Birbal Goswami vs Indra Devi

V.K. Jhanji, J.—Birbal Goswami alias Balbir Goswami, appellant and Indra Devi (respondent) were married according to Hindu rites on 6.6.1979 at village Kiwana, Tehsil Panipat District Karnal. Out of the wedlock a son was born in the year 1981. On 4.5.1988, appellant filed a petition for divorce against the respondent under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion.

Respondent denied the allegations levelled against her by the appellant. She averred that she never misbehaved either with the appellant or his parents. She averred that since the mother of the appellant was not keeping a good health, she rendered good service to her. She denied that she ever used taunting language or quarreled with the appellant. She also averred that she never insisted to live separately from the appellant or that she ever pressurised her husband to turn out his parents. She alleged that the appellant and his parents forced her to live separately as she was expelled from their house. It is her case that the appellant and his parents were not satisfied with the dowry given by her parents. She was forced to bring more and more dowry from her parents but when she resisted the illegal demands, she was harassed, tortured and was given beatings. She further averred that in the month of September, 1983, when demands were resisted by the respondent by showing inability to meet the demand, appellant gave merciless beatings to her with an intention to expel her from his house. She averred that she tolerated injustice being a lady thinking that good sense would prevail upon the appellant and his parents but in vain. In June, 1983 she was expelled from the house as the appellant had no intention to keep her. The respondent has also averred that since she filed a petition under Section 125 Cr.P.C. for maintenance, the appellant filed a petition for divorce as a counterblast thereto.

On the basis of the pleadings and the evidence brought on record, the trial Court framed the following issues :

Whether the respondent has treated the petitioner with cruelty as alleged in the petition ? If so, its effect, OPP

Whether the respondent has deserted the petitioner ? OPP

Relief.

Having found the issues against the appellant, the learned Additional District Judge, Sonepat, vide order dated 8.11.1988 dismissed the petition. It is against this order that the present appeal has been directed.

The appellant, in support of his case, appeared as PW.1 and also examined Sita Ram son of Mam Chand, his uncle i.e. his mother''s brother as PW.2. As PW1, appellant stated that Indra Devi misbehaved and maltreated his parents and she had been abusing them in the presence of neighbours and Indra Devi had often been leaving his house for going to her parents, without his permission. She used to accuse and blame that she was married with him against her wishes and her standard was more than him and his family. In the month of September, 1983, Indra Devi left his house without telling him. In the month of March, 1986, he along with Sat Pal and his maternal uncle, Sita Ram approached her but she refused to return to her matrimonial home. In his statement, he also stated that in the month of August, 1987, he along with his uncle, Sita Ram had approached her to return to her marital home but she insulted them and refused to come. She declared that she had severed her relations with him and the child. He further stated that when his father and mother died, neither the respondent nor any of her relations came for condolence. This is what he stated in his examinationinchief. In crossexamination, he admitted that he had not written any letter to the parents of the respondent that she used to abuse and maltreat him. He also admitted that his is a joint family consisting of his parents, four brothers and one sister. He admitted that his parents were not keeping good health. However, he denied the suggestion that Indra Devi used to do all household work including preparing of meals for the entire family, looking after his parents and brothers and taking food to the fields. He denied the suggestion that respondent never misbehaved, maltreated or abused his parents. He admitted as correct that in the application filed under Section 125, Cr.P.C. maintenance at the rate of Rs. 175/ per month was granted in favour of the respondent and he had preferred an appeal against that order but the same also failed. As PW.2, Sita Ram, uncle of the appellant, stated that Indra Devi used to abuse the parents of Birbal. He stated that he had taken Birbal with him to approach the respondent about 3 years back to bring her back to the house of the appellant but she refused to accompany them. In crossexamination, he stated that Indra Devi used to observe Pardah from him. His sister had told him that Indra Devi used to abuse. He denied the suggestion that neither he nor Birbal ever approached the respondent or made any effort to bring her back.

According to the respondent, Indra Devi, right from the inception of marriage, she was maltreated and she was turned out of the house by her husband. While she had stayed with her husband, she had been preparing meals, washing clothes and doing other household work and treating her parentsinlaw as her natural parents. They had been demanding money from her parents for the motor of tubewell but she refused to bring the money from her parents for the said purpose. She was given beatings and turned out of the house. His son was about 2 years of age at that time but custody was not given to her. Since she was deprived of the company of her child, therefore, she suffered mental cruelty. Her husband or any relation of him had not approached her in this period of five years to take her back to the martial home. She has further stated that no intimation in regard to the death of her motherinlaw was sent to her but when she came to know about 20 days after her death, she sent her mother and brother for condolence but they were insulted. Her father, uncles, maternal uncle in a Panchayat had approached the appellant to take her back but he did not agree. She has stated that she is prepared to live with her husband if he is interested to rehabilitate her. In crossexamination, she stated that she did not apply for the custody of the child hoping that reconciliation might take place and she might return to marital home. She denied that she was less interest in child and more interested in maintenance allowance. She denied that she was not working while living with her husband. She also denied that the appellant or his parents had not been demanding money or that they were not satisfied with the dowry. RW.2 Banarsi son of Nandu, stated that he had gone in Panchayat to the appellant to rehabilitate her but the appellant did not give patient hearing to them and they were insulted. RW.3, Sube Singh son of Kacheru, father of the respondent stated that Birbal and his parents were not satisfied with the dowry and they complained that less ornaments and clothes were given than their expectation. They had been demanding money which they had been partly meeting but when he could not meet their demand, they started maltreating his daughter. She was beaten and turned out of the house and on getting information, he brought his daughter with him and since September, 1983, she (his daughter) has been living at his house. He had taken Panchayat many times but Birbal refused to rehabilitate her. On the death of parents of Birbal, they were not informed but when he learnt about their death, they had gone for condolence. Respondent has stated that petition for divorce has been filed against her in counterblast to the order of maintenance which has been passed in her favour.

As already noticed, learned Additional District Judge, on the appreciation of evidence on record, found that the wife has not treated the husband with cruelty as was alleged in the petition and also that she had not deserted her husband. In the present appeal, learned counsel or the appellant has contended that since September, 1983, the wife is staying away from her husband. At no stage, she made any effort to obtain the custody of the son. This shows that her intention, all along, had been to break the marital obligation. I am not impressed with this argument. Respondent had no intention to abandon her two years old son at the house of her inlaws. She, in her statement, has categorically stated that she did not apply for the custody of the child hoping that reconciliation might take place and she might return to her marital home. There is also no evidence on record to show that she had left her son with her husband out of hatred by way of spite. In these circumstances, it is not to be believed that she wanted to bring an end to the marriage. As regards the allegation of the appellant that his wife used abusive language and maltreated as also misbehaved with him and his parents, except by giving his bald statement, there is not acceptable proof on the record to prove this allegation. Appellant examined PW.2 Sita Ram, his uncle (mother''s brother), who is his crossexamination, admitted that respondent observed Pardah from him meaning thereby that he had never heard or seen respondent abusing or maltreating the appellant or his parents. PW.2''s statement is also contrary on material particulars inasmuch as appellant, in his statement, has stated that he had taken the Panchayat in March, 1986 and again in August, 1987 whereas PW.2, Sita Ram had stated that Indra Devi used to go often to her parents'' house and she stayed in her matrimonial home only for ten days at a stretch. In fact, it was never the case of appellant that Indra Devi used to keep away from him. It has also come on the record that the respondent was always ready and willing to live with the appellant at all points of time whereas appellant was not willing to keep her. It appears to me that just to get rid of her, the appellant levelled false allegations of cruelty against the respondent which the appellant has miserably failed to prove. Accordingly, I hold that the appellant is not entitled to divorce on the ground of cruelty. As regards the ground of desertion, it is only to be noticed that when the respondentwife is willing to live with her husband, appellant cannot seek divorce on this ground. In the present case, it has been conclusively proved that the respondent had not been staying with her parents on her own volition but was staying away from her husband because she was turned out of the house and the appellant had no intention to keep her. This is clear from the question which was put to him by the Court at the end of crossexamination. The question was :

Court question : Are you ready to take the question respondent back with you now ?

Answer : No.

It is not necessary to deal with the judgements cited by the learned counsel for the appellant as on the basis of pleadings and facts proved on the record to this case, I am on the view that the appellant is not entitled to dissolution of marriage by way of decree of divorce either on the ground of cruelty or desertion. Consequently, the appeal being without any merit, shall stand dismissed.