Devinder Pal Singh vs Smt. Sanjogta Rani

Appellant-husband has preferred this appeal against the judgment and decree dated 12-11-1986 passed by Shri K. K. Aggarwal, Addl. District Judge, Chandigarh, in Hindu Marriage Act Case No. 69 of 1984.

Uncontroverted facts are that the appellant was married to the respondent on 12-12-1980 according to Hindu rites at Chandigarh. They lived and cohabited together at Chandigarh up to 31-7-1981. Since 1-8-1981 they are residing separately. On 15-10-1981, the respondents gave birth to a female child.

The appellant-husband has filed this petition u/s 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for dissolution of marriage by a decree of divorce on the basis of desertion and cruelty of the respondent. According to him on the very first day of the marriage, the respondent told him that the marriage is against her will. She was having an affair with some other person. Hence, she is not happy with this marriage. Appellant was shocked and distressed on listening this. From 12-12-1980 to 31-7-1981 respondent has stayed in the matrimonial home, but only on 7-8 nights she was with him and on the rest of the nights she stayed at her parental home. During this short stay her behaviour with him as well as towards the members of his family was very arrogant, quarrelsome and nagging. She insulted him as well as other members of his family. She never behaved with humility. Even his relations were not treated well by her. On 1-8-1981, when she came back from the school, she was not well, at that time she was in the family way also. He took her to a doctor who gave her medicines and an injection also. Her parents were also informed who came and took with them the respondent against his wishes. At that time, respondent took away all jewellery and valuable clothes. When he came to know about the birth of the female child, he went to her parental home with sweets but he was not allowed to see the child. The respondent frankly said that the child is not of the appellant. She also threatened to get him dismissed from service. Thereafter, she never came back to the matrimonial home. Thus, she has treated him with cruelty and since 1-8-1981 she has withdrawn from his company without any just cause or excuse and without his consent. Hence he prayed for a decree of divorce for dissolution of marriage on the basis of desertion and cruelty.

The respondent ''inter alia'' pleaded that the appellant has pleaded defamatory and malacious allegation against her. She denied that she was having affairs with some other person and her marriage with the appellant was against her wishes and that she was not happy with this marriage. She went to the house of the appellant with humility of a Hindu wife with firm determination to serve her husband and his parents. But they behaved cruelly with her as they were not satisfied with the dowry brought by her as well as by her looks. They used to tell her that she is ugly and is not a suitable match to the appellant. On 1-8-1981 when she came back from the school she was not well, she asked her husband to take her to some doctor but he declined, then she sent message to her parents who arrived at 9.00 p.m. They expressed that she should be taken to some doctor, whereupon the appellant told them that they might take her away for good. Hence her parents brought her from the matrimonial home, took her to a doctor and then to her parental home. She has denied that at that time she took away her jewellery as well as valuable clothes. Thereafter, the appellant never came to see her, never wrote any letter to her. Even after the birth of the female child customary presents were not given. Even then on 14-8-1981 she went to her matrimonial home but her mother-in-law did not permit her to enter the house. She and her parents made various efforts for her rehabilitation in the matrimonial home but the appellant always declined. She went to his office also along with her sister and the female child on 15-8-1982 but the appellant behaved with her disrespectfully and thus she had to come back. The appellant was invited to attend the marriage of her sister and brother, invitation cards were given to him but he refused to attend the marriages. Thus, according to her, the appellant has deserted her and has treated her with cruelty.

The trial Court framed issues and recorded parties'' evidence. After scanning the evidence on record, the trial Court came to the conclusion that the appellant has failed to prove both the grounds of divorce. He has clearly held that appellant is guilty of the offences of cruelty as well as of desertion. Hence, petition was dismissed.

Learned appellant''s counsel vehe- mently argued that the trial Court has commented in para 9 of his judgment that the appellant has failed to examine Dr. Pawan Gupta to whom according to the appellant he had taken the respondent on 1-8-1981 but the trial Court has not considered this fact that even the respondent has not examined Dr. Goyal, who according to her treated her on the night of 1-8-1981. He also made it clear that at that time, the respondent was in advance stage of pregnancy. As per the prevailing custom, her parents were supposed to take her for delivery and with that object they took her away on the night of 1-8-1981. At that time, she has taken jewellery and valuable clothes along with her. He has lodged a report to that effect with the police but the trial Court has disbelieved his version. The appellant also proved that right from the very first night of his married life, the respondent behaved cruelly towards him. She made it clear that she never wanted to marry him. She was having affairs with somebody else and on that account till she lived in the matrimonial home, she always insulted him in very derogatory terms and never respected other members of his family. The trial Court has wrongly disbelieved the appellant''s evidence. He has further proved that on three occasions, the respodnent went to his office and in the presence of his colleagues and subordinates not only insulted him but she gave threats for getting him dismissed from service. He has examined J. D. Verma-P.W. 3, Balwant Singh-P.W. 4 and Gabar Singh-P.W. 8 who have corroborated him on this point. He lodged a report Ex. P-1 which is also proved by Swaran Singh P.W.-1 and Chuhru Ram P.W.-2, Mehnga Singh is his father and Kishan Kaur P.W.-6 is his mother''s sister. They have corroborated him in all the material particulars about her conduct of cruelty and desertion. His neighbour Ajmer Kaur P.W. 7 has also corroborated him on the issue of cruelty.

Appellant''s counsel contended that no doubt after 1-8-1981 he had not gone to fetch his wife because he apprehended danger to his life at her hands. Even the respondent has admitted that on few occasions she visited his office, even then the trial Court has dis- believed his evidence on this point. Finally he concluded that it is a case of broken marriage. Once, the parties have decided not to cohabit with each other, they have not seen each other''s face since 1-8-1981, it is apparent that the marriage is broken irretrievably. On this count also the trial Court ought to have passed a decree of divorce in appellant''s favour.

Respondent''s learned Counsel pointed out that in the petition itself, the appellant has not pleaded the incidents of alleged cruelty, giving all the particulars, he has levelled malicious allegations against the respondent. After the marriage till 1-8-1981, the respondent lived in the matrimonial home, with the humility of a Hindu wife, she always behaved with respect towards the appellant as well as his parents. But they all behaved with her cruelly as they were neither satisfied with the dowry that was given in her marriage nor with her looks. They openly told her that she is not a suitable match to the appellant. Even then she lived peacefully like a dutiful wife. On 1-8-1981 she was having high fever. At that time, she was in advance stage of pregnancy. She wanted the appellant to take her to some doctor but he declined. Then, she had to call her parents. Even on their asking the appellant failed to take her to any doctor. As her condition was not good. Therefore, her parents took her to a doctor and then to their home. After the delivery of the female child, the appellant and the members of his family never came to see the child. After 1-8-1981, the appellant never bothered to take care of the respondent. Even after the delivery of a child, he never remitted any amount for their maintenance. She on her own went to her matrimonial home on 14-8-1981 but her mother-in-law did not permit her to enter the house. She has stated this fact on oath but her mother-in-law had not entered the witness box to rebut this evidence. She went to his office also two-three times and made request for her rehabilitation but the appellant insulted her and refused to take her back. Even her father and other relations made various attempts for her rehabilitation but the appellant always declined.

According to the respondent''s counsel, the appellant made two reports Exhibits P1 and P2 in the police station but in the report dated 5-8-1981 there is no mention that at the time of leaving her matrimonial home on 1-8-1981 she abused or insulted the appellant. The other report is dated 15-1-1983. A bare perusal of these reports reveals how much regard the appellant has for truth. The appellant was invited in the marriages and invitation card was given to him but he refused to attend the marriages. The respondent has not only examined herself but she has also examined Bhagar Singh RW-1, M. S. Parmar RW-2, Jaswant Singh Gill-RW-3, Piara Singh RW-4 and Gurcharan Singh Parmar RW-5. All these witnesses have corroborated her sworn testimony. The evidence adduced by the respondent being reliable and cogent was accepted by the trial Court. It is also pointed out that the appellant has failed to prove that he consistently asserted and affirmed the marriage and he never engineered her desertion. But from his own statement it is evident that after 1-8-1981 he never made any attempt to bring her back. He relied on Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, . He has also not adhered to sub-clause (7) of Rule 4 of the Punjab High Court, Hindu Marriage (Punjab) Rules, 1956. The respondent has clearly said that her father went to invite the appellant to attend the marriages, but she could not go. He also pointed out that the appellant has not pleaded in his petition that she visited his office or used abusive language and left the child in the office. Hence, the evidence adduced by the appellant on all these points cannot be relied on as it is not pleaded.

After scanning the evidence minutely and after going through the judgment, I find that the trial Court has not fallen into any error in dismissing the appellant''s petition for divorce. No doubt, the appellant has stated that the respondent always insulted him, she never had any love or affection for him. Her behaviour was cruel towards him and towards the members of his family. On this point, he stands corroborated by his father and mother''s sister and the neighbour. The trial Court has commented that the father and mother''s sister are bound to toe his line and the name of the neighbour is not pleaded in the petition. Had it been true, he would have mentioned this fact also in his reports or should have given any notice to her father, she left the matrimonial home on 1-8-1981, but he kept mum. It is apparent from his own statement that he never went to see his wife when she needed his care and affection most and he never bothered to enquire about her. Even after the birth of the child, he never cared to maintain his wife and child. He made no attempt to bring them back. No doubt, he has stated that he did not go to her parents house because he always apprehended danger to his life. The trial Court has rightly commented that the appellant has utterly failed to prove the alleged apprehension. Even from his statement, it is evident that this apprehension is just a hollow excuse not to rehabilitate her.

No doubt, he has examined three witnesses of his own office to prove that on three different occasions she visited his office. Once she was accompanied by her sister and the child also and at that time she misbehaved with him, insulted him and threatened him to get him dismissed from service. But from the statements of J. D. Verma PW-3, Balwant Singh PW-4 and Gabar Singh PW-8, it is evident that they are not reliable witnesses. According to Gabar Singh, she visited his office on 10-12-1982 but she did not bring any child with her. According to J. D. Verma and Balwant Singh, on 15-1-1983 she came to his office abused him, threatened him. At that time, she was accompanied by a girl aged 17 years but Balwant Singh has specifically said that nobody else was with the respondent. Respondent herself has admitted that she went to his office three-four times and on the birth day of the child, she went to his office with the child along with her sister and she requested him to rehabilitate them but he declined. Just to negate this plea, the appellant has examined three witnesses of his office who are bound to toe his line.

The appellant never made any attempt to bring her back. He never gave any notice to her nor filed any petition for restitution of conjugal rights. Conversely, from the respondent''s evidence, it is evident that not only she but even her parents and relations made several attempts to rehabilitate her to the matrimonial home but the appellant always declined. The circumstances under which the respondent left the matrimonial home on 1-8-1981 are apparent on record. If at that advance stage of pregnancy, the respondent fell ill and the appellant refused to take her to a doctor, she had no other course open to her but to leave the matrimonial home with her parents. He has failed to prove that at that time she had taken away her jewellery or valuable clothes.

Thus, the trial Court has rightly concluded that respondent''s evidence is more reliable, cogent and natural than the evidence adduced by the appellant. He tried to patch his lapses by levelling false and even defamatory allegations against his wife without any rhyme or reason. He created circumstances under which she had to leave the matrimonial home on the night of 1-8-1981 and thereafter, he never made any attempt to bring her back. Thus, the factum of desertion is proved. The parties are living separately from the night of 1-8-1981 but the essential parameter of the offence of desertion i.e. animus deserendi is not proved by the appellant against the respondent. On the other hand, from the evidence on record it is duly proved that the husband has forsaken her and has thus brought cohabitation to an end permanently. He has deserted his wife and not vice versa. It is also proved that he gave her mental torture by calling her ugly by levelling defamatory allegations against her and thus he is guilty of the offence of cruelty.

Accordingly, I find that the trial Court has rightly dismissed the appellant''s petition for a decree of divorce, affirming the said decree and judgment. The appeal being meritless is hereby dismissed with costs.

Appeal dismissed.