Gurdip Kaur vs Sat Pal Singh

Sarojnei Saksena, J.—Wife appellant has assailed the judgment and decree passed by Mr. H.S. Bakhshi, District Judge, Hoshiarpur on 17.4.1979 whereby he allowed petition filed by respondent Sat Pal u/s 13(1-A)(i) of the Hindu Marriage Act, 1955 (in short the ''Act'').

Uncontroverted facts of the case are that the appellant was married to respondent on 4.3.1984 at Village Munak Kalan according to Hindu rites. She gave birth to a daughter who is residing with her. This marital tie could not last long in harmony. The appellant wife filed a petition u/s 10 of the Act for judicial separation in the Court of Additional Senior Sub-Judge, Dasuya on 6.5.1987. On 3.9.1987 decree was passed in that case. Respondent husband filed a petition u/s 13(1-A)(i) of the Act on 6.9.1988 alleging that after passing of the decree of judicial separation he and his wife have not resumed cohabitation and prayed that a decree of divorce be passed on that count.

Appellant wife contested the petition and alleged inter alia that the husband and members of his family demanded dowry. They treated her with cruelty thereby she was compelled to file a petition u/s 10 of the Act. Her petition was allowed by the Court, but thereafter on the intervention of respectable persons, their differences were patched up. In February, 1988 they started living together in village Korala. After some time again a dispute arose. The respondent wanted her to live in the matrimonial home. As she declined, their union again broke down. She was and is still ready to live with her husband.

In the replication, husband petitioner denied that in February, 1988 he lived with his wife and resumed co-habitation.

Parties adduced evidence. The Trial Court disbelieved the evidence adduced by the appellant respondent wife. The Trial Court held that after passing of the decree u/s 10 of the Act, the parties have not resumed cohabitation and thus the impugned decree was passed.

The appellant''s learned Counsel contended that the appellant wife has proved the circumstances which compelled her to leave her matrimonial home and to file a petition u/s 10 of the Act. The respondent-husband and members of his family treated her with cruelty. They demanded costly things in dowry which she was not in a position to provide. Under these circumstances, she was compelled to leave her matrimonial home and to file that petition. She has also proved that after the decree in February, 1988 they lived together for 15 days at village Korala and resumed co-habitation. The Trial Court has wrongly disbelieved her evidence. Lastly he contended that respondent husband cannot take advantage of his own wrong and ask for a decree of divorce u/s 13(1-A)(i) of the Act. To support these contentions he has relied on Ashok Kumar v. Smt. Shabnam Bhatnagar 1989 (12) M.L.J. 294) and H.M. Govil v. Smt. Sudha Govil 1985 (8) M.L.J. 75.

The respondent''s learned Counsel refuted the above arguments and submitted that the appellant has utterly failed to prove that after passing of the decree u/s 10 of the Act, the parties resumed co-habitation and lived together for few days in February, 1988 at village Korala. The Trial Court has minutely scanned the parties evidence and has arrived at a correct conclusion. Appellate Court cannot set aside the findings of fact, it they are not perverse or erroneous.

He further argued that the appellant-wife has not proved any circumstance to show that the respondent husband is taking advantage of his own wrong. Neither any such fact is pleaded nor proved. Hence he supported the decree.

The parties have taken me to go through the evidence on record. The appellant wife has pleaded that in February, 1988 she lived with the respondent-husband at Village Korala and they resumed co-habitation. To prove this plea she has not only examined herself, but has also examined Gian Singh (RW-2) and Kishan Singh (RW-3). According to me, the Trial Court has rightly disbelieved her evidence on this point. Gurdip Kaur (RW-1) has stated that in February, 1988 she was working in Child Welfare Centre, Korala. No documentary evidence has been produced to prove that in February, 1988 she was working in Child Welfare Centre, Korala. According to her, a Panchayat was convened in which she and her husband arrived at a compromise in the beginning of February, 1988. On 6.5.1987, she filed the petition u/s 10 of the Act which was decreed on 8.9.1987. On 10.10.1987 she filed a petition u/s 125 Cr.P.C. which was pending in the month of February, 1988. That was decided on 27.8.1988, but in February, 1988, she never moved any application before the Trial Magistrate that she and her husband have compromised and they are living together. According to her Gian Singh Sarpanch and Bishan Singh and few others brought about their compromise. The petitioner came all alone. Compromise was effected on Sunday at 9 a.m. but Gian Singh (RW-2) has stated that on 31.1.1988 respondent-husband came to him and on that very day compromise was effected between the parties. He has gone a step ahead to say that on two Sundays the parties lived in his Village Munak Kalan. Even the appellant wife has not stated so. The Trial Court has disbelieved this witness considering his past conduct and held that he is a pocket witness. He even does not know that on 31.1,1988. the parties were litigating in the Court. Kishan Singh (RW-3) is Sarpanch in whose house the appellant wife is alleged to have resided for 5/6 months in 1987-88. He has stated that 3/4 months prior to February, 1988, she was inducted in his house and in February, 1988 she left the job. No Rent Note was executed by her. He never gave any receipt to her about the payment of rent. He has stated that in the first fortnight of February, 1988 the appellant and respondent lived together in his house but even then he does not know that at that time litigation was going on between the parties. Had it been true that they lived together and co-habited with each other during those 15 days of February, 1988, she would have informed the Court of this development. Respondent husband has denied all these allegations. According to him, there was neither any compromise nor he lived with the appellant at Village Korala for 15 days in February, 1988. Thus the Trial Court has rightly held that the appellant has utterly failed to prove that the parties resumed co-habitation in February, 1988.

The other grouse is that the husband-respondent cannot take advantage of his own wrong and obtain a decree u/s 13(1-A)(i) of the Act. The appellant''s learned Counsel contended that the husband and the members of his family demanded various costly articles in dowry and when she was unable to satisfy their demand, she was beaten and was turned out of the matrimonial home. So the husband respondent cannot take advantage of his own wrong. This argument has not force. The said alleged wrong was committed by the respondent much before the passing of the decree for judicial separation. The appellant has neither pleaded nor proved that after passing of the decree, the respondent has committed any such wrong. The alleged acts of demand of dowry resulting in cruelty were alleged to have been committed by the respondent-husband before the decree u/s 10 of the Act was passed. Hence, it cannot be said that he is taking advantage of his own wrong and thus u/s 23(1)(a) of the Act he is disentitled to obtain the impugned decree.

The authorities relied upon by the appellant''s learned Counsel do not help the appellant at all. In Sudha Gavil''s case (supra) the divorce petition was filed by the husband on the grounds of cruelty and desertion. As there was no allegation of cruelty no issue was framed. The ground of desertion was held not proved by the husband. Conversely, it was held that from his letters, it is proved that he has made her to depart, he is to be blamed for the estrangement between the parties and thus he cannot be allowed to take advantage of his own wrong and obtain a decree for divorce on the grounds of cruelty and desertion. In Ashok Kumar''s case also husband filed a petition for divorce on the grounds of cruelty and desertion. On evidence it was held that husband is himself responsible for creating circumstances which compelled the respondent-wife to remain away from him and seek refuge in her parental home. Thus it was held that husband cannot be allowed to take advantage of his own wrong.

Consequently, finding the appeal meritless, it is hereby dismissed with costs.