Punjab-Haryana High Court
Harjit Singh vs Gurdeep Kaur on 19 December, 2000
Equivalent citations: II(2001)DMC280
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a husband's appeal and has been directed against the judgment and decree dated 27.1.1989 passed by the Additional District Judge, Faridabad, who dismissed the petition under Section 13 of the Hindu Marriage Act, 1955.
2. It may be mentioned here that the present appeal was filed in the High Court at the first instance in the year 1990. It came up for hearing before an Hon'ble Division Bench, which dismissed the appeal in limine. The appellant approached the Hon'ble Supreme Court which vide order dated 14.1.1991 set aside the findings of the High Court and it was observed that the High Court should have resorted to first appeal and heard it on merits. The appeal was, again, filed in the year 1991 and I am disposing of this appeal with the assistance of the counsel for the parties on merits.
3. Harjit Singh, appellant, filed a petition under Section 13 of the Hindu Marriage Act (hereafter referred to as 'the Act') for the annulment of the marriage by inter alia, pleading that the marriage between the parties was solemnissed as per Hindu rites and ceremonies on 6.12.1982 at the parent place of the bride at A1 war (Rajas than). After the solemnisation of the marriage, the parties to the marriage started residing together as husband and wife at Faridabad. The parties cohabited with each other and out of this wedlock, the respondent Gurdeep Kaur gave birth to a male child on 22.11.1983. Since the month of January, 1985, the re-
spondent along with the male child had deserted the appellant and she started residing in the house of her parents at Alwar. The appellant has farther alleged that the respondent had treated him with cruelty, after the solemnisation of the marriage. Supplementing his allegations of cruelty, it was asserted by the appellant that right from the very day of marriage, the respondent was interested that the appellant should live separately from his aged parents in a rented accommodation and when the appellant expressed his inability to do so owing to financial constraints and other family circumstances, the respondent started indulging in malpractices like administering of love portions (petitions ?), etc. for prevailing upon him to accede to her wishes and with that end in view, she had, in the first week of August, 1983, tied a Tabeez having been brought by her from Alwar to his pillow and also attempted to serve milk after mixing some ash powder. It was also averred by the appellant that being scared of these evil practices of his wife, he took her to a religious places at Hazoor Sahib in District Nanded in the state of Maharashtra but even after coming from that shrine, the respondent did not relent and continued to insult and humiliate the appellant and his parents and in the month of January, 1985, after the birth of the child and her return to Faridabad from the house of her parents, the appellant had taken her to Agra and Fatehpur Sikri, as the respondent had expressed a desire to visit those places. But, to his great surprise, he caught the respondent red-handed while procuring Tabeez in the shape of a paper containing some writing from a Fakir at the Dargaha of Peer Saleem Chishti at Fatehpur Sikri. Thereafter he sent a message to the parents of the respondent but she suddenly left the matrimonial home on 25.1.1985 and thereafter there is no resumption of the co-habitation between the parties. Thus, the case set up by the appellant is that the respondent had deserted him since January, 1985 and the respondent had been treating him with cruelty.
4. Notice of the petition was given to the respondent who filed the written statement and dented the allegations. According to her, she never insisted to live separately from the parents of her husband nor she administered any Tabeez. She also denied having visited Agra, Fatehpur Sikri or Hazoor Sahib along with the appellant in the month of August, 1983 or thereafter. Instead, she blamed the husband of having treated her with cruelty after the solemnisation of the marriage as he was dissatisfied with the dowry and also the presents given by her parents at the time of Chola ceremony of the child in the month of January, 1984. She further alleged the appellant and his brother had mercilessly beaten her a day before the delivery of the child with the result that she developed complications and had to be operated upon at the time of birth of the child in Sachdeva Nursing Home at Faridabad. Another fact pleaded by the respondent was that she was driven out of the matrimonial home along with infant child on 19.1.1985 and despite her parents having approached the appellant and his parents several times, the appel-
lant flately refused to keep her with him.
5. A rejoinder was also filed by the appellant reiterating all the allegations made in the petition by denying those of the written statement.
6. Reconciliation efforts were made at the trial stage as well as the appellate stage. The trial Court framed the following issues for the disposal of the case :
" I. Whether there are sufficient grounds for dissolution of the marriage of petitioner with the respondent as alleged in the petition ? OPP.
2. Relief."
7. In support of his case, the appellant examined himself as his own witness and also examined his father Gurbax Singh as PW-2. Similarly, the respondent appeared as her own witness and she also produced her father Puran Singh as PW-2. Besides that, there are two letters from the side of the appellant as Exh. A-1 and A-2. These letters are, admittedly, in the hand of the respondent.
8. On the conclusion of the proceedings vide the impugned judgment, the trial Court dismissed the petition. Aggrieved by the judgment and decree of the trial Court the present appeal.
9. During the pendency of the appeal, an application was moved by the appellant under Order 41 Rule 27 seeking permission to place on record additional material for consideration. The appellant wanted to say by bringing to the notice of this Court that the respondent filed a criminal complaint dated 15.6.1993 under Section 406, IPC in the Court of the CJM, Alwar. He also wanted to draw the attention of this Court to the order dated 18.6.1993, passed by the CJM, Alwar, in the complaint under Section 406, IPC, the report of the SHO, Police Station, Kotwali, Alwar; copy of the order dated 25.4.1991, passed by District Court, Alwar, which dismissed the application of the respondent under Section 9 of the Act for restitution of conjugal rights and the statement of the respondent dated 16.12.1995 recorded in the Guardian Court. From these documents, the appellant wanted to show that the respondent had been consistently and persistently harassing him and the respondent was misusing the process of law. She made baseless complaints and allegations. Apart from that, she made inconsistent statements and these acts on the part of the respondent are enough to grant divorce to the appellant.
10. Yet another application was made by the appellant under Order 12 Rule 2, CPS, for admission and denial of certain documents. The documents are complaint under Section 406, IPC, the order dated 17.6.1993, passed by the CJM, Alwar under Section 156(3), Cr. P.C. giving directions to the SHO, Police Station Kotwali, Alwar for investigation and to register an F.I.R. and investigate the same as per law. Another document is the report of Gopal Singh, SHO, Police Station Kotwali, Aiwar, in which he came to the conclusion that the offence under Section 406, IPC, is made out. Another document is the order dated 23.4.1981 of the learned District and Sessions Judge, Alwar, who dismissed the petition of the respondent under Section 9 of the Act. Yet another document is the statement of the respondent recorded by the learned District Judge, Alwar, in Guardian Act case No. 176 of 1989.
11. I have heard the counsel for the parties and with their assistance have gone through the record of this case.
12. As 1 have mentioned above, the appellant has sought the divorce on two grounds; i.e., cruelty and desertion. Elucidating the aspect of cruelty, the case set up by the appellant is that after the marriage, the respondent started treating him with cruelty because she wanted to live separately from her in-laws and to achieve that end, she had been doing Tunas. At one occasion, she tied a Tabeez. She was caught red-handed while procuring a Tabeez from a Fakir. Indulgence in these acts on the part of the respondent has caused mental cruelty to the appellant. Therefore, he is entitled to a decree for divorce. The second ground made out for divorce is desertion. As per the appellant, the respondent deserted his house with the child in the month of January, 1985, after the birth of the male child who was born on 22.11.1983.
13. Now, the additional factors which have been pressed into service by the appellant are that the respondent filed criminal complaints against him and his parents; she filed a petition under Section 9 of the Act, which was dismissed as withdrawn; she filed proceedings under the Guardian Act and all these acts on the part of the respondent have a great bearing towards the acts of cruelty.
14. Mr. Saron vehemently submitted that it is proved on the record that the respondent had treated the appellant with cruelly. He submitted that this Court is competent to take subsequent events into notice. The marriage between the parties was solemnised somewhere in the year 1982. The parties are, admittedly, residing separately since January, 1985. The marriage has irre-trievably broken down. There are he chances of reconciliation. In these circumstances, the High Coun should pass a decree of divorce in favour of the appellant so that both the parties may live separately in peace and should adopt different paths in the remaining life.
15. On the contrary, counsel for the respondent submitted that the appellant cannot be allowed to take the advantage of his own wrong. He turned out the respondent from the house alongwith the male child, he hat not taken any steps for rehabilitation of the respondent in spite of the fact that the respondent was always ready and willing to rehabililate herself in the house of the appellant. So much so, the respondent, after her desertion by the appellant, enhanced her studies while staying in the house of her parents and did her law graduation. She brought up the male child who was hardly two years of age at the time when she was allegedly turned out from the house of the appellant. Now she is looking after this child, who is 17 years of age She has maintained this child from her earnings. She had to join a job because she was ignored by the appellant. Respondent never treated the (sic) granted to the appellant, who is adamant to get divorce at all costs. The appellant cannot be allowed to take the benefits of his own wrongs.
16. After considering the rival contentions of the parties, I am of the considered opinion that this appeal must fail. Let use see what is the evidence which has been led by the appellant for proving issue No. 1. He has only examined two witnesses; namely himself and his father. No doubt, in matrimonial cases, relations are good and competent witnesses but in the light of the allegations levelled by the appellant, I would always expect some corroboration which could be easily available to the appellant. His main grouse is that the respondent wanted to live separately and to achieve that end, she indulged in the procuring Tabeez. The allegations levelled are not only vague and absurd but highly improbable. The respondent hailed from a joint family. The appellant was in service. The appellant had a touring job. He is Ticket Collector in the Indian Railways. In these circumstances, It would always be the intention and desire of the wife that she should live in the joint family so that she may be properly looked after and also get the care of her in-laws. Had the respondent indulged in nefarious acts; such as, procuring Tabeez/Dhagas from Fakirs, Sants, Sadhus, the appellant would have brought this matter to the notice of the parents of the respondent. Even if it is assumed for the sake of arguments that the respondent believed in this theory of procuring Tabeez, etc., would it cause cruelty to such an extent to that the appellant that it will become a health hazard for him to live with the respondent. Every 'cruelty' pleaded and proved is not a ground for valid divorce under the head Cruelty. To get a divorce on the basis of cruelty, the appellant had to allege and prove that it became a health hazard for him to live in the company of the respondent. It is the common case of the parties that no ill-effect of any Tabeez/Dhaga, etc. took place upon the appellant. There is a total denial of these allegations by the respondent. Assuming for the sake of arguments that the appellant also took the respondent to Hazoor Sahib, Nanded (Maharashtra), there is no evidence to suggest that the appellant was under the influence of any evil spirit, etc. Rather, it appears that the parties might have gone to Hazoor Sahib as they believe in Sikh religion and Hazoor Sahib at Nanded is one of the sacred Takhats of the Sikh religion.
17. With regard to the litigation tiled by the respondent, I can only say that every action has a reaction. It the husband and gone to the extent of seeking divorce from a Hindu wife by making unfounded allegations, why the wife should remain behind. We have seen in our judicial experience that in such like cases criminal litigation under Section 406, IPC, quasi-criminal litigation under Section 125,Cr.P.C. and the petition under Section 9 of the Act, are invariably filed by the wife, when the husband files a petition for divorce. If the parties have given birth to a child, the litigation under the Guardian Act is also very common. Respondent had adopted a legitimate right. She approached the law Courts. In these circumstances, it cannot be held that the action on the part of the respondent was mala fide or it was with the intention that the respondent wanted to give mental cruelty to the appellant. There is no finding of any competent Court of jurisdiction that the lis filed by the respondent was a mala fide one or it was so filed with a malicious intention. There is no finding of any Court that the complaint filed by the respondent was false. Rather, it is stated at the Bar that the complaint is still pending.
18. Be that as it may, the filing of the petition under Section 9 of the Act by a wife shows that she wanted to rehabilitate herself. The respondent withdrew her petition perhaps with the mind that any decree in her favour may not become a handle to the opposite party to seek divorce under Section 13 of the Act. She contested this application as a faithful Hindu wife. She remained in miseries; in seclusion she brought up her child who is presently 17 years of age and is a student of an Engineering College. Reconciliation efforts were made by this Court but the husband was adamant not to rehabilitate his wife. He wanted divorce from her at any costs, which cannot be granted to him with the passage of time. Marriage, in my opinion, has not irretrievably broken down as alleged by the appellant. Moreover, the appellant cannot take the advantage of the situation created by him. The presence of a male grown up child may bring better sense to the parties and there are chances of their re-union with the decision of this appeal. But allowing a defaulter to take the benefit of the marriage having irretrievably broken down will create chaos in the society. Every defaulter will take this plea of the marriage having broken down irretrievable as a shield in order to get rid from the spouse. The theory of the marriage having broken down irretrievably has a different concept. Whether both the parties are adamant not to reside with each other at any cost and both the panics are to be blamed to some extent but here is a case where the husband is to be blamed and he cannot be allowed to become rich at the altar of his own lapses. Moreover, if there was any alleged act of cruelty, the same has been condoned. The parties lived together. They co-habited with each other. Male child was born in 1983. Thereafter, the parties resided upto January, 1985 and this aspect of the case has been rightly taken note of by the trial Court.
19. Now, let us see, whether the respondent had deserted the appellant or she was turned out from the house. What was the necessity on the part of the respondent to leave the company of the appellant in the month of January, 1985, when she was having a child of two years approximately. She was not an earning hand. Her parents were not so rich that they could afford their daughter to live with them for all times to come with a small child. If a wife has been turned out by the husband she has to go to the house of her parents but she cannot break her relations with her parents irrespective of the fact that she is married one. From the letters, Exh. A-l and A-2, I have not been able to gather the intention on the part of the respondent that she wanted to desert the appellant and she wanted to sever the relationship of husband and wife for all times to come. The tone and texture of her letters is very cordial, which is ordinarily expected from a wife. There is no independent corroboration to the statements of the appellant and his father. On the contrary, it is the case of the respondent that her mother-in-law and sister of her husband had been taunting her over the demand for dowry. So much so, her husband and his younger brother Harcharan gave her physical beatings. The statement of the lady cannot be disbelieved merely on the ground that she never lodged any report with the police regarding those incidents or that she never got herself medically examined. A domestic lady with a conservative thinking would always feel shy in reporting matter to the police. It is the admitted case of the parties that they became separate from each other w.e.f. 21.1.1985. What steps have been taken by the appellant to rehabilitate the respondent ? In the trial Court also, the appellant was adamant that he would not like to rehabilitate the respondent at any cost even if the respondent gave the assurance that she would never insist upon having a separate residence. In these circumstances, the conduct of the wife does not make her guilty of desertion. I have scanned through the evidence led by the parties. This is a case of one version versus other version. The version of the appellant is not probable. It lacks preponderance of evidence. The husband has not been able to discharge the onus which was placed upon him under issue No. 1.
20. Resultantly, I affirm the findings of the trial Court on issues No. 1 and 2 and dismiss this appeal.
No costs.
21. Appeal dismissed.