Smt. Surindbr Kaur vs Shri Kirpal Singh

R.N. Mittal, J.—The first appeal has been filed by Smt. Surinder Kaur against the judgment and decree of the Additional District Judge, Ludhiana, dated November 23, 1977, granting the petition of her husband for the dissolution of marriage by a decree of divorce u/s 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act).

Briefly the facts of the case are that Kirpal Singh, petitioner, was married to Smt. Surinder Kaur on May 7, 1972. A son was born to them on February 2, 1972. He is in the custody of the wife. It is alleged that she has deserted the petitioner since October 2, 1972 without reasonable cause as she did not like him and his parents. It is further averred that the petitioner had filed an application for restitution of conjugal rights which was dismissed on the ground that the respondent could not be compelled to leave the service to join the petitioner The husband has filed a petition for a decree of divorce on the ground of desertion by the wife.

The petition was contested by the wife. She alleged that the petitioner and his parents had been cruel to her. It is further alleged that the family of the petitioner was poor and his parents were illiterate, rustic and vulgar. She also averred that the petitioner had been abusing, mal-treating and disgracing her before her colleagues, relatives, friends and acquaintances. It is then pleaded that the petitioner filed an application u/s 9 of the Act which was dismissed by the trial Court and an appeal against the judgment was pending before the High Court. Consequently the petition for divorce was not maintainable. Some other objections were also taken but those are not necessary to be reproduced, as the decision of the trial Court has not been challenged on the issues framed on those pleas

The learned trial Court held that the petition for dissolution was maintainable and that the petitioner had been deserted by his wife. Consequently a decree for dissolution of marriage has been granted. The wife has come up in appeal against the judgment and decree of the trial Court to this Court.

The first question that arises for determination is whether a petition for dissolution of a marriage by decree of divorce u/s 13 of the Act was maintainable in view of the fact that a petition for restitution of conjugal rights had been dismissed and an appeal against that order was pending at the time of tiling of the present petition, which was later on withdrawn. It is contended by the learned counsel for the appellant that petition for restitution of conjugal rights was filed by the respondent on the ground that the appellant had withdrawn from the society without reasonable cause on October 2 1972. He further submits that the petition has been filed on the ground that she had deserted the respondent on the same day, that is, October 2, 1972. According to the counsel, in view of section 39 of the Marriage Laws (Amendment) Act, 1978 (hereinafter referred to as the Amendment Act), the respondent could not file a fresh petition for divorce but he could amend his earlier petition for restitution of conjugal rights and incorporate in that petition a prayer for dissolution of marriage by decree of divorce. The learned counsel argues that the petition is liable to be dismissed on this ground alone.

We have given a thoughtful consideration to the argument, but regret our inability to accept it. Section 9 provides that when either the husband or the wife, without reasonable excuse, has withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights Section 13 mentions the circumstances in which an application for divorce can be made. Before the Amendment Act, neither of the spouses could claim divorce on the ground of desertion. After the amendment they can do so provided desertion is for a continuous period of not less than two years immediately preceding the presentation of the petition for divorce. The relevant part of the Section is as follows:--

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

... ... ... ... ...

(ib) has deserted the petitioner for continuous period of not less than two years immediately preceding the presentation of the petition; ... ... ... ...

Section 39 of the Amendment Act consists of special provision regarding pending cases, which is as follows:--

Special provision as to pending cases:--

(1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such court--

(i) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act ;

(ii) if it is a petition or proceeding under the Special Marriage Act, then so far as may be, as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act.

(2) In every petition or proceeding to which sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the pleadings, in so far as such amendment is necessary to give effect to the provisions of sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding as the case may be, for divorce.

Sub-section (2) contains a direction for the Courts that they should grant an opportunity to the parties to amend the pleadings if amendment was necessary to give effect to the provision of sub section (1). If Sections 10 and 13 as they stood prior to the amendment and as they are after the amendment, are read together, it will be seen that radical changes have been made in them by the Amendment Act. As for example, after the amendment, desertion for a continuous period of not less then two years has been made a ground for divorce. Earlier it was a ground for judicial separation only. The Legislature in its wisdom thought that if a petition for judicial separation was pending, the petitioner should be allowed to convert it into that for divorce. Similarly it thought that if a petition for divorce was pending on certain grounds the petitioner should be permitted to introduce in it new grounds which became available to him by virtue of the Amendment Act. Section 39, it seems was introduced to lessen the hardship of the petitioner. It however, does not appear from the language of the section that an application for restitution of conjugal rights can be converted into that for divorce. The reason for not providing so is that the petitions for restitution of conjugal rights and divorce are of different nature. The its in Smt. Manjit Kaut v. Gurdial Singh Gangawala 1977 Cus. L.J. 506, are distinguish from those of the present case. There a petition for judicial operation on the ground of desertion had been filed which was discussed in default No application for restoration of the petition was (sic). Subsequently on the same facts, a petition for divorce was filed. The learned Chief Justice held that in view of the Amendment Act, the amendment petition was not maintainable. The observations in that (sic) are, therefore, of no assistance to the appellant in our view fresh petition for diverse was maintainable by the husband on the ground of serration, after his petition for restitution of conjugal rights had been dismissed.

The second question to be decided is whether the respondent entitled to a decree of divorce on the ground that the appellant had sorted him. In order to prove the desertion, the husband (respondent) produced in evidence besides himself Gurbachan Singh, P.W. 1 ; Mohinder Singh, P.W. 2 ; Didar Singh P.W. 3 and Manmohan singh, P.W. 4. Gurbachan Singh, P.W. 1, a neighbour of the respondent, stated that the appellant left the house of the respondent in October, 1972. During her stay there she was not mal-treated is statement is supported by Mohinder Singh P.W. 2, Didar Singh, P.W. 3 and Manmohan Singh, P.W. 4. Inspite of searching cross-examination, their credulity could not be shaken. Mohinder Singh, P.W. 2, also stated that the appellant had stated that she did not in and to reside with the respondent. In March and August, 1973, he (he witness) along with the respondeat and Mammohan Singh, P.W. 4, respondent to the appellant to bring her back to the house of the respondent, it she refused to do so. It is further stated by him that the parents the appellant, who were also there, refused to send her to the respondent. Manmohan Singh, P.W. 4, made a similar statement. The round for leaving the house of the respondent by the appellant was stated to be that the standard of living of the respondent was not good his fact further finds support form the pleas in the written statement herein she stated that the family of the respondent was too poor, his other was a cart man (Rehriwala) and his parents were illiterate, rustic and vulgar. The appellant produced Gurdial Singh her father and she also appeared as her own witness. Though both of them denied the negations of the respondent, yet their statements do not inspire condense. From the aforesaid circumstances it is evident that the appellant did not want to live in the house of the respondent.

It is sought to be argued by the learned counsel for the appellant that she was mal-treated by the respondents and was forced to save the house on October 2, 1972. The learned counsel urges that consequently it cannot be inferred that the appellant deserted the respondent. We have given a serious thought to this contention, but egret our inability to accept it. The statements of the witnesses have already been discussed above. In addition to the oral evidence, the appellant''s letters go to prove that the story put forth by her is an after thought. She had gene to her parents at Amritsar in September, 1972. From there she wrote two letters to the respondent-first on September 17, 1972 and second on September 21, 1972. In those letters she did not say that she was mal-treated by the respondent may be highlighted at this stage that she left the house of the responder on October 2, 1972, that is, a few days after the said letters. From the letters it can safely be held that she was not illtreated immediately before she left the house of the respondent.

There is also evidence on the record which shows that the appellant left the house of the respondent with an intention not (sic) return. It is that she, in the month of October, 1972, took certain articles from the respondent against a receipt. It is not understandable as to why the articles were taken by the appellant in that way. No other inference can be drawn from the aforesaid circumstances except that she left the house of the respondent with an idea not to return.

It is now to be seen whether in the aforesaid circumstance it can be held that the appellant deserted the respondent. The wore ''desertion'' has been defined in explanation to section 13(1). According to the definition, this expression means the desertion of the petitioner by the other party to the marriage without reasonable cause and with out the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and it grammatical variations and cognate expressions shall be construed accordingly. The word ''desertion'', prior to the Amendment Act was defined in explanation to section 10 in similar terms. That section came up for interpretation before the Supreme Court in Lachman Utamchand Kirpalani Vs. Meena alias Mota, . In that case, Ayyangar, J., speaking for the Court, observed that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. The above case was followed by the Supreme Court in Smt. Rohini Kumari Vs. Narendra Singh, , wherein similar observations were made. From the facts and circumstances of this case, in our view, it is clear that the appellant left the house of the respondent forsaking him without his consent and without reasonable cause. The conclusions arrived at by the trial Court in our view, are correct and we affirm the same.

For the reasons recorded above, the appeal fails and the same is dismissed with no order as to costs.

D.B. Lal, J.

I agree.