Ram Kaur vs Ram Mehar

J.V. Gupta, J.—This appeal is directed against the judgment & decree of the Additional District Judge, Bhiwani, dated April 6, 1987 whereby the marrige between the parties has been dissolved by a decree of divorce at the instance of husband Ram Mehar.

The marriage between the parties was solemnised about 28 or 29 years back. The Muklawa ceremony had taken place after 15 or 16 years of the marriage. Three children were born out of this wedlock. Out of them, vide male children aged about 12 years are still alive. The present divorce petition was filed on January 7, 1987, by the husband, on the allegations that the wife was a quarrelsome lady and that she turned violent after few years of the Muklawa ceremony. She ran away from his house which created bitterness in the family. She consumed liquor and went with drivers and was living the life of vagabonds. She was not residing in village Ajitpura, the village of the husband. He tried his best to make her understand, but it was all in vain. She refused to accede to his request to leave the life of a bad character. She left his house four years before the filing of the petition with children and ornaments etc. and thereafter despite his efforts, she did not return. He filed the petition u/s 9 of the Hindu Marriage Act, (hereinafter called the Act) on March 29, 1984, which was got compromised on September 26, 1984. As a result the wife accompanied the husband to his house. But the same night, she quarreled with the members of the family and left the petitioner''s house the following day. It was further averred that the wife had been cruel to him and had deserted him for a period of more than two years immediately proceeding the riling of the petition. In the written statement, it was pleaded by the wife that the husband was estopped by his own acts and conduct from filing the petition. She denied the allegations made by him against her. She pleaded that she filed a petition u/s 125, Code of Criminal Procedure, which was allowed on March 12, 1986, and a sum of Rs. 150/- was fixed as the maintenance. However, it was not disputed that she had entered into a compromise on September 26, 1984, in the petition u/s 9 of the Act. After the said compromise, according to the wife, her husband gave her beating, maltreated her and turned her out of the house. On the pleadings of the parties, the trial Court framed the following issues:-

Whether the respondent has deserted the petitioner for a continuous period of more than two years? If so, to what effect?

Whether the respondent has committed such acts which amounted to cruelty towards the petitioner?

Relief.

After discussing the entire evidence, it was concluded by the trial Court that it was not disputed between the parties that they were living separately since September, 1984, i.e., after the compromise was effected between the parties in the petition u/s 9 of the Act. According to the trial Court, the wife had not been able to prove on the record that she was subjected to any cruelty after the compromise. The documents produced by her, Exhibits R.1 and R.2, were of no consequence as they related to the period prior to the compromise effected between the parties. According to the trial Court, it was not disputed by the wife that no efforts were made by her to join the matrimonial home with her husband after she had left the house in September, 1984. It was ultimately held that the husband had been able to prove that the wife had deserted him for a continuous period of more than two years immediately preceding the presentation of the present petition. In view of that finding, the marriage between the parties was dissolved by a decree of divorce.

The learned counsel for the appellant submitted that there was no evidence of desertion and the findings in this behalf were against the record. According to the learned counsel, no beating was given by the wife to the mother of her husband, as alleged. The whole story had been concocted to claim divorce on that ground.

I have heard the learned counsel for the parties and have also-gone through the relevant evidence on the record. The trial Court has discussed the entire evidence in detail and has come to a firm finding that it was not disputed between the parties that they were living separately since September 1984, i.e. after the compromise in the proceedings for restitution of conjugal rights. There is no cogent evidence on the record to prove that the wife was subjected to any cruelty after the said compromise, as alleged by her in her written statement In these circumstances, I do not find any infirmity or illegality in the finding of the trial Court. However, on the facts admitted, that the marriage between the parties had taken place about 28 or 29 years back and there were two children out of this wedlock who are presently living with their mother, I do not find that it is a fit case where the decree of divorce should have been granted by the trial Court. Section 13-A of the Act, provides for alternate relief in divorce proceedings. If the Court considers it just so do having record to the circumstances of the case pass instead, a decree for judicial separation. Thus, keeping in view all the facts and circumstances of this case the decree of divorce is set aside and a decree of judicial separation is passed instead. This appeal is disposed of accordingly.