Punjab-Haryana High Court
Patwant Kaur vs Sarabjit Singh on 13 July, 2005
Equivalent citations: I(2006)DMC137, (2005)141PLR459
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. The petitioner-respondent Sarabjit Singh son of Mohinder Singh has filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act"), for seeking dissolution of marriage solemnised between the parties on 25.2.1972 according to Sikh religious rites at village Nagoke, Tehsil Tarn Taran, District Amritsar. The marriage was duly consummated and from this wedlock a son was born on 23.11.1973. The respondent has been working as an Auxiliary Nurse in Urban Training Health Centre at Chowk Phagwara, Amritsar. The grievance of the petitioner-respondent is that right from the inception of the marriage the respondent has been maltreating the petitioner and his parents and that she did not take interest in the household affairs and as also the petitioner and his family members. She had always been abusing and scolding the petitioner on the premises that she had been married to a person who is much below the status of her family. It has also been alleged that the respondent-appellant had contracted the marriage under pressure/influence of her parents. It has also been alleged that during the period of terrorism the respondent appellant made an attempt to liquidate the petitioner and his family members but were saved due to intervention of some of the villagers. It has also been alleged that the son from the wedlock has also became inimical towards the petitioner at the instance of the respondent-appellant. It has also been averred that 2-3 times, the respondent-appellant as well as son attacked the petitioner with brick-bats which were warded off by virtue of attache case in his hands. It has also been averred that he has further humiliated and abused at the instance of the respondent-appellant in the presence of his relatives at the time of marriage ceremonies. Apart from the above, there are number of allegations which have been levelled against the respondent-appellant.
2. The respondent-appellant contested the plea of the petitioner by way of filing a detailed written statement. It has been averred that she has been spending a sum of Rs. 2500/- on the maintenance and medicines of the son born from the wedlock as he is a mentally challenged child. It has been averred that instead of reconciliating with the work of the nature, the petitioner-respondent is adamant to seek dissolution of the marriage on all other frivolous counts.
3. The petitioner-respondent filed a replication to the averments made in the written statement. Upon the pleadings of the parties, the issues had been framed which are as under:
1. Whether the respondent is guilty of cruelty? OPP
2. Relief.
4. On 18.8.2000, the following additional issue was framed:
1-A. Whether the respondent has deserted the petitioner for a continuous period of two years before filing of the petition without any sufficient cause? OPP
4. The parties led respective ocular as well as documentary evidence in support of their contentions and so also to prove the issues accordingly.
5. The Trial Court has returned a categoric finding upon issues No. l and 1A. The respondent-appellant had actually beaten upon Manmohanjit Kaur sister of the petitioner respondent in association with her son. However, the act of finding could not be substantiated but the fact of creation of serious fuss at the time of marriage of Manjit Kaur has been duly made out. The situation that the wife creating problems at the time of marriage of the sister of the husband would also substantiate the act of cruelty against the husband. Such kind of an act would always propagate to cancellation of a marriage as no one would like to ascertain the truth at that juncture. It looks that the controversies between the husband and the wife reached the ante climax which ultimately resulted into the desertion by the wife. The deterioration of the relationship between the husband and the wife has also been established by virtue of the attendant circumstances. The allegations that the respondent-appellant had taken away the household articles from the room whereby they were residing and that too after breaking open the door/lock. This episode took place on December 20, 1993. This shows the intention of the respondent-appellant to permanently bringing an end to the matrimonial bondage between the parties. Coupled with the evidence brought on record, the Trial Court has concluded that the petitioner-respondent has been able to prove the acts of cruelty on the part of the respondent-appellant as also the act of desertion for a continuous period of two years before the filing of the petition.
6. Being dissatisfied, with the judgment and decree dated September 15, 2000, passed by the Additional District Judge, Amritsar, the present appeal has been filed.
7. During the course of hearing an effort had been made for reconciliation but failed. However, on May 11, 2005 learned Counsel for the appellant had stated that if the interest of the child who is physically and mentally challenged is looked after and protected accordingly, the appellant would concede and admit the decree of the court below vide which the marriage has been dissolved. The petitioner-respondent had stated through counsel that he would be agreeable to deposit a sum of Rs. 4 lacs in the name of appellant but the amount would not be utilised by her for her own purpose and that the interest accrued thereon shall also be utilised for the upkeep of the child. The time had been taken by the appellant for making an agreed statement. However, on the adjourned date i.e. 18.5.2005, learned Counsel for the respondent-appellant refused to accept the aforestated amount and requested that the appeal be decided on merits.
8. Learned Counsel for the appellant has argued that the trial Court has gone beyond the pleadings while returning the finding in regard to the cruelty. In fact, no incident has been disclosed in the pleadings nor any has been proved by way of evidence. Thus, the finding returned by the trial Court is not sustainable and same deserves to be set aside. Learned Counsel has further argued, that the plea of desertion is not at all available to the appellant as no efforts are shown to have been made by the husband for reconciliation, in the absence of such act on the part of the husband, the desertion cannot be accepted.
9. On the other hand, learned Counsel for the petitioner-respondent has argued that the perusal of the judgment of the trial Court shows that the findings on the points alleged to be beyond the pleadings has been returned against the petitioner-respondent. Thus, the argument of learned Counsel for the respondent-appellant is of no consequence. However, the issue with regard to cruelty has been framed in such a manner that the petitioner-respondent has been given the liberty to lead evidence in support of the act of cruelty which the petitioner has been able to prove successfully. So far as the act of desertion is concerned, it has been proved beyond any doubt that the respondent-appellant had left the matrimonial home on December 20, 1993 by taking away the household articles alongwith her son. This became indicative of the intention that she would not like to come back and that she wanted to bring a permanent end to the matrimonial bondage between the parties. The cumulative effect of the evidence which has been brought on record shows that the relations had become so strained that no effort for brining around reconciliation between the parties were made.
10. I have heard learned Counsel for the parties and have also perused the paper book as also the evidence brought on record. I am of the considered opinion that the evidence brought on record, it has established the act on the part of the respondent-appellant culminating into the act of cruelty and so far as the desertion is concerned it has been amply proved that she had left the matrimonial home with the household articles alongwith her son obviously with an intention not to come back. There is nothing on record that any effect had been made by any of the spouses for bringing around reconciliation. Further, the averments of the learned Counsel for the parties, as noticed in my order dated May 11, 2005, I am satisfied that the respondent-appellant is asking for a substantial sum for the purpose of looking after the allegedly mentally challenged child. It is the admitted case that the petitioner-respondent had offered to deposit a sum of Rs. 4 lacs in the name of the appellant but the amount would be utilised by her for the best interest of the child and not for her own purposes including the interest accruable thereon. This fact is also indicative that she has no intention to go back to her matrimonial home.
11. In view of the above, the appeal merits dismissal and the same is dismissed with no order as to costs. However, keeping in view the interest of the child and willingness of the petitioner-respondent for depositing a sum of Rs. 4 lacs for the benefit of the child, it is directed that the petitioner-respondent shall deposit a sum of Rs. 4 lacs in the name of the child through the natural guardian i.e. the appellant in a nationalised bank which shall be converted into a fixed deposit for a period where it shall earn the maximum rate of interest. The amount so deposited shall be utilised for the best interest of the child i.e. the interest accrued thereon shall be used for the benefit and upkeep of the child. The appellant shall not be entitled to use the amount or any part thereof for her own interest and purpose. If the child is declared not suffering from any such deficiency as alleged by the respondent-appellant, the child shall be at liberty to utilise the same amount after attaining the age of majority for his own purpose.
In view of the above, the decree of the trial Court is modified to that extent only.