Raghubir Singh Gill vs Surjit Kaur

Sarojnei Saksena, J.—Appellant has preferred this appeal against the judgment and decree of the Trial Court dated 4.2.1992 passed in Hindu Marriage Act Application No. 111 of 1988.

Uncontroverted facts are that the appellant was married to the respondent on 21.3.1965 at Karnal. Thereafter they live together at Jaipur, Delhi and lastly at Chandigarh. In this wed-lock one daughter Tarun Deep Gill was born on 8.3.1966 and one son Himmat Singh was born on 21.9.1968. Since 8.2.1983 the respondent is living at her parental home in Karnal. Letters were exchanged between the parties. Attempts for reconciliation were also made by the relations and friends but all in vain.

The appellant-petitioner sought dissolution of marriage by divorce on the ground of desertion and cruelty. It is contended that when the respondent left Chandigarh on 8.2.1983 for Karnal, she took almost all her belongings. The Children were studying at Chandigarh. The respondent''s brother''s marriage was to take place on 27.2.1983. After their examination, she took the children with her on the pretext of marriage of her brother and thereafter she refused to come back to the matrimonial home. Without his consent she has obtained school leaving certificates of her children. Earlier in 1974 also, she deserted him and lived at Karnal for about two years. Finally at the intervention of Mr. and Mrs. Chawla re-conciliation was brought about and she came to live with the apellant. In 1974 her younger sister was married. At that time she had removed all her jewellery and valuable articles from the house. Her parents, brothers and sisters used to interfere in their day to day matrimonial life. In 1981, he left his job with Mahindra and Mahindra and shifted to Chandigarh to start his own business. He lived with his parents. Her behaviour with his parents was also not cordial. He sent his children to Nainital for study and incurred that expenditure as per the wishes of the respondent. Respondent''s brothers and sisters provided easy money to her children which adversely affected their habits and studies. Whenever he rebuked them, she retaliated. Her sister made false allegations that he wants to grab her (respondent''s) property which is given to her by her parents. Respondent''s jewellery is with her mother. She wanted him to abide by the dictates of her parents and as he declined to accede to it, she withdrew from his society. Col. Phulwant Singh (now dead) made attempts for reconciliation. In that pursuit once the appellant accompanied Col. Phulwant Singh and Dr. Third to Dagshai where the respondent and her parents were living as a summer resort, but they refused to talk to them, they were not allowed to enter in the residential premises. The studies of his children are adversely affected because of the flow of easy money into their hands. His son could not clear his 10+2 class. Hence it is prayed that a decree of divorce be granted in his favour.

The respondent resisted the petition on various grounds. It is assailed to be belated and on this count alone it is averred that the petition deserves to be dismissed. It is further contended that she was treated like a slave in the matrimonial home. She was required to wash the clothes, clean the utensils and sweep the floors. Many a times she was forced to go to the market to bring the grocery items etc. She and her children were not properly fed. Her parents used to send all eatable items from Karnal. Appellant''s behaviour with her was harsh and cruel. He behaved like a savage in the bed. She was forced to live in one room only with her children. She was willing to do all house-hold cores provided she was given status, respect and dignity of a housewife. Even that was denied to her. Her jewellery is kept in appellant''s locker which he refused to return. The expenses of the education of her children at Nainital were borne by her parents. 30 Acres of land and few lacs of rupees in F.D.Rs. are given by her parents. Appellant wanted her to give that money and to sell off the land so that he may construct a house and invest that money in his newly started business. She declined to do so. In February, 1983 she went to Karnal to attend her brother''s marriage, thereafter she did not come back, though attempts were made for reconciliation. They corresponded with each other but to no fruitful result. When Col. Phulwant Singh went to Dagshai to talk to them, as she was not there, he came back. She still intends to go and join the appellant.

On these pleadings, the parties adduced their evidence. The Trial Court minutely scanned the ocular and documentary evidence adduced by the parties and came to the conclusion that the respondent is not guilty of desertion amounting to cruelty. The appellant created such circumstances which forced her to leave the matrimonial home. Therefore, the appellant cannot take advantage of his own wrong and on the ground of desertion cannot seek the relief of divorce. It was also held that he is guilty of laches also because even according to him she left the matrimonial home in February, 1983 and he filed this petition on 5.12.1988.

In this appeal the appellant has also filed an application u/s 151 of the CPC for placing on record certain facts. In this petition, it is alleged that the respondent has married Tarun Deep Gill, their daughter, on 5.1.1993 without consulting him and without getting his consent. He was not even invited by the respondent. According to him, this conduct of the respondent clinches the issue of desertion and conclusively proves the animus deserendi of the respondent. He has filed an affidavit in support of this contention.

This application is orally opposed by the respondent, though it is admitted that Tarun Deep Gill is married on 5.1.1993. Animus deserendi is to be considered on the facts of the case, till the presentation of the petition on 5.12.1988. The alleged subsequent event will not render any help to the appellant. Hence the petition is hereby rejected.

Appellant''s Counsel contended that the respondent''s behaviour was not cordial. She is a lady of hot temper. In 1969, two servants were sent to Delhi to look after the minor children. The factum of desertion is admitted. She has alleged justifications for her desertion but has utterly failed to prove them. The expenses of the education of his children at Nainital were incurred by him as is evident form the documents produced by him though she has stated in vain that her parents gave this money to her. She gave it to him to remit it to Nainital. She has not examined her parents to prove this fact. Col. Phulwant Singh is related to the respondent. He made sincere efforts for reconciliation but the respondent declined to talk to him. By writing letter A63 he had an unconditional offer to discuss their problems and invited her to come back. She replied back (A64) and put certain conditions for her coming back. Again he wrote letter (A65) and offered to abide by all the conditions put by her but she neither replied to this letter nor came back to the matrimonial home. In 1985 he went to Dagshai to talk about reconciliation but she declined to talk. Though on oath she has made a hollow offer that she is still willing to come back to the matrimonial home, but even after judgment she has declined to come back. She has made this hollow offer with a view to get his petition dismissed. To support these contentions, the appellant''s Counsel has relied on Sharda Rani v. Mangat Ram (1991) 97 PLR 323, Sudesh v. Mahabir Singh (1993-3) 105 P.L.R. 643, Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, , Gurmel Singh v. Smt.Ajit Kaur (1979)81 P.L.R. 122 , Ashok Kumar Vs. Santosh Sharma, , Arminder Kaur Vs. Major Narinder Singh Brar,

On the point of delay his contention is that all through this period, he was waiting for the respondent to come back to him. After waiting for six years when he lost all hope of her coming back, he was forced to file this petition. Hence, it cannot be said that this petition is belated one. To support this contention he has relied on N.B. Rukmini Vs. P.M. Srinivasa, and Gurmel Singh Vs. Bharpur Kaur, . He prayed that since the marriage is irretrievably broken all attempts of reconciliation have failed, hence no purpose will be served if the parties are allowed to remain tagged in this marital bond, they should be given respectable independence by granting a decree of divorce.

Respondent''s Counsel vehemently contended that she is given 30 Acres of land and few lacs of rupees in F.D.Rs. by her parents which is the real cause of trouble. Her husband only wants that she should part away with this property to establish his business and to construct a house. The appellant has utterly failed to prove the alleged allegations of cruelty. In 1984, during the riots she came to his house alongwith children, but they were not permitted to enter the house. Not only she has stated so but even her daughter has corroborated her on this point. The driver who drove them to Chandigarh has died. She made all efforts to live honourably in his house but she was always treated like a slave. Even the honour, respect and dignity of a housewife was not given to her. No doubt factum of desertion is admitted but the appellant has utterly failed to prove the animus deserendi which is an essential ingredient of desertion. In support of his contention her has relied on Gurmel Singh v. Smt. Ajit Kaur (1979) 81 PLR 122 Tara Chand Vs. Smt. Narain Devi, Jai Lal Abrol v. Sarla Devi AIR 1978 J.&K. 69, Joginder Kaur v. Shivcharan Singh AIR 1965 J.&K. 95 and Savitri v. Ramesh Chander 1981 HLR 50.

The above authorities lay down broad principles when desertion can be said to be proved. It has two parameters-factum of desertion and animus deserendi. The burden to prove desertion lies on the appellant who must show that he is willing to resume cohabitation but his wife is avoiding the company without any reasonable cause and without his consent. If the wife alleges a reasonable cause for such withdrawal, she has to prove it. It is a sad case of a broken marriage. The main reason is the diametrically opposite ways of living of the two families. The respondent belongs to a moneyed landlord family. She is used to enjoy all the luxuries of life and not accustomed to perform household chores. She is married in a service class family. At Delhi when she was living with her husband with two small children, two servants were sent by her parents to help her in running the house-hold and looking after the children, but later on the male servant was sent to appellant''s brother''s house.

In 1981 the appellant to Chandigarh after leaving after leaving his job with Mahindra and Mahindra and started living with his parents in a house owned by them. Admittedly in this house she had only one bed room for her and her children. No doubt, it is a three storeyed building but on the top floor a tenant is inducted. First floor is occupied by appellant''s sister and her family members. Only the ground floor is in the possession of appellant and his parents. Admittedly it has three bed rooms, two are occupied by his parents, hence the respondent always felt atmosphere in his matrimonial home suffocating. According to her, she had suffered a lot in this house. There was no regular servant in the house. Household works were required to be done by her. She was compelled to wash clothes, clean utensils and sweep the floors. She was not accustomed to do all these works. Moreover, appellant''s behaviour with her was not cordial as she has said, had it been so, she would have tolerated all this.

No doubt, her parents always rendered all sorts of assistance to her. Whenever, she needed anything, it was supplied by them. That further worsented the situation and this co-called assistance enraged the appellant and his behaviour became more harsh. He thought that his parents-in-laws are unnecessarily interfering in his day to day domestic life and thereby indirectly they are humiliating him. All these facts touched the precincts of cruelty, mental and physical and they forced her to leave the matrimonial home. Thereafter attempts were made for reconciliation. Offer and counter-offer of the parties are evidence from the letters (A-63 to A- 65) but it seems that the husband-appellant only made a hollow assurance to live separately and independently. No sincere effort was made by him to achieve this target. The wife also made an open hearted offer to join him but perhaps their standard of living, style of living, the status in society coupled with the dry, indifferent and cruel behaviour of the husband-appellant obstruted the smooth path to matrimonial home.

Cruelty, is not defined in the Hindu Marriage Act. There is no straight jacket formula of cruelty. Sometimes, even a gesture, an angry look, a sugar quoted joke, an ironic over-look may be mere cruel than even actual beating. Since the appellant failed to make her life comfortable in the matrimonial home, she was forced to leave his roof. Thus, the Trial Court has rightly held that under those circumstances she left the matrimonial home. These circumstances were created by the appellant and now he cannot take advantage of her desertion. She has proved the justifications of her alleged conduct. The appellant cannot be allowed to take advantage of his own wrong.

Lastly, admittedly the respondent left the matrimonial home in February, 1983. This petition was filed on 5.12.1988. The authorities cited by the appellant''s Counsel in support of his contention that the petitioner cannot be dismissed on the ground of delay are distinguishable on facts. The law has prescribed a period of two years for filing the petition for divorce on the ground of desertion. The appellant filed this petition of 5.12.1988 i.e. about after six years of her leaving the matrimonial home. Letter A-63 was written in December, 1983, A-64 and A-65 were written in March, 1984 and April, 1984. The appellant has failed to offer any plausible explanation for this inordinate, unnecessary and improper delay. As held above, the appellant wants to take advantage of his own wrong and thus he is not entitled to a decree divorce.

No doubt the daughter Tarun Deep Gill is married now but the son Himmat Singh is still unsettled in life. Divorce is the worst social stigma. Appellant himself is not willing to live with respondent, inspite of her willingness to live with him. He wants to get rid of her on baseless grounds. Hence, appellant-husband is not entitled for a decree of divorce against the respondent. On the aforesaid ground, the appeal being meritless, is hereby dismissed with costs.