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2000 DIGILAW 711 (PNJ)

Ashok Kumar Goyal v. Anita Goyal

2000-07-12

R.L.ANAND

body2000
Judgment R.L.Anand, J. 1. Shri Ashok Kumar Goyal, has filed the present F.A.O. No. 8M of 1996 against Smt. Anita Goyal and it has been directed against the judgment dated 7.12.1995, passed by the Court of Additional District Judge, Chandigarh. Who, dismissed the petition Under Section 13 of the Hindu Marriage Act of the appellant. 2. It may be mentioned that at one point of time the Honble Division Bench of this Court consisting of Honble Mr. Justice A.S. Nehra and Honble Mr. Justice (Dr.) Sarojnei Saksena dismissed the appeal in limine on 17.1.1996. The appellant approached the Honble Supreme Court vide its order dated 30.9.1996 disturbed the order of the Honble Division Bench by holding that it was not a case for dismissing the appeal at the stage of admission in limine and the matter was remitted to the High Court with a request to dispose of the first appeal in accordance with law. As a result of this direction by the Honble Supreme Court, the appeal was admitted by the Honble Division Bench consisting of Honble Mr. Justice N.C. Jain and Honble Mr. Justice Iqbal Singh vide order dated 13.12.1996. 3. It will also be useful for me to make a mention that the matter went to Lok Adalat and on 6.5.1999 the President and the Member of the Lok Adalat made the following observations:- "With the help of the learned counsel for both the parties, we strived for effecting a compromise between the parties but we have been unsuccessful. The matter shall, therefore, go back to the High Court for its decision on merits" 4. Before the start of the argument, I have inquired from the appellant and his lawyer as to whether he is interested to rehabilitate the respondent, who was also present in the Court but the appellant was reluctant to rehabilitate the respondent. 5. Some synopsis can be described in the following manner. The marriage between the parties was solemnized on 22.1.1983 and at that time both the parties were employed. No issue has been born out of this wedlock. On 13.11.1983, the younger brother of the appellant was married with the younger sister of the respondent and they had been living happily. 5. Some synopsis can be described in the following manner. The marriage between the parties was solemnized on 22.1.1983 and at that time both the parties were employed. No issue has been born out of this wedlock. On 13.11.1983, the younger brother of the appellant was married with the younger sister of the respondent and they had been living happily. The appellant Shri Ashok Kumar Goyal, alleges that respondent had deserted him with the intention to break down the matrimonial relations for all times to come and both the parties are living separately at Chandigarh since 9.3.1988. The appellant has also alleged that respondent has treated him with cruelty. The main petition was filed in the trial Court on 20.11.1992. 6. Let us see what was pleaded by the petitioner in his main petition. 7. According to the appellant-petitioner, after the marriage, the parties to the petition, had been meeting with each other at Sangrur where the parents of the petitioner were residing, at week ends. The petitioner used to go to Sangrur from Partap Pura, District Jalandhar and respondent used to go there from Chandigarh. It is alleged by the appellant that in April, 1983, the respondent told him that the bus in which she was travelling from Chandigarh to Ambala had met with an accident and that she had sustained some injuries, as a result of which, she had constant pain in her genitals and was unable to have sex with him and she told that she is under the treatment of homeopathic doctor at Ambala. There was no apparent injury upon the respondent. Petitioner wanted to get the respondent examined from a lady doctors but respondent refused to go. It is also the case of the petitioner that for 8-9 months, the respondent never permitted the petitioner to share the bed, as a result of which, he suspected foul play. The petitioner wanted to live with the respondent and he got himself transferred in August, 1983 from Partappura to United Commercial Bank, Sector, 17, Chandigarh and the parties started residing together in Sector-15, Chandigarh with Shri Bharat Bhushan who is the unmanned brother of the petitioner. One other unmarried brother of the petitioner was also residing in that house. The petitioner wanted to live with the respondent and he got himself transferred in August, 1983 from Partappura to United Commercial Bank, Sector, 17, Chandigarh and the parties started residing together in Sector-15, Chandigarh with Shri Bharat Bhushan who is the unmanned brother of the petitioner. One other unmarried brother of the petitioner was also residing in that house. Even after the parties to the petition, started residing at Chandigarh, the respondent did not got herself examined from any Gynaecologist and stated that she was always under a treatment of Homoeopathic Doctor at Ambala but never disclosed the name of the doctor, to the petitioner. The appellant has further alleged that with the passage of time he realised that respondent was averse to have sex with him. Bharat Bhushan, the brother of the petitioner, was then married on 12.11.1983 and the other brother of the petitioner, Shri Anil Goyal, was married on 13.11.1983 to the younger sister of the respondent and in this manner, the accommodation in Sector-15 became short and insufficient. Resultantly, the parties shifted to a big -house in Sector-35, Chandigarh. In January, 1984, Bharat Bhushan, who was the elder brother of the petitioner shifted to Delhi where he got a job. The younger brother of the petitioner also started residing separately in May, 1984 as a result of which the petitioner took a smaller accommodation in Sector-22, Chandigarh. In the month of June, 1984, when the petitioner returned home from his office, he found that respondent was smoking a cigarette. He was shocked and enquired from her. The respondent told him that smoking helped her in controlling her heavy menstrual discharge from which she had been suffering much before her marriage. She also disclosed that she used to smoke even prior to the marriage. The petitioner is a non-smoker and a teetotoller. He consulted the doctor about the alleged execuse of the respondent. The doctor told him that smoking does not help in controlling the menstrual discharge and that respondent was only trying to cover up her habit of smoking. The petitioner told the respondent to accompany to the doctor but she refused. Thereafter, the respondent started smoking even in the presence of the petitioner. After a lapse of 1/2 months respondent started complaining to the petitioner that she was receiving anonymous calls in her office and the caller was threatening her with life. The petitioner told the respondent to accompany to the doctor but she refused. Thereafter, the respondent started smoking even in the presence of the petitioner. After a lapse of 1/2 months respondent started complaining to the petitioner that she was receiving anonymous calls in her office and the caller was threatening her with life. She started accusing the petitioner-appellant that caller was threatening her at his instance. The appellant assured her that he was not doing any such act and asker her to report the matter to the police and to the telephone authorities but the respondent did not do so. 8. On one day in March, 1985, the respondent went straight from her residence to the residence of younger brother of the petitioner and complained that petitioner had some persons to kill her and the killer had told her that petitioner has made a contract of Rs. 5,000/- with him out of which the Rs. 3,000/- stood already paid to him. When the respondent was confronted she could not give any details as to how the killer met her. 9. On 15.4.1985, there was a quarrel between them over a letter which the respondent complained to have received, containing threats, andshe alleged that it was written by the petitioner. The petitioner asked the respondent to show the letter. The respondent torn that letter into pieces and threw it into the basket. The petitioner was fed up and he called his family members from Sangrur and the family members of the respondent from Ambala each other after parting the company. 10. On 16.4.1985, the petitioner started living in Sector-15 in a rented accommodation and thereafter he got himself transferred to Jaipur. On 3.1.1987, the sister and brother-in-law of the respondent came from Ajmer for reconciliation and they assured the petitioner that the respondent had stopped smoking and her gynaecological problem had been solved. It was told to the petitioner that there was some mental problem with the respondent and it has been completely cured. The reconciliation, however, could not succeed. In the month of May, 1987, the petitioner came to Sangrur and became ill. He told his parents about the visit of the sister and brother-in-law of the respondent at Jaipur. In the month of July, 1987, the parents of the petitioner suggested reconciliation. The reconciliation, however, could not succeed. In the month of May, 1987, the petitioner came to Sangrur and became ill. He told his parents about the visit of the sister and brother-in-law of the respondent at Jaipur. In the month of July, 1987, the parents of the petitioner suggested reconciliation. The respondent assured the petitioner that she would not smoke and would not level any false allegations against him. 11. On 2.11.1987, the petitioner got himself transferred to UCO Bank, Sector-22, Chandigarh and he purchased certain costly articles like Colour T.V. VCP etc. and he also gave Rs. 5,000/- to the respondent for the purchase of Scooter. Thereafter, the parties lived together happily for about 13 days. Again on 15.11.1987, the petitioner noticed cigarette butts in a glass tumbler and on being confronted, the respondent could not deny having smoked. In the month of January, 1988, the respondent went to Sangrur and quarrelled with the parents of the petitioner and made an accusation that petitioner was a Munglik and this fact has been concealed from her. On 7.3.1988, the respondent left the matrimonial home by handing over the costly articles i.e. T.V. VCP, Two-inone, Tape recorder cum-Transistor, Scooter and LPG Cylionder with burner to one Nikka. The petitioner then called the brother and brother-in-law of the respondent from Ambala and they suggested that the parties should live separately." Finally, the petitioner had to leave the house on 9.3.1988 under compelling circumstances because respondent refused to live with him. The valuable gold articles and valuable clothes remained with the respondent. Since 9.3.1988, the parties started living separately. It was also the case of the petitioner that the respondent told him that she does not want to keep any sort of relations with him and he should consider the marriage having been totally broken. 12. Further, the case set up by the petitioner is that he has learnt that respondent and one more lady by the name of Shashi Kapoor are having lesbian relations for the sake of physical pleasure and Shashi Kapoor had abandoned her husband and children two in number, at the instance of the respondent. Thus, the appellant sought the divorce on the ground of desertion and cruelty. 13. The petition was contested. Respondent denied all the allegations. She admitted all the three married brothers of the petitioner started residing in Sector-35, Chandigarh alongwith mother-in-law and sister-in-law. Thus, the appellant sought the divorce on the ground of desertion and cruelty. 13. The petition was contested. Respondent denied all the allegations. She admitted all the three married brothers of the petitioner started residing in Sector-35, Chandigarh alongwith mother-in-law and sister-in-law. She never suspected the petitioner for sending threatening calls or chasing her. During the year 1985, Sulakshna alies Mattu, was a student in Kurukshetra University and the respondent was her guardian in the record of the institution and that Mrs. Ramesh Goyal, mother of Sulakshna was employed in the State Bank of Patiala at Chandigarh, and she stayed in the accommodation of the respondent in Sector-22 and Sector 15 when the petitioner was posted at Jaipur. Respondent never deserted the petitioner. In fact it is the petitioner who has deserted the respondent and had treated her with cruelty. She went to Jaipur on 1/2.1.1987, to meet the petitioner but he did not allow her to stay with him. As a result of that, she had to leave for Ajmer where her sister and brother-in-law were residing and it was thereafter that her sister and brother-in-law had gone to Jaipur to request the petitioner to rehabilitate the respondent but the petitioner refused. Respondent admitted that there was reconciliation between the parties in July, 1987. The petitioner came to Chandigarh and touched her feet by laying down flat on the floor and promised to behave properly in future. Respondent denied the allegations that she was smoking. She never removed the articles. She lodged reports with the police complaining that petitioner had beaten her. Thus, while denying the material averments of the petitioner, respondent prayed for the dismissal of the petition. A rejoinder was filed in the trial Court, in which the petitioner denied the allegations of the respondent. 14. On the above pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the respondent has treated the petitioner with cruelty, as alleged?OPP 2. Whether the respondent has deserted the petitioner continuously for a period of more than two years preceding the presentation of the present petition?OPP 3. Relief. 15. In support of its case the petitioner-appellant appeared in the witness box as PW1. He did not examine any other witness in support of his case. 16. Whether the respondent has deserted the petitioner continuously for a period of more than two years preceding the presentation of the present petition?OPP 3. Relief. 15. In support of its case the petitioner-appellant appeared in the witness box as PW1. He did not examine any other witness in support of his case. 16. On the contrary, the respondent examined her brother Bharat Bhushan as RW1, Smt. Krishna mother Smt. Shashi Kapoor, as RW-2, Shashi as RW-3 and the respondent herself appeared in the witness box as RW-4. 17. After hearing the learned counsel for the parties, the learned matrimonial Court, decided both the issues against the appellant-petitioner and in favour of the respondent and resultantly, the petition was dismissed. 18. Findings of the matrimonial Court are contained in paras No. 9 to 17 of the judgment dated 7.12.1995. 19. I have heard Shri Amarjit Markan, Advocate, appearing on behalf of the appellant and Shri A.S. Sukhija, Advocate, appearing on behalf of the respondent and with their assistance, have gone through the record of the case. 20. Before me the only ground of desertion has been pressed into service. 21. In order to constitute desertion, the appellant has to show not only the factum of desertion but also that respondent has abandoned the relationship for all times to come. In other words, animus deserendi. The case of the petitioner is that earlier to 9.3.1988, there were strained relations between the parties because respondent refused to share the bed with the petitioner and the respondent was in the habit of smoking. So much so she started lesbian relations with one woman by the name of Shashi Kapoor. The petitionerappellant had been requesting the respondent to live in the matrimonial home. The respondent is a lady of suspect character. She had been scolding him from time to time on different pretexts and she left the house of the petitioner on 9.3.1988 without any reasonable and sufficient cause. Whether these allegations are true, is a point to be seen. If the appellant is responsible for the alleged desertion and if he has turned out the respondent from the matrimonial home, he cannot take the advantage of his own wrong. 22. Let us first examine the allegations of smoking and lesbian relations. Whether these allegations are true, is a point to be seen. If the appellant is responsible for the alleged desertion and if he has turned out the respondent from the matrimonial home, he cannot take the advantage of his own wrong. 22. Let us first examine the allegations of smoking and lesbian relations. It is the admitted case of the parties that one younger brother of the petitioner-appellant is married with the younger sister of the respondent. It is also the common case of the parties that in-laws of both the parties are alive. In such a condition it is to be seen "what was the natural and normal conduct of the petitioner". If he was genuinely interested in the rehabilitation of the respondent, he would be the first person to make a complaint to his own parents and brothers if the respondent had left the company of the petitioner on 9.3.1988 with the intention to severe the relations for all times to come. The petitioner, who, is an employee of the Bank and educated person, would have taken the Panchayat in the shape of his relatives to the house of the parents of the respondent complaining that respondent had withdrawn her society from the petitioner without any sufficient cause. Not only this, the petitioner would have served a legal notice upon the respondent. He could even make an effort for the rehabilitation of the respondent through superior officers of the respondent but the fact is that the appellant-petitioner was not interested to rehabilitate the respondent and he started make accusations, which are totally irresponsible and without any basis. To call a Hindu lady that she was indulging in lesbian is nothing but a vulgar abuse. If a husband creates such circumstances and makes accusations without any basis what is the course left to such a lady. There is no indication on the record that the petitioner ever served a notice upon the respondent that she had withdrawn the society without any reasonable cause. There is no evidence that petitioner ever took a panchayat for the rehabilitation of the respondent. 23. From the evidence, which I will discuss later, I have got an impression that the petitioner just wanted to give a bad name to the respondent and kill her as they say "give a bad name and kill the dog". It is not permitted under the law. 23. From the evidence, which I will discuss later, I have got an impression that the petitioner just wanted to give a bad name to the respondent and kill her as they say "give a bad name and kill the dog". It is not permitted under the law. It is not believable that respondent would say to the petitioner that she had served her relations for all times to come. 24. The present petition was filed on 20.11.1992 after a lapse of more than four years. There is no evidence at all to show that there was any alleged desertion on the part of the respondent on 9.3.1988. Rather, it is the case of the petitioner that he himself got his transfer. It was never with the approval of the respondent. In such a situation, reasonable inference, which can be drawn, is that the petitioner wanted to avoid the company of the respondent. There is not an iota of oral evidence which may support the case of the petitioner. Her solitary statement may not be enough in the given circumstances. 25. Reverting to the evidence which has come on record, it has been admitted by the petitioner in his cross-examination that he is not in possession of any writing or documentary proof to show that respondent had ever told him about her uterus injury which she is said to have sustained in any accident. He also admitted that he never complained to the parents of the respondent that respondent was in the habit of smoking. He does not know if his niece Sulakshna had ever remained with the respondent or that respondent was her guardian while she was studying in Kurukshetra University. The petitioner had to admit as follows:- "I had got myself posted to Jaipur of my own because I was fed up with our domestic circumstances" 26. He also admitted that he never complained to anybody about the homo-sexual relations of the respondent with Mrs. Kapoor. This allegaton of the petitioner-appellant regarding alleged homo-sexual relations of the respondent with Mrs. Shahshi Kapoor is based on guess work because the petitioner admitted in the cross-examination, "because the respondent has been living with Mrs. Kapoor for the last so many years, I have presumed that they are having lesbian relations between themselves but I have not been told about this by anybody". 27. Shahshi Kapoor is based on guess work because the petitioner admitted in the cross-examination, "because the respondent has been living with Mrs. Kapoor for the last so many years, I have presumed that they are having lesbian relations between themselves but I have not been told about this by anybody". 27. As against the statement of the petitioner-appellant, Shri Bharat Bhushan, brother of the respondent deposed that his sister is a lady of good temperament and she is adjustable. Since the petitioner started living separately, the respondent was left with no other choice but to stay with her friend Mrs. Shashi whom she knew right from Ambala and the family of the respondent had no objection of staying the respondent with Mrs. Shashi. Smt. Krishna is the mother of Shashi who also stated that she had no objection if her daughter resides with the respondent. Shashi herself appeared in the witness box. In fact, Shashi and the respondent belong to Ambala Cantt. She is a divorcee and thereafter, she started her livelihood by doing stitching work. She has categorically stated that she had no homo-sexual relations with the respondent. It has come in the statement of respondent Anita Goyal that her husband was a man of suspicious nature right from the start and he used to level allegations upon her of smoking, drinking and gambling. 28. It has also been stated by the respondent that the petitioner got himself posted at Jaipur without telling her and she wrote many letters to the petitioner requesting him to get his posting at Chandigarh or allow her to get her transfer to Jaipur but no response was given to the respondent. She even went to Jaipur on 2.1.1987 but the petitioner left his office on coming to know about her arrival. She then requested Mr. Gujrati, a close friend of the petitioner, to arrange a meeting. Mr. Gujrati took her to the house of the petitioner-appellant and went inside while she stood at some distance in the street. Shri Gujrati then told her that her husband was not ready to meet her. As a result of that, she had to go to Ajmer where her sister was residing. Consequently, her sister and her husband came to Jaipur and requested the petitioner for rehabilitation. So much so in July, 1987, the petitioner came to Chandigarh. Shri Gujrati then told her that her husband was not ready to meet her. As a result of that, she had to go to Ajmer where her sister was residing. Consequently, her sister and her husband came to Jaipur and requested the petitioner for rehabilitation. So much so in July, 1987, the petitioner came to Chandigarh. The respondent requested him to get his transfer to Chandigarh but the petitioner became angry. After 3-4 days, he again returned. The parties started residing together as husband and wife. They lived up to October, 1987 but later on the petitioner withdrew himself from her company. 29. In this view of the matter, the only conclusion, which I have been able to draw from the evidence, is that all the problems have been created by the petitioner himself for the disadvantage of the respondent and he cannot be permitted to take the benefit of his own wrongs. The respondent has not deserted the petitioner-appellant. Rather, it is the petitioner who was not interested in the rehabilitation of the respondent. 30. Faced with this difficulty, the counsel for the petitioner submitted that it is the common case of the parties that they are residing separately since 1988. There are no chance of compromise. The marriage of the parties has broken. So much so irretrievable efforts have failed not only in this Court but also in the Lok Adalat and that in this view of the matter, a decree for divorce should be passed in favour of the appellant. 31. The submission of the learned counsel for the petitioner cannot be accepted. Todays situation is the direct result of the conduct of the petitioner-appellant. He made accusations which were totally unfounded and without any basis. He went to the extent, without any foundation, by alleging that respondent is having lesbian relations with one Smt. Shashi. There is no cogent evidence at all to suggest that petitioner ever made earnest efforts for the rehabilitation of the respondent. 32. On the contrary, the respondent made some efforts through her relatives and friends and even through his friends of the petitioner for her rehabilitation. Not a single relation of the petitioner has come in the witness box who may corroborate the allegations of the appellant-husband that respondent-wife had deserted him. 33. 32. On the contrary, the respondent made some efforts through her relatives and friends and even through his friends of the petitioner for her rehabilitation. Not a single relation of the petitioner has come in the witness box who may corroborate the allegations of the appellant-husband that respondent-wife had deserted him. 33. In this view of the matter, I do not see any illegality in the finding of the learned matrimonial Court on issue No. 2 and affirm the finding of the learned trial Court on this issue regarding desertion. The appeal is hereby dismissed with costs which are assessed at Rs. 500/-.