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2010 DIGILAW 3411 (PNJ)

Amarjit Singh S/o. Teja Singh v. Jasbir Kaur W/o Amarjit Singh

2010-12-24

K.KANNAN

body2010
Judgment K.Kannan, J. 1. The appeal is filed against the decree of dismissal for divorce filed by the husband on the grounds of desertion and cruelty. Both the grounds were found against the husband and his petition was dismissed. Aggrieved, the appellant has challenged the findings of the lower Court. 2. Even before adverting to the merit of the case, It becomes necessary to also address the issue of want of jurisdiction as found by the trial Court. In this case, the husband had filed the petition for divorce before the District Court, Faridkot earlier and the petition was dismissed as withdrawn in January, 1999 when the parties compromised the matter and started living at village Toot. It was this joint living which according to the petitioner that gave him the right to prosecute the case before the District Court at Ferozepur. The Court held that there was no proof that the husband and wife cohabited at the village Toot and found therefore, that the Court at Faridkot had no jurisdiction to file the petition. I am of the view that it is wrong for a Judge to find the issue of jurisdiction against the person and at the same time also enter the findings on the merits of the case. The issue of territorial jurisdiction must be taken up as far as possible at the earliest and if a petition was taken in the reply that the particular Court does not have jurisdiction, the trial Court must take a decision on that on the basis of material available before it or if it is necessary that any oral evidence must be let in to determine the issue of jurisdiction, it should be taken up as preliminary issue. It will be wrong for a Court to take up the issue of territorial jurisdiction along with other issues and decide that the Court did not have a jurisdiction to entertain the petition and at the same time also adjudicate on the merits of the claim. I do not want to detain the case for consideration on the issue of jurisdiction and take the Court before which the case was filed as having the requisite jurisdiction and I will proceed to examine the merits of the case. 3. I do not want to detain the case for consideration on the issue of jurisdiction and take the Court before which the case was filed as having the requisite jurisdiction and I will proceed to examine the merits of the case. 3. As regards the claim by the husband that the wife was guilty of cruelty, the instance of cruelty were general in nature namely that the parties were previously married and one spouse was a widow, the other was a divorcee. Both of them have children through their respective spouses through their earlier marriage. It was also an inter caste marriage and differences in caste which were not predominant at that time when they contracted the marriage came to surface and they saw themselves at loggerheads on minor issues. The general allegation made by the husband against the wife was that he was not employed while she was employed in government service and she was arrogant. He would also complain that she did not respect his parents and would also state that she did not wash his clothes or was not prepared to cook for him. Social habits are changing and the modes of adjustment between spouses would also require to be changed. The conventional stereotyping of women as persons who should be cooking at all times and 1 be washing clothes for husband, must be seen in the present social context, where the women are getting employed. They may have relatively lesser time to devote for cooking or they may have little time doing the typical household chores of a woman, who is otherwise not employed outside. To a working woman, her duties are confined not to I merely to take care of the household. In situations, where the wife also goes for employ- ment, it might require a greater sense of adjustment by the husband and he may also have to be more resourceful and participative in the household chores. I do not take any of these grounds alleged by the husband that she is disrespectful to him or does not treat his parents properly or she does not cook or wash clothes as instances of cruelty. On the other hand, I will find that these allegations cannot find a cause of action for complaints at all. 4. I do not take any of these grounds alleged by the husband that she is disrespectful to him or does not treat his parents properly or she does not cook or wash clothes as instances of cruelty. On the other hand, I will find that these allegations cannot find a cause of action for complaints at all. 4. Even the allegation by the husband that the respondent wife had filed the complaint before police for offences under Section 498-A IPC, I will not take that to be a ground to constitute cruelty. There have been cases where false complaints to police have been taken as causing mental cruelty. If a false complaint is given and an adjudication is undertaken and the Court has given a finding that it was false, perhaps it will be justified for a person to complain that there is a mental cruelty. In this case, the complaint which has been filed by the wife in P.S. Sadar, Ferozepur was still pending and at the time when the trial was in progress, there had been no final adjudication on the criminal complaint. The mere pendency of Criminal case or complaint could be taken as grounds constituting cruelty. I will, therefore, reject the plea of the husband that the wife was being guilty of cruelty. 5. As regards the contention of the husband that there was a desertion for a period of more than two years prior to his filing of the petition, in my view, such a contention cannot be entertained at all. Admittedly, the husband had filed a petition for divorce earlier in another court and it was withdrawn when the parties decided to bury the hatchet and live together. The petitioners own averment in the petition was that they were starting to live together at the place in Toot and the earlier petition had been dismissed as withdrawn on 29.01.1999 only when both the parties decided to live together. It is also the admitted case that they were living together for nearly three to four months and according to the husband, even during their resumed cohabitation, the wife was not behaving properly and she had left the matrimonial home. It is also the admitted case that they were living together for nearly three to four months and according to the husband, even during their resumed cohabitation, the wife was not behaving properly and she had left the matrimonial home. A resumed cohabitation will put an end to the period of separation that they had already undergone and the cause of action will arise only from the date when the wife had alleged to have left the matrimonial home without any justification subsequent to the resumed cohabitation. The husband is not entitled to take earlier period of separation as constituting the cause of action for him to apply to the Court for divorce on the ground of desertion. 6. The petition for divorce cannot, therefore, succeed both on the grounds of cruelty or desertion. The trial court has considered the matter correctly and in my view, there is no scope for intervention in appeal. 7. The appeal is dismissed.