Delhi High Court
Pran Nath vs Pushpa Devi on 18 November, 2006
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The present appeal under Section 28 of the Hindu Marriage Act has been preferred by the petitioner-husband (hereafter referred to as the "husband") against the order and decree of the trial Court dated 31.1.87 dismissing the petition for divorce preferred against the wife (hereafter referred to variously as "the wife" and "the respondent") on the grounds of cruelty and desertion.
2. The facts necessary to decide this particular appeal are that the marriage of the parties was solemnized on 24.6.1977 and a daughter, Kirti was born out of the wedlock on 31.7.1978. The petitioner in his appeal has alleged that the behavior of the respondent was cruel towards him and his family. He was operated upon for piles on 9.9.1978 at Jeevan Nursing Home. The respondent though aware of this, yet did not go to enquire about his health and look after him. The husband alleges that he once again suffered from piles and a telegram was sent to the respondent but still she failed to visit him.
3. The petitioner alleged that the respondent insisted that they live with her mother in Geeta Colony. As he did not agree to the proposal, she failed to resume co-habitation. It is also alleged that the respondent did not display any intention of resuming relations with the husband, and continued to live separately. Although attempts to resolve the differences were made, the respondent persisted in living separately from the appellant. The respondent denied the allegations levelled against her. She alleged that the petitioner and his parents never cared for her and their child; they were cruel towards her since the beginning. She alleges that she suffered an abortion and her husband did not care for her. The respondent further stated that their daughter suffered an attack of Polio and was hospitalized in Kalawati Hospital from 10.8.79 to 13.8.79.
4. The wife alleged that the husband deserted her and the child. However, a compromise was arrived at between the parties and they started living together but again the petitioner deserted her and the child. The respondent further alleges that the petitioner wrote a letter to her father which contained false allegations and on 24.6.80 went to her house, when she was not around, removed all the goods from there causing her mental torture.
5. On 21.11.83 the petitioner filed a petition for divorce before the trial Court and he examined himself, her father, their landlord and three others. The petition for dissolution of marriage was preferred both under Sections 13(1)(ia) and 13(1)(ib), i.e. cruelty and desertion. The trial Court held that there had to be something more apart from the spouses not living together to warrant the inference that one is cruel to the other. It was held that settled law required that the conduct of a spouse complained of, should be serious and higher than the ordinary wear and tear of married life, and so as to amount to cruelty towards the other spouse.
6. Taking the entire evidence into account in the case, the Court held that there were no specific allegations of cruelty against the respondent, as the husband neither gave particulars of cruelty nor its nature and specific instances with dates etc. Therefore, it was found that the husband failed to substantiate the allegations of cruelty alleged to have committed against him by the respondent.
7. To prove the allegation of desertion the petitioner relied upon certain circumstances. He wrote a number of letters which were sent to the wife, by registered post, which were returned undelivered. The Court held that the petitioner husband was apparently creating evidence for himself. The Court further held that the husband failed to show that he cared for his family and had an intention to visit them and bring them back to the matrimonial home. His filing of the divorce petition showed that he had no intention to stay with his wife and child. In this case it is a more probable situation that the husband deserted the wife not the other way round.
8. In the above circumstances, it was concluded that the husband failed to prove the allegations on record and so both the issues are decided against the petitioner.
9. The judgment is under appeal is challenged as erroneous. It is averred that the trial Court misappreciated the evidence led before it, and did not give sufficient weight to the fact that the appellant was operated on 9.9.1979; though the wife was made aware of this, she did not care even to visit him. Similarly, he was ill at Kurukshetra, when the wife was informed telegraphically. The trial Court, it is averred, was not correct in declining to render a finding of cruelty. He also alleges that the respondent wife had no intention of resuming cohabitation; her version that she had left the matrimonial home on 24.6.1980 was false. It is alleged that the appellant, in his letter PW-1/13, dated 16.6.1980, requested her to resume cohabitation. It was also averred that there was no explanation by the wife as to why she lived away from the husband for more than two years, thus clearly showing her intention to desert him, and not resume co-habitation.
10. Mr. K.B. Andley, learned Senior Counsel for the husband appellant, contended that the trial Court erred in not taking any note of the evidence led before it, which established that the wife did not care even to visit the husband when he was hospitalized. The evidence of the appellant in this connection was positive, and unchallenged. In fact, the wife accepted in her written statement as also in her evidence, as RW-1, that her father had gone to enquire about the health of the appellant but he had already left the hospital. This indicated that the respondent, though informed, and aware of his ailment, she made no effort to take care of him, or look after him.
11. Learned Counsel also submitted that Ex. PW-1/13 dated 16.6.1980, the receipt of which was admitted by the wife, shows clear intention of the husband to resume co-habitation, which was intentionally accepted, thus establishing desertion by her. He also relied upon other documents, such as Ex. PW-1/14-20. Learned Counsel for the appellant further submitted that the deposition of the husband's father, i.e. PW-2 and PW-3, the person who had got the marriage between parties, settled, corroborated the allegations of desertion. Counsel further submitted that the evidence of Sh. Shyam Lal, PW-4, also supported the allegation that efforts were made to reconcile the differences, and bring back the wife to the matrimonial home; despite these earnest endeavors, she refused to resume cohabitation. It was urged that all along the wife's intention was to somehow create circumstances by which the appellant could start living with her, and her mother, at Gita Colony. Counsel submitted that the wife's father was living separately, and it was the intention of the wife's mother to live off the son-in-law's earnings.
12. Learned Counsel submitted that the facts of this case amply justify the Court to conclude that the marriage between the parties had broken down irretrievably; the parties were living apart for nearly 27 years. He relied upon the decision reported as Naveen Kohli v. Neelu Kohli .
13. Mr. J.K. Chawla, learned Counsel for the respondent relied upon the findings of the trial Court, and submitted that they were justified, having regard to the evidence led before it. It was urged that after the marriage was solemnized, parties lived together at Thanesar, and the wife gave birth to the daughter on 31.7.1978. The child was born at the wife's house; the parties went to live together in August, 1978. On 15.8.1978, the wife went back to her parental home. He submitted that the trial Court had disbelieved the version of the husband, that some compromise had been arrived at between the parties in May 1980. He submitted, with reference to the evidence, and findings of the Court that the parties stated living together at Rajgarh Colony, from 27.3.1980. It was the husband petitioner, who went away from the matrimonial home on 22.5.1980, leaving the wife and his infant child.
14. Learned Counsel submitted that the conduct of the husband in leaving and deserting the wife, had been established by the evidence and testimony of RW-3 and RW-6. It was shown that the husband left the matrimonial home, and took away his articles and goods in tempos. Counsel also pointed out that according to the evidence, the petitioner husband had the key to the house, and in the absence of the wife, took away his effects, with his brother. This was mentioned by one of the witnesses; yet the husband did not produce his brother, to refute the evidence.
15. The first issue is whether the appellant established cruelty by the wife. No specific acts of cruelty, apart from the general averments of her withdrawing from cohabitation, and staying away from the petitioner, and the matrimonial home, were levelled against her. Cruelty is a ground for dissolution of marriage. The Legislature has, however not spelt out what is cruelty. In Vinita Saxena v. Pankaj Pandit , the Supreme Court, after considering previous decisions on the issue, held as follows:
The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints. accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct excusable? The Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.
37. As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.
38. If the taunts, complaints and reproaches are of ordinary nature only, the Court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.
16. The scope of inquiry in this appeal, therefore, whether the appellant's grievance that the trial Court has not appreciated the materials and evidence in the proper perspective, on the issue, and also not taken the cumulative impact of the evidence, is borne out, and whether he had established cruelty by the respondent wife. As noticed earlier, no specific acts of cruelty, apart from the respondent staying away from the petitioner, and the matrimonial home, were made. No instances of unacceptable behavior which would amount to cruelty on her part were established, or sought to be proved. The trial Court, therefore, held that the ground of cruelty, was not proved. The nature of the evidence is such that the finding cannot be found fault with.
17. The second question is whether the petitioner husband had been able to prove desertion by the wife. As to what constitutes "desertion" was discussed, in Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi .
7. Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are-
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end animus deserendi;
3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;
The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include willful neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the Legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, 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 petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.
18. In order to ascertain whether the trial Court correctly appreciated the evidence, and apply it to the facts, it would be necessary to examine it. PW-1 Pran Nath, the husband-petitioner in his chief examination had stated that the respondent's behavior towards him and his family was like being teased every time, which caused a lot of harassment. The respondent's main demand was that they live with her mother in Geeta Colony. The respondent delivered a female child in Geeta Colony, which was informed, to the petitioner's family after one week. The petitioner alleges that on two occasions the wife declined to stay with him. It was further stated by him that he was operated upon for piles and the respondent did not go to meet him/take care of him despite a telegram sent to her.
19. The petitioner deposed that on 1.5.1980 or somewhere in the first week of May, 1980, Mr. Geol, Sham Lal, Darshan Lal, and his father tried to intervene and effect reconciliation with the respondent. Her parents agreed to send the respondent to Kurukshetra, after the school was closed for summer vacation. She reached Kurukshetra on 15.5.1980, but she did not take the child along with her. The petitioner told her that she should have brought the child with her; this annoyed her and she started abusing the petitioner in the presence of a crowd, which had gathered. The petitioner alleged that the respondent was not helping his family in household work. She was also not giving financial help to the family and she was keeping her salary to herself. Since the fight in May 1980 she had not gone back to the petitioner or returned to the matrimonial home.
20. The husband deposed that in September, 1981, his father sent a telegram to the respondent from Kurukshetra about the petitioner's illness. The middle man Prem Chand also sent a telegram to the respondent on 4.5.1982, asking her come back or arrange a meeting with his parents but she failed to do so. The petitioner states that he sent another letter to the respondent on 11.10.80 by Registered Post that was received back undelivered from the post office. The petitioner states in his cross examination that she never resided with him in Delhi after December 1978. The relationship with respondent became strained when she came to Delhi as she wanted to stay with her mother who had no independent source on income.
21. PW-2 Hariram, the petitioner's father deposed that the wife had no intention to live with the husband; she used to quarrel on minute issues and she came back to Delhi although he had tried to persuade her to stay on. PW2 has stated in his cross-examination that a compromise was arrived at between the parties at the intervention of Sham Lal. The compromise had taken place in May 1980, Darshan Lal, Sham Lal, PW-2, Mr. Goel and the petitioner's mother were present at the time of compromise/reconciliation. This compromise talks took place in Geeta Colony. The respondent agreed to live peacefully with the petitioner.
22. PW-3, Prem Chand Goel, the marriage broker, who had arranged the wedding of the parties, stated that the respondent after reconciliation went back to Kurukshetra without taking her daughter and in June, 1980, he was told that the parties were not living together. The husband is PW3's friend and they used to work in the same school for about 2 years. PW-3 stated that the house in Laxmi Nagar was taken because the respondent wanted to live very close to her parents. PW-4 Sham Lal, stated that in June, 1980, he and his wife went to the respondent's house for reconciliation the parties were pressurized to stay in a house close to that of the respondent's parents in Geeta Colony
23. In support of her version, the respondent wife examined six witnesses, including herself. RW-1, Pushpa Devi, the wife deposed that the petitioner and his family members used to misbehave with her and she stated that she always wanted to stay with the petitioner. The petitioner wanted that the house which belonged to her mother should be transferred to his name and that was the only reason of the matrimonial discord. She further stated that the petitioner used to take away her entire salary and give her only Rs. 2/- per day, except on holidays. The respondent deposed that the petitioner was aware that his daughter was suffering from polio and his wife was 3 months pregnant when she had a miscarriage. He took her to a hospital and left her there. After four days, he dropped her at her parents' place. Neither the husband nor his parents went to see her or the daughter.
24. In the first week of September 1979, the petitioner with the help of his mother, took away the entire goods from the house at Laxmi Nagar when she was at her parents' house. The parties lived separately till March, 1979. One Mr. Sham Nath, petitioner's friend, intervened and with his efforts the differences between the parties were reconciled and they started living together for a few days, at Rajgarh colony, Delhi, but after that the petitioner started harassing the respondent and started demanding her salary for the previous eight months. The husband went away to Kurukshetra when the school was closed, in May, 1980, for summer vacations. He did not take any steps to take back the respondent wife and their daughter. She also deposes that on account of premature birth, the daughter was afflicted by polio. The wife has deposed that the petitioner used to constantly demand that the house belonging to her mother, at Geeta Colony should be transferred to him.
25. RW-2, Shri Sant Dass, the wife's father, deposed that the respondent gave birth to a daughter at his house in Geeta Colony, Delhi. After the birth of the daughter, the respondent stayed at his house for 15 days, when she shifted to Lodi Road. She resided in Lodi Road accommodation for about 2 years. The petitioner was informed about the birth of the child on the same day. The petitioner's parents came to visit the respondent after about one week. RW-6, Shri Brijesh Bansal, deposed that both the parties were known to him. He stated that the parties resided at his rented out portion for about two months and, thereafter, in summer vacations of the school, the petitioner went to Kurukshetra and the respondent went to her parents' house. Thereafter the respondent used to come at times to enquire about whether the petitioner had come or there was any letter received at that address. He deposes that the petitioner had key of the house. The same day, in the evening the respondent went to his house to enquire if any letter was addressed to her and then it was informed to her that the petitioner had come in the morning and had taken the entire goods from the premises. When the petitioner removed his goods on 24.6.80, RW6, his mother, few neighbours, Mr. Krishan their milkman were present.
26. The above discussion shows that the parties lived together after their marriage, till the child was born. The respondent wife alleges that she was being continually harassed by the husband. It is also alleged by her that the husband had plans on the property of her mother; he wanted it to be transferred in to him. It is also a matter of record that after the birth of the child, the parties lived separately. Due to intervention of some third parties, and a parent of the husband, both the husband and wife again started to live together. The husband alleges that the wife went away; on the other hand, the wife alleges that she was left in the lurch by the husband; she relies on testimony of some witnesses to say that the husband stealthily left the matrimonial home, without informing her. The husband alleges, on the one hand that wife was not interested in returning to the matrimonial home. She wanted that the parties should live with the wife's mother. The husband's endeavor was to show that the respondent's father lived separately and did not maintain his wife, i.e. the appellant's mother in law. Consequently, she wanted the wife and the appellant to care for her, and be with her. The husband relies on several letters to say that despite being notified about his illness, the wife did not meet him, which disclosed her intention to bring the co-habitation to an end.
27. The evidence shows that the main grounds alleged for desertion are that the wife wanted the husband to live with her mother in law. He alleges that his father in law was not residing at Geeta Colony, and sought to suggest that to RW-2 and RW-1. However, both the witnesses refuted the suggestions. He further alleged, and insinuated that he was in fact maintaining her parents, which was not acceptable to him; that was the cause for the discord, and the wife living with the parents. The wife's father has denied it. He has also mentioned about his income, and the properties owned by him. Both RW-1 and RW-2 have stated that the petitioner husband insisted that the property belonging to, and owned by the wife's mother should be transferred to him. This allegation is corroborated by RW-2. Both these witnesses were interestingly enough, not cross-examined on this aspect.
28. One of the grievances projected was that the wife did not visit the petitioner when he was hospitalized for a piles surgery, and later, when the ailment relapsed. However, in her evidence, the respondent has clearly refuted this suggestion, and denied any knowledge. She has, on the other hand stated that the petitioner started sending registered letters, one of which did not contain any letter, but a question paper. This prompted the trial Court to hold that the registered letters were sent to create evidence against the respondent wife.
29. The overall picture which emerges from a conspectus of the evidence is that the petitioner was insisting that the wife's mother's house at Geeta Colony should be transferred in his name. As this did not happen, he appears to have been peeved. The respondent has spoken of ill-treatment and harassment by the husband. After the birth of the daughter, the petitioner husband did not attempt to live together with his wife, who was recuperating in her maternal home. At the behest of a common friend, a compromise was reached; the parties lived together between March and May, 1980. Thereafter, the petitioner withdrew from the matrimonial home, leaving the respondent and his infant daughter.
30. The facts discussed above do not establish the petitioner's allegations about the wife having left the matrimonial home with the intention of bringing cohabitation to a permanent end. No animus discerned has been proved. On the other hand, the petitioner's behavior and conduct forced the respondent with to live away; she had no option, since the husband left her.
31. The trial Court took into account the entire gamut of evidence and pleading, and concluded that the allegations of desertion and cruelty were not established. It has been held by a Division Bench of this Court, in Smt. Sushma Kohli @ Satay Devi v. Shri Shyam Sunder Kohli , that though the findings of a trial Court should never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on question of fact, yet, on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal Court should not lightly interfere with the judgment. I am of the opinion that the findings arrived at are unexceptionable, and do not call for interference.
32. In Parveen Mehta v. Inderjeet Mehta ; Durga Pasanna Tripathy v. Arundhati Tripathy II , and Naveen Kohli's case (supra) the Supreme Court, undoubtedly resorted to the concept of "irretrievable breakdown of marriage" and directed dissolution of marriage. There are given fact situations, where that course of action may e necessary, and most appropriate. Yet, I am of the opinion that the High Court, and the Courts constituted under the Hindu Marriage Act must seek recourse to such ground sparingly, and in exceptional circumstances. Irretrievable breakdown as a ground of marriage was recommended by the seventy-first report of the Law Commission, as a measure of reforms in matrimonial laws. Parliament has however, not intervened and included that ground as yet. Therefore, as held by the Supreme Court that where an obdurate litigant, unable to prove desertion, and himself a matrimonial offender, put forth such argument, the Court should decline to use such a ground for dissolving marriage (in Shyam Sunder Kohli v. Sushma Kohli (2004) 7 SCC 74):
On the ground of irretivable breakdown of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances that the Court may use this ground for dissolving a marriage. In this case, the respondent, at all stages and even before us, has been ready to go back to the appellant. It is the appellant who has refused to take the respondent back. The appellant has made baseless allegations against the respondent.
I am, therefore, of the opinion that in the facts of this case, the appellant cannot invoke the "retrievable breakdown of marriage" principle and seek dissolution of marriage.
33. In the above premises, I find no merit in the appeal. It is accordingly dismissed, with no order as to costs.