Punjab-Haryana High Court
Sham Lal vs Kanta Devi on 16 February, 1995
Equivalent citations: I(1996)DMC234, (1995)111PLR732
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. The appellant-husband has come up in appeal against the judgment and decree of the Trial Court dated 21.9.1988 whereby his petition under Section 13 of the Hindu Marriage Act (for short 'the Act') filed on the grounds of cruelty and desertion has been dismissed.
2. The petitioner's contention was that he was married to the respondent in February, 1975. They lived together at Sirsa. She gave birth to a son in this wedlock. He died after 4 months. The respondent lived with him for only 3 months and thereafter since, he could not accede to her desire that he should live separate from his parents, she went away to her parental home. When she was with him, her behaviour towards him and towards the members of his family was not good. She used to quarrel with all of them and sometimes physically manhandled him. She used to abuse him and his family members. Thus she has ill-treated and misbehaved with all of them. For the last 9 years she is residing in her parental home without any excuse. She did not co-operate with him to run the household harmoniously, denied him her company and kept him sexually starved.
3. The respondent denied all the allegations of cruelty and desertion. According to her, she was with the respondent for 10 years. Only one year back after being beaten, she was turned out from the matrimonial home by the petitioner. She always treated him like an obedient wife, but he and his family members were not satisfied with the dowry given at the time of marriage. He was addicted to drinking and gambling and had fallen into bad company. She persuaded him to leave all these habits. That further enraged him. About a year back he asked her to bring Rs. 20,000/- from her parental home. Since it was not possible for her, he abused her, beat her and turned her out of the conjugal home. Thereafter her parents and relations convened three Panchayats at his house, but he declined to rehabilitate her till Rs. 20,000/- are paid to him. Thus, he has treated her with cruelty and he is guilty of desertion. He only intends to marry again.
4. The Trial Court, on appraisal of the parties' evidence, came to the conclusion that the appellant has failed to prove both the grounds of divorce. Further he has also failed to satisfy the Court that the petition is filed without unnecessary or improper delay. Thus the petition was dismissed.
5. The appellant's learned Counsel relying on Gurnatn Singh v. Chand Kaur, 1979 (2) M.L.J. 448 contended that the petitioner has pleaded in para 10 of his petition that there has not been unnecessary or improper delay in filing this petition. The respondent in her written reply has pleaded that this contention is incorrect. No issue was framed thereon. Therefore, the appellant was unable to adduce evidence to prove that there was no unnecessary or improper delay in filing the petition. Hence, on this count, issue about this pleading should be framed by the High Court and the case should be remanded to the Trial Court giving an opportunity to the parties to adduce evidence.
6. The respondent's Counsel vehemently opposed the prayer. As per Section 23(1)(d) of the Act, is the bounden duty of the petitioner, who comes to the Court after a long delay to explain this delay as according to the appellant, the respondent is living separately for the last 9 years. He has not adduced any evidence to that effect. His only statement is that in 1978 he took a Panchayat to Shahpur Begu for reconciliation. In the next breath he has tried to state that thereafter he had gone twice or thrice to Shahpur Begu to bring her back, but he has neither pleaded it nor proved. On this short ground, his petition was liable to be dismissed. For the proposition, he has relied on Mohan Lal v. Smt. Shanti Devi, (1985-1) 87 P.L.R. 200.
7. No doubt in Mohan Lal's case (supra) an issue was framed about the delay, but in this case no such issue was framed by the Trial Court. But from a bare perusal of Section 23(1)(d) of the Act, it is evident that it is imperative for the petitioner- appellant to plead as well as to prove that the petition is filed without any unnecessary or improper delay. Even the petitioner's pleading to that effect is not as per law. Simply writing that the petition is filed without any unnecessary or improper delay is not what is required by Section 23(1 )(d). Every petitioner who knocks the door of the Court after a delay of many years has to plead as well as to prove on his own that why he/she is filing the petition after so many years. What were the factors which prohibited him/her or which made him/her to wait for the expected fruitful results, if any could come before filing the petition.
8. In the case in hand, the petitioner-appellant has not pleaded any circumstances showing why the petition is being filed after a long delay of 9 years. The parties can adduce evidence only about the facts which they plead in their petitions. No such fact was pleaded by the appellant. He cannot be allowed to adduce evidence about the facts which are not pleaded. Further when the petitioner-appellant raised the plea that the petition is filed without unnecessary or improper delay and the respondent denied it as incorrect, even without an issue being framed to that effect the petitioner was bound to prove this part of his pleading at the time of recording of the evidence. He knew it very well that he is required to prove not only the fact of cruelty and desertion as grounds for divorce but also that the petition is filed without unnecessary or improper delay. If no issue is framed on that pleading, it cannot be said that it has resulted in miscarriage of justice.
9. From the appellant's statement it is evident that he married the respondent in 1975. According to him she lived with him for 3 years i.e. upto 1978. Thereafter, she is continuously living in her parental home. In 1978, he took a Panchayat to her village to bring her back. He could not give the date, time and year of other two Panchayats when he went to her place for reconciliation. No other witness has been examined to prove that after 1978 the petitioner made any attempt to rehabilitate her. This petition is filed on 21.3.1987. This delay of 9 years is not explained by him. On this short ground, the petition was liable to be dismissed.
10. The petitioner's learned Counsel contended that the petitioner has proved that during those 3 years when the respondent was living with him, she treated him with cruelty. He has pleaded that she even manhandled him, abused him and his parents and she used to quarrel with all of them. He also pointed out that the respondent on oath has admitted that after 1976 she could not conceive because she had no access to him. This also amounts to physical as well as mental cruelty, because according to him, marriage without sex is an anathema. He stressed that the Trial Court has misinterpreted the above part of her admission in her favour, though thereby the petitioner has duly proved that she treated him with cruelty.
11. In this case the petitioner has pleaded many acts of her cruelty in his petition, but on oath he has simply stated that her behaviour towards him and towards his parents was not proper. He has not even explained as to what he meant by the words "not proper". He has not examined any witness to corroborate him on this point. So far as the respondent's above statement is concerned, that admission is not unqualified. It is qualified by the words that as he was all through quarrelling with her, there was no sex between them. No doubt, without sex, marriage is inconceivable but sex is not the 'be-all and end-all of one's life. The man and woman sharing the same bed may not have sex. It all' depends upon their mental make up. If they are nagging, accusing and quarrelling with each other living under the same roof will not bring harmony, will not make their life congenial. In that atmosphere sex has no meaning.
12. The respondent's contention is that the petitioner-appellant was not satisfied with the dowry given at the time of marriage and on that count, he always beat her and turned her out of his house. For delivery also, she went to her parental home. After the delivery, he or his parents did not come to see the son. No doubt she is contradicted by her own brother Gurdial (RW-2) on the point that even at the time of death of the son, the petitioner did not turn up her brother has admitted that the petitioner did come on that occasion, though he too has stated that when the son was born even being intimated, the petitioner did not come to see the son. This by itself amounts to cruelty.
13. The respondent has further testified that she lived with him for 11 years. Only a year back as she could not satisfy his demand of Rs. 20,000/-, he beat her and turned her out. But from her cross-examination, it is evident that she was not continuously living with the petitioner during all these 11 years. She has clearly admitted that thrice her parents took Panchayats to his house and every time she was left at her matrimonial home. She has also stated that 8/10 times she was turned out of the matrimonial home after being beaten by him. She is corroborated by her brother Gurdial. (RW-2) and Phool Singh (RW-3). From their statements, it becomes evident that during these years whenever she was left at her matrimonial home for rehabilitation, after some time he beat her and turned her out. Thus, according to me, the Trial Court has not fallen into any error in holding that the petitioner-appellant has utterly failed to prove the ground of cruelty.
14. So far as the ground of desertion is concerned, I have discussed above that the petitioner beat the respondent and drove her out from the matrimonial home. Thus no doubt factum of desertion is proved, but the respondent cannot be held guilty of desertion. Under those compelling circumstances, she was forced to take refuge at her parental home. She has clearly stated that she is ready and illing to join him in the conjugal home, though he has not expressed his willingness thereto. This clinches the issues that the petitioner has failed to prove the other and more important parameter of desertion i.e. animus deserendi. Hence scanning parties' evidence minutely the Trial Court has rightly held that the petitioner has failed to prove the ground of desertion also.
15. The appellant's Counsel made an alternative submission that as the parties are living separately since 1978, the marriage is practically and Amotionally broken. It has become a deadlock instead of wedlock, hence on this count, the decree of divorce could have been granted the petitioner's favour. To substantiate his argument, he has relied on Ramesh Chander v. Smt. Savitri, 1995 Judgments Today (1) SC 362.
16. In my view even this ground is not available to the petitioner to obtain a decree of divorce against his dutiful wife. No doubt in Romesh Chander's case (supra), Their Lordships of the Supreme Court have held that where marriage is dead, both emotionally and practically, continuance of material alliance for name's sake is prolonging the agony and affliction and so continuance of such a marriage would be cruelty, but in this case facts are not to that effect. From the parties evidence, it is evident that the petitioner has driven out the respondent from the matrimonial home without any rhyme or reason. He has failed to prove that she treated him with cruelty or she has deserted him, rather he is guilty of constructive desertion. Respondent wife has not wronged, but is wronged ruthlessly on matrimonial front by appellant. The respondent is still ready and willing to join him. Hence, it cannot be said that their marriage has become dead emotionally.
17. Institution of marriage is not in the need of being damaged or destroyed. It is not a house of cards or partnership at will. Both the parties should strive at defending it rather than dissolving it. Hence in my view, the decree of divorce cannot be granted in appellant's favour as the marriage is not irretrievably broken.
18. Accordingly, there is no reason to interfere with the well reasoned findings recorded by the Trial Court in the impugned judgment and decree. Appeal being devoid of any substance, is hereby dismissed with costs.