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2003 DIGILAW 423 (PNJ)

Partap Singh v. Parkash Kaur

2003-03-12

V.M.JAIN

body2003
JUDGMENT V.M. Jain, J. - This Appeal has been filed by the husband against the judgment of the learned trial Court, dismissing the divorce petition, filed by him against the respondent-wife. 2. The facts, relevant for the decision of the present Appeal, are that Partap Singh, husband, filed a petition under Section 13 of the Hindu Marriage Act against the respondent-wife, alleging therein that the marriage between the parties had taken place on 30.9.1976 and that after the marriage, Gauna ceremony was performed in September/October 1979 and thereafter, the parties lived together and co-habited each other, but no child was born. It was alleged that the respondent-wife lived with him for about 3-4 months in village Khuiyan Malkana, after Gauna ceremony, but she was not prepared to live in the joint family house and often picked up quarrels and mis-behaved with the appellant and his other family members. It was alleged that thereafter, she left the matrimonial home and started living with her parents. It was alleged that in 1981, the petitioner was posted in Public Health Department, at Faridabad, where he brought the respondent-wife with him to his house, on the assurance that she would behave properly and would not give any cause for complaint to him. It was alleged that she behaved properly for about two months, but thereafter, she again started mis-behaving and started using insulting language and also started neglecting him and did not permit him to have sexual intercourse with her. She did not even prepare food for him many a times and when the petitioner invited some of his friends at a dinner, the respondent refused to cook food and picked up quarrel with him, in the presence of his friends. It was alleged that as a result thereof, the petitioner became mentally sick and depressed and his health also started deteriorating. It was alleged that in July 1981, the respondent left the matrimonial home and went to her parents house and since then, she did not join him, inspite of various efforts. With these allegations, the petitioner filed the divorce petition on 24.5.1990 against his wife, on the ground of cruelty and desertion. 3. In the written statement, filed by the respondent-wife, various allegations were denied and it was alleged that infact, the petitioner-husband had thrown her out of the house, in order to get rid of her. With these allegations, the petitioner filed the divorce petition on 24.5.1990 against his wife, on the ground of cruelty and desertion. 3. In the written statement, filed by the respondent-wife, various allegations were denied and it was alleged that infact, the petitioner-husband had thrown her out of the house, in order to get rid of her. It was alleged that the petitioner had made a demand of Rs. 20,000/- in cash and a motorcycle and when she would not comply with the same, she was given beatings and was thrown out of the matrimonial home. She denied that she had ever refused to live in the joint family house or that she had mis-behaved with the petitioner and his family members. It was alleged that after June 1981, she had lived with the petitioner, as he had taken her with him on 28.3.1986, after executing an affidavit that he would keep her properly and would not harass her and that she lived with him in the year 1986. 4. After hearing counsel for both the sides and perusing the record, the learned trial Court dismissed the divorce petition, holding that the petitioner-husband had failed to prove the allegations of cruelty and desertion against the respondent-wife. Aggrieved against the same, the petitioner-husband filed the present Appeal in this Court. 5. At the time of arguments, no one had come present on behalf of the respondent-wife. 6. I have heard learned counsel for the appellant-husband and have gone through the record carefully. 7. Learned counsel for the appellant-husband submitted before me that the husband was entitled to a decree of divorce, on the ground of cruelty and desertion. It was further submitted that the learned trial Court erred in law in dismissing the divorce petition of the husband. However, I find no force in these submissions of the learned counsel for the appellant-husband. The divorce petition was filed by the husband on 24.5.1990, alleging therein that the respondent-wife had deserted him in July 1981. In the written statement, it was alleged by the respondent-wife that she had lived with the petitioner- husband even in the year 1986, inasmuch as the petitioner-husband had broguht her with him on 28.3.1986, after he had submitted an affidavit, vide which he had assured the parents of the respondent that he would not harass her. In the written statement, it was alleged by the respondent-wife that she had lived with the petitioner- husband even in the year 1986, inasmuch as the petitioner-husband had broguht her with him on 28.3.1986, after he had submitted an affidavit, vide which he had assured the parents of the respondent that he would not harass her. It was alleged that the respondent lived with the petitioner in the year 1986. The said affidavit of Partap Singh, appellant, is available on the trial Court record as Ex. R1. The same is dated 28.3.1986. As per the said affidavit, Partap Singh, appellant, had stated that he was taking his wife, Parkash Kaur, with him in the presence of the respectables and that he would give all facilities to her like clothing and house and would keep her with him as his wife with full respect and would not maltreat her and would keep her as his wife wherever he would live. Ex. R2 is the copy of the order dated 29.3.1986, passed by the SDJM, Dabwali, vide which the criminal case under Section 342/506/120-B/323, IPC, registered against Partap Singh, appellant, and his other relatives, on the complaint of the present respondent-Smt. Parkash Kaur, was compromised between the parties and as a result of the said compromise, the accused namely Partap Singh and others were acquitted by the learned Magistrate on 29.3.1986. Ex. R3 is the copy of the order, passed by the JMIC, Suratgarh, in the proceedings under Section 125, IPC, vide which, on the application of Smt. Parkash Kaur, her husband, Partap Singh, was directed to pay Rs. 150/- per month as maintenance. When Partap Singh appeared in the witness box as PW1, the affidavit, Ex. R1 was put to him during cross- examination and he had admitted his signatures thereon. He, however, stated that his signatures thereon, were obtained in the Police Station. He denied the suggestion that these signatures were not obtained in the Police Station or were obtained in the Court. In my opinion, on the facts and circumstances of the present case, it stands fully proved on the record that Partap Singh, appellant, had taken his wife, Smt. Parkash Kaur, with him in March 1986 after the parties and entered into a compromise. This fact would be proved from the copy of the order, Ex. In my opinion, on the facts and circumstances of the present case, it stands fully proved on the record that Partap Singh, appellant, had taken his wife, Smt. Parkash Kaur, with him in March 1986 after the parties and entered into a compromise. This fact would be proved from the copy of the order, Ex. R2, vide which the criminal case, lodged by Parkash Kaur, wife, against the husband and his relatives, was compromised between the parties and on 29.3.1986, said Partap Singh, etc. were acquitted in the said criminal case, on the basis of the compromise. In this view of the matter, in my opinion, it would not lie in the mouth of partap Singh, appellant, to depose that his signatures on the affidavit, Ex. R1, had been obained in the Police Station, especially when the matter was compromised betwen the parties and Partap Singh and his family members were acquitted by the Court, in pursuance of the said compromise. Furthermore, said affidavit was duly attested by the Oath Commissioner. 8. The evidence, led by Partap Singh, husband, with regard to the allegations of cruelty and desertion, in my opinion, would not be sufficient to prove these allegations against the respondent. Partap Singh, Husband, himself appeared in the witness box as PW1 and also examined his friends Atma Ram, as PW2 and PW3, Satpal. In my opinion, the evidence of these witnesses, would not be sufficient to prove either the allegations of cruelty or of desertion, especially when all these allegations have been specifically denied by the respondent-wife, who herself appeared in the witness box as RW1. In my opinion, it is a simple case of wear and tear in the family life and not a case of cruelty, which would entitle the husband to obtain divorce against the respondent-wife. With regard to desertion, merely because the respondent-wife is living separately from the petitioner-husband since 1981, as alleged by the husband and since 1986, as alleged by the respondent-wife, in my opinion, would not be enough to hold that the petitioner-husband was entitled to the dissolution of the marriage on the ground of desertion. This is especially so when the respondent-wife, in her statement, had categorically stated that she was thrown out of the house by the petitioner-husband, as she failed to fulfil his demands. This is especially so when the respondent-wife, in her statement, had categorically stated that she was thrown out of the house by the petitioner-husband, as she failed to fulfil his demands. In my opinion, the respondent-wife had sufficient cause to live separately and as such, the petitioner husband would not be entitled to seek the dissolution of marriage by a decree for divorce, on the ground of desertion as well. In view of the above, I affirm the findings of the trial Court on various issues. For the reasons recorded above, there is no merit in the present Appeal and the same is hereby dismissed. Appeal dismissed.