Punjab-Haryana High Court
Bhupinder Singh vs Smt. Palwinder Kaur on 20 December, 2012
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
FAO No. M 273 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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FAO No. M 273 of 2012
Date of decision: 20.12.2012
Bhupinder Singh ........ Appellant
Versus
Smt. Palwinder Kaur .......Respondent(s)
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. P S Ahluwalia, Advocate for the appellant
Mr. IPS Kohli, Advocate for the respondent
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The appellant-husband lays challenge to the judgment and decree dated 16.10.2012, passed by the Additional District Judge, Tarn Taran (hereinafter referred to as 'the trial Court'), whereby the petition filed by the appellant, seeking dissolution of his marriage with respondent-wife, Palwinder Kaur, under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the HMA') has been dismissed.
The parties solemnised their marriage on 11.06.2008, according to Sikh rites, at Gurduwara Baba Budha Sahib, Tehsil and District Taran Taran. Their marriage was registered in the office of Registrar on 10.07.2009. Both the parties cohabited as husband and wife at village FAO No. M 273 of 2012 2 Pajwar, Tehsil and District Tarn Taran, but no child was born out of this wedlock. The appellant has averred that behaviour of the respondent was not good since beginning of the marriage. She used to misbehave with the appellant and his mother. She is cruel, disrespectful and harsh towards the appellant. She has no control over her tongue and always insulted the appellant and his mother in the presence of relatives and friends. She refused to prepare food by saying that she is not a servant. The appellant provided all the facilities and comforts of life to the respondent, but she did not perform her matrimonial duties which has rendered it impossible for the appellant to live with the respondent. On 18.11.2009, the mother of the respondent came to the matrimonial home and took the respondent along with her by saying that her (respondent's) father was not well. On 22.11.2009, the appellant and his mother visited the house of the parents of the respondent and found that her (respondent's) father had never fallen ill. The respondent refused to join the company of the appellant and she made a demand for separate living. The appellant tried his best for reconciliation by convening Panchayats, but the respondent refused to come back to the matrimonial home. The appellant went to the house of the respondent on 03.03.2011, to bring her back, but her parents told him that she did not want to meet the appellant. The respondent has deserted the appellant and has gone to United Kingdom (in short U.K.). The appellant has sought a decree of divorce on the ground of cruelty and desertion.
The respondent-wife failed to appear before the trial Court, in response to the notice and as a consequence, ex-parte proceedings were initiated against her.
To prove his case, the appellant appeared in the witness box FAO No. M 273 of 2012 3 and examined PW2 Kuldeep Kaur, PW3 Amrik Singh and PW4 Azadbir Singh. The trial Court, on appreciation of the pleadings and evidence adduced to establish the case of the appellant, recorded its observations that the appellant has not been able to prove his plea of cruelty and desertion and as a result, the petition was dismissed, leaving the parties to bear their own costs.
Feeling dissatisfied with the verdict of the trial Court, the present appeal has been preferred by the appellant.
Counsel for the appellant has submitted that since beginning of the marital relationship between the parties, the respondent never behaved in a manner to develop a life long relation with the appellant. It is argued that the respondent left the matrimonial home on 22.11.2009 and refused to resume cohabitation, despite repeated efforts of the appellant. It is submitted that the trial Court has committed a grave error in rejecting the claim of the appellant for seeking a decree of divorce on the ground of desertion. It is further argued that as the respondent left the company of the appellant and has not responded to the efforts of the appellant for resumption of cohabitation, the appellant has established that the respondent is guilty of desertion for a period of more than two years without any reasonable cause or reason.
We have heard counsel for the parties and perused the records of the trial Court.
Admittedly, the respondent did not put in appearance before the trial Court and was proceeded against ex parte. As the respondent did not contest the petition, averments of the appellant in respect of the respondent staying away from the matrimonial home since 18.11.2009 and her refusal FAO No. M 273 of 2012 4 to join the company of the appellant in response to his repeated efforts in this regard, remain unrebutted and unchallenged. The appellant appeared in the witness box and reiterated his version given in the petition. There is no challenge to the testimony of the appellant nor his testimony could otherwise be impeached or discredited as the respondent opted to remain absent from the proceedings before the trial Court. The trial Court has failed to appreciate that in the absence of any rebuttal or counter version of the respondent, there is nothing on record to create any doubt in the plea set out by the appellant. The appellant has raised specific and clear allegations that the respondent left the matrimonial home in November, 2009 and refused to join the company of the appellant despite his repeated efforts through Panchayats and otherwise. In this Court, the respondent is represented by an advocate. She has filed an affidavit, which has been sent from U.K. Para 4 of the said affidavit, reads as follows:-
"4. That Bhupinder Singh, husband of the deponent, has filed a petition for grant of divorce on the ground of desertion. The deponent has no objection, in case, the said divorce is granted in favour of Bhupinder Singh on the basis of desertion."
Keeping in view the fact that the appellant has been successful in establishing his plea that the respondent is guilty of desertion coupled with the averments of para 4 of the affidavit, filed by the respondent, as reproduced herein above, the appellant has established his case that the respondent is a guilty spouse, who deserted the appellant since November, 2009 without any reasonable cause or reason. The appellant is entitled to be granted a decree of divorce on the ground of desertion. FAO No. M 273 of 2012 5
In view of what has been discussed hereinabove, the appeal is allowed, judgment and decree passed by the trial Court is set aside. The petition filed by the appellant, seeking dissolution of marriage of the parties, is allowed on the ground of desertion. No order as to costs.
(Rekha Mittal) Judge (Rajive Bhalla) Judge 20.12.2012 mohan