Smt. Avtar Kaur vs Raghbir Singh

A.P. Chowdhri, J.—Both these appeals are directed against judgment and decree dated January 5, 1988, of the Additional District Judge, Ludhiana, whereby husband''s petition u/s 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ''the Act'') was allowed and the wife''s petition u/s 9 of the said Act was dismissed.

Raghbir Singh married Smt. Avtar Kaur according to Anand Karaj ceremony on February 14, 1982. Both the husband as well as the wife are teachers in different Government High Schools. For some time the wife who was posted in Government High School, Butari, about 10 KMs from her parental village Dolay, used to visit the matrimonial house at village Ghudani Kalan, especially on the week ends, but later on even those visits stopped and since then she had been living with her mother at village Dolay. Smt. Avtar Kaur instituted the present petition u/s 9 of the Act on April 22, 1987. Raghbir Singh, on the other hand, instituted petition u/s 13 of the Act for dissolution of marriage on April 29, 1987. Both these petitions were consolidated and the evidence recorded in the petition u/s 9 instituted by the wife. The issues framed in the two petitions are as follows:-

In HMA No. 194/64/106 of 1987.

Whether the respondent has withdrawn from the society of the petitioner as alleged, if so, its effect. OPA.

Whether there is delay in filing the petition, if so its effect? CPR.

Relief.

In HMA No. 210/80 of 1987.

Whether the respondent has treated the petitioner with cruelty, if so its effect? OPA.

Whether the respondent has deserted the petitioner for a continuous period of not less than two years, immediately preceding the presentation of the petition? OPA.

Whether the petition is a counter blast to the petition u/s 9 of the H.M.Act? If so, its effect? OPR.

Whether there is inordinate delay in filing the petition, if so its effect? OPR.

Whether the alleged cruelty and desertion had been condoned by the petitioner? OPR.

Relief.

In support of her case, Smt Avtar Kaur appeared as AW-1. The respondent appeared as RW-1 and examined Bhinder Singh, Sarpanch of his village as RW-1 and a colleague of his, namely, Nirmal Singh RW-3. The wife admitted having written letters Exhibits R-1 to R-11.

On a consideration of the evidence, the learned trial Court held that the wife had withdrawn from the society of the husband without any reasonable cause and the same amounted to desertion. It was held that the husband failed to prove mental cruelty pleaded by him. It was further held that the petition u/s 13 of the Act had not been filed as a counterblast to the petition instituted a few days earlier by the wife. It was also held that there was improper and unreasonable delay on the part of the wife in instituting the petition u/s 9 of the Act, there was no such delay on the part of the husband in instituting the petition u/s 13 of the Act for the reason that in the intervening period the husband had been continuously making efforts to bring about rapproachment and reconciliation, which efforts were spurned by the wife and, therefore, bore no fruit. No such efforts were admittedly made on behalf of the wife, it was pointed out. The trial Court further held that the husband had not condoned either acts of cruelty or of desertion on the part of the wife. With these findings, the aforesaid judgment and decree was passed. The wife has preferred both the above appeals, assailing the judgment and decree of the trial Court both in regard to petition u/s 9 as well as Section 13 of the Act.

When the appeals came up for hearing, time was given to learned counsel for both the parties to contact their clients so that the present state of affairs could be ascertained and further efforts could be made to bring about reconcilation. It appears that the counsel made efforts but failed to elicit any positive response from their respective clients. They have, therefore, stated that the appeals may be decided according to law.

I have carefully gone through the record and have heard learned counsel for both the parties.

Smt. Avtar Kaur appearing as AW-1 stated in her examination-in-chief that she was prepared to reside with the respondent-husband unconditionally. On this aspect of the case, the learned trial Court observed in the order under appeal that on that offer having been made by Avtar Kaur, he talked to the parties in the presence of their learned counsel. Avtar Kaur came forward with the conditions that she would reside with Raghbir Singh only if he resides separately from his mother. She further stated that her husband was handicapped and she being a working lady could not bear the burden of serving him as well as his mother. Raghbir Singh, on the other hand, stated that he could not leave his old widowed mother. The conclusion readied by the learned trial Court, therefore, was that the offer was not genuinely meant and it was only meant to be put forward to gain some advantage in these proceedings. In the facts and circumstances of the case, the conclusion reached by the trial Court does not seem to be unfair. What is more, the bone of contention between the parties appears to have been that while the husband thinks that he owes a duty to his mother, old and widow as she is, to look after her, the wife does not appear to share his views. She does not find it possible to attend to her husband, who is admittedly handicapped, as well as her mother-in-law, who is admittedly quite old.

The learned trial Court pointed out at least three examples in which definite averments were made by the wife in her petition u/s 9 of the Act as well as in the connected petition, but equally categorically she admitted in the witness box that there was no basis for those allegations. These are:

(i) She was physically beaten by her husband and mother-in-law. In cross-examination, she stated that except on one occasion when the husband showed her a stick, she was not beaten by him nor was she ever beaten by her mother-in-law.

(ii) It was pleaded that efforts were made by respectables on her behalf to intercede with the husband and bring about a rapproachment out those efforts bore no fruit. In the witness box, she admitted that no such efforts were made on her behalf.

(iii) It was pleaded that she had been turned out of the matrimonial house about two years prior to her filing the petition u/s 9, which works out to April 1985, the petition having been instituted on April 22, 1987. In other words, according to the case pleaded by her she lived with the husband in the matrimonial home for about three years and two months. In the witness box, she admitted that her total stay including an initial stint of about 10 days following the marriage did not exceed 15 to 20 days in the whole. Largely based on these admissions, the learned trial Court found it difficult to believe that the husband had turned out the wife form the matrimonial house. I do not find any infirmity in the reasoning and conclusion by the learned trial Court on this point.

The next question dealt with the learned trial Court is that admittedly the wife wrote letters Exhibits R-2 to R-11 with a view to getting divorce. She further admitted that she wrote to Bhinder Singh, Sarpanch RW-2 to help her in getting divorce from Raghbir Singh. The admitted facts of the case are that the patties were engaged- to be married on July 20, 1980. Raghbir Singh was involved in a road accident which took place on August 28, 1980. Following the accident, operation had to be performed in which his left leg was amputated and the right arm was rendered ineffective. Marriage between the parties in pursuance of the above engagement, however, took place on February 14, 1982. Avtar Kaur admitted that about one week prior to her marriage, she refused to marry Raghbir Singh but her marriage was nevertheless performed by her mother against her wishes. The aforesaid admitted facts i.e. disinclination of Avtar Kaur to get married to Raghbir Singh coupled with her desiring to obtain a divorce by writing letters clearly indicated that she had left the matrimonial home to bring cohabitation permanently to an end. Learned counsel for the appellant has not been able to assail the findings of the learned trial Court.

I, therefore, find no merit in the appeals, which are accordingly dismissed, leaving, the parties to bear their own costs.