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2000 DIGILAW 950 (PNJ)

Satnam Singh v. Harjinder Kaur

2000-08-18

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - Satnam Singh son of Karam Singh, husband-appellant has filed the present appeal and it has been directed against the judgment and decree dated 15.9.1998 passed by the Court of Additional District Judge, Nawanshahr, who dismissed the petition under Section 13 of the Hindu Marriage Act of the husband, leaving the parties to bear their own costs. 2. The brief facts of the case are that the appellant filed a petition under Section 13 of the Act against his wife Harjinder Kaur, seeking dissolution of the marriage on the ground of desertion and the case set up by the appellant before the trial Court was that the marriage of the parties took place on 20.10.1985 at Village Khushalpur. Thereafter, the parties lived together as husband and wife at Banga. The marriage was consummated. The parties co- habited with each other as husband and wife and Harjinder Kaur, respondent, gave birth to a female child on 25.8.1986 in her parental home at Hoshiarpur. On return to the matrimonial home, the appellant noticed a change in the attitude of the respondent as she started pressing upon him to have a separate residence from his mother to which he did not agree. Respondent treated the appellant with cruelty and refused to cook meals and perform other house-hold and marital obligations and even refused to render conjugal company. Apart from this, the respondent was in the habit of insulting and abusing the appellant and his mother in the presence of others on lame excuse and without any provocation from the side of the appellant. The matter was brought to the notice of the parents of the respondent who sided with the respondent. Thereafter, the respondent started giving threats to the appellant that she would commit suicide in order to send the appellant to jail. Respondent has taken all her dowry articles to the house of her parents. When the respondent was living in the company of the appellant, the respondent used to pick up quarrel with the appellant and his mother without any rhyme and reason. Finally, in the month of December, 1989, the parents and brother of the respondent came to the house of the appellant and gave merciless beatings to the appellant. When the respondent was living in the company of the appellant, the respondent used to pick up quarrel with the appellant and his mother without any rhyme and reason. Finally, in the month of December, 1989, the parents and brother of the respondent came to the house of the appellant and gave merciless beatings to the appellant. On the next day, in the absence of the appellant, the respondent left the matrimonial house by leaving behind the daughter in the house of the appellant. Since December, 1989, the respondent has left the society of the appellant without any reasonable cause. Now, the relations between the parties have deteriorated to such an extent that it is difficult for them to live together. Thus, the main allegation of the appellant is that the respondent has withdrawn from the society of the appellant without any sufficient cause for a continuous period of two years immediately preceding to the filing of the petition. 3. Notice of the petition was given to the respondent who took an objection that there is unnecessary and improper delay in filing the petition. The petition has been filed as a counter-blast to the petition under Section 13 of the Act, which was filed by the respondent at Hoshiarpur. Thus, the present petition is barred under Section 10 of the C.P.C. 4. According to the respondent, earlier the behaviour of the appellant was good, but later on he started maltreating her on the ground that she had brought less dowry and the marriage was not performed according to the standard of the appellant. The appellant is addicted to liquor. Just after 15 days of the marriage, he started giving abuses in the name of her mother and sister. In April, 1996, the appellant made a demand of Rs. 10,000/- from the respondent and he was made to understand that this demand cannot be fulfilled. Thereupon, the respondent was beaten up and was thrown out of the house when she was on the family way. She came to the house of her parents. On 28.8.1986, the respondent gave birth to a female child; namely; Manjo. Nobody came from the side of the appellant to see her with customary gifts and clothes. Thereupon, the respondent was beaten up and was thrown out of the house when she was on the family way. She came to the house of her parents. On 28.8.1986, the respondent gave birth to a female child; namely; Manjo. Nobody came from the side of the appellant to see her with customary gifts and clothes. In November, 1986, the respondent accompanied by her brother came to the house of the appellant and the appellant was made to understand that it was not good on his part to maltreat the respondent on the ground of inadequate dowry. The appellant assured that he will not repeat this type of demand again. The respondent stayed in the house of the appellant for one year. During that period also, the behaviour of the appellant was not good but inspite of that the respondent kept on tolerating the same. In the month of November, 1987, the respondent was, again, turned out from the house after giving beatings and she came to the house of her parents. In the month of May, 1987, the father of the respondent convened a Panchayat consisting of Rattan Chand and Mohinder Pal and approached the appellant for the rehabilitation of the respondent. The request of the Panchayat was accepted. Again in the month of June, 1987, the appellant started the same story and, finally, turned out the respondent from the house in the month of March, 1989, after giving her beatings. The appellant snatched all the dowry articles and jewellery. Since, March, 1989, the respondent is living in the house of her parents. With this broad defence, the respondent prayed for the dismissal of the petition. 5. From the pleadings of the parties, the trial Court framed the following issues : "1. Whether the respondent has deserted the petitioner ? If so, to what effect ? OPP. 2. Whether the petitioner is entitled to a decree of divorce, OPP. 3. Whether the petition is liable to be stayed under Section 10, CPC ? OPR 4. Whether the petition has been filed with unnecessary and improper delay ? If so its effect ? OPR 5. Relief." 6. In support of his case, the appellant examined Natha Singh, PW-2, Harbhajan Singh, PW-3 and he appeared as his own witness as PW-1. 3. Whether the petition is liable to be stayed under Section 10, CPC ? OPR 4. Whether the petition has been filed with unnecessary and improper delay ? If so its effect ? OPR 5. Relief." 6. In support of his case, the appellant examined Natha Singh, PW-2, Harbhajan Singh, PW-3 and he appeared as his own witness as PW-1. He also tendered in evidence some documents and I will make a brief mention of the relevant documents in the subsequent portion of this judgment. To rebut the case of the appellant, the respondent appeared as her own witness as RW-1 and she examined her brother Kulwinder Singh as RW-2. On the closure of the evidence, the trial Court dismissed the petition of the appellant. 7. I have gone through the reasons advanced by the trial Court in dismissing the petition under Section 13 of the Act. The main reasons for dismissal of the petition are that the appellant is a highly educated person. He is B.Sc., M.Com. and B.Ed. whereas the education of the respondent is only middle and this is the predominant reason that the husband has turned out the wife from the matrimonial home. The second ground for dismissal of the petition is that after the birth of the female child, the appellants behaviour became more cruel and the birth of a female child was not accepted and, therefore, the appellant made up his mind to turn out the respondent from his house. It was also one of the reasons given by the trial Court that the appellant has improved his case during the trial and he has gone against the pleadings. With these three broad reasons, the learned trial Court finally held, after evaluating the entire evidence, that the respondent had not deserted the appellant. Rather, the appellant-husband had turned out the respondent from the house without any just and reasonable cause. Resultantly, issues No. 1 and 2 were decided against the appellant-husband and in favour of the respondent- wife. In this manner, the present appeal. 8. I have heard the counsel for the parties and with their assistance have gone record of this case. 9. Before I deal with the submissions raised by the counsel for the parties, I may say at the first instance that the trial Court has not discharged its obligation in framing the issues in a proper manner. 8. I have heard the counsel for the parties and with their assistance have gone record of this case. 9. Before I deal with the submissions raised by the counsel for the parties, I may say at the first instance that the trial Court has not discharged its obligation in framing the issues in a proper manner. Issue No. 1 reads that whether the respondent has deserted the appellant and if so, to what effect ? In my opinion, this issue has not been drafted or framed in consonance with the provisions of Section 13(1)(ib) of the Act. The ground for divorce is whether the other party has deserted the appellant for a continuous period of not less than two years immediately preceding the presentation of the petition. In spite of the fact that it was so pleaded by the appellant in his petition under Section 13 of the Act, the issue has not been framed in that light. Be that as it may, as no prejudice is likely to be caused to any of the parties because both the parties have led evidence after understanding the case of each other, therefore, the non-framing of the proper issue will not affect the fate of the case as I would examine the evidence led by the parties with the background as to whether the respondent had deserted the appellant for a continuous period of two years immediately preceding to the filing of the petition. 10. The case set up by the appellant in the pleadings is that the respondent left her matrimonial home in the month of December, 1989, whereas the case set up by the respondent is that she was turned out from the house in the month of March, 1989. 11. As required under the law, the Honble D.B. of this Court even made efforts for reconciliation between the parties. Repeated directions were given to the parties to appear in person. First direction was given on 11.3.1999. The second direction was given on 10.12.1999. The wife is not interested for reconciliation. Rather, she has left India. It was also one of the principal arguments of the counsel for the that the respondent had deserted the appellant. She was never interested to rehabilitate herself in the house of the husband. First direction was given on 11.3.1999. The second direction was given on 10.12.1999. The wife is not interested for reconciliation. Rather, she has left India. It was also one of the principal arguments of the counsel for the that the respondent had deserted the appellant. She was never interested to rehabilitate herself in the house of the husband. So much so, at one point of time, she filed a petition under Section 13 of the Act, seeking divorce against the appellant. That petition was filed in the Court of the learned Distt. Judge, Hoshiarpur. It was also agreed upon between the parties that the wife and her family members will go to the house of the husband for taking delivery of the articles of dowry and, thereafter, a joint petition for dissolution of the marriage would be filed in the Court. In spite of this, the wife did not comply with her obligation under the agreement and thought it proper to get her petition dismissed, which was so dismissed under Order 9 Rule 8, CPC, on 30.3.1993 by the Court of the Distt. Judge, Hoshiarpur. Thus, the assertion of the counsel for the appellant appears to be correct. Ex. PA is the certified copy of the order dated 30.3.1993, passed by the Distt, Judge, Hoshiarpur, which reads as under : "Present : Nemo for the petitioner. Respondent with Shri Tikshan Sud, Advocate. Neither the petitioner nor his counsel has put in appearance today nor is there any intimation regarding the cause of non-appearance. The agreement reached was that the petitioner or members of her family will approach the respondent for taking delivery of the articles of dowry and thereafter joint petition for dissolution of the marriage by the mutual consent will be filed in the context of the admitted fact and circumstances of the husband having also filed a divorce petition like his wife and petition of the husband being pending in the Court of Shri S.N. Aggarwal, Additional District Judge, Jalandhar. In the circumstances, there is no alternative but to dismiss the petition under Order 9 Rule 8, CPC. File be consigned." 12. This aspect of the case has also been taken note of by learned Single Judge, Nawanshahr in the impugned judgment, when he decided issue No. 3 against the respondent. In the circumstances, there is no alternative but to dismiss the petition under Order 9 Rule 8, CPC. File be consigned." 12. This aspect of the case has also been taken note of by learned Single Judge, Nawanshahr in the impugned judgment, when he decided issue No. 3 against the respondent. I have assessed the evidence of this case independently and in my opinion, the respondent has deserted the appellant for a continuous period of more than two years immediately preceding to the filing of the petition. All blame should be placed on the respondent who inspite of the fact that she had little education as compared to the husband, has withdrawn from the society of the appellant. A glaring fact is that a female child was born out of this wedlock. Respondent, without caring for the future of the child and her safety, had left the child in the house of her husband and she withdrew herself from the society of the appellant. This act of the respondent not only constitutes cruelty of the highest order but also it shows her intention that she was not interested to live in the house of the appellant. Her attitude became more stringent and adamant after the delivery of the female child which took place on 25.8.1986. It appears from the record that the respondent became apprehensive that with the birth of the female child, she may not be accepted in the house of her husband, therefore, she started imposing conditions upon her husband that he should live separately from his mother. This unjustified demand of the respondent could not be met by the appellant. Differences arose further and finally the respondent left the house of the appellant in the month of December, 1989. 13. This Court has also formed an impression that the learned trial Court has not read the evidence of the appellant in the right perspective. It is the categorical case of the appellant that after the birth of the female child on 25.8.1986, when the respondent returned to his house, she started pressing him to live separately from her parents. The appellant told his wife that he had a widowed mother. She is dependent upon him, therefore, the respondent cannot force her to live separately. He further told the respondent that he has a younger brother who resides at Patiala. The appellant told his wife that he had a widowed mother. She is dependent upon him, therefore, the respondent cannot force her to live separately. He further told the respondent that he has a younger brother who resides at Patiala. He has no sister and, therefore, he has responsibility qua his mother. The respondent started quarrelling with the appellant and even threatened to commit suicide so as to implicate the appellant in a false murder case. This part of the case of the appellant is in consonance with this pleadings. It is further the case of the appellant that the respondent was in the habit of leaving her matrimonial home at regular intervals and his mother had been visiting the house of the father of the respondent in order to bring back the respondent. Categorically, the appellant stated that "In December, 1989, there were holidays. The parents of the respondent and her brother came to my house and they beat me without any cause. The flour mill of my Taya Joginder Singh was near my house and he was there. He heard my cries and he saved me from the parents of the respondent. Joginder Singh is now dead. On the next date my cousin (Mamas son) Natha Singh and his wife came to our house. They wanted to go to market. I enquired from the respondent if she could accompany them but she declined. We went to market along with my daughter. When we returned the respondent was not in the house and the doors of house were lying open. Since then she is residing in the house of her parents and has not turned up." 14. From the above, it is evident that the respondent left the house of the appellant in December, 1989. There in no cogent rebuttal to this statement. Rather, the evidence is that after December, 1989, the appellant had been making efforts for rehabilitation of the respondent but to no effect. The appellant had categorically deposed that he along with five persons went to the house of the parents of the respondent to bring her back 15/20 days thereafter but she refused to accompany and told them to get out of the house. So much so, the appellant even approached the Sarpanch of the parental village of the respondent for the rehabilitation of the respondent. The appellant has been cross-examined at length. So much so, the appellant even approached the Sarpanch of the parental village of the respondent for the rehabilitation of the respondent. The appellant has been cross-examined at length. It is true that he has made some improvements in his statement and the cross-examination but in the opinion of this Court, the improvements are to explain his conduct but so far as the main case was concerned that the respondent had left his company since December, 1989, the same has not been changed. In matrimonial cases, each and every minutest detail cannot be given. The appellant cannot be disbelieved on the ground that he has not put up the case that the respondent had started saying after 3/4 moths of the marriage that he had been married with the appellant against her wishes or that the respondent had been saying to the appellant that he was a man of black complexion. The appellant had married the respondent in spite of the fact that he is a highly qualified person. He is B.Sc., M.Com., B.Ed., whereas the respondent is a middle pass though the appellant was informed that the respondent had studied up to 10+2. Be that as it may, the parties were married in 1985. They lived for four years but the problems aggravated with the birth of the child which took place in August, 1986. In the cross- examination also, the appellant has reiterated that the respondent wanted him to become separate from his mother. The statement of the appellant has also been corroborated by Shri Natha Singh, PW-2. According to this witness, he along with his wife and the appellant and his mother went to the market along with the daughter of the appellant and when they returned home at about 11 A.M., they were told that the respondent had gone on a scooter with her brother by taking two bundles of house-hold articles. After 15/20 days of this occurrence, the appellant took a Panchayat to the house of the father of the respondent to bring her back but the respondent refused. Harbhajan Kaur, mother of the appellant, also appeared as PW-3. Apart from corroborating the story that the appellant was beaten, she has also stated that the respondent left the house of the appellant without any sufficient cause. Harbhajan Kaur, mother of the appellant, also appeared as PW-3. Apart from corroborating the story that the appellant was beaten, she has also stated that the respondent left the house of the appellant without any sufficient cause. It is true that PW-3 has stated that she is not prepared to keep the respondent in her house on any condition but she has given a cogent reason by saying that the respondent does not stick to any condition. When the sentiments of the parents of a spouse are hurt, a rigid attitude is always taken. 15. Reverting to the evidence of the respondent, I may say that the respondent is making an excuse just to defeat the case of the appellant. The defence of the respondent that the birth of a female child has not been accepted appears to be an after-thought. It has been admitted by the respondent in the cross-examination that she had not made any mention in her written statement that the appellant or his family members had been complaining about not giving birth to a male child or that she was less educated. She admitted that she filed a divorce petition at Hoshiarpur but the same was on account of mis-guidance of her lawyer. The birth of only one child has taken place out of this wedlock. It is not believable that the appellant would start hating the respondent with the birth of a female child. It is not the case of the respondent that she has given birth to many female children. The story of the respondent falls to the ground. Her defence was that she was turned out of the house in March, 1989. The does not appear to be correct because the marriage of Onkar Singh, younger brother of the appellant, took place in the month of November, 1989 and the respondent attended the marriage at Patiala as is evident from the photographs, Ex. P-1 to P-3. So much so, Ex. P-4 is the letter written by the sister of the respondent which again shows that the respondent was residing in the house of the appellant even upto November, 1989. In these circumstances, how the respondent could be turned out in the month of March, 1989. P-1 to P-3. So much so, Ex. P-4 is the letter written by the sister of the respondent which again shows that the respondent was residing in the house of the appellant even upto November, 1989. In these circumstances, how the respondent could be turned out in the month of March, 1989. Rather, the story of the appellant stands proved on the test of preponderance that the respondent lived in the house of the appellant up to December, 1989 and, thereafter, she withdrew herself. The statement of RW-2 Kulwinder Singh cannot be of much assistance for the respondent. 16. Apart from this, there is no evidence that any genuine effort was made from the side of the respondent for her rehabilitation in the house of the appellant. In such a situation, I have drawn this inference that the respondent has deserted the appellant since December, 1989 and this desertion continued till the filing of the petition under Section 13 of the Act. Her desertion was continuous with the intention to sever the relations for all times to come. The conduct of the respondent is inexcusable when she left the female child at the mercy of her father. She has not even turned up for reconciliation proceedings. At one point of time, she filed a petition under Section 13 of the Act and was interested in the divorce. All these factors which have been taken note of by me were not considered by the trial Court. Therefore, I reverse the findings of the trial Court on issues No. 1 and 2 and both these issues are decided in favour of husband-appellant and against the respondent-wife. 17. In view of my findings on issues No. 1 and 2, this appeal is accepted and the judgment and decree dated 15.9.1989, passed by the Additional District Judge, Nawanshahr is hereby set aside and the petition under Section 13 of the Act filed by the appellant is hereby allowed. The marriage of the parties stands dissolved forthwith. There shall be no order as to costs. Appeal allowed.