Smt. Uma Wanti vs Ram Dayal

Rajendra Nath Mittal, J.—This appeal has been filed by the wife against the judgment and decree of the Additional District Judge, Kurukshetra granting a decree for divorce in favour of the husband.

Briefly the facts are that the parties were married on 19th February, at New Delhi. They lived together as husband and wife at Kurukshetra and Delhi. Out of the wedlock a daughter was born on 10th June, and a son on 12th October, 1975. It is alleged by the husband that the behaviour of the wife after one year of the marriage became rude towards him. She started compelling him to shift his residence from Kurukshetra to Delhi which he could not do on account of his aged parents. Thus their regulation became strained.

After sometime in order to lead harmonious family life, he shifted to Delhi in October, 1974 and stayed there till April, 1975 as the wife had joined a Tailoring & Cutting Diploma Course there. After she completed the Course, she agreed to come to Kurukshetra in September, 1975. Consequently they shifted to Kurukshetra but she again left his house in his absence. In spite of his best efforts she did not return to his house. He moved a petition u/s 97 of the Code of Criminal Procedure but when she was brought before the Court, she made a statement that she was not ready to live with him. Ultimately he moved a petition u/s 9 of the Hindu Marriage Act for restitution of conjugal rights. In view of the said application she returned to his house at Kurukshetra but after staying there for four days she again left on 14th August, 1976 for Delhi. He in the meantime got the petition dismissed.

It is further averred that the wife filed a petition u/s 125, Code of Criminal Procedure, in the Court at Delhi which was ultimately got dismissed by her. She also filed a complaint u/s 494 of the Indian Penal Code which was dismissed in default in 1979. Thereafter he again shifted to Delhi at the instance of his wife in the middle of 1979. However, she started insulting him. At his persuasion the wife agreed to come to Kurukshetra and stay with him. She on 2lst March, 1980 came to Kurukshetra with the children but she again left his house on 25th March, 1980 without any reason and against his consent. Since than she did not return to his house in spite of his best efforts. It is further alleged that the wife had deserted him since that date without any reason. Consequently he prayed that a decree for divorce be passed in his favour.

The wife contested the petition and controverted the allegations of the husband. She pledged that she was mal-treated by him and was turned out of his house in April, 1974. Since then she had been residing in Delhi. It is stated that the husband filed two petitions u/s 9 of the Act for restitution of conjugal rights which were dismissed on 30th September. 1976 and 26th January. 1978 on account of nonpayment of maintenance pendente lite and litigation expenses. He had developed illicit relations with one Pushpa and was leading a comfortable life with her. He also filed a complaint against her and her father u/s 323/506, Indian Penal Code which was dismissed on 10th September, 1979.

The wife further averred that in the complaint u/s 494, Indian Penal Code by her the husband promised that he would not keep Pushpa with him and would stay at Delhi with her (wife). Thereafter he lived with her at Delhi up to 22nd March, 1980 and then deserted her without any reasonable excuse. Then he filed another petition u/s 9 of the Act which was dismissed on 29th October, 1981 on account of non-payment of litigation expenses. She also filed a petition u/s 125, Code of Criminal Procedure, which was decided. In her favour and the husband was directed to pay Rs. 155/-per mensem as maintenance. She also raised some other objections which are reflected in the issue.

On the pleadings of the parties the following issues were framed :

Whether the petitioner is entitled to a decree of divorce, as alleged in the petition ? O.P.P.

Whether the petition is false and frivolous and has been filed with mala fide intention, as alleged in para No. 1 of the P.C. ? O.P.R.

Whether the petition is barred by the principles of res judicate? OPR

Whether this Court has no jurisdiction to entertain and try the petitioner ? OPR

Whether the present petition is not maintainable in the present form ? OPR.

Whether the present petitioner is estopped from filing the present petition? OPR.

Whether the respondent is entitled to disposal of the property as claimed ? OPR.

Relief.

The trial Court decided issue No. 1 in favour of the husband and issues Nos. 3 and 4 against the wife Issues Nos. 2, 5 and 6 were not pressed before the trial Court. Issue No. 7 had been given up by the wife vide statement dated 22nd March, 1983 before the trial Court. In view of decision of issue No. 1 in favour of the husband the Court granted a decree for divorce against the wife. She has come up in appeal against the judgment and decree of the trial Court to this Court.

Before dealing with the evidence of the parties it is relevant to point out that the desertion in the persent case is alleged to have taken place on 25th March, 1980. From the narration of facts as given above, it is clear that there were many rounds of litigation between the parties, some started, by the husband and some by the wife. It is regrettable that in spite of having fought for such a long time both of them could not reconci''e I tried my level best to get the matter patched up between them. The appellant agreed to go to her husband on 15th May, 1984 and in pursuance of that she went to his house. The case had been adjourned on 15th May, 1984 to 25th May, 1984 in order to find out whether they started living together or not. They appeared in the Court on 25th May, 1984 and stated that they bad been living together since 18th May, 1984 and they were agreeable to live together in future also. The husband stated that he was making arrangements for admission of the children at Kurukshetra to which the wife had no objection. They requested for further time. The case was consequently adjourned to 27th July, 1984. It appears that the case did not come up for hearing on 27th July, 1984 before me. On 28th July, 1984 Civil Misc. No. 3439-C1I of 1984 was filed on behalf of the wife stating that she had been turned out of the house on 30th June, 1984 by the husband by giving a beating. She also stated that she cohabited with the husband till that date. She prayed that she may be allowed to place a detailed affidavit regarding the happenings and three documents, namely, first information report lodged by her against her husband, Annexure A1, medical certificate, Annexure A2, and prescription of a doctor Annexure A3. The application was listed before me on 30th July, 1984. Mr. Bali requested for time to enable him to file reply to the civil miscellaneous. The case was adjourned to 13th August, 1984. On that date reply to the application and affidavit were filed by Mr. Bali. Mr. Sarin requested for time to enable him to study the reply of the husband. The case was adjourned to 3rd September, 1984. Before 3rd September, 1984, replication to the reply was filed on behalf of the wife. She also annexed a letter dated 27th June. 1984 written by her to her father when she was staying with her husband

The husband also filed C.M. No. 2392-CII of 1984 praying that he may be allowed to produce on the record copy of the order of the Additional Sessions Judge, Patiala in revision petition "Subash Kumar minor v. Ram Dayal", decided on 12th October, 1983. The application was, oppossed by the appellant. It is well settled that subsequent events after I the filing of the proceedings can be taken into consideration. In the circumstances I allow the wife to place on record the affidavit dated 26th June. 1984 along with the enclosures filed with Civil Misc. No. 3439-CII of 1984. I also allowed her to file replication to the reply filed by respondent along with the letter written by her to her father on 27th June, 1984. Regarding the civil miscellaneous filed by the husband for taking on the record the judgment of the Sessions Judge on issue No. 2 I do not find any justification at this stage to allow him to do so. The reason is that the judgment is not admissible for the purpose of deciding the present appeal. Consequently, I dismiss the same.

Now I will examine the evidence in the case. As already stated above, voluminous evidence has been led by both the parties relating to the incidents before and after March, 1980. However, it is not necessary hereto refer to all the evidence relating to the period prior to 1980. Mention may be made of two complaints of the wife against her husband one u/s 107 and the other u/s 494 which were pending in the Courts at Delhi in 1979. A compromise was arrived at between the parties on 26th June, 1979. In addition to both husband and wife Jassa Ram and Vir Bhan, brother-in-law and father of the former were parties to the compromise and signed it as his surety. It was stated in the agreement that the husband had assured that he would give better treatment to the wife and children, that he would not take the children outside Delhi without the permission of the wife and that if he turned out or deserted the wife and children, he would be liable to pay Rs. 120/- per mensem to the wife and Rs. 40/- per mensem to each of the children as maintenance. All litigations between the parties inducing the complaints mentioned above thus stood withdrawn. On the same day an affidavit, copy of which is Exhibit R. 6, was executed by the husband containing similar conditions as were contained in the agreement. In his statement before the Court the husband denied the execution of the agreement and affidavit. He said that his signature on them were obtained by undue influence. He has been working earlier in the Courts as a typist and now he is a lawyer. He understood the implications of executing the document. He did not make any such grievance earlier nor served any notice that his signatures were obtained by undue influance. The stand taken by him now is an afterthought and cannot be accepted. From the affidavit and the compromise it is evident that the husband had agreed to live with the wife and she on account of the assurances given by him withdrawn the criminal cases. She admittedly lived with him up to 20th March, 1980 at Delhi and thereafter she alleges that the husband came to Kurukshetra deserting her and the children. On the other hand, the husband alleges that she came to Kurukshetra along with him on 20th March, 1980 and then deserted him on 25th March 1980 and went back to Delhi. It is to be found out which of the two stories is correct. In order to decide it, the subsequent events have to be noticed.

The husband kept quiet for some time after 25th March, 1980. He filed a petition for restitution of conjugal rights on 23rd December, 1980 on the ground of desertion (see Exhibit R.B). The allegation made therein was that the wife withdrew from his society on 25th March, 1980. He did not give the detailed story there as has been given by him in the present petition. The wife appeared in that case to contest the petition. On 29th October, 1981, the husband did not appear and got the petition dismissed in default. The order of the Court is Exhibit R. 7. It appears that the husband did not want to take her back, otherwise he would not have got that petition dismissed in default. It is also noteworthy that he after turning her out did not pay amount on account of maintenance to her as agreed between them at the time of the compromise. It is further relevant to point out that the story of the wife is that she came to Kurukshetra on 22nd March, 1980 to attend the marriage of her cousin Ved Parkash son of her maternal uncle where her husband became furious and gave her beating. A photograph (Exhibit R. 9) was taken at the time of the marriage in which the husband, the wife and some others were shown to be present. When the husband was cross-examined, he denied his presence at the time of marriage ceremoney. He said that he did not attend the marriage. When confronted with the photograph he deposed that he could not identify whether in the photograph was present at the place mark B. Later he had to admit that he was present in the photograph. He did not identify his son Deepak and Ved Parkash in the photograph. The answers to the question in cross-examination go a long way to show that he was concealing the true facts. The version given by the wife appears to be trugthful. His version is further falsified from the fact that he admitted in cross-examination that he had not brought his luggage from Delhi as he feared that his father-in-law did not permit him to shift to Kurukshetra. Incase he had returned to Kurukshetra with the wife and children, he would not have left his luggage at Delhi. The husband produced Jassa Ram (P.W. 2) and Ishwar Parkash (P.W. 3). The husband''s sister is married to Jassa Ram. He is a resident of Ramana Ramni. He deposed mostly about the facts prior to March, 1980. Regarding the facts subsequent thereto he stated that about three years back the wife came to Kurukshetra and stayed there for, 7/8 days and left Kurukshetra thereafter. He was not present in Kurukshetra when she left his house. He could not give the month when he came there. He being the brother-in-law of the husband is also interested in him. Therefore, his testimony cannot be believed. Ishwar Parkash (P.Ws.) stated that the wife came to Kurukshetra in March, 1980 to live with her husband and she stayed there for, about a week. The children were with her at that time. Thereafter she went back to Delhi. He is also a friend of the husband and it was natural that he supported him. No reliance can also be placed on his statement.

The appellant appeared as R. W. 1 and deposed that in March, 1980. she came to Kurukshetra to attend the marriage of Ved Parkash, the son of her maternal uncle. There she stayed at the house of her maternal uncle. On 24th March, 1980 the husband came to the maternal uncle''s house and gave beating to her stating that he wanted to give her divorce. Thereafter she left for Delhi from the house of her maternal uncle on 25th March, 1980. She proved photograph Exhibit R. 9 which was taken at the time of marriage of her cousin Ved Parkash. She identified in the photograph her cousin, husband, and son Deepak. She further deposed that before coming to attend the marriage of Ved Parkash, she had been living at Delhi with her husband and after the said marriage her husband did not join her. She also stated that during the period of their stay at Delhi, their relations were cordial but he used to remember sometime Pushpa. She categorically said that she was ready to live with him but she apprehend that he would kidnap her children, in order to purssurise to her keep Pushpa.

After going through both the statements and taking into consideration the circumstances, the version given by the wife appears to be correct. Consequently it cannot be said that she deserted the husband on 25th March. 1980 as alleged by the husband. On the other hand, she had been deserted by the husband who did not care even to maintain her in terms of the compromise between them. He even did not provide any maintenance to the children.

As already mentioned above, I tried my level best to make reapproachment between the parties but failed. The wife in her affidavit dated 26th July, 1984 stated that she joined her husband on 15th May, 1984 at Kurukshetra as per directions of the Court and had marital intercouse with him a number of times upto 22th May, 1984. She after attending the Court on 25th May, 1984 went to his house and again cohabited with him. Both the children were brought to Kurukshetra by her for permanently residing with them. However, their school certificates were not collected as the schools were closed on account of summer vacations. She wrote a letter to her father on 27th June, 1984 and informed him that her husband and son Deepak had not been keeping fit. She further informed him that Deepak was going to be interviewed for admission on 7th July, 1984. The letter has been filed by her as an annexure. Her further came to Kurukshetra on 29th June, 1984 to meet her, her husband and the children and to enquire about their welfare. He requested her husband to collect the school leaving certificates of the children. She asked her husband to accompany her to Delhi for collection of the school leaving certificates of the children so that they could be got admitted in Kurukshetra. It is alleged that he became furious and refused to accompany her to Delhi for cellecting the certificates. On 30th June, 1984, when she again pressed him to accompany her to Delhi, he shouted at her and started giving fist blows and inflicted one injury below her right eye and gave firt blows on other parts of the body. The other members of the family of the respondent joined him and told her that she had no right to live there. She was brought there at the instance of the High Court with no intention to keep her permanently. Thereafter she was forcibly thrown out of the house by the husband. She went to the police station and got first information report recorded the same day at 11 A. M. Thereafter she went to the doctor and obtained a medical certificate. She was pregnant at that time and was physically and mentally unfit to return to Delhi. On 5th July, 1984, she started bleeding and sufferred miscarriage. She annexed the prescription of the doctor whom she consulted at Delhi. Her statement finds support from the first information report, the medical certificate and the prescription of Dr. H. L. Likha (Annexure A-1 to A-3 respectively). In the first information report and the medical certificates the injuries have been shown to have been inflicted to herunder the eye. Mr. Bali has raised an argument that all the aforesaid documents were manipulated by the wife and no such injuries were inflicted by her husband. He argues that in the first information report the injury is shown to be of the blue colour whereas in the medical certificate it is shown of reddish colour. According to him, the injury is in the first instance of reddish colour and it becomes of blue colour subsequently. I have given due consideration to the argument but do not agree with the same. It cannot be conceived that the wife would go to the extent of lodging a first information report in case she was not given a beating by the husband. It is true that in the first information report the colour of the injury is shown to be blue and in the medical certificate it is shown to be red. However, the Moharrir Constable who gave his own observation regarding the injury, is a layman and much significance cannot be attached that he mentioned the injury as a blue mark.

The husband in his reply to the affidavit of the wife admitted that the wife stayed with him from 15th May, 1984 to 30th June, 1984 but controverted other allegations. He stated that she did not cohabit with him during her stay. Thereafter on 29th June, 1984, her father came with a purpose to take her back to Delhi. She was not given any beating by him. She left of her own choice for Delhi with her father. The reply does not appeal to reason. The husband and wife both appeared in the Court on 25th May, 1984 and he did not make any grievance that the wife did not allow him to cohabit with her. In case he was not allowed to do so, there was no reason why a grievance could not have been made in that regard in the court on 25th May, 1984. The story of the husband appears to be without any foundation. The story of the wife is also supported by the prescription of the lady doctor. There are no grounds to disbelieve the affidavit of the wife and the prescription of the doctor. Therefore, I am of the opinion that the incident took place on 29th and 30th June, 1984 as depicted by the wife and no fault can be found out with her conduct.

Mr. Sarin has also argued that the husband has married Pushpa and he now wants to get divorce from the appellant on one pretext or the other. On the other hand, Mr. Bali has vehemently argued that there is no evidence to show that the husband had married Pushpa and the allegation is false and frivolous.

It is true that there is no sufficient evidence to hold that the husband has married Pushpa. However, it is not denied that Pushpa aged about 22 years, had been in service of the husband as a maid-servant. She entered into an agreement dated 8th February. 1977, (Exhibit P. 17) with the mother of the husband for service. It is not understandable as to why the agreement was got scribed from Pushpa. Normally in the case of household servants no such agreements are obtained. Subsequently a child was also born to Pushpa which was stated to be from the loins of the husband. A petition was filed by the husband against the wife under sections 6 and 7 of the Hindu Minority and Guardianship Act, 1956 for the custody of the minor children. That petition was contested by the wife. While dismissing the petition on 24th July, 1983 the Guardian Judge observed as follows : --

There are also allegations that the applicant has some connection with Pushpa Devi. It is an admitted fact that Pushpa resided in the applicant''s house for a certain period. But the applicant''s allegations is that she was engaged as a maid servant during the illness of his mother. There is no proof of illness. It also does not appeal to reason that such a family of meagre income could think of engaging a maid servant. The applicant could himself prepare his meals in case his mother was ill or he could bring any one of his sisters during the period of illness instead of engaging a maid servant. Moreover, the maid servant belongs to District Bhiwani. It is a doubtful circumstance that an unmarried girl of young age of such a distant place was engaged as maid servant.

Mr. Sarin vehemently contends that from the above observations it is clearly established that the husband had developed illicit relations with Pushpa. On the other hand, Mr. Bali contends that there was no issue framed in that case that the husband had illicit relation with Pushpa and, therefore, those observations are not binding on the parties. I have given my thoughtful consideration to the arguement. I agree with the submission of Mr. Bali that the observations are not of a binding nature as the parties were not at an issue and they did not lead evidence. However, from the above facts it appears that some apprehension grew in the mind of the wife that her husband was having illicit relations with Pushpa. She also brought a complaint u/s 494, Indian Penal Code against her husband. In that complaint the husband was summoned by the Court. Apprehending that some trouble may not arise for him, he entered into a compromise with the wife and, therefore, the wife got the complaint dismissed. From the above circumstances it cannot be said that the suspicion of the wife is absolutely without any foundation. However, it is not necessary to record any finding in this regard in this case.

It has been held by the Supreme Court in Lachman Utamchand Kirpalani Vs. Meena alias Mota, that in its essensce 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. If a spouse abandons the other spouse in a state of temporary passion, for example, anger and disgust without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse 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. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference, that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. It is further observed 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. In other words, even if the wife, where she is 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. After taking into consideration all the circumstances it cannot be held that the wife had been cruel to the husband or deserted him.

For the aforesaid reasons I accept the appeal, set aside the judgment and decree of the trial Court and dismiss the petition for divorce. No order as to costs.