Baljit Singh vs Harinder Kaur

Sarojnei Saksena, J.—Appellant husband has filed this appeal u/s 23 of the Hindu Marriage Act, 1955 (in short, the Act), against lower Court''s judgment dated January 27, 1986, whereby his petition filed u/s 13 of the Act was dismissed. Admittedly, Petitioner-Appellant was married to Respondent-Harinder Kaur on June 30,1980, at Village Bukheri, Tehsil and Distric Ambala. Thereafter for three years they lived together. No child was born in this wedlock. At the time of marriage the spouses were and are still in service. Petitioner-Appellant is Overseer in Army while Respondent-Harinder Kaur is working as a teacher in Adult Education School. Since March 1983 the parties are living separately.

In the lower Court Petitioner-Appellant''s case was that the Respondent was a quarrelsome lady. She got, her brother with his family members, turned out for her parental home, so that she may live there privately and peacefully with her parents at village Bukheri. Since the Petitioner-Appellant is employed in active military service, he cannot keep the Respondent at the place of his posting. During his leave period till March 1983 the Respondent used to come and live with him in the matrimonial home. The Respondent left the Petitioner-Appellant''s house in his absence while he was on duty. She had taken away all her ornaments and clothes as well. Since then she is living in village Bukheri and has refused to resume cohabitation. Petitioner-Appellant''s father had taken a Panchayat in August, 1983 to her parental home in order to bring her back, but the Respondent flatly refused to come back. She made it clear that if the Petitioner-Appellant wanted to live, he could live with her at village Bukheri, but due to his service he could not accede to her wishes and was unable to reside in her parental home as resident son-in-law. There is no other person in Petitioner-Appellant''s family to look after his old parents. Petitioner Appellant again visited the Respondent''s parental home and requested her to come back to village. Both, where his parents reside, but the Respondent rebuked him in filthy language and also insulted him and declined to come back. Thus, she has withdrawn from the society of the Petitioner-Appellant.

Earlier the Petitioner-Appellant filed a petition u/s 9 of the Act for restitution of conjugal rights which was dismissed as withdrawn as at the time of conciliation proceedings the Respondent made a statement that she is not ready and willing to live with him." Thereafter the parents of the Petitioner-Appellant alongwith other respectables of the village made another attempt to bring her back but even that attempt proved abortive. After the dismissal of his petition u/s 9 of the Act, the Respondent filed a petition u/s 125 of the Code of Criminal Procedure, which is pending. Thus, the Petitioner-Appellant claimed divorce on the grounds of desertion and cruelty.

In her reply, the Respondent denied that she has deserted the Petitioner-Appellant. She has also denied that any Panchayat was convened at his instance. According to her, Petitioner-Appellant, his parents, his uncle and aunt were not satisfied with the dowry given at the time of her marriage. Being dissatisfied on this count as well as on the count that no child was born to her, they wanted to re-marry the Petitioner-Appellant. She was maltreated and harassed by all of them and finally in the month of March 1983, she was turned out of the matrimonial home by the Petitioner-Appellant. When petition u/s 9 of the Act was pending, she declined to go back to her matrimonial home on the count that she apprehended danger to her life at the hands of the Petitioner-Appellant. Her father and other relations went to the Petitioner-Appellant''s house for reconciliation, but he and his parents always declined to rehabilitate her.

On these pleadings, issues were framed, parties adduced their evidence.

On a minute scanning of the evidence on record, the trial Court came to the conclusion that the Petitioner-Appellant has utterly failed to prove the grounds of desertion and cruelty and hence the petition was dismissed.

Petitioner Appellant''s learned Counsel vehemently argued that after marriage for three years the Respondent lived with the Petitioner-Appellant in the matrimonial home during his leave period only. She was in service at village Bukheri. She never lived in village. Both along with the parents of the Petitioner-Appellant. She left the matrimonial home in March 1983 and had taken away her jewellery and other valuables as well. Thereafter, the Petitioner-Appellant his father and other respectables of his village made 2/3 attempts to bring her back, but the Respondent''s father flatly refused to send her back and they insisted that the Petitioner-Appellant may reside with them at Bukheri as resident son-in-law.

He further valiantly argued that compelled by these circumstances, the Petitioner-Appellant filed a petition u/s 9 of the Act. During the pendency of that petition, when reconciliation proceedings were being taken, the Respondent stated on oath that she does not want to live with the Petitioner-Appellant and hence he got his petition dismissed. Copy of her statement is Exhibit P-1 and copy of last order whereby his petition was dismissed as withdrawn is Exhibit P-2.

He further contends that the lower Court has made a mountain out of molehill by misinterpreting the letters written by the Petitioner-Appellant to the Respondent which are on record as Exhibits R.3 to R.6. If in these letters the Appellant has asked his wife to prepare a sweater for him, or to purchase a terricot shirt piece or blue or yellow colour pant piece or has asked her to send him some money and that too Rs. 150/- or Rs. 200/- only, it cannot be said that he was demanding these things as dowry or was oppressing the Respondent by these persistent demands. He explained this conduct of the Petitioner-Appellant by calling it ordinary mutual give and take procedure between husband and wife. He further commented oh the lower Court''s judgment with regard to letter Exhibit R-2. According to him, if the contents of whole of this letter are taken into consideration, they explicitly prove that the Petitioner-Appellant was so much depressed by the behaviour of the Respondent that in utter disgust he wrote to his father that if she does not mend her ways, he will remarry and teach her a lesson. From this sentence, written in letter Exhibit R.2 it cannot be deduced that he had a desire to divorce her and to remarry. According to the Appellants learned Counsel if the Respondent was not satisfied with the behaviour of the uncle of the Petitioner-Appellant, that could not have been a ground for her to leave matrimonial home because admittedly this uncle is not residing with the father of the Petitioner-Appellant. If the Appellant''s uncle is a drunkard or used to taunt her, she had no right to leave the matrimonial home on that count alone and deprive the Petitioner of the pleasures of married life. Thus, by continuously depriving the Petitioner-Appellant of her society, the Respondent has caused mental cruelty to the Petitioner Appellant and on this count also he is entitled to obtain a decree of divorce.

Lastly, Petitioner-Appellant''s learned Counsel contended that for the last 13 years the parties are living separately. She has no intention to come back to the matrimonial home. Thus, virtually this is a totally broken marriage, emotionally and factually. On that count also the Petitioner-Appellant is entitled to obtain a decree of divorce.

The Respondent has filed a petition under Order 41 Rule 27 CPC along with two documents. One document is the statement of the Petitioner-Appellant himself, which was recorded in another divorce petition, which was filed by the Petitioner-Appellant on December 21, 1992, and which he got dismissed as withdrawn on April 27,1995. The other document is a copy of the plaint filed by the Respondent against the Petitioner-Appellant and one Rani daughter of Kuldip Singh, wherein she has prayed the relief of permanent injunction restraining the Petitioner-Appellant from contracting second marriage with Rani.

during arguments, Petitioner-Appellant''s learned Counsel admitted that the Petitioner-Appellant gave this statement, copy of which is filed by the Respondent alongwith this petition. He also admitted that the Respondent has filed said civil suit against the Petitioner-Appellant and Rani, which is pending in the Court of the Senior Subordinate Judge, Ambala City. This petition is allowed as it is hot objected to by the Appellant''s learned Counsel and, secondly, because these documents are relevant, material and helpful in the decision of the appeal.

Respondent''s learned Counsel stressed that at the time of marriage, the Petitioner-Appellant as well as the Respondent were and are still in service. They were married in June 1980. Thereafter when-ever the Petitioner-Appellant was on leave/annual leave and came to his village. Both, the Respondent used to go to Boh to reside with him. Even during that period she used to come back to Bukheri to her place of duty during the day and used to go back to village Boh. This continued for three years. During this period she was harassed and tortured by the Petitioner-Appellant, his parents and his uncle and aunt on the ground that she had not brought sufficient dowry at the time of her marriage; she is elder to the Petitioner-Appellant and she has not given birth to any child in this wedlock. He pointed out that the Respondent has stated on oath that in March 1983 when the Petitioner-Appellant came on leave to village Boh, he beat her and turned her out of the matrimonial home in three clothes. Since then she is residing at her parental home. He contended that the Petitioner-Appellant has utterly failed to prove that he was treated cruelly by the Respondent. Conversely the Respondent has proved that she was harassed and tortured by the Petitioner-Appellant and his relations.

So far as the point of desertion is concerned, Respondent''s learned Counsel contended that it is not material as to who has walked out of the matrimonial home. The material point is what was the cause of leaving the matrimonial home. If by the conduct of the husband his relations the wife is force to leave the husband''s house, it cannot be said that she has deserted the husband. The husband is liable for constructive desertion.

Respondent''s learned Counsel commented that no doubt the Petitioner-Appellant has tried to state that on August 15, 1983, and in June 1984, he had been to village Bukheri alongwith members of Panchayat to bring her back, but her father refused to send her back and asked him to reside with him as resident son-in-law. He further commented that his own witnesses Kanwarpal Singh PW-2 have stated that they were the members of those Panchayats which went to village Bukheri for reconciliation, but both of them are categoric that on both these occasions the Petitioner Appellant did hot accompany them.

Respondent''s learned Counsel explained that when the Petitioner-Appellant filed a petition u/s 9 of the Act, the Respondent made a statement Exhibit P-1, but it is, not an unqualified statement she has stated that she does not want to live with the Petitioner-Appellant, for the time being because he had been very cruel to her and she, apprehends danger to her life. She suggested that if really the Petitioner - Appellant wanted to rehabilitate her and to keep her with him, he would have prosecuted his petition u/s 9 of the Act and would have obtained an order from the Court in his favour. According to the Respondents'' learned Counsel, the Petitioner-Appellant got his petition dismissed as withdrawn only because she filed a petition u/s 24 of the Act claiming maintenance. In order to avoid any such payment, he easily got his petition dismissed.

Respondent''s learned Counsel also argued vehemently that no doubt that the Petitioner-Appellant is serving in the Army, but he has admitted on oath that for 7-1/2 years he was posted at a family station but during that period also he never took her with him. When a specific question was put to him with regard to this fact, he categorically replied that the wanted the Respondent to go and reside with his parents first, thereafter he would arrange for family accommodation and when he would come on leave against then would take her with him. He also pointed out that the Petitioner-Appellant has deliberately stated on oath that he does not know whether the Respondent has a brother or not, though his witnesses have admitted that she has a brother who is in service. In the petition the Petitioner-Appellant has specifically alleged that the Respondent is of quarrelsome nature. She has got her brother and his family members turned out of her parental home, so that she may live there privately and peacefully. Respondent''s counsel vehemently condemned the conduct of the Petitioner-Appellant, stressing that on the one hand in the pleadings he admits that the Respondent has a brother, who is having his own family also and she got him with his family turned out of her parental home, but conversely on oath he had the cheek to state that he does not know that the Respondent has a brother. According to him, the Petitioner-Appellant has stated so only because he had taken a ground that the Respondent''s father wanted to keep him as his residential son-in-law. No father who has got his own son with his own family will ask his son-in-law to reside with him as resident son-in-law. Just to bolster up his above plea, he deliberately told a lie that he does not know whether the Respondent has a brother.

Respondent''s learned Counsel referred, to the letters Exhibits R-3 to R-6 and argued that in all these letters, which were written in 1981-82, the Petitioner-Appellant asked her to purchase either some pant piece, shirt piece or to prepare a sweater or to send him money. Petitioner Appellant has admitted that he never remitted any amount to the wife during all this period. The Respondent has also stated so on oath. Admittedly, the Respondent is working as a teacher in Adult Education School. When she filed a petition u/s 24 of the Act, in his reply the Petitioner-Appellant averred that she is getting Rs. 200/- as pay. Learned Counsel contended that considering the cost of living these days and considering her pay, the lower Court has awarded her maintenance at the rate of Rs. 250/- per month. The Petitioner-Appellant never wanted to support her by sending her any amount. He wanted her to reside at his parental home, meaning thereby that she should leave her job wherefrom she is getting a meager amount of Rs. 200/- and to become a dependent on his parents. Under these circumstances, if she declined to leave her job or to live with his parents during his absence, it cannot be said that she is guilty of desertion or cruelty in any sense.

Respondent''s learned Counsel further clarified that during the pendency of this appeal, the Petitioner-Appellant filed another divorce petition on the same grounds on December 21, 1992, wherein his statement was recorded, copy of which is filed with the petition filed under Order 41 Rule 27 CPC by the Respondent. In this statement he has admitted that on the same ground, he has filed that divorce petition. This second petition was dismissed as withdrawn on April 27, 1995. This fact is not assailed by the Appellant''s learned Counsel during arguments. Respondent''s learned Counsel valiantly argued that this only shows the intention of the Appellant to somehow obtain a decree of divorce against the Respondent. Time and again he is knocking the doors of the Court to obtain divorce.

Referring to the aforesaid statement of the Petitioner-Appellant, Respondent''s learned Counsel pointed out that in the last para of his statement the Petitioner-Appellant has categorically stated that he is not ready to rehabilitate the Respondent now as he has been insulted by her in public, but according to the learned Counsel the Petitioner-Appellant has utterly failed to prove the said insulting conduct of the Respondent. Conversely the Respondent has proved that when the first divorce petition was pending before the lower Court, during conciliation proceeding she was sent with the Petitioner-Appellant. He took her upto Ambala Cantt. There the Petitioner-Appellant left her on the road and went back. Even at that time he told her Categorically that he does not want to rehabilitate her. Immediately on reaching home she sent letter dated January 7, 1987, by registered post to the Court, which is also there on the lower Court''s record. Thus, according to her, the Petitioner-Appellant has not only treated her with cruelty but was deserted her.

Respondent''s learned Counsel''s last contention is that the Petitioner-Appellant wrote letter Exhibit R-2 to his father in 1982, wherein he has expressed his intention to remarry and to leave her. He further pointed out that when ultimately the Petitioner-Appellant wanted to remarry another lady Rani, the Respondent was forced to file a civil suit for permanent injunction against her husband and Rani restraining them from marrying. Copy of the plaint is produced by her alongwith her petition filed under Order 41 Rule 27 Code of Civil Procedure. Pendency of this civil suit is not disputed by the Petitioner-Appellant''s learned Counsel.

In my considered view, the arguments advanced by the Respondent''s learned Counsel are forceful and convincing. The facts of the case are that the parties were married in June 1980. Till May 1983 they lived together. Both of them were and are in service. She is working as a teacher in Adult Education School and is getting Rs. 200/ - as pay. Earlier she was posted at Bukheri and now she is posted at Farauli. She has stated that after marriage whenever the Petitioner-Appellant used to come back on leave/ annual leave, she used to go and reside with him at village Boh and used to come back to her school at Bukheri as her school hours are from 10 a.m. to 2 p.m. She has made a complaint that the husband and his parents used to torture her. On April 27, 1983 when the husband came on leave, he beat her and turned her out of the matrimonial home. She is categoric that he never provided any maintenance to her.

The husband has tried to state that he himself went along with the Panchayat members to her village to bring her back, but the falsity of his statement is clear from the statements of his own witnesses who categorically stated that in both these Panchayats the Petitioner-Appellant never accompanied them.

The theory of keeping the Petitioner-Appellant as resident son-in-law is also eroded as this fact is established on record that the Respondent has a brother who has go his own family. Her brother is also in the army. To substantiate his aforesaid plea, he chose to tell a lie that he does not know whether she has a brother or not, though in his pleading he has taken a specific plea that she is quarrelsome lady and has turned out her brother with his family from her parental home so that she may live there privately and peacefully.

No doubt, the Petitioner-Appellant is an Army personnel but he has admitted that for 7-1/2 years he was posted at family station. Even during that period he never made any attempt to keep her with him. Conversely, his categoric statement is that he wanted that first of all his wife should go and live with his parents at Boh and thus thereby he wanted to treat her cruelly, so that she may be forced to leave her job and to live with his parents at their mercy.

For the letters Exhibits R-3 to R-6 it is evident that he asked her to purchase a pant piece, a shirt piece, to prepare a sweater for him and to send him some cash also. In peaceful and happy matrimonial life exchange of such gifts is a normal behaviour, but when the relations, are strained and when the husband does not care to provide any monetary help to the wife, asking of such gifts for the wife cannot go on for long. Ultimately it causes harassment bordering on cruelty to the wife.

In. his letter Exhibit R-2 written to his father, the Petitioner-Appellant has unequivocally expressed his intention to remarry. Even when he was examined in the second divorce Petitioner, he has categorically stated that he is not ready to rehabilitate the Respondent now, though he has failed to prove the reason for not rehabilitating her. The wife has categorically/stated that she is still ready and willing to go with him. He not only expressed his desire to remarry but when things moved ahead, she was forced to file a suit for permanent injunction against him and Rani to restrain them from marrying each to her. If there was no such move by the Petitioner-Appellant to remarry, she would not have filed such a suit against the Petitioner-Appellant.

The conduct of the Petitioner-Appellant is evident on record. He never keep his wife with him; persuaded her to live with his parents at his village, filed a petition u/s 9 of the Act; got it dismissed when she claimed maintenance u/s 24 of the Act; ill-treated and maltreated her and on that count she declined to reside with him; when she filed a petition u/s 125 Code of Criminal Procedure for four years he declined to attend the hearing and when she wrote a letter to his superior officers, then only he attended the criminal court; he never paid any maintenance to her till the court ordered; never made any attempt to rehabilitate her; even when she was sent from the Court with him at the stage of reconciliation, he left her on the way, expressing that he will never rehabilitate her. Though this appeal was pending, he filed another divorce petition, wherein he again got himself examined and stated categorically that he does not want to rehabilitate her. This consistency proves to the hilt that his only intention is to divorce her and perhaps to remarry. The reasons may be many. One reason may be that she could not beget any child in this wedlock. Whatever be the cause of deserting her, but the fact remains that the Petitioner-Appellant has treated the Respondent with cruelty and has forced her to leave the matrimonial home; thereby the Petitioner-Appellant is guilty of constructive desertion and not the wife. The Appellant-husband cannot take advantage of his own wrong. Thus, in my considered view, the lower Court has rightly declined the decree of divorce in Petitioner-Appellant''s favour.

Accordingly, the appeal, being meritless, is hereby dismissed with costs, which are quantified at Rs. 2,000/-.