Allahabad High Court
Ashwani Kumar Kohli vs Smt. Anita on 11 March, 1998
Equivalent citations: 1998(2)AWC1531, II(1998)DMC664
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This is husband's first appeal, directed against the Judgment and order, dated 15th November, 1996. rendered by Shri V. P. Gaur, Judge Family Court, Barellly in M. M. Petition No. 358 of 1985, Ashwant Kumar Kohli v. Smt. Anita, under Section 13 of the Hindu Marriage Act, 1955, dismissing his petition for divorce.
2. Admittedly the parties were married on 11th May, 1981 as per Hindu customs and rites at Barellly. The plaintiff-appellant's grievances are that after the marriage, the respondent stayed with the appellant for a very short period and continued to make regular visits to her parent's house. The respondent was carrying pregnancy with someone else and hence in the first week of August, 1981 she went to the house of her parents and Illegally aborted the child. This created great mental shock to the plaintiff-appellant, and is a serious act of cruelty to the appellant. Thereafter she did not come to the appellant's house and after Intervention of common relations, the respondent came to the appellant's house. Finally in the last week of April, 1982, the respondent along with the jewellery, clothes, etc. left the house of the appellant and never returned, insplte of persistent efforts made by the appellant. The respondent had been harassing the appellant by filing false complaints against the appellant and other members of his family. By staying at her parent's house, the respondent has deprived the appellant of his right to have marital company. The respondent has deserted the appellant for more than two years without any sufficient cause. On the allegations of her cruelty and desertion, the appellant filed the marriage petition under Section 13 of the Hindu Marriage Act for a decree of divorce.
3. The respondent wife Smt. Anita, resisted the petition, alleged that the allegations of cruelty and desertion made by the petitioner appellant are concocted and false, and also the allegation of Illegal abortion made by the petitioner is also baseless and without any foundation. After the marriage, she continued to stay at the house of the petitioner and discharged her marital obligations even though the petitioner and the members of his family harassed and tortured the respondent for want of dowry. She denied that she left the house of the petitioner in the month of August, 1981 and aborted at her parent's house and further finally she left the petitioner's house in the month of April, 1982. The respondent alleged that she was living with the petitioner at Pithoragarh where the petitioner is employed. As the respondent had pregnancy, it was considered appropriate by the petitioner and the members of his family that delivery of the child should take place at the house of the parents of the respondent at Barellly, and so she came at the house of her parents where she gave birth to a male child, in Mrs. Stubb's Maternity and Child Welfare Society, Barellly on 21st September, 1982. There was rejoining at the house of the petitioner on the birth of the son to the parties. After the birth of the child, she started living with the parents of the petitioner in Barellly, the petitioner used to visit there, and also opened a joint Account in Central Bank of India at Barellly. While residing at the house of the petitioner-appellant at Barellly, she discharged her marital obligations. In the month of February, 1983, the respondent came to her parents house as her mother was ailing, and thereafter the petitioner never took the respondent to his house inspite of persistent efforts made by the respondent. The respondent Is and has always been willing to live with the petitioner.
4. Both the parties adduced evidence before the learned Judge, Family Court, the learned Judge after scanning the evidence on the record has found the grounds of divorce taken by the petitioner without force, and has rejected the petition. Being aggrieved, the petitioner-appellant has preferred this appeal.
5. We have heard the learned counsel Shri Navin Sinha for the appellant and Shri Faujdar Rai, learned counsel for the respondent, at length. and have gone through the record of the case.
6. As seen above, grounds of divorce taken by the appellant are of : (1) cruelly, and (2) desertion, open to the petitioner under clause (ia) and clause (ib) respectively of Section 13(1) of the Hindu Marriage Act, 1955. Both the parties filed certain documents, namely, a notice alleged to have been given by the appellant to the respondent on 10th November, 1981 through the counsel which remain unserved, and documents relating to the opening of an Account in Central Bank of India. The appellant Ashwanl Kumar A. W. 1, apart from examining himself has examined two more witnesses, Arun Kumar A.W. 2. and Anil Jauhari A. P. W. 3, on the other hand, the respondent Smt. Anita herself has entered the witness box. The learned counsel for both the parties fairly conceded that the documents filed in the case are of no help as they have not been proved in the case, the testimony of Arun Kumar A. P.W. 2 and Anil Jauhary A. P.W. 3, also does not render any assistance In the case. The case is to be adjudicated on the testimony of the two spouse. As regards the ground of cruelty, the allegation of the petitioner-appellant is that in the month of August, 1981, the respondent left the petitioner's house for her parents' house and there she illegally aborted. The learned counsel for the appellant fairly conceded that there is no evidence whatsoever on the record to establish this abortion. It has come in the statement of the petitioner-appellant that he had marital relations with the respondent till the month of April, 1982. The marriage took place in the month of May, 1981, so the question of illegal conception does not arise unless the appellant proves access or living of respondent with some other person. Consequently, the charge of abortion levelled by the petitioner-appellant and of cruelty made by the appellant, falls, the learned trial court has found accordingly. We find no reason to disagree with the finding recorded by the learned trial court.
7. As regards the ground of desertion, clause (ib) of Section 13 of the Hindu Marriage Act provides that, any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years Immediately preceding the presentation of the petition. Explanation appended to Section 13(1) of the Act reads as follows :
"In this sub-section, the expression "desertion" means the 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 variations and cognate expressions shall be construed accordingly."
8. Undisputedly on the date of the filing of the petition, the two spouses had been living separately for more than two years. According to the petitioner-appellant, the respondent left the house firstly in the month of August, 1981 and finally in the month of April, 1982. According to the respondent wife, she went to her parents house in the month of February, 1983 when her mother was ailing and thereafter the petitioner never took her back. Explanation to Section 13(1) of the Hindu Marriage Act, 1955 provides that the expression "desertion" in sub-section (1) of Section 13 means the 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. So the petitioner has to make out the case that the respondent has deserted him without reasonable cause and without his consent and that the respondent has wilfully neglected him.
9. As seen above, the charge of abortion and consequent cruelty has been found without any foundation. The appellant Ashwanl Kumar in cross-examination of his statement before the trial court has stated that he wants divorce not on the ground of the abortion but on the ground of quarrelsome nature of the respondent, the respondent used to indulge in abuses and misbehaved with him, and he had no other complaint against the respondent. Undisputedly during the period of marital relations between the parties, the parties have given birth to a son Rohit. The petitioner-appellant in his statement before the Court has disowned the child and has also denied the parentage of the child, which is absolutely without any basis. There is the statement of the respondent Smt. Anita that she has always been willing and ready to live with the appellant. The fact appears to be as concluded by the learned trial court, the petitioner-appellant himself has deserted the respondent and does not want to keep her with him, specially in the changed circumstances that as per statement of the respondent, now the petitioner-appellant has married one girl Smt. Meena Bhandarl, a child has been born out of that marital obligation and the petitioner is living with her. We have scanned the evidence on the record and do not find any ground to disagree with the findings of the learned trial Judge that the respondent has not deserted the petitioner-appellant, but on the other hand, the appellant himself has deserted the respondent wife. The ground of desertion for divorce taken by the petitioner-appellant, therefore, also falls.
10. The result is that the two grounds, viz., cruelty and desertion for the decree of divorce taken by the petitioner-appellant, have no force, and consequently, fall.
11. The learned counsel for the plaintiff-appellant vehemently argued that even according to the own statement of the respondent, the two spouses are living separately since February, 1983, there are allegations and counter-allegations creating acrimony between the parties. According to the respondent's allegation, the petitioner has entered Into second marriage and a child has also been born out of that marital obligation. There ts a complete break-down of marriage between the parties and as such, a decree of divorce be granted by the Court. The learned counsel in support of his contention relied upon the decision of the Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 and Ashok Hurra v. Rupa Ashok Hurra, (1997) 4 SCC 226. On the other hand, the learned counsel for the respondent urged that the grounds of divorce contemplated by Section 13 of the Hindu Marriage Act and pleaded by the petitioner having failed, the petitioner-appellant is not entitled to the decree of divorce on the alleged ground of complete breakdown of marriage. The facts of the two cases relied upon by the learned counsel for the petitioner-appellant are different, such a ground is not contemplated under Section 13 of the Act, and if the Parliament Intended to do so. It ought to have provided in Section 13 of the Hindu Marriage Act by making necessary amendment. Here there is a child aged about 15-16 years whose future is also Involved, the Institution of marriage has to be preserved as contemplated under the law. As regards the case of V. Bhagat v. D. Bhagat (supra), the following observation made by the Hon'ble Supreme Court deserves extraction :
The husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations. Even otherwise the peculiar facts of this case show that the respondent is deliberately feigning a posture which is wholly unnatural and beyond the comprehension of a reasonable person. She has been dubbed as an incorrigible adulteress. She is fully aware that the marriage is long dead and over. It is her case that the petitioner is genetically Insane. Despite all that, she says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(ia) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years-detailed hereinbefore-we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter."
12. The facts of V. Bhagat's case show that in that case, the petitioner husband was called Insane by the respondent wife, the petitioner's allegations were that the respondent was living in adultery, the respondent wife has been treating the petitioner with mental cruelty. On those facts and circumstances, the Hon'ble Supreme Court concluded that the marriage between the parties had broken irretrievably and there was no chance of their coming together or living together again. Here in the instant case, there are no such allegations, of course the parties are living separately for the last more than thirteen years. In the aforesaid V. Bhagat's case, the Hon'ble Supreme Court has cautioned that merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by Itself a ground. "There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an Insoluble mess, when the Court finds it in the interest of both the parties."
13. In Ashok Hurra's case (supra), the facts are also different, as rightly urged by the learned counsel for the respondent, a Joint petition under Section 13B(2) of the Hindu Marriage Act had been filed by the parties. In this case, the husband who was a Doctor had offered payment of Rs. 4 to 5 lakhs towards provision for the wife, which was enhanced to Rs. 10 lakhs by the Hon'ble Supreme Court. In the case of Balwinder Kaur V. Hardeep Singh, 1988 ALR 237, the Hon'ble Supreme Court observed :
"A petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children, if any, and their families but the society also feels its reverberations. Stress should always be on preserving the Institution of marriage. That is the requirement of law."
14. Looking to the facts and circumstances of the present case, we do not find it a fit case for granting decree of divorce on the ground of irretrievable breakdown of marriage. Consequently, the appeal has no merit and it deserves dismissal.
15. The respondent wife has filed an application being Misc. Application No. 58351 of 1997, under Section 24 of the Hindu Marriage Act for awarding Rs. 7,500 (Rs. 550 towards litigation expenses. Including the counsel's fee) and Rs. 2,000 towards journey expenses from Barellly to Allahabad. Looking to the facts and circumstances of the case, we consider appropriate to award a sum of Rs. 5,000 as legal expenses of the present appeal.
16. The appeal is dismissed with costs. The Judgment and order dated 16th November, 1996 under appeal are hereby confirmed. Further, the appellant shall pay Rs. 5,000 as expenses of the appeal to the respondent.