Devinder Kaur vs Mangat Singh

Sarojnei Saksena, J.—Appellant/wife has challenged the judgment in H.M. Case No. 11 of 1991 of the Additional District Judge, Jalandhar granting decree of divorce on the ground of desertion.

The appellant and respondent are teachers by profession. They were tied in nuptial knot on 23.1.1977. At the time of marriage respondent was posted at village Tandi, his native place. The appellant was posted at Bassi. In this wedlock she gave birth to a female child on 11.11.1977.

Earlier the respondent (husband) filed a petition u/s 9 of the Hindu Marriage Act (hereinafter in short the ''Act'') which was dismissed as withdrawn on 30.1.1979. He filed a petition u/s 13 of the Act for divorce on the ground of cruelty and adultery which was also dismissed. The judgment is Exhibit R-2. The respondent''s contention was that soon after the marriage the appellant''s behaviour with him and his parents was rude and quarrelsome. She refused to live with him in the joint family house village Tandi. In order to save the marital life, he acceded to the wish of the appellant and started living with her at Bassi from 15.2.1977, but still she continued her same rude behaviour. On 4.3.1977 the respondent came back to village Tandi, but the appellant refused to join him. At the intervention of respectables they started living together at Bhogpur in October, 1977. In November, 1977 without informing him she left for Jalandhar. Again at the intervention of Istri Sabha in June, 1978, she returned to matrimonial home at Tandi, but after summer vacations she against left for Bassi. Then he filed a petition for restitution of conjugal rights on 23.5.1979. They arrived at a compromise on 30.11.1979 and the said petition was dismissed. She came back to matrimonial home, but stayed there only for 15 days and in December, 1979 she left for Jalandhar where since then she is residing. She had taken away her dowry articles also. The father of the respondent (husband) expired on 20.9.1988. Even then she did not come back to the matrimonial home. His mother is ailing, infirm aged woman, who needs constant care and attendance, but she never bothered to serve his mother. Without informing him she is making investments in movable and immovable properties. She disposed of her 2 Kanals Kothi No. 44, New Vijay Nagar, Jalandhar and purchased Kothi No. 2-D, Dashmesh Nagar, Garha Road. Jalandhar jointly with Harbhajan Singh, in September, 1990, she went to Post Graduate Institute, Chandigarh for treatment of Harbhajan Singh and declined to rehabilitate with him (respondent). She has brought co-habitation permanently to an end and has deserted him without reasonable cause for a continuous period of more than two years.

The appellant resisted the petition and alleged that soon after the marriage the respondent was posted at Bhatnura which was at a distance of 2 1/2 K.Ms, from Bassi, where she was posted and it was more than 15 K.Ms, from Tandi. Her husband himself agreed to reside at Bassi. According to her, he always maltreated her, beat her and treated her with cruelty. When he filed a petition u/s 9 of the Act, on 30.11.1979 a compromise was effected between the parties and the petition was dismissed. The respondent is a greedy person. He wanted her to bring motor-cycle for him from her parental home. She could not fulfil his desire. He filed Divorce Petition levelling false charges of adultery and cruelty against her. His petition was dismissed on 23.4.1982. Again she fell into the trap of her husband. He again compromised with her and apologised for the false allegation of adultery and promised not to make any demand in future and to behave with her properly. She also wanted to have a fresh lease of marital life. Thus they resumed co-habitation on 23.3.1983. Thereafter she remained in the company of her husband till May, 1990. The respondent''s brothers are in Police Department. They had threatened her with dire consequences. Respondent only wants divorce from her though she is still willing and ready to live with him.

On these pleadings, issues were framed and parties'' evidence was recorded.

On the appraisal of the evidence on record, the Trial Court came to the conclusion that the appellant has deserted the respondent without any reasonable cause or excuse and thus a decree of divorce was passed against her.

The appellant''s learned Counsel contended that the Trial Court has uttterly failed to scan parties'' evidence minutely. He has failed to see that the statement of the respondent is not at all believable and reliable. He has contradicted himself on many points. In his petition he has clearly pleaded that she left in December, 1979 for Jalandhar and since then she has not resumed co-habitation with him and has not come back to the matrimonial home, though he made efforts to bring her back. He has stated so on oath also. He has stated that in the year 1980 he filed a divorce petition which was dismissed on 23.4.1982. Thereafter, on the intervention of Gurvinder Singh a compromise was effected and they started living together at Jalandhar. He admits that he stayed at Jalandhar for 2/3 days, but as her behaviour was cruel towards him and certain bad elements had attacked him at her instance, he came back to Tandi and thereafter never went back to Jalandhar. He also lodged a report of this incident at Jalandhar, but no such report was proved by him during trial.

The appellant''s learned Counsel contended that the respondent has admitted that he swore an affidavit Exhibit R-l which itself shows that he was remorseful for levelling false allegation of adultery against his wife and for his cruel behaviour towards her. On 30.3.1983. the date of affidavit, he agreed to live with her at Jalandhar. He pointed out that thereafter she was continuously residing at Jalandhar and he himself came back to Tandi, it cannot be said that she has deserted him. The appellant has clearly stated that she lived with him till May, 1990 and during her vacations and holidays she used to go to village Tandi also. In this connection, he further stressed that the respondent has examined Som Nath (P.W. 4) to prove that she has taken a ration card in her name, but she denied it on oath, rather the persons shown therein are not member of her family. She has no son by the name Preet. Her son expired on the day he took birth. The respondent has also examined Bahadur Singh (P.W. 5) to prove that certain application was submitted by him on 13.7.1984 and the enquiry was completed on 14.7.1984. No action could be taken as the appellant never wanted to live with her husband and she wanted divorce. Lakhwinderjit Singh (P.W. 7) was summoned to prove that in the voters'' list the appellant''s name does not appear. He pointed out that this evidence is of no help to the respondent because the appellant has nowhere stated that she was continuously living at Tandi. So the question of her name appearing in the voters'' list of Tandi could not have arisen. He further submitted that Gurdip Singh (P.W. 6) has proved the dates and the period during which the appellant was on leave. From his statement, it is evident that she was on maternity leave from 12.12.1983 to 31.3.1984, on commuted leave from 25.9.1984 to 29.9.1984 and also from 18.2.1985 to 20.2.1985. Abortion leave was granted to her from 8.7.1985 to 16.8.1985 and again she was on commuted leave from 3.9.1985 to 5.9.1985 and 19.2.1990 to 21.3.1990. The appellant has stated on oath that twice she has undergone abortion at the instance of the respondent as every time on checking through Sonography it was found that it was foetus of a female. He has strongly stressed that there is no allegation of unchastity against the appellant. According to the respondent, she left the matrimonial home in December, 1979, but he himself has proved that from December; 1983 to March, 1984 she was on maternity leave and from 8.7.1985 to 16.8.1985 abortion leave was granted to her. This evidence by itself prove that the appellant never brought cohabitation to an end permanently. The respondent was living in her company and thrice she became pregnant. She has also stated that she gave birth to a son on 11.1.1985 who died on that very day. This evidence proves the falsity of the respondent''s case.

His last contention is that from the affidavit Exhibit R-l, it is evident that the respondent himself decided that they will live at Jalandhar.

The respondent''s learned Counsel unstintingly supported the Trial Court''s judgment and contended that earlier the respondent filed a petition for restitution of conjugal rights, but as she arrived at a compromise, it was withdrawn. But later on, as she again deserted him, he had to file a Divorce Petition, though it was dismissed, but the appellant even thereafter never resumed co-habitation with him. Address given by her in her leave application is proved by Gurdip Singh (P.W. 6). All through this period she lived at Jalandhar though the respondent is continuously residing at Tandi. This evidence by itself proves that the appellant has deserted the respondent.

Both the parties have relied upon certain authorities in support of their contentions.

If the petition for divorce on the ground of desertion is filed after three years of desertion and the wife makes no effort to join the matrimonial home, the petition should be decreed. [See : 1990(1) All InD H.L.R. 567 Sanat Kumar Aggarwal v. Mrs. Nandini Agarwal). If the wife refused to live with the husband in his house, the refusal is unreasonable and it amounts to desertion by wife [See: (1967) 69 P.L.R. 566 Roshan Lal v. Basant Kumari]. Wife though alleged, but failed to prove the demand of dowry and turning her out from the matrimonial home. The husband was willing to live separate with his wife as per her wishes, but still wife did not join. Desertion is proved [(1978) 80 P.L.R. 649, Jaswinder Kaur @ Simerjit Kaur v. Kulwant Singh], If the wife lives separate for six years and makes.no attempt to join, desertion is proved, [1986(1) H.L.R. 462, Asha Rani v. Gurchain Lai 1992(2) H.L.R. 438 (1992) DMC 286, BhavnaAdwani v. Manohar Adwani; 1994(1) H.L.R. 213 : (1994) DMC 554, Smt, Sudeshv. Mahabir Singh]. In Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, ,itis held that if the husband is guilty of constructive desertion as he turned out the wife, he cannot seek for a decree of divorce on the ground of desertion. Mere separation is not sufficient. There should be an intention to bring co-habitation to an end. In such matters, delay is not always fatal (1984 H.L.R. 210, Rukmini v. Srinivasa).

In Stnt. Kailash Wati v. Ayodhia Parkash (1977)79 P.L.R. 216(F.B.), the Full Bench of this Court has held that under Hindu Law the obligation of the wife to live with her husband in his home and under his roof and protection is clear and unequivocal. Choice to determine the matrimonial home rests with the husband as he is under an obligation to maintain the wife in the family. The obligation to live together under a common roof is inherent in the concept of a Hindu Marriage. It cannot be torn unilaterally by the desire of the wife to live separate and away from the matrimonial home merely for securing or holding a job elsewhere.

Every case has its own facts. This case is to be decided in the background of the past litigation. Admittedly, they were married on 23.1.1977. She gave birth to a female child in November, 1977. Both are Teachers by profession. The appellant was posted at Bassi and the respondent was posted at Tandi. The responden has made an allegation that after marriage, her behaviour was cruel and humiliating not only towards him, but towards his parents also and she insisted that he should live at Bassi. Therefore, he shifted to Bassi on 15.2.1977. Conversely, the wife''s explanation is more reasonable and plausible for his shifting to Bassi. According to her, the place of his posting was at a distance of 2 1/2 K. Ms. from Bassi though Tandi was at a distance of 15 K.Ms, from his place of posting i.e. Bhatnura and therefore, on his own he shifted to bassi. Further admittedly, in October/November, 1977 they were living in Bhogpur. The respondent has tried to state that in the month of November without informing him she went to Jalandhar, but she has explained that as the respondent never wanted to bear the expenses of delivery, therefore, for her delivery, she went to her parental home at Jalandhar. Thus the explanation offered by the wife is more reasonable and reliable. The husband has admitted during summer vacations of 1988 she came to Tandi. She has unequivocally stated that during summer vacations and holidays she used to go to village Tandi and always resided in his joint family house. He filed a petition for restitution of conjugal rights in May, 1979, but in November, 1979 they compromised and she started living at village Tandi. According to him, in December, 1979, she left village Tandi and thereafter she never came back to live with him. Thereafter, they failed to cohabit with each other. His grievance is apparent from his pleadings that she started investments in movable and immovable properties without informing him. That is perhaps the real cause of estrangement between the two.

The respondent himself has proved by examining Gurdip Singh (P.W. 6) that from December, 1983 to March, 1984 the appellant was on maternity leave and from 8.7.1985 to 16.7.1985 abortion leave was granted to her. There is no allegation of unchastity against her. Surprisingly, though these facts are in the knowledge of the respondent and therefore he has examined Gurdip Singh (P.W. 6) but still on oath he has chosen not to state a word about these facts. Thus, it is evident that the respondent has utterly failed to prove that she has brought co- habitation to an end permanently.

The appellant has proved that the respondent has sworn an affidavit Ex. R-l. Respondent has admitted that he gave such an affidavit, though this admission was made by him reluctantly. In this affidavit he has admitted that he levelled baseless allegation of adultery against his wife (In the previous Divorce Petition its judgment is Ex. R-2). The remorse and repentive tone and tenor is apparent from affidavit Exhibit R-l. Even then thereafter swallowing the bitter pill of false allegation of adultery, she lived with him with an intention to save the matrimonial life. Thereafter, she was used as an article of consumption to satiate his lust. The result was that thrice she became pregnant. Once she gave birth to a son who died. Twice she had to get her pregnancy terminated because on examination it was found that it is a female foetus. Thus she has not wronged, rather she was more wronged by the respondent.

Manifold factors can arise to sour the happy nuptial relationship of the couple. There may be acts of omission and commission on the part of the spouses to cause mental agony of the worst order. Filing of the earlier Divorce Petition on the ground of adultery was such an act. What mental agony, it must have caused to the appellant can be well imagined. Despite that, to save the matrimonial home, she consented to live with him. From the affidavit, Exhibit R- 1, it is apparent that the respondent agreed to live with her at Jalandhar. Thereafter, if she was continuously living at Jalandhar, it was with his consent and it cannot be said that she has withdrawn from the matrimonial home or she had the intention to bring the cohabitation to an end permanently.

The respondent admitted that after the compromise was arrived at on 30.3.1983, he went to live with her at Jalandhar, but he has stated that he came back after 2/3 days as he was manhandled at her instance and she behaved him with cruelly. He lodged a report of that incident at Jalandhar, but that report has not seen the light of the day. As thereafter she became pregnant thrice, it proves that the respondent was living with the appellant as stated by she has stayed with him till May, 1990.

So far as her name not being shown in the voters'' list at village Tandi is concerned, it is of no help to the case of the respondent because the appellant has neither pleaded nor proved that after marriage she was continuously residing at Tandi.

The respondent has also proved that she has obtained a ration card in her name, but the appellant has denied that she got this ration card prepared in her name. This ration card shows the name of Preet as her son, but admittedly, she has no son. By adducing this evidence, the respondent wanted to prove that she is residing in Jalandhar. She has stated so on oath. Her cross-examination has not brought about any favour to discredit her testimony. Though there is no other ocular evidence to support her version, but her solidary version is convincing credible and believable. She is duly corroborated by his affidavit Ex. R-l. Respondent''s affidavit Ex. R-l sheds sufficient light as to the ignominious and cruel treatment she had surrendered at his hands.

Despite this evidence on record, the Trial Court''s conclusion that she has deserted him is thoroughly opposite to legal norms, fair play and propriety. The respondent has utterly failed to prove both the parameters of desertion i.e., actually living separate and animus deserendi. It appears that after swearing affidavit Exhibit R-l and living with the appellant at Jalandhar for some time, he came back to his own village Tandi just to carve out the ground of desertion to obtain a decree of divorce against the appellant. Not she, but he is guilty of desertion. He has not honoured his own words and if according to his wish and direction she is living at Jalandhar, no fault can be found with her so far animus deserendi is concerned.

On going through the evidence, I find that the respondent is not entitled to a decree of divorce on the ground of desertion. The impugned judgment is set aside and the respondent''s petition stands dismissed. This appeal is accordingly allowed with costs which are quantified at Rs. 1,000/-.