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2023 DIGILAW 559 (CHH)

Rainpreet Kaur, W/o. Kulbir Singh Chhabra v. Kulbir Chhabra, S/o. Shri Gurucharan Chhadra

2023-10-16

DEEPAK KUMAR TIWARI, GOUTAM BHADURI

body2023
JUDGMENT : (Goutam Bhaduri, J.) : 1. Challenge in this appeal is to the judgment and decree dated 26.10.2017 passed by the Family Court, Rajnandgaon, District Rajnandgaon (CG), in Civil Suit No.29A/2013, wherein, a decree of divorce is granted to the husband on the ground of desertion. The issues were framed on the ground of desertion as to whether the wife/appellant has left the husband without any lawful clause and it was answered in affirmative. In the averments made in body of the impugned order, one of the grounds of cruelty was also made, which was at the behest of the wife to the husband. The wife being aggrieved by the said judgment and decree, has preferred this appeal. 2. Brief facts of the case are that the parties were married on 29.11.2002 and out of their wedlock, a male child was born namely Sehaj Singh Chhabra. It was alleged that after the marriage, the wife hardly resided with her husband for a period of three years and since 13.8.2010, she has been residing in her parental home. It was further stated by the husband that he being the only son of his parents, had to look after them, however, the wife insisted him to live separately from them and further, according to her wishes, they resided separately but the issue did not resolve. Eventually, on 13.8.2010, a social meeting was called in a Gurudwara at Rajnandgaon at the behest of the wife and her parents. On the said date, the husband and his family members could not remain present, therefore, a subsequent date of 18.8.2010 was given to them. On 18.8.2010, the husband and his family were present but the wife and his family members were not present and thereby, all the efforts of reunion failed. Consequently, both the husband and wife have been residing separately since 13.8.2010 and on this ground, a decree of divorce was sought for. In response to the averments, the wife alleged that she was subjected to indecent behaviour and abusive language by the husband and he also used to beat her frequently but she endured all this to save her married life and continued to bear such torture and misbehaviour with a hope that one day such behavior of her husband will improve and everything will be alright. She further stated that she was left along at the old house and all the family members moved to another house and thereby, she was deserted by the husband, who extended physical and mental cruelty to her, therefore, no ground existed to grant a decree of divorce to the husband. 3. The Family Court, on the basis of pleadings, framed the issues solely on the ground of desertion. The issues so framed are reproduced hereunder : Sl. No. Issues Result 1. Whether without completing marital life with petitioner the respondent has gone to her parental home without any reasonable reason? “Proved” 2. Whether the petitioner is entitled for decree for dissolution of marriage solemnized between parties on 29.11.2002 “Proved” 3. Relief (help and litigation expenses)? In para 18 & 19 4. The husband examined himself as PW-1 and one Yashpal Singh Bhatia (PW-2), who was the Secretary of Gurudwara Samiti, Rajnandgaon, whereas, the wife examined herself as DW-1 and her father as DW-2 Darshan Singh Chawla. Apart from the above, two other witnesses were also examined. A long list of documents has been exhibited from Ex.D/1 to Ex.D/63. The learned Family Court after evaluation of the evidence available on record, passed the decree in favour of the respondent-husband. Hence, this appeal. 5. (I) Learned counsel for the appellant would submit that the evidence which has been led by the husband would show that it is because of the beatings extended by the husband and also his misbehaviour, the wife used to reside separately. He went through the statement of DW-1 -wife to submit that prior to 13.8.2010, she had been beaten severely by the husband and in consequent to which, she had to take help of Gurudwara Samiti, Rajnandgaon, wherein, a social meeting was convened. However, the husband did not turn up in the said meeting despite he and his family members being there in the city. He would further submit that the evidence of the parties would show that though suggestions were given with regard to assassinating the character of the wife but the wife only raised a doubt with regard to the character of the husband on account of his behaviour and therefore, that part of the evidence cannot be sidelined, which would lead to show that the husband was cruel towards his wife. (II) He further submits that no effort was made by the husband to bring back the wife and she was forced to leave the matrimonial house because of the torture meted out to her and therefore, it cannot be construed that the wife had deserted the husband. He further submits that the husband is a man of wealthy means and the same would be reflected from the documents produced by him, which shows that enormous immovable properties are in his hold apart from the fact that he enjoys a political clout and is in vocation of a Contractor. He further submits that an affidavit with regard to assets and liabilities has already been placed on record by the wife, however, the same has not been produced by the husband despite the directions given by this Court. He also submits that the allegations and counter allegations are of such nature that the husband and wife can never be together again but the divorce on the ground that the cruelty was at the behest of the wife cannot be sustained. He submits that considering all these aspects, the appeal deserves to be allowed and the alimony is liable to be enhanced. 6. Per contra, learned counsel for the respondent would submit that the order of the concerned Family Court is well merited. He submits that the evidence of the husband/respondent (PW-1) and Yashpal Singh Bhatia (PW-2) would show that on 13.8.2010, the appellant/wife herself left the matrimonial house along with her parents and did not return. He went through the evidence of Yashpal Singh Bhatia (PW-2), who is the Secretary of the Gurudwara Samiti, Rajnandgaon, in which, he stated that on 18.8.2010, a meeting was convened, in which, the husband and his family members were present but the wife and her family members did not attend the said meeting, which shows that they never wanted to reunite. Consequently, this goes to show that the desertion was at the behest of the wife, which has been proved. He further submits that the allegations of illicit relations was pleaded by the wife in her written statement, which also amounts to cruelty and thus, on this ground also, the husband was entitled to get a decree of divorce. Consequently, this goes to show that the desertion was at the behest of the wife, which has been proved. He further submits that the allegations of illicit relations was pleaded by the wife in her written statement, which also amounts to cruelty and thus, on this ground also, the husband was entitled to get a decree of divorce. With respect to the filing of an affidavit with regard to the assets and liabilities, learned counsel for the respondent would submit that despite instructions, the respondent did not come, therefore, the same could not be placed on record. He submits that on the whole, no interference is required in the impugned order passed by the Family Court. 7. We have heard learned counsel for the parties and and also perused the record. 8. The primary allegation on which the husband had brought the suit for divorce is on the ground of desertion i.e. on 13.8.2010, the wife had left her matrimonial home. Further allegation is that the wife used to perform some Pooja and Havan in the night on instructions from her family members and further, she had also tried to commit suicide by cutting her veins. He further stated that his son was not allowed to meet the grandparents (parents of the husband), which also caused cruelty as he was their only son. The wife in her written statement had denied the allegations levelled by the husband and instead, she attributed cruelty to her husband and also stated that she was subjected to torture and on various counts, physical assault too. She has denied the allegation that she tried to commit suicide. With respect to desertion from 13.8.2010, it was stated that on the said date, she along with her family members reached Gurudwara, Rajnandgaon but in absence of her husband and his family members, no conversation took place and subsequently, the next date of social meeting was fixed by the Gurudwara for ‘18.8.2010’, but the family members saying that they will not be able to attend the meeting along with the daughter and son every time, took her and the child along with them. On the said subsequent date, the wife and her family members could not come to Gurudwara. 9. The Family Court has framed the issues only on the ground of desertion. On the said subsequent date, the wife and her family members could not come to Gurudwara. 9. The Family Court has framed the issues only on the ground of desertion. However, while granting a decree for divorce, cruelty was also made one of the ground, on the basis of which, the decree was granted taking into the facts mentioned in the written statement. The wife alleged that the husband used to stay away at the night and the allegations are attributed to him that he had illicit relations outside their marriage. However, since no issue was framed on the ground of cruelty, detailed evidence was not adduced. 10. The evidence of the husband would show that in order to save their marriage, he resided separately from her parents for one year at the behest of the wife and further that on 13.8.2010, the wife left the matrimonial home. He also stated that she used to perform some rituals i.e. Pooja, Hawan etc in the night hours and also sprinkle rice grains on him. The wife also attempted to commit suicide several times by cutting her veins. He further stated that the his son was not allowed to meet the grandparents (parents of the husband), which also constituted cruelty. Narrating the incident of 13.8.2010, he stated that when he did not succumb to the pressure of the wife, a social meeting was convened at Gurudwara on 13.8.2010. On that day, wife along with her parents came to the Gurudwara at Rajnandgaon, however, since husband was not there in the city, he and his family members could not remain present, therefore, a subsequent date of ‘18.8.2010’ was given, however, on the said date, the wife and her family members did not turn up. 11. In rebuttal, the wife stated that after the marriage, the husband used to abuse her and on trivial issues, she was being physically assaulted. She further stated that even when she used to talk to her parents over mobile, the same was objected and indecent allegations were levelled against her, which, in turn, caused mental cruelty to her. She further stated that instead of intervening in the dispute, the family members of the husband used to provoke him to do such acts. She further stated that even when she used to talk to her parents over mobile, the same was objected and indecent allegations were levelled against her, which, in turn, caused mental cruelty to her. She further stated that instead of intervening in the dispute, the family members of the husband used to provoke him to do such acts. She further stated that she was left alone in an old house and the husband and his family members shifted to the newly constructed house, however, in order to maintain the marital relations she tolerated such behaviour on an assumption that everything would be fine in a few days and things would improve. She disclosed about the said physical assault to her father - Darshan Singh Chawla (DW-2), who requested her husband and his family members to not to assault her. In furtherance of the said fact, when she was further brutally assaulted by her husband, on 13.9.2010, she called her father and considering the seriousness of the matter, the family members decided to have a discussion at Gurudwara but on the particular date, the husband and his family members did not come there. 12. Further examination of the evidence would show that certain documents have been produced to show that the school authorities, where his son was studying, had sent certain communications vide Ex.P/2 & Ex.-P/3 to his father (respondent herein) with regard to the attendance of his son, who had not been attending the school for last 15 days. When the husband was confronted with such documents, he stated that he had made a conversation in this regard over phone with the school authorities. With respect to the date ‘13.8.2010’, which is stated to be the date of desertion by the wife, the husband admitted that on the said date, the wife along with her parents came to the Gurudwara, but he and his family members were not present on the said date and in their absence, the subsequent date of social meeting was given as ‘18.8.2010’ and on the said date, the wife and her parents did not turn up. The husband stated that it would be wrong to assert that after 18.8.2010, he had not made any effort to bring back her wife to the matrimonial home. 13. Admittedly, no application was filed by the husband under Section 9 for Restitution of Conjugal Rights. The husband stated that it would be wrong to assert that after 18.8.2010, he had not made any effort to bring back her wife to the matrimonial home. 13. Admittedly, no application was filed by the husband under Section 9 for Restitution of Conjugal Rights. The wife has stated that on 13.8.2010, she along with her family members came to the Gurudwara at Rajnandgaon to resolve the dispute between them, however, on such date, the husband and his family members did not come despite the fact that they were in the city. The Family Court has taken “13.8.2010” as the date of desertion. Whether the essence of desertion i.e. intentional permanent forsaking and abandonment of one spouse by the other without other's consent, and without reasonable cause, is on record or not is to be ascertained. 14. In the matter of Bipinchandra Jaisinghbai Shah v Prabhavati, AIR 1957 SC 176 the Supreme Court observed and discussed about “What is desertion?”. Para 10 of the said dictum is quoted below for ready reference : (10) What is desertion? "Rayden on Divorce" which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:- "Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party". The legal position has been admirably summarised in paras 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.) Vol. 12, in the following words:- "In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence". Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.' For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce; under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial some with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson, may be referred to:- "These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution............... 15. Applying the aforesaid principle to the facts of the present case, it would show that the husband alleged against the wife that she had left the matrimonial house. On the contrary, the wife alleged that because of the severe beating by the husband, on 13.8.2010, she was forced to inform her father about such facts and as such, she and her family members went to the Gurudwara to resolve the matter. This fact is also supported by the evidence of Darshan Singh Chawla (DW-2), who is the father of the appellant-wife and PW-2 - Yashpal Singh Bhatia, who is the member of the Gurudwara Samiti, which fortifies the fact that on 13.8.2010, the wife and her family members were present in the Gurudwara to resolve the issue. This fact is also supported by the evidence of Darshan Singh Chawla (DW-2), who is the father of the appellant-wife and PW-2 - Yashpal Singh Bhatia, who is the member of the Gurudwara Samiti, which fortifies the fact that on 13.8.2010, the wife and her family members were present in the Gurudwara to resolve the issue. According to Darshan Singh Chawla (PW-2), on 13.8.2010, due to absence of one of the parties, a further date of 18.8.2010 was given for convening the social meeting, but on the said date, the wife and her family members did not attend the same. The husband maintained his stand that after 18.8.2010, he made continuous efforts to bring back his wife and at the same time, the allegations of cruelty is attributed to the wife. Except the oral bald statements, there is nothing on record to appreciate that any serious attempt was made by the husband to bring back the wife. 16. In the matter of decree of desertion, the corroboration is not an important instinct, the rule of precaution is to be applied. The wife in her statement had stated that she never wanted to take divorce from her husband nor she wants to give him divorce. This statement of wife remains unrebutted. When the husband came to the Court with a plea of desertion, the conduct and expression of intention would play a relevant role both anterior and subsequent to the actual acts of separation. When there is a separation, the essential question always is whether that act could be attributable to desertion. The offence of desertion commences with the fact of separation and animus deserendi, when both co-exists. It is not necessary that they should commence at the same time but it can be gathered from the factual aspects and the evidence before the Court. When the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close, the inference of desertion can be drawn. 17. In the instant case, the statements of the husband and the wife when are read together would show that after 18.8.2010, though the husband stated that many efforts were made to bring back the wife but nothing is there on record to appreciate the same. 18. 17. In the instant case, the statements of the husband and the wife when are read together would show that after 18.8.2010, though the husband stated that many efforts were made to bring back the wife but nothing is there on record to appreciate the same. 18. In the considered view of this Court, the ground of desertion was not fully established by the husband before the Family Court to get a decree of divorce. Further, on a reading of the judgment, it would show that the Court takes into sweep the ground of cruelty primarily on the averments made in the written statement of the wife, wherein, she had stated that while they were living separately, the husband used to stay out all night, which was frequent, as he had illicit relations outside their marriage. The husband in his cross-examination admitted the fact that he used to come late in the night but it was because of the fact that he was involved in political activities and he further stated that at times, he used to come late and at times he would not. In the cross-examination of the wife, she was confronted with the question as to naming the lady with whom the husband had a relation, on which, she stated that she could not name the lady. These allegations predominantly appears to be doubting the character of the husband on the ground that he was having illicit relations with another woman as he used to come late at night frequently and the husband admitted the fact that he used to come late at night often. 19. It is a normal human behaviour and obvious that when a husband comes late at night frequently, some doubt may come in the mind of the wife and if such doubt is ventilated, the same cannot be stated to be cruelty. If the conduct of the husband was otherwise, those doubts would not have cropped in but because of the fact that by the activities doubts had been created, it cannot be stated that the allegations attributed to the husband were completely wrong but the facts would reveal that the allegations were made on account of the abnormal unexplained behaviour of the husband. Further, the husband has stated that the wife used to talk to the friends of her brother, which was objected by him. Further, the husband has stated that the wife used to talk to the friends of her brother, which was objected by him. The tenor of evidence would show that the similar was one of the doubts of the husband. In a relation between a husband and wife, the minimum standard of belief on each other should be maintained and it is not expected that the wife would talk to the outsiders according to the wish and will of the husband unless something otherwise comes to fore so as to assassinate the character of the wife. 20. In our opinion, though the issue of cruelty was not before the Family Court but the Court observed it and failed to consider these aspects with regard to such human relations or behaviour inter se. 21. For the reasons stated hereinabove, we are of the opinion that the decree of of divorce on the ground of cruelty attributed to the wife cannot be sustained. The impugned judgment passed by the Court below is set-aside. 22. Now coming to the issue of alimony, series of documents have been filed to show the husband’s assets in hold. Despite giving several opportunities by this Court, the affidavit has not been filed by the husband to show his statement of income and assets. The wife has filed an application to show that she is a Government teacher drawing salary of Rs.50203/- per month. The husband had filed various documents before the Family Court to prove that he is engaged in business of Contractorship and various tax receipts pertaining to his business have been filed in this regard. Apart from those documents, which are placed on record, it is further stated by the husband that he is contesting some elections. He had also given a list of properties , which shows that as many as 26 immovable properties are owned by him at different places including agricultural and non-agricultural properties and certain mines are also there on lease. 23. At this juncture, it came to know to the notice of this Court that the parties filed the applications i.e. I.A. No.3 & I.A. No.4 under Section 13-B of the Hindu Marriage Act, 1955 for mutual divorce. Considering the facts & circumstances of the case, inspite of deciding the applications, we deem it appropriate to pass the order on merits. At this juncture, it came to know to the notice of this Court that the parties filed the applications i.e. I.A. No.3 & I.A. No.4 under Section 13-B of the Hindu Marriage Act, 1955 for mutual divorce. Considering the facts & circumstances of the case, inspite of deciding the applications, we deem it appropriate to pass the order on merits. Consequently, both the applications are dismissed as of now as no settlement is arrived at between the parties. However, the parties would be at liberty to make an application under the Hindu Marriage Act, 1955, if so advised, or any fresh cause of action accrues in future. 24. While granting maintenance, in the matter of Rajnesh Vs. Neha & Another { (2021) 2 SCC 324 }, the Supreme Court has held that equity should be taken into consideration. It held thus at para 81:- 81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meager that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort. 25. The Court further laid down the guidelines for granting alimony where the wife is working and held thus in para 90 which are reproduced:- 90. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments. 90.1 In Shailja v Khobbanna { (2018) 12 SCC 199 }, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival. 90.2 In Sunita Kachwaha v Anil Kachwaha { (2014) 16 SCC 715 } the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance. xxx xxx xxx 26. Applying the aforesaid principles in the facts of the instant case, since perusal of the record would show that the wife is working as a Government Teacher. The husband is a contractor and also having many properties which shows the financial capacity of husband. The son is staying with the mother. In such circumstances to avoid the multiplicity of proceedings, we are inclined to hold that the wife is entitled to get Rs.45,000/- per month from the appellant towards maintenance. It is ordered accordingly. 27. As a result, the appeal is allowed and the order dated 26.10.2017 is set aside. 28. A decree be drawn accordingly.