brothers who are residing in Canada asked the appellant to come and settle in Canada but the appellant did not accede the demand of the respondent being the only son of his parents. More so, he was not interested to settle in Canada as his father has big agricultural estate. The respondent-wife started creating troubles for him and treated him with cruelty. The appellant had also opened joint account with the respondent-wife. The respondent ,put pressure on him to withdraw an amount of Rs. 25,000/- from that joint account and put it in a fixed deposit in a joint account to be opened in her name and that of her mother. In 1985, the respondent left the house along her minor daughter, to put pressure upon him to agree to go to Canada and settle there. Therefore, the petitioner filed a petition under Section 9 of the Hindu Marriage Act against the respondent for restitution of conjugal rights. The respondent instead of joining the petitioner, filed a petition under Section 125 Cr.P.C.
4. On 18.9.1986, the appellant convened a Panchayat of both the villages wherein the respondent refused to resume cohabitation with him and insisted for a divorce and then a Panchnama dated 18.9.1986 was written wherein she had confirmed that she bad permanently forsaken her marital relations with him. As such, she has deserted him since June, 1985.
5. The other plea is that the respondent bad filed a petition under Sections 4 and 6 of the Dowry Prohibition Act against him in the Court of Judicial Magistrate 1st Class, Jalandhar which was dismissed. The revision filed against it was dismissed, by the learned Sessions Judge, Jalandhar. The respondent had then filed false complaint under Section 406 of the Indian Penal Code. According to the appellant, all this amounted to cruelty.
6. The respondent refuted the allegations made by the appellant and alleged that the appellant wanted her to bring more dowry from her parents, though her father had already spent 11/2 lac at the time of her marriage. The respondent stated that she had opened a joint account with her father in which the amount was deposited by her father and in order to maintain happiness, that account was transferred in her name and that of the appellant but even then the appellant was not satisfied. It has been also averred by the respondent that she had been given beating and turned out of the house alongwith minor daughter only while the son was kept by the appellant. It has been admitted that the respondent filed an application under Section 9 of Hindu Marriage Act which was compromised on 20.1.1986. On 5.9.1986 she made an application to Senior Superintendent of Police, Jalandhar, regarding the ill treatment. A Panchayat was convened by the police where the appellant had openly declared that he would not keep the respondent with him. On 15.9.1986, under the pressure of the police, a writing was executed and she was forced to sign. She was not a willing party to it.
7. On the basis of the pleadings of the parties, the following issues were framed.
1. Whether the respondent has treated the petitioner with cruelty ? OPP
2. Whether the respondent has deserted the petitioner for a continuous period of more than two years perior to the presentation of the petition ? OPP
3. Relief.
The learned Trial Court decided both the issues against the appellant and dismissed the petition.
8. It is revealed from the file that the learned Trial Court while discussing Issue No. 1 did not agree with the contention of appellant's Counsel that the act of filing a petition under Section 406 I.P.C. at the instance of the respondent in which the appellant was summoned as an accused amounted to cruelty. The learned Trial Court while meeting the argument of the appellant's Counsel had stated that the application under Section 406 IPC relied by the respondent was pending and as such it cannot be said that the allegations made therein were false. The Court below had also stated in the judgment that a copy of the order passed on the application under Sections 4 and 6 of the Dowry Prohibition Act was not produced before it. Therefore, the Trial Court was not in a position to say on which ground the said application was dismissed. As such, I am of the view that if the application under Section 406 IPC and application under Sections 4 and 6 of the Dowry Prohibition Act were filed by the respondent-wife with a malafide intention, the onus of proof was on the appellant. Therefore, the plea of cruelty raised by the appellant for seeking divorce does not find favour with this Court.
9. The learned Trial Court on issue No. 2 observed that the petition filed by the appellant seeking divorce was pre-mature as the parties resided together till 2-9-1986 and petition for dissolution of marriage was filed on 16.3.1989 on the ground of desertion. Thus it is clear that the petition for divorce was filed before expiry of two years. Since the finding on issue No. 2 is based on factual position, as such, no interference on issue No. 2 is called for and the same is affirmed.
10. During the course of arguments, Mr. O.P. Hoshiarouri, the learned Counsel for the respondent has brought to the notice of the Court that the appellant on 13.9.1990 filed another petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce which is pending in the Court of Additional District Judge, Jalandhar. According to the Counsel, this petition was filed immediately after 20 days of the dismissal of the earlier petition and the present appeal was filed by the appellant against the judgment and decree dated 27.8.1990 in September, 1990. As such this appeal is incompetent. In order to fortify his contention, the respondent has also placed on record a copy of the petition which is pending in the Court of Additional District Judge, Jalandhar.
11. On the consideration of the matter, I am of the view that the appellant had accepted the findings recorded by the Trial Court on issue No. 2 i.e. on desertion and after the dismissal of his earlier petition, he filed another petition as well. Therefore, the appellant cannot be allowed to take parallel proceedings.
12. For the foregoing reasons, this appeal is dismissed. However, it is made clear that this order would not prejudice the proceedings pending in the Court of Additional District Judge, Jalandhar, on merits. No order as to costs.