Ram Singh vs Smt. Omawati

J.V. Gupta, J.—This is husband''s appeal whose petition for divorce u/s 13 of the Hindu Marriage Act has been dismissed by the trial Court.

The marriage between the parties was solemnised in March, 1972. A male child was born out of the wed-lock, who is living with his mother. The wife left the company of the husband in the month of August, 1978. She filed an application u/s 125 of the Code of Criminal Procedure, for maintenance which was compromised on 22.10.1980 and the parties decided to live together Later on there was another compromise on 5.12.1980, copy Annexure P. 1, whereby the husband agreed to give maintenance of Rs 100/- per month for the wife and Rs. 40/- per month for his son. The husband again filed a petition for divorce on 6.2.1981 which was again dismissed on compromise with an understanding that a joint petition will be filed for the grant of a decree for divorce on payment of Rs. 12,000/- by the husband to the wife Since the wife did not agree to file a joint petition, hence the present divorce petition was filed on 14.3.1986 on the grounds of desertion, cruelty and adultery on the part of the wife. It was pleaded that after the compromise dated 6.3.1981, the wife has been ignoring the filing of a joint petition for divorce by mutual consent, as per the agreement and the husband has been requesting her to fulfil the said agreement but she did not turn up. There has been so many Panchayats of respectables and relatives from both the parties in which it was decided for filing a petition for divorce as per agreement dated 6.3.1981. It has been also alleged that there has been no cohabitation between the parties since August, 1978 and the marriage between him and the wife is a broken marriage and they could not lead a happy married life. There was no possibility of reconciliation either.

The petition was contested on behalf of the wife on the ground that the Petitioner wanted to marry another lady and wanted to get rid of her and the minor child on account of her simplicity and illiteracy. She also took the stand that in the year 1978 she was turned out of the house and the husband wanted to marry some educated and white skin lady. She denied of entering into any compromise as alleged in the divorce petition. According to her, her thumb impression on the alleged compromise with a dishonest intention were obtained without disclosing the actual contents thereof. Moreover, the said compromise was neither bona fide nor signed/thumb marked voluntarily by her According to her, the husband wanted to pay Rs. 12,000/- in lump sum in stead of payment of maintenance after the end of every month, which he did not pay.

On the pleadings of the parties, the trial Court framed the following issues:

Whether the Petitioner is entitled to a divorce decree on the grounds mentioned in the petition ? OPP.

Relief

The learned Additional District Judge, came to the conclusion that it is the husband who did not follow the terms of the compromise Exhibits P1 and P2 dated 5.12.1980 ; that the wife has not given her consent voluntarily to the compromise dated 6.3.1981 and her thumb impressions were obtained on blank papers. Moreover, the said compromise was not acted upon and, therefore, was not binding on the parties. According to the trial Court, the husband has failed to prove his allegations of desertion and cruelty. Consequently, the divorce petition was dismissed on 14.11.1986.

At the time of motion hearing, notice was issued to the Respondent. Dasti summons were taken for her service which was effected but in spite of that she did not appear. Later on actual date notice was sent to her but she refused to accept the service. Fresh notice was sent to her for 26.10.1987 but again no one has come forward to contest this appeal. Under these circumstances, there was no option but to proceed ex parte against the Respondent.

The learned Counsel for the Petitioner contended that the parties are living separately since 1978. The allegations made by the wife in paragraphs 5 and 6 of the written statement were never proved and the trial Court has acted illegally in ignoring the compromise between the parties which was duly filed in the Court. Thus, argued the learned Counsel, the desertion was amply proved on the record and on that ground alone, the husband was entitled to the decree of divorce. He further contended that cruelty has also been duly proved, since they were not living together, which according to the learned Counsel amounted to mental cruelty, it was also submitted that since it was a broken marriage and the wife was not at all interested in contesting these proceedings it was a fit case for divorce. In this behalf he referred to Smt. Saroj Rani Vs. Sudarshan Kumar Chadha, .

After hearing the learned Counsel for the Appellant and after going through the evidence on record, I find force in the contention raised on behalf of the Petitioner. The compromise entered into between the parties on 6.3.1981 and earlier on 5.12.1980 have been wrongly ignored by the learned Additional District Judge. It has been wrongly held by the trial Court that the said compromises Exhibits P1 and P2 were against the wishes of the wife and were entered into on the per-suation of the Presiding Officer. As a matter of fact, the wife denied the execution of the said compromise and, therefore, an adverse inference should have been drawn against her but the trial Court took the contrary view, which was not warranted. Thus desertion on the part of the wife of her husband is amply proved from her conduct of living separately since August, 1978 and not joining the matrimonial home in spite of the compromise Exhibit P1 dated 5.12.1980 nor for applying joint petition for divorce as agreed subsequently on 6.3.1981. However, taking into consideration the fact that the marriage between the parties had taken place in March 1972 and there was a male child born out of this wed lock, the question arises whether the marriage should be dissolved by a decree of divorce or an alternate relief be granted for judicial separation as contemplated u/s 13-A of the Hindu Marriage Act, 1955. It has been provided therein that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, the court may, if it considers it just as to do having regard to the circumstances of the case, pass intead a decree for judicial separation.

Thus, having regard to the circumstances of the case, the Appellant is entitled to a decree for judicial separation instead of a decree of divorce Consequently, this appeal succeeds ; the judgment and decree of the trial Court are set aside and a decree for judicial separation is passed in favour of the Appellant with no order as to costs.