Labh Kaur vs Narain Singh

Labh Kaur, appellant, has challenged the correctness of decree of divorce obtained by Narain Singh, respondent, against her, from the Court of Mrs. Harmohinder Kaur Sandhu, Additional District Judge, Sangrur, on 25th of October, 1977 on the ground of having deserted the latter for a period of 2 years, under.S. 13(1)(i-b) of the Hindu Marriage Act.

The parties were married on 15th of February, 1967. The respondent belongs to village Duggan, District Sangrur, whereas the parents of the appellant reside in village Baradwal, Sub Tehsil Dhuri. Hey lived at village Duggan after marriage. Hey have three living children. He eldest is a daughter born in about 1969, the second is son, born in 1972; and the third is daughter, born in 1974. He respondent filed a petition for dissolution of his marriage with the appellant by a decree of divorce in October, 1976, alleging that the latter had withdrawn from his society for about 2 1/2 years without any reasonable excuse. Efforts to bring her back from the house of her parents have failed and the appellant has refused to come to him.

The appellant in her written statement admitted that she was living at the house of her father in village Baradwal. She added that she was maltreated after the birth of he son because he father gave Rs. 1500/-on that occasion, whereas the respondent wanted a motor cycle and a pair of bangles. The respondent was annoyed when his demand for Motor Cycle and a pair of bangles was not acceded to. The money given by her father was returned. The respondent started giving her beating on minor matters. The mother of the respondent started talking of re--marrying him and also putting end to her life. In 1974 she was pregnant. She was given some position in her food with the result that she began to vomit. She was turned out of the house of the respondent in that condition. Since then she was living with her parents. She gave birth to her second daughter in 1974 at the house of her parents. None had approached for taking her back to the house of the respondent. Her father approached the respondent and his father for approchement but the latter did not show any inclination.

The trial Court framed the following issues:--

Whether the respondent (now appellant) deserted the petitioner (now respondent) for a continuous period of not less than two years, immediately preceding the proceedings of the petition?

Whether the petitioner (now respondent) treated the respondent (now appellant) with cruelty?

The trial Court found both the issues in favour of the respondent and consequently dissolved his marriage with the appellant by a decree of divorce vide order dated 25th Oct. 1977. It is against this order that the present appeal is directed.

The respondent produced oral evidence in support of his case. A. W. Ujjagar Singh is the cousin of the respondent. He stated that he accompanied the respondent to the house of his in--laws about two months before the appellant gave birth to her third child. The appellant declined to accompany the respondent. The appellant complained that she was not having good relations with her mother--in--law. He again went with the panchayat consisting of Waryam Singh, Banta Singh and others to the house of the parents of the appellant for the same purpose but her father did not agree to send her. In his cross--examination he said that the father of the respondent told him that the dispute was between the appellant and the mother of the respondent. A. W. Banta Singh said that he had accompanied the panchayat which consisted of seven or eight persons to the house of the father of the appellant. She declined to come to the house of the respondent and her father also did not agree to send her. A. W. Sewa Singh in his cross--examination stated that the respondent did not tell him as to why the appellant had left his house but the appellant told that she was not pulling on with her mother--in--law. A. W. Waryam Singh also stated likewise. A. W. Dhanna Singh is the father of the respondent. He said that A. W. Jaggar Singh was first sent to bring the appellant. After that he sent the respondent along with Jaggar Singh to bring her. Then he took the panchayat to the house of the parents of the appellant for the same purpose but without any success. In his cross-examination he stated that he did not know why the appellant left his house nor did she disclose any reasons for her not coming to the respondent. A. W. Narain Singh, respondent, in this cross-examination admitted that the father of the appellant gave Rs. 1500/-when his son was born but he returned the amount to him on the same day because the father of the appellant had spent sufficient amount on the treatment of her brother.

Labh, Kaur, appellant, in her statement repeated that her father sent Rs. 1500/-when she gave birth to a son but the amount was returned because the respondent wanted a Motor Cycle or a Scooter and a pair of bangles. When her father did not meet their demand she was maltreated and was given beating many times. She said that she was willing to reside with the respondent if he lived separately from his parents. R. W. Jaggar Singh supported the case of the appellant and so did her father Baldev Singh (R. W.). R. W. Surjit Singh, Sarpanch of village Baradwal, supposed the case of the appellant as well.

The relevant portion of S. 13 of the Hindu Marriage Act reads as under:--Section 13:--"Divorce :--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:--

... ... ... ... ... (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

... ... ... ... ..

In Lachman Utamchand Kirpalani Vs. Meena alias Mota, , it was held that ''desertion'' meant the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent, and without reasonable cause. It was a total repudiation of the obligations of marriage. In case a spouse abandoned the other spouse in a state of temporary passion, like anger or disgust, without intending permanently to cease cohabitation it will not amount to desertion. Desertion implies the factum of separation and animus deserendi i.e. the intention to bring cohabitation permanently to an end. In the absence of animus deserendi a desertion could not be taken as proved merely because the parties were living separately. It was for the petitioning spouse to establish by convincing evidence, beyond any reasonable doubt, that the respondent deserted him or her.

In Smt. Rohini Kumari Vs. Narendra Singh, , the same view prevailed; that it was necessary for the purpose of desertion that there must be a determination to put an end to marital relations and cohabitation and without animus deserendi there could be no desertion.

From the evidence led by the parties, a summary of which has been given above, it is proved that the appellant left the house of the respondent about 2 1/2 years before the latter filed a petition for divorce against her in 1976. She is living at her father''s house since then. It is, therefore, proved that they are living at her father''s house since then. It is, therefore, proved that they are living separately since about April or May, 1974. The crucial point to be determined is if the appellant had animus deserendi at any time, and, if so, since when. In case the respondent fails to convince that the appellant was determined to put an end to marital obligations and cohabitation for a period of two years preceding the presentation of his petition, then it is obvious that his petition shall fail.

The respondent admitted in his statement during trial that his father--in--law gave Rs. 1500/-at the time the appellant gave birth to a son but the same was returned by the respondent and his family. The reason given by the respondent for the return of the amount is that the father of the appellant had spent substantial amount on the treatment of his own son. I am not convinced by the reason given by the respondent. The money or gifts given by the parents of the wife at the auspicious occasion when she gives birth to a child, particularly a son, are not normally returned. The fact that the respondent is the only son of his parents and the appellant gave birth to the first son and the amount offered by her father at such an auspicious occasion was not accepted by the respondent and his family, lends support to the allegation of the appellant that the respondent and his family wanted something more and they were not satisfied with the quantum of money offered as gift. The case of the appellant that she was maltreated by the respondent and his family thereafter, appears to be true. The appellant left the house of the respondent in 1974 when she was in a family way. She gave birth to her third child at the house of her parents about 4 or 5 months thereafter. The respondent or anyone else from his family did not visit the house of the appellant''s father on that occasion. All these events reflect that the atmosphere for the appellant at the house of her husband was not very congenial. In this situation she was compelled to go to her father and she is living there since then. She has three living children. With this background in view, it is difficult to hold that she developed animus deserendi, at any time. In the absence of animus deserendi, the ground of desertion on the part of the appellant towards the respondent cannot be taken to have been established.

In view of discussion above, the learned trial Court erred in returning the findings under the two issues in favour of the respondent and against the appellant. The findings of the trial Court are, therefore, reversed and the issues are found in favour of the appellant.

In the result, I accept the present appeal, set aside the judgment--decree of the trial Court, dissolving the marriage of the respondent with the appellant by a decree of divorce and dismiss the petition of the respondent. Parties are left to bear their own costs.

Appeal allowed.