Gauhati High Court
Khanindra Chandra Das vs Smt. Kusum Das on 21 May, 1990
Equivalent citations: I(1991)DMC176, AIR 1991 GAUHATI 54, (1990) MATLR 409, (1991) 1 DMC 176, (1991) 1 HINDULR 388, (1991) MARRILJ 465
Author: S.N. Phukan
Bench: S.N. Phukan
JUDGMENT S.N. Phukan, J.
1. An application under Section 13 of the Hindu Marriage Act, for short the Act, was filed by the husband Khanindra Chandra Das against his wife Smt. Kusum Das before the learned District Judge, Kamrup at Guwahati. By the impugned judgment and other the petition was dismissed and hence this appeal.
2. Both the parties are Hindu by religion and were married on 24-2-1974 according to Hindu rites and they lived together till 2-3-1983. Out of their lawful wedlock one daughter and one son were born on 29-10-76 and 17-11-80 respectively. According to petitioner both of them were maintaining good relationship including with other members of the family. The wife was attending Knitting classes in the afternoon and on 2-3-1983 she went to attend the said school, but did not return home. The husband made attempts to locate his wife. She was not found at the residence of her father which is situated within Guwahati city. All of them got worried and both the fathers of the husband and the wife lodged a missing report before the Officer-in-charge of Chandmari Police Station on 9-3-83. During this period of absence of the wife the son was taken seriously ill and he was admitted to the Gauhati Medical College Hospital and subsequently taken to Delhi for better treatment. Petitioner alleged that after about 9/10 months from 2-3-1983 he came to know that his wife was residing at the house of her parents. He made attempts to bring her home through friend and well wishers, but she refused to come. Hence, the petition was filed for decree for divorce on the ground of desertion.
3. Petition has been resisted by the wife and she has pleaded cruelty, ill-treatement, both mental and physical. According to her she continued to bear oppression and ill-treatment for the sake of her minor children. But on 2-3-1983 her husband and his parents inflicted untold mental torture by scolding her and driving her out from the house keeping the minorchildren with them. Thereafter, she went to reside with her uncle Haladhar Das who was examined as D.W. 1 and who was residing at Dumani Bazar in Barpeta District. According to her she did not go to her father's house as she thought that this would give unbearable shock to him who was suffering from high-blood pressure. She has denied desertion as alleged by her husband.
4. The learned trial Court on the basis of pleadings framed the following issues :
(1) Whether the divorce petition is maintainable?
(2) Whether there is cause of action for the divorce petition?
(3) Whether the respondent has permanently deserted the petitioner for a continuous period of not less than 2 years.
(4) Whether petitioner is entitled to get a decree for divorce?
(5) To what other reliefs petitioner is entitled to?
5. The learned trial Court tried to make a settlement between the parties, but it failed. The Court also granted interim maintenance @ Rs. 200/- per month and Rs. 750/- towards cost of the suit under the provisions of Section 24 of the Act.
6. As this is a matrimonial dispute this Court by order dated 31-3-89 directed that the matter may be placed before the Hon'ble Chairman, High Court Legal Aid Committee for amicable settlement. From the note dated 23-5-89 it appears that although attempts were made, husband did not agree to withdraw his petition, though the wife expressed her eagerness to go back. Before the Hon'ble Chairman, she also prayed for custody of her two children.
7. On 12-4-1989, before this Court the husband filed an application for modification of the order of granting interim maintenance allowance @ Rs.200/- per month on the ground that his wife is working as Junior Account Assistant at Dispur Treasury from 2-1-1989 in the pay-scale of Rs. 500/- to Rs. 875/- and her present total emolument is Rs. 1295/-, whereas the husband is drawing Rs. 1400/- per month after necessary deductions. I shall dispose of this petition by this judgment and order.
8. A marriage may be dissolved on the ground stated in Section 13 of the Act and desertion may be a ground for such divorce as provided in Clause (ib) of Sub-section (1) of Section 13 of the Act which runs as follows :
"(ib) has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition; or"
In the explanation to Section 13, which was inserted by Hindu Marrige (Amendment) Act, 1964 the word "desertion" has been defined and it runs as follows:
"Explanation-- In this sub-Section, the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."
9. In support of the petition, petitioner has examined himself as P.W. 1, his friend one Dhirendra Kumar Hazarika as P.W. 2, one neighbour viz. Pranab Kumar Boara, P.W. 3, his father Ram Pada Das, P.W. 4 and police officer, P.W. 5 who has deposed only to prove the missing entry in the General Diary recorded on 9-3-83. The respondent viz. the opposite party has examined herself as D.W. 2, her uncle Haldhar's Das to whose house she went from the house of her husband as D.W. 1 and her father Damodar Das, D.W. 3.
10. The main issue for the purpose of present dispute is issue No. 3 i.e. whether there is dese.rtion on the part of respondent. The learned trial Court considered the law and also decisions of various High Courts regarding essential conditions of desertion. The learned trial Court took into consideration the allegation and counter-allegation of alleged desertion and alleged mental torture and ill-treatment of the respondent and laid emphasis on the question of reason behind leaving the matrimonial home suddenly ater long 9 years by the respondent. According to the learned trial Court the husband could not explain the reason. Regarding ill-treatment the leraned trial Court also took into consideration the evidence adduced on behalf of respondent. There is no dispute that there was no physical torture on the respondent and the only allegation was that in-laws of the respondent used abusive language such as "go and die in the river Brahmaputra; tie yourself by tying your neck with a hanging rope; we do not like a mad girl like you; we shall marry another girl for the boy". After scrutinising the evidence on record, the learned trial Court was of the view that merely from the missing entry recorded in the General Diary it would not establish desertion by the wife and that the evidence did not disclose such desertion. The learned trial Court recorded that the evidence shows that there has been some misunderstanding and ill-feeling between the in-laws and respondent for quite some time. Exs. 1 and 2 are two letters written by the respondent. The learend trial Court held that these two letters did not prove the intention of the respondent for leaving the matrimonial home permanently. P.W. 2 is a friend of both the parties and he deposed that respondent informed him that she was not willing to go back to the house of her husband. But this piece of evidence was rejected by the learned trial Court. According to learned trial Court simply because the respondent left the house of the petitioner it would not constitute the offence of desertion.
11. I have heard Mr. K. Sarma, learned counsel for the appellant and Mr. C. K. S. Baruah, learned counsel for the respondent.
12. Mr. Baruah, learned counsel for the respondent has urged that desertion means the intentional permanent forsaking and abandoning of one's spouse by the other without that other's consent and without reasonable cause. In support Mr. Baruah has placed before me Halsbury's Laws of England, 3rd Edition, Vol. 12 page 214. On the other hand Mr. Sarma, learned counsel for the appellant has urged that in view of the explanation to Sub-section (1) of Section 13 of the Act which was inserted by the Hindu Marriage (Amendment) Act, 1964 and which came into force on 20-12-1964, this Court need not travel beyond the said explanation to find out the meaning of 'desertion'. The said explanation has been quoted in para 8.
13. The legal position for getting a divorce on the ground of desertion as provided in Sub-section (1) of Section 13 of the Act may be stated as follows :
(a) the petitioner has to prove that the other party has deserted him for a continuous period of not less than 2 years immediately preceding the presentation of the petition for divorce; and
(b) petitioner has further to prove that the other party without reasonable cause and without the consent or against the wish of the petitioner has deserted him and it includes also willful neglect of the petitioner.
14. In the case in hand I need not consider the question of willful neglect of the petitioner as there is no such allegation. The fact that the respondent left the house of her husband on 2-3-1983 against the wish of the petitioner is not disputed. So, I have to consider whether the respondent left the matrimonial home without reasonable cause and without the consent of the petitioner.
15. Regarding reasonable cause the respondent has alleged that she was ill-treated by her in-laws by using abusive and filthy language. The respondent in her deposition before the trial Court stated that on a particular day her husband assaulted her, but she was saved by the brother-in-law of the petitioner. Except this statement of the respondent there is no other allegation of physical assault or torture of the respondent. But her statement is not supported by other witnesses. So, this part of the statement I find it difficult to believe. In fact, her father D.W. 2 also did not state before the Court that the petitioner assaulted the respondent. There is no statement in the written statement that ill-treatment of the petitioner was due to insufficient dowry. But in course of evidence the respondent and her witnesses tried to make out a new case that use of abusive language was also due to insufficient dowry. I find it difficult to believe and in my opinion, this is only an afterthough.
16. Respondent has cited 3 or 4 instances regarding mental torture. On occasion she was abused when she lost one gold ring given to her by her in-laws for going to attend a marriage ceremony. If a gold ring is lost it is quite natural to use harsh words. On another occasion, she broke a plate and she was ill-treated by her in-laws and on another occasion she failed to light the lamp in the place of worship of the house for which she was rebuked. She was further stated that when her father visited her house he was ill-treated by her in-laws. But this is not supported by her father. On the other hand, I find that she was allowed to continue her studies at the expense of her husband and in-laws and she also appeared in examination. She was also allowed to join the Knitting School. Thus from the instances given by the respondent I am not at all inclined to accept the fact that her mental torture was to such an extent that she had to leave the house.
17. According to the petitioner, on 2-3-1983 as usual, the respondent went to attend the knitting school. But as she did not return they all got upset, went to the house of the father of the respondent and tried to locate the respondent. According to respondent, on the above date she was driven out from her house. From the conduct of the petitioner and his parents I find it difficult to accept the story that the respondent was driven out from her house, otherwise the petitioner or his father would not have gone to the house of the father of the respondent. Respondent has stated that after she was driven out, instead of going to the house of her parents she went to her uncle's house which is away from Guwahati. In cross-examination she has stated that after marriage she never visited the house of her uncle D.W. 1. She has tried to explain for not going to the house of her father as he was suffering from high blood pressure. On the other hand when this fact was reported to her father he took part to find out whereabout of the respondent. So, the explanation of the respondent for not going to the house of her father is not at all acceptable.
18. It is on record that her son was ill and admitted to the Gauhati Medical College Hospital and her parents also visited the hospital, but the respondent did not go. She is trying to explain that she was not present on that date and next date when she went there she came to know that the son was shifted to Delhi. This behaviour of the respondent is very peculiar, more particularly when her son was seriously ill.
19. The respondent has stated that her father went to the house of the petitioner for negotiation so that respondent could be taken back. But her father has stated that he went to the house along-with the respondent, but the petitioner and her parents refused to accept the respondent. This vital contradiction leads me to believe that neither the respondent nor her father went to the house of the petitioner for negotiation and this part of the story has been subsequently added. P. W. 2 is a friend of the petitioner. He has stated that as per instruction of the petitioner he went to the house of the respondent and asked her whether she was agreeable to resume her conjugal life by going to petitioner's house. But from her conversation it was found that she was not agreeable and this fact was reported to the petitioner. He again met the respondent on the road and she expressed again that she did not want to go to the house of the petitioner. That this witness went to the house of the respondent is admitted by the respondent and her father. But they have stated that they requested him to persuade the petitioner to accept the respondent. An attempt has been made to show that this witness has deposed falsely, inasmuch as, he is working in the same office of the petitioner. This in my opinion is not a ground to discard his evidence, more so, the respondent and her father also requested this witness to try for a settlement.
20. Exs. 1 and 2 are two letters written by the respondent. Reading these two letters closely, I am constrained hold that the respondent made up her mind to leave the house of the petitioner permanently.
21. Situated thus, I am of the opinion that petitioner has been able to prove that the respondent without any reasonable cause and without the consent or against the wish of the petitioner deserted the petitioner continuously from 2-3-1983. Thus, petitioner has been able to make out a case for divorce under Section 13 of the Act.
22. Regarding the prayer of the petitioner to modify the interim maintenance allowance @ Rs. 200/- per month I am of the opinion that this requires further examination regarding the present income of the parties. For this purpose the learned District Judge is the appropriate authority and petitioner is at liberty to file a petition before the said Court for modification of the interim maintenance allowance.
23. Learned counsel for the respondent has urged that in the event decree for divorce is passed by this Court, appropriate orders may be passed regarding custody of the children in favour of the respondent, I find that when she went to meet her daughter in the school she was not allowed to do so by the school authority on the instruction from the petitioner. This matter also has to be decided by the learned trial Court and if necessary by examining the children in camera. However, as an interim measure I direct that the petitioner shall allow respondent to meet the children and spent some time at least once in a month for the present until orders are passed by the learned District Judge. For this purpose the respondent may file a proper petition before the learned District Judge, Gauhati.
24. In the result, appeal is allowed by setting aside the impugned judgment and decree. Decree for divorce as prayed for by the petitioner is hereby granted. Parties to bear their own costs.