Prem Pal vs Poonam Devi

S.S. Saron, J.—This appeal has been filed by the appellant Prem Pal against the judgment and decree dated 24.5.2011 passed by the

learned District Judge, Jhajjar whereby the petition filed by the appellant u/s 13 of the Hindu Marriage Act, 1955 (""Act""-for short) seeking

dissolution of the marriage between the parties on the ground of cruelty and desertion has been dismissed. The marriage between the parties was

solemnized on 18.6.1999 according to Hindu rites and ceremonies. The ''Gona'' ceremony was held in 2005. The marriage was consummated but

the parties have had no child from their marriage. The appellant stated that the behaviour of the respondent and her family members since the time

of the marriage had been cruel and uncooperative towards him. However, the appellant hoped that with the passage of time, her behaviour would

improve; rather it went from bad to worse. It is alleged that on 25.5.2006 the respondent consumed ''celphos'' (aluminium phosphide) in the

morning. She was taken to the doctor and her parents were also called. They came to the house of the appellant and it was decided that their life

cannot be normal in the prevailing circumstances. Accordingly a writing dated 27.5.2006 was scribed in the presence of the parents of the

respondent. The respondent in terms of the said writing admitted that she had been residing with her parents-in-law till 27.5.2006 (Mark P-2) and

from the said date, she had started to reside separately. She has got her rights and articles from her in-laws. Besides, her parents-in-law are not at

fault. From then, she would have no relations with her parents-in-law, brothers-in-law and their wives. She would be responsible for herself and

her household. For any wrong act done by her, she would herself be responsible. Despite this it is alleged that the respondent was giving

threatening calls to the appellant that she would come to the house of the appellant and commit suicide as she had done previously. The respondent

and his family members also threatened that they would involve the appellant and his family members in a false criminal case. The said behaviour of

the respondent caused mental cruelty to the appellant. The same was of such a nature that it became impossible for the appellant to lead his life

with the respondent except at the cost of his health and life. The parents of the appellant convened Panchayats at Charkhi Dadri many a times and

tried for reconciliation of the matter. They requested the respondent and her family members for the rehabilitation of the parties. However, the

Panchayat members misbehaved with the appellant and he was turned out from the house by the respondent. The respondent stated that she had

disassociated all relations of husband and wife between them. Since 27.5.2006, the respondent had been living with her parents at Charkhi Dadri

and she had deserted the appellant without any sufficient cause and against the wishes of the appellant. This according to the appellant constituted a

cause of action for filing the petition. The appellant had earlier also filed a petition for divorce on 27.10.2006, which was compromised in the

Permanent Lok Adalat where the respondent stated that she had settled her dispute with the appellant. On the said ground, the petition was

dismissed as withdrawn on 28.3.2009. However, the respondent did not join the company of the appellant. A Panchayat was convened by the

appellant on 4.4.2010 which went to the house of respondent at Charkhi Dadri but her (respondent''s) parents did not allow the Panchayat

members to enter their house. Therefore, the petition for grant of divorce had been filed.

On notice, the respondent appeared and filed her written statement. The fact of marriage between the parties is admitted. It is submitted by the

respondent that her father was an employee of the Haryana State Electricity Board. He died after about two years of the marriage between the

parties. The brother of the respondent gave various dowry articles like motorcycle, refrigerator, cooler, washing machine, double bed, dressing

table, etc. at the time of ''Gona'' ceremony of the respondent in August/September 2004. The allegations regarding behaviour of the respondent

and her family members being unbearable and uncooperative to the appellant was denied. It is submitted that the respondent was always co-

operative and submissive to the appellant from the date of their marriage. She paid all respects to the appellant and his family members. Besides,

she performed her matrimonial and domestic duties and liabilities with full sincerity. The allegation of consuming ''celphos'' (aluminium phosphide)

as had been alleged was denied. It is stated that the actual facts were that the appellant and his family members were not satisfied with the dowry

articles given by the brother of the respondent at the time of ''Gona'' ceremony. They started to ill treat the respondent for bringing insufficient

dowry. The appellant was unemployed at the time of marriage and he was recruited in the military by the efforts of the father and brother of the

respondent. The respondent was forced by the appellant and his family members to claim her share in the amount given on the death of her father

by the Electricity Department. The appellant, mother-in-law of the respondent namely Indro and elder brother of the appellant namely Satpal and

younger brother of the appellant namely Amar Pal started taunting her for not bringing sufficient dowry. They pressurized her to bring at least a

Maruti Car or Rs. 1 Lac from her brother. The appellant and his brothers and mother, it is alleged, tried to forcibly administer poison to her

forcibly but she strongly resisted the assault. In the meantime, sister of the respondent who was living in a separate house at some distance came

there and freed the respondent from the grip of the appellant and his family members. In the process, the poison fell on the respondent due to

which she felt giddiness. The respondent was got admitted in a private nursing home at Kosli. She and her sister did not disclose the said fact with

the hope that the appellant would mend his ways but the appellant did not improve his behaviour towards the respondent. Ultimately, the

respondent was put on a train to Charkhi Dadri and she was asked to bring a Maruti Car and cash from her brother. The brother of the

respondent namely Satish along with the son of his uncle namely Sanjay and a neighbour of Sanjay went to the matrimonial home of the respondent

to settle the matter amicably. However, the appellant misbehaved and threatened that if the above stated demands were not satisfied, he would be

remarry. Besides, the signing of the paper by the respondent on 27.5.2006 and giving it to the appellant is emphatically denied. The said document,

if any, it is stated has been procured by the appellant just to create false evidence. The allegations of making threatening calls to the appellant are

denied. It is submitted that the appellant misbehaved with the respondent and she was turned out from her matrimonial home by him. Another sister

of the respondent namely Kaushalya is married to the elder brother of the appellant namely Raj Pal. She was also ill treated by the mother-in-law

and other family members of the respondent. Due to the said reason, the parties had started living separately. The respondent, it is submitted, is a

''pardanashin'' lady where complaints against her husband and family members are not expected to be made. Therefore, the respondent did not

make any complaint against the appellant and his family members before the Police. The appellant has, however, never shown any inclination at any

stage to take the respondent back to her matrimonial home and he is not willing to keep the respondent in his matrimonial home. Rather he wants

to get rid of the respondent so as to remarry. The allegations of the appellant and his parents regarding convening of any Panchayat to reconcile the

matter as alleged are denied. The Panchayat members or any other person from the family of the respondent were never misbehaved with by the

appellant as alleged. The respondent tried her best to settle her matrimonial life with the appellant but the appellant and his family members

constantly insulted, abused and misbehaved with her. There was always a constant nagging by the mother-in-law of the respondent. The appellant

and his family members created an atmosphere to deprive the respondent from the company of the appellant. The conduct of the appellant, it is

stated, is parasitical, selfish and callous and he never gave any regard, respect and proper status of wife to the respondent in her matrimonial home.

It is submitted that the appellant himself had turned out the respondent from her matrimonial home. He himself created such a situation and did not

allow the respondent to live in the matrimonial home. The appellant was not willing to keep the respondent in the matrimonial home while the

respondent was still willing to live with him and he cannot take the benefit of his own wrong. The appellant immediately after withdrawing the case

from the Lok Adalat went from the Court without even speaking a single word with the respondent. The previous petition was filed by the

appellant on the same ground and the same had been compromised. So the present petition, it is submitted, on the same ground was not

maintainable and was barred by the principle of res judicata. The appellant did not allow the respondent to come back in his society. The appellant

never brought any Panchayat on 4.4.2010 to Charkhi Dadri at the house of the respondent. It is submitted that an application u/s 125 of the Code

of Criminal Procedure was also pending between the parties in the Court of learned Judicial Magistrate 1st Class, Charkhi Dadri, District Bhiwani.

An additional objection has been raised that the appellant previously filed a divorce petition titled Prem Pal v. Poonam Devi bearing suit No. 106

of 2006 on the same grounds mentioned in the present petition which was decided by the Court of learned Additional District Judge vide order

dated 28.3.2009 being compromised. Therefore, the present petition on the same ground was barred by the principle of res judicata. The

appellant, it is submitted, was estopped by his act and conduct from filing the present petition. Besides, he has no locus standi to file the petition.

The appellant has not come to the Court with clean hands. The present petition has been filed on false facts and fabricated documents to harass the

respondent. Therefore, it is prayed that the petition be dismissed.

On the pleadings of the parties, the following issues were framed:

Whether the marriage of the parties to the petitioner is liable to be dissolved on the grounds of cruelty and desertion as alleged in the petition?--

OPP

Whether the petition is barred by the principle of res judicata as alleged in the written statement?--OPR

Whether the petitioner is estopped from filing the present petition by his own act and conduct?--OPR

Whether the petitioner has no locus standi to file the petition?--OPR

Relief.

The learned Trial Court after considering the evidence and material on record dismissed the petition.

The appellant in order to establish his case of desertion and cruelty had tendered in Court his affidavit dated 21.4.2011 (Ex. P1). He reiterated

the averments as were made in the petition for the grant of divorce. He was cross-examined by the learned Counsel for the respondent. It is

admitted as correct by the appellant that his father-in-law was serving in the Haryana State Electricity Board and he died after their marriage. It is

also admitted as correct that his sister-in-law (sister of his wife) namely Kaushalya is married to his brother Raj Pal. He denied the suggestion that

he and his family members were not happy with the dowry brought by Poonam (respondent). It is also stated as incorrect that he ever administered

poison to Poonam. According to him, Poonam (respondent) herself consumed poison. Their ladies were ''pardanashin''. It is stated as correct that

Poonam (respondent) did not lodge any criminal case against the appellant and his family members. It is further stated as incorrect that she did not

lodge a case because she wanted to settle her married life with the appellant. The allegations of convening Panchayat by the brother of Poonam

(respondent) and his relative to settle their married life are denied. It is also denied that the respondent was ousted from their house by the

appellant and his family members when she failed to bring a car and Rs. 1 lac to fulfil their demand. The filing of earlier petition for divorce and its

dismissal as withdrawn on 4.4.2009 (Ex. R-1) is admitted. The appellant stated that he withdrew the said petition because the parties decided to

settle their married life. However, after dismissal of the said petition, the respondent refused to come to his house to settle in the married life.

Therefore, he filed the present petition. He did not file any petition u/s 9 of the Act. It was incorrect that Poonam (respondent) had co-operated

with him and his family members. It is accepted as correct by the appellant that he was unemployed at the time of the marriage. It is stated as

incorrect that he had filed the divorce petition to get rid of the respondent and to contract second marriage with an intent to get more dowry. The

other suggestions were denied being incorrect.

Satpal son of Risal Singh tendered in evidence his affidavit (Ex. P2) and he reiterated the stand regarding uncooperative behaviour of the

respondent towards the appellant and that it was unbearable and cruel. He was cross-examined which is somewhat similar to that of Prem Pal

(appellant). Karamjit, Ex-Sarpanch tendered in evidence his affidavit (Ex. P3). It is stated by him that on 27.5.2006, he came to know that wife of

the appellant Prem Pal consumed ''celphos'' (aluminium phosphide) and on that matter, a Panchayat was held in his presence at his village

Dhanirwas, Tehsil and District Jhajjar in the house of Prem Pal (appellant). In the Panchayat, the wife (respondent) of Prem Pal (appellant) and her

parents felt sorry and gave in writing that in future if the wife (respondent) of Prem Pal (appellant) did any such kind of illegal act then Prem Pal

(appellant) and his family members would not be responsible. More than on 10 occasions, Panchayat had been convened on the matter that wife

of Prem Pal had left his society. On each and every time, the Panchayat in the presence of Karamjit, Ex-Sarpanch made several efforts so that the

married life of Prem Pal (appellant) with his wife (respondent) may be settled but all in vain. Lastly on 4.4.2010 he (Karamjit Ex. Sarpanch) and

Suresh Lambardar, some relatives and family members of the appellant went to Charkhi Dadri to make efforts so that the married life of the

appellant and his wife (respondent) may be settled. However, when they reached at the house of his wife, they did not open the gate of their house.

They waited there for more than one hour. Lastly it is stated that the respondent did not want to settle her married life with the appellant. He was

cross-examined by the learned Counsel for the respondent. It is stated as correct by Karamjit that the respondent admitted that she consumed

poison and she assured the Panchayat that she would not commit such a mistake in future. It is stated as incorrect that Prem Pal (appellant), Satpal

and their mother administered poison to Poonam (respondent). It is stated as incorrect that no Panchayat was convened at Dadri in this regard.

The appellant tendered Mark P-1 the call details of the respondent and closed his evidence.

In defence Poonam (respondent) submitted her affidavit (Ex. P2) in which she reiterated the stand as given by her in the written statement. She

denied that she consumed any ''celphos'' (aluminium phosphide). She stated that the appellant and his family members were not satisfied with the

dowry articles given by the brother of the respondent at the time of ''Gona'' ceremony. They started to ill-treat the respondent for bringing

insufficient dowry. The appellant was unemployed at the time of marriage and he was got recruited in the Army with the efforts of the father and

brother of the respondent. The respondent was forced by the appellant and his family members to claim her share in the amount given on the death

of her father by the Electricity Department. The appellant (husband of the respondent), mother-in-law of the respondent namely Indro and elder

brother of the appellant namely Sat Pal and his younger brother namely Amar Pal, it is stated, taunted the respondent for not bringing sufficient

dowry. They pressurized her to bring at least a Maruti Car or Rs. 1 lac from her brother. The appellant and his aforesaid brother and mother tried

to forcibly poison to respondent but she strongly opposed the act of the appellant and his family members. In the meantime, the sister of the

respondent namely Kaushalya, who was living in a separate house at some distance, came there and she got the respondent freed from the grip of

the appellant and other members of his family. In that process, the poison fell on the respondent due to which she felt giddiness and she was got

admitted in a private nursing home at Kosli. The respondent and her sister did not disclose the said fact with the hope that the appellant would

mend his ways but he did not improve himself towards the respondent. She was cross-examined by the learned Counsel for the appellant. She

stated that she along with the appellant resided with the family members of the appellant in a joint family. There was a joint ration card (Ex. P-4) of

their family and in the said ration card (Ex. P-4), she and appellant were only two members but the name of the appellant was not mentioned in the

ration card as he was serving in the Army. She had seen the photocopy of writing dated 27.5.2006 (Mark P2). It is stated that the original of the

said writing was not written and thumb marked by her. It is stated as correct that she did not come to village Dhanirwas after May 2006. It is

correct that the appellant never met her after May 2006. It is stated as incorrect that the appellant never asked her to claim share in the

compensation amount of her father. It is stated as correct that her sister Kaushalya was living with her husband Rajpal. She denied that the

appellant along with a Panchayat visited her parental house in the year 2007. It is also stated as incorrect that on 3.4.2010, Prem Pal (appellant)

along with a Panchayat against visited her parental house and that her parents did not allow them enter the house. It is stated as incorrect that the

appellant and his family members did not demand a car and a sum of Rs. 1 lac from her. It is stated as correct that she did not make any complaint

against the appellant and his family members when they ousted her from her matrimonial home. It was correct that her ''Bhabi'' had lodged a

criminal case against her brother and other family members in respect of demand of dowry. She was not an accused in that case. It is also stated as

correct that her brother and cousin came several times to her matrimonial home to request the appellant and his family members to settle their

married life, but she could not tell the exact date of their visit. It is stated as incorrect that she had sworn a false affidavit. She closed her evidence.

Learned Counsel for the appellant has placed strong reliance on the writing dated 27.5.2006 (Mark P2) to contend that the respondent herself

admitted that she had consumed ''celphos''. The said writing dated 27.5.2006 (Mark P2), it is submitted, goes to prove and establish the case of

the appellant in all respects. According to the learned Counsel for the appellant, the said writing has been scribed in the own handwriting of the

respondent. In response, learned Counsel appearing for the respondent has submitted that the writing said to be dated 27.5.2006 (Mark P2) has

not been proved on record and that the respondent has denied the same. It may be noticed that the writing dated 27.5.2006 (Mark P2) indeed has

not been proved on record in accordance with the mode of proving documents. The said writing was put to the respondent when she was under

examination on oath. However, the respondent denied having scribed the said writing dated 27.5.2006 (Mark P2). To a specific question put to

the respondent in this regard, she has denied the same. Besides, in case she had scribed the writing (Mark P2) dated 27.5.2006 as is alleged then

there was no occasion for her to thumb mark it and she would have simply signed it. The original of the writing has not been produced and only a

photocopy of the same was produced in Court. Therefore, it is difficult to hold that the respondent had consumed ''celphos'' (aluminium phosphide)

tablets and that she had admitted the same by way of a writing (Mark P2). Besides, it is the case of the appellant that the respondent was taken to

a private hospital at Kosli when she is said to have taken ''celphos'' (aluminium phosphide) tablets. However, no record from the private nursing

home at Kosli, where the respondent is stated to have been taken, has been produced to show that the respondent was admitted there as a case of

consuming ''celphos'' (aluminium phosphide). The learned Trial Court has held that the writing dated 27.5.2006 (Mark P2) is by itself sufficient to

draw an inference that it was got prepared by the appellant and his family members to save themselves of their involvement in the criminal case

regarding administration of poison. They had attempted to show that the respondent was residing separate from the parents and brothers of the

appellant. The appellant himself was serving in the Army and he could not come to his native village without the permission of the authorities.

Therefore, he could not be involved in the case. However, the parents and brother of the appellant were residing in the village. Therefore, there

was every possibility of they being involved had the respondent lodged the complaint against them regarding administration of poison. It is for the

said reason that the original of Mark P2 was not produced by the appellant and his family members to be on the safer side. The document it was

held had not been proved. Indeed the writing (Mark P2) has not been proved in accordance with the mode of proving documents. Merely

because the appellant has produced on record the writing Mark P2 which is said to have been scribed by the respondent which the respondent has

denied would in no manner mean that the document has been proved. The appellant was liable to prove the document by modes of proving the

document in accordance with the law and his mere bald statement that the document (Ex. P2) was scribed by the respondent is of no significance

whatsoever. The inference drawn by the learned Trial Court that had the appellant proved the document it would have gone against him is,

therefore, quite correct. In the absence of the writing being proved which is the only ground urged for establishing cruelty it is quite evident that the

allegation of cruelty does not stand established. The allegations of cruelty in fact have been made in a general manner. These are more in the nature

of normal wear and tear of the matrimonial life. The allegations made by one of the parties is countered by the other. The respondent has rather

stated that she was turned out because of a demand for a Maruti Car or Rs. 1 lac.

The allegation of desertion has also been made in a vague manner. There is no material to show that there was animus deserendi on the part of

the respondent to leave her matrimonial home. The Supreme Court in Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, has held that desertion is

the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end

without reasonable cause and without the consent of the other spouse, but the physical act of departure by one spouse does not necessarily make

that spouse the deserting party. Desertion in essence in fact means the intentional permanent forsaking and abandonment of one spouse by the

other without that other''s consent and without reasonable cause. Desertion as has been understood as a ground for divorce is not mere withdrawal

from a place of abode but from the state of things and the intention of snap the tie of sacrosanct marriage for all times to come. For proving the

charge of desertion, so far as deserting spouse is concerned, two essential conditions must be there i.e. (i) the factum of separation and (ii) the

intention to bring the cohabitation permanently to an end i.e. animus deserendi. Besides, two elements for the deserted spouse are necessary i.e.

the absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home. In the present case, the

respondent has stated that she was willing to live in her matrimonial home and for which Panchayats had also been convened. Therefore, there is

nothing to show on the part of the respondent that she intends to snap the sacrosanct ties permanently. It may also be noticed that the appellant

had earlier filed a petition for divorce which was decided on 28.3.2009. The parties had got recorded their joint statements to the effect that they

had decided to live together. The respondent agreed to withdraw the maintenance petition. According to the joint statement, the petition for

divorce was disposed of as not pressed. In terms of the compromise, the parties were to live together and the respondent was to withdraw the

maintenance petition for which the parties were to take appropriate steps in the competent Court trying the maintenance petition. The petition for

divorce was disposed of as not pressed due to the compromise. The said compromise between the parties would condone the previous act of

desertion even if any between the parties. Indeed nothing has been brought on record by the appellant that there was a state of things on the part of

the respondent to bring the cohabitation between them permanently to an end. Although there may be the factum of separation. But the second

element of animus deserendi is not shown to be established. Therefore, it cannot be said that the respondent had treated the appellant with cruelty

or that she had deserted him. In the circumstances, the learned Trial Court rightly came to the conclusion that the cruelty and desertion are not

proved. The burden of proving issues Nos. 2 to 4 was on the respondent. However, these were not pressed by her at the time of arguments.

Accordingly, these were decided against her and in favour of the appellant. In the present appeal also, no arguments were addressed on these

issues. In the circumstances, there is no merit in this appeal and the same is accordingly dismissed.