Amarjit Kaur vs Babu Singh

J.V. Gupta, J.—This appeal on behalf of the wife, is directed against the decree of divorce passed by the Additional District Judge, Sangrur, dated 27.2.1987.

The marriage between the parties was solemnised on 7.3.1968. However, the Muklawa ceremony took place in the year 1975. Out of this wed lock a daughter was born the year 1976. Parties separated in the year 1980 and the present petition was filed on 11.9.1986 by the husband Babu Singh. He sought a decree of divorce on the ground of cruelty and desertion on the part of his wife Smt. Amarjit Kaur. It was alleged by him that his wife insisted upon living separately and wanted that he should live separately from his parents and not in a joint family with his father and other members of his family. According to him, she did not provide any food to him and she used to insult him in the presence of the relatives and other family members. Earlier in the year 1978, she went away to her parents'' house and had not come to join him. He then convened a Panchayat and took the same to the Respondent to fetch her; whereupon she came to live with him but again started maltreating him She went away again without any sufficient cause in December, 1980. According to the husband, he again convened a panchayat in the year 1985 but at that time, she refused to accompany him.

In the written statement, the wife denied that she ever malterated her husband. She also denied the allegations that she ever asked her husband to live separately from her parents and to live separately with her According to her, it was the husband who used to say that she was not good looking and that her behaviour was not good and had been tolerating all this. Ultimately, she was thrown out of the house by the husband and she never deserted him, as alleged. Nirpal Singh maternal uncle of the wife convened a panchayat and pursuaded the husband to take her back but he refused.

On the pleadings of the parties, the trial Court framed the following issues:

Whether the Respondent has treated the Petitioner with cruelty ? if so, its effect ? OPP

Whether the Respondent has deserted the Petitioner ? OPP.

3 Relief.

Both the issues were discussed together. The learned Additional District Judge, came to the conclusion that no evidence has been brought on record that the wife ever malterated the husband as alleged by him. However, a decree of divorce was passed on the ground that it has been proved that the wife has deserted him for the last 7/8 years without any sufficient cause. Consequently, the marriage was dissolved by a decree of divorce.

At the time of motion hearing, efforts were made for reconciliation. Ultimately, on 1.9.1987, the Court recorded that "We have calked to the parties. There are no chances of reconcilliation. Admitted."

The learned Counsel for the Appellant (wife) submitted that she is prepared even to go now with her husband to live in the matrimonial home. According to the learned Counsel, the two sisters of the wife are also married to the two brothers of the husband and they are living happily and, therefore, there was no question on her part to desert her husband as alleged by him. According to the learned Counsel, the learned Additional District Judge, has not appreciated the evidence properly and has given no finding that in what manner the wife has deserted the husband. The mere fact that they were not living together for the last 7/8 years before the filing of the petition was itself no ground for granting the divorce. According to the learned Counsel, in order to prove desertion, the husband must prove the element of desertion independently. The mere fact that the parties were living separately was no ground to hold that it amounted to desertion on the part of the wife.

On the other hand, the learned Counsel for the Respondent submitted that when the parties were living separately for the last 7/8 years any there was no chance of any reconciliation, it was a fit case for divorce. According to the learned Counsel, when the other two sisters of the wife are living happily with the two brothers of the husband, this itself shows that the fault, if any, was that of the wife. Moreover, argued the learned Counsel, the trial Court believed the testimony of the witnesses produced by the husband and, therefore, the finding arrived at should not be interferred with in appeal

I have heared the learned Counsel for the parties and have also gone through the relevant evidence on the record.

From the evidence on record, it could not be successfully argued on behalf of the husband that a case was made out for desertidn as contemplated u/s 13 of the Hindu Marriage Act. Admittedly the marriage was solemnised as far back in March 1968; whereas the petition for divorce was filed in September, 1986, that is, more than 18 years thereafter. Admittedly, a daughter was born in the year 1976 out of this wed lock and she is living with her mother. No cogent explanation could be afforded on behalf of the husband as to why the wife did not want to live with him. It is the husband who does not want to keep her with him at any cost. This shows that the fault, if any, was that of the husband and not that of the wife. For proving desertion, the mere fact that the parties were living separately for 7/8 years was itself not sufficient. The husband should further prove that the wife had not intention to live with him when she parted company. This evidence is missing in the present case. It is more so when the wife even now was prepared to go and live with her husband.

It may be observed that the divorce is not to be granted simply on the ground that the husband and wife were living separately for about 7/8 years before the filing of the petition for divorce. There must be cogent evidence on the record to prove that the wife had no intention to join the matrimonial home after she parted company. In this case that element is absolutely missing. In these circumstances, the finding arrived at by the learned Additional District Judge is liable to be set aside. Consequently, this appeal succeeds, the decree of the trial Court, is set aside and the petition for divorce is dismissed with no order as to costs.