Rekha Rani vs Narinder Mohan

Sarojnei Saksena, J.—Wife-appellant had filed this appeal against the judgment and decree dated 8.9.1988 passed in Hindu Marriage Act, Case No. 60 of 1992 by Shri P.C. Goyal, Additional District Judge, Karnal.

Admitted facts are that appellant was married to the respondent on 20th April, 1988 at village Alana, Tehsil Rajpura, District Patiala, as per Hindu rites and ceremonies. After the marriage, respondent-husband brought the appellant to his village Butana, Tehsil and District Karnal, where they lived together.

The respondent-husband''s case was that after the marriage, his wife lived with him only for two days and cohabited with him. On third day, she went to meet her parents and, thereafter, she never returned to the matrimonial home. While leaving his house, she has taken away all her ornaments and other valuable clothes. After ten days of her leaving the matrimonial home, the respondent went to village Alana to bring her back but she was not found there. He made three such trips to her parental home but she was not found there. At the time of his third visit somebody informed him that the appellant is residing with another boy of a rich family with whom she had illicit relations prior to her marriage. His parents also went to her parental home but the appellant refused to come back to the matrimonial home. She insulted respondent''s parents also. The appellant deserted the respondent for a continuous period of two years and 11 months without any sufficient cause or excuse and against the consent of the respondent-husband. He also pleaded that the appellant has not given birth to any child from his loins. Thus, he claimed divorce on the ground of cruelty and desertion u/s 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act).

The appellant contested the petition, raised certain preliminary objections and inter alia pleaded that the husband has filed this petition for divorce on false and baseless allegations of adultery against her. She lived in his company for three months and thereafter, she was turned out from the house by the respondent for bringing inadequate dowry. On her parents request, the respondent agreed to bring her back in the matrimonial home and then also she lived for a period of four months with the respondent. During her stay in the matrimonial home, the behaviour of her husband was very cruel and he used to beat her on one count or the other. His parents also taunted her for bringing insufficient dowry. The respondent used to come late in the night in a drunken condition and whenever she protested, she was beaten by the respondent. She has decided that she had illicit relations with another boy. According to her, she gave birth to a son out of this wed-lock who expired on 15.6.1990. She has initiated proceedings u/s 125, Cr.P.C. which are also pending in the Court of learned Judicial Magistrate, 1st Class, Rajpura.

The respondent filed replication and controverted the allegations made by the appellant. The Trial Court framed issues and recorded parties'' evidence, The learned Trial Court came to the conclusion that the appellant has deserted the respondent for more than two years with an intention to break down the marriage totally. She has also treated the respondent with cruelty as she gave birth to a illegitimate child during the subsistence of this marriage.

Appellant''s learned Counsel vehemently contended that the respondent has not pleaded that the appellant is leading an adulterous life but the Trial Court has carved out a new case of adultery resulting in cruelty to the respondent and on that basis he had passed the decree of divorce in the respondent''s favour. He contended that in the Trial Court, the respondent has not at all taken this ground, that the appellant is leading an adulterous life. So far, as the ground of desertion is concerned, relying on Rajinder Kumar Vs. Sushila Devi @ Sushma, and Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, , he stressed that even the ground of desertion is not proved.

Respondent''s learned Counsel pointed out that the respondent in his petition has mentioned that during his one of the visits to her parental home, he was informed by somebody (whom he has named on oath) is living with a boy with whom she had illicit relations even before her marriage. He has specifically pleaded that out of his wed-lock, no issue was born from his loins to the appellant. Trough, the appellant has specifically pleaded that out of his wed-lock she gave birth to a son who died on 15.6.1990. Though, in her reply she has averred that the birth certificate of the child is filed along with the reply but no such certificate was ever filed by her. Respondent filed death certificate of the child. The respondent has clearly proved that after marriage she lived with him only for two days. Thereafter, she left for parental home and never came back to join him. So far as the birth of this child is concerned even the appellant and her both the witnesses had admitted that the son was not born from the loins of the respondent. Thus, from her own admission, it is evident that she is leading an adulterous life. The child died on 15.6.1990. Her marriage with the respondent took place on 20.4.1988, after two days she left the matrimonial home. Thus, the conclusion is inevitable that the child to whom she gave birth was an illegitimate child. On the basis of this evidence, the Trial Court has rightly held that thereby she behaved cruelly towards her husband and as she has deserted him from April, 1988. He is entitled to a decree of divorce on both these counts.

In both the authorities cited above, it is held that desertion is not only a physical act but involves essentially a mental act also. It is the total repudiation of the obligations of marriage or an abandonment with an intention to bring cohabitation permanently to an end. Factum of desertion and animus deserendi are required to be proved. Further, it is also required to be proved that the deserting spouse had deserted the other spouse without any reasonable cause and without the consent of the deserted spouse. Admittedly, parties were married on 20.4.1988.

According to the respondent, she lived with him only for two days and, thereafter, she left for her parental home and never came back to his company. His witness have corroborated him on this point. The appellant has testified that after marriage she lived in the matrimonial home for three months and again after some time she came back to her matrimonial home and lived with her husband for four months but surprisingly enough, in her petition filed u/s 125, Cr.P.C, she has alleged that she was turned out of the house (matrimonial) on 5.10.1989 since then she is living in her parental home. On oath, she has not stated so.

Smt. Rekha Rani, RW1 has testified that after the marriage she lived in the matrimonial home for three months. He husband and his parents were not satisfied with the dowry given to her. Husband also beat her daily. She objected to his habit of drinking, again she was beaten. In the cross-examination, she has stated that after marriage she lived in the matrimonial home for three months and, thereafter, for fifteen days she lived there. But for the last three years she has not gone to her husband. She has categorically stated that the son to whom she gave birth was not from the loins of the respondent. Her father Sham Lal, RW 2 has stated that no son was born to his daughter from the loins of the respondent. Sham Lal, RW 2 has categorically stated that his daughter lived in the matrimonial home only for three months and thereafter she never went to his house. Banarsi, RW 3 has also admitted that no child was born to her from the loins of the respondent. Thus, from her own evidence it is established beyond doubt that she gave birth to an illegitimate child while marriage with the respondent is subsisting. This by itself amounts to such a cruelty, that on this account alone, the husband is entitled to get a decree of divorce.

From the above evidence, it is also evident that the appellant has deserted her husband without any cause or excuse. She has failed to prove that she was turned out from the matrimonial home by the respondent. Respondent has proved that he went thrice, his parents went to her parental home and they took a Panchayat also to bring her back but she and her parents always declined. Respondent''s sole testimony stands duly corroborated by Parma Nand, PW 2, Shri Ram Chander, PW 3 and Shri Harbans Lal PW 4. Appellant Rekha has stated that her husband did not convene any Panchayat. Her parents took a Panchayat but she never attended any Panchayat. Her father has also stated that he took a Panchayat but the respondent was not willing to keep her back. Banarsi, RW 3 has also stated so. But from the evidence on record, it is evident that she gave birth to an illegitimate child and after April, 1988 she refused to come back to matrimonial home, though the respondent made many attempts to bring her back. Thus, the offence of cruelty as well as of desertion is duly proved by the respondent. The respondent has led cogent and reliable evidence to prove both the parameters of desertion, i.e. factum of desertion as well as animus deserendi. She has failed to prove that she was turned out from the matrimonial home by the respondent for bringing insufficient dowry or she was treated with cruelty by her husband or after coming back from her matrimonial home she never made any attempt to go back to him. No doubt, in her reply as well as on oath she has testified that she is willing to reside with the respondent but now the respondent is not willing to live in her company. This offer of the appellant appears to be an attempt to frustrate the respondent''s plea of desertion. Since, the respondent has come to know that the has given birth to an illegitimate child, he has a legal right to refuse to take her back. Accordingly, I find that the Trial Court has rightly held that on the above counts, the respondent is entitled to a decree of divorce.

Consequently, the appeal being meritless and is hereby dismissed with the costs.