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2000 DIGILAW 1296 (PNJ)

Narinder Kaur v. Varjinder Singh

2000-11-01

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - Smt. Narinder Kaur has filed the present appeal and it has been directed against the judgment and decree dated 5.4.1999 passed by the Additional District Judge, Fatehgarh Sahib, who allowed the petition of Varjinder Singh (now respondent) under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) and granted a decree of divorce on the ground of desertion. 2. The brief facts of the case are that Varjinder Singh respondent filed a petition under Section 13 of the Act and it was inter alia pleaded by him that the marriage between the parties took place on 9.4.1989 by way of Anand Karaj ceremonies. The parties cohabited with each other but no child was born out of this wedlock. It was alleged by the husband that wife resided with him till December 1991 and in the said month her brother-in-law took her to her parental house and thereafter she did not turn up to join his company. In the month of June 1992, the petitioner along with his relatives and respectables approached the respondent-appellant and requested her to resume his company but to no effect. In the month of November 1993, Jaswant Singh, brother-in- law of respondent along with his brothers Kulwant Singh and Pritam Singh and other relatives namely, Thakur Singh, Kundan Singh and Shinder Singh, residents of village Jalmana, district Karnal came to village Pawala at the house of the petitioner and expressed the desire of the respondent not to live in the company of the petitioner and stated that he should get divorce by mutual consent. Jaswant Singh, brother-in-law (Jija) of the respondent had also been pressuring the petitioner and his family members to mutually divorce the respondent. In the month of January 1995, the petitioner and his relatives again convened panchayat and went to the house of the respondent- wife and persuaded her to resume the company of the petitioner, but she did not agree. It was further averred that the parents of the respondent-wife are not alive and Jaswant Singh, husband of the elder sister of the respondent, is residing at village Thaska Ali as Ghar Jawai. The property left by the father of the respondent has been inherited by the respondent and her sister in equal shares. Therefore, the respondent has become the owner of seven acres of land. The property left by the father of the respondent has been inherited by the respondent and her sister in equal shares. Therefore, the respondent has become the owner of seven acres of land. The borther-in-law of the respondent does not want that the land should go in the hands of the petitioner. He had already sold some land in abadi of Village Thaska Ali belonging to the respondent. Since the respondent-wife has deserted the petitioner without any reasonable cause and excuse for more than four years and eleven months prior the filing of the petition, therefore, the husband has sought a decree of divorce. 3. The notice of the petition was given to Narinder Kaur, who filed the reply and denied the allegations. It was pleaded by her that she filed a petition under Section 9 of the Act and also filed a criminal case under Sections 498-A and 406 I.P.C. She further filed a complaint under Section 494 IPC besides one more application under Section 125 Criminal Procedure Code The present petition under Section 13 of the Act has been filed as an abuse of process of law. On merits, it was alleged by the wife that her husband used to beat her on account of demand of money. He was not satisfied with the articles of dowry. Initially, the husband remained silent but thereafter he started misbehaving with her. The petitioner and his family members used to taunt her on the ground that she was infertile. They demanded a motorcycle and a cash of Rs. 10,000/-. The respondent-wife told the petitioner that she was an orphan, her marriage was arranged by her Jija and she cannot meet with the demand. At this, the petitioner and his family members became furious and gave beatings to her many times. However, with the intervention of the panchayat she was again rehabilitated, but after about two years she was again turned out from her matrimonial house in three wearing apparel. She is residing in the house of her parents due to the fault of the husband, who is not entitled to any divorce. 4. The petitioner-husband filed a re-joinder in which he denied the allegations of the written statement by reiterating that of the petition. She is residing in the house of her parents due to the fault of the husband, who is not entitled to any divorce. 4. The petitioner-husband filed a re-joinder in which he denied the allegations of the written statement by reiterating that of the petition. It was further pleaded by the husband that brother-in-law of the respondent-wife wants to grab the land and other property which has been inherited by her, and, therefore, he does not want that the respondent should come and live in the company of the husband. 5. From the above pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the respondent deserted the petitioner without any reasonable cause and excuse as pleaded in the petition ? OPP 2. Whether the petition is not maintainable in the present form ? OPR 3. Whether the petitioner has not disclosed the previous litigation between the parties, if so its effect ? OPR 4. Relief. 6. In order to prove these issues the petitioner appeared as his own witness as PW1 and he also examined Gurmit Singh as PW2. On the other hand, the respondent-wife stepped in the witness-box as RW1 and examined her brother-in-law Jaswant Singh as RW2. After tendering into evidence the statements of Varjinder Singh Ex.R1 and Ex.R2 she closed her case. 7. The learned trial Court under issue No. 1 decided that respondent Smt. Narinder Kaur has deserted the petitioner without any reasonable cause and excuse for a continuous period of two years prior to the filing of the petition and resultantly this issue was decided in favour of the petitioner and against the respondent. Issue No. 2 was also decided against the lady. Issue No. 3 was also decided against the respondent and finally the petition under Section 13 was accepted and a decree of divorce by way of dissolution of marriage was passed with costs vide judgment dated 5.4.1999. 8. Not satisfied with the decision of the trial Court, the present appeal by Narinder Kaur. 9. I have heard Mr. J.S. Virk, Advocate on behalf of the appellant, Mr. Palwinder Singh, Advocate on behalf of the respondent and with their assistance have gone through the record of this case. 10. 8. Not satisfied with the decision of the trial Court, the present appeal by Narinder Kaur. 9. I have heard Mr. J.S. Virk, Advocate on behalf of the appellant, Mr. Palwinder Singh, Advocate on behalf of the respondent and with their assistance have gone through the record of this case. 10. Before I deal with the submissions raised by the learned counsel for the appellant, it will be proper on my part to say that reconciliation efforts were made by this Court. Smt. Narinder Kaur also made allegations against her husband that he had remarried with one Pushpinder Kaur and so much so Pushpinder Kaur has given birth to two children out of this wedlock. This fact was categorically denied by the husband. It was reiterated by the wife that she was ready and willing to go to the house of the respondent and respondent was also agreeable to rehabilitate the appellant, in these circumstances, I gave a suggestion to the husband to go to the house of the appellant on 27.8.2000 along with two respectable persons of his village and bring the appellant to her matrimonial home. The respondent-husband did go to the house of the appellant but she did not accompany the respondent and she reiterated the same allegations that the respondent had remarried with a lady by the name of Pushpinder Kaur and so much so she has given birth to two children from the loin of the husband. This stand was again disputed by the husband. In this manner, the reconciliation efforts could not succeed. 11. The learned trial Court allowed the petition of the husband for the reasons given in paras 18 to 27 of the judgment and it will be proper on my part if these paras are reproduced in this judgment as under :- "18. Now the next question with regard to the animus deserendi is also to be proved by the petitioner in order to prove that the respondent has deserted the petitioner without any reasonable cause and excuse, "Desertion" has been admirably summarized in paragraphs No. 453 and 454 of Halsburys Laws of England, 3rd Edition, Vol. 12 which reads as Under :- "In the essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that orders (the others ?), consent, and without reasonable cause. It is a total repudiation of the obligation of marriage. 12 which reads as Under :- "In the essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that orders (the others ?), consent, and without reasonable cause. It is a total repudiation of the obligation of marriage. In view of the large variety of circumstances and of modes of life involved, the court has discouraged attempts at declining desertion, there being no general principle to all cases." 19. The Honble Supreme Court of India, further observed in many cases that "desertion" means the intentional permanent forsaking and abandonment of one spouse by the other without that others consent, and without reasonable cause. It was a total repudiation of the obligation of marriage. In case a spouse abandoned the other spouse in a state of temporary passion, like anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. Desertion implies the factum of separation and animus deserendi i.e. the intention to bring cohabitation permanently to an end. In the absence of animus deserendi a desertion could not be taken as proved. A similar view has also been taken by Honble Punjab and Haryana High Court in case Labh Kaur v. Narain Singh, AIR 1978 Pb. & Har. 317. 20. In the instant case, this court is convinced that the petitioner has been successful in proving the animus deserendi on the part of the respondent. The marriage between the parties took place in the year 1989. The respondent admittedly is the owner of five acres of land. The petitioner will not like to be disinherited from this right which has accrued to him by way of his being the (sic) instead of making efforts to come and live with the petitioner filed various civil and criminal cases against the petitioner which also shows that the respondent neither intended to live in the company of the petitioner and nor broken all the matrimonial ties with the petitioner fore- ever. Ex.R-2, reveals that petitioner filed an application under Section 9 of the Hindu Marriage Act, on 12.12.1996, which was dismissed in default on 8.12.1998. The dismissal of the application also through (throw ?) light on the conduct of the respondent that she did not want to live in the company of the petitioner. Ex.R-2, reveals that petitioner filed an application under Section 9 of the Hindu Marriage Act, on 12.12.1996, which was dismissed in default on 8.12.1998. The dismissal of the application also through (throw ?) light on the conduct of the respondent that she did not want to live in the company of the petitioner. Ex.P3 is an application for enforcement of the order of maintenance against the respondent which was filed in the Court of Judicial Magistrate, Kurukshetra. Ex.P4 reveals that the respondent lodged an FIR No. 273 dated 9.12.1996 under Sections 406, 494, 498-A IPC, against the petitioner, his father, his mother, his sister and his brother. It further reveals that the respondent recovered the articles of dowry given to the petitioner at the time of marriage. It is a matter of common experience that the parties proceed to take such drastic steps for recovering the articles of dowry through the police only when the matrimonial ties break between them for ever and no other alternative remain in site (right ?) except to recover the articles of dowry by lodging the case against husband. 23. It has also been admitted that besides lodging the FIR, she also filed a complaint under Section 491 IPC, against the petitioner and one Pushpinder Kaur. The respondent also filed a suit for the permanent injunction against the petitioner in the Court at Kurukshetra, restraining him not to arrange the marriage for the second time. 24. Not only this, the respondent has raised false allegations against the petitioner for demand of dowry, cruelty and for arranging the second marriage. It has been specifically pleaded in the reply by the respondent that the petitioner and his parents were demanding dowry and money from the respondent. They have been raising the demand of scooter also. Admittedly, according to the respondent she was turned out of the house on 12.9.1995, and alleged maltreatment was also made for the reason that the respondent did not meet the demand of the petitioner but all these pleas has been belied by the respondent when she appeared in the witness box, as (RW1) and admitted that prior to 12.9.1995, the petitioner never demanded any dowry. From this admission, it is apparent that the petitioner did not make any demand so long as she remained in his house, therefore, the plea raised by the respondent that any dowry was demanded falls to the ground. Similarly the ground of maltreatment which traces back to the demand of dowry also has no leg to stand. It will also not be out of place to mention here, that the respondent did not state a word in her statement that she ever beaten, maltreated, insulted or humiliated. The other false allegation that the petitioner had married second time is also false and baseless. The respondent did not take such a plea in her reply to the petition. In any way, she has not led any cogent evidence on her record to prove the marriage of petitioner with Pushpinder Kaur. No witness, in whose presence the petitioner re-married to Pushpinder Kaur, has been examined. Much less any invitation card, the photograph of the marriage, the priest who got conduct the ceremonies of marriage, has been examined. Thus, the plea raised by the respondent that the petitioner had married second time depicts the clear intention of the respondent that has broken the matrimonial ties with the petitioner for ever. The respondent had earlier moved an application. Under Section 9 of the Hindu Marriage Act. It has not been denied by the respondent that she moved such application in the Court at Kurukshetra. The copy of the application Ex.P2, reveals that the respondent remained unsuccessful in obtaining the decree for restitution of conjugal right from the court of Sh. R.P. Bhasin, District Judge, Kurukshetra. The reading of the copy of the petition Ex.P2, reveals, it was dismissed on 18.12.1998, in default. It has not been explained as to why the respondent got it dismissed in default. The fact that the application/petition for restitution of conjugal rights filed by respondent was got dismissed in default leads this Court to draw adverse inference against the petitioner that she did not want to resume the company of the petitioner, therefore, she did not choose to get the decree for the same dismissed in default. 25. The next ground of attack made by the respondent is that since she could not conceive, the petitioner did not want her to live in his company. 25. The next ground of attack made by the respondent is that since she could not conceive, the petitioner did not want her to live in his company. With all due reverence to the plea raised by the respondent, I must do serve (Observe ?) regretfully that she was failed to prove any of the pleas raised by her and rather these pleas expose the intention of the respondent not to live in the company of petitioner. Respondent Narinder Kaur while appearing as RW1 has not uttered a word about the fact that she was not rehabilitated by the petitioner for the reason that she could not conceive. Thus in the absence of any evidence to prove this act of cruelty on the part of the petitioner, it will be taken as an act of cruelty towards the petitioner by the respondent. The above referred facts also impel this Court to conclude that the respondent has failed to explain the reasons for her separate living and the respondent had withdrawn from the company of the petitioner without any reasonable cause and excuse. 26. There is sufficient evidence on the record to prove that the marriage between the parties took place on 9.4.1989. The respondent was having property in her name. She is living with her sister and brother-in-law. The petitioner has also led evidence that brother-in-law of the respondent sold a portion of abadi standing in the name of the respondent and he is cultivating the land owned by the respondent. It is also in evidence that the respondent left the house of the petitioner in the year 1991. The petitioner has led sufficient evidence on the record to prove that he took panchayat and made efforts to rehabilitate her but the respondent did not agree. The brother-in- law of the respondent while appearing as RW2 has stated that he took the Panchayat between 1995 to 1996, but no witness, who had accompanied the respondents brother-in-law in the Panchayat, has been examined. No date or the month of convening of the panchayat has been given by him in his statement. On the other hand, the respondent while appearing in the witness box, as RW1 has not stated if any efforts for her rehabilitation with the petitioner has made by her brother-in-law. No date or the month of convening of the panchayat has been given by him in his statement. On the other hand, the respondent while appearing in the witness box, as RW1 has not stated if any efforts for her rehabilitation with the petitioner has made by her brother-in-law. All this goes to show that the brother-in-law of the respondent in the backbone of the dispute and he does not want that the respondent should live in the company of the petitioner. He knew fully well that if she resumed the company of the petitioner then he will have to part with five acres of land owned by the respondent which he is otherwise having in his possession. The evidence also shows that the respondent made efforts, not to resume the matrimonial ties, but to get divorce be mutual consent. The circumstance that she made baseless and false allegations against the petitioner to the effect that he had remarried with Pushpinder Kaur and that she got all articles of dowry recovered from the house of the petitioner through the police are indicative of the fact that the marriage between the parties has broken down irretrievably and irreparably an that no useful purpose would be served by declining the petition as there are no chance that the marriage ties between the parties will ever revive. It has also been laid down in case Amarendranath Sanyal v. Krishana Sanyal, 1993 (Suppl) Civil Court Cases 109 (Calcuttta), that there (Where ?) the wife makes false allegation regarding the character of the husband that should be taken into consideration. Such unfounded and baseless allegation constitute mental cruelty of the gravest character to warrant a divorce. 27. In view of the discussion made above, I hereby return a finding of fact that the respondent has deserted the petitioner without any reasonable cause and excuse for more than two years preceding the presentation of the petition and decide issue No. 1, in favour of the petitioner." 12. The solitary argument which was raised by the learned counsel for the appellant before this Court was that since respondent Varjinder Singh has remarried with a girl by the name of Pushpinder Kaur, therefore, there was sufficient cause on the part of the appellant not to live in the house of the respondent. The solitary argument which was raised by the learned counsel for the appellant before this Court was that since respondent Varjinder Singh has remarried with a girl by the name of Pushpinder Kaur, therefore, there was sufficient cause on the part of the appellant not to live in the house of the respondent. In support of his argument the learned counsel for the appellant submitted that the appellant has already filed a complaint under Section 494 IPC against the respondent and that complaint is still pending. He submitted that the appellant had filed proceedings under Section 9 of the Act. She also filed a complaint under Sections 498-A and 406 IPC besides proceedings under Section 125 Criminal Procedure Code This conduct on the part of the appellant indicates that the respondent during the subsistence of the first marriage has remarried with Pushpinder Kaur, a lady of Karnal, who has given birth to two children from the loins of the respondent and in this view of the matter the appellant had deserted the respondent with a sufficient cause. The appellant was willing to rehabilitate herself but the respondent did not want the appellant to live with him as he had already remarried. The argument of the learned counsel for the appellant has been scrutinised by me in depth but it remains in the air. 13. Let us see what was the case which was pleaded by the respondent-husband. According to the respondent the marriage between the parties took place on 9.4.1989 and the appellant-wife lived with him till December 1991. Thereafter he had been taking panchayats to the house of the appellant for her rehabilitation, but to no effect. Rather, at one point of time Jaswant Singh, Jija of the appellant, categorically stated that the appellant was not interested to live in the house of the respondent. In this case the impression which I have gathered after perusing the evidence is that the lady Narinder Kaur appellant is under the influence of her Jija namely Jaswant Singh, who wants to inherit the property of his father-in-law. Narinder Kaur appellant has one more sister, who is married with Jaswant Singh. The appellant has no brother. It has been admitted by Narinder Kaur that her marriage was performed by her brother-in-law Jaswant Singh because her parents had died. Narinder Kaur appellant has one more sister, who is married with Jaswant Singh. The appellant has no brother. It has been admitted by Narinder Kaur that her marriage was performed by her brother-in-law Jaswant Singh because her parents had died. According to Narinder Kaur appellant, she lived in the house of her husband upto 12.9.1995 when she was turned out from the house. The cause for alleged turning out was that the petitioner had been making demand of dowry and he had been pressing her for the transfer of land in his name. Is it true is the point to be seen. As I have already stated above the marriage between the parties took place in the year 1989. In her cross-examination Narinder Kaur appellant admitted as follows :- "It is correct that before 12.9.95 the petitioner never demanded any dowry." In such a situation it is not believable that the husband would ask his wife for the transfer of property or he would ask for the dowry. Further, it has been admitted by Narinder Kaur that her Jija Jaswant Singh is a Ghar Jawai and he had inherited 4/5 acres of land from her father. The appellant and her sister Surinder Kaur had inherited the property equally. In these circumstances, the anxiety of Jaswant Singh is that appellant Narinder Kaur should not go to the house of her in-laws and he may be able to take care of the entire property of his father-in-law. 14. The second excuse made by the appellant is that respondent Varjinder Singh has remarried with a woman by the name of Pushpinder Kaur and, therefore, she is not going to her matrimonial house. Firstly, there is no proof of the marriage of Pushpinder Kaur. Secondly, this defence taken up by the appellant will not defeat the decree validly obtained by the respondent from the trial Court. According to the appellant, the alleged marriage took place on 22.11.1996. As per the case of the husband the appellant left his company in December, 1991. The present petition was filed on 28.11.1996. If it is established on the record that the appellant had withdrawn from the society of the respondent-husband in the month of December, 1991 without any justification, then the respondent is entitled to the decree of divorce. As per the case of the husband the appellant left his company in December, 1991. The present petition was filed on 28.11.1996. If it is established on the record that the appellant had withdrawn from the society of the respondent-husband in the month of December, 1991 without any justification, then the respondent is entitled to the decree of divorce. It has come in the statement of Varjinder Singh that the appellant had left his house in the month of December, 1991. He went to her village and requested her to accompany him, but she refused to reside with him. He along with Gurmit Singh, Santa Singh, Labh Singh and Gurdial Singh approached the appellant and requested her to live in her matrimonial home but she refused to accompany him. It has further been stated by Varjinder Singh that Jaswant Singh is Ghar Jawai and he has also sold some part of the land of Narinder Kaur appellant. A categorical suggestion was also put to this witness with regard to Pushpinder Kaur daughter of Pritam Singh and the answer of the witness was that he did not know Pusphinder Kaur. He denied the suggestion that he had remarried with Pushpinder Kaur. It has also come in his evidence that after 1991 the appellant did not come to his house and she had left the house without any cause. The statement of Varjinder Singh has been supported by Gurmit Singh PW2. From these two statements I am of the considered opinion that respondent Varjinder Singh has been able to prove the factum of desertion. Desertion has not been defined in the Hindu Marriage Act, but in order to constitute the element of desertion, the factum of desertion and intention to abandon the relation for all times to come is the necessary ingredient. As per PW2 Gurmit Singh, the real dispute was that after check up of the lady it was found that she was not in a position to conceive child and, therefore, she decided that she would not live in the house of the respondent because she had property in village Thaska Ali. If she lives in the company of the husband then he will become the owner of the property and it will not go to her generation. 15. If she lives in the company of the husband then he will become the owner of the property and it will not go to her generation. 15. I have already stated above that after going through the evidence the impression which I have formulated is that the lady is not inclined to join the company of her husband perhaps at the behest of Jaswant Singh, who is Ghar Jawai. He wants that the entire estate of his father-in-law should be managed and looked after by him and he should reap all the crops. The wife appears under the influence of Jaswant Singh, who is the bone of contention in this case. The statement of PW1 Varjinder Singh and PW2 Gurmit Singh have been corroborated by Hari Singh PW3, who is the father of Varjinder Singh respondent. There is no satisfactory evidence led by the wife that she ever expressed her intention or desire to live in the company of the respondent- husband. Though she stated that after 12.9.1995 her relatives and her brother-in-law went to village Pawala in the shape of a panchayat but she does not know the month and date of their visit. It appears that no serious effort was made by the appellant for her rehabilitation. Rather, it was the husband who took serious steps for the rehabilitation of the appellant, but she was not inclined to live in the house of the respondent for the reasons which are obvious in this case. 16. In these circumstances, I do not find any illegality in the findings recorded by the learned trial Court on issue No. 1 and the same are hereby affirmed. Resultantly, there is no merit in this appeal, which is hereby dismissed with no order as to costs. Appeal dismissed.