Punjab-Haryana High Court
Kamal Yadav vs Rajinder Singh Yadav on 1 February, 1995
Equivalent citations: I(1996)DMC574, (1995)111PLR157
JUDGMENT Sarojnei Seksena, J.
1. This is wife's appeal under Section 28 of Hindu Marriage Act (in short the 'Act').
2. Uncontroverted facts are that on 9.3.1972 respondent Rajinder Singh and appellant Kamal Yadav were married according to Hindu rites and ceremonies at village Shakurpur. After the marriage, they lived together at Gurgaon and other places till 12.5.1983. In this wedlock the appellant gave birth to a son on 24.8.1974 and to a daughter of 13.8.1980. Both these children are residing with the appellant at her parental home. The appellant filed a petition under Section 125 Cr.P.C. on 15.6.1983 which was decided on 20.5.1988 whereby the respondent was ordered to pay Rs. 1,000/- per month as maintenance to the appellant and to her children. On 12.5.1988 the respondent filed a petition under Section 9 of the Act.
3. The respondent has alleged in his petition that since beginning the appellant was very strong headed, obstinate, rude and quarrelsome. She was under the evil spell of her parents. She used to insult and abuse the respondent, his parents and other family members. Since he was living with his parents and brothers in a joint family, the appellant wanted him to live separately out of Gurgaon. She and her parents persistently persuaded him to leave Gurgaon and to reside with her father at Shakurpur. As he declined to accede to their dictates, the appellant left his house in June, 1980. In November, 1980, he brought her back, but again as she repeated her same demand to which he was no agreeable, she left the matrimonial home in mid April, 1981. The respondent went to her parental home to bring her back. At that time her parents and brothers did not behave with him properly. He brought her back, but she again left within 10 days. Thereafter he again went to her parental home to bring her back, but she totally declined to come back unless he agrees to live separately. Her family members also threatened him. On 13.5.1981, his brother and sister went to Shakurpur to call her to attend death anniversary of his father, but she again declined to come. He and his relations made efforts to bring her back to matrimonial home on 5.7.1981, August, 1982 and September, 1982. On 26.10.1982 she came to her matrimonial home, but again she pressed her same demand and asked for share of the property which he might get in partition. In January, 1983, her brother came to his house and threatened to kill him and asked him to transfer property of his share in her name. Finally on 12.5.1983 in his absence the appellant left the matrimonial home along with her father and few other persons. Thereafter his cousin Sunil Yadav, he and his relations went to her parental home to persuade her to join his company, but she never accepted the offer. She has filed a false, fictitious and vexatious application under Section 125 Cr.P.C. against him. Thus he prayed that decree for restitution of conjugal rights be passed in his favour.
4. The appellant in her reply raised preliminary objections that the petition is not maintainable in view of Section 23(1)(d) on account of improper delay. The respondent is guilty of intentional desertion, neglect and cruelty. The petition is characterised as false, frivolous and vexatious. Since she has filed a petition under Section 125 Cr.P.C. as a counter-blast, he has filed this petition for restitution of conjugal rights. The respondent was ordered to pay Rs. 1,000/- as maintenance to her and her children. She asserted that she never insulted and abused the respondent or his family members and never asked him to leave his joint family. Even her parents and brothers never asked the respondent to live separately. They never threatened him to kill. She has specifically denied that the respondent's brother, sister, cousin or other relations came to her parental home to take her. It is also denied that on 12.5.1983 she left the matrimonial home in his absence and took away all her ornaments and clothings. She has averred that the respondent and his family members were not happy with the dowry given to her at the time of marriage. They asked her to bring valuable articles, two-in-one, jewellery and cash. As her parents were unable to satisfy their lust for more dowry articles, the respondent started maltreating her. He used to burn on her breast and cheeks with cigarette ends. During her pregnancy, she was made to stand throughout the night. She was also threatened to death. The respondent used to beat her off and on. She made a complaint about his behaviour to her parents and relatives who tried to persuade the respondent to behave properly. On 12.5.1983, the respondent beat her severely and turned her out alongwith her children from his house. went to her parental home. Since then the respondent never bothered to about their welfare and refused to maintain them. Thus he has intentionally her to withdraw from his society. She filed a petition under Section 125 Cr.P.C. on 15.6.1983 which was decided on 20.5.1988 and the respondent is ordered pay Rs. 1,000/-per month as maintenance but till 31.8.1988 he has not paid sir paise as maintenance which has been accumulated to the tune of Rs. 62,000/-. Thus according to her, the respondent is guilty of desertion and cruelty.
5. The parties adduced evidence. The Trial Court believed the respondent's evidence and held that the appellant has withdrawn from the society of the respondent without sufficient and reasonable cause. The respondent is not guilty of intentional neglect, cruelty or desertion. It was further held that the petition cannot be dismissed on the ground of delay. Thus petition under Section 9 was granted in his favour.
6. The appellant's learned Counsel vehemently contended that from the evidence on record, it is evident that from 9.3.1972 till 12.5.1983 the appellant was living in the matrimonial home. She gave birth to two children. But as she was maltreated by the respondent on 12.5.1983 and after being beaten she was turned out from the matrimonial home by the respondent alongwith her children, she came to her parental home. Thereafter the respondent never made any attempt to rehabilitate her. On 15.6.1983, she filed a petition under Section 125 Cr.P.C. which was decided on 20.5.1988. When the respondent was convinced that her petition is likely to be allowed, as a counter-blast, he filed this petition under Section 9 of the Act on 12.5.1988. He commented that the Trial Court has not rightly dealt with her objection of delay. There is a delay of complete 5 years. If really the respondent had an intention to rehabilitate her or to resume cohabitation with her, he would not have waited for 5 years. He also pointed out that the respondent has utterly failed to prove that after 12.5.1983 he made any attempt to bring her back. According to the Counsel, the appellant has duly proved that when she was living with the respondent, she was always beaten and maltreated by him. When she was turned out from the matrimonial home on 12.5.1983, she had to come to her parental home.
7. The appellant's learned Counsel relying on Damayanti v. Ramdhan Singh Dhannu Singh Chungde, 1986 (1) All India Hindu Law Reporter 609, and Kum Kum Puri v. Ashwani Kumar Tangi, 1988 (1) All India Hindu Law Reporter 319 (Pb. & Hry.), contended that the respondent filed a petition under Section 9 of the Act as a counter-blast to her petition for maintenance. He has failed to prove that he made genuine efforts to bring her back. His only intention was to obtain this decree to make it a ground for obtaining divorce against her for which he has already filed a petition under Section 13 of the Act which is also pending against her. He further contended that as there is delay of 5 years, which is not explained, on this count alone, the respondent's petition was liable to be dismissed. For this proposition he has relied upon Mohan Lal v. Shanti Devi, 1985(1) All India Hindu Law Reporter 256.
8. The respondent's learned Counsel contended that the burden was on the wife to prove that there was sufficient cause for her withdrawal from her husband's society. She has failed to prove that any threat was given to her. She has taken a plea that the respondent and his family members were demanding more dowry articles. This plea and evidence adduced to that effect were rightly disbelieved by the Trial Court as it is obvious that after 8 years of her marriage, there cannot be any demand of dowry. He further contended that she has stated that on 12.5.1988 she was mercilessly beaten by her husband and was turned out of the matrimonial home alongwith her children. At that time she was having injuries on her person. She showed those injuries to her father and other relations, but no report was lodged with the Police. She was not subjected to medical examination. Only her father has corroboratated her. Thus this uncorroborated evidence of alleged maltreatment and beating has been rightly disbelieved by the Trial Court. She has admitted that her husband was sending her letters. She refused to accept few Regd. letters sent by him. This evidence itself proves that he was making sincere efforts to call her back, but she always declined. When all attempts failed to bring her back, he was compelled to file the petition on 12.5.1988. The respondent has explained the delay of 5 years. On this count also, the Trial Court has rightly decided this issue in his favour. To support his contention, he has relied on Atmaram v. Smt. Narbada Devi, AIR 1980 Rajasthan 85, Chinndpannal. Naicker v. Mariyayee Atnntal, 1976 All India Hindu Law Reporter 276 (Mad.), N.B. Rukmini v. P.M. Srinivasa, AIR 1984 Karnataka 131 and Smt Kaushalya Devi v. Masat Ram, 1981 All India Hindu Law Reporter 442 (H.P.).
9. From the parties' evidence, it is evident that the appellant was maltreated by her husband and in this case she was forced to leave her matrimonial home. She was married to the respondent on 9.3.1972. She gave birth to two children. The husband has taken a patent plea that she asked him to leave his joint family and live separately with her at her father's place. The respondent was gone to the length of saying that his father-in-law and brother-in-law threatened him to kill. This evidence cannot be believed at all considering the status and station of life of the parties. Considering similar facts in Kulivant Kaur v. Jaswant Singh, 1986 (1) All India Hindu Law Reporter 272, it is held that the wife lived in the matrimonial home for 6/7 years, gave birth to two children and she stated that she was being given merciless beating and threat to her life, she had to escape from her husband's house alongwith her children. Thus her withdrawal from his society is not without reasonable cause, but since the husband has failed to give any reason why she wanted to stay away, cruelty to husband was held proved and he was held not entitled to a decree for restitution of conjugal rights. According to appellant's Counsel, her evidence about maltreatment given to her by the respondent is more reliable. It is more probable that husband must have driven her out of the house. Her conduct in initiating proceeding under Section 125 Cr.P.C. for obtaining maintenance for herself and her children is significant. Only after she was about to get an order for maintenance, the respondent filed this petition under Section 9 of the Act. From her evidence, it is a evident that she had real apprehension in her mind that she would not be treated well and with affection by the husband and his family members. Thus, she has reasonable excuse for withdrawing from the society of her husband. Damyanti's case (supra) is of identical facts wherein on these proved facts and circumstances, husband was not held entitled to a decree for restitution of conjugal rights. In Kum Kum Puri's case (supra), it is held that in such a petition, initial burden is on the husband to prove as to why the wife did not join the matrimonial home. When that burden is discharged, then it is for the wife to show that there has been a reasonable excuse for withdrawal from the society of the husband. As per Mohan Lai's case (supra), the husband is required to explain why he has approached the Court after a long delay. If he fails to explain the delay, his petition is liable to be dismissed.
10. The respondent has alleged that after 12.5.1983 his cousin Sunil Yadav went to invite her to attend his brother's marriage, but she did not join. He and his other family members went to her parental home to reconcile the matter but she did not agree. He sent many letters to her and some by Rsgd. post, but she refused to receive these letters. No doubt the appellant has admitted that the respondent sent her few letters and few letters sent by him were refused by her, but she has categorically stated that in these letters he never asked her to come back. The respondent has stated that in June, 1983, he went to his father-in-law's house, but his father-in-law refused to send her. He was not allowed to meet her. Threafter his uncle Shri O.P. Yadav,his cousin sister Veena and her husband and his cousin brother Ajit went to bring her back, but she declined. In December, 1983 Sunil Yadav went to invite her to attend his brother's marriage, but she totally refused. He has also stated that he sent amount of maintenance through his nephew Vijay, but he has failed to prove this fact. He has no knowledge as to where his daughter is studying. He has never bothered to send maintenance to them. Virender Singh (PW-2) has stated that he went to her parental home, in October, 1983 and January, 1985, but in vain. From his statement, it is evident that the respondent was Inspector in B.S.F. and he was turned out of the service. Om Parkash (PW-3) has stated that once he had been to Kamal Yadav's father's place, but her father refused to send her. The respondent's case is that on 12.5.1983 she left the house in his absence but his own witness Sanjay Yadav's PW-4) has admitted in cross- examination that on that day the petitioner-respondent (Rajinder Yadav) was also at home and he asked that appellant not to leave the matrimonial home, but she went with her father. Thus the respondent's own statement is belied by the statement of this witness. This witness has gone to the length of saying that in September, 1988 he went to her parental home. Even the petitioner-respondent has not stated, so, because on 12.5.1988 he filed the petition under Section 9 of the Act. The appellant's evidence is more reliable. She has stated that how she was beaten and mal-treated by her husband. No doubt she has not lodged any report nor was examined by any Doctor, but on this count alone, her sworn testimony cannot be rejected. If really she had not-been mal-treated, she would not have left her matrimonial home, wherein she was living right from 1972. She has categorically stated that on 12.5.1983 when she was beaten by her husband, she telephoned her father who came and took her away. She is corroborated by Jaidev (PW-2).
11. The respondent's conduct is evident on record. The appellant left his house on 12.5.1983. She has proved that she was maltreated and beaten by her husband. As she was turned out of the house, she left the matrimonial home with her children. After about a month, on 15.6.1983 she filed a petition under Section 125 Cr.P.C. The respondent contested that petition, never bothered to look after his wife and children and never sent any amount to them for their maintenance. When that maintenance petition was at its fag end (it was decided on 28.5.1988), on 12.5.1988 the respondent filed this petition under Section 9 of the Act. It is nothing but a counter-blast to her maintenance petition. His intention is obvious. He does not want to pay maintenance to his wife and children. Just to avoid that payment, initially he filed the petition under Section 9 of the Act and thereafter on 31.5.1990 he filed a petition for divorce. The husband cannot be allowed to take advantage on his own wrongs. He has utterly failed to explain inordinate delay of 5 years. He has also failed to prove the reasonable cause why she left his house. The Trial Court has not taken into consideration all these facts. The conduct of the parties is very material in this case. Thus, I find that on the aforesaid grounds, the appellant's evidence is more probable and reliable. The respondent has failed to explain this delay of 5 years. Hence, on all these counts, the petition under Section 9 of the Act is liable to be dismissed and the same is hereby dismissed with costs.
12. Consequently, the appeal is allowed and the Trial Court judgment and decree under appeal are set aside.
13. The respondent's petition filed under Section 13 of the Act was withdrawn by this Court for being decided alongwith this appeal. Since the appeal is hereby allowed, the petition for divorce is sent back to the Trial Court for deciding the same on merits.
14. Civil Original No. 3/91 stands disposed of accordingly.