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2005 DIGILAW 559 (PNJ)

Neelam Mukhi v. Mohinder Kumar

2005-05-04

KIRAN ANAND LALL

body2005
Judgment Kiran Anand Lall, J. 1. This appeal is directed against the judgment and decree dated 19.3.1999 vide which marriage of the parties was dissolved by the learned trial Court, in a petition filed by the husband-respondent under Section 13 of the Hindu Marriage Act, 1955 (for short the Act). Parties had got married on 18.4.1998, at Chandigarh, according to Hindu Vedic rites. They lived and cohabited together at Bathinda, and out of their wedlock, a male child was born on 29.4.1990, who is now living with the wife-appellant. 2. The case of the husband (petitioner before trial Court), as recorded in the trial Court judgment, was that from the very beginning, the wife-appellant was disrespectful towards him, his parents, brothers and other family members. She is arrogant, short tempered and had always been creating unnecessary fuss and tension in the family. She never showed any effection for the respondent. She remained away from her matrimonial house, from 9.1.1989 to 15.2.1989, 71.1990 to 5.2.1990, 28.3.1990 to 14.7.1990, 17.7.1990 to 8.1.1991, 6.2.1991 to 7.3.1991 and from 17.5.1992 onwards till the filing of this petition on 22.4.1996, against his wishes, as she had no intention to live with him at Bhatinda. She had, through-out, been compelling him to shift to Chandigarh. However, in the month of February 1991, she had agreed to come to Bathinda on the condition that he would separate himself, from his parents. In order to save his married life, he did this also, and both of them started living at the house of one (sic) Singh, at Bathinda. She, however, again left his house. And, her father, who had always been against him, ultimately, wrote to the Agricultural and Forest Minister, Punjab,on 10.4.1993, for her transfer from Bathinda to Chandigarh, on a fake ground of her ill-health. 3. When the appellant deserted the respondent, on 17.5.1992, and his repeated requests made to her for joining him failed, he filed a petition for restitution of conjugal rights, under Section 9 of the Act. She did not appear in those proceedings, and as such, an exparte decree for restitution of conjugal rights was passed in his favour, on 7.1.1994. Even thereafter, she did not join his company and, thus, did not comply with the decree. She did not appear in those proceedings, and as such, an exparte decree for restitution of conjugal rights was passed in his favour, on 7.1.1994. Even thereafter, she did not join his company and, thus, did not comply with the decree. He, therefore, filed a divorce petition under Section 13 of the Act, against her, on 18.5.1994, which was got transferred by her from Bathinda to Patiala. Later on, she agreed to join the company of the respondent. He, therefore, withdrew the petition on 4.5.1995. But, even thereafter, she did not join his company. On 14.4.1996, he took a panchayat, consisting of Pritam Singh, Janak Raj Kalra, and Sat Narain, etc. to her parental house at Chandigarh and requested her to resume his society but she refused. It was, thereafter, that he filed this second petition for divorce. 4. In the written reply, the appellant disputed the correctness of averments made in the petition. Her case is that she did not leave her matrimonial house, of her own. It was her mother-in-law who had deputed the respondent to drop her at her parents house, for delivery. The respondent used to insult, humiliate and belittle her, in the presence of others. Due to his such type of behaviour, she went into depression and became hypertensive. She, therefore, started taking regular medical treatment from PG1, Chandigarh. This treatment was continuing even when this petition was filed. It was also pleaded that it was her mother-in-law who made her and the respondent, live separately from her (mother-in-law). About the decree for restitution of conjugal rights under Section 9 of the Act, she pleaded that on receipt of summons issued in that petition, her condition became serious, whereupon the respondent himself sent a message to her that she need not appear in Court and he would withdraw the petition. However, later on, he did not withdraw it and secured an exparte decree in his favour. Thereafter, she went to Bathinda, in the year 1995, to join him but, by that time, he had shifted back to his parents house. She, therefore, went to her in-laws house, where she was humiliated by the respondents. 5. Parties went to trial on the following issues: 1. Whether respondent has deserted the petitioner and also treated him with cruelty? If so to what effect? OPP 2. Whether decree for restitution of conjugal rights has been passed ? She, therefore, went to her in-laws house, where she was humiliated by the respondents. 5. Parties went to trial on the following issues: 1. Whether respondent has deserted the petitioner and also treated him with cruelty? If so to what effect? OPP 2. Whether decree for restitution of conjugal rights has been passed ? If so to what effect? OPP 3. Whether the previous divorce petition has been got dismissed as withdrawn and this petition is maintainable or not? OPR 4. Relief. 6. After conclusion of trial, the trial Court answered all the issues, in favour of the respondent and against the appellant, and, resultantly, allowed the petition. 7. The wife-appellant did not feel satisfied with the judgment and decree of the trial Court. Therefore, she came up in appeal to this Court. 8. After hearing both sides and having gone through the evidence appearing on the trial Court records, I do not find any merit in this appeal. Admittedly, the appellant had left the company of the respondent on 17.5.1992. It is also not in dispute that in the year 1993, she got herself transferred from Bathinda to Chandigarh, on the ground of ill health, on a written request made to the concerned Minister, by her father. Thereafter, the respondent filed a petition under Section 9 of the Act also, for restitution of conjugal rights. And, it is not in dispute that she was personally served in that petition but she did not appear in Court, and as such, the petition was allowed ex parte, against her and in favour of the respondent, on 17.1.1994. Her plea that on receipt of summons of that petition, her condition became serious and it was on the assurance of the respondent that he would withdraw the petition, that she did not appear in Court, has remained unsubstantiated. After the passing of decree, the respondent had taken a panchayat also to her parents house and requested her to join his company, but she did not accompany him. After waiting for some time, he filed a petition under Section 13 of the Act which she got transferred from Bathinda to Patiala. As admitted by her, as RW2, he withdrew the divorce petition, after she made a statement that she was prepared to reside with him. After waiting for some time, he filed a petition under Section 13 of the Act which she got transferred from Bathinda to Patiala. As admitted by her, as RW2, he withdrew the divorce petition, after she made a statement that she was prepared to reside with him. It is in the statement of the respondent that she, later on, backed out from her statement and did not join him. Her case, however, is that she did, thereafter, join him at Bathinda, but again had to withdraw from his company due to his ill behaviour. 9. Learned counsel for the appellant contended that the appellant had to visit Chandigarh, frequently as she was ailing and was under the treatment of PGI, Chandigarh. In this connection, it may be mentioned that there is nothing on record to substantiate this plea. No doctor from PGI was produced ( in evidence ) to depose that she ever suffered from illness and had taken medical treatment from PGI, at any point of time. Even no prescription or some other document regarding her alleged illness was got exhibited in evidence. Absence of any type of medical evidence, from the record, leads to the only conclusion that the plea taken up by her regarding her illness is nothing but false. 10. The contention of appellants learned Counsel that she had joined the respondents company after the passing of decree of restitution of conjugal rights, has also not been substantiated. Copies of applications, Exs.R1 to R2, to which he referred in this regard , are only indicative of the fact that she had applied for leave from 24.10.1994 to 28.10.1994 and 14.8.1995 to 17.8.1995, for going to Bathinda (from Chandigarh). But, surely, it cannot be held on the basis thereof that she had, in fact, joined the company of the respondent, during the period of question. If she had actually joined the company of respondent, at any point of time, after the passing of the decree for restitution of conjugal rights, it was very easy for her to have produced one or two persons ( as witnesses) from Bathinda to state so. But, no such person was produced, and absence of such type of evidence leads to the only conclusion that she had, in fact, never gone to Bathinda for joining his company, after the passing of decree for restitution of conjugal rights. 11. But, no such person was produced, and absence of such type of evidence leads to the only conclusion that she had, in fact, never gone to Bathinda for joining his company, after the passing of decree for restitution of conjugal rights. 11. As discussed in detail by the learned trial Court, the respondent took a panchayat also, to her parents place for making her agree to join his company, but she refused to do so. A specific suggestion was put to her in cross-examination (RW2), that on 14.4.1996, the respondent alongwith Janak Raj Kalra, Pritam Singh and Sat Narain had come to her parents house to request her to return to her matrimonial home and start living with the respondent. But, significantly, she could not dare to deny it, and simply pleaded loss of memory, in this regard, by replying in the following terms: I do not remember whether on 14.4.1996 Janak Raj Kalra, Pritam Singh and Sat Narain alongwith the petitioner had come to my house at Chandigarh to request me to return to the matrimonial home and start living with the petitioner. The conduct of the respondent qua the appellant, also does not appear to be such which could have given any cause to her to live away from him. In this connection, it may be mentioned that she admitted, as RW2, that just after two months of her stay (after marriage), at the house of her in-laws, the respondent, at her asking, had separated from his parents and shifted, alongwith her, to another accommodation. It is also to be found in her deposition that the respondent used to come home at 4.30 p.m., and after taking tea, he used to go for part-time service, at Bharat Store, Bathinda. That being his conduct, what more she could have expected from him ? Inspite of this, she got herself transferred from Bathinda to Chandigarh, and that, too, on a fake excuse of her ill-health. The respondent, even then, took a panchayat to her parents house but she did not agree to join his company. The petition for restitution of conjugal rights, filed by him, was not contested by her, leading to passing of an exparte decree against her. When even after the passing of that decree she did not join him, he ultimately, filed a divorce petition. The petition for restitution of conjugal rights, filed by him, was not contested by her, leading to passing of an exparte decree against her. When even after the passing of that decree she did not join him, he ultimately, filed a divorce petition. But, even at that time, she played a trick on him, by offering that she was prepared to reside with him. He again fell in her net and withdrew the divorce petition. And, after dismissal of petition, she did not join him. 12. It is, thus, clear that the appellant never joined the company of the respondent after the passing of decree for restitution of conjugal rights on 7.1.1994. The present petition was filed on 4.10.1996 i.e. more than 2-3/4 years after the passing of the decree for restitution of conjugal rights. In fact, it appears that he has no intention to join him, even now. This I say, because while appearing as RW2, she stated that, "Until I am medically fit, I am not prepared to return to the matrimonial home." Since her plea of illness, as already stated above, does not stand substantiated, it is clear that she had put forward the same, simply as an excuse to avoid his company, by stying at Chandigarh on the pretext of getting medical treatment from here. 13. For the reasons stated above, the findings recorded by the learned trial Court in respect of all the issues are upheld and appeal dismissed. Parties shall bear their own cost.