Punjab-Haryana High Court
Baldev Singh vs Karamjit Kaur on 13 March, 1995
Equivalent citations: I(1996)DMC440, (1995)111PLR666
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. The appellant-petitioner has assailed the decree of dismissal of his divorce petition, under Section 28 of the Hindu Marriage Act (in short 'the Act').
2. Stated briefly the facts of the case are that the appellant petitioner married the respondent on 15.4.1984 at village Ablu according to Anand Karaj. Thereafter, they lived together and cohabited with each other.
3. The petitioner's contention is that after marriage the respondent lived with him only for two years. She could not give birth to any child. She started pressing upon him to live separately from his parents. As he was maintaining his old parents and unmarried sister, he declined to exceed to her desire. She started quarreling with him, declined to prepare food for the family. Her sister is married to his brother. Both the sisters joined hands. On 1.4.1986 both of them left the matrimonial home alongwith their belongings and valuables. Thereafter he made many attempts to bring her back. He and his father and members of the Panchayat went to her parental home but she declined to rejoin him. On 10.9.1989, he and his father sent to village Ablu to bring her back but she declined and threatened him to claim maintenance. On 18.9.1989 to his charging, he and his father were arrested by the police and were produced handcuffed before the Executive Magistrate. The case was registered under Sections 107/151 of the Criminal Procedure Code against them. Thus, they were humiliated at the instance of the respondent. The respondent deserted him for a continuous period of three years immediately proceeding the presentation of the petition. Thus he prayed for a decree of divorce under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act on the grounds of cruelty and desertion.
4. The respondent in her statement pleaded inter alia that she lived in matrimonial home till 11.9.1989. She was harassed and ill-treated by the husband and by his mother and sister as she could not give birth to any issue in this wedlock and she could not satisfy their demand for dowry. She and her sister were beaten by him and his relations. Both the sisters were turned out of the matrimonial home in their wearing apparel only. Her brother alongwith certain other persons came to the petitioner's house and explained that he could not give more dowry as they are poor persons. In the month of September, 1989, she was wrongly confined in the matrimonial home. Her brother Mukand Singh got her recovered therefrom with the help of the police on 11.9.1989. On that date, she was medically examined as she sustained injuries due to the beating given to her by the petitioners. The petitioner never made any attempt to rehabilitate her. No Panchayat was brought by him. Thus she has denied both the grounds of divorce i.e. desertion and cruelty.
5. Parties adduced ocular and documentary evidence. Scanning the evidence, the Trial Court came to conclusion that the husband has failed to prove both the grounds of divorce. Hence, his petition was dismissed vide judgment dated 20.7.1991.
6. The appellant's learned Counsel contend that the Trial Court has not minutely scanned the evidence adduced by the appellant. He has given finding on both the issues simply on one fact that the case was registered under Sections 107/151 Cr.P.C against the petitioner and his father wherein they confessed their guilt. According to him that evidence is not admissible in this civil matter. He further pointed out that the Trial Court has not considered this part of the petitioner's evidence that the respondent has deserted him on 14.8.1986 and since then she is living separately without any reasonable cause or excuse. Thus according to him the petitioner has successfully proved the ground of desertion. The essential parameter of desertion i.e. animus deserendi is proved by him as he has stated on oath that thereafter he and his father went to her parental home to bring her back but she declined to come back and even her parents refused to send her back. He took Panchayat also to her village thrice but every attempt was fruitless.
7. He also stressed that on her false report police registered case under Sections 107/151 Cr.P.C. against the petitioner and his father. They were handcuffed by the police, were detained in Police Station for a day and were later on produced before the Executive Magistrate where on their furnishing bail bonds, they were released. He also pointed out that there is no documentary proof on record that in that criminal case the petitioner and his father confessed their guilt. Thus the petitioner was humiliated by the respondent. This by itself amounts to mental cruelty and on this ount also the petitioner was entitled to divorce under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act.
8. The respondent's learned Counsel contended that she has proved by examining herself and her brother that she was ill-treated and was subjected to beating by the petitioner. She was living in the matrimonial home. 2-3 times she was turned out by the petitioner from the matrimonial home after beating her. Her parents and brother always tried to reconcile the matter and left her at her matrimonial home but again after sometime the petitioner beat her and turned her out of the house. He further argued that in the month of September, 1989, she was beaten by her husband and father-in-law. She sustained various injuries which are apparent from the MLR Exh. R-2. On the following day, her brother came to her. She narrated the whole incident to him and then he brought the police and got her recovered from the matrimonial home. Immediately, she was sent for medical examination as she was having injuries on her person. A report was lodged and a case under Sections 107/151 Cr.P.C. was registered against the petitioner and his father. Thus she has proved that she was subjected to cruelty and on that count since 11.9.1989 she has not resumed cohabitation nor has gone to matrimonial home. Thus she has proved that there is reasonable cause as well as excuse for her withdrawal from his society. Now, he cannot take advantage of his own wrong and claim divorce on this count. He further submitted that in the criminal case registered under Sections 107/151 Cr.P.C. the petitioner and his father confessed their guilt and when they furnished security bonds, they were bound down and released. The respondent had produced documentary evidence to that effect which are at Ex. P-l, Ex. P-2 and Ex. P.4, Ex. P-5, Ex. RA, Ex. R-l and Ex. R-2.
9. From a bare perusal of the report Ex. P-l and Ex. R-l and Ex. R-A, it is evident that she and her brother made specific allegations on 11.8.1989 that she was subjected to cruelty by the petitioner and his father. She was beaten. She sustained injuries which are evident from Ex. R-2. From this report and her statement Ex. R-l recorded by the Police, it is evident that demand of dowry was also made. No doubt, there is no documentary evidence to prove that the petitioner and his father confessed their guilt in that criminal case but he pointed out that Daiip Singh, PW-5 father of the petitioner has admitted in unequivocal terms in the cross-examination that in that criminal prosecution he and his son, Baldev Singh made a confessional statement in the Court and they were bound down for one year by the Court. They submitted surety bonds in the Court. Even the petitioner's witness Harminder Singh PW-4 admitted in the cross-examination that Baldev Singh and Dalip Singh confessed their guilt and they were bound down for one year. According to him, after this admission made by the witnesses of the petitioner, the respondent was not required to adduce any documentary evidence to prove that the petitioner and his father admitted their guilt in the Court. He contended that by making a confessional statement in the Criminal Court, the petitioner and his father admitted not only that they made a demand of dowry but also that they had given beatings to the respondent. The respondent is living in her parental home since then. That cannot be termed as desertion by her. She was made to desert him. She has not left the matrimonial home but she has taken refuge in her parental home when she was so cruelty treated by her husband. Thus, she has reasonable cause to live separately.
10. I have been taken through the entire oral and documentary evidence of record. In my opinion, Trial Court's judgment does not suffer from any infirmity. Admittedly, at the instance of the respondent and her brother, a case was registered against the petitioner and his father under Sections 107 and 151 of the Criminal Procedure Code. The prosecution ended as both the accused persons confessed their guilt and they were bound down for one year by giving surety of Rs. 10,000/-. The petitioner himself has examined Roshan Lal P.W.2 who has proved this fact. Harminder Singh, P.W. 4 stood surety for them. This proceeding would go a long way to corroborate the respondent's statement that she was subjected to cruelty by her husband and his relatives. The fact that the husband and his father had to face an enquiry under Sections 107/151 Cr.P.C. add on their confession they were bound down by the Magistrate proves that the prosecution was truly launched. During arguments, the petitioner's learned Counsel contended that to avoid a protracted trial if the petitioner and his father made any confessional statement in that criminal prosecution it cannot help the respondent to carve out a ground that she was treated cruely by her husband and thus on this count she has reasonable cause to live separately. The contention does not hold water. Had it been true the petitioner would have made such an allegations in his petition for divorce or atleast in his replication. Even on oath he has not stated so. The petitioner has not even stated that criminal prosecution need when he and his father made a confessional statement and thus were bound down for one year on giving surely bond of Rs. 10,000/-.
11. The appellant has pleaded that she lived with him only for two years. She left the matrimonial home on 14.8.1986. On oath he has stated that she deserted him on 14.8.1986. According to him, the ground for this desertion is that she wanted him to live separately. She was rude in her behaviour. She never prepared food for the family. On oath he has simply stated that she is a lady of hot-temperament. She refused to prepare food and do other house-hold work. She and her sister deserted the matrimonial home. He and his father and members of the Panchayat went to take her back but she declined to join him. Surjit Singh, Munshi Singh, Major Singh and Gurmaii Singh were the members of Panchayat. He has not examined any of these witnesses. Only he and his father have stated that they took Panchayat. They themselves went to bring her back but she declined.
12. Karmajit Kaur, respondent has stated on oath that after marriage for two years, he behaved properly. Thereafter, he started beating her on the ground that she is unable to give birth to a child. He and his mother and sister started demanding dowry. She was turned out of the matrimonial home, on 2-3 occasions. Every time, her parents and brother brought her back to matrimonial home and made a request to petitioner to rehabilitate her but again she was turned out of the matrimonial home by the petitioner, after being beaten. She is categoric that a day before she came alongwith her brother she was beaten by her husband and father-in-law. When she raised alarm, the neighbour raised hue and cry and thus they stopped beating her. On the other day (i.e. 11.9.1989), her brother came, she narrated the whole occurrence to him. He brought Police of Police Station, Kotakpura. Then she was medically examined. Her statement Rl was recorded and since then she is living at her parental home. No question is put to her in the cross-examination that she is a lady of hot temperament or she refused to cook food for the family. She has denied that she left the matrimonial home for 4 years 3 months back (she was examined in the Court on 20.2.1991). She has also denied that she asked the petitioner to live separately or he brought any Panchayat for her rehabilitation. She is duly corroborated by her brother. Mukand Singh, RW- 2 her brother has categorically stated that on month before the incident (i.e. 11.9.1989) she was left at her matrimonial home by him but again when she was maltreated by the husband he lodged a report at the Police Station, Kotakpura and with the help of the police he brought her back. She was medically examined as she had injuries on her person.
13. Thus, respondent has proved that she was subjected to cruelty by the husband and as on 10.9.1989, she was beaten by husband and father-in-law, she came back to her parental home on 11.9.1989 in the company of her brother and police. Her statement is duly corroborated by the documentary evidence adduced by her. Petitioner and his father confessed their guilt when they were prosecuted under Sections 107/151 Cr.P.C. that by itself proves that they demanded dowry and that they treated her with cruelty. Thus, the Trial Court has rightly held that on account of this cruel behaviour of the husband, the petitioner cannot take advantage of his own wrong and on this count he cannot be allowed to say that she has deserted him or by launching that criminal prosecution she has treated him with cruelty. Conversely he is guilty of constructive desertion.
14. Before parting with the judgment, it is also important to mention that the respondent's Counsel submitted that the appellant-petitioner has not paid maintenance from February, 1993 despite Court's order. On this count also the appellant's appeal is liable to be dismissed.
15. Finding no merit in the appeal, it is hereby dismissed with costs.