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2010 DIGILAW 3191 (PNJ)

Ajay Pal Singh Johl v. Meera Johl

2010-12-01

K.KANNAN

body2010
Judgment K.Kannan, J. 1. The husband, who was unsuccessful in his prayer for divorce on the ground of cruelty and desertion, is the appellant before this Court. 2. The petitioner and the respondent had married outside their respective castes on 14.10.1984. They were students in the same college and had known each other. The caste differences which were not predominant during their courtship came to surface a little later when according to the husband, the wife was carrying her caste superiority and her pandit-mentality and treated him badly pointing out to his inferior status. The husband would complain that she would wash the kitchen and utensils if he went into the kitchen. She would constantly taunt him that he was no good architect and he knew nothing on the subject. The other attributes of cruelty were that she abused him openly in the presence of his friends and would refuse to make coffee or tea when asked to serve them with refreshments. Unable to bear the uncivility of her behaviour, he had to leave the matrimonial home and they are living away from each other ever since 1992. The petitioner would contend that the wife had several morbid habits like taking sleeping pills and given to drinking which was not liked by him. The husband had attempted to bring a reconciliation while at Gurgaon in the year, 1993, but the wife had literally ejected him out of the house. They had a child through the marriage but the petitioner would contend that he was not allowed to meet with the child. The petition had been filed on 22.04.1997 complaining of desertion by wife of separate living for more than 2 years prior to the filing of the petition. 3. In support of his contention that the wife had treated the husband badly before his friends, the petitioner examined one Rohit Jain and Sudhir Sud. Rohit Jain stated that he had visited the house of the petitioner and the respondent in January, 1991 and when the petitioner had asked the wife to serve them tea, she refused to extend the courtesy. Rohit Jain stated that he had visited the house of the petitioner and the respondent in January, 1991 and when the petitioner had asked the wife to serve them tea, she refused to extend the courtesy. The other event, which he spoke to, was some insulting remarks which the wife had made on the 4th of July, when their friend Sud celebrated his birth day and invited his friends including the petitioner and when the discussion was about the architectural plans of the house, the wife had remarked that her husband did not know even the ABC of architecture. PW3 Sudhir Sud spoke about the alleged incident in the year, 1992 when in the evening of November, 1992, when he went to the house to collect money, a quarrel was taking place between the petitioner and the respondent in the verandah and the respondent was abusing the petitioner. He stated that the petitioner took his attachi case and was saying that he was driving away in the maruti car, when the wife reminded him that even the maruti car did not belong to him and he could not take the car away. 4. The evidence of both these witnesses was not believed by the trial Court and the Court reasoned that the incidents of cruelty attributed to the wife were not so expressly stated in the pleadings and the evidence was not therefore believable. 5. A third party coming to the house to find husband and wife quarrelling with each other could never be taken as instance of proof of cruelty of one against the other. A quarrel invariably is a two way affair. The husband and the wife having heated exchange ought not to itself be taken as a cruel act by the wife to her husband or vice-versa. A matrimonial living invariably goes through many a tumble and petty quarrels in a matrimonial framework cannot be taken as cruel acts by one against another. Even a complaint by husband that wife was not making tea or coffee ought not to be stated as instance of proof of cruelty. There have been, however, some cases which have recorded such incidents as expression of cruelty but we must realize that times have changed. Even a complaint by husband that wife was not making tea or coffee ought not to be stated as instance of proof of cruelty. There have been, however, some cases which have recorded such incidents as expression of cruelty but we must realize that times have changed. If at the asking of the husband, wife would not make a coffee or tea, a man shall be resourceful enough to make coffee or tea and not complain this to be aa instance affording to him a ground of divorce. Sharing the household chores shall be the new watchword. A husband that expects the wife to work or make an earning shall learn that a woman that goes out for work and comes back shall, have a right to expect and demand same civilities from the husband that he expects from her. A lady in the house is not the only person to take care of the house. It just as well shall also be the duty of a husband. It is time that we take stock of social realities and stop complaining that a wife who does not make tea commits a matrimonial wrong. At any rate, it simply cannot be taken so seriously as to afford to a spouse as a ground for sequestering family relationships. It is demeaning to womanhood to stereo-type a woman as being suitable only to kitchen. If that was the only role that a woman could at all times fulfill, Forbes list of the most influential women in the planet would cease to exist. In the field of politics, as in corporate houses and so too, in the fields of science and arts, and why, in every human endeavour, women are vying for equal space with men. In a matrimonial proceeding, a husband shall shed this excuse of wife not making coffee or tea as an instance of cruelty. 6. I find even the plea of desertion to be untenable. A desertion is an event where the spouse against whom such a complaint is made, has withdrawn herself from the matrimonial household with an intention to separate. A situation where a wife stays in the matrimonial house and the husband removes himself from the house complaining of disharmony cannot urge desertion as a ground. In such a situation, it is the husband that deserts the wife and not vice-versa. A situation where a wife stays in the matrimonial house and the husband removes himself from the house complaining of disharmony cannot urge desertion as a ground. In such a situation, it is the husband that deserts the wife and not vice-versa. In this case, the near relatives of the husband have testified in favour of the wife that there is nothing amiss about the conduct of the wife. 7. Counsel for both sides have relied on extensive authorities on the issue of cruelty and desertion. The learned counsel for the appellant refers to a judgment of the Honble Supreme Court in A. Jayachandra v. Aneel Kaur, 2005 A.l.R. (S.C.) 534 that dealt with meaning of cruelty and granted a divorce of irretrievable break down of marriage. Learned counsel also argues that the parties have been living away from each other since 1993 for the last more than 17 years and there has been no resumption of matrimonial ties. He would contend that the marriage has become stale and irretrievably broken down. It must be remembered that this ground is available exclusively only for the Honble Supreme Court in its power under Article 142 of the Constitution. A recommendation by the Law Commission to add irretrievable break down of marriage is still under legislative anvil and has not been made as law. The Supreme Court itself explained in Anil Kumar v. Maya Jain, 2009(10) S.C.C. 415, that the Supreme Court shall have the power to invoke Article 142 in order to do complete justice to parties when faced with the situation where marriage ties are totally broken. The other courts are not competent to pass a decree on such a ground. The Court ruled, "the doctrine of irretrievable break down of marriage is not available even to the High Courts which do not have the powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. The other courts are not competent to pass a decree on such a ground. The Court ruled, "the doctrine of irretrievable break down of marriage is not available even to the High Courts which do not have the powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the Civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Section 13 or 13-B." In yet another judgment in Vishnu Dutt v. Manju Sharma, 2009(6) S.C.C. 379, the Supreme Court held that even a decree granted by the Honble Supreme Court on the ground of irretrievable break down of marriage cannot be taken as a legal precedent for a subordinate Court to follow. 8. Under the circumstances, I cannot accede to the plea of the counsel appearing for the appellant that a decree for divorce shall be given only on the ground of the parties living away from each other for more than a decade and that there shall be no purpose served by retaining ties of marriage. What a Court cannot do, under the circumstances, cannot still be denied to the parties if they mutually so agree. Both parties are highly qualified professionals and ought to know how to resolve this tangle. It is again a social reality that a wife does not always easily forsake her matrimonial status in Indian social conditions. The surname of a husband still gives respectability and provides to her a protective ring. Sometimes, it becomes even difficult to find a suitor for a daughter if the mother is a divorcee. I cannot also discard these realities of life. 9. The decree is confirmed and the appeal is dismissed.