Himachal Pradesh High Court
Rachan Kaur vs Bhag Singh on 13 December, 1995
Equivalent citations: II(1996)DMC70
Author: Arun Kumar Goel
Bench: S.N. Phukan, Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Facts giving rise to this appeal, most of which are not in dispute, are that marriage between the parties was solemnised on 11th May, 1983 at Una as per Hindu customs and the parties lived as husband and wife till 1984. From this wed-lock, a female child was born on 14th July, 1984, who is living with the appellant-wife, Smt. Rachan Kaur. Further facts on which the parties are not at variance are that when the marriage had taken place, the respondent- husband, Bhag Singh was employed in Assam and thereafter at Orissa. It is further also not in dispute that in an earlier matrimonial lis filed by the appellant-wife, Smt. Rachan Kaur against the respondent-husband, Bhag Singh under Section 9 of the Hindu Marriage Act vide Case No. 1 of 1988, titled as Smt. Rachan Kaur v. Bhag Singh, learned Senior Sub-Judge, Una vide his judgment and decree dated 18th November, 1989 passed a decree for restitution of conjugal rights and a copy of this judgment and decree is placed on the file of the present case, as Ext. PA.
2. After the passing of the decree aforesaid vide Ext. PA, the respondent- husband filed the present petition under Section 13(1-A)(ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act'), on the following ground :
"That after the passing of a decree under Section 9 of HMA in favour of the respondent, there has been no restitution of conjugal rights between the parties."
3. Besides the aforesaid ground, the respondent-husband had pleaded desertion as well as cruelty against the appellant-wife which factual position was contested and resisted by the present appellant in her reply. While controverting the allegations made by the respondent-husband in his petition for dissolution of marriage by a decree of divorce, amongst other pleas, it was pleaded that she lived in the house of her husband after her marriage and served as well as looked after his parents and she was obedient to her in-laws. Her behaviour was never in different as also she never mal-treated her mother-in-law. The further case of the appellant was that she was requesting the respondent-husband to take her to the place of his posting, but he turned down this request of her's on one pretext or the other. She further pleaded that the husband had been treating her badly, had been giving beatings to her, abusing her on petty things. Not only this, but he always remained under the influence of liquor and she further pleaded that even the respondent-husband tried to kill her at his house in the year 1985 with an electric wire shock, which she escaped fortunately. According to the appellant-wife, she visited the house of the respondent alongwith respectable persons to persuade him as well as to mend his behaviour towards her, but without any result. It is also the case of the appellant that she was put under the fear of death and the respondent-husband refused to keep her at his house. She was further asked to leave the house of the respondent and in these circumstances, according to her, she took shelter at her paternal house, where she is continuously living. Factum of passing of decree for restitution of conjugal rights was not disputed by the appellant-wife. However, at the same time, she pleaded that the respondent-husband should not be permitted take the benefit of his own wrongs and further he has refused as well as neglected to maintain the appellant-wife and also the daughter and according to her, on account of his such acts as conduct, he is estopped from filing the petition. According to the appellant-wife, the earlier proceedings i.e. those initiated by her under Section 9 of the Hindu Marriage Act for restitution of conjugal rights had no bearing in the facts and circumstances of the case. With this background, the parties went to trial on the following issues which were framed by the learned District Judge on 1.1.1994:
1. Whether the respondent has treated the petitioner with cruelty as alleged ? OPP
2. Whether the respondent has deserted the petitioner without any sufficient case? OPP
3. Whether the petitioner is entitled to decree of divorce for the reason that after passing of a decree Under Section 9 of HMA in favour of the respondent, there has been no restitution of conjugal reghts between parties ? OPP
4. Relief.
4. In support of their respective pleas and on the issues aforesaid, the respondent-husband appeared as his own witness as PW-1 and the appellant-wife appeared as her own witness as RW-1. In addition to this, Ext. PA, copy of judgment and decree in proceedings under Section 9 of the Act ibid was also produced on record by the respondent-husband in support of his case. In this context, it may be proper to state here that the appellant-wife during the course of her cross-examination feigned ignorance regarding the passing of this judgment and decree, though admitted having filed the case.
5. Issues No. 1 and 2 have been decided against the respondent-husband, who is not aggrieved by those findings and he has also not filed cross-objections challenging those findings. However, the learned Trial Court below has decided Issue No. 3 and, therefore, under Issue No. 4, dissolved the marriage between the parties by a decree of divorce. It is against this judgment and decree that the present appeal has been filed by the present appellant.
6. Mr. H.K. Bhardwaj, learned Counsel for appellant-wife has raised the following points while appearing in support of the present appeal:
(a) That attempts were made by the appellant for persuading the respondent- husband to resume cohabitation without any result;
(b) That the respondent cannot be permitted to take benefit of his own wrongs and thus, he is precluded form maintaining the petition for dissolution of marriage in view of the provisions of Section 23(1)(a) of the Act.
7. Section 23(1)(a) of the Act is reproduced hereinbelow for ready reference :
"23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that:
(a) any of the grounds for granting relief exists and the petitioner(except in cases where the relief is sought by him on the ground specified in Sub-clause (a), Sub-clause (b) or Sub-clause (c) of Clause (ii) of Section (5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and"
8. While appearing as PW-1, the respondent-husband has stated that a daughter was born at his house, while he was posted at Orissa and according to him, the appellant-wife left his house in the year 1987. At that time also, he was at Orissa. The other allegations of the appellant's quarreling with his mother and hurling of abuses by the brother of the appellant to his mother have also been made. He further goes to say that in December, 1987, he went to his in-laws place to bring the appellant back, but he was told that in case he can keep her with him at the place of his posting, then they are willing to send the appellant with him, otherwise if he wants to keep the appellant at his native village, they would not send the appellant with the respondent-husband. In his cross-examination, the respondent-husband admits that at the time of his marriage, he was posted in Assam and from there he joined his service at Orissa. He remained there till 1989. He admitted that he had never taken his wife-to his place of posting after his marriage and the appellant-wife wanted to accompany him to the place of his posting which he declined. He further denied the suggestion that he either gave beatings to the appellant or tried to electrocute her. He also denied the suggestion made on behalf of the appellant that his in-laws used to advise him to resist from beating her and to live in harmony with her. He, however, admitted that he had not spent even a penny towards the expenses since 1987 i.e., the time the appellant went to her parental house. The respondent-husband further admitted in cross-examination that the brother of the appellant-wife, namely, Shri Jagtar Singh had gone to Kapurthala, his present place of posting and according to the learned Counsel for the appellant-wife, he had gone there with a purpose to persuade the respondent-husband so that he takes back the appellant-wife in his company and this was the only purpose of his visit. Otherwise there was no necessity of his having gone to Kapurthala. It was vehemently submitted by Mr. Bhardwaj that the Court may infer by such visit of Shri Jagtar Singh that the purpose of the visit was solely to persuade the respondent-husband, whereas the respondent-husband while admitting the visit of Jagtar Singh to Kapurthala has clarified that the purpose of such visit was to threaten him, when he was accompanied by some persons. He further states that Jagtar Singh made a written complaint to his employer and held out that he would get him out of job. On the other hand, the appellant-wife, while appearing as RW-1 has made a very general and vague statement, though she has tried to support her allegations made in the written statement in her reply to the petition for divorce filed by the respondent-husband. However, in cross-examination, she admits that after the decision of the earlier case, the parties have never lived together.
9. In the light of the above evidence, both oral as well as documentary, the submissions of the learned Counsel for the parties have to be appreciated.
10. Strangely enough, Shri Jagatar Singh who was stated to be the elder brother of the appellant-wife has not been produced, although it is her own case that it was he who has gone to Kapurthala for persuading the respondent-husband to take back the appellant-wife in his company. It is very strange that this person has not been produced and the possibility of his having threatened the respondent-husband including having made a written complaint when he visited Kapurthala, cannot be ruled out. There is no reason for withholding this witness and/or non-production by the appellant-wife. Suffice to say that adverse inference in accordance with the provisions of Section 114 of the Indian Evidence Act has to be drawn and further had this witness been produced by the appellant-wife, he would not have supported her case. Needless to point out in this context that the appellant-wife could have invoked the provisions of Order XXI of the Code of Civil Procedure, which would have supported her allegation raised under point (b) above, as well as to show that all out efforts were made by her for restitution of conjugal rights in terms of Ext. PA, but except for a general and vague statement, there is no other evidence produced by the appellant-wife including her own elder brother. In the face of this position, the plea raised on behalf of the appellant-wife that she made attempts for restitution of conjugal rights is without any basis much less evidence and deserves to be rejected.
11. So far the second contention to the effect that the respondent-husband should not be allowed to take benefit of his own wrongs, an attempt has been made on behalf of the appellant-wife to say that since the respondent-husband has admitted that before passing of the judgment and decree, Ext. PA, he did not take the wife with him to the place of his posting and not only this, he refused whenever the appellant-wife insisted for that, therefore, according to the learned Counsel for appellant, it tantamounts to taking benefit of his own wrongs within the meaning of Section 23(1)(a) of the Act. Suffice to say in this behalf that admittedly there is no evidence which can be legally translated in favour of the appellant so as to support this submission of the learned Counsel for the appellant. On the material on record, the judgment and decree passed by the Trial Court below deserves to be upheld both in law as well as on the basis of admitted facts. There is no dispute that Ext. PA was passed in favour of the appellant on her petition under Section 9 of the Act on 18.11.1989, and admittedly whether any attempt was made thereafter, there is no evidence on record produced by the appellant. It may not be out of place to mention here that the respondent-husband could have easily denied the visit of Jagtar Singh to Kapurthala, but while admitting such visit by Shri Jagtar Singh, he explained as to what transpired as detailed in this judgment during such visit. We have no hesitation in accepting the version put forth by the respondent-husband in this behalf.
12. In law any of the parties is entitled for the dissolution of marriage by a decree of divorce on the ground of that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties or there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. Admittedly, the proceedings under Section 9 of the Act out of which the judgment and decree, Ext. PA culminated were instituted on 4.5.1988 by the appellant-wife and such proceedings were decided on 18.11.1989, whereafter the present petition was presented on 10.9.1993. In this view of the matter, there is no legal ground on which the claim of the respondent husband could be legally defeated. Further there is no ground on the basis of which such claim for obtaining a decree for dissolution of marriage preferred by the respondent-husband could be denied. While taking this view, we are supported by decisions of the Apex Court reported in A.I.R. 1977 SC 2218, titled Dharmendra Kumar v. Usha kumar and A.I.R. 1985 SC 1562, Saroj Rani v. Sudarshan Kumar Chadha. In support of his submissions, Mr. Bhardwaj, learned Counsel for the appellant-wife has cited A.I.R. 1979 Gujarat 209, titled Bal Mani v. Jayantilal Dahyabhai. Suffice to say in this behalf that even the said judgment does not support any of the contentions raised on behalf of the appellant.
13. While concluding his submissions, learned Counsel for the appellant submitted that in the event of his submissions do not find favour with the Court, looking to the circumstances wherein the appellant is placed as well as the plight of a divorced wife in our social set-up, his client would be in a very disadvantageous position after having been divorced, provision should be made for maintenance of the appellant till she re-marries as well as in respect of the daughter who is admittedly the child of the parties to this lis. This submission has been considered and we are of the considered opinion that in exercise of the powers under Order 41, Rule 33 of the Code of Civil Procedure as well as in accordance with the provisions of Sections 24 and 25 of the Act, it needs to be favourably considered. In these circumstances, looking to the totality of the facts and circumstances of the case that the parties are living separately for more than a decade and the child is also more than eleven years of age, we think it appropriate, just and fair as well as in the interest of justice that the respondent-husband would continue to pay the maintenance to the appellant-wife w.e.f. 1.1.1996 till she remarries at the rate of Rs. 600/- per mensem from the date of this judgment to be shared by the appellant-wife Rs. 300/- per mensem and Rs. 300/- per mensem by the female child. It is clarified that the amount of maintenance shall be payable to her during her life time or till she re-marries and to the female child till she marries. While taking this view, we are supported by the judgment of the Apex Court reported in 1984(4) SCC 90 titled Saroj Rani v. Sudarshan Rani Chadha. Even otherwise in order to avoid further litigation as well as in the peculiar facts and circumstances of the case, such an order is necessary because admittedly there is no dispute that is the appellant the wife of the respondent and the child is also with her. This would atleast provide some social security to the appellant and the daughter who is admittedly residing with her, more especially when respondent- husband admits that he has not provided any maintenance on his own showing after the appellant-wife left the matrimonial house in the year 1987. It may not be out of place to mention here that it is the legal duty of the respondent-husband to provide maintenance as well as to look after his wife and the child and on this count also, the appellant-wife is entitled to permanent, alimony as aforesaid. It maybe clarified here that the respondent-husband is working as a Welder in Railway Coach Factory, Kapurthala and his basic pay is Rs. 1,200/- and while adding all other allowanes etc., his salary being more than Rs. 2,000/- per month, cannot be ruled out although in C.M.P. No. 514 of 1994 under Section 24 of the Act filed by the present appellant in this Court, she has stated that the total salary of the respondent-husband is Rs. 2,673/- per month.
14. In view of the above discussion, this appeal is devoid of merit and it is disallowed accordingly. However, while dismissing the appeal of the appellant, it is ordered that the respondent-husband shall pay a sum of Rs. 600/- per mensem w.e.f. 1.1.1996, i.e. Rs. 300/- to the appellant-wife during her life time or till she re-marries and Rs. 300/- per month to the minor daughter till she marries, who is residing with the appellant-wife. This amount will be remitted by 10th of each month by the appellant either through money order or by means of a bank draft at his expense in favour of the appellant-wife, who shall appropriate the amount awarded to the minor daughter towards her welfare, education and upkeep. In the event of the husband either neglecting and/or failing to remit the aforesaid amount, the appellant-wife shall be further entitled to execute this order as if it was a decree of a Civil Court without being dragged to any further litigation. In case any maintenance is allowed by any Court in any other proceedings either to the appellant or to the minor daughter, the same would be deducted out of Rs. 600/- allowed by this judgment to both of them. Costs on the parties.