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2009 DIGILAW 1288 (PNJ)

Gurmukh Singh v. Satnam Kaur

2009-08-03

VINOD K.SHARMA

body2009
JudgmentJudgment Vinod K.Sharma, J. 1. This appeal by the appellant/husband is directed against the judgment and decree passed by the learned Addl. District Judge, Gurdaspur, dismissing a petition filed under Section 13 of the Hindu Marriage Act. 2. The appellant/husband filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as "the Act") for dissolution of marriage on the averments that the respondent was earlier married to his elder brother Kulwant Singh on 7.6.1998. Shri Kulwant Singh died under mysterious circumstances on 19.10.1998, and being unable to bear the shock of death of Kulwant Singh, the father of the appellant also died on 2.1.1999. 3. The appellant/husband claimed that without giving him any time, and under pressure, he was asked to solemnize marriage with the respondent on 15.1.1999. According to the appellant he was not aware about the age of the respondent, who was elder to him by many years. The case set up was that the appellant after staying for ten days with respondent/wife left to join his duties, and the respondent left for her parental home. The appellant further claimed that he came back after two months, and had gone to bring back his wife, but she refused to accompany him. Thereafter he along with Darshan Singh and maternal uncle went to the respondent/wife, but she after initial reluctance came back to her matrimonial home. They stayed together for about 20 days, and the appellant then went back to attend his duties, whereas the respondent stayed in the matrimonial home for about three months. Thereafter she left the matrimonial home and also took away her ornaments and other house hold articles. The appellant came back from his duties in the month of May, 1999 and again went to bring back the respondent to her matrimonial home but she refused to join the company of the appellant. 4. It was further pleaded, that she refused to cohabit with the appellant nor she cared to look after the ailing mother of the appellant. She deserted the appellant on 20.1.2001 without any reasonable cause. The divorce was sought on the grounds of cruelty and desertion. 5. On notice, the petition was contested by the respondent/wife. She admitted the factum of earlier marriage with Kulwant Singh, and also that after death of Kulwant Singh she was married to the appellant. Other averments qua cruelty and desertion were denied. The divorce was sought on the grounds of cruelty and desertion. 5. On notice, the petition was contested by the respondent/wife. She admitted the factum of earlier marriage with Kulwant Singh, and also that after death of Kulwant Singh she was married to the appellant. Other averments qua cruelty and desertion were denied. She further pleaded that after death of Kulwant Singh, she inherited land measuring 1 Kanal 9 Marlas being the widow of Kulwant Singh. The appellant, his mother and brother and also the wife of his brother became greedy, and forced the respondent to transfer the inherited land in the name of the appellant. The land was transferred to appellant vide sale deed dated 16.3.2000. A threat was also given that in case she failed to transfer the land she would be turned out of the matrimonial home. The respondent executed the sale deed without any consideration, and as a result of undue stress and coercion. After the execution of the sale deed, the appellant along with his mother, brother and his wife started insulting, maltreating and beating the respondent, and forced her to leave the matrimonial home as they intended to marry the appellant with some other girl. It was also alleged that she was not given proper food and in absence of the appellant, his mother, brother and his wife gave severe beatings to the respondent. It was also the case of the respondent her gold ornaments were snatched, and she was turned out of the matrimonial home. 6. It was also the case of the respondent/wife that she was given threat that if she came back to her matrimonial home she would be killed. She also alleged, that she was falsely accused for the death of Kulwant Singh. It was also pleaded case of the respondent that her brother Joginder Singh along with Baldev Singh and others went to the appellant and his family members with a request to rehabilitate the respondent but they flatly refused. It was also pleaded, that an attempt was made by the appellant to marry the daughter of one Bawa Singh by concealing his marriage with the respondent, Sardar Bawa Singh on coming to know about the fact of marriage of the appellant, refused to marry his daughter with him. No rejoinder was filed. 7. On the pleadings of the parties, the learned Matrimonial Court framed the following issues:- "1. No rejoinder was filed. 7. On the pleadings of the parties, the learned Matrimonial Court framed the following issues:- "1. Whether the respondent has been treating the petitioner with cruelty ? OPP 2. Whether the respondent has deserted the petitioner for the period of two years before filing of the present petition ? OPP 3. Relief." In order to prove the case, the appellant himself stepped into the witness box as PW-1 and supported the version given in the petition. He also examined Darshan Singh as PW-2, PW-3 Sukhdev Singh, PW-4 Onkar Singh, PW-5 Kishan Singh and PW-6 Piara Singh. 8 The respondent/wife appeared as RW-1 and also examined Joginder Singh as RW-2, Bachan Singh as RW-3 and Baldev Singh as RW-4. 9. The learned matrimonial Court on appreciation of evidence came to the conclusion that the appellant failed to prove that the respondent wife treated him or his family member with cruelty. 10. The allegation that the appellant was denied cohabitation were not believed by the learned matrimonial Court as they were said to be vague, and were specifically denied by the respondent/wife. It was further held that the allegations of cruelty were not corroborated by any independent witness. The learned Matrimonial Court also held, that there was no evidence about the alleged misrepresentation about the age of the respondent/wife by his brother. The learned Matrimonial Court, therefore, held that there was absolutely no evidence supporting the allegation of cruelty. 11. As regards the ground of desertion was concerned, the learned matrimonial Court noticed that in the examination-in-chief by way of affidavit, the respondent/wife had taken a categorical stand that she was always willing and still willing to join the company of the appellant/husband. It was he who refused by stating, that he was not willing to keep the respondent as his wife. 12. The learned Matrimonial Court placed reliance on the judgment of this Court in the case of Lakhwinder Singh v. Hardish Kaur 2003(4) R.C.R. (Civil) 353, to decide issue No. 2 also against the appellant. 13. The learned counsel appearing on behalf of the appellant has vehemently contended that the learned Matrimonial Court had misread the evidence to record a finding, that the allegations of cruelty were not proved. 14. 13. The learned counsel appearing on behalf of the appellant has vehemently contended that the learned Matrimonial Court had misread the evidence to record a finding, that the allegations of cruelty were not proved. 14. The contention of the learned counsel for the appellant was that, the appellant while appearing as his own witness had categorically stated that the respondent was not cooperative with the appellant with regard to her matrimonial obligation and was also not cooperative with the family members of the appellant. The contention of the learned counsel for the appellant was that the finding of the learned Matrimonial Court on issue No. 1, therefore, cannot be sustained. 15. This plea of the learned counsel for the appellant cannot be sustained. The learned Matrimonial Court rightly came to the conclusion that the allegations were totally vague, and the evidence in support thereof also did not give any specific details qua cruelty, and desertion. 16. It may be pertinent to notice that admittedly the case of the appellant was that he was in the Army, and for most of the time he remained away from the respondent, in these circumstances, it could hardly be said that the appellant was treated with cruelty, especially, when the evidence was led to show, that the wife, on the asking of the husband had transferred the land inherited by her, after the death of her previous husband without any consideration. This fact itself was sufficient to prove, that the stand of the respondent/wife was correct, that she was turned out from the matrimonial home by the appellant and his family members. The finding of the learned matrimonial Court on issue No. 1 is affirmed. 17. The learned counsel for the appellant thereafter contended that the learned Matrimonial Court failed to notice that it was proved, that since 2001 the respondent/wife had left the matrimonial home with the intention never to come back, therefore, desertion was proved. The learned counsel for the appellant further contended that the facts of the case of Lakhwinder Singh v. Hardish Kaur (supra) were different, therefore, the authority was not applicable to the facts of the case, as in this case the desertion was proved. 18. This plea is totally misconceived. The learned counsel for the appellant further contended that the facts of the case of Lakhwinder Singh v. Hardish Kaur (supra) were different, therefore, the authority was not applicable to the facts of the case, as in this case the desertion was proved. 18. This plea is totally misconceived. It may be noticed that in order to prove desertion, it is not only that the parties are living apart for a period of more than two years but animus deserendi was also required to be proved. 19. When a specific stand was taken by the respondent, that she was always willing and still willing to company the appellant from the Court itself, it was the appellant, who to took a positive stand that he was not willing to take the respondent/wife. The evidence was led to prove, that the respondent, was turned out of the matrimonial home after she transferred the land in favour of the appellant/husband. This proved fact left no manner of doubt, that it was not the respondent, who left the matrimonial home, but she was in fact turned out of matrimonial home. The appellant can not take benefit of his own wrong to claim divorce. The findings on issue No. 2 also are affirmed. Finding no merit in this first appeal, it is ordered to be dismissed but with no order as to costs.