Punjab-Haryana High Court
Nirmala Devi vs Jagbir Singh on 5 August, 2013
Author: S.S.Saron
Bench: S.S.Saron
FAO No.M-129 of 1997 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.M-129 of 1997 (O & M)
Date of decision: 05.08.2013
Nirmala Devi .....Appellant
versus
Jagbir Singh .... Respondent
CORAM : HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present: Mr.Sumeet Sangwan, Advocate for the appellant.
Ms. Ekta Thakur, Advocate for the respondent.
****
S.S. SARON, J.
This appeal has been filed by the appellant-Nirmala Devi against the judgment and decree dated 01.09.1997 passed by the learned District Judge, Sonepat whereby the petition of the respondent-husband seeking dissolution of the marriage between the parties by a decree of divorce has been allowed.
The marriage between the parties was solemnized on 23.04.1982 at village Surakhpur, Tehsil Jhajjar, Distt. Rohtak according to Hindu rites and ceremonies. The parties were not earlier married. After marriage they lived as husband and wife at village Khanda, Tehsil and District Sonepat. According to the respondent-husband they had no issue from the marriage. It was alleged by the respondent-husband that since the time of Amit Kaundalsolemnization of their marriage, the appellant-wife used to visit her 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -2- parents' house at her own will and wishes; besides, without the consent or permission of the respondent and his other family members. The appellant-wife on 14.12.1992 made a statement before the then learned District Judge, Sonepat in a petition under Section 9 of the Hindu Marriage Act, 1955 that was filed by the respondent-husband on 01.09.1992 that she was ready to accompany him to their matrimonial home from the Court itself. The respondent-husband, then visited the house of the appellant-wife on 27.12.1992 at village Surakhpur to bring her to his house. However, the brother of the appellant namely Mahabir Singh (RW-2) as also her mother; besides, she herself misbehaved with him. The appellant flatly refused to accompany the respondent-husband. The petition under Section 9 of the Hindu Marriage Act was ultimately dismissed as withdrawn on 14.12.1992. The behaviour of the appellant towards the respondent-husband and his family members, it is submitted, was quarrelsome from the very beginning. She used to leave the house of the respondent-husband without prior consent or permission. The appellant, it is alleged, had illicit relations with the younger brother of the respondent namely Nafe Singh (PW-2). Both were seen in a compromising position by the respondent-husband on 29.05.1993 at Sabzi Mandi, Delhi. A false case was registered against the respondent on 08.04.1994 at Police Station Kharkhoda under Sections 323 and 506 of the Indian Penal Code ('IPC'-for short) so as to harass the respondent-husband. The respondent- husband after knowing about the arrest of his parents and uncle went Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -3- to the Police Station Kharkhoda with his younger brother Narain Singh. The SHO of the police station arrested him and his brother and he was subjected to cruelty in the presence of the appellant-wife. The appellant-wife for the last three years was living out of the house of the respondent-husband by leaving his company. She had been leading an adulterous life in village Mokhra (Rohtak) and she had conceived at that time. She tried to live with the respondent by force and with the help of the police. The respondent was pressurized by the Police to keep the appellant as his wife, which he refused. The appellant with her brother's wife on one occasion came to the school of the respondent-husband in village Pooth Khurd (Delhi) on 23.12.1993 where the respondent in those days was posted as a teacher. The appellant and her brother's wife both started creating nuisance in the presence of the staff members and students of the school. They quarrelled with him; besides, used filthy language. They were, however, sent back after persuasion by the staff members. The respondent-husband along with Pirthi Singh Lambardar and Chander Singh resident of Sehri went to the house of the appellant to persuade her and her family members but they flatly refused to reconcile the matter. The respondent-husband accompanied with other persons returned to their home. It is alleged that the appellant left the matrimonial home of the respondent- husband without and against the will and wishes of the respondent in February, 1992. All articles including clothes, utensils, ornaments etc. were taken by her while leaving his house. The attitude of the Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -4- appellant during her stay at the matrimonial home with the respondent was insulting and disrespectful. Her illicit relations with the younger brother of the respondent and other persons of village Mokhra; besides, remaining out for the entire nights amounted to cruelty on her part. She had left the matrimonial home to indulge in illicit relations with others which caused great mental harassment and agony to the respondent-husband. Since February 1992, the appellant was residing out of her matrimonial home by deserting the respondent. No person from the side of the appellant tried to pacify the dispute between the parties and even did not try to visit the house of the respondent-husband.
On notice, written statement was filed by the appellant-wife. The factum of marriage between the parties and living together for sometime is admitted. However, it is denied that no issue was born from the wed-lock between the parties. A son, it is stated, was born from the marriage between the parties on 30.09.1994. It was denied that the appellant had ever left the house of the respondent-husband or that she used to visit her parents' house at her own free will and against the wishes of the respondent. The appellant-wife in fact, it is alleged, was turned out of her matrimonial home. The respondent- husband had filed a petition under Section 9 of the Hindu Marriage Act to make out a ground for seeking divorce. The appellant-wife was ever willing and ready to live with the respondent-husband but she had been turned out by beating her. In Court proceedings, the appellant had expressed her willingness to live with the respondent Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -5- and accompany him to his house but the respondent was not sincere to take her back to his house. On coming out of the Court room, he refused to take her to his house with him. He promised to come on the next day to her house and take her back but he never came. All efforts made by the appellant and her parents to persuade the respondent to take back the appellant, proved futile. Mahabir Singh- brother of the appellant, Om Parkash and others visited the house of the respondent-husband to prevail upon him for the above said purpose but the respondent remained adamant. He stated that he would not allow the appellant to come back to his house. It was incorrect that the respondent ever visited the house of the appellant's father as alleged. The petition under Section 9 of the Hindu Marriage Act was rightly dismissed as the same had been filed without any valid reasons. The allegations of the respondent against the appellant regarding her illicit relations with his younger brother, it is submitted, had been concocted simply to secure divorce. It is submitted that the appellant was given a severe beating by the respondent and his other family members. She was turned out of her matrimonial home in early April, 1994. Multiple and serious injuries were caused to her. She was admitted in the Civil Hospital, Kharkhoda where she remained under treatment for four days. The appellant did not try to sever her relations with the respondent and she did not pursue the case. It was incorrect that the appellant was living separate from the respondent for the last three years. Actually she was forced to live apart as she had been turned out by the Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -6- respondent in April, 1994. The respondent had made wild and false allegations against her regarding leading an adulterous life as a shameful device to obtain divorce. The appellant was ever willing to live with the respondent but he for no sufficient cause was not allowing her to resume matrimonial relations. The respondent filed replication to the written statement of the appellant. The learned trial Court on the pleadings of the parties framed the following issues:-
1. Whether the respondent (now appellant) has treated the petitioner (now respondent) with cruelty and as such the petitioner (now respondent) is entitled to a decree of divorce? OPP.
2. Whether the respondent (now appellant) has left the company of the petitioner (now respondent) without any rhyme or reason and as such deserted the petitioner (now respondent)? OPP.
3. Whether the respondent (now appellant) was living in adultery and as such the petitioner (now respondent) is entitled to a decree of divorce? OPP.
4. Relief.
The learned trial Court after considering the evidence and material on record held issue No.1 to be proved against the appellant. It was observed that the appellant went to the brother of the respondent namely Nafe Singh (PW-2) and started residing with him and she was found in a compromising position with him. Thereafter she gave birth to a male child from the loins of an Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -7- unknown person. The respondent-husband examined his brother Nafe Singh as PW-2 and he deposed that he had illicit relations with the appellant in his village from the very inception of the marriage between the parties. In May, 1990 he went to Delhi and started doing service there. The appellant visited him twice at Delhi. Both of them were caught in a compromising position by Jagbir Singh (respondent) on 28/29.05.1993. Issue No.2 was also decided against the appellant. It was held that since 1990, the appellant had deserted the respondent and this was a valid ground for divorce. Issue No.3 was also decided against the appellant and in view of the illicit relations of the appellant with the brother (Nafe Singh PW-2) of the respondent, it was held that she was living in adultery. The petition was accordingly allowed.
Aggrieved against the same, the appellant has filed the present appeal.
We have heard learned counsel for the parties and with their assistance gone through the pleadings of the parties and the evidence and material on record. The petitioner (now respondent) in support of his case examined himself as PW-1. It is stated by him that the appellant resided with him as his wife after marriage upto five years. They had no issue from the marriage. The appellant's behaviour towards him had been quarrelsome. She left his house in December, 1990. He took a Panchayat to the house of the appellant in 1991. Her parents told them that she was not at her parent's house and had gone to her sister in law. He had filed a petition Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -8- under Section 9 of the Hindu Marriage Act on 01.01.1992. The appellant appeared in Court and made a statement to rejoin him in their matrimonial home. On that account he withdrew the petition and the same was dismissed as withdrawn on 14.12.1992. Then on 27.12.1992, he along with the Panchayat went to bring her back. The appellant was, however, not found at her parental home. Parents of the appellant and her brothers misbehaved with them. His younger brother Nafe Singh (PW-2) it is stated works on a transport vehicle and he ordinarily resides at Delhi. The appellant had illicit relations with his brother. She generally resides in village Mokhra with her sister. Pirthi Singh Lambardar and one Chander Singh had accompanied him as members of the Panchayat when he went to bring the appellant. The appellant had given birth to a male child that was not from him. He had himself seen the appellant living in adultery with his brother. When they objected then she got a case registered against him and his another brother and his parents at Police Station Kharkhoda. She had been residing away from him without any reasonable cause since 1992. The respondent-Jagbir Singh was cross-examined by the appellant. It is inter alia stated by him that he had seen the appellant with one Azad Singh in a compromising position on 28.05.1993 at noon time. He was not in a position to tell the houses situated in the vicinity where he saw the appellant and Nafe Singh (PW-2) in a compromising position because certain shops had been constructed there.
Nafe Singh (PW-2) was examined by the respondent-
Amit Kaundal2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -9- husband and he stated that he had illicit relations with the appellant at his village Khanda from the very inception of the marriage between the parties. In 1990 he went to Delhi and started service. The appellant visited him twice at Delhi. On 28/29.05.1993, Nafe Singh (PW-2) and the appellant were caught by Jagbir Singh (respondent) in a compromising position. She had not visited village Khanda for the last 5-6 years. In cross-examination it is stated that when Jagbir Singh (respondent) had caught him and the appellant, he did not raise an alarm.
Pirthi Singh (PW-3) was examined by the respondent- husband. He stated that marriage of the parties took place 15-16 years back. They had no child from the marriage. A case was registered at Police Station Kharkhoda about 5-6 years back. A compromise was reached at between the parties at Police Station Kharkhoda and the appellant resumed matrimonial relations with the respondent. She started living with him. Another case under Section 9 of the Hindu Marriage Act was filed by Jagbir Singh (respondent) against the appellant. That also ended in a compromise. Nirmala Devi (appellant) agreed to join her matrimonial home. Jagbir Singh (respondent) went to bring her after the 'Teej' festival but she could not accompany him on account of illness. Again Jagbir Singh (respondent) went to bring her but again she declined to accompany him. Prithi Singh (PW-3), Chander and 3-4 other persons went to the parental home of the appellant. The parents of the appellant did not allow them to sit at their house nor Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -10- did they talk with them and they then returned. Nirmala Devi (appellant) after about 2 years of her marriage visited village Khanda 2 to 4 times and thereafter they never saw her in the village. Pirthi Singh (PW-3) was cross-examined and the evidence of the respondent-husband was closed.
Nirmala Devi (appellant) then examined herself as RW-1. She stated that she was turned out from her matrimonial home in April, 1994. At that time she was 4-5 months pregnant from the respondent. After four months she delivered at her house. During the said period neither the respondent came to her nor any Panchayat was brought by him. First of all, her brother went to the respondent with the request that Nirmala Devi (appellant) should be taken to her matrimonial home but the respondent declined to re- settle her. Thereafter, a Panchayat had gone but even then the respondent did not agree to the proposal of the Panchayat. The respondent declined to settle her because she was not good looking. Nafe Singh, it is stated, is the brother of the respondent. She had no suspicious relations with him. She was still ready and willing to settle with the respondent-husband. She was cross-examined on behalf of the respondent-husband. She denied the suggestion that she was residing with one Ved Pal of village Mokhra. It is also stated as incorrect to suggest that after the compromise of the petition for restitution of conjugal rights, the respondent had gone to bring her back but she declined to accompany him. It is also stated as incorrect that Lambardar Pirthi Singh (PW-3) and Chander had Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -11- accompanied the respondent to bring her but she declined to accompany him. It is stated as incorrect to suggest that she had illicit relations with Nafe Singh (PW-2) prior to his (Nafe Singh's) marriage or that once or twice they had been caught in a compromising position.
Mahabir brother of the appellant was examined as RW-2. It is stated by him that in 1994 the respondent Jagbir Singh deserted the appellant Nirmala Devi. At that time she was pregnant. When the appellant was turned out by the respondent, he (Mahabir RW-2) went to the house of the respondent. The respondent declined to settle her. After delivery he (Mahabir RW-2) again went to the respondent. Mahabir (RW-2) himself, Om Parkash Sarpanch and Naresh Lambardar had gone to the house of the respondent for a settlement. The respondent, it is stated, declined to resettle her because she was dark complexioned. He wanted to remarry. No Panchayat ever came to their house from the side of the respondent. Mahabir (RW-2) was cross-examined. He stated as correct that his other sister Savitri was married to Narain Singh (brother of the respondent) and that marriage ended in divorce. The marriage between the parties was solemnized in 1982. Nirmala Devi (appellant) resided with the respondent happily for five years. From 1987 to 1994 she again resided with the respondent. She was turned out from the matrimonial home in 1994. It was incorrect that after marriage Nirmala Devi (appellant) used to slip away from the house of the respondent without his permission. It is stated as Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -12- incorrect that the respondent had informed them that Nirmala Devi (appellant) had illicit relations with Nafe Singh (PW-2). It was further stated as incorrect to suggest that at the time of his deposition i.e. on 12.08.1997, she was residing with Ved Singh of Mokhra. It was also stated as incorrect to suggest that the respondent had taken Panchayats many a times to their house or that they had declined to send the appellant with the respondent.
On appreciation of the evidence and material on record, we find that the conclusions reached at by the learned trial Court that the appellant was leading an adulterous life or that she had undesirable relations with Nafe Singh (PW-2), which resulted in cruelty, are unfounded and are based on incorrect appreciation of the evidence on record. General and vague allegations of adultery have been made in the petition. These were sought to be enlarged by making allegations during depositions in Court. This Court in exercise of powers under Section 14 and 21 of the Hindu Marriage Act has framed the Hindu Marriage (Punjab) Rules, 1956. Rule 6 thereof reads as under:-
"6. Full acts of adultery to be given,--- In any petition for divorce the petitioner shall be required to give particulars as nearly as he can of the acts of adultery alleged to have been committed by the respondent or respondents as the case may be."
In the petition for seeking divorce filed by the respondent, it has been alleged by him that the appellant was leading an adulterous Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -13- life with his younger brother Nafe Singh (PW-2). There is a vague mention of others with whom the appellant is said to be leading an adulterous life. Therefore, the petition lacks complete and full particulars of the acts of adultery alleged to have been committed by the respondent, who is now the appellant. Besides, the standard of proof in a petition seeking matrimonial relief on the ground of adultery is quasi criminal in nature, that is, of proof beyond substantial reasonable doubt as distinguished from mere preponderances of probabilities. A Division Bench of this Court in Balwinder Singh versus Ranjit Kaur, FAO No.M-243 of 2012 decided on 09.05.2013 has considered this aspect and held that the Court is to be satisfied on the basis of evidence and material on record that the respondent in the petition has been leading an adulterous life. The standard of proof for which is higher than that of reaching the conclusion on mere preponderances of probabilities. In the present case, the respondent has alleged that the appellant was leading an adulterous life with his brother Nafe Singh (PW-2). The respondent examined Nafe Singh in his evidence as PW-2 and he states in his examination-in-chief that he and the wife of his brother (i.e. the appellant) were caught in a compromising position by the respondent. We are of the view that this is an entirely incorrect approach to the appreciation of evidence of the brother of the respondent who while appearing for the respondent as a witness states that he was caught in a compromising position with the appellant by the respondent. In fact such an evidence where the brother of a petitioner seeking Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -14- matrimonial relief of divorce from his spouse stating that he had undesirable relations with his brother's wife is liable to be ruled out of consideration being somewhat collusive in nature. It would be wholly improper to rely on such evidence where the brother (Nafe Singh) of the respondent appears and states that his brother's wife was living in adultery with him and that too from the very inception of the marriage. Therefore, we are unable to accept such evidence where the brother of the husband appears as a witness for him to state that his wife is living in adultery with him. If such evidence is to be accepted, it would be quite easy for any person to raise such allegations and prove it on the basis of such evidence. Therefore, the evidence of Nafe Singh (PW-2) is liable to be ruled out of consideration insofar as it has been alleged that his brother's wife was leading an adulterous life with him and on the basis of such evidence grant divorce to the respondent. This is more so for the reason that he has appeared as a witness at the behest of the respondent. The findings of cruelty reached at by the learned trial Court is also on the basis that the appellant was living in adultery with Nafe Singh (PW-2) are not sustainable.
The other allegation regarding adulterous life stated to be led by the appellant is that she had undesirable relations with one Ved Pal of village Mokhra. However, in the petition it is merely alleged that she had illicit relations with younger brother of the respondent and other persons at village Mokhra. The name of Ved Pal of village Mokhra is not mentioned in the pleadings. Jagbir Singh Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -15- (respondent) while appearing as PW-1 in his deposition in Court stated that appellant had illicit relations with his brother (Nafe Singh); besides, she generally resides in village Mokhra with her sister. He does not state in his evidence that she had illicit relations with Ved Pal. He rather states that he saw the appellant with one Azad Singh in a compromising position on 28.05.1993. The name of Azad Singh is also not mentioned in the petition and neither is it stated in the examination-in-chief but has been mentioned in the cross- examination. The appellant Nirmala had appeared as a witness as RW-1 and she denied that she had any suspicious relation with Nafe Singh brother of the respondent. In cross-examination she denied as incorrect to suggest that she had been residing with one Ved Pal of village Mokhra. No suggestion was put to her that she was caught in a compromising position with Azad Singh. Mahabir (RW-2) brother of the appellant was examined by the appellant-wife and in his cross- examination he states as incorrect to suggest that at the time of his deposition the appellant was residing with Ved Singh of village Mokhra. Therefore, at places the appellant-wife is said to be having undesirable relations with Ved Singh of village Mokhra and at times it is mentioned as Ved Pal. This in fact goes to show the hollowness of the stand of the respondent-husband as regards the alleged illicit and undesirable realtions of the appellant. Besides, there is no mention of these names in the pleadings which is an infraction of Rule 6 of the Hindu Marriage (Punjab) Rules, 1956 referred to above, which enjoin that in a petition for divorce the petitioner shall be Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -16- required to give particulars as nearly as he can of the acts of adultery alleged to have been committed by the respondent or respondents as the case may be; besides, the standard of proof for proving the charge of adultery in order to obtain a matrimonial relief is quasi criminal in nature and is to be established on the basis of proof beyond reasonable substantial doubt and not on mere probabilities or preponderances of evidence. Even otherwise the stand of the respondent that the child of the parties was not born from him is absolutely untenable. Ms. Ekta Thakur, Advocate for the respondent during the course of hearing placed on record a copy of the order dated 27.07.2000 passed by the learned Judicial Magistrate Ist Class, Sonepat. A perusal of the said order shows that a FIR was lodged by the appellant-Nirmala Devi against the respondent-Jagbir Singh and his brother Narian Singh. In pursuance of the said order dated 27.07.2000 passed by the learned Judicial Magistrate Ist Class, Sonepat, the accused Jagbir Singh (respondnet) and his brother Narain Singh were acquitted. The order was not part of the record of the trial Court. However, we consider that the same should be taken on record as it would be necessary to reach at a just conclusion in the case. After the enactment of the Family Courts Act, 1984, the rules of evidence in matrimonial disputes have been softened. Section 14 of the Family Courts Act reads as under:-
"14.Application of Indian Evidence Act, 1872. - A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -17- assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872."
The said Family Courts Act 1984, deals with disputes relating to family affairs including matrimonial disputes before the Family Courts. In the statement of objects and reasons mentioned in the said Act it is inter alia stated that several associations of women, other organisations had urged, from time to time that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. One of the objects of the Family Courts Act was to relax the rules of procedure and evidence. In fact the object and spirit of Section 14 of the Family Courts Act is to deal with disputes relating to family affairs between the parties in its entirety without insisting upon and subjecting the parties to technical and procedural requirements of proving documents. Therefore, strict procedural requirements of proving a document as provided for under the Indian Evidence Act, 1872 are inapplicable and the Court can take into consideration a document or documents which in its opinion would assist it to deal effectually with the dispute whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act. The said provision though applicable to Family Courts Act, the principles underlying it would equally apply to other family disputes between the parties as the object and intention of the legislature in Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -18- enacting the said Act is with a view to permit the conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.
The said order dated 27.07.2000 passed by the learned Judicial Magistrate Ist Class, Sonepat shows that the appellant lodged FIR No.78 dated 09.04.1994 at Police Station Kharkhoda for the offences under Sections 323 and 506 read with Section 34 of the Indian Penal Code. The appellant in her deposition as RW-1 also states that she was turned out from the matrimonial home in April, 1994. Therefore, the said FIR registered on 09.04.1994 shows that dispute had occurred between the parties in April, 1994 which resulted in the registration of FIR. The police report (challan) was filed in the case on 22.04.1994. The respondent and his brother Narain Singh were acquitted on 27.07.2000 as Dr. Puran Singh (PW-1) and the eye witness namely Beer Singh (PW-2) had turned hostile and did not support the prosecution case. The said circumstances show that the dispute between the parties had occurred in April, 1994 and till then they were together and had access to each other. This in fact is the stand of the appellant even. Therefore, the child that was born on 30.09.1994 cannot by any stretch of imagination said to be illegtimate. Rather there is in fact a conclusive proof to the legtimacy of the child in terms of Section 112 of the Evidence Act, which enjoins that the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days of its Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -19- dissolution, the mother remaining un-married, shall remain conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Therefore, there is no doubt with regard to the legitimacy of the child of the parties who was born on 30.09.1994. The respondent has led no evidence to show that he did not have access to the appellant for a period of two hundred and eighty days prior to the birth of the child. The son was born during the subsistence of marriage between the parties and it cannot be said that it is not known as to whose son he was. Besides, Section 112 of the Evidence Act envisages a presumption of a child being legitimate. The presumption can be dislodged by strong evidence and not on the basis of mere probabilities. Therefore, findings on issue No.1 and 3 reached at by the learned trial Court are unsustainable and are set aside.
Insofar as issue No.2 is concerned, it may be noticed that the appellant was turned out of the matrimonial home by the respondent in April, 1994. The factual position is that the marriage between the parties was solemnized on 23.04.1982. The respondent-husband filed a petition under Section 9 of the Hindu Marriage Act on 01.09.1992. The same was withdrawn on 14.12.1992. According to the respondent when he went to the house of the appellant to get her on 27.12.1992, she refused to return. It may, however, be noticed that the parties had in fact been living together till April, 1994 and they had a son from the marriage on Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -20- 30.09.1994.
According to Shri Sumeet Sangwan, Advocate for the appellant, the criminal case had been compromised between the parties and, therefore, the witnesses had turned hostile, which resulted in the acquittal of the respondent. However, we find that in case the matter had been compromised, the offences could have been got compounded as both the offences are compoundable by the person to whom the hurt is caused in terms of Section 320 of the Code of Criminal Procedure. Therefore, it cannot be said that the matter had been compromised and for the said reason the witnesses had turned hostile. The parties were in litigation from April, 1994 till 27.07.2000 when the criminal case resulted in acquittal of the respondent and his brother. Therefore, during this period when the criminal case was pending, it appears quite unlikely that Mahabir (RW-2) would go to the house of the respondent and ask him to keep the appellant with him; besides, it is stated in the written statement that Mahabir (RW-2) and Om Parkash and others visited the house of the respondent to prevail upon him for the above said purpose. Mahabir while appearing as RW-2 states that he along with Om Parkash Sarpanch and Naresh Lambardar had gone to the house of the respondent for a settlement. However, Om Parkash Sarpanch or Naresh Lambardar have not been examined. In fact the name of Naresh Lambardar is not even mentioned in the written statement. Besides, as already noticed there would be no occasion for Mahabir (RW-2) to go to the house of the respondent till 27.07.2000 when the Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -21- criminal case against the respondent and his brother was pending and was dismissed on the said date. Therefore, we find that a case was got registered by the appellant against the respondent on 09.04.1994 and it is since then that the parties had been living separately. The accused in the case were acquitted as the witnesses had turned hostile. Therefore, it can be said that a fallacious case was got registered by the appellant Nirmala Devi against the respondent and his brother. The petition for grant of divorce was filed on 05.10.1996. At that time the parties had been living separately for a period of more than two years preceding the filing of the petition. In view of the criminal case there had been no cohabitation between them after April 1994. Desertion for the purpose of matrimonial relief of divorce has been understood to mean that the spouse deserting the petitioner claiming the relief had deserted him or her without reasonable cause and without his or her consent or against his or her wishes. It includes wilful neglect of the petitioner by the other party to the marriage. It has been understood to mean rejection by one party of all marital obligations. It means permanent forsaking and abandonment of one spouse by the other without reasonable cause and without the consent of the other. It is a total repudiation of marital obligations. It is an end to the two in one ship and to marital togetherness. Desertion has been classified as (a) actual desertion, (b) constructive desertion and (c) wilful neglect. Though wilful neglect is considered part of constructive desertion. The main elements of desertion are the fact of separation Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -22- (factum deserdendi) and intention to desert (animus deserdendi). These apply to the spouse who is in desertion. The deserting spouse must have left the other party with an intention to forsake and abandon the other permanently. Besides, the deserted spouse must have not provided reasonable excuse or cause for the deserting spouse to leave or withdraw from cohabitation and he or she should not give his or her consent for the act of desertion. Applying the test in the present case it is to be noticed that the appellant had left the matrimonial home and lodged a FIR on 09.04.1994. The police investigated the case and filed police report on 22.04.1994. The case continued till 27.07.2000 when the respondent and his brother were acquitted. With the acquittal of the respondent, it can well be inferred that the appellant had deserted the respondent and had left the matrimonial home without reasonable cause and there is the fact of separation (factum deserdendi) and intention to desert (animus deserdendi). It was without reasonable cause and without the consent of the respondent; besides, it continued for a period of two years till the filing of the petition by the appellant and even thereafter as the criminal case continued till 27.07.2000.
Another fact that may be noticed is that the present appeal was dismissed for non-prosecution on 27.11.2008. The appellant then filed CM No.5617-CII of 2010 under Order 41 Rule 19 read with Section 151 Code of Civil Procedure for readmission/restoration of the appeal along with CM No.5616-CII of 2010 seeking condonation of 431 days' delay in filing the application for restoration of the Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh FAO No.M-129 of 1997 (O & M) -23- appeal. According to Ms. Ekta Thakur, Advocate for the respondent, the respondent has remarried during this period. Mr. Sumeet Sangwan, Advocate for the appellant has, however, disputed this position. Since this is not a matter in issue between the parties, we have noticed it only as a fact since there was considerable deliberations on this during the course of hearing. In any case delay was condoned and the appeal restored.
Consequently, we hold that the findings on issues No.1 and 3 are liable to be set aside and are accordingly set aside. However, the appeal of the appellant is dismissed in view of our findings on issue No.2 that the appellant had deserted the respondent for a continuous period of two years from April 1994 till the filing of the petition by the respondent.
(S.S. SARON) JUDGE (S.P.BANGARH) JUDGE 05.08.2013 A.Kaundal Amit Kaundal 2013.09.11 10:20 I attest to the accuracy and integrity of this document Chandigarh