Smt. Brij Lata vs Radhe Lal

Gokal Chand Mital, J.—The parties were married way back on 16th February, 1964, and in January, 1966, a daughter was born, who died soon after birth. In May, 1967 the husband filed a divorce petition on the grounds of cruelty and desertion. In December, 1967, husband got that petition dismissed as withdrawn.

The parties continued to live together and on 6th April, 1971, a daughter was born.

In February, 1981, the husband filed another divorce petition on the ground of cruelty and desertion and in alternative prayed for giant of decree for restitution of conjugal rights Wife contested the petition and denied the allegations.

The learned District Judge recorded findings against the husband and held that no ground for divorce was made out. However, since the husband Lad made a statement that he was willing to take the wife back and the wife was also keen to keep the matrimonial home intact, the court granted decree for restitution of conjugal rights This judgment is dated 20th May 1982, Annexure P-1, on record.

The husband is a lecturer whereas the wife is a teachress.

After lapse of one year from 20th May 1982 the husband came to Court for decree of divorce u/s 13(1A) of the Hindu Marriage Act, 1955, (for short ''the Act''), on the assertion that there has been no restitution of conjugal rights between the parties for more than a year after passing of the decree for restitution of conjugal rights and thus he was entitled to get the divorce.

The wife contested the petition and pleaded that on 25th May, 1982, she had joined the husband and lived with him till 21-7-1982. Her school had opened on 6-7-1982 and he became the daily passenger from her husband''s house to the school. On 20-7-1982, her father died and she came to know about it in her school on 21-7-1982. On coming to know of this, she went to her parents house and, thereafter, he refused to keep her despite best efforts on her part requesting her husband to rehabilitate her. Her case was that the decree for restitution of conjugal rights had been satisfied and that the decree for divorce could not be passed.

On the evidence led in the case, the trial Court by a well considered judgment dated 5-10-1984 came to the conclusion that the decree for restitution of conjugal rights had been satisfied and thus dismissed the divorce petition.

The husband came to this Court in first appeal and the learned Single Judge reversed the findings recorded by the trial Court and granted divorce This is LPA by the wife.

There has been misreading of evidence on material aspects of the case, otherwise, the learned Single Judge would not have reversed the decision of the trial court.

The learned Single Judge came to the conclusion that the wife Lad pleaded in her written statement that she bad gone to her father''s louse on 20-7-1982 on learning of his death but in evidence she said that at he learnt of it on 21-7-1982, and then went to his house. This discrepancy was considered to be material to create doubt in her case.

We have gone through the written statement filed by the wife. The exact words in the written statement in this behalf are as follows :--

"As ill luck would have it, respondents father residing in Tillage Sihi, Tehsil Ballabgarh died on 20-7-82 and the respondent learnt in her school about the untimely and sudden death, she went to her father''s house and after meeting the members of her father''s bereaved family, the respondent returned to village Sukhrali in the evening and told the petitioner and his parents about the death of her father and requested them that they too should visit her father''s family in this hour of grief."

The written statement is dated 13-2-1984 and by then she very well knew that the father had died on 20-7-1982 and the mention of that date in the aforesaid written statement is only to that extent. She nowhere stated that she had gone to her father''s house on 20-7-1982. May be that the father died on 20-7-1982, after the school hours. In that situation, she could not have learnt about the death of father on 20-7-1982.

When the wife appeared as RW-1 and made statement on oath, she clearly stated that on 21-7 1982, she bad learnt about the death of her father at the place of her posting, and went to village Sihi and returned the same night No question was put to her in cross-examination to elicit as to the time of death of her father nor was she confronted with her written statement. Accordingly, there is no discrepancy in the evidence led by the wife vis-a-vis the written statement.

The trial Court had believed the statement of Ram Mehar, RW-3, who lived in the neighbourhood of the husband and had given the statement that she had seen the parties living together during the relevant period. The learned Single Judge discarded this statement of this witness merely on the ground that he was not cited as a witness in the list furnished by the wife and such type of witness is not difficult to procure When statement of Ram Mehar was to be recorded as RW-3, no objection was raised that his statement should not be recorded because his name does not find mention in the list of witnesses. At the appellate stage, no point could be allowed to be made on the ground that the witness was not a summoned witness. In the cross examination of this witness, nothing could be elicited to show if he was in any way inimical to the husband or was inclined to unduly favour the wife.

After going through the statement of Ram Mehar, RW-3, we are of the view that his statement appears to be reliable especially when the trial Court belived his statement and had the advantage to see his demeanour and thus his statement could not be lightly brushed aside.

Accordingly, keeping in view the statement of the husband that he was willing to keep the wife and the statement of the wife that she was willing to live with him coupled with fact that both the grounds pleaded by the husband to seek divorce were decided against him, Court only granted the decree for restitution of conjugal rights as the parties were willing to live together. Even the reason was not far to seek. The marriage had taken place in the year 1964 and by 1982 when the decree for restitution of conjugal rights had been granted by the trial Court, the parties had been in the wedlock for long 18 years and till this date 26 years of their marriage have passed. There was nothing unusual if they wanted to patch up and start living together from 25th May, 1982 in compliance with the decree for restitution of conjugal rights The decree of divorce was refused after recording findings against the husband that he failed to establish both the grounds but by the same judgment, decree for restitution of conjugal rights was granted on the statements of the parties. Normally a decree for restitution of conjugal rights is granted after recording findings against the defaulting spouse unless parties agree to make statement to live together. In this case, since both the parties were willing to live together, instead of dismissing the petition as compromised, the Court granted decree for restitution of conjugal rights, and, thereafter, parties started living together. We find no abnormal conduct in this behalf and the learned Single Judge did not keep in view the age of the parties and the long period of their being in wedlock. If parties were young and there was no child, one could imagine that if the relations are so strained, the parties may not be able to live together and it will be better to separate them at young age so that both can re-marry, but this is not the fact here. First child was born in January, 1966 and the second in April, 1971. Today, the living daughter is about 19 years old and is of marriageable age. Instead of thinking of going into for his own second marriage, the husband should consider to arrange the marriage of his daughter.

For the reasons recorded above, we accept this appeal with costs, and after setting aside the order of the learned Single Judge, restore that of the trial Court dismissing the divorce petition of the husband for grant of divorce.