Punjab-Haryana High Court
Arvinder Kaur vs Harjinder Singh on 7 August, 2006
Equivalent citations: AIR2007P&H24, AIR 2007 PUNJAB AND HARYANA 24, 2007 (2) ALL LJ NOC 259, 2007 (2) AJHAR (NOC) 467 (P&H), 2007 A I H C (NOC) 171 (P&H), (2006) 3 PUN LR 796, (2007) 1 MARRILJ 30, (2007) 1 CURCC 318, (2006) 4 CIVILCOURTC 92, (2006) 4 RECCIVR 277, (2006) MATLR 751, (2006) 2 HINDULR 742, (2007) 2 CIVILCOURTC 476, (2007) 1 HINDULR 336, (2007) 2 MARRILJ 219, (2007) 1 PUN LR 734, (2007) 1 RECCIVR 622, (2007) 2 ICC 533, (2006) 2 MARRILJ 607
Author: Nirmal Yadav
Bench: Nirmal Yadav
JUDGMENT Nirmal Yadav, J.
1. This is wife's appeal against the Judgment and decree of divorce passed by the District Judge, Ambala, on a petition filed by the respondent-husband under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter to be referred as 'the Act').
2. Briefly, the facts of the case are that marriage between the parties was solemnized according to Hindu rites and ceremonies on 5-10-1997 at Patiala. They lived together as husband and wife and cohabited as such at Ambala. However, no child wa3 born out of the wedlock. The wife was employed as a Clerk in Punjabi University, Patiala, even prior to the marriage. After marriage, she had been commuting daily from Ambala to Patiala and back. Everything remained normal between the parties, Meanwhile, father of the respondent-husband died on 3-11-1997. According to the husband, the wife started misbehaving with him and his mother after the death of his father. She would stay at Patiala even 'without consent or intimation to the husband. On enquiry, she would not disclose anything and rather threatened the family members of the husband. She would often say that she was forced by her parents to marry the respondent, otherwise she was not inclined to marry him, She did not want to live with the husband at Ambala and insisted that he should shift to Patiala. According to the husband, the appellant-wife left matrimonial home after quarrelling with him on 26-6-1998. The husband went to Patiala along with one of his friends on 30-6-1998 to bring her back, but she refused to return to matrimonial home and insulted the husband and threatened him in the presence of his friend, who had accompanied him to the Punjabi University. Patiala, After a lot of persuasion by the family members and relatives of the husband, she came back to matrimonial home on 5-10-1998 and stayed there for a few days, but there was no improvement in her behaviour. She had always been disrespectful and arrogant toward the husband and his mother. She would often say that if the husband interfered in her independent life , she would break her head and involv the husband and his family members in a false criminal case. When the husband clearly told the wife that it was not possible for him to live separately from his old mother and to shift to Patiala, she again kit the matrimonial home on 28-2-1999 without the consent of the husband. Accordingly, the husband reported the matter to the police about the conduct of the appellant-wife and a Daily Diary Report (Exhibit PA) was recorded in the Police Post, Model Town, Police Suit ion Baldev Nagar, Ambala. Thereafter, the husband again brought her back to matrimonial home on 5-12-1999 after making great efforts. However, there was no improvement in her behaviour towards the husband and his family members and she continued insisting on her demand that husband; should live separately from his mother and settle at Patiala. On the night of 26-8-2000, when the husband was suffering from fever, the appellant-wife gave beatings to the husband with shoes in the presence of his younger brother and snatched the gold chain and thereafter, she left the matrimonial home on 27-8-2000. The mother of the husband was away to Nagde where her another son was living, for treatment. The appellant-wife took away all her jewellery, costly clothes and articles of dowry and thereafter she never came back to matrimonial home and since then she is living at Patiala. The husband filed the petition for divorce on 3-12-2002 on the grounds of cruelty and desertion. It was pleaded that the wife had deserted the husband-petitioner for a continue us period of more than two years immediately before presentation of the petition without any reasonable cause and against the wishes of the petitioner and had committed numerous acts of cruelty; accordingly, the petitioner-husband had suffered mental torture.
3. The pledings of the husband-petitioner were controverted by the wife. In her written statement, she admitted the factum of her marriage and her employment at Punjabi University, Patiala. However, she categorically pleaded that she had been commuting everyday from Ambala to Patiala to attend her duties. She denied that she had started misbehaving with the husband and his family members after 1 1/2 months of their marriage. However, she admitted that everything was normal till the death of father of the husband, but after his death the petitioner, his mother and brother started misbehaving with her and they would pick up quarrel over trifle matters. She was asked either to leave the job or to give her entire salary to petitioner's mother. The wife agreed to give her entire salary to her mother-in-law, but still they were not happy. Whenever she would come home, a bit late from Patiala, she had to bear the wrath of her mother-in-law as well as brother-in-law. She denied that she was not willing to live at Ambala with her husband. She further denied that she had ever stayed at Patiala without intimation to her husband. The husband has levelled defamatory allegations against her. It was further stated by the wife that she had to undergo surgery at Patiala for stone in her kidney and spent a huge amount on the same. However, neither the husband nor any of his family members visited to enquire about her health. She denied having left matrimonial home on 26-6-1998, rather she was compelled to leave the matrimonial home after beatings given by the husband and his mother. She also denied having insulted the petitioner-husband when he visited her at Punjabi University, Patiala. According to her, the husband used filthy language In her office in the presence of her colleagues and created an embarrassing situation for her. The wife categorically pleaded that she was always ready and willing to live with her husband in the matrimonial home at Ambala itself. However, the husband did not allow her to join the matrimonial home and willfully neglected her without any reasonable and sufficient cause. It was further pleaded that she had always made efforts through her relatives to sort out the matrimonial differences. Many a times, she tried to join the matrimonial home after 27-8-2000 when she was forced to leave the matrimonial home by the husband. She never intended to settle at Patiala. She lost both her parents and, therefore, there was no question of settling at Patiala as there was no one to look back and to settle at Patiala.
4. After taking into consideration the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether the petitioner has been subjected to cruelty by the respondent, as alleged? OPP
2. Whether the respondent has deserted the petitioner without any reasonable ground, as alleged? OPP
3. Relief.
5. After considering the evidence on record, the learned District Judge decided issue No. 1 against the petitioner-husband. While deciding the said issue, the learned trial Court has totally disbelieved the version given by the husband in Daily Dairy Report (Exhibit PA), wherein it was alleged that the wife threatened to break her head and involve the husband and his family members in false case and held the same to be imaginary and not real. It has been clearly observed that if the wife actually wanted to involve the husband and his family members, she would have filed complaint against them under Section 498A, IPC, but she did not lodge any complaint in the Court nor reported the matter to the police, which falsifies the apprehension of the husband regarding involvement in some false case. The learned District Judge has also come to the conclusion that there are general allegations against the wife that she wanted the husband to live separately from other family members and shift to Patiala or sometimes she would stay at Patiala without intimation to the husband. However, these allegations are not fully substantiated and even if assumed to be correct, they do not constitute cruelty of such a magnitude as to furnish a ground of divorce.
6. The learned District Judge has decided issue No. 2 with regard to desertion in favour of the husband only on the ground that appellant-wife left the matrimonial home without any justification and reasonable excuse and that the marriage seems to be irretrievably broken down. After carefully scrutinizing the evidence on record, I am not in agreement with the findings of the trial Court on issue No. 2. The respondent-husband while appearing as P.W. 1 deposed that the wife raised a quarrel with him on the night intervening 26th & 27th August, 2000 and he was rescued by his younger brother.
According to him, his mother was not at home on the said date. However, while appearing as P.W. 3, the mother of the respondent-husband deposed that the wife finally left Ambala in August 2000 and did not return back in spite of the best efforts made by them. The husband produced Vimal Rastogi, one of his friends to prove the incident took place in Punjabi University at Patiala and also to prove that the wife refused to join the matrimonial home. In rebuttal, the wife deposed that she was turned out of the matrimonial home by the husband. Thereafter she as well as her relative made sincere efforts for her return to the matrimonial home but the husband did not allow her to enter his house. Her relative Trilok Singh, who is husband of her mother's sister, deposed that wife was turned out of the matrimonial home by the husband. He contacted him many a times for the settlement, but he did not agree, nor allowed her to join the matrimonial home.
7. From evidence on record, it is to be seen as to whether the wife was forced to leave the matrimonial home or she herself left the matrimonial home. It is the common case of the parties that the wife left the matrimonial home on 27-8-2000. According to the husband, she left the matrimonial home on her own, whereas, according to wife, she was turned out of the house by the husband. As per husband, she gave him shoe beatings on the night intervening 26th & 27th August, 2000. However, the husband did not make any complaint to the Police or any other authority in this regard, whereas, he had reported to the police on 28-2-1999 that his wife would involve him in a false case. In case, the wife had given him beatings or snatched a gold chain, he would have certainly reported the matter to the police. The wife has submitted in clear terms in her written statement as well as while deposing before the Court, that she had always been willing to live with the husband and still wants to live with him. She further stated that her relative and she herself made sincere efforts for joining the matrimonial home, but the respondent-husband did not allow her to return. She stated in unequivocal terms that since both her parents have died, therefore, there was no one to fall back on at her parent's house. She, however, denied that the husband had made any efforts to take her back to the matrimonial home. She admitted that husband had come to her place of posting at Punjabi University. Patiala on 30-6-1998 along with his friend. However, she denied that respondent had asked her to accompany him to the matrimonial home. She also denied that she had shown any disrespect or insulted the respondent or his family members, rather she came back to the matrimonial home on 5-10-1998 on her own. Her statement is supported by Trilok Singh, who is husband of her mother's sister. He deposed that he went to the house of the husband 2-3 times for bringing settlement between the parties as there had been some quarrel between them. He had requested the respondent and his family members to provide a separate room to Arvinder Kaur. He had also contacted the respondent on telephone, when the latter had turned the appellant out of the matrimonial home; for reaching a settlement, but he replied that his mother had gone out of station, therefore, he would contact him after her return, but never did so. He further deposed that whenever the parties had any quarrel, he would take the wife to the house of the respondent. He further stated that sometimes she would come to his house with the permission of her husband and he would come to take her back to the matrimonial home. From the testimony of both Arvinder Kaur and Trilok Singh, it is more than clear that appellant-wife had always been keen and willing to live in the matrimonial home. She had made sincere efforts to join the matrimonial home she 27-8-2000. She did not initiate any steps on her side to precipitate the matter further. In case she wanted to cause any harassment or she had any intention of permanently forsaking the matrimonial home also could have easily got a case registered against her husband and his family members under Section 498A, IPC. She could also have filed a petition for maintenance under Section 125, Cr. P.C. But, since she was willing to join the matrimonial home, she did not take any such steps.
8. On the other hand, there appears to be no efforts having been made by the husband to bring rapprochement with his wife. According to him, he along with his friend Vimal Rastogi went to Punjabi University at Patiala on 30-6-1998 to bring the wife back to the matrimonial home, but she insulted and threatened him in the presence of Vimal Rastogi. However, a perusal of testimony of Vimal Rastogi, who appeared as P.W. 2, shows that he did not hear any conversation between husband and wife, though there were heated discussions between both of them, which is normal when the husband and wife have some differences. Vimal Rastogi simply stated that wife had told him to take the husband away, otherwise she would insult him. He further admitted in his cross-examination that in his presence and hearing, the husband did not ask the wife to accompany him to Ambala, though they had gone to fetch her. There is no other evidence on record to show that husband had made any sincere effort to bring the appellant-wife back to matrimonial home. Even P.W. 3-Jaswant Kaur, mother of respondent-husband, has simply stated that they themselves as well as through relatives tried to bring the appellant-wife back to matrimonial home. However, no evidence has been brought on record to prove this fact. There is no denial to the fact that appellant-wife had been commuting everyday from Ambala to Patiala and back, rather it has been stated by the husband himself while appearing as P.W. 1 that his wife was serving as clerk in the Punjabi University and she used to commute daily from Ambala to Patiala and back. He also stated that she used to make call on telephone on Friday or Saturday that she would not be coming to Ambala and would be staying at Patiala, which clearly shows that whenever the appellant-wife stayed at Patiala during weekends, she had been intimating the husband in this regard. He further stated that appellant-wife had come to matrimonial home on 5-10-1998 at the instance of her Maasi and Maami. There is no evidence that husband had ever made any efforts to bring her back. Rather, it appears that the husband had been creating evidence against the wife as he moved an application to the police on the basis of which a Daily Diary Report (Exhibit PA) was entered. The allegations made in the said Daily Diary Report appear to be imaginary and mere apprehensions.
9. It is well established that 'desertion' for the purpose of seeking divorce under the Act would mean intentionally and permanently forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is not simply withdrawal from a place, but it has to be withdrawal from a state of things. In other words, it would be a total repudiation of obligation of marriage i.e. not permitting or allowing cohabitation between the parties. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the fact and circumstances of each case. If a spouse abandons the other in a State of temporary passion or anger without intending to cease cohabitation permanently, it would not amount to desertion. The Apex Court in the cas.e of Bipinchandra Jaisinghbhai Shah v. Prabhavati has observed as under (para 10):
For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of interference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention both interior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary, that they should commence at the same time. The de facto separation, may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years' period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse' takes advantage of the locus poenitentiae thus provided by law and decided to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence though corroboration is not required as an absolute rule of law the Courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Court.
10. Following the above decision in Bipinchandra Jaisinghbhai Shah's case the Apex Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Neena alias Mota and held that in essence, the desertion means intentional permanent forsaking and abandoning of one spouse by the other without that other's consent and without any reasonable cause. So far as deserting spouse is concerned. two essential conditions have to be there, - (1) the factum of separation, and (2) the intention to permanently bring cohabitation to an end (animus deserendi). Likewise, two elements are essential so far as the deserted spouse is concerned, viz., (i) the absence of consent, and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
11. In the instant case, except the self-serving testimony of the husband and his mother Jaswant Kaur, there is absolutely no other independent evidence to show that appellant-wile has deserted him, rather it has come in the evidence that the appellant-wife had been willing and she had even joined the matrimonial home, but efforts made by her and her relative Trilok Singh proved futile. There is nothing on, record that the husband had ever made any efforts to bring the wife back to matrimonial home. The. husband had himself admitted that she had come to the matrimonial home at the Instance of her Maasi and Maami. Normally, in the institution of marriage, It is common that initially, husband and wife have some difficulties in adjustment. However, with the efforts of the friends/relatives and parties themselves, the differences are sorted out in the due course. The marriage between the parties was performed in the year 1997. After the death of father of the husband, some dispute cropped up between the parties. According to the wife, her mother-in-law and brother-in-law had been harassing her and, therefore, she had to leave the matrimonial home but she came back after Trilok Singh had approached the respondent-husband. There is nothing on record to prove that husband or his mother or other relatives made any sincere effort to bring her back. There is also nothing on record to prove that the wife had any Intention to cease cohabitation permanently. Even if she was forced to leave the matrimonial home or she left the matrimonial home in passion or anger, it would not amount to desertion. Moreover, the wife did not Initiate any coercive action against the husband which would prove that she had any intention to snap the ties between them and forsaking the matrimonial home permanently. Rather. It appears that she has always been ready and willing to resume married life. She had not even laid any condition for joining the matrimonial home. There is no evidence to prove that any of the act of the appellant is attributable to animus deserendi. The husband has not been able to prove that the fact of separation and animus deserendi co-exist. The husband has failed to prove that appellant-wife had any intention to permanently bring cohabitation to an end. He has also not been able to prove that he had made sincere efforts to bring her back to matrimonial home. The finding of the learned District Judge that the marriage has irretrievably broken down is also not based on any cogent evidence, rather there appears to be no serious dispute between the parties and it only appears to be a matter of ego on the part of the husband as he did not make any sir vie effort to bring the wife back to the matrimonial home. As discussed above, one of the spouses may leave the matrimonial home in temporary anger or passion, but that does not amount to desertion. The wife has categorically stated that she has no one to fall back oh in her parental house as both her parents have died and she is still willing to live with her husband.
12. Learned Counsel for the husband argued that there is no temparamental compatibility between both the spouses, therefore, marriage between them is irretrievably broken down. Such an argument is not supported by any cogent evidence as the wife has not deserted the matrimonial home and she has always been keen to join the husband. Even though she was forced to leave the matrimonial home or she left the same in anger or passion, but she came back and Join the matrimonial home on a couple of occasions. On the other hand, the husband did not make any efforts to bring her back to the matrimonial home. In case he was interested in resuming the matrimonial alliance, he could file a petition under Section 9 of the Act, but instead of filing such a petition for restoration of conjugal rights, he filed a petition for divorce, which clearly shows the husband's intentions to get himself separated from the wife. He has rather levelled false allegations by reporting the matter to the police on 28-2-1999. whereas, the wife did not lodge any report nor did she file any case against the husband or his family members. Even the allegation of the husband that she insulted him in the presence of his friend, is also not proved, as Vimal Restogi has simply stated that there were some heated discussions between both of them and the wife had simply asked him to take the husband away so as not to create any embarrassing situation in her office. Further, the allegations levelled by him that the wife gave him shoe beating and snatched his gold chain during the night intervening 26th & 27th August, 2000 and he was saved by his younger brother, are also not corroborated by any cogent evidence. Even younger brother of the husband did not appear in the witness box to corroborate the same. The learned District Judge has observed that there are general allegations by the husband against the wife that she wanted him to separate from other family members and shift to Patiala. However, these allegations are not fully substantiated. The husband has, therefore, miserably failed to prove that wife was living separately without any sufficient cause. The husband's failure to make any sincere effort to bring about reconciliation, clearly shows his disinclination to, settle down the appellant-wife in the matrimonial home. The wife has always been ready >and willing to join the matrimonial home, but it is the husband who appears to have deserted the wife and, therefore, he cannot take advantage of his own wrong.
13. Learned Counsel for the respondent-husband referred to a judgment of the Apex Court Is Geeta Jagdish Mangtani v. Jagdish Mangtani and argued that in somewhat similar circumstances. Apex Court has held that the wife had deserted the husband as she did not even Join the matrimonial home during vacations and, therefore, she never made any attempt to go to her husband's house after she left the matrimonial home and as such, animus deserendi on the part of the wife was established. However, the facts of the said case are clearly distinguishable from that of the Instant case. In the case cited by the learned counsel, the wife was a school teacher and it was observed that there were long vacations in the school and during these vacations she could have visited the husband In the matrimonial home, but there was nothing to show that any such attempt was made by her. However, in the present case, the wife was living in the matrimonial home and she was commuting everyday from Ambala to Patiala i.e. place of her posting, but she was turned out of the matrimonial home by the husband on 27-8-2000 and thereafter no efforts were made by the husband to bring her back to the matrimonial home.
14. In view of the above discussion, the appeal is allowed, and findings returned by the trial Court on issue No. 2 relating to desertion are hereby reversed and decree of divorce stands set aside.