Radhe Lal vs Smt. Brij lata

S.S. Sodhi, J.—Did the parties live together and was there restitution of conjugal rights between them after the husband obtained a decree to this effect against the wife ? This is the matter that arises for determination in appeal here.

On May 20, 1982, the husband Radhey Lal obtained a decree for restitution of conjugal rights against his wife Brij Lata. A little over a year thereafter, en May 24, 1984, he filed the present petition u/s 13(1)(a) of the Hindu Marriage Act, 1955, seeking divorce on the ground that there had been no restitution of cojugal rights between them since the passing of the decree. This was contested by the wife Brij Lata, who put-forth the plea that after the passing of the degree for restitution of conjugal rights, she accompanied by her father went to the husband''s house in village Sukhrali and lived with him till July 20, 1982, the day on which her father died. She learnt of her father''s death in school that day and on hearing of it, she went to her father''s house and then returned in the evening to her husband''s house in village Sukhrali and informed him of her father''s death. He however, sharply reacted to this, rebuked her and turned her out of the house and since then they have been living separately. The trial Court accepted this plea. It is this finding which is now assailed.

The parties hero were married on February 16, 1964. About two years later, in January 1966, a daughter was born, who unfortunately died in infancy. It appears that differences arose between husband and wife which resulted in a petition for divorce being filed by the husband on May 20, 1967. There was a compromise between the parties during the pendency of this petition and the petition was, thus, dismissed. The parties then lived together till 1970-71, and a daughter was born to them on April 6, 1971.

On February 13, 19S1, the husband filed another petition for divorce on the ground of desertion and cruelty and in the alternative he sought a decree for restitution of conjugal rights. A decree for divorce was denied to the husband, but he was granted decree far restitution of conjugal rights on May 20, 1982. It has also come on record that on July 12, 1982, the husband filed an appeal against the judgment of the District Judge denying him the decree for divorce as prayed Tor. This appeal was dismissed by the High Court on August 24, 1982. It was thereafter that the present petition for divorce was filed on May 24, 1983.

Conflicting evidence has beetled by the parties with regard to their having lived together after the passing of the decree for restitution of conjugal rights The hasband and his witnesses were categorical in their testimony that they had not lived together, whereas Brij Lata and her witnesses deposed to the contrary, namely, that she had lived with her husband from the end of May till the time of her father''s death in July 1932.

The circumstances as emerge from the evidence led have a significant tale to tell. The petition made specific mention of the parties having lived together only tills 2971, a fact which was admitted by the wife in her written statement. It is pertinent to note here that there is a specific finding in the judgment of the District Judge Exhibit P. 1 whereby the decree for restitution of conjugal rights was granted that the parties had been living apart since 1970. Next to note is the fact that what the husband had sought was a decree for divorce and it was only in the alternative that he had asked for a decree for restitution of conjugal rights. Dissatisfied with the grant of only this decree is made amply apparent from the fact that he filed an appeal against the judgment of the District Judge denying the decree for divorce. These are indeed strong pointers to the state of relations between husband and wife being such that their living together after the decree would appear to inherently improbable.

Mr. M. L Sarin counsel for the Respondent, laid great stress upon the statements of the parties recorded by the District Judge as mentioned in the judgment Exhibit P-1, whereby the wife Brij Lata made a concession with regard to the decree for restitution of conjugal rights being passed in favour of the husband and her statement that she was ready and was ready and willing to go with him and cohabit with him. Counsel also placed on record a certified copy of the statement of the husband made there to the effect that he was ready and willing to take her. The contention being that it was on account of these statement that the decree had been passed and this would ex-plain the husband and wife living together thereafter Mr. M.S. Liberhan rightly countered this with the argument that if indeed the parties had decided to live together, no occasion would have been left thereafter for any decree being passed The petition in the normal course should have been withdrawn. He, on his part made a great point of the fact that not only was a decree passed, but an appeal was also filed by the husband to challenge the denial of his prayer for divorce It is pertinent to note that this appeal was filed on July 12, 1982 when according to the wife Brij Lata, she was living with her husband There is no suggestion that the relations between them were strained at would account for the husband approaching the High Court at that time.

There can be no manner of doubt that the parties had been living apart for many years before the husband petitioned for divorce in February, 1981. If, after all these years the parties were to start living together again, there must have been some intervening circumstances to have brought them together. The evidence on record makes no mention of it Here, there is only the plea in the written Statement that the wife''s father look her to her husband''s house and left her there It cannot be expected that this could have happened just in this manner. Be that as it may, it would also be straining one''s credibility to accept that the death of the wife''s, father would provide the necessary occasion for the husband to turn out his wife again. If anything, such a happening; should have invoked sympathy and compassion especially when there is no suggestion from the wife that her span of living with her husband was in any manner stormy or difficult.

The other circumstance on which great emphasis was laid by the counsel for the wife was that on the husband''s own showing he and his wife lived together for a while during the divorce proceedings. The suggestion being that this being so, the parties living together from May to July, 1982 must be taken as a happening in consonance with it. This is again a contention which cannot stand scrutiny. If indeed the husband and wife had been living together during the divorce proceedings and wife had not left as deposed to by the husband, the proceedings would not have been allowed by them to end in a decree for restitution of conjugal rights, which, with the passage of time, would have provided them a ground for divorce.

Seen in the context of the circumstances narrated above, the oral evidence of Brij Lata and her witnesses cannot be taker to establish her case. The main reliance here was upon the testimony of R.W. 3 Ram Mehar, a person who lived in the neighborhood of the huband Radhey Lal. His testimony was that he had seen Brij Lata living with Radhey Lal. In dealing with his testimony, it deserves, note that the wife had submitted a long list of witnesses whom she wished to examine in this case. Ram Mehar did not figure in that list. He appeared without being sum moned saying that he had been brought by his relation Rajinder. It has not been explained who this Rajinder was and what his connection was with the parties This type of evidence is not difficult to procure The evidence of this witness would certainly not be safe to accept in the circumstances as stand established.

There are discrepancies too which appear in the evidence led by the wife which do indeed create a doubt therein In the written statement, Brij Lata had stated that she had gone to her father''s house on July (sic), 1982 on learning of his death, but in eviction she stated that she learnt of it on July 21, 1982, and then went to his house. Further, according to Brij Lata her daughter stayed with her till July 6, 1982. but R.W. 2 Pritam Singh, her neighbour stated that she was brought to the wife''s village Sahi on July 20, 1982. While dealing with the evidence of the wife and her witnesses, mention must also be made of testimony led that she used to go to the school from her husband''s house in the morning and come back in the evening, but most of this period was covered by the summer vacations and there was, therefore, no occasion for her to go to school every day

Taking an overall view of the totality of the circumstances of the case and the evidence on record, it would be apparent that the parties never lived together after the passing of the decree for restitution of conjugal rights. The marriage between the parties had broken long age. Both the parties are well-educated. The husband being a college lecturer and the wife a school teacher Considering their past history of strained relations and the long period that they have been living apart as also the fact, as mentioned earlier, that there has been no resumption of cohabitation between them, Radhey Lal must indeed be held entitled to and is accordingly hereby granted a decree for divorce as prayed for by him.

This appeal is, thus, accepted. There will, however, be no order as to costs.