Smt. Jasbir Kaur alias Parkash Kaur vs Ranjit Singh

Pritam Singh Pattar, J.—This is a first appeal filed by Mst. Jasbir Kaur against the order dated April 1, 1972 of Sub-Judge 1st Class. Hoshiarpur, whereby he passed decree for judicial separation u/s 10 of the Hindu Marriage Act against her in favour of her husband Ranjit Singh.

The facts of this case are that the marriage of Jasbir Kaur appellant and Ranjit Singh respondent took place on June 15, 1956 at village Kurala Kalan, Police Station Tanda, District Hoshiarpur, and the parties thereafter resided at the house of Ranjit Singh at village Sallapur in Tehsil Dasuya as husband and wife. Jasbir Kaur gave birth to a daughter on February 22, 1958 from the loins of the respondent and her name is Harmohinder Kaur and the is residing with her father Ranjit Singh, respondent. The relations between the parties became strained in the the year 1964 and it is alleged that the appellant took away all the clothes and jewellery worth Rs. 2,000/- to her parents house and thereafter she would come for a few days to his house and then would return to the those of her parents. It is alleged that in the year 1967, Jasbir Kaur abandoned the girl Harmohinder Kaur and settled at her parent''s house and openly declared that she would never return to the house of her husband. On April 29, 1969, Ranjit Singh made an application u/s 10 of the Hindu Marriage Act for judicial separation in the Court of the District Judge, Noshiarpur and a compromise was effected between the parties in that case on November 13, 1969, according to which Jasbir Kaur agreed to live with him at Chandigarh. One of the terms of the agreement was that Ranjit Singh will go to the house of the parents of Jasbir Kaur on the next day, i.e. November 14, 1969 and would take her to Chandigarh. He accordingly went to the house of her parents on November 15. 1969, but she refused to come to his house. He was also alleged to have taken Panchayat to village Kurala on March 9, 1970 to take Jasbir Kaur to his house and they convened a Panchayat there, but neither Jasbir Kaur nor her father attended that Panchayat. Ranjit Singh then filed the present application u/s 10 of the Hindu Marriage Act for judicial separation on August 7, 1970, alleging that Jasbir Kaur deserted him for a continuous period of more than four years immediately preceding the presentation of the petition without any reasonable cause.

In her written statement, Jasbir Kaur admitted the factum of the marriage, but denied the allegations regarding desertion. It was alleged that Ranjit Singh, is employed in the Army and whenever he came to the village on leave, both of them lived as husband and wife and after the expiry of his leave she would remain mainly in the house of the father of Ranjit Singh and sometimes she used to go to the house of her parents at village Kurala. She admitted that she gave birth from the loins of Ranjit Singh to a girl, named Harmohinder Kaur on February 22, 1958 and she is living at village Sallapur with Ranjit Singh. She also gave birth to a son on December 21, 1967, but unfortunately he died a few days after his birth. She denied all other allegations made in the petition. It was pleaded that the treatment of the petitioner, his father, his brothers and also the wife of his elder brother was cruel towards her and they subjected her to all sorts of illtreatment and that the petitioner Ranjit Singh used to give beating to her and made her life miserable. He used to tell her that she was not beautiful and had only one eye and, therefore, she was not to his liking and he wanted to marry a beautiful educated girl, but she objected to this and thereafter he used to maltreat her and give beating to her and finally turned her out of his house on or about the month of December, 1968 and that since then she was residing at her parents'' house. It is averred that this application has been made with a view to create evidence for divorce. On these pleadings of the parties, the following issues were framed by the Sub-Judge :--

(1) Whether the respondent has deserted the petitioner for a continuous period of more than two years without any reasonable cause ?

(2) Whether the petition has not been properly verified, if so, to what effect ?

The learned Sub-Judge held that Jasbir Kaur deserted the petitioner for a continuous period of more than two years without any reasonable cause and decided issue No. 1 in favour of the petitioner Ranjit Singh. Issue No. 2 was decided against the appellant. As a result, decree for judicial separation was passed in favour of Ranjit Singh against Jasbir Kaur with no order as to costs. Peeling aggrieved, Jasbir Kaur filed the present appeal in this Court.

Section 10(1) (a) of the Hindu Marriage Act reads as follows :--

10(1) Either party to a marriage, whether somelmnized before or after the commencement of this Act, may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party------------------------.

(a) has observed the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition ;

(b)...............

(c)......

(d)............

(e)...............

(f)...............

Explanation.--In this section, the expression ''desertion'', with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wash of such party, and includes the wilful neglect of the petitioner by the other party to the marriage.

... ... ...

''Desertion'' means the international permanent forsaking and abandonment of one spouse by the other without that other''s consent, and without reasonable cause. It is total repudiation of the obligations of marriage. If is well settled law that the burden of proving desertion--the ''factum'' as well as the ''animus deserendi''--is on the petitioner and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. Even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. To prove desertion, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus-deserendi). Moreover, two elements are essential so far as the deserted spoue is concerned : (1) the absence of consent, and-(2) absence of-conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case Vide Lachman Utamchand Kirpalani Vs. Meena alias Mota, and Mst. Mato Vs. Sadhu, . The onus to prove the alleged desertion by the appellant was on Ranjit Singh, respondent-petitioner.

Both the parties have produced evidence to prove their respective allegations. It is admitted that the marriage of the parties took place on June 15, 1956 and a daughter, named, Harmohinder Kaur was born to the appellant from the loins of the respondent on February 22, 1958. After some time a son was also born to her, but he died after 7/8 days of the birth. Ranjit Singh respondent is employed in the Array and, therefore, he remained away from his house during the major period of the year and during that period Jasbir Kaur either used to reside at the house of the parents of the respondent or at the house her own parents. According to the statement of Ranjit Singh petitioner, it was in the year 1964 that Jasbir Kaur left his house in his absence and thereafter the relations between the parties became strained and that finally in January, 1967, she left his house for good and has not returned to his house since then. Jasbir Kaur appellant as R.W. 3 testified that about 4/5 years ago (statement recorded on March 3, 1972), the petitioner Ranjit Singh started maltreating her on the ground that she was a simpleton and blind by one eye and, therefore, he wanted to remarry another girl and that since she was not willing to give consent to his second marriage, therefore, he on that account started maltreating her and that she was turned out of his house by the petitioner and since then she was residing at the house of her parents in village Kurala. In her written statement, she had pleaded that her husband Ranjit Singh, his father and his brothers and the wife of his elder brother were cruel towards her and they subjected her to all kinds of maltreatment, that the petitioner had been beating her and tried to make her life miserable and used to say that the respondent was not beautiful and that the defect in her eye was not to his liking and he would marry a beautiful educated girl and he wanted her to leave his house and that the petitioner at the instigation of his father and the wife of his elder brother abused and gave beating to her and turned here out of his house in the month of December, 1968 However, these facts were not stated by her in her statement as R.W. 3. This version was also not put to Ranjit Singh respondent as P.W. 4 and also to any of his witnesses their examinations. Moreover, it is admitted and is also proved from the evidence of the appellant and her witnesses that even at the time of her marriage, she was a simple lady and was blind by one eye and in spite of this the petitioner kept her happy for about ten years of his marriage and from his lions she gave birth to two children out of whom one is still alive and is brought up and educated by the respondent. It is not explained why this allegation regarding maltreatment and remarriage was not put to Ranjit Singh and his witnesses in cross-examination. The statements of the appellant and her witnesses regarding the alleged maltreatment are vague and indefinite. Moreover, her witnesses being residents of another village had DO personal knowledge about the alleged beating and maltreatment. In her cross-examination, Jasbir Kaur as R.W. 3 stated that she informed her parents about the beating given to her, but she did not examine any of her parents in Court to prove this fact. She also did not get herself medically examined for any injuries that might have been caused as a result of that beating. Partner, no notice of any kind was either given by the appellant or her parents to the respondent regarding this alleged maltreatment and beating. Therefore, the allegation of the appellant that she left the matrimonial house on account of maltreatment and beating given to her by the appellant is not established. On the other hand, it is proved from the evidence of Ranjit, Singh respondent and his witnesses that she was never maltreated and given any beating either by the petitioner or by any member of his family.

Kishan Singh R.W. 1 is the uncle of the appellant and he testified that after about 3 or 4 years of the marriage, Ranjit Singh began to quarrel with Jasbir Kaur because she was not of his liking and she was a simpleton and was blind by one eye. To the same effect is the evidence of Inder Singh R.W. 1 However, he had no knowledge about the alleged illtreatment of the appellant by the respondent. A mere apprehension in the mind of the appellant that her husband Ranjit Singh wanted to marry for the second time was no ground for her to leave the matrimonial house. No betrothal or marriage of the respondent has taken place since the year 1967, when she left the house. There was no reasonable cause for her to leave the matrimonial house in the year 1967 and to continue to live at the house of her parents uptil now.

Admittedly, Ranjit Singh filed an application u/s 10 of the Hindu Marriage Act for judicial separation against the appellant on April 29, 1969. A compromise was aimed at between the parties in that case on November 13, 1969 according to which Jasbir Kaur agreed to go to the house of Ranjit Singh, who was to go to the horse of the parents of Jasbir Kaur on the next day i.e. November 14, 1969 and would take her to Chandhighrh and in terns of that agreement he withdrew the petition. He stated that he went to the house of his father-in-law Babu Singh on the next day to take the appellant back with him, but he was told that he should bring his language from his village and reach the Bus Stand and that Babu Singh would bring Jasbir Kaur at the Bus Stand Accordingly, he reached the Bus Stand as agreed, but they did not came and then he again went to the house of his father-in-law, where he was made to sit and ultimately they picked up a quarrel with him and Babu Singh refused to send Jasbir Kaur with him. He further stated that at that time he was employed in the Array Unit No 23 at Chandigarh and his Commanding Officer wrote a letter to the Sarpanch of village Kurala to (sic) that Jasbir Kaur should go and live with him at Chandigarh and a reply was sent through the Block Development Officer to his Commanding Officer that Jasbir Kaur had not been sent earlier as Ranjit Singh had not visited her to bring her back. He went on to state that thereafter he was granted leave by his Commanding Officer to bring Jasbir Kaur at Chandigarh, but when he reached village Kurala, his father-in-law Babu Singh and Jasbir Kaur appellant maltreated him and he approached the Sarpanch of the village, but Babu Singh blankly refused to send Jasbir Kaur with him.

Gurdas Ram P.W. 1, Darshan Singh P.W. 2 and Bhag Mal P.W. 3 have all stated that they went to the house of the father of the appellant and requested him to send Jasbir Kaur to live with the appellant, bat due to the (sic) attitude of Jasbir Kaur and her father their efforts failed.

It is thus clear that the respondent is ready and willing to bring the appellant to his house, but she has refused to go to her matrimonial house. Ranjit Singh respondent as P.W. 4 stated that he is willing to take Jasbir Kaur to his house to live with him as his wife, but she is not willing to live with him. His Offer is unconditional. As against this, Jasbir Kaur appellant as R.W.3 stated in her examination-in chief that she is ready and willing to live with the petitioner. However, in her cross-examination, she deposed that she apprehended danger to her life, because both the brothers of the respondent ate doctors and they might administer poison to her in some way or the other. It is thus clear that she is not willing to go to the house of the appellant. She made no allegation in her written statement that she apprehended danger to her life from the two brothers of the appellant, who are doctors and her statement on this point is all afterthought. Her refusal to go to the house of her husband is on imaginary grounds.

For the reasons given above, it is Held that the appellant deserted the respondent Ranjit Singh for a continuous period of more than two years immediately before the presentation of this petition without any reasonable cause and the decision of the trial Court on issue No. it is correct and the same is affirmed.

No other point was urged in this appeal. There is no force in this appeal and the same is dismissed. There will be no order, as to costs.