ASHOK KUMAR ARORA v. PREM ARORA — 1986 DIGILAW 321 (DEL)

S. S. CHADHA, J. ( 1 ) THIS appeal under S. 28 of the Hindu Marriage Act, 1955 is directed against the judgment and decree dated July 18, 1983 of Shri Ravi Kumar, Additional District Judge, Delhi dismissing the petition of the appellant under S. 13 (l) (ia) and (ib) of the said Act for the dissolution of marriage. ( 2 ) THE appellant and the respondent were married on November 13, 1970 at Delhi in accordance with Hindu rites. After the marriage, the appellant and respondent lived and cohabited together and out of this wedlock, one male child was born on August 23,1971. Allegations are made in the petition that the respondent had been leading immoral and sinful life before marriage and had been operating as a call girl and that she confessed her past relationship with strangers and deserted the appellant on February 27, 1972 leaving the male child in the custody of the appellant. In para 10 of the petition, it is alleged the respondent confessed about her immoral and sinful life and told the appellant that for several personal and unavoidable reasons it would not be possible for her to live with him any more and perform the duties and obligations of a faithful wife and a devoted mother. In para 11 it is alleged that the respondent told the appellant that in the existing circumstances, it would be in the interest of both the parties and their families if the marriage was dissolved immediately and both of them released from the marriage bond. Then allegations are made in para 13 that the respondent deserted the appellant and her son aged about 5 months ofebruary 27, 1972 and executed a deed of divorce. A copy of the aforesaid deed is attached with the petition. It is averred that the aforesaid deed has been filed only with a view to prove the intention of the respondent to bring cohabitation permanently to an end. The petition was filed on February 1, 1980. A copy of the aforesaid deed is attached with the petition. It is averred that the aforesaid deed has been filed only with a view to prove the intention of the respondent to bring cohabitation permanently to an end. The petition was filed on February 1, 1980. In para 18 it is pleaded that there has not been any unnecessary and improper delay in instituting the case, that the case was not filed earlier in the paramount interest of the child who has been critically ill, both mentally and physically, that as the guardianship of the minor who has not completed the age of 5 years, ordinarily remained with the mother, that the appellant who is the natural guardian of the child has delayed the filing of the petition till the boy crossed the statutory age limit with a view to negative the claim of the respondent for the custody of the child in the event of such a claim being made by her and that that was necessary for the proper upbringing of the boy and to ensure provision of proper medical facility. In the written statement, the respondent has denied the allegations of leading immoral or sinful life before and after marriage or operating as a call girl. It is averred that by such like suspicions as are mentioned in the application, the appellant made the respondent s life miserable. Counter-allegations are made that the appellant himself was involved with many girls with whom he used to act in stage dramas. There is vehement denial of the desertion by the respondent. On the contrary, the plea is that the appellant and his brother threw the respondent out in three clothes. It is denied that the respondent executed any divorce deed. The plea is that the appellant in order to create false evidence wrote some papers and got from the respondent her signatures at dagger s point, that he threatened that in case the respondent did not sign the papers, the appellant would finish her and that the respondent has not consented to divorce or to any such deed as alleged in para 12 of the petition. As regards para 18, it is stated that the excuses for the delay are false and cooked up. ( 3 ) ON the pleadings of the parties, the following issues were framed : 1. As regards para 18, it is stated that the excuses for the delay are false and cooked up. ( 3 ) ON the pleadings of the parties, the following issues were framed : 1. Whether the respondent has deserted the petitioner, as alleged in the petition ? OPP 2. Whether the respondent is leading an immoral life as a call girl as alleged in the petition ? If so, its effect ? OPP 3. Whether the respondent was maltreated by the petitioner and his parents and was thrown out of the house, as alleged in para No. 4 of the Written Statement? If so, to what effect ? OPD 4. Whether the petitioner is entitled to a decree for the dissolution of marriage ? 5. Relief. The trial Court appreciated the evidence on the record including the document dated February 27, 1972, Ex. Public Witness-1/1. On the appreciation of the evidence, the trial Court came to the conclusion that the appellant has not proved any substantial steps being taken by him to bring his wife back, that he did not write any letters to her asking her to join him; rather as is clear from the petition itself, he suspected character of his wife and that the document, Ex. Public Witness-1/1 shows that the appellant had no objection to the respondent going away from his house, rather, he gave his consent to her. The inference drawn is that the petitioner has failed to prove the desertion. The issue was decided against the appellant. Shri S. P. Pandey, the learned counsel for the appellant has pressed this issue and the connected issues and took me through the entire pleadings and evidence on the record. ( 4 ) SECTION 13 of the said Act provides that any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party, inter alia, has deserted the petitioner for a continuous p. eriod of (not?) less than two years immediately preceding the presentation of the petition. An explanation was added by Act 68 of 1976. An explanation was added by Act 68 of 1976. It provides that in this sub- section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. Mr. G. C. Lalwani, the learned counsel for the respondent has relied upon Lachman Utamchand v. Meena, AIR 1964 SC 40 , to urge that in its essence desertion means the intentional permanent foresaking and abandonment of one spouse by the other without other s consent and without reasonable cause and that the burden of proving desertion i. e. the factum as well as animus deserendi is on the petitioner and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was just without cause. There is no doubt, in my view, that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi ). Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts or conduct or expression of intention both anterior and subsequent to the actual acts of separation. The legal burden before the amendment by Act 68 of 1976 was upon the spouse to establish by convincing evidence that the respondent abandoned him or her without reasonable cause. The legislature intervened and added the explanation. A plain reading of the explanation shows that it will be for the spouse which has withdrawn from the society to prove reasonable cause. In other words, it has to be proved by the spouse which withdrew from the society of the other that the said spouse had reasonable excuse to keep away. The nature of evidence which is required in matrimonial cases rests on preponderance of probabilities and not a standard of proof in that of a criminal case, i. e. the party seeking relief has to establish. The nature of evidence which is required in matrimonial cases rests on preponderance of probabilities and not a standard of proof in that of a criminal case, i. e. the party seeking relief has to establish. the case beyond any reasonable doubt as is contended by Shri Lalwani. ( 5 ) AS already noticed, allegations have been made in Para 12 of the petition that the respondent deserted the appellant and her son aged about 5 months on February 27, 1972 and executed a deed of divorce. In the corresponding paragraph, there is a denial to the execution of the divorce deed and the plea is that the appellant in order to create false evidence wrote some papers and got from respondent her signatures at dagger s point. Public witness 6 Smt. R. K. Vij, Handwriting and Finger Print Expert examined the disputed document written in Hindi as well as in English and compared the same with the specimenwriting and admitted signatures. She gave her considered opinion that the disputed signatures and writings are written by Smt. Prem Kumari, the writer of the admitted and specimen signatures written in Hindi and English. She was examined in Court and re-affirmed her report. Nothing material has been brought out in her cross-examination so as to discredit her testimony. The respondent has not produced any expert evidence in rebuttal. At the time of the admission and denial of the documents, the respondent went to the extent of denying the writing and signatures on Ex. Public Witness-1/1, as against her plea in the written statement that her signatures were obtained on the paper at dagger s point. When the respondent appeared in the witness box she admitted that the portion encircled x in Ex. Public Witness-1/1 is in her handwriting. The portion encircled x contains the signatures, the maiden name and the name after the marriage and the address of the respondent. Even after the expert evidence has been led, she exhibits ignorance as to who subscribed the document, Ex. Public Witness-1/1 (two sheets ). ( 6 ) THE document is dated February 27, 1972. She deposes that she continued to live with the appellant for about 9 months after he got her writing encircled x . She also admits that her child was aged about 6 months on February 27, 1972. Public Witness-1/1 (two sheets ). ( 6 ) THE document is dated February 27, 1972. She deposes that she continued to live with the appellant for about 9 months after he got her writing encircled x . She also admits that her child was aged about 6 months on February 27, 1972. She further states that she left the house of the appellant when her child was about 9 months. She is belied as to. the date of leaving by her own brother Shri Atam Prakash Ahuja who appears as R. W. 4. In the examination-in-chief itself he deposes that the respondent is living with her parents at 4-D/56, Old Rajinder Nagar, New Delhi since January 27, 1972 when she was thrown out and beaten by the appellant and his mother. In her petition under S. 24 of the said Act filed on March 15, 1980 she makes a statement that she was left by the appellant at the house of her parents in three clothes and that all her ornaments and valuable clothes were snatched away and retained by her mother (mother-in-law?) on February 27,1972. At another place she states that on February 27, 1972 the appellant himself suggested that the appellant wished to visit the parents of the respondent and took her to the parents of the respondent and left her there. Thus the inference is irresistible that this document was executed on February 27, 1972 by the parties. ( 7 ) THE document, Ex. Public Witness-1/1 has to be construed in its entirety. It is here that the learned Additional Dist. Judge went wrong. In this document, the respondent makes a reference to certain incidents prior to her marriage which incidents she does not want to narrate and wants to keep them secret and within limited relations who already know and on account of which she expresses her desire to relieve the appellant of his marriage bond. She completely abandons her child and entrusts it to the appellant. In fact it is in the, nature of a divorce deed. On this document, the appellant records : "mujhe isme koi etraj nahin yadi Prem Kumari Ahuja jis haal me sukhi reh sake mujhe manjoor hai. Aaj se meri taraf se usey purrn azadi hai. She completely abandons her child and entrusts it to the appellant. In fact it is in the, nature of a divorce deed. On this document, the appellant records : "mujhe isme koi etraj nahin yadi Prem Kumari Ahuja jis haal me sukhi reh sake mujhe manjoor hai. Aaj se meri taraf se usey purrn azadi hai. "it is not for me to speculate on the secret incidents but the fact remains that there were some compelling circumstances which made her to write this deed of divorce and to abandon the matrimonial home and her own son. It may be as has come in the evidence of the appellant that she was living immoral and sinful life which is most probable as otherwise a mother will not forsake a six months old son. It may be that the respondent was exposed and the appellant had come to know of the secret incidents. The fact remains that there was a separation on February 27, 1972 subsequent to the writing of the letter, Ex. Public Witness- 1/1. ( 8 ) THERE was an intention to bring cohabitation permanently to an end as is spelled out of this document, Ex. Public Witness-1/1. The respondent s act and conduct in failing to return to the husband s house and looking after her own child is a weighty circumstance of her initial intention of desertion. In the examination-in-chief she says that she tried to see her child at the house of the appellant but she was not allowed to meet the child by her husband and her mother-in-law. The respondent admits that she has not seen the child since the age of 9 months, that she does not know in which school he is being educated and that he is being maintained and looked after by her mother-in-law. The. appellant deposed that his child is aged 9 years on the date of the statement (February 19, 1981), that he is still mentally weak and needs treatment, that the doctor told him that the mental illness of the child is either on account of hereditary illness or on account of serious disease of the mother, that mark z is the slip issued by CGHS regarding the child and that the other slips issued by CGHS and Safdarjang Hospital regarding the treatment of the respondent are marked a , b , c , d and e . The appellant further deposed that he made attempts to persuade the respondent to come back when his child was admitted in All India Institute of Medical Sciences and that whenever his child fell ill he contacted her and asked to come and reside with him for the sake of the child but she always declined. There is no cross-examination of the appellant on the above points and for this reason this testimony of the witness remains unchallenged. The absence of the cross- examination must have led the appellant or his counsel to believe that it is not necessary to prove by medical evidence the illness of the child. In the normal course of human conduct, a mother would look after her own child particularly when the child is ill. The inference is, therefore, irresistible that she separated on February 27, 1972 with an intention to bring the cohabitation to an end. ( 9 ) THIS conclusion is further supported by the fact that the child was abandoned even according to the respondent at the age of 9 months. Ordinarily, under law a mother is entitled to the custody of a male child of that age. No efforts have been made by the respondent and no proceedings have been initiated in a Court of law for the custody of the male child. According to Ex. Public Witness-1/1, the respondent entrusted the custody of the male child to the appellant and snapped all connections with the family. The respondent made arrangements in the document, Ex. Public Witness- 1/1 for the custody and the maintenance of the child after the execution of the so-called divorce deed. She has also not moved any petition for the restitution of any conjugal rights. Her admission not to make such a petition is a circumstance that she has forsaken her husband for ever. ( 10 ) THE appellant s case is that the respondent confessed about her immoral and sinful life and told the appellant that for several personal and unavoidable reasons, it would not be possible for her to live with him any more and perform the duties and obligations of a faithful wife and a devoted mother and it is for this reason that she deserted the appellant. On the other hand, the allegations of the respondent are that the appellant himself was involved with many girls with whom he used to act in stage dramas and that he used to bring his stage colleagues home and used to have pleasure with them. These allegations and counter-allegations are relevant for ascertaining the intention of the parties that they intended to bring cohabitation permanently to an end. ( 11 ) THE finding of the trial Court on the writing of the appellant in Ex. Public Witness-1/1 is that the writing by the appellant himself shows that the appellant had no objection to the respondent going away from his house. Reliance was placed by the trial Court as is placed by Mr. Lalwani on Suresh Kumar v. Suman Gulati, AIR 1983 All 225 . Reliance is placed in addition on vijay Kumar v. Smt. Rita Kumari, 1983 Mat LR 53. Desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without consent. There is no plea of the respondent in the written statement that the appellant had given his consent to the respondent to withdraw from the matrimonial home and the obligations therein. In fact the execution of letter, Ex. Public Witness-1/1 is denied and the obtaining of the signatures is alleged under duress. The language of Ex. Public Witness-1/1 in the handwriting of the respondent evidences a divorce by mutual consent. On this the appellant recorded that he was agreeable to the state of affairs according to the wishes of the respondent. She was given complete freedom. It was not a consent to live apart. It was a complete surrender to the state of affairs as brought out by the respondent in Ex. Public Witness-1/1. In Suresh Kumar s case (supra), it was found that there was an agreement which showed that the husband had offered to pay Rs. 17. 000. 00 for being kept in F. D. for the marriage of the daughter and to return the ornaments and things given to the wife as dowry by her parents as a consideration for agreeing to a dissolution of the marriage and it is in pursuance of this arrangement that the wife was living apart. It was construed as an agreement between the parties to live apart. It was construed as an agreement between the parties to live apart. It was observed that it could by no stretch be treated as an admission of the wife of an act of putting cohabitation to an end permanently and against the consent of the husband. That authority is, therefore, clearly distinguishable. In case of Vijay Kumar (supra), the wife was admittedly living separately in pursuance of an agreement with the husband and she expressed her willingness at all relevant times to live with the husband. The divorce was sought only on the ground that they had been living apart. There were no further facts or circumstances brought out during the trial. ( 12 ) THERE are serious allegations of immoral character by the parties against each other and there has been a prolonged separation from February 27, 1972. The withdrawal from the society of the appellant was by the respondent. It was for her to prove reasonable cause or excuse to keep away from her husband and from her son. This she has miserably failed to establish on the record. The cumulative effect of the circumstances, situations, and the evidence noticed by me persuades me to draw an inference that the respondent separated on February 27, 1972 with the intention to bring cohabitation permanently to an end. I, therefore, reverse the findings of the trial Court and hold issue No. 1 in favour of the appellant. ( 13 ) COUNSEL for the respondent raised a plea at the hearing that there has been unnecessary and improper delay in instituting the proceedings and the Court should not exercise its discretion for the grant of decree. Reference is made to S. 23 (1) (d) of the said Act. Reliance is also placed on "gurnam Singh v. Chand Kaur, (1982) 1 DMC 3 and Inderjit Kaur v. Balbir Singh, (1983) 1 DMC 233. Both these cases have no application on the facts of this case. The appellant made a specific allegation in Para 18 of the petition in these words : "that there has not been any unnecessary or improper delay in instituting the case. The suit was not filed earlier in the paramount interest of the child who has been critically ill; both mentally and physically. The appellant made a specific allegation in Para 18 of the petition in these words : "that there has not been any unnecessary or improper delay in instituting the case. The suit was not filed earlier in the paramount interest of the child who has been critically ill; both mentally and physically. As the guardianship of the minor who has not completed the age of 5 years, ordinarily remains with the mother, the petitioner, who is the natural guardian of the boy, has delayed the filing of the present petition till the boy crossed the statutory age limit with a view to negative the claim of the respondent for the custody of the child in the event of such a claim being made by her. This was necessary for the proper upbringing of the boy and to ensure provision of proper medical facility. "the respondent did not join issue in the trial Court and for this reason no evidence has been led by the appellant. No doubt it is the Court s duty to be satisfied that there has not been any unnecessary and improper delay in instituting the proceedings, yet it was for the respondent to raise an objection about the delay. The delay has been explained at the first instance at the time of the institution of the petition. It is supported by the personal statement of the appellant. The explanation is plausible. I, therefore, do not find any unnecessary and improper delay. ( 14 ) IN the result, the marriage between the parties is dissolved by a decree of divorce on the ground that the respondent has deserted the appellant for a continuous period of not less than two years immediately preceding the presentation of the petition. ( 15 ) DURING the course of hearing on September 18, 1986, a suggestion was made for dissolution of marriage and grant of permanent alimony to the respondent. A suggestion of Rs. 400. 00 p. m. or lump sum of Rs. 30,000. 00 was made. Though the parties took time to consider this question, it was more or less agreed. The respondent has backed out and, therefore, I have heard the case on merits. The respondent has already moved an application for the grant of maintenance pending final decision on that application, she is granted maintenance of Rs. 400. 00 per month. 00 was made. Though the parties took time to consider this question, it was more or less agreed. The respondent has backed out and, therefore, I have heard the case on merits. The respondent has already moved an application for the grant of maintenance pending final decision on that application, she is granted maintenance of Rs. 400. 00 per month. ( 16 ) ON the facts and circumstances, I I make no order as to costs.