Sudarshan Singh vs Smt. Kuldip Kaur

Muni Lal Verma, J.—This appeal is sequel of the matrimonial rupture between the parties and atone in these circumstances:

Sudarshan Singh Appellant was married to Shrimati Kuldip Kaur Respondent on November 17/18, 1956 at Amritsar, and they lived there as husband and wife. A son and a daughter were born to them. The daughter had, however, died. On Jure 12, 1959, the Respondent withdrew from the society of the Appellant and began to reside with her parents who are also living at Amritsar. On the intervention of the respectable and relations, their differences were resolved and the Respondent resumed the society of the Appellant on June 21, 196(sic), and continued living with him for about four and a half years. On December 31, 1964, she abandoned the matrimonial home without any cause, deserted the Appellant and did not return to him despite his efforts to secure her society, She joined the Librarian Course at Chandigarh and thereafter she secured employment as Librarian firstly at Batala and then in the Modern College for Women at Amritsar. She had also been guilty of cruelty which gave reasonable apprehension in the mind of the Appellant that it would be harmful or injurious for him to live with her. She had been giving beatings to him and she had given tooth bite on his chest on December 30, 1964 and next day she had left him for good. With these allegations, the Appellant petitioned for judicial separation u/s 10 of the Hindu Marriage Act, 1955 (hereinafter railed the Act), on the grounds of desertion and cruelty. He had also claimed the custody of his son.

The Respondent contested the petition moved by the Appellant. She admitted the factum of marriage as well as the birth of two children from her to the Appellant. She controverter the other material allegations made by the Appellant, and pleaded that he (the Appellant) and his mother had been maltreating and taunting her for not bringing adequate dowry and she had been subjected to violence a number of times and had been ultimately, turned out of the house by the Appellant on June 12, 1959, that she had given tooth-bite on the chest of the Appellant to save hereself from his clutches when he was bodily lifting her with a view to throw her down from the roof of the house. Hence, the petition was tried on the following issues:

(1) Whether the Petitioner has been deserted by the Respondent since December 31, 1954. OPP

(2) Whether the Respondent is guilty of cruelty as alleged and the Petitioner possesses reasonable apprehension in his mind that it will be harmful and injurious for him to live with the Respondent ? OPP

(3) whether the Petitioner is entitled to the custody of the minor child named Guiu and whether such a prayer is maintainable in the present petition ? OPR.

(4) Relief.

Issue No. 3 was not pressed and the trial Court ignored it with the remark that it was redundant. It decided issue Nos. 1 and 2 in the negative and dismissed petition with costs. Dissatisfied with the said result, Sudarshan Singh came to this Court in appeal.

The facts that the parties were married at Amritsar on November 17/18, 1956 and then after they had leved as husband and wife and a son and a daughter were born to them, the daughter had died and the son is alive, that on account of soma estrangement the Respondent left the house of the Appellant on June 12, 1959 and resided with her parents till June 21, 1960 when on the intervention of the respectable and relations she returned to his house and lived there till December 31, 1964 when she again left his house and there her joined the librarian Course at Chandigarh and secured employment as Librarian, firstly at Banng College, Batala and then in the Modern College for Women at Amritsar and she had also given tooth-bite on the chest of the Appellant on December 30, 1964 ; and that she had not so far returned to the house of the Appellant, are admitted. In suoport of appeal, Mr. H.S. Wasu, Learned Counsel for the Appellant, assailed the findings recorded by the trial Court and argued that both the grounds viz., desertion and cruelty on the part of the Respondent were fully proved by the evidence and circumstances of the case. On the contrary, Mr. Tirath Singh Munjral, Learned Counsel for the Respondent, supported the judgment of the trial Court with the contentions that the findings had been correctly recorded by it on both the aforesaid issues, i.e. Nos. 1 and 2, and accused the Appellant of constructive desertion I see merit in the arguments advanced by Mr. Wasu, in my opinion, the contentions raised by Mr. Munjral, are not well-founded, so far as the ground of desertion is concerned.

''Desertion'' as contemplated by Clause (a) of Section 10 of the Act means the intentional permanent forsaking and abandonment of one spouse by the other without his or her consent and without reasonable cause. It has been ruled in Lachman Utamchand Kirpalani Vs. Meena alias Mota, , that desertion is a total repudiation of the obligations of marriage, and so far as the deserting spouse is concerned, two essential conditions must be there ; firstly, the factum of separation ; and secondly, the intention to bring the cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is conctrned, namely (i) the absence of consent ; and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and animus deserendi coincide in point of time. Once desertion is established, there is no obligation on the deserted spouse to appeal to the deserting spouse to charge his or her mind and the circumstance that the deserted spouse made no effort to take steps to effect a reconciliation with the deserting spouse does not debar him or her from obtaining the relief of judicial separation, for once desertion is proved the deserting spouse, so long as he or she evinces no sincere intention to effect a reconciliation and restore the matrimonial harmony, is presumed to continue in desertion. Direct evidence may not be available "to prove animus deserendi, i.e. the intention to bring cohabitation permanently to an end, and it has to be deduced from the circumstances of each case and the conduct of the parties, both anterior and subsequent, to the act of separation is always relevant and sometimes the same may be the determining factor in deciding the aforesaid intention. It is admitted case of the parties that the Respondent left the house of the Appellant on December 31, 1964 and did not return to him for about 31/4 years, i.e., till March 18, 1968 when the Appellant filed the petition u/s 10 of the Act. So, the factum of separation is undisputed and the questions for determination, are whether the Respondent had the necessary animus deserendi in keeping herself away from the society of the Appellant ; secondly, whether the Appellant bad consented to her living away from him ; and thirdly, whether be had given any reasonable cause to her for having his house.

According to Hindu Law, marriage is a holy union and it imposes marital duties upon both the spouses and gives each of them certain rights. Whereas it enjoins on the husband to protect his wife, to give her a home, to provide her with comforts and necessities of life within his means; and to treat her nicely it imposes several duties on the wife. Her first duty is to submit to her husband''s authority and to say under his roof and not to quit his house without adequate excuse or justifying cause. She has to attend to him and to live with him wherever he may choose to reside. The Respondent left the house of the Appellant on December 31, 1964 and never returned to him there-after. She admitted during cross-examination that she had gone to Chandigarh and joined the Librarian Course there in the month of April 1964, i.e. about four months after her quitting the house of the Appellant and remained there till June 1966. Thereafter, according to her admission, she had joined as Librarian in Baring College, Batala, where she remained for one year and thereafter she joined the Modern College for Women as Librarian at Amritsar. She explained that she had joined the Librarian Course with a view to earn in order to maintain herself independently and to go in for further studies. She is a Graduate. Her afforested conduct subsequent to her leaving the house of the Appellant speaks volume against her and goes a long way to show that she had left the Appellant for good with intention to repudiate the obligations of marriage. She did not petition for restitution of conjugal rights u/s 9 of the Act, and her omission to make such a petition reads in lint with the conclusion that she had forsaken the Appellant for good with intention to sever her matrimonial relations with him for ever. She did not approach the Civil or the Criminal Court for obtaining maintenance from the Appellant Therefore, her version that the Appellant had turned her out of his house or had forced her to leave it, sounds improbable because bad it been so, she must have gone to the Civil or Criminal Court to secure maintenance from the Appellant and should have applied for a decree for restitution of conjugal rights. The explanation given by her for having the house of the Appellant is that he had been maltreating her and had also been, forcing her to bring money from her father. For the first time, she had left the house of the Appellant in the year 1959, i.e. about three years after the marriage. She had rejoined him when reconciliation had been brought about by the respectable and relations in the year 1960. She again left the house of the Appellant about four years thereafter. For both the aforesaid departures from the house of the Appellant, she gave the same explanation, referred to above. She, however, admitted during cross-examination that the treatment of the Appellant towards her when they lived at Delhi after 1960 had been proper. It sounds improbable that the Appellant had demanded money from her father through her during the three years that elapsed between the marriage and her first departure, and he again exerted force on her after their coming to Amritsar from Delhi to bring money from her father through his treatment with her during the period they lived at Delhi had been proper. Therefore, her aforesaid explanation does not read consistent with the circumstances of the case and sounds highly improbable and appears to be a feigned one, most probably invented with a view to raise defence to the petition instituted by the Appellant.

No witness produced by the Respondent stated that he had witnessed any beating alleged to have been given by the Appellant to the Respondent. So, there is her bald statement on that matter, and that statement stands controverter by the deposition of the Appellant. She had never got herself medically examined. There is, however, the admitted fact that the Respondent had bit on the chest of the Appellant and the medical evidence available from Dr. V.P. Bhatia, (A.W. 2), points out that the Appellant had a lacerated wound with marks of teeth-bite around it on the morning of December 30, 1964. Therefore, it is obvious that the Respondent had been unable to show that she had any cause, much less reasonable or justifying, to leave the house of the Appellant and not to return to it thereafter. The Respondent had nowhere stated that she had ever returned to the house of the Appellant or had approached him after December 31, 1964 to allow her to live with him. Her father Shri Gurdial Singh (R.W. 6) admitted during cross-examination that the Respondent did not join the Appellant after the said date, i.e. December 31, 1964. He though, asserted that he had been requesting the Appellant to accept the Respondent in his house, yet he did not disclose the date, month or time when he had paid any visit to the Appellant for seeking resonance for the Respondent in his (the Appellant''s) house. So, his statement is of general nature and carries no weight. No copy of any letter alleged so have been written by the Respondent or by her father to the Appellant had been produced and no evidence indicating that they had in fact posted any letter to him after December 31, 1964 had been brought on record. Therefore, the record bears no evidence, much less reliable, to show that the Respondent had made any effort for reconciliation after December 31, 1964.

True the Appellant maintained that he had made efforts for reconciliation in the years 1965 and 1966 through R.R. Kapoor and Harnam Singh, but no evidence is available on the record in support of his aforesaid assertion. The statement of Inder Singh (A.W. 5) that he accompanied the Appellant to Harnam Singh and solicited his assitance in the matter of bringing about reconciliation and sometime later Harnam Singh informed him that the father of the Respondent was not willing to send her back to his (the Appellant''s) house, if of no value, for the reason that he was not present when Harnam Singh had ever approached the Respondent or her father for reconciliation or when the father of the Respondent declined to send her back to the house of the Appellant. Therefore, on the evidence produced by the Appellant, it cannot be said, much less safely, that he had ever approached the Respondent for reconciliation in the years 1965 or thereafter. But then, as indicated above, since he was the deserted spouse, there was obligation on him to make appeal to the Respondent who was deserting spouse to change her mind and to resume the matrimonial home. As such, the omission on his part to approach the Respondent for reconciliation after she has left his house on the December 31, 1964, can be of no consequence. As pointed out above, the evidence produced by the Respondent that she made effort for reconciliation after December 31, 1964 when she left the house of the Appellant, is extremely poor, and is not worthy of any credence. Therefore, the circumstances that she did not evince any intention, much less sincere, to effect reconciliation after her leaving house of the Appellant, when read with the circumstances the she had joined the Librbrian Course at Chandigarh and thereafter she joined as Librarian firstly at Baring College, Batala and then in Modern College for Women, Amritsar, leave no room for doubt that she had left the house of the Appellants on December 31, 1964, with the intention to bring the cohabitation permanently to an end. There is nothing to show that the Appellant was a consenting party to the Respondent''s leaving his house on December 31, 1964 and for not returning to him thereafter.

The result is that on giving my careful consideration to the entire evidence and circumstances of the case, I find that the preponderance of the probabilities points out unmistakably that the Respondent had abandoned the Appellant without his consent and without any reasonable cause, and with the necessary intention to sever the matrimonial relationship. In these premises, the conclusion is inevitable that the Respondent had been guilty of desertion as contemplated by Clause (a) of Section 10 of the Act. The trial Court minimised the incident of the Respondent''s biting on the chest of the Appellant indicating that the Appellant had not explained as to why she had given a tooth bite to him. It had also not appreciated the evidence and circumstances of the case properly and did not give due weight to the same. Therefore, its finding on issue No. 1 cannot be maintained and, vacating the same, I record finding on that issue in favour of the Appellant.

No doubt, the Appellant affirmed that the Respondent had been giving beatings to him, but as indicated above, he could not produce any evidence beyond his statement in that behalf. The Respondent too could not produce any evidence in confirmation of her version that the Appellant had been giving beatings to her. Having regard to human weakness, it cannot be gain said that no erring person would admit his fault. The Appellant and the Respondent are litigants and they had admittedly fallen out. Therefore, in view of the aforesaid human weakness, it is not surprising that both of them had tried to throw the blame on each other in the matter of cruelty by exaggerating the matter. As such, no reliance can possibly be placed on the statement of either of the parties in the matter of providing the ground of curelty. True, it is a fact that the Respondent had given tooth-bite on the chest of the Appellant, but that is a solitary incident and the same cannot be taken as proof of curelty as envisaged by Clause (b) of Section 10 of the Act, must less such as to cause a reasonable apprehension in the mind of the Respondent to live with the Appellant. Therefore, the trial Court was not wrong in finding issue No. 2 in the negative, and I see no reason to displace the said finding.

For the foregoing reasons, I find that the Appellant is entitled to a decree for judicial separation on the ground of desertion and the trial Court was not right in dismissing his petition u/s 10 the Act.

Consequently, I allow this appeal, set aside the judgment and decree of the trial Court, and allowing the petition, pass a decree for judicial separation u/s 10 of the Act in favour of the Appellant against the Respondent.

In view of the peculiar circumstances of the case, I, however, leave the parties to bear their own costs throughout.