Himachal Pradesh High Court
Mahender Baroor vs Reena Kumari Alias Bhawna on 31 March, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 327 of 2014.
Decided on: 31.03.2015.
.
Mahender Baroor ......Appellant.
Versus
Reena Kumari alias Bhawna .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. J.R.Poswal Advocate.
For the respondent: Mr. Sanjay Kumar Sharma, Advocate.
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Justice Rajiv Sharma, J (oral).
This FAO is directed against the judgment dated 14.5.2014, passed by the learned Addl. District Judge, Ghumarwin, Distt. Bilaspur, H.P. in HMA No. 18/3 of 2008.
2. Key facts, necessary for the adjudication of this appeal are that the appellant-petitioner (hereinafter referred to as the appellant) has instituted a petition under Section 13 of the Hindu Marriage Act, 1955, against the respondent. The marriage between the parties was solemnized on 27.2.2004 according to Hindu rites and customs. A son and daughter were born out of the wed lock. According to the averments contained in the petition, the respondent had been using abusive and filthy language and thereby created unhealthy atmosphere at home. She also threatened the petitioner and his family members with dire consequences. The appellant's father had allotted them a separate house, however, the respondent never used to clean the house. She had been leaving the matrimonial house without any information. False complaints were filed by the respondent against the appellant and his family members.
::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 23. The petition was contested by the respondent. She denied the averments made in the petition. She has never threatened the appellant .
with dire consequences; rather she was ill-treated by the appellant and his parents. She has never demanded separate house. She was turned out of the matrimonial home in September, 2008. She was neither provided proper food nor clothing. The petition for restitution of conjugal rights was filed by her before the learned District Judge, Hamirpur.
4. The rejoinder was filed by the appellant. The issues were framed by the learned Addl. District Judge, Ghumarwin, Distt. Bilaspur on 14.6.2011. The learned Addl. District Judge, Ghumarwin, Distt. Bilaspur, dismissed the petition on 14.5.2014.
5. I have heard Mr. J.R.Poswal, Advocate for the appellant at length and gone through the impugned judgment very carefully.
6. The appellant has appeared as PW-2. According to him, his wife used to maltreat him. She used to abuse his parents. On 26.9.2008, the respondent had left him without any cause. A missing report was also lodged by him. He has suffered psychiatric problem after the marriage. He admitted in his cross-examination that prior to the filing of the petition;
there were physical relations between him and his wife occasionally. He also admitted that his wife had also filed petition under Section 9 of the Hindu Marriage Act, 1955. He also admitted that the judgment was passed against him. He has received the summons but he did not appear before the Court. In his cross-examination, he admitted that his wife wanted to reside with him but he himself does not want to live with her. PW-3 Duni Chand and PW-4 Geeta Mahajan have stated that the respondent was ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 3 abusing, neglecting and quarreling with the appellant and his family members. PW-5 Dy. S.P. Gurdial Singh, has proved Ext. PW-5/A to Ext.
.
PW-5/C. Jagar Nath PW-6 has proved the copies of statements of Ram Pyari and respondent in case No. 118/1 of 2009, titled as State Vrs.
Mahinder etc. PW-7 Sandeep Jamwal has proved the copy of complaint under Section 12 of the Protection of Woman from Domestic Violence Act, 2005.
7. The respondent has appeared as RW-1. She has led her evidence by filing affidavit Ext. RW-1/A. According to her, the appellant and his family members were harassing her. She was abused by them.
She was not provided food and clothing. She was turned out of her matrimonial home. They used to level false allegations against her. She tried to come back to her matrimonial home but was not allowed by her in-
laws. She denied in her cross-examination that all the cases were instituted by her just to harass her husband. RW-2 Smt. Ram Pyari is the mother of the respondent. She deposed that the behavior of the appellant and his family members was not good towards her daughter. Her daughter wanted to reside at her matrimonial home, however, her family members never wanted to take her back. RW-3 Sarvo Devi deposed that the respondent wanted to reside at her matrimonial home but the appellant and his family members refused to take her back. She has tried to convince the appellant and his family members, however, they did not budge and turned the respondent out of the house.
8. According to the appellant, he has suffered psychiatric problem, however, it was not pleaded in the petition that he had suffered ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 4 psychiatric problem after his marriage. The appellant while appearing as PW-2 has not given any specific date, month or year when the respondent .
has used abusive language against him and his parents. No particular words uttered by the respondent have been stated by the appellant. Rather PW-3 Duni Chand, the father of the appellant, in his cross-examination has testified that he was not ready and willing to take back his daughter-
in-law. The respondent was constrained to file petition under Section 9 of the Hindu Marriage Act, 1955 against the appellant. The appellant did not appear and it was decreed by the learned District Judge. The respondent also filed a petition under Section 125 of the Code of Criminal Procedure seeking maintenance for her and minor daughter. The Judicial Magistrate Ist Class, awarded the maintenance to her minor daughter but not to the respondent. However, the learned Addl. Sessions Judge (FTC), Hamirpur, has granted maintenance to the respondent @ Rs. 3000/- per month, as well. The learned Addl. Sessions Judge, has held that the appellant has refused to cohabit with his wife and thus, she had valid reason to live separately. It is the appellant who does not want to keep the respondent with him. The respondent was always ready and willing to reside with him.
The appellant and his family members had been harassing the respondent.
The appellant has failed to prove that the respondent has deserted him.
The appellant cannot be permitted to take advantage of his own wrong.
9. Mr. J.R.Poswal, Advocate, appearing on behalf of the appellant has vehemently argued that the respondent has filed false cases against his client. However, the fact of the matter is that when the respondent was harassed, she had to file complaint under Sections 498-A and 506 IPC read ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 5 with Section 34 IPC. The case No. 118/1 of 2009 titled as State of H.P. vrs.
Mahinder (Ext. PX) was dismissed since the respondent in those .
proceedings has failed to prove the case against the accused beyond reasonable doubt. The statement made by the respondent in those proceedings was not found to be incorrect or false. There is no question of filing the complaints by the respondent against the appellant to superior officers for the simple reason that as per the statement of PW-3 Duni Chand, his son was serving in his shop as servant. Mr. Poswal, Advocate, has also argued that in the Police Station also, the respondent has used filthy language against the appellant and his family members. However, PW-5 Dy. S.P. Gurdial Singh has not stated so.
10. Their Lordships of the Hon'ble Supreme Court in Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957 SC 176 have held that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of inference to be drawn from the facts and circumstances of each case. Their Lordships have held as under:
"What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject in these terms:-
"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".
The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:-
::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 6"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of .
the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".
Thus the quality of permanence is one of the essential elements which differentiate desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under
the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 7 practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which may not .
in another case be capable of leading to the same inference;
that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt.
Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard CJ. in the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A), may be referred to :-
"These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution....... "
With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 8 matrimonial home with a view to discharging marital duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back."
.
11. Their Lordships of the Hon'ble Supreme Court in Lachman Utamchand Kirpalani versus Meena alias Mota, AIR 1964 SC 40 have held that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Their Lordships have further held that the burden of proving desertion - the 'factum' as well as the 'animus deserendi' is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. Their Lordships have held as under:
"The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal for Bombay where the Court had to consider the provisions of S. 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of S. 10(1) of the Act. In the judgment of this Court in Bipin Chandra v. Prabhavati, 1956 SCR 838; ((S) AIR 1957 SC 176) there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury's Laws of England (3rd Edn.) Vol. 12 was cited with approval :
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the order without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases." The position was thus further explained by this Court. "If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently the cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 9 concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end (animus deserndi). Similarly two elements are essential so far as the deserted .
spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.. . . . . Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time." Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. It is settled Law that the burden of proving desertion -
the "factum" as well as the "animus deserendi" - is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner- husband has still to satisfy the Court that the desertion was without just cause. As Dunning, L. observed : (Dunn v. Dunn (1948) 2 All ER 822 at p. 823) :
"The burden he (Counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional, burden raised by the state of the evidence . . . . . . . . . . . The legal burden throughout this case is on the husband, as petitioner, to prove that this wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the court may infer that she deserted him without ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 10 cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it is usually wise for her to do so, but there is no legal burden on .
her to do so. Even if she does not affirmatively prove just cause, the Court has still, at the end of the case, to ask itself:
Is the legal burden discharged? Has the husband proved that she deserted him without cause? Take this case. The wife was very deaf, and for that reason could not explain to the Court her reasons for refusal. The judge thereupon considered reasons for her refusal which appeared from the facts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of the case: Has that burden been discharged?"
12. Their Lordships of the Hon'ble Supreme Court in Smt. Rohini Kumari versus Narendra Singh, AIR 1972 SC 459 have explained the expression 'desertion' to mean 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 willful neglect of the petitioner by the other party to the marriage.
"Under Section 10 (1) (a) a decree for judicial separation can be granted 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. According to the Explanation the expression "desertion" with its grammatical variation and cognate expression 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 willful neglect of the petitioner by the other party to the marriage. The argument raised on behalf of the wife is that the husband had contracted a second marriage on May 17, 1955. The petition for judicial separation was filed on August 8, 1955 under the Act which came into force on May 18, 1955. The burden under the section was on the husband to establish that the wife had deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. In the presence of the Explanation it could not be said on the date on ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 11 which the petition was filed that the wife had deserted the husband without reasonable cause because the latter had married Countess Rita and that must be regarded as a reasonable cause for her staying away from him. Our attention .
has been invited to the statement in Rayden on Divorce, 11th Edn. Page 223 with regard to the elements of desertion According to that statement for the offence of desertion there must be two elements present on the side of the deserting spouse namely, the factum, i.e. physical separation and the animus deserendi i.e. the intention to bring cohabitation permanently to an end. The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of "constructive desertion" is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him."
13. Their Lordships of the Hon'ble Supreme Court have held in Vishwanath Agrawal vs. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288 as under:
"22. The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.
28. In Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582 it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse ::: Downloaded on - 15/04/2017 17:55:37 :::HCHP 12 caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The facts and circumstances are to be assessed emerging from the evidence .
on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other."
14. As a sequel to the above discussion, it is proved the respondent was thrown out of the matrimonial house by the appellant.
She has not been provided with food and clothing. She has to look after her minor daughter. The burden to prove the cruelty was upon the appellant. He has failed to discharge the same. The respondent is forced to live separately by the circumstances for which, the appellant alone is responsible. The appellant has also failed to prove that the respondent has deserted him. The respondent has to leave the matrimonial house due to harassment and maltreatment meted out to her by the appellant and his family members.
15. Consequently, there is no merit in this appeal, the same is dismissed. Pending application(s), if any, shall stand dismissed.
March 31, 2015, ( Rajiv Sharma ),
(karan) Judge.
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