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2009 DIGILAW 62 (PNJ)

Nachhatro Alias Asha Kumari v. Naib Singh

2009-01-12

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. The marriage between the parties was solemnised, as per Hindu rites and ceremonies, on 28.5.1981. The respondent-husband filed a petition for dissolution of the marriage, by a decree of divorce, on allegations which may be indicated as under :- 2. After having cohabited at the matrimonial house for sometime, the appellant-wife went over to her natal house. After a stay of a week over there, she returned to the matrimonial house and stayed over for about two months. However, no issue was born out of the union of the parties. 3. The appellant would always pick up a quarrel with the respondent and other members of his family, on one pretext or the other, and would always announce her intention to separate from the family. That sentiment of her was not agreed upon by the petitioner as he has aged parents and is duty bound to serve them. Appellant would also tell the respondent and members of his family that she comes from a very rich family where very high standard of living was maintained and that mediator in the marriage had cheated her by getting her married into a poor family to which the respondent belongs. The appellant also told the respondent that the latter was impotent and that she would not stay with him any longer on account of his inability to procreate. After a stay of about 2-3 months at the matrimonial house, she again went over to her natal house where she stayed over for a period of about 1-1/2 years. She returned to the matrimonial house with the repeated intervention of the Biradari, in the month of June, 1983, when the marriage of two sisters of the respondent was solemnised. On that visit, the appellant stayed over at the matrimonial house for a period of about 5-6 months whereafter she again went over to her natal house in the month of January, 1984. She has not returned to the matrimonial house thereafter, inspite of repeated requests in the relevant behalf. On that visit, the appellant stayed over at the matrimonial house for a period of about 5-6 months whereafter she again went over to her natal house in the month of January, 1984. She has not returned to the matrimonial house thereafter, inspite of repeated requests in the relevant behalf. Even during the stay of 5-6 months at the matrimonial house, she would always quarrel with the respondent and other members of his family, she would maltreat her aged mother-in-law and would not provide two square meals to her and she was in the habit of announcing that she would abandon the matrimonial house on account of the inability on the part of the respondent to procreate. 4. On the above foundational premise, the respondent-husband applied for the grant of a decree of divorce on plea of cruelty and desertion. 5. The appellant denied the allegations of the respondent. She alleged that the present petition deserves to be dismissed as it had been filed after an unexplained delay of 11 years. On facts, the appellant alleged that she never picked up quarrel with the respondent or the other members of his family but that she was belaboured by the respondent and other members of his family who were not satisfied with the adequacy of the dowry brought by her. It was averred in the context that, on one particular occasion, two sisters and a son of Shiv Ram belaboured the appellant and tried to set her afire, with the help of certain others. The appellant could save herself by going over to the roof of the house. The occurrence was witnessed by the entire village. It was thereafter on the following day that Shiv Ram (father of respondent) and his two sons Gian Singh and Tejvir fetched the appellant to her natal house and left her there only. It was further averred that it was Prem Lata, a sister-in-law of the appellant, who used to provide money to the respondent for taking liquor and it was at her asking and at the instance of his mother that the respondent would belabour her after bolting the door from inside. She averred that she had been brought to the matrimonial house just in order to avoid social stigma. It was during that period (of her stay at the matrimonial house) that father of the respondent obtained a sum of Rs. She averred that she had been brought to the matrimonial house just in order to avoid social stigma. It was during that period (of her stay at the matrimonial house) that father of the respondent obtained a sum of Rs. 3200/- from her father on the pretext of paying instalment for the purchase of a tractor. That amount was never returned by the father of the respondent to the father of the appellant. The trial proceeded on the following issues :- "1. Whether the petitioner is entitled to the decree of divorce on the grounds of cruelty and desertion, as alleged ? OPP 2. Relief" 6. The learned Trial Court recorded a finding of fact that the respondent- husband had not been able to prove that the appellant-wife had treated him with cruelty. However, the allegation of the respondent-husband on point of desertion was upheld. The Trial Judge noticed a plea on behalf of the appellant-wife for dismissal of petition as having been filed by unexplained delay. The averment was negatived by observing that the respondent validly delayed the filing of petition to await the outcome of the prosecution under Section 498-A IPC which the appellant-wife had launched against him. 7. I have heard Mr. S.K. Dalal, learned counsel for the appellant and Mr. S.K. Garg Narwana, learned counsel for the respondent and have been through the record. 8. Learned counsel, appearing on behalf of the appellant-wife, argues that the finding on point of cruelty deserves to be invalidated in view of the fact that there is clinching evidence available on record to prove that the appellant had been subjected dowry-related torture and she had been repeatedly thrown out of the matrimonial house after having been belaboured. The plea deserves to be merely noticed to be discarded. 9. In the context, learned Trial Court noticed that the allegation levelled by the respondent-husband was only indicative of what could be safely termed as normal wear and tear of married life. It is apparent from the record that the respondent had not been able to indicate any precise instance of required level of gravity which could invite a charge of cruelty against the appellant-wife. It is apparent from the record that the respondent had not been able to indicate any precise instance of required level of gravity which could invite a charge of cruelty against the appellant-wife. It was appropriately noticed by the learned Trial Judge that the attribution that the appellant accused the respondent to be impotent was an after thought because no such plea had been taken up in the course of written reply which the respondent-husband had been filed in the proceedings under Section 125 Cr.P.C. A copy thereof is available on record as Ex. R/1. If a wife accuses her husband of impotence, the latter is not likely to forget it and there is no reason why he would not raise that plea in the counter filed in the proceedings under Section 125 Cr.P.C. 10. Insofar as the allegation about the attempted setting of the appellant afire is concerned, it was only supported by the self-serving statement of the appellant herself. Insofar as RW-2 Labh Singh and RW-3 Ajmer Singh are concerned, they did not even utter a word which could be said to be relatable to the allegation in that behalf. 11. However, insofar as the plea of desertion is concerned, it is proved by the conceded position that the appellant-wife is staying away from the matrimonial house for the last more than 11 years. She is not averred to have filed a plea under Section 9 of the Hindu Marriage Act during that period. In the normal course of things, the parents of an estranged bride would go whole-hog to explore all possible avenues of reconciliation with the bridegroom side. The effort in that behalf could be in the form of filing of a petition under Section 9 of the Hindu Marriage Act or by securing the services of Biradri Panchayat or respectables. Though the appellant-wife testified on oath that she is still willing to live with the respondent, the circumstances available on record are not supportive of the genuineness of that offer made by her, particularly when it is common ground that the petition filed by her under Section 125 Cr.P.C. and also a complaint filed by her Section 498-A IPC, is still pending consideration of the Court. In the light of that conduct on the part of the appellant-wife, it can be justly said that she had no reasonable ground to stay away from the matrimonial house. The finding recorded by the learned Trial Judge on point of desertion shall stand upheld. 12. The finding upholding the plea of respondent-husband on point of desertion notwithstanding, the riddle is not solved for the respondent who has not been able to explain why this petition was filed after delay of 11 years. 13. It is apparent from a perusal of Section 23 of the Hindu Marriage Act that before a decree is passed in any proceedings for divorce under this Act (whether defended or not), the Court has to be satisfied that there has not been any unnecessary or improper delay in instituting the proceedings. As a necessary corollary thereof, the Court would be entitled to decline the relief to the petitioning party if it is found that the plea for divorce had been filed after (unexplained and) unreasonable delay. 14. The only explanation offered by the respondent-husband in the context is that he delayed the filing of the petitioner to await the outcome of the prosecution under Section 498-A IPC which had been launched against him by the appellant-wife. That explanation was accepted by the learned Trial Judge for thoroughly unsustainable reasons. It is not even the plea on behalf of the respondent-husband that the proceedings under Section 498-A IPC have concluded till date. On the other hand, the appellant-wife testified on oath that the petition filed by her under Section 125 Cr.P.C. and also the complaint filed by her under Section 498-A IPC against the husband are still pending. That part of the statement was not challenged in the course of cross-examination. The respondent also did not place on record any copy of the order which could indicate the conclusion either of the above two proceedings. Apart therefrom, it is plainly illogical on the part of the respondent-husband to have justified the delay of 11 years in filing of the petition just on account of pendency of above two litigation against him. 15. This part of the controversy has to be appreciated in the light of the following facts :- As per the statement of the respondent-husband, the appellant-wife is residing at her natal house since the year 1984. 15. This part of the controversy has to be appreciated in the light of the following facts :- As per the statement of the respondent-husband, the appellant-wife is residing at her natal house since the year 1984. She filed the private complaint against the respondent and members of his family in the year 1983. Initially, it was in the year 1988 that the appellant-wife is alleged to have accused the respondent to be impotent. It is in the statement of the respondent-husband that she told Satpal in the month of May and June, 1983 that the respondent is impotent. Apart therefrom, the respondent conceded having refrained from mentioning that fact in the course of the counter filed by him in the course of proceedings under Section 125 Cr.P.C. The idea of reproducing these record-based facts is to indicate that, on the own showing of the respondent, it had become clear to him long ago that the appellant had been acting mala fide and in an unjust manner vis-a-vis him and she did not appear to have left any scope for resumption of the matrimonial relationship by having labelled the respondent as impotent and by his launching two proceedings (one under Section 125 Cr.P.C. and other 498-A IPC). In this view of things, he cannot be said to have acted bona fide in delaying the filing of the present divorce petition for a period of 11 years. In that view of things, it is apparent that plea taken up by the respondent to explain the delay in filing of the petition is a plain lie and a ruse to get over the provisions of Section 23 of the Hindu Marriage Act. 16 Reliance placed by the Trial Judge upon 1991(1) S.L.J. 171 in support of that finding is thoroughly misconceived. The tenor of language recorded by the learned Trial Judge in the context would indicate that delay in filing of the petition was validated by the judicial pronouncement reported as Om Parkash Dhawan v. Meena Dhawan, 1991(1) S.L.J. 171. In fact, nothing of the sort was held by the Division Bench of this Court in Om Parkash Dhawans case (supra). That was a case in which the Trial Court held that the wife had not been able to produce any cogent evidence to justify her living separately from the husband. She was, accordingly, held guilty of a charge of desertion. That was a case in which the Trial Court held that the wife had not been able to produce any cogent evidence to justify her living separately from the husband. She was, accordingly, held guilty of a charge of desertion. That finding was reversed by the learned Single Judge by holding that the record indicated that she had been compelled to live away from the matrimonial home because of husbands unwillingness to keep her. It was further recorded that there was evidence to prove that there was no intention on her part to end co-habitation. Apart therefrom, the learned Single Judge also found that there was unexplained delay of more than seven years in filing of the petition. The learned Single Judge reversed the finding recorded by the learned Trial Judge on merits and also on account of delay. The latter finding was contested on a plea that no issue in the context had been framed and in the absence of an issue on that point, the divorce petition could not have been dismissed. This Court held that even if there was no issue to that effect, a plea to that effect had instead been taken in the written statement and that averment had been contested in the replication too. It was further held that the provisions of Section 23 of the Hindu Marriage Act require the Court "to be satisfied that there has not been any unnecessary or improper delay in instituting the proceedings." This Court further observed that a duty was thereby cast upon the Court "to see that there was no proper delay even if, the proceedings were not defended by the party." Thus, this Court had only reiterated the law apparent from provision itself. This Court nowhere validated the delay of seven years in filing of the petition in that case. The learned Trial Court inappropriately relied upon that ruling in support of the finding. 17. The view obtained by the learned Trial Judge in the context is perverse and thoroughly unsustainable. It (view) is also not reflective of responsible and appropriate appreciation of facts at the hands of the learned Trial Court. A litigation under the Hindu Marriage Act, obviously, not only affects the personal relationship between the parties, it also has momentous emotional affect on the offsprings of the union and other segments of the family. It (view) is also not reflective of responsible and appropriate appreciation of facts at the hands of the learned Trial Court. A litigation under the Hindu Marriage Act, obviously, not only affects the personal relationship between the parties, it also has momentous emotional affect on the offsprings of the union and other segments of the family. In that view of things, the handling of a litigation under the Act calls for a more mature and transparent handling in the matter of appreciation of evidence by a Court. In the light of fore-going discussion, the appeal shall stand allowed. The upholding of the finding on point of desertion notwithstanding, the petition filed by the respondent-husband shall stand dismissed as having been filed after unnecessary and improper delay.