Harbhajan Singh vs Harminder Kaur

J.V. Gupta, A.C.J.—This letters patent appeal is directed against the judgment of the learned Single Judge dated September 9, 1986, whereby the decree for judicial separation granted in favour of the petitioner by the learned Additional District Judge, Patiala, was set aside and the petition for seeking divorce filed by the husband was dismissed.

The parties were married way back on March 16, 1975. Out of the wed-lock a female child was born on February 21, 1978. On December 10, 1980, the husband filed divorce petition before the District Judge, Ludhiana, which was returned with the objection that the Court had no jurisdiction and thus the same was filed before the District Judge, Patiala on March 24, 1981. Since before the marriage, the wife was a lecturer in private college, whereas before marriage the husband was Junior Draftsman in Punjab State Electricity Board and after marriage he became the Probationary Officer in the Punjab and Sind Bank. According to the averments in the divorce petition filed by the husband, the parties lived together and cohabited as husband and wife at Ludhiana and at Bombay. When he was living at Bombay, the wife had paid a casual visit to Bombay during her holidays in the month of May/June, 1977 and they lived with love and affection for about six weeks. However, she left the matrimonial home at Bombay on July 6, 1977, without his consent and since then they have not resumed cohabitation in spite of repeated requests made by him through letters, friends and relatives. He is alleged to have sent a notice on December 20, 1977 informing her to join his company and that notice had no effect on her as she neither joined his company nor responded to the letter. He is alleged to have sent a letter dated February 28, 1979 to the Principal of her college with the idea to persuade her to join the company. The Principal requested her to join the company or at least to talk to him if there was any grouse but she refused to see the husband in her residential house or in the staff room. However, she met him in the compound of the college campus and in spite of his repeated requests, she declined to talk to him and refused to show the face of the child as well. The wife never informed him about the birth of the child and, therefore, even he did not know about the actual date of birth of the child. Thus, the wife has wilfully neglected her husband which amounts to desertion as contemplated u/s 13 of the Hindu Marriage Act.

In the written statement, the wife denied the allegations levelled against her by the husband and stated that she had immediately intimated the date of birth of the child to the husband but he never made an attempt to visit her and was callous enough not to see the child, what to talk of maintenance or bringing her up. On July 6, 1977, she was forced to leave the matrimonial home at Bombay after mal-treatment. He and his parents were dissatisfied with the dowry and they have developed psychological repulsion towards her and he occasionally subjected her to cruelty, nagging and humiliation. After the marriage the husband was only a Junior Draftsman in the Punjab State Electricity Board and after marriage and with her father''s help he was employed as an Officer in the Punjab and Sind Bank. On his becoming an officer in the Bank, he became stiffnecked and the mal-treatment increased. The blame was put on the husband for making no efforts for reconciliation whereas she was always ready and willing to go. She categorically denied any intention on her part for desertion and pleaded that all along she had been anxious for resumption of happy and harmonious marital relationship despite the fact that there was a reasonable cause for her to stay away as she was treated with extreme cruelty. The husband was held responsible for desertion and she narrated the husband''s conduct from time to time.

After discussing the entire evidence, the learned trial Court found that the wife was guilty of desertion for a continuous period of two years prior to the filing of petition without reasonable cause and on the peculiar facts of this case exercised his discretion u/s 13A of the Hindu Marriage Act, 1955, and granted a decree for judicial separation instead of divorce.

Efforts were made in the trial Court for re-conciliation as well as by the learned Single Judge. Even in this letters patent appeal efforts were made for reconciliation and on the last date of hearing both the parties were allowed to go together, but all these efforts failed in all the three Courts. From the attitude of both the parties it appears that it is a broken marriage and both are not in a mood to reconcile at present though serious efforts were made in this Court as well as in the Courts below.

Learned counsel for the appellant submitted that from the evidence on record particularly the letter Exhibit A-5 dated August 4, 1977 and reply thereto Exhibit A-6 dated August 8, 1977, it is quite evident that it is the wife who is responsible and has wilfully neglected her husband in spite of the best efforts being made on his part to bring her to the matrimonial home. He also argued that even when he had written a letter to her that he would be coming to see her in the College premises on August 15, 1980, she proceeded on leave on that day in order to avoid the meeting. Thus, her conduct speaks for itself and clearly proves the desertion on her part.

On the other hand, learned counsel for the respondent-wife submitted that as a matter of fact, the parents of the husband are standing in the way and if the husband is prepared to live separately she is prepared to go to live with him. According to the learned counsel, from the very beginning the husband is under the influence of his parents and, therefore, the parties are living separately since July 1977.

After hearing the learned counsel for the parties and going through the relevant evidence on record, we are of the opinion that there does not seem to be any serious dispute as such between the parties for reconciliation but at the same time it appears that both of them are not in a mood to re-concile at present. From the evidence on record, it is evident that it is the wife who has wilfully deserted her husband for this long period in spite of his best efforts in this direction. In our opinion the learned Additional District Judge, Patiala, has rightly exercised his discretion u/s 13A of the Hindu Marriage Act by granting the decree for judicial separation instead of a decree of divorce.

Consequently, this appeal succeeds, the judgment and decree of the learned Single Judge is set aside and of the Additional District Judge is restored with no order as to costs.