BIBHA GHOSH v. P. K. GHOSH — 1966 DIGILAW 54 (DEL)

R. S. Narula ( 1 ) THIS is an appeal under section 28 of the Hindu Marriage Act (Act 25 of IPSS ). here nafter refterred to as the Act, against the judgement and orders of the fourt of Shri S. R. Goel, Sub Tudge lst Class, Delhi. dated April 30. 1964 dismissing the appellant s petition under section 10 of the Act and declining to grant her a decree for judicial separation apainst the respondent. ( 2 ) THE parties were married to each other in 1959. Within about two years of their wedding the appellant gave birth to a daughter from the respondent. Since the 30th,of july, 1961 they are living separately. The appellant and her daughter are living with the appellants father whereas the respondent is living in his house. No. A-23, Andrews Ganj, New Delhi. ( 3 ) ON 3rd December, 1963 the appellant filed the petition under section 10 of the Act from which this appeal has arisen, in the Court of the District Judge. Delhi, for judicial separation from the respondent on the pround of cruelty and on the ground of wilful neglect of the petitioner by the respondent. In her petition the appellant pleaded that the respodent had tried to ill-treet her since her marriage, the respondent had practised too much cruelty over her, so much s" that she felt that she was fed up with her life. According to the averments made in the petition the responbent remained drink and possessed many other bad habits and used to bring had people in in the house and used to press her to live in adultery or in prostitution. The appellant further sta. tes that on her refusal to submit to that kind of a life she was mercilessly beaten bv the respondent. The other reason ascribed bv the appellant for her petting cruel treatment at the hands of the Respondent 1s the consistent. demand of the respondent against the appellant for money being brought by her from her parents. On the last occasion the appellant is stated to have been beaten by the respondent as she refused to bring a. nv further money from her parents. On that occasion i. e. , on July 30. demand of the respondent against the appellant for money being brought by her from her parents. On the last occasion the appellant is stated to have been beaten by the respondent as she refused to bring a. nv further money from her parents. On that occasion i. e. , on July 30. 19p1 the respondent is stated to have beaten the appellant mercilesslv and rendered her unconscious whereupon some neighbours rushed to the house and the Respondent 1nsulted and abused them and threw the appellant out of the house The anpellant s case is that her ornaments, etc. , were also kept bv the respondent and since then she i? living in her parents house at Sew?) Napar The appellant is then stated to have flied a petition under section 488 of the Code of Criminal Procedure but she withdrew this same as its decision was being nrolonped in the Court of Shri R. B L. Muthur. Magistrate 1st Class New Delhi and the rcording of the evidence had not even been commenced in that case for more than a year and a half. The appellant stated that since her parents had now become unable to support her she was left with no alternative but to invoke the jurisdiction of the Civil Court under section 10 of the Act. ( 4 ) IN his written statement dated 6th January. 1964 the respondent admitted his marriage with the appellant having taken place in September , 1959 at Delhi according to Hindu rites and also the birth of the daughter Pratima on January 23, 1960. It was further stated that the parties had been living in quarter No. A-134 at Moti Bagh-l, New Delhi. His defence on merits was that the appellant was employed as a working girl on a salary of Rs. 130. 00 per month and that he was ready and willing to have the appellant and her child with him. The allegations of the appellant having been beaten by the respondent were specifically denied and it was added that the father of the appellant had taken her away along with him on the pretext that she was being beaten and that she was had taken away her clothes and jewellery with her. According to the respondent the parents of the appellant were instigating the appellant to go away from the Respondent 1n order to appropriate her salary of Rs. According to the respondent the parents of the appellant were instigating the appellant to go away from the Respondent 1n order to appropriate her salary of Rs. 130. 00 per month. Regarding the petition under section 488 of the Code of Criminal Procedure the respondent s case was that such a petition had been filed against him but the same having once been dismissed the appellant had again moved the criminal Court for restoration of the application. ( 5 ) ON 4th December, 1963 the appellant filed in the -trial Court an application dated 22nd November, 1963 for pay-nent of maintenance pendente lite and for an order against the respondent to pay her litigation expenses. In his "written reply the respondent has contended that appellant s application under section 488 of the Code of Criminal Procedure was pending in the criminal Court and that the appellant was not entitled to anything as she was a working girl who w:is earning approximately Rs 130. 00 per month. On January 22, 1964 the trial Court ordered the respondent to pay Rs. 50. 00 per mensem as maintenance pendente lite to the appellant and her minor daughter with effect from the month of December, 1953 but allowed the respondent to lead evidence to show that the petitioner was an earning hand which might have justified variation in the order. The respondent does not appear to have paid the amount ordered by the Court. Thereupon the appellant filed an application dated 20th February, i964 for striking out the defence of the respondent for non payment of the amount. The respondent filed a written reply wherein it was pleaded, inter alia, that no law allowed his defence to be struck out on that groun-l. On 25th March, 1934 the learned Sub- Judge passed an order showing that the appellant did not press her application for striking out the respondent s defence as there was no law under which his defence could be struck off. The learned Sub Judge held thatthe only remedy available to the appellant was to apply for the execution of the order granting the maintenance. The appellant even applied for recovery of the arrears of maintenance from the respondent by attachment of the respondent s salary and the Court ordered a warrant of attachment to issue, but nothing is started to have been recovered. The appellant even applied for recovery of the arrears of maintenance from the respondent by attachment of the respondent s salary and the Court ordered a warrant of attachment to issue, but nothing is started to have been recovered. Thus ended the effort of the appellant to secure litigation expenses or maintenance pendents lite. ( 6 ) FROM the pleadings of the parties the trial Court framed the following two issues : - 1. Whether the respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in her mind that it will be harmful or injurious for her to live with the respondent ? 2. Whether the respondent has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition ? ( 7 ) THE learned. Sub Judge held on issue No. 1 that the appellant had admitted that every dispute between the parties before their coming to Andrews Ganj was compromised and she had condoned the fault of the respondent and that thereafter the only act of cruelty alleged was the beating on the 30th July, 1961 I which act, even if believed was an isolated one not justifying the passing of order for judicial separation. On issue No. 2 the trial Court found that the petitioner had left the respondent s house on 30th July, 1961 but it was not proved that this was due to the beating administered to her on that day, that it appeared to the trial Court that the petitioner had left the house of the respondent on 30th July, 1961 of her own accord, or at the most under the influence of her father and since the respondent was prepared to take the appellant to his house she was not entitled to a decree for judicial separation on the ground of desertion. Aggrieved by the judgment of the learned Sub Judge dismissing her petition for judicial separation the appellant has come up to this Court. ( 8 ) PUBLIC Witness. I Pan Singh had stated in this case that he knew the parties, that his house was adjacent to that of the parties in Andrews Ganj that the respondent used to give the appellant only about Rs. 18. 00 or Rs. 20. ( 8 ) PUBLIC Witness. I Pan Singh had stated in this case that he knew the parties, that his house was adjacent to that of the parties in Andrews Ganj that the respondent used to give the appellant only about Rs. 18. 00 or Rs. 20. 00 per month to run the entire household and that upon the appellant complaining about her not being able to meet the entire expenses out of that petty amount the respondent used to beat her. Pan Singh was an eye witness to two or three beatings Pan Singh also swore that the respondent used to ask the appellant to bring money from her father. On the 30th of July, for the last time the appellant is stated to have been beaten and pushed out of the house when she fell down and became unconscious. The witness stated that it was drizzling at that time and some residents of the locality gave water to the appellant after taking which she regained consciousness. Pan Singh also stated that the respondent used to come to his house late in the night and that too under the influence of liquor. He admitted that the appellant had gone to his house to complain against the respondent but denied being on visiting terms with the appellant s father P. W. 2 Sad ban Kumar Chakarvarti is a Clerk in the Finance Ministry. He deposed that on 30th July, 1981 he had seen the respondent beating the appellant and pushing her out of his house whereupon she fell down. He corroborated the evidence of P. W, I in all material particulars. He added that on his protesting to the respondent he was told tha. t he would beat her, and that he had gone to the length of saying that he would kill the appellant if she returned to his house. According to this witness it was on this threat of the respondent that the appellant went away to her father s house. The time at which the appellant was beaten on 30th July, 1961 is stated by this witness to be 7 P. M. ( 9 ) P. W. 3 S. N. Mukerjee is an employee of the Ministry of Defence. He was a neighbour of the parties in Andrews Gani. The time at which the appellant was beaten on 30th July, 1961 is stated by this witness to be 7 P. M. ( 9 ) P. W. 3 S. N. Mukerjee is an employee of the Ministry of Defence. He was a neighbour of the parties in Andrews Gani. He stated that even at that time the respondent used to ask her to bring money from her parents. In cross-examination he admitted that his house in Andrews Ganj was at a distance of about a furlong from that of the parties. ( 10 ) P. W. 4 Sudhir Kumar Gosh, an employee of the office of the Director General, Technical Development, is the father of the appellant. He has deposed that after about two months of the marriage between the parties the respondent started beating the appellant. On the demands of the respondent he states to have paid the appellant Rs. 25. 00 Rs. 30. 00 and Rs. 40. 00 on three different occasions besides giving some money directly to the respondent on two other occasions. This witness stated that when he refused paying money to the appellant the respondent started beating her- Twice she was beaten in the presence of her father. The appellant is stated to have told the witness that the respondent wanted her to lead an immoral life. The witness also saw the respondent drunk along with another woman in the house. He also corroborated the fact that the appellant went to his house on the 30th of July, 1961 and since then she is living with him -as she had been turned out by the respondent from his house. In cross-examination he stated that the marriage took place on 11th September, 1959 that a daughter was born to them in January, 1960, that the parties first lived in Vinay Nagar, then in Moti Bagh and thereafter in Andrews Ganj. He was not an eye-witness to the beating of 30th July, 1961. In cross-examination he stated that the marriage took place on 11th September, 1959 that a daughter was born to them in January, 1960, that the parties first lived in Vinay Nagar, then in Moti Bagh and thereafter in Andrews Ganj. He was not an eye-witness to the beating of 30th July, 1961. ( 11 ) THE appellant herself entered the witness-box as P. W. 5 and testified that two or three months after her marriage therespondent started beating her after every three or four days, that the respondent used to give her only 18 or 19 rupees per mensern and used to ask her to bring money from her parents, that the respondent used to come late in the night under the influence of liquor and used to bring women with him in the house. She aslo complained of having been asked by the respondent to lead an immoral life. The cause of the trouble on the 30th July, 1961 was stated to be the refusal of the appellant to agree to bring more money from her father when asked to do so by the respondent , that she was thereupon beaten and turned out of the house and that Fan Singh, Sadhan Chakarvarti, Sagar Chand and Mukerji saved her from the clutches of the respondent. She further averred that she wanted to go back to the house of the respondent but he threatened her with dire consequences and, therefore, she had to go away to her father s house and is since then living there. She added that the respondent had never gone to bring her back. In cross examination she did state that there were disputes between them even before coming to Andrews Ganj but those disputes were compromised and that she had condoned that fault of the respondent. What the appellant appears to have meant was that she had been able to put up with the cruelty that was meted out to her prior to their shifting to Andrews Ganj. The attitude of the poor appellant also appears to be clear from the fact that even after receiving severe beating on the 30th July, 1961 she wanted to enter back the house of the respondent and desisted from loing so and went away to her father s house only when the respondent threatened her with dire consequences. The attitude of the poor appellant also appears to be clear from the fact that even after receiving severe beating on the 30th July, 1961 she wanted to enter back the house of the respondent and desisted from loing so and went away to her father s house only when the respondent threatened her with dire consequences. In cross-examination she made it clear that now she was not prepared to go to the respondent any more, ( 12 ) TO rebut the above evidence the respondent produced R. W. 2 M. Gosh and also appeared as his own witness as R. W. 1. M. Gosh stated that he used to live in Andrews Ganj though he is no more living there and that he did not see the respondent ever beating the appellant or quarrelling with her. Nor did he see the respondent bringing any bid charactered women in his house. In his cross-examinition he admitted that he was a friend of the respondent and that he was present when the appellant left for her father s house. The witness stated that he did not remember the date on which she so left, but the time was shout 9 or 10 P. M. and that it was raining at that time. He also stated that he could not count the number of persons present at that time. According to him the father of the appellant and Sadhan Chakarvarti had gone to the house of this witness and asked him to accompany them as the appellant s father had told the witness that there was a quarrel between the appellant and the respondent and, therefore, they wanted the witness to go to the respondent s house. The witness further stated that on going to the house of the respondent he found that there was a family dispute between the two spouses and some of the people collected there suggested to the appellant s father to take her away to his house. The witness admitted the presence of Sadan Chakarvarti and some other persons at the spot. He could not deny that the appellant was at that time standing outside the house when he had gone to the respondent s place. The witness admitted the presence of Sadan Chakarvarti and some other persons at the spot. He could not deny that the appellant was at that time standing outside the house when he had gone to the respondent s place. According to the witness he tried to bring about reconciliation between the parties hut he could not say why the reconciliation could not be effected ( 13 ) THE respondent himself stated that they lived in quarter No. 377-N in Sewa Nagar for about 3 or 4 months but then changed and said that in fact he had lived in that quarter before the marriage and that after the marriage he had lived in quarter No. A.-134 Moti Bagh-l for about 3 or 4 months, from where he shifted to F-50 Moti Bagh II. After living there for 9 or 10 months the respondent was allotted quarter No. A-23 in Andrews Ganj. He merely made a vague denial of having ever beaten the appellant, or having brought any girl or women in the house. In cross examination he stated that he was getting Rs. 125. 00 per month as salary and that he used to give some money to the appellant though he did not remember what was the exact amount. The respondent further added that the appellant s father hid not given any dowry in the marriage and admitted that the appellant had been living with her parents since Tuly. 1961. He however, stated that she was living away from him since 3rd July, 1961 whereafter he went he bring her back once, but the father of the appellant declined to send her on the ground that the respondent used to beat the appellant and had turned her out. The father of the appellant is stated to have told this to the respondent on the 7th or 8th August, 1961. The respondent admitted that thereafter he did not send anv notice to the appellant nor even went to her again a. nd that the respondent did not know the reason why the appellant had left him and had started living with her perents. He also added in cross-examination that apellant s father had not given anv clothes to the appellant at the timee of her m"rriage except one saree. He also added in cross-examination that apellant s father had not given anv clothes to the appellant at the timee of her m"rriage except one saree. I am somewhat surprised that in the face of the above-mentioned evidence the trial Court persuaded itself to hold that it had not been proved that the appellant had been treated with such crneltv as to cause a reasonable apprehension in her mind that it would be harmful or injurious for the appellant olive with the respondent. Though the beating. . which the appellant states to hive condoned might not have been good grounds for granting a decree for judicial separation, they cannot be ignored for the purpose of deciding- whether the severe beating on the 30th of july. 1961 was a single isolated incident in the married life of the two spouses which might have arisen out of some grave provocation or whether it was a mere link in the chain of previous events which ultimately brought the matter to a crisis Considerine the culture, tradition and way of living of the Hindu society in this country, it is eminently clear that no Hindu wife likes to give up her house on account of some petty quarrel unless she really finds it impoisible to put up any further with her husband on account of unbearable circumstances. The allegation of the respondent to the effect that the appellant had taken away all her jewellery and clothes etc. is proved to be utterly false when he has stated in the secondbreath that she had brought only one saree and had not brought anything else. He has not disputed the fact that he used to give her only about Rs. 18. 00 per month for expenses. There is no reason to disbelieve the sworn testimony of independent witnesses who were admittedly the neighbours of the parties in Andrews Ganj. Even R. W. 2, M. Gosh, the solitary witness produced by the respondent himself admitted that there was a quarrel between the parties on the date on which she ultimately left the respondent s house and that it was drizzling at that time and it was late in the evening and many people including Sadan Chakarvarti had collected at the spot. He could not deny the fact that at that time the appellant was standing out of the respondent s house. He could not deny the fact that at that time the appellant was standing out of the respondent s house. Even the halting statement of M. Gosh clearly corroborates the evidence of the witnesses produced by the appellant regarding- the occurrence of the 30th of July, 1961 in material particulars. After a careful appraisal of the entire evidence I think, the case of the appellant is proved to the hilt that she was in fact treated with unbearable cruelty and that she left the respondent s house only when she was told by the respondent that if she returned to his house he would kill her or that she would have to face dire consequences. Though there is no evidence of the respondent having brought any other women in the house, but the direct evidence of ill-treatment is enough to cause a reasonable apprehension in the mind of any sane woman that it would be harmful or injurious for her to live with a person like the respondent. ( 14 ) I think, even the charge of desertion is fully made out in this case. According to the explanation to section 10 (1) of the Act the expression "desertion" includes the wilful neglect of the petitioner by the other party to the marriage. In this case it has not been disputed by the respondent that he did not pay a single penny to the appellant since after she was turned out of his house on the 30th July, 1961. The respondent went to the length of declining to pay even the amount of maintenance pendente lite fixed by the trial Court in this case under section 24 of the Act. He has hotly contested the proceedings under section 488 of the Code. It is a matter of regret that the criminal Court could not dispose of such a summary matter for more than one and a half year. I think, the District Magistrate and the Delhi Administration should make arrangements for entrusting all cases under section 488 of the Code of Criminal Procedure to some particular Magistrate, preferably some lady Magistrate so that these cases could be disposed of sympathetically and expeditiously and respectful ladies have not to rot in the atmosphere of criminal Courts for long periods in order to await decision of their applications for maintenance. ( 15 ) IN the above circumstances I accept this appeal with costs throughout, set aside the judgment and order of the Court below and pass a decree for judicial separation in favour of the appellant against the respondent on the ground covered by section 10 (1) (a) read with the explanation to that sub-section and the ground covered by clause (b) of section (1) of section 10 of the Act.