Punjab-Haryana High Court
Sandeep Kaur vs Badal Singh on 8 November, 2011
Author: G.S.Sandhawalia
Bench: Hemant Gupta, G.S.Sandhawalia
FAO No.M-109 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.M-109 of 2010(O & M)
Date of decision:08.11.2011
Sandeep Kaur ...Appellant
Versus
Badal Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr.Vivek Goyal, Advocate,
for the appellant,
Mr.Sherry K.Singla, Advocate,
for the respondent.
****
G.S.SANDHAWALIA J.
CM No.6275-CII of 2010 The delay in filing the appeal is condoned for the reasons mentioned in the application.
CM stands disposed of.
FAO No.M-109 of 2010 The present appeal has been filed by the appellant- wife who is dissatisfied with the judgment and decree dated 01.05.2009 passed by the learned District Judge, Faridkot dismissing her petition filed under Section 13 of the Hindu Marriage Act, 1955 (for short, 'the Act') on the grounds of cruelty and desertion.
The marriage between the parties was solemnized FAO No.M-109 of 2010 2 in the year 2000 as per the Sikh rites and from the said wedlock, two children, viz., Beant Singh and Gurjant Singh were born. They are alleged to be residing with the respondent-husband. It was alleged that one girl child in the womb had been aborted forcibly by the respondent- husband and his parents and after the birth of the second son, her vasectomy (tubectomy) had been done without her consent. In the marriage, her parents had given sufficient dowry and clothes to the sister and father of the respondent-husband, but they were not satisfied with the same and started teasing and harassing her for bringing less dowry. It was also alleged that the respondent-husband was addicted to liquor/intoxicants and used to abuse and maltreat the appellant-wife on petty matters and asked for a motorcycle and Rs.10,000/- as cash. It was alleged that she was turned out one year back from her matrimonial home prior to the filing of the petition in the year 2008. It was also alleged that the father of the appellant-wife collected a panchayat and went to the respondent-husband and tried to make him understand but the respondent- husband and his parents were adamant and the panchayat returned without any fruitful result. The appellant-wife is residing with her parents at their mercy and, therefore, the allegations of cruelty and desertion are alleged.
The petition was opposed by the respondent- husband by filing a written statement and the allegations of forcible abortion of foetus was denied and the birth of the male child was admitted but the conducting of vasectomy (tubectomy) on the wife without her consent was denied. The allegations of demand of dowry and harassing or beating her under the influence of liquor was also denied. It was alleged that the respondent-husband had undergone surgery and instead of taking care of the respondent- husband, the appellant-wife had left the home leaving the FAO No.M-109 of 2010 3 minor children and filed the divorce petition. Respondent- husband pleaded that he was ready to rehabilitate the appellant-wife unconditionally and it was denied that any panchayat came to the house of the respondent-husband. Rather, it was pleaded that panchayat, consisting of family members of the respondent-husband had gone to the house of the appellant-wife and asked her to come back to matrimonial home but the appellant-wife had declined. On the basis of the said pleadings, the following issues were framed:-
"1. Whether the respondent has treated the petitioner with Cruelty O.P.P.
2. Whether the respondent has deserted the petitioner without any reasonable cause and excuse. O.P.P.
3. Whether the petitioner is entitled to divorce on the aforesaid grounds. O.P.P.
4. Relief."
During the pendency of the proceedings before the District Judge, maintenance at the rate of Rs. 1500/- per month was fixed to the appellant-wife and Rs. 3000/- towards litigation expenses and it was directed that the same be paid by 25.09.2008; failing which the defence of the respondent-husband would be struck off. Subsequently, Rs. 6000/- was paid towards maintenance pendente lite and thereafter, on 24.03.2009 the defence of the respondent was struck off for non-payment of the maintenance pendente lite and litigation expenses after the husband made a statement in the Court that he was a poor person and unable to pay the said amount as ordered by the Court.
The appellant-wife examined herself as PW1, Juma Singh, PW2 and Pritam Singh PW3 who were cross- examined since the Court had permitted the cross- examination while striking off the defence of the FAO No.M-109 of 2010 4 respondent-husband. On the basis of the evidence on record, the District Judge, came to the conclusion that the allegations levelled by the appellant-wife are routine in nature and she had not been able to substantiate her allegations as there was no medical prescription regarding her injuries issued by any hospital; nor had she reported the matter of violence to the police or Women Cell. The statement of Juma Singh PW2 also did not find favour with the District Judge as during his cross-examination, he had admitted that the appellant-wife had never gone to any doctor for her abortion and neither there was any complaint before the Women Cell or higher authorities. Secondly, since the appellant-wife had herself stated in her cross- examination that she was not prepared to go back to her matrimonial home to live with the respondent-husband at any cost or any terms and conditions, on this basis, the learned District Judge came to the conclusion that Sandeep Kaur herself had deserted her husband and her minor children and accordingly, dismissed the divorce petition with costs. On the question of desertion, it was held that the pre-requisite period of two years had not elapsed, therefore, the learned District Judge, Faridkot on the issue of desertion did not accept the allegations.
The appellant-wife, dissatisfied with the said judgment and decree has filed the appeal along with application for grant of maintenance pendente lite and litigation expenses. The application for condonation of delay has been allowed for the reasons stated in the application. Vide order dated 11.08.2010, the parties were directed to appear before the Mediation & Conciliation Centre and the husband was directed to pay Rs.11,000/- as litigation expenses. The mediation proceedings could not reach to any conclusion and the matter was sent back for decision and the counsel for the respondent-husband, on FAO No.M-109 of 2010 5 02.08.2011, 26.08.2011 and 14.09.2011 prayed for time to contact the respondent-husband so that the litigation expenses could be paid to the appellant-wife. Today also when the appeal was taken up, the counsel for the respondent-wife submitted that the respondent was not forthcoming, and therefore, the litigation expenses were never paid as fixed by this Court vide order dated 11.08.2010. Thus, from the above facts, it would be clear that the respondent-husband had failed to pay the litigation expenses even before the trial Court and his defence had been struck off on 24.03.2009 and even before this Court, he has not come forward to pay the litigation expenses. This Court has time and again held that where the conduct of the husband is such that he does not pay the litigation expenses, then the same amounts to contumacy and the law is not powerless in such a situation and the defence is to be struck off and the appeal is to be allowed. Reference can be safely made to Amarjit Kaur Vs. Sohan Singh 1979 PLR 749, Gurdev Kaur Vs. Dalip Singh 1980 Hindu LR 240, Sheela Devi Vs. Madan Lal 1981 Hindu LR 126, Sumarti Devi Vs. Jai Parkash, 1985 (1) Hindu LR 84, Asha Rani Vs. Yash Pal 1993 (Supplementary) CCC 277 and Rani Vs. Prakash Singh 1996 CCC 26.
Therefore, it has been the consistent precedent followed by this Court that a recalcitrant husband cannot be given any benefit of his inability to pay the maintenance and the defence of such a husband has to be struck off and it is his bounden duty to maintain his wife.
However, all the above referred cases are where the wife was in appeal against the judgment and decree of the Courts below granting relief to the husband and accordingly, the appeals had been allowed. In the present case, since the petition filed by the wife has been dismissed, it has become necessary to examine the FAO No.M-109 of 2010 6 reasoning of the learned District Judge, Faridkot declining the relief to the appellant-wife. As mentioned above, the sole reasoning for declining the allegations of cruelty were that they were routine in nature and such like allegations were levelled in divorce petitions filed by the women and there had never been any complaint to the police authorities. This reasoning of the learned District Judge, Faridkot, in our opinion, is not correct keeping in view the facts and circumstances as the appellant-wife has, apart from submitting an affidavit on oath, examined two more witnesses. The learned District Judge, Faridkot was swayed by the fact that the appellant-wife had, in her cross- examination, admitted that she would not go back to her matrimonial home even after the respondent-husband had sent a panchayat while admitting that their panchayat had approached the respondent-husband for her rehabilitation.
A perusal of the cross-examination, however, goes on to show that the appellant-wife was never cross- examined on the issue of forcible abortion and her operation of vasectomy/tubectomy and neither the counsel put any question regarding the demand of dowry or why she had not gone to the police. Therefore, the wife could never, in her cross-examination, explain the circumstances and reasons as to why she had not approached the police authorities. Similarly, Juma Singh PW2 who is the ex-sarpanch, Village Kingra, Tehsil and District Faridkot, to which the appellant- wife belongs, deposed in his cross-examination that the panchayat went to the house of the respondent-husband twice or thrice and he had accompanied the panchayat. No question regarding the forcible abortion or the medical operation which was conducted was put to him. Similarly, Pritam Singh PW3 who is the neighbour of the appellant- wife's parents has deposed in her favour and the sole suggestion put to him was whether he was present in the FAO No.M-109 of 2010 7 hospital at the time of the operation of the appellant-wife and there is no suggestion regarding why the appellant-wife had not approached the higher authorities. Therefore, in our opinion keeping in view the fact that the respondent- husband had pleaded in his written statement that he was willing to rehabilitate his wife was a totally false plea as he even failed to maintain her before the trial Court as well as before this Court which goes on to show that he was absolutely indifferent to his wife and did not care whether she starved or not. The appellant-wife who is the mother of two minor children would not have left her matrimonial home until there was some circumstances beyond her control as the love for the children by a mother is natural and it was only in extreme case that a mother would desert her children without any valid reason or cause. The learned District Judge, Faridkot, in our view, was in error in not taking into consideration the fact that the parties had not resided together since June, 2007 and efforts for re- conciliation had failed at all points and the marriage had become a deadwood and irretrievably broken down. Accordingly, a pragmatic approach should have been taken and the marriage should have been dissolved especially keeping in view the fact that there was no evidence contrary by the respondent-husband to discredit the statement of other witnesses in respect of the allegations of cruelty. The Hon'ble Supreme Court in Sujata Uday Patil Vs. Uday Madhukar Patil 2007(3) PLR 521 has held that liberal approach has to be taken in dealing with Section 13 of the Act and that the degree of cruelty has to be inferred from the facts and circumstances of the each case and where there is proof of a deliberate course of conduct on the part of one spouse, intending to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. In para 10 of the judgment, the following has FAO No.M-109 of 2010 8 been laid down by the Hon'ble Supreme Court :-
"Matrimonial disputes have to be decided by courts in a pragmatic manner keeping in view the ground realities. For this purpose a host of factors have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offsprings. Thus the court has to decide in the fact and circumstances of each case and it is not possible to lay down any fixed standards or even guidelines."
Accordingly, the present appeal is allowed and the judgment and decree dated 1.5.2009 of the Court below are set aside and the appeal filed by the appellant-wife is accepted and the marriage of the parties is dissolved by granting a decree of divorce.
(G.S.SANDHAWALIA) JUDGE (HEMANT GUPTA) JUDGE 08.11.2011 sailesh/Pka