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2007 DIGILAW 1897 (PNJ)

Sukhwant Kaur v. Harinderpal Singh

2007-10-29

VINOD K.SHARMA

body2007
JUDGMENT VINOD K. SHARMA, J. - This appeal is directed against the decree of divorce granted by the learned Addl. District Judge, Amritsar on an application moved by the respondent-husband under Section 13 of the Hindu Marriage Act. 2. The marriage between the parties took place on 6.3.1988 at Ajnala as per Sikh religious rites. It was the case of the respondent husband that they lived as husband and wife upto 20.4.1989 but no child was born out of this wedlock. The respondent husband was employed as Junior Engineer in the Punjab State Electricity Board and was posted at Verka whereas the appellant wife was employed as a Teacher in the Government Primary School, Dhariwal, Tehsil Ajnala. The respondent husband was a divorcee having obtained divorce from his first wife on 24.12.1987. It was the case of the husband that after the dissolution of his marriage an advertisement was inserted in “The Tribune” dated 16.1.1988 for contracting a second marriage and on the basis of the said advertisement, the respondent was married with the appellant wife. 3. The divorce was sought on the ground of cruelty and desertion. However, the ground of cruelty was not pressed and, therefore, the issue framed qua the cruelty was decided against the respondent husband. The other ground for seeking divorce was that the appellant wife has deserted the respondent husband since 20.4.1989 without any reasonable cause and excuse for a continuous period of more than two years immediately preceding the presentation of the petition. It was claimed that the wife left the matrimonial house with an intention to bring cohabitation permanently to an end. It was also the case of the respondent husband that his efforts for reconciliation to bring back the appellant wife failed as she refused to join the matrimonial home. 4. The petition was contested by the appellant wife by denying the allegation of cruelty to be false and frivolous. It was also the case of the appellant wife that she never deserted the petitioner as alleged by him. Certain allegations against the respondent husband and his mother were also levelled. However, those need not be referred to here as the plea of cruelty was not pressed by the respondent husband. It was also the case of the appellant wife that she never deserted the petitioner as alleged by him. Certain allegations against the respondent husband and his mother were also levelled. However, those need not be referred to here as the plea of cruelty was not pressed by the respondent husband. It was claimed by the appellant wife that she never left the matrimonial home, rather the husband respondent attended the marriages of the sons of her brothers, Balbir Singh and Amrik Singh, which took place in the months of October, 1990 and November, 1991. 5. The learned matrimonial Court was pleased to grant divorce on the ground of desertion by observing that the name of the appellant wife continued in the voters list Ex.A-2 as resident of Ajnala even after the marriage. It was also observed that the appellant wife did not take any steps to get her name deleted from the voters list. It was also noticed that the name of the appellant continued in the ration card with her mother even after the marriage and, therefore, a presumption was drawn that the appellant wife continued to draw ration by claiming herself to be living at Ajnala. It was also noticed that the appellant wife continued to claim house rent by stating herself to be the resident of Ajnala even after the marriage. Thus, a presumption was drawn that the appellant wife continued to live with her mother at Ajnala even after the marriage. It was also observed that there was no evidence on record that the respondent-husband visited the house of the appellant at the time of marriage of sons of her brother. The Court further observed that as the allegations made by the appellant wife against her mother-in-law, which were found absolutely false and were not proved on record, it has to be held that the appellant wife deserted the husband-respondent with an intention not to come back again. It was observed that no efforts were made by the appellant wife to resume the company of the husband after she left the matrimonial home. The Court rejected the oral evidence brought on record by the appellant wife only for the reasons that the list of witnesses earlier given by her to be examined and the persons examined to prove her case were not the same persons. The Court rejected the oral evidence brought on record by the appellant wife only for the reasons that the list of witnesses earlier given by her to be examined and the persons examined to prove her case were not the same persons. Though, the learned matrimonial Court was pleased to observe that the burden to prove the desertion beyond reasonable doubt was on the respondent husband, however, without adverting to the evidence led by the husband in this regard the finding of desertion was recorded only on the ground that the appellant wife continued to work as a Teacher in the same school after marriage and she used to visit her husband on Saturdays and Sundays for some time and after leaving matrimonial home no efforts were made by the appellant-wife to resume the company of the respondent-husband, it was held that she was guilty of desertion. 6. Mr. Sarwan Singh, Senior Advocate appearing on behalf of the appellant wife contended that the very fact that the allegations of cruelty were levelled by the respondent husband which were subsequently given up as not pressed would only lead to a conclusion that the appellant wife was forced to live separately and not of her own accord. The learned Senior Counsel for the appellant wife also vehemently contended that the learned Matrimonial Court committed an error in relying upon the evidence of voters list, ration card and claim of house rent to come to the conclusion that the appellant wife deserted her husband. The contention of the learned counsel for the appellant was that even according to the respondent husband the said position remained as it is, while the parties were living together. It was proved on record and even admitted by the respondent husband that the appellant-wife was employed at Ajnala and, therefore, her name in the voters list, ration card or claim of house rent could not be a ground to come to a conclusion that the appellant wife had deserted the respondent husband. 7. The learned Senior counsel for the appellant wife also contended that the respondent husband could not take the benefit of his own wrong as he himself turned out the appellant wife out of the matrimonial home. 7. The learned Senior counsel for the appellant wife also contended that the respondent husband could not take the benefit of his own wrong as he himself turned out the appellant wife out of the matrimonial home. It was also the case of the appellant that the appellant wife was willing to continue to live in her matrimonial home and it was the respondent husband who refused to take her there. It may be noticed here that at the time of reconciliation proceedings the husband claimed that he had no residence or property in his name and was merely dependent upon his pension. This stand of the respondent husband was falsified from the admitted case that the marriage between the parties was finalised in pursuance to an advertisement given in “The Tribune”, and in the said advertisement the respondent husband had claimed that he was from a landlord family having spacious house with no liability. It was claimed that his brothers were settled in abroad. However, he refused to accept any of the facts stated in the advertisement regarding his status, while appearing in the Court. 8. Ms. G.K. Mann, learned counsel appearing on behalf of the respondent husband, however, contended that the parties are living separately since 20.4.1989 and, therefore, it has to be presumed that the appellant wife had deserted the respondent husband. In support of this contention reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Rishikesh Sharma Vs. Saroj Sharma (2007)1 Femi-Juris C.C. 150, wherein the Hon'ble Supreme Court was pleased to lay down that where the wife had filed several criminal cases against her husband and keeping in view the fact that the marriage irretrievably broken town and there was no possibility of the parties to live together and also keeping in view the fact that there was allegation by the wife that husband had remarried and the said allegation was found to be baseless, the decree of divorce can be granted on the ground of desertion. The learned counsel for the respondent husband further placed reliance on the judgment of this Court in the case of Gurnam Singh Vs. Smt. Satwant Kaur (2007) 1 Femi-Juris C.C. 414 to contend that when there is no chance of reconciliation between the parties, their mutual trust is lost, the husband would be entitled to a decree of divorce. 9. The learned counsel for the respondent husband further placed reliance on the judgment of this Court in the case of Gurnam Singh Vs. Smt. Satwant Kaur (2007) 1 Femi-Juris C.C. 414 to contend that when there is no chance of reconciliation between the parties, their mutual trust is lost, the husband would be entitled to a decree of divorce. 9. On consideration of the contentions raised by the learned counsel for the parties, I find force in the contentions raised by the learned counsel for the appellant. The finding of the learned Matrimonial Court that desertion was proved cannot be sustained. The documentary evidence relied upon by the learned Matrimonial Court to come to the conclusion that desertion stood proved cannot be sustained. It was not the case of the respondent husband that the voters list, ration card or her claim for house rent was in anyway unjustified. The case set up by the husband respondent himself was that at the time of marriage the wife was employed as a Teacher and was working at Ajnala and it was on account of her employment that she was staying at Ajnala and, therefore, the learned Matrimonial Court was not justified in drawing an inference of desertion merely because no steps were taken to get the changes made in record after the marriage with the respondent husband. It is also pertinent to mention here that the learned Matrimonial Court wrongly rejected the evidence led by the respondent wife merely on the ground that the witnesses examined were not the listed witnesses. The appellant had given reasons for not examining the cited witnesses on the ground that those witnesses were won over by the respondent husband. 10. The learned Matrimonial Court was also not justified in drawing presumption of desertion by the wife with an intention to permanently bring to an end the matrimonial obligations, on the basis of allegations made by the wife. Once the husband had given up his plea of divorce on the basis of cruelty it has to be presumed that those allegations stood not proved and, therefore, no benefit could have been given to the husband respondent on the basis of said allegations. Once the husband had given up his plea of divorce on the basis of cruelty it has to be presumed that those allegations stood not proved and, therefore, no benefit could have been given to the husband respondent on the basis of said allegations. The learned senior counsel appearing on behalf of the appellant was, therefore, correct in asserting that in view of the allegations made by the husband which were given up subsequently an inference has to be drawn that she was not living separately at her own accord. This finding finds further support from the fact that during the reconciliation proceedings the respondent husband had taken a stand that he has no place to keep the wife with him and has no income except the pension which is not sufficient for him to maintain his wife. 11. The authorities relied upon by respondent can not apply to the present case, as the parties have been living separately due to grant of divorce by learned Matrimonial Court. The appellant wife has taken a positive stand that she was willing to live with husband provided he is able to provide basic amenities. The husband flatly refused to provide residence or maintenance. In view of what has been stated above, the findings of the learned Matrimonial Court on Issue No.2 cannot be sustained and are accordingly reversed. Consequently, this appeal is allowed. The judgment and decree passed by the learned Matrimonial Court is set aside and the petition filed by the husband respondent under Section 13 of the Hindu Marriage Act is ordered to be dismissed with costs. The cost is assessed at Rs. 10,000/- ( Rupees ten thousand only).