Punjab-Haryana High Court
Pawan Kumar vs Chanchal Kumari on 2 August, 1995
Equivalent citations: (1996)113PLR199
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. Husband-appellant has filed this appeal Under Section 28 of the Hindu Marriage Act, 1955 (in short, the Act) for seeking decree of divorce Under Section 13 of the Act.
2. Uncontroverted facts are that on December 2, 1984, the Parties were united in a nuptial tie. Since January/July 1985 they are living separately. They are not blessed with any issue in this matrimonial alliance.
3. Brief resume of the petitioner-appellant's case is that after marriage the wife-respondent lived in the matrimonial home only for a month. During this period her behaviour was cruel towards the members of his family. In January 1985 she left the matrimonial home and never returned thereafter, and thus deprived him of the pleasures of sexual life. On June 9, 1985, a compromise was arrived at between the parties. A deed was executed under which Rs. 10,000/- were paid to the respondent, all her dowry articles were returned to her and they agreed to depart with liberty to remarry. Later on she filed a petition Under Section 125 Cr. P.C. against him. Thus he claims decree of divorce on the grounds of desertion and cruelty.
4. Respondent denied all the allegations of desertion and cruelty. According to her, she lived in the matrimonial home till July 5, 1985. During this period she was tortured and maltreated by the petitioner-appellant and his family members on the ground that she had not brought sufficient dowry with her and she was not good looking. After July 5, 1985, her relations tried to rehabilitate her, but he and his family members were adamant. When she was living in the matrimonial home, she was tortured and was made to sign certain blank papers. The appellant and his father demanded Rs. 10,000/- or that her mother's house be gifted to the appellant. On these conditions only they were willing to rehabilitate her. She has denied the execution of any agreement return of dowry articles or payment of Rs. 10,000/-. According to her, appellant's marriage was earlier fixed with another girl named Varsha. As the petitioner and his family members demanded a motor-cycle in dowry, this could not culminate in marriage. Petitioner-appellant's uncle Sat Pal immediately got the respondent engaged with the appellant on their request that since the marriage cards were sent to relations for December 2, 1984, and in case the marriage is cancelled, it would bring ill-fame to the family. Even then sufficient dowry was given in her marriage. She has not deserted him and has not treated him with cruelty. Under compelling circumstances, she had to file a petition Under Section 125 Cr. P.C. She expressed her willingness and readiness to go back to the matrimonial home.
5. Parties adduced evidence in support of their pleadings. On a minute scrutiny of the evidence on record the trial Court came to the conclusion that the petitioner-appellant had utterly failed to prove both the grounds of divorce. Hence the petition was dismissed.
6. During arguments it was admitted by both the parties that a day before December 2, 1984, Sat Pal PW-3, who is uncle of the petitioner-appellant, and sister's husband of the respondent, got her marriage fixed with the petitioner-appellant and on December 2,1984, the marriage was solemnised. It is also admitted that earlier appellant's marriage was fixed with another girl named Varsha but it could not materialize. It is also an admitted fact that the respondent has no brother her father has died and they are eight sisters. The respondent is the youngest one. Her mother owns a house in Yamunanagar.
7. Petitioner-appellant's main contention is that after marriage the respondent stayed with him only for a month. During this period her behavior was not proper. According to him on January 5, 1985, she left the matrimonial home and thereafter never came back though he made an attempt to bring her back once. Thereafter on June 9, 1985, at the intervention of common relations a compromise was arrived at between the parties, which is Exhibit PX/Mark 'A'. According to him, this is signed by the respondent and himself. As per this agreement both the parties agreed to depart with permission to remarry. All her dowry articles and jewellary were returned to her and Rs. 10,000/- were also paid to her.
8. The respondent has admitted that certain blank papers were got signed from her by her husband under coercion, but she has denied that any such agreement was arrived at by her.
9. Petitioner-appellant's counsel contends that the appellant has proved the agreement exhibit PX/Mark 'A', which is not only signed by the appellant but is also signed by the respondent on each and every page. It runs into three pages. The appellant has proved due execution of this deed by examining the scribe Krishan Lal, PW-1, attesting witness Balak Ram PW-5 as well as the mediators Sardari Lal PW-2 and Sat Pal PW-3 besides examining himself as PW-6. The respondent could not rebut this evidence. She has only examined herself and has denied the execution of the said agreement though she has admitted that she signed certain papers. Appellants counsel further contends that thus the petitioner-appellant has proved that the respondent deserted him in January 1985, since then she has not come back to the matrimonial home and has deprived him of the sexual pleasures, which amounts to cruelty towards him. On the basis of this agreement, the appellant is entitled to get a decree of divorce as he has also proved the ground of desertion.
10. Respondent's counsel contended that the petitioner-appellant has failed to prove the alleged agreement. The statements of Krishan Lal PW-1, Sardari Lal PW-2. Sat Pal PW-3, Balak Ram PW-5 and Pawan Kumar PW-6 are so much inconsistent with each other that they are neither cogent nor believable. The respondent has admitted that she was coerced to sign certain blank paper. Taking advantage of that situation, the so-called agreement is scribed over that. But even then Pawan Kumar PW-6 has admitted unequivocally in cross-examination that at the time of the execution of this agreement, dispute arose and all the above-mentioned persons left the place before the execution of the agreement itself. He pointed out that above-mentioned persons were respondent, her mother, Sat Pal, brother-in-law of the respondent Suresh and his mother Shanti. He also pointed out that according to the appellant this agreement was executed at 12 noon, Sardari Lal PW-2 has testified that it was executed at 3 P.M. While according to the Balak Ram PW-5 it was executed at 2 P.M. Further, Krishan Lal PW-1 has stated that money was exchanged in his presence. Sat Pal PW-3 has testified that Rs. 10,000/- in cash were paid to Chanchal Kumari respondent and all the dowry article were returned to her at that time. So is the statement of Balak Ram PW-5. But these two witnesses have admitted that they had not attested the said agreement. Balak Ram PW-5 left the place early, therefore, he could not give the details of the dowry articles returned. Pawan Kumar appellant has stated that amount of Rs. 10,000/- was paid by cheuqe and in his petition he has specifically mentioned that the dowry articles were returned to the respondent through transport, but against this pleading he has stated that when she left the house she was wearing the entire jewellary and remaining articles of dowry were given to her at the time of settlement, though no receipt was obtained.
11. Her counsel also pointed out that no doubt the appellant and his witnesses have denied that appellant has remarried with Madhu, but the respondent has examined Rajeshwar PW-1, who has proved that a complaint was lodged by Madhu against the appellant which is pending in Delhi, and in cross-examination he has testified that during investigation the complainant told him that she is married to Pawan Kumar and she has given birth to two children. Chanchal Kumar respondent has deposed that the appellant has remarried and is now father of two children. She has produced Exhibit R1/1 birth certificate of a male baby, wherein parents names are mentioned as 'Pawan Kumar and Madhu. She has also produced copy of the complaint Exhibit R-l/2 lodged on behalf of Madhu by her father Khariti Lal.
12. Respondent's counsel further pointed out that the respondent has clearly stated that she is still ready and willing to go to her matrimonial home, though the appellant has clearly stated in the cross-examination that he is not prepared to rehabilitate the respondent.
13. Her counsel further pointed out that both the grounds of divorce i.e. desertion and cruelty are not proved. His contentions that even if the appellant's plea is accepted, it cannot be held that it amounts to desertion/cruelty.
14. Appellant's learned counsel lastly contended that since 1985 the parties are living separately and there is not possibility of their reunion. It is evident that their marriage is completely and signally broken down. Relying on Ms. Jorden Diengdeh v. S.S. Chopra, A.I.R. 1985 S.C. 925, he contends that under these circumstances there is no point or purpose to be served by the continuance of the marriage between the parties, which has irretrievable broken. Hence, according to him, on this count also the appellant is entitled to a decree of divorce.
15. Under Section 13(1)(i-b) coupled with the explanation added below, the petitioner can obtain a decree of divorce against his or her spouse on the ground that the other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition and as per Explanation 'desertion' means the desertion of the petitioner by the other side of the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage..." It is, thus, clear that in its essence, desertion mens intentional permanent forsaking and abandonment of one spouse by the other, without the other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage, desertion, however, is not the withdrawal from place, but from a state of things for what the law seeks to enforce is the recognition and discharge of the common obligations of the marriage state. There must be an intention on the part of the deserting spouse to bring cohabitation permanently to an end without reasonable cause or without the consent of the other spouse.
16. Petitioner-appellant' case is based on the agreement Exhibit PK. If his plea is to be believed and if the compliance of this agreement the respondent is living separately that is not without his consent or against his will, as he has permitted her to live separately. So far as the point of remarriage is concerned since this agreement cannot be made the basis of divorce and unless the parties obtain a decree of divorce, they cannot remarry. Hence this part of the alleged agreement is not legally enforceable.
17. Further, as pointed out by the respondent's counsel even the agreement Exhibit PX/Mark 'A' is not proved. The scribe has admitted that the last page of the agreement is not signed by the respondent. The appellant himself has admitted that before the execution of the said agreement, the respondent and her relations had left the place.
18. The circumstances under which this matrimonial alliance came into being is also apparent on record. She is eighth daughter of her parents with no brother. Her father has died. The petitioner-appellant's marriage was fixed with some other girl but for reasons best known to the parties the marriage could not be performed. Sat Pal PW-3, who is real sister's husband of the respondent and real uncle of the appellant got her engaged with the appellant. Under these circumstances, with a notice of one day only the respondent was married to the appellant. Even then the respondent has stated that sufficient dowry was given. Appellant's learned counsel contended that under these circumstances as he accepted the respondent to save his and his family honour, it is inconceivable that he demanded dowry later on. The ways of the world are peculiar. After the marriage a husband and his relations sometimes behave in the fashion and start demanding dowry, the respondent's statement is worthy of credence when she says that she was turned out of the matrimonial home on July 5, 1985, after being tortured and maltreated by the appellant and his family members. No doubt, she has not examined her mother, but the reason is obvious. She is an old ailing woman. Hence even in the absence of her statement, respondent's sworn testimony is believable that after July 5, 1985, when an attempt was made for her rehabilitation, the appellant and his father demanded either Rs. 10,000/- or execution of gift deed of respondent's mother's house at Yamunanagar in appellant's name.
19. I find that the trial Court has not fallen into an error in dismissing the petitioner-appellant's petition for divorce. He has utterly failed to prove the alleged agreement Exhibit PX/Mark 'A'. Further, even on this ground he cannot seek a decree of divorce against he respondent. The respondent has proved that she was maltreated and was turned out of the matrimonial home, but still she is ready and willing to join him though he is not. The reason behind this appears to be that he has remarried and is blessed with two children. Therefore, now he is not inclined to take her back.
20. In view of the above facts, I find that the petitioner-appellant has utterly failed to prove the ground of desertion and cruelty. The trial Court has rightly dismissed his petition. There is no ground to interfere. The appeal being meritless is dismissed with exemplary costs of Rs. 1,000/-.