Baljit Kaur vs Rachhpal Singh

V.K. Jhanji, J.—The first appeal by the wife is directed against the judgment of the Additional District Judge, Jalandhar, whereby petition u/s 13 of the Hindu Marriage Act filed by her husband has been allowed and in conse- quence thereof, decree has been passed dissolving the marriage.

The marriage between the parties was solemnised on 7.11.1990 at village Lachowal, District Hoshiarpur according to sikh rites. Respondent-husband filed petition for divorce on 13.8.1993 on the ground that the appellant has treated him with cruelty and also on the ground that she has deserted him without any just and reasonable cause for more than two years preceding the presentation of the petition. On notice, petition was contested by the appellant. She controverted the allegations made in the petition and pleaded that after the marriage, her motherin-law and sister-in-law mal-treated her and used to taunt that her parents had not given sufficient dowry in accordance with their expectations. She also alleged that her husband is addicted to bad habit of taking liquor and as and when she objected to it, she used to be beaten up. She gave birth to a male child on 3.10.1991, but neither the petitioner nor any one from her in-laws visited her. She submitted that respondent himself is guilty of desertion without any sufficient cause and has never cared to send her or the minor child any amount of maintenance. The parties were afforded opportunity to lead evidence in support of their claim. On consideration of the evidence brought on record,the Trial Court decided the issue in regard to appellant treating the respondent with cruelty, against the respondent-husband. However, issue No. 3, namely, respondent has deserted the petitioner without reasonable and just ground, was decided against the appellant and in consequence there of the Trial Court allowed the petition and granted divorce to the respondent. This first appeal is by the wife.

It has been contended by the Counsel for the appellant that the conclusion drawn by the Trial Court while deciding issue No. 3 as a result of non- consideration of important piece of evidence and contradictions brought in the evidence of PWs during cross-examination. Against this, Counsel for the respon- dent has contended that the appellant had deserted the respondent without any reasonable cause and had made no efforts to join the matrimonial home and therefore, the Trial Court has rightly dissolved the marriage on the ground of desertion.

After hearing the learned Counsel for the parties and on going through the record, 1 am of the view that the appeal deserves to succeed. u/s 13(l)(i)(b) of the Hindu Marriage Act, a decree for divorce can be granted on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. According to the explanation, expression "desertion" means, desertion of the petitioner by the other party to the marriage without reasonable cause and without consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage. The essential ingredient of Section 13(l)(i)(b) read with the explanation thus is intentional permanent abandonment of one spouse by the other without consent of the other and also without any reasonable cause. Merely physical separation does not constitute desertion in law. It is necessary that there must be determination to put an end to marital relation and cohabitation. In Lachman Utamchand Kirpalani Vs. Meena alias Mota, , the Apex Court settled that "the burden of proving desertion- the "factum" as well as the "animus descrendi"- is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. "In the present case, firstly the respondent has failed to prove that the appellant left the matrimonial home in April, 1991. Respondent in para 4(d) of the petition alleged that the appellant went to her parents'' house in April, 1991 taking along her belongings saying that she would not return to the house of the respondent under any circumstances. In reply to the allegations, appellant submitted that the respondent himself left her at village Lachowal, District Hoshiarpur on 11.5.1991. The documents produced on record would show that the case set up by the respondent that appellant left the matrimonial home in April, 1991 is false. In letter, Exh. R-1, dated 31.1.1993, written by the respondent to the Sarpanch, Gram Panchayat, Lachowal, i.e. village of the wife, it finds mention that the appellant had accompanied the respondent to village Lachowal in March, 1991. In letter, Ex. A-l, dated 5.5.1991 written by the appellant and got produced from the respondent during his cross-examination, the appellant had asked her parents to send her maternal uncle to take her as she was leading a miserable life. This letter is written in the month of May, 1991 while she was residing with her husband. Secondly, respondent has failed to prove that the appellant has been living apart without just cause. To hold that the appellant has deserted the respondent, Trial Court has relied heavily on letters, Exhs. A-1, and R-1. Trial Court on reading of Ex. A-l has observed that there is not even an iota of allegation or complaint that in-laws of the appellant had been demanding dowry or mal-treating and putting pressure on her to bring Rs. 15,000/- to purchase scooter. In fact, reading of the letter shows that the wife was leading a miserable life while she was with her husband. Exh. A-l reads as under :

"I am leading a miserable life and request you to send my maternal uncle (mother''s brother) to take me from my (in-law''s) house by this Sunday otherwise I will kill myself. My husband did not want to take me to Talwara. I again request you to send my uncle to take me away from this house. But nobody turned up. Having fed up, I will finish my life. I came to know about the mother of...illegible... and aggrieved very much. Love to Jasbir. Love to Rajji and Jassu also. When Papaji came to see me, 1 could not explain anything to him. I lost my mental equilibrium. I am suffering from blood urine. To whom, I explain ? I am suffering from depression. You should not disclose the contents of this letter to anybody. They will kill me."

The very fact that the letter was kept by the husband and not posted to wife''s parents, shows that he never wanted her to communicate with her parents or to bring to their notice the physical and mental torture she had been suffering at the hands of respondent or her-in-laws. Marriage in this case took place in November, 1990 and the appellant left the matrimonial home in May, 1991 while she was pregnant and a child was born to her in October, 1991 at her parents'' house. Respondent has failed to show any cause for the wife to leave the matrimonial home within a few months of the marriage. As regards letter, Exh. R-1, written by the husband to the Sarpanch of the village, it is to be noted that the same appears to have been written only for the purpose of making a ground for divorce. Respondents and his parents had agreed to attend the Panchayat convened by the Sarpanch, but despite the two/ three messages sent to them, they failed to attend the same. Proceedings of the Panchayat in this regard were recorded on the letter itself. The proceedings read as under :

"All the respectable members of the village and the Sarpanch have enquired (investigated) the matter properly. It is evident mat the Sarpanch had called them between 10.00/11.00 A.M. They had agreed to attend the Panchayat. But today, i.e. Sunday the 7.2.1993, this writing has been prepared and it is 1.45 P.M. I being the Sarpanch, have sent two/three message to them but they have not turned up till now, We, all the members of the Gram Panchayat and other respectable members have found them guilty and they are hereby declared defaulters, so that they may desist from wasting our time by dodging us. This is our final decision."

No cause has been shown by the respondent for his not attending the Panchayat though the same was convened at his asking. In my view, his statement or statements of his witnesses that he had been making efforts to bring the appellant to the matrimonial home, cannot be believed. I may observe that the Trial Court while deciding the issue in regard to the ground of cruelty, has opined that the evidence of the husband when minutely analysed in its proper perspective does not inspire confidence and credibility. In the facts and circumstances of this case, 1 am of the considered view that it is the respondent himself who is to be blamed for causing appellant to live apart. He thus, is not entitled to the decree of divorce on the ground of desertion. Consequently, the finding recorded on issue No. 1 is to be set aside. It is so ordered.

Resultantly, the appeal is allowed and judgment and decree of the TrialCourt set aside. No costs.