Punjab-Haryana High Court
Avtar Singh vs Smt. Rajinder Kaur on 31 March, 2009
F.A.O. No.60-M of 2006 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O. No.60-M of 2006
Date of decision: 31.3.2009
Avtar Singh
...Appellant
Versus
Smt. Rajinder Kaur ...Respondent
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Ms. Jatinderjit Kaur, Advocate for the appellant.
Mr. Dhirinder Chopra, Advocate for respondent
S.D.ANAND, J.
The appellant-husband had filed a petition against the respondent-wife to obtain dissolution of their marriage on the plea of desertion and cruelty. The petition was rejected by the learned Trial Court vide order dated 3.2.2006.
The marriage between the parties was solemnised on 17.7.1988. The appellant-husband had announced to the respondent-wife that he is a divorcee. The parties cohabited, as husband and wife, at village Tajpur till 21.9.1990. However, no issue was born out of their union. The respondent-wife was a headstrong lady. From the very inception of the marriage, she used to dictate terms to him just because the latter happened to be a divorcee. She was in the habit of abusing the appellant and his parents. She would, at times, leave the matrimonial house unannounced. After about 1-1/2 months of the marriage, she confined herself in a room F.A.O. No.60-M of 2006 -2- **** which could be got opened only after much persuasion. The respondent-wife would announce that since she had been married to a divorcee against her wishes, she would not continue at the matrimonial house and would commit suicide. On one particular occasion, she held an insecticide tin in her hand and threatened to commit suicide. The information with regard to her conduct was given to her parents who, instead of advising her, evaded responsibility and informed the appellant that it was his responsibility to look after her. After sometime thereof, the appellant went overseas (United Kingdom) to earn livelihood. However, on account of the continued misbehaviour on the part of the respondent-wife, he had to get back home at the instance of his parents, and had to thereby miss the job opportunity. However, even after his return home, things did not improve and the respondent-wife continued to misbehave with him and other members of his family. She would never cook food for them. On 28.4.1989, she left the house unannounced and took away all her dowry articles and clothes. It is on account of the intervention of the Panchayat that she got back to the matrimonial home where she stayed over till 21.9.1990. Even during that period, she would, at times, leave the matrimonial home unannounced. On 23.5.1990, appellant-husband went over to the natal house of the respondent-wife to persuade her to get back to the matrimonial house. Piara Singh, maternal uncle of the respondent wife, abused and insulted him. On 21.9.1990, the respondent-wife came over to the matrimonial house in the company of her relations F.A.O. No.60-M of 2006 -3- **** including Manjit Singh and Piara Singh etc. The party was also accompanied by a Police Constable. The party threatened and insulted the entire family of the appellant who, thereupon, filed a divorce petition in the District Court, Jalandhar, which was withdrawn by him on 29.9.1992 as the parents of the respondent-wife demanded money for agreeing to the grant of mutual divorce. It was followed by a get together of common friends and relatives of the parties wherein the respondent-wife side caused injuries to the father and a cousin of the appellant. An FIR (No. 139 dated 6.10.1990 under Sections 323/324/34 IPC) came to be lodged at Police Station Division No.4, Jalandhar. It was on the above allegations that the appellant-husband filed a plea for divorce on an averment that the respondent-wife had through out treated him and members of his family with cruelty.
The respondent-wife pleaded estoppel, by act and conduct, on the part of the appellant-husband. She claimed that she stayed at the matrimonial house till 21.5.1990 and that she was forced to abort a child on the premise that birth of a child would hinder her settlement in the UK. She was assured that she could beget a child after being at U.K. She denied having ever misbehaved with the appellant-husband in a cruel manner. She also denied having ever attempted suicide or having held out a threat therefor. Qua the allegations pertaining to the circumstances under which the appellant-husband returned home from United Kingdom, it was averred that he came back to India only because the period of F.A.O. No.60-M of 2006 -4- **** validity of the visa was over. That she was maltreated by the mother of the appellant-husband during the latter's absence and that even medical aid was denied to her when she fell ill was the further averment. She proceeded to aver that she had been once to her natal house where she had stayed over for a period of about nine months and her restoration to the matrimonial house could be secured only with the intervention of the respectables. Even thereafter when she came back to the matrimonial house, the behaviour of the appellant-husband and his mother did not change and they continued to taunt her for having brought inadequate dowry. The appellant also told her that she was not of his liking. She denied that the divorce petition came to be withdrawn by the appellant-husband on 29.9.1992 on account of the demand raised by her parents for payment of money for the grant of a mutual divorce. She asserted that she is still ready and willing to live in the matrimonial house with the appellant-husband and it is for that purpose that she had also filed a petition under Section 9 of the Act.
The trial proceeded on the following issues:-
1. Whether the respondent has treated the petitioner with cruelty?OPA
2. Whether the respondent has deserted the petitioner without any reasonable cause?OPA
3. Whether the petitioner has not come to the Court with clean hands?
4. Relief.F.A.O. No.60-M of 2006 -5-
**** The learned Trial Court recorded findings adverse to the appellant-husband under all the issues. As a result thereof, the petition filed by the husband was ordered to be dismissed.
It was argued on behalf of the appellant-husband that the impugned findings deserve invalidation in view of the fact that there is plenty of evidence on the file to prove that the appellant-husband was always inclined to resume cohabitation and that it was always the respondent-wife who was a reluctant partner in the relevant behalf. Reliance, in support of the advocated view, was placed upon the fact that the appellant-husband had twice withdrawn the divorce petition filed by him The plea advocated is completely denuded of merit. The reasons therefor are as under:-
It requires to be noticed, at the very outset, that it is apparent from the record that there is a decree under Section 9 of the Act in favour of the respondent-wife and against the appellant- husband and has not been complied with till date. In that context, it would be relevant to notice the statement made by the appellant- husband at the trial ( of the present case) that he is not ready and willing for resumption of cohabitation under any circumstances. That statement of his falsifies the plea advocated on his behalf (in the presentation before this Court) that he was always inclined to resume cohabitation and that it was always the respondent-wife who was the reluctant partner in that behalf. Even otherwise, the fact that he twice filed divorce plea would also take the wind out of his sails in the F.A.O. No.60-M of 2006 -6- **** relevant context. He did aver, in the context, that he had to withdraw those petitions as the respondent side insisted upon payment of certain amount before they could agree upon the grant of a mutual divorce. How exactly the question of payment came up defies logic. It was a pure and simple case in which he had filed divorce plea on various averments. It was not a case where the petition had been filed under Section 13-B of the Act. It is the only in that eventuality that a spouse could perhaps put up the indicated plea which (plea) would appear to be totally irrelevant to the filing of a divorce petition under the Act but not in terms of the provisions of Section 13-B of the Act.
Qua the suicide attempt by the respondent-wife, the appellant-husband testified that that her parents had been duly informed in the relevant behalf and that they, instead of advising her, evaded responsibility and informed the appellant that it was his responsibility to look after her. The averment aforementioned is supported by the solitary and self-serving statement made by the appellant-husband himself. There is no evidence to corroborate the plea on behalf of the appellant-husband that the alleged attempted suicide (by the respondent-wife) had ever been intimated to her parents. If the respondent-wife was of a rude temperament from the very beginning and she had actually been holding out a threat that she would commit suicide, it would have been very natural on the part of the appellant-husband to intimate attempted suicide to the parents of the respondent-wife. If the respondent-wife had actually F.A.O. No.60-M of 2006 -7- **** attempted suicide, it was enough to give a signal to the appellant- husband that she meant trouble and it would bring him into conflict with the law. There is no proof that the attempted suicide by the respondent-wife was ever brought to the notice of the parents of the respondent-wife.
Insofar as the the other allegations of cruelty are concerned, those are supported by the solitary statement of the appellant himself. If there was even an iota of truth in the allegations in the relevant behalf, there is no reason why he could not have atleast examined his mother. By the very nature of things, she was the best circumstanced to own up the averment. He had also not offered an explanation about why his mother was not examined at the trial. Apart therefrom, the relevant allegations are general in character and cannot form the basis of grant of a decree of divorce.
It stands already noticed that the appellant-husband made a precise averment that he had been to UK for earning livelihood but that he had to get back home because of the misbehaviour of the respondent-wife during his absence. Countering that allegation, the respondent-wife raised a precise plea that the appellant-husband came home only because the period of validity of the visa was over. The onus, thus, was upon the appellant- husband to prove the falsity of the allegation levelled by the respondent-wife. The appellant-husband could best do it by producing some letter etc. which his mother may have addressed to him in the relevant behalf. He could very well prove that fact by F.A.O. No.60-M of 2006 -8- **** examining his mother whose testimony could have thereby been tested on the touchstone of cross-examination. He could produce his visa to disprove the allegation by the respondent-wife that he came home only because the period of validity of the visa was over. No steps were taken by the appellant-husband in the relevant behalf.
It also requires pointed notice that the appellant- husband raised a plea at the trial that he used to receive threatening letters from the militants in the context of strained relations with the respondent-wife. As correctly noticed by the learned Trial Court, the appellant-husband did not produce any such letter on record. Further, as correctly noticed by the learned Trial Court, the parties are residing separately since long and the appellant-husband had filed two divorce petitions during that period of separation, both of which were withdrawn by him (one on 29.9.1992 and another on 21.11.1994). The averment made by him that he had withdrawn the divorce petitions because the parents of the respondent-wife had demanded the money to agree for mutual divorce is neither here not there. An estranged spouse is not required to make any prayer the parents of the other spouse with a view to pursue the divorce plea., particularly when it was not a plea filed under Section 13-B of the Hindu Marriage Act. Apart therefrom, interestingly enough, the appellant-husband had raised a plea at the trial that there had been a documented compromise vide which it had been agreed that the parties would agree to a mutual divorce on payment of alimony of Rs.75,000/-. No such document had been proved on record. F.A.O. No.60-M of 2006 -9-
**** Insofar as the incident dated 23.5.1990 is concerned, the only witness examined in the relevant behalf is PW-2 Karamjit Singh. That witness had to concede, in the course of cross-examination at the trial, that he was actually not present at the spot and that he reached the spot later on. It cannot, thus, be said that the appellant- husband had been able to prove that any incident had taken place (on 23.5.1990 ).
Even otherwise, it requires pointed notice that the respondent-wife is proved on record to have filed a petition under Section 9 of the Act which came to be decreed on 3.2.2006. The appellant-husband was very forthright in the course of cross- examination when he testified that he is not ready and willing for resumption of cohabitation under any circumstances. The facts, thus, evidence that the respondent-wife is inclined to resume cohabitation and she filed a petition under Section 9 of the Act for that purpose only; whereas the appellant-husband had categorically testified that he is not ready and willing for resumption of cohabitation under any circumstances and it is not even the averment on behalf of the appellant-husband that he had complied with the decree under Section 9 of the Act.
The appellant-husband had, thus, not been able to prove that the respondent-wife had deserted him or was guilty of any act of cruelty vis-a-vis him. The material obtaining on the file is proof adequate enough of the fact that the appellant-husband had maltreated the respondent-wife and it is that mal-treatment on F.A.O. No.60-M of 2006 -10- **** account of which the respondent-wife is compulsively, nay unwillingly, putting up at her natal house.
There was an averment by the appellant-husband that he had been belaboured by certain relations of the respondent-wife and he had lodged an FIR in the relevant behalf. However, the appellant conceded in the course of cross-examination that the accused in that case were acquitted by the Court. The factum of the alleged episode does not, thus, advance the appellant-husband's case in any manner.
The following facts can safely be culled out from the above discussion:-
a) There is a valid decree under Section 9 of the Act in favour of the respondent-wife and against the petitioner-husband who has not complied with it till date. On the other hand, the appellant-husband has made a categorical averment in the present trial to the effect that he is not ready and willing for resumption of cohabitation under any circumstances.
b) The appellant-husband has not been able to prove the allegations that the respondent-wife had deserted him or was guilty of having committed any act of cruelty vis-a-vis him. On the other hand, the material available on the file is proof adequate enough of the fact that it was the appellant-husband F.A.O. No.60-M of 2006 -11- **** who had maltreated her, thereby compelling her to be away from the matrimonial house.
For the reasons noticed above, the appeal is held to be denuded of merit and is ordered to be dismissed.
March 31, 2009 (S.D.Anand)
Pka Judge
F.A.O. No.60-M of 2006 -12-
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