Mahesh Kumar vs Smt. Anju

Prakash Tatia, J.—This appeal is against the judgment and decree passed by the Court of Addl. District Judge No. 1, Bikaner in Divorce Petition No. 44/99, dated 30.3.1999 by which the trial Court dismissed the appellant-applicant''s divorce petition filed on the ground of desertion by the wife.

Brief facts of the case are that the marriage of the appellant and respondent was solemnized on 29.11.1993. The appellant''s case is that the respondent lived in the house of the appellant till December, 1995 and since thereafter she is residing with her parents at Jaipur. The husband is resident of Bikaner. Before filing present divorce petition on the ground of desertion, the appellant submitted a petition u/s 9 of the Hindu Marriage Act, 1955 on 11.3.1997. In the said case, the non-applicant gave her statement on 16.4.1998. In the said statement, non-applicant respondent wife admitted that since 19.11.1995 she is residing with her parents at Jaipur and she is not willing to live with the husband on any condition. In the same line, the father of the respondent-wife also gave statement in the Court. According to the appellant-applicant husband, in view of the said statements, the appellant withdrawn his petition filed u/s 9 of the Hindu Marriage Act on 24.4.1998 and it appears from the record that on the same day, i.e. 24.4.1998 itself, the applicant submitted this divorce petition.

In the divorce petition, it is alleged that non-applicant lived with the applicant for two years and during this period she used to visit her parent''s house also. There was no misbehaviour of the applicant-appellant and his family members with the non applicant respondent nor they ever demanded any dowry. It is also alleged by the applicant that whatever ornaments and goods were given by the family of the non-applicant at the time of marriage, a list thereof was prepared, copy of which is placed on record as Annex. 1. The applicant stated that if there are some of the items are lying with him, he is ready to hand over those goods to the respondent. It is alleged that the non-applicant respondent left the appellant without any reasonable cause and thereby deserted the applicant-appellant and both are living separate and period of more than two years has passed and non-applicant has.shown her unwillingness to live with the applicant on any condition.

The non-applicant submitted reply to the divorce petition denying all the allegations and thereafter submitted that just after sometime of the marriage, the applicant-appellant''s mother and father started demanding dowry and abusing the non applicant''s family members. However, the non-applicant tried to live in the house and tolerated torture of the applicant and his mother and father. It is stated that the non-applicant''s mother and father arranged several meetings for reconciliation between the applicant and the non-applicant with the help of persons (panchayati) but the applicant''s mother and father were adamant for the dowry. It is stated that non-applicant''s parents had no means to fulfill the demands of the applicant and his family members and ultimately, the non-applicant was turned out in one dress by the applicant and his family members on 19.12.1995. Since then she is residing at Jaipur with her parents.

In view of the pleas taken by the parties, only one relevant issue about fact was framed and that is whether the non-applicant is living separate from the applicant since last two years without any reasonable cause and thereby has deserted the appellant-applicant? The another issue was the consequential issue, whether the applicant is entitled to decree for divorce?

In the trial Court, both the parties led their evidence. The appellant gave his statement as PW. 1 and produced his father Bhanwar Lal Sharma as PW. 2, whereas the non-applicant-respondent gave her statement as NAW-1 and also produced her father Mahesh Chand Sharma as NAW-2. In addition to above, the respondent non applicant produced one letter alleged to have been written by the father of the applicant dated 24.12.1994.

The trial Court while dismissing the divorce petition took note of the fact that earlier the applicant appellant submitted petition u/s 9 of the Hindu Marriage Act and that was withdrawn by him. The applicant''s father wrote letter dated 24.12.1994 Ex. 1, which clearly shows that by the said letter the dowry was demanded by the father of the applicant. It appears that the letter dated 24.12.1994 was treated to be a good proof for proving the cruelty by the husband against the wife respondent. In view of the above reasons, the trial Court dismissed the divorce petition filed by the husband appellant.

Being aggrieved against the judgment and decree of the trial Court dated 30.3.1999, the appellant husband has preferred this appeal.

The learned Counsel for the appellant vehemently submitted that admittedly the marriage of the appellant and respondent took place on 29.11.1993 and they are living separate since 19.12.1995. The divorce petition was filed in the Month of April, 1998. According to the learned Counsel for the appellant, it is clear from the statements of the non-applicant and her father given in the proceedings for restitution of conjugal rights filed by the applicant husband that they unequivocally stated in their statements that the respondent non applicant is not ready to live with the applicant appellant husband on any condition and even if the appellant husband keeps the respondent with full love and affection. Not only this, the father of the appellant, after taking instructions from her daughter, in his statement further stated that even if the applicant starts living separate from his mother and father in separate house, still the non-applicant is not ready to live with the husband.

The learned Counsel for the appellant further submitted that in view of the statements of the respondent wife and her father in earlier proceeding initiated u/s 9 of the Hindu Marriage Act after the statements on oath of both in present divorce petition, there was no reason for the appellant to keep the petition filed u/s 9 of the Hindu Marriage Act pending and, therefore, he withdraw the said petition and has filed the present divorce petition. It is also submitted that the filing of the petition u/s 9 of the Hindu Marriage Act is only an effort to bring the respondent in the house of the appellant and that fact has not been properly appreciated by the Court below. Learned Counsel for the appellant vehemently submitted that the Court below drawn wrong inference from the letter dated 24.12.1994 and therefore, '' reached to a wrong conclusion.

The learned Counsel for the respondent vehemently submitted that in view of the letter dated 24.12.1994, it is clear that the dowry was demanded in writing by the father of the applicant husband. It is also submitted that the non-applicant clearly stated in her statement that she was given beating and dowry was demanded, therefore, she could not have lived in the house of the applicant. She also stated that she was tortured and asked to bring colour TV etc. According to the learned Counsel for the respondent, the non-applicant clearly stated that she was virtually thrown out from the house by the applicant and his family members and in such situation, how she could have lived and how she can live with the respondent.

I considered the submissions of the learned Counsel for the parties and perused the reasons given by the Court below as well as the statements of both the parties and particularly the letter dated 24.12.1994.

Before proceeding, it will be appropriate to take note of the Section 9 of the Hindu Marriage Act which gives right to the parties to the marriage, to approach the Court for decree for restitution of conjugal rights in a case other party has withdrawn from the society of the applicant. The filing of petition u/s 9 of the Hindu Marriage Act by the applicant appellant before Tiling present divorce petition is an admitted fact. It is not in dispute that the said divorce petition u/s 9 of the Hindu Marriage Act was withdrawn by the applicant on 24.4.1998 and on the same day he filed the divorce petition. Before that, the statements of non-applicant wife and her father were recorded in the proceedings u/s 9 of the Hindu Marriage Act. It is also not disputed by the learned Counsel for the respondent that in the statement in the proceedings u/s 9 of the Hindu Marriage Act, 1955, the wife and her father, have clearly stated that the wife is not willing to live with the husband even if husband will keep the wife with love and care or even if he leaves his father''s house and starts living with wife in separate house. It appears that the appellant thought it appropriate that in such situation, no useful purpose will be served by continuing with the petition u/s 9 of the Hindu Marriage Act, 1955, he withdrawn that petition u/s 9 of the Hindu Marriage Act, 1955 and filed petition u/s 13 of the Hindu Marriage Act, 1955 for divorce on the ground of desertion by the non-applicant respondents.

The Explanation u/s 9 of the Hindu Marriage Act, 1955 puts specific statutory burden upon the person who has withdrawn from the society of the applicant to show reasonable excuse for withdrawing from the society of the applicant. Had it been a case of Section 9 of the Hindu Marriage Act, 1955, it would have been burden upon the respondent applicant to prove reasonable excuse for the withdrawal from the society of the applicant. The explanation u/s 9 of the Hindu Marriage Act, 1955 is as under:

Explanation: - Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

The applicant in present case for the reason as explained by the learned Counsel and stated in divorce petition, withdrawn the said petition u/s 9 of the Hindu Marriage Act as by obtaining decision on petition u/s 9 of the Hindu Marriage Act, the applicant would have got a decree for restitution of conjugal rights only and that decree is not executable decree nor it could have served any purpose. During pendency of petition u/s 9 of the Hindu Marriage Act, 1955, the cause of action accused for filing divorce petition and in view of the statement of non-applicant and her father there was no way out for the applicant except to seek divorce.

After going through the statement of the non-applicant and her father given in proceedings u/s 9 of the Hindu Marriage Act, 1955, I have no hesitation in holding that after the non-applicant''s and her father''s statement dated 16.4.1998, copies of which have been placed on record as Ex. 2 and Ex. 8, appellant applicant was right in filing the present divorce petition and if any order or decree would have been passed in favour of applicant, it would not have served any purpose for either party. The reason is that, in the cases u/s 9 of the Hindu Marriage Act, the burden is upon the non-applicant to show cause for withdrawal from society of applicant and if no sufficient reason is shown by non-applicant for living separate from applicant, the Court can pass the decree for restitution of conjugal rights. Even after such decree, if non-applicant will not discharge his/her obligation and there is no restitution of conjugal rights between the parties for a period of one year, as per Sub-Clause (ii) of Sub-section (1A) of Section 13, the applicant of petition u/s 9 , can seek divorce decree. Meaning thereby, in the present case the appellant husband if would have continued with proceedings u/s 9 of the Hindu Marriage Act and would have obtained decree under said proceedings, he could have filed the petition for divorce an year after decree in proceedings u/s 9 of the Hindu Marriage Act. In the facts of this case, it is clear that cause of action accrued to husband for obtaining divorce decree on the ground of desertion u/s 13(1)(1b) of the Hindu Marriage Act during pendency of petition u/s 9 of the Hindu Marriage Act and in view of non-applicant and her father''s statements, the appellant applicant as a prudent man decided not to wait further for obtaining decree u/s 9 of the Hindu Marriage Act and decided to file present divorce petition u/s 13(1)(1b) of the Hindu Marriage Act. In the light of above reason, the pendency of petition u/s 9 of the Hindu Marriage Act, 1955 might have created unnecessary multiplicity of proceedings, contradiction and hurdle in deciding the matrimonial dispute between the parties. 1 shall be dealing the statements of non-applicant and her father in detail but before that one legal aspect is required to be considered.

Nowm a case where the petition filed under Sub-Clause (1b) of Sub-section (1) of Section 13 of the Act of 1955 for divorce decree on the ground that the non-applicant has deserted the appellant for continuous period of not less than. two years immediately preceding the presentation of the petition and in substance, the relief u/s 9 of the Hindu Marriage Act, 1955''is for seeking decree against the non-applicant for joining the society of the applicant the allegation of applicant is same i.e. the non-applicant has no reasonable cause to withdraw from the society of applicant. The relief in two proceedings are contrary to each other, i.e. u/s 9 of the Hindu Marriage Act, 1955, direct the non-applicant to live with applicant and in proceedings u/s 13(i-b) of, the Hindu Marriage Act on the same ground marriage be dissolved. In proceedings u/s 9 , burden is upon the person who has withdrawn from the society and he/she can only be non-applicant. But to claim relief u/s 13(i-b) the burden is upon the applicant as no explanation as is u/s 9 has been appended u/s 13(i-b). This appears to be anomaly.

It maybe true that no such specific provision has been made putting burden upon the person who has withdrawn from the society to show reasonable excuse for withdrawing from the society of the applicant for proceedings seeking divorce on the ground of desertion, but some principle can be applied when the fact of marriage is admitted and the applicant proves by his evidence that the non-applicant has withdrawn from the applicant and period of two years has passed from the presentation of the divorce petition. This burden upon the appellant is negative burden and, therefore, principle of law applicable for proving a negative issue, can be applied which shall be in consonance with the explanation u/s 9 of the Hindu Marriage Act, 1955.

In view of the above reasons, once the marriage is admitted and separation is also admitted, the applicant seeking divorce on the ground of desertion can reasonably shift the onus upon the non-applicant by his statement only, provided those statements are reasonably believable. The heavy burden lies upon the person who withdraws from the society, either to prove that there was reasonable excuse for him or her for withdrawal from the society of the applicant.

The facts of this case reveal that there is allegation f the applicant that after the marriage of the applicant-appellant and the non-applicant-respondent on 29.11.1993, the respondent left him on 19.12.1995 and there is no reasonable cause for living separate. He made several efforts to bring back the non-applicant by moving petition u/s 9 of the Hindu Marriage Act, 1955. The non-applicant''s and her father''s statement were recorded in the proceedings u/s 9 of the Hindu Marriage Act, 1955 and the non-applicant shown her unwillingness to live with the husband on any condition. Relevant portion of the statement of the non-applicant recorded u/s 9 of the Hindu Marriage Act, 1955 will be worthwhile to quote, which reads:

iz�u & vxj egs�k vkidks cgqr I;kj ls j[ks] iqjk lEeku ns rFkk dksbZ Hkh rdyhQ rqEgsa ugha gks rks fQj Hkh D;k vki mlds lkFk jgus dks rS;kj gS\\

m�kj & eSa fdlh Hkh lqjr esa o fdlh Hkh �krZ ij egs�k ds lkFk jgus dks rS;kj ugha gwaA esjh n`f"V esa egs�k Bhd vkneh ugha gSA

iz�u & D;k vki egs�k ls rykd pkgrh gks] vkSj pkgrh gks rks fdl �krZ ij\\

m�kj & esjk firk bl ekeys es fu.kZ; ysaxs fd eq>s rykd ysuk pkfg;s ;k ughaA

iz�u & D;k vki dHkh Hkh egs�k ds lkFk fdlh Hkh �krZ ij jg ldrh gks\\

m�kj & eSa egs�k ds lkFk dHkh Hkh fdlh Hkh �krZ ij ugha jg ldrh gwaA

It will also be relevant to quote the statement of the father of the non-applicant, which reads as under:

iz�u & D;k vki fdlh Hkh �krZ ij Hkh vius ekrk firk ls vyx jgdj edku ys ys vkSj mlesa esjh csVh dks j[ks rFkk I;kj ls j[ks rks eSa viuh csVh dks egs�k ds lkFk jgus ds fy, rS;kj dj yaqxkA

iz�u & egs�k vius ekrk firk ls vyx jgdj edku ysus ds fy, rS;kj gS rFkk og vkidh csVh dks I;kj ls j[ksxkA crkbZ;sa fd vc vki dc Hkstsaxs\\

m�kj & eSa viuh csVh ls ckr djds crk ldrk gwaA

uksV & bl LVst ij c;ku dqN nsj ds fy, MsQj fd;k tkrk gSA

vkj vks ,.M , lh

,l- Mh-

ftyk U;k;k/kh�k] chdkusj

16.4.98

iqu% �kiFk fnykbZ xbZA

iz�u & vc rks vkius viuh csVh vatw �kekZ ls ckr dj yh gS egs�k viuh iRuh vatw �kekZ dks vyx edku ysdj I;kj ls j[kus ds fy, rS;kj gS D;k vki mls Hkstuk pkgrs gS\\

m�kj & vHkh rks esjh vatw fdlh Hkh �krZ ij egs�k ds ?kj tkus ds fy, rS;kj ugha gSA

In view of the above statement of the non-applicant and her father, it is clear that the non-applicant has unequivocally shown her unwillingness to live with the husband and that too on any condition. The non-applicant since admitted that since December, 1995 she is living with her parents and in view of the statement of the applicant and his father, it is clear that according to them the non-applicant is living with her parents without any reasonable excuse for living separate from the appellant. Now the onus is upon, rather say burden is upon the non-applicant to prove reasonable cause and excuse for her withdrawal from matrimonial home and particularly for her withdrawal from applicant husband.

To find out whether there was any reasonable excuse for the applicant to live separate from the appellant, the allegations of the non-applicant are that the applicant''s family members gave beating to the non-applicant and dowry was demanded by the family members of the applicant and the applicant himself. In support of said plea, pleading is vague and the non applicant gave absolutely vague statement that the applicant was harassing her and used to beat her also. She was not given meals. She was closed in a room. She called her father and her father took her to Jaipur. There is no specific incident disclosed by the applicant either in the reply to the divorce petition or in her statement. Not only this but she did not disclose during period of two years, when she was given beating and when she Was closed in the room. It is admitted case as she admitted in the statement that she never complained against her in-laws before her parents or her family members. It will be worthwhile to mention here that in earlier proceedings u/s 9 of the Hindu Marriage Act, she clearly stated that she is not willing to live with the applicant on any condition but when her statement was recorded in the present proceedings on 5.11.1999, she stated that in case she is not given beating and there is no demand of dowry, the non-applicant is ready to live with the husband. In view of her earlier statement recorded on 16.4.1998 in the proceedings u/s 9 of the Hindu Marriage Act, 1955, it is clear that her subsequent statement is after thought only. It is not a case of the non-applicant that situation improved thereafter, therefore, she has shown her willingness to live with her husband. Even non-applicant''s father also gave vague statement about the demand of dowry and mental torture to the non-applicant. The non-applicant and her father tried to improve their case in proceedings u/s 13 of the Hindu Marriage Act but both are not trustworthy witnesses in view of their statements on oath given earlier as well as from their cross-examination.

The non-applicant heavily relied upon the letter Ex. A. 1. In the letter Ex. A.1 dated 24.12.1994, the applicant-appellant''s father wrote to the non-applicant''s father that they gave wrong thing to the appellant (it appears that applicant''s father referred non-applicant as "wrong thing"). In this letter, the father of the applicant wrote to the father of the non-applicant that since father of the non-applicant told father of the applicant that the non-applicant''s family should be made aware about the customs for occasion of the festivals, therefore, he is informing what dresses are given to the ladies on occasion of festivals to the family members of the husband. In this the father of the applicant stated that whatever money which you sent for family members that is sufficient but for four ladies (elder brothers'' wives of the husband), it is necessary to give one Sari and one Blouse to each, therefore, five dresses may be sent to the applicant''s house by next month. In this letter, the father-in-law of the non-applicant complained to the father of the non-applicant respondent that they never gave even a single Sari to the non-applicant and the applicant and his family members are not demanding anything for themselves but the father should have given some clothes to his daughter. In the letter it is also stated that treat it as an standing order that whenever their daughter comes to their house and come back to the house of the applicant, she should bring at least 5 to 7 saris. It is also written in the letter dated 24.12.1994 that this may continue only till you are there. Thereafter it is further stated that what the father of the non-applicant has said and now they should maintain the relations. This letter, according to the learned Counsel for the respondent, is sufficient proof of dowry. This Court is not convinced because of the simple reason that making aware about the customs and making aware about what is to be done at the time of festivals by the family members and suggestion to send few saris and blouses for 4 to 5 ladies of the family members as per family/caste culture, that cannot be said to be a demand of dowry. In matrimonial relations, many things are stated and suggested by one party to other party, that does not mean that it is demand of dowry. Not only this, entire tenure of the letter Ex. A. 1 appears to be a mild complaint to the wife''s father by the husband''s father which in matrimonial relations deserves to be ignored. Relevant fact is that said letter is dated 24.12.1994 and non-applicant admittedly lived with the husband till December, 1995 for one good year. The non-applicant could produce only one letter written by the applicant''s father and has made it basis for levelling allegations that there is demand of dowry whereas in the letter dated 24.11.1994, it is clearly mentioned that the father-in-law is not demanding anything for himself or his family or for his son.

The respondent further failed to explained why she never complained about any alleged cruelty even when the applicant filed the petition for restitution of conjugal rights.

In view of the above, it is proved fact that the non-applicant left the applicant on 19.12.1995 without any reasonable cause and the finding of the Court below that there was demand of dowry by the appellant and his family members is without there being any evidence on record and because of the misreading of the letter dated 24.12.1994.

In view of the above, the appeal of the appellant deserves to be allowed and hence allowed and the judgment and decree passed by the trial Court dated 30.3.1999 is set aside. The divorce petition filed by the applicant-appellant is allowed. The marriage of the applicant-appellant stands dissolved from today.