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2006 DIGILAW 3494 (PNJ)

Khusdev Kaur v. Mohinder Singh

2006-09-08

NIRMAL YADAV

body2006
JUDGMENT NIRMAL YADAV, J. 1. This is wife’s appeal against the judgment dated 5.12.1997 passed by the Additional District Judge, Patiala, whereby a decree of divorce under Section 13 (i) (i-a) and (i-b) of the Hindu Marriage Act, 1995 (hereinafter to be refered to as ‘the Act’) has been passed against her. 2. The parties were married on 1.11.1991 according to Sikh rites at Patiala. They cohabited together as husband and wife and a son named Charankamal Singh was born out of the wedlock. As per the averments made by Mohinder Singh, husband in his petition for divorce, the appellant-wife and her parents had been pressurizing him to settle at Patiala after selling his house at Samana. Though after the marriage the wife had been living with him at Samana, but she used to attend her office at Patiala. The wife also used to give her entire salary to her parents and brothers. After the marriage, she never performed the duties of a wife and did not serve the husband and his family members. She had been quarrelling with her husband, her brother-in-law Gurmail Singh and his wife Baljit Kaur and ultimately withdrew from the society of the husband on 22.2.1993 without any reasonable cause and since then she has been living with her parents at Patiala. The wife, therefore, failed to discharge her matrimonial obligations. The husband along with his other relatives and family members approached the wife and her parents to bring the wife back to the matrimonial home, but she refused to join him. 3. The petition for divorce was contested by the wife stating that husband had filed a petition under Section 9 of the Act for restitution of conjugal rights, after the wife had filed a petition under Section 125 Cr. P . C . However, the said petition was withdrawn by him on 27. 7 . 1995 . The wife averred that she is working as a clerk in PWD Department at Patiala and being a handicapped person, cannot easily travel by bus from Samana to Patiala. According to her, it was settled between the parties at the time of marriage, that they would reside at patiala. However, the husband did not fulfill his compromise and under such circumstances, the wife had to take shelter in the house of her parents. According to her, it was settled between the parties at the time of marriage, that they would reside at patiala. However, the husband did not fulfill his compromise and under such circumstances, the wife had to take shelter in the house of her parents. It was further pleaded by the wife that she was being harassed by the elder brother of the husband and his wife and she was playing in their hands. It was categorically pleaded by the wife that she was ready to live with husband at Patiala as agreed between them before marriage. 4. On the basis of pleadings of the parties, the following issues were framed: “1. Whether, respondent has deserted the petitioner for a continuous period of two years immediately preceding to the filing of the petition? OPA. 2. Whether the respondent treated the petitioner with cruelty after the solemnization of the marriage as alleged, if so to what effect? OPA. 3. Relief.” After taking into consideration the facts and circumstances and evidence on record, in regard to issue No.1, the Court below came to conclusion that the wife had deserted the husband for a continuous period of two years immediately preceding the filing of the petition. She had deserted the husband with an intention to permanently bring cohabitation to an end. While deciding issue No.2 with regard to cruelty, it is held that the wife had insisted her husband to come and stay with her at Patiala where she was working and had refused to join the matrimonial home at Samana. The husband in order to rehabilitate the wife had constructed a house at Bhawanigarh Road, Samana on the asking of the wife itself. The wife had , therefore, failed to discharge her matrimonial obligations. The above acts amounted to causing mental cruelty to the husband. On the basis of these findings, issue No.2 with regard to cruelty has been decided against the wife and the Impugned decree of divorce dissolving the marriage of the parties has been passed in favour of the husband. Hence, the present appeal. 5. In the present appeal, the basic issue to be considered is as to whether the appellant wife left the matrimonial home without any justification and reasonable cause. After carefully scrutinizing the evidence on record, I do agree with the findings of the trial Court recorded on the issue of cruelty and desertion. Hence, the present appeal. 5. In the present appeal, the basic issue to be considered is as to whether the appellant wife left the matrimonial home without any justification and reasonable cause. After carefully scrutinizing the evidence on record, I do agree with the findings of the trial Court recorded on the issue of cruelty and desertion. It is well established that ‘desertion’ for the purpose of seeking divorce under the Act would mean intentionally and permanently forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is not simple withdrawal from a place, but it has to be withdrawal from a state of things. In other words, it would be a total repudiation of obligation of marriage i.e. not permitting or allowing cohabitation between the parties. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the fact and circumstances of each case. If a spouse abandons the other in a state of temporary passion or anger without intending to cease cohabitation permanently,it would not amount to desertion. The Apex court in the case of Bipinchandra Jaiainghbhai Shah vs. Prabhavati (AIR 1957 SC 176) has observed as under: “For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi) .Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner” for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of interference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention both interior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements subsist. Hence, if a deserting spouse takes advantage of locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a deseration, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence though corroboration is not required as an absolute rule of law the Courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Court.” Following the above decision in Bipinchandra Jaisinghbhai Shah’s case, the Apex Court again reiterated the legal, position in Lachman Utamchand Kirpalani vs. Meena alias Mota (AIR 1964 SC 40) and held that in essence, the desertion means intentional permanent forsaking and abandoning of one spouse by the other without that other’s consent and without any reasonable cause. So far as deserting spouse is concerned, two essential conditions have to be there,-(1) the factum of separation and (2) the intention to permanently bring cohabitation to an end (animus deserendi). Likewise, two elements are essential so far as the deserted spouse is concerned, viz.,(i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. 6. In the instant case, admittedly, the wife is living in her parent’s house at Patiala since 22.2.1993 and has been working as a Clerk in PWD Department at Patiala. She had been working even before the marriage. According to her, it was settled between the parties that they will reside at Patiala after the marriage. In order to prove this fact, the appellant- wife hereself stepped into the witness box as RW4 and reiterated the aforesaid assertion. She hereself stated it to be incorrect that there was any condition for setting the parties at Patiala. She admitted that after the marriage she had joined here husband at Samana and stayed there upto 7 days. Thereafter, she took 20 days Leave and came back to Patiala as a week thereafter marriage of her brother was to be performed. Her husband came only on the day of marriage of her brother. She even admitted that after the marriage of her brother, she did not join her husband at Samana. From her Statement, it is clear that the appellant wife had no intention to join the husband at Samana or to perform the matrimonial obligations while living with her husband at Samana. She even admitted that after the marriage of her brother, she did not join her husband at Samana. From her Statement, it is clear that the appellant wife had no intention to join the husband at Samana or to perform the matrimonial obligations while living with her husband at Samana. Surinder Singh, brother of appellant wife while appearing as RW5 admitted that after the marriage his sister had been going on her own to Samana after duty hours. RW-2 Gurdev Kaur who is stated to be the mediator for arranging the marriage between the parties also admitted that appellant wife had been going to Samana after the marriage. She also admitted that on the asking of Khushdev. She also admitted that on the asking of Khushdev Kaur i.e. appellant, the husband had constructed a new house at Samana. Father of the husband Daulat Singh, who appeared as RW1, however, stated that Ladha Singh was the mediator in arranging the marriage of the parties. AW1 Ladha Singh categorically stated that there was no condition that the wife was to live at Patiala after the marriage. 7. Taking into consideration the above evidence, it is apparent that the appellant wife has failed to prove that prior to marriage there was any agreement between the parties to stay at patiala after the marriage, rather it has come in evidence that husband had constructed a house at Bhawanigarh Road at Samana on the asking of the appellant wife. It has also been admitted by Surinder Singh, brother of the wife that appellant- wife had been commuting from Samana to patiala in order to attend her duties after the marriage. In support of the plea taken by the wife that the couple had been living in a rented house at Partap Nagar, Patiala, she could not produce any rent note or any other documentary evidence with regard to hiring a house at patiala. She admitted that she was not in possession of copy of rent deed or rent receipts in respect of the house where the parties had lived together at Patiala. Accordingly, there is no evidence on record that the parties had entered into any agreement that they will be living at patiala after the marriage or they had actually lived at patiala in a rented house. Accordingly, there is no evidence on record that the parties had entered into any agreement that they will be living at patiala after the marriage or they had actually lived at patiala in a rented house. It has also emerged from the evidence on record that the wife had no intention to join the matrimonial home as she categorically stated that she was not ready to live at Patiala with the husband. The last sentence of her cross examination is reproduced below: - I am not ready to live with the petitioner at Samana, even if I am got transferred there from patiala.” In reply to another question she stated that she was not ready to join her husband at Samana. The plea taken by the wife that she is handicapped and experienced inconvenience in traveling from Samana to patiala is also not substantiated by any cogent evidence. From the evidence of the witnesses produced by the appellant wife, it is clear that wife had been commuting from Samana to patiala for some time. The wife has also not produced any evidence of any medical expert that she is not in a position to board a bus for commuting from Samana to patiala. 8. On the other hand, the respondent-husband has been able to prove that he had convened the Panchayat in order to persuade the appellant-wife to join the matrimonial home. According to AW2-Swaran Singh, Member panchayat, Mohinder Singh and Gurmail Singh had gone to Patiala, but the wife refused to join her husband at Samana. The appellant has miserably failed to prove that she has any cogent or sufficient cause for not joining the matrimonial home. It appears that she hadvoluntarily refused to live in her matrimonial home and had taken away all her dowry and household articles to her parents house. From her own statement that she was not ready to live with her husband at Samana even if she is transferred from Patiala, shows her intentions to bring the cohabitation permanently to an end. As such, all her acts amount to ‘animus deserendi’ , though the husband had made sincere efforts to bring her back to matrimonial home. 9. From her own statement that she was not ready to live with her husband at Samana even if she is transferred from Patiala, shows her intentions to bring the cohabitation permanently to an end. As such, all her acts amount to ‘animus deserendi’ , though the husband had made sincere efforts to bring her back to matrimonial home. 9. Learned counsel for the respondent-husband argued that there is no temperamental compatibility between both the spouses as both of them have been living separately for the last more than 12 years which shows that marriage has irretrievably broken down. This argument is duly supported by the evidence, as discussed above, that the wife had no intention to join the matrimonial home. There is nothing on record to suggest that there was any cause or reason on the part of the husband for bringing the cohabitation to an end. 10. The Apex court in the case of Geeta Jagdish Mangtani vs. Jagdish Mangtani, AIR 2005 Supreme Court 3508, in somewhat similar circumstances, has held that the wife had deserted the husband as she did not even join the matrimonial home during vacations and, therefore, she never made any attempt to go to her husband’s house after she left the matrimonial home and as such, animus deserendi on the part of the wife was established. In the present case, besides the reasons mentioned above,the parties parted company in the year 1993 and in spite of best efforts by the husband, no reconciliation between them could be brought about. The petition for dissolution of marriage was filed in the year 1995 and since then many years have elapsed. Even as per wife’s own saying, she is not ready to join her husband at Samana. In such circumstances, it can be reasonably inferred that marriage between the parties has broken down irretrievably. Normally, before knocking the door of the, Court seeking divorce, a spouse would ponder several times over the pros and cons of the social stigma of seeking divorce. Divorce is not a normal insignificant episode in one’s life as it disturbs the entire life of both the spouses. Since both the parties are living separately for the last more than 12 years, they have lost tender lovable emotions for each other. Divorce is not a normal insignificant episode in one’s life as it disturbs the entire life of both the spouses. Since both the parties are living separately for the last more than 12 years, they have lost tender lovable emotions for each other. The appellant-wife wants to live separately for her own reasons, otherwise she could have adjusted with the respondent-husband by living at Samana which is not far away from patiala. She could also get herself transferred from patiala to Samana. During the course of arguments, it was stated that in case the wife gets herself transferred from patiala to Samana, she would lose seniority. Mere losing of seniority should not be a hindrance, if one wants to settle well in one’s life. 11. From the above discussion, it is evident that the marriage between the parties has irretrievably broken down emotionally as well as factually ; and if the decree of divorce is set aside that would amount’ to compelling them to further live together in complete disharmony, mental stress and strain. Therefore, I am of the considered view that there is no merit in this appeal and the same is hereby dismissed.