Amarjit Kaur vs Sarup Singh

Sarojnei Saksena, J.—Appellant wife has assailed the judgment and decree passed by the trial Court in HM Case No. 43/13 of 1987 whereby her petition filed u/s 13 of the Hindu Marriage Act (for short ''the Act'') for dissolution of marriage by a decree of divorce has been dismissed on 1.12.1987.

Unassailed facts are that the petitioner-appellant was married to the respondent on 29.11.1980. Thereafter they lived under the same roof in village Aluna till August 1982 and discharged their matrimonial obligations. In January, 1983 the petitioner-appellant gave birth to a daughter in this wedlock at her parental home in village Majri, but the child breathed her last immediately after her birth.

The petitioner-appellant has filed this petition on the ground of desertion and cruelty. According to her, respondent''s behaviour was very cruel towards her from the very beginning as he was not satisfied with the dowry given at the time of marriage. He used to quarrel with her for bringing insufficient dowry. She tried to adjust with her utmost capacity and tolerance. In May, 1982 the respondent met with an accident. He was admitted in the Hospital from where he was discharged after 3 months. After coming back to the matrimonial home, the respondent turned her out therefrom though at that time she was in the family way. In January, 1983 after the birth/death of the daughter, she sent an information to the respondent, but none from his house came to see the petitioner. She is living in her parental home since August, 1982. Her parents made many efforts to rehabilitate her, but they all proved abortive. Thus the respondent has withdrawn from her society since August 1982 without any reasonable excuse. On these counts the decree for divorce was prayed for.

The respondent denied inter alia that he ever behaved cruelly with her or he turned her out from the matrimonial home in August, 1982. According to him after having been discharged from the Hospital when he reached matrimonial home, the petitioner-appellant candidly told him that now he has become unfit due to the in-juris sustained by him. She would not live with him. He entreated her not to leave him at that hour of need, but breaking the shackle of marriage, she went to her (sic) rental home against his wishes. After the birth of the child, he tried to bring her (sic)k, but she declined. Thus she is guilty of desertion and she cannot take advantage (sic)er own fault.

Parties adduced evidence in support of their pleading. Scanning the evidence very minutely, the trial Court held that she has failed to prove that the respondent has treated her with cruelty or he has deserted her. Thus the petition (sic)as dismissed.

The appellant''s learned counsel contended that the appellant has categorically stated that the respondent is of quarrelsome nature. He used to demand more dowry and since she was unable to accede to his demand, he maltreated her. She has testified that after the accident he remained admitted in the Hospital for 3 months. When he came back from the Hospital, he and his parents asked her to bring money from her parents to meet the expenses of treatment. Since she failed to render the financial assistance to the respondent, he turned her out of his house, though at that time she was pregnant. After the birth/death of her child, none from her matrimonial home came to console her. She is duly corroborated by her brother''s testimony (Nirmal Singh PW-2).

The appellant''s learned counsel further pointed out that the respondent has given statement against his own pleadings. On oath he has stated that after the accident he was in the Hospital for 5/6 months. He has also stated that when he was in the Hospital, the appellant never came to see him though his father Nachhattar Singh (RW-2) has categorically admitted at that time, the petitioner-appellant had been going to the Hospital to see him. Even her brother stayed in the Hospital with the respondent for about 15 days. According to the learned counsel, the respondent has further stated that when he was in the hospital, he does not know where the appellant was residing. He has assigned its reasons that in the hospital, he was unconscious and when he came back to his house even then for one or two months he was not in his senses. He is negated by his father Nachhattar Singh (RW-2) who has clearly stated that the respondent was in senses throughout his stay in the hospital and also when he came back to his house. He also admitted that the petitioner-appellant stayed in the matrimonial home for 5/7 days after the respondent came back from the hospital. He has stressed that from the parties'' evidence, it is evident that after coming back from the hospital, as the appellant could not arrange money for treatment, he turned her out of the matrimonial home and since then she is living in her parental home without any assistance from the respondent, thereby she has proved that not only the respondent has behaved cruelly with her, but also he is guilty of desertion. Factum of desertion is admitted by the respondent. From his proved conduct, animus deserendi is also proved.

None appeared on behalf of the respondent at the time of arguments in this Court.

From the statements of the respondent and his father, it is evident that after the accident, the respondent has become a handicapped person. He is now hemiplegic. Both these witnesses have clearly stated that when he came back from the hospital, she told him in unequivocal terms that now she cannot live with him as he is a crippled man. He is not fit to do any thing and thereafter against his wishes and without obtaining his consent, she left for her parental home. The appellant herself has admitted that her younger sister married to respondent''s brother has obtained divorce in Panchayat.

Martial tie is to be respected by both the spouses. The bondage between them should be so thick that they should be ready to enjoy the pleasures and suffer afflictions of life standing side by side. Wedlock should not be a dead-lock. They should live in harmony not antimony with real concern for each other. They should demonstrate tolerance with sense of reciprocity.

The appellant''s learned counsel has relied on Prem Wati v. Ranbir Singh 1987 MLJ 236 to propound that the respondent is guilty of constructive desertion. But in my view the appellant is not benefited by this authority. Every decision is based on its own facts and circumstances. While deciding matrimonial cause, totality of the facts and circumstances is to be taken into consideration keeping in view the status in life, educational qualifications and family background etc. of the parties. The appellant could not prove any episode or incident of alleged cruel behavior of the respondent. There may be ordinary wear and tear of married life which she is expected to tolerate. It is also apparent on record that after the incident when the respondent become paralytic and a handicapped person, she forsook him as according to her he is not fit to do any thing. That proves the mental frame of the appellant about the concept of marriage and feeling of "Living together". There was no point much less a legal one in leaving him in the lurch when he needed her maximum physical and moral assistance. It is also proved that she has left the matrimonial home on her own. In the trial Court, she has clearly stated that she does not want to go to the matrimonial home. That proves her firm determination not to rejoin the respondent. Under these proved facts and circumstances, it cannot be held that the respondent has behaved with her cruelly or he is guilty of desertion or constructive desertion. She cannot take advantage of her own wrongs. Accordingly in my view, the trial Court has not committed any error in rejecting the petition for divorce on both the above counts.

Consequently, appeal being meritless, is hereby dismissed.