Sudesh vs Mahabir Singh

A.P. Chowdhri, J.—The appeal is directed against the judgment and decree of the Additional District Judge, Rohtak, dated January 27, 1988, whereby the respondent-husband''s petition u/s 13 of the Hindu Marriage Act, 1955, was allowed and marriage between the parties dissolved.

The parties were married according to Hindu rites on April 29, 1979. they lived together till April 1981. No child was, however, born to the couple. The case of the petitioner is that the wife insisted that the husband should start living separately from his parents. The husband, however, did not do so as he had aged parents and his other brothers were already living separately for the last about five years. There was no one else to look after the parents. The wife went to her parents'' house when the husband went to fetch her, she refused to come. In the month of September, 1984, the wife joined service as Arts and Craft Teacher in the office of the Block Development and Panchayat Officer, Hisar, and was posted at the Sewing Centre at village Gawar. The husband took a Panchayat comprising Suraj Bhan, Jai Singh PW-2 Mir Singh PW-3 and Man Singh to the parents'' house of the wife, but she as well as her parents declined to come. Repeated efforts made by the husband proved in vain. Ultimately, left with no other choice, the husband instituted the present petition on January 12, 1987.

The petition was contested by the wife. It was denied that she ever deserted the husband or ever insisted that he should live separately from his parents. She expressed her readiness and willingness to reside with the husband and perform all matrimonial obligations. She further alleged that the husband gave her beatings for not bringing sufficient dowry. Her husband and his parents had put a lock on all her ornaments, clothes and other dowry articles by putting them in a almirah. She further stated that she had joined service with the consent of the husband and that she was turned out of the house sometimes after Diwali 1984 and, in fact, it was the husband who had deserted her and not the other way round. It was further pleaded that her father had taken several Panchayats consisting of respectable persons from the village to the house of the husband in the year 1985 and again in 1986, but the petitioner and his parents refused to relent.

The trial Court framed the following issues: -

Whether the petitioner is entitled to a decree of divorce on the ground mentioned in the petition ? OPP.

Relief.

On behalf of the husband, Jai Singh PW-2 and Mir Singh PW-3 besides the petitioner himself, appeared. On behalf of the respondent, besides herself appearing as RW-1, were examined her father Ganda Singh RW-2, Duli Chand RW-3 and Ramesh Kumar RW-4. Duli Chand and Ramesh had accompanied the Panchayat on behalf of the wife to intercede with the petitioner and his parents in the year 1986.

On an appreciation of the evidence on record, the trial court held that desertion on the part of the wife stood proved and accordingly dissolved the marriage by the impugned decree. Hence this appeal.

Before dealing with the contentions raised by Mr. S.C. Kapoor, learned counsel for the appellant, reference may be made to certain salient features of this case. When husband''s Panchayat including Jai Singh PW-2 and Mir Singh PW-3 went to fetch the wife, the wife''s father Ganda Singh gave writing Exhibit P-1. It is admittedly written in his own hand and signed by him and his wife. According to the writing dated August 25, 1985, it has been stated that their daughter was not sent to her husband''s house for the last about three years because she was undergoing a certain training and that they were keen that she continued b service. It is further stated in the writing that the in-laws of the girl were not interested in her continuing in service. The parents of the girl, however, were of the view that she should continue in service till she is confirmed. If the parents of the husband were not inclined to permit her to continue in service, the matter was to be decided by the girl. They were ready even for dissolution of marriage. This writing, which was evidently voluntarily given, fairly indicates the mind of the girl as well as her parents. It further shows that the girl had been living with her parents since the year 1982, as alleged by the husband.

Another significant feature of the case is that the wife admitted in her statement about the visit of the Panchayat brought by the husband for purposes of reconciliation. She also admitted that her mother-in-law expired but she did not go to attend the Kirya ceremony. Admittedly, the parties have been living separately from each other since 1982 till now.

The first contention of Mr. S.C. Kapoor is that the parties started living separately from each other sometimes in 1981 or 1982 and the present petition was filed in 1987. There was thus unnecessary and improper delay within the meaning of section 23(1)(d) of the Hindu Marriage Act, 1955 and the petition was liable to be dismissed on this sole ground. Whether delay in instituting proceedings in a particular case is necessary or improper would depend on the facts and circumstances of that case. There is no magic in any particular period. There are obvious reasons why people are reluctant to resort to legal proceedings in the Court. The remedy is expensive. The honour and prestige of the family is involved. There is a fear of scandal and anxiety on the part of the parties and their parents to avoid a final break up, if possible. There is always a reasonable hope of reconciliation. Added to this is the significant fact that even the legislation provides a compulsory waiting period before a person can institute a proceeding for dissolution of marriage in respect of certain grounds like desertion. In this case there is no improper or unnecessary delay. Efforts were being made on behalf of the husband in the year 1985 as well as 1986. The writing Exhibit P-1 is itself dated August 25, 1985. According to the wife, efforts were made on their behalf in the year 1985 as well as 1986. It cannot, therefore, be held that there was any improper or unnecessary delay in instituting the present proceedings.

It was next contended by Mr. Kapoor that in the petition it was pleaded that the wife lived with the husband only till April 1981. In the evidence, the husband stated that the wife went away to her parents'' house is 1983. The contention is that in view of the above discrepancy, the plea of the husband that the wife deserted the husband does not deserve to be believed. In this case evidence has been recorded both in Hindi as well as English simultaneously. According to Hindi version, the date given by the husband was 1982 since when the wife had been living separately from the husband. In my view, nothing turns on the discrepancy between pleading April 1981 in the petition and mentioning the year 1982 in the statement. The admitted case of the parties is that they have been living separately from each other since 1982. This is clinched by the writing Exhibit P-1 dated August 25, 1985, in which the father of the girl admitted that she had not been sent to her husband''s house for three years. This would work out to sometimes in the middle of 1982.

The last contention of Mr. Kapoor is that the appellant offered to go with the husband but he declined to take her in the matrimonial home. I do not think that the appeal can be allowed on this ground. Once certain rights have accrued, it is not incumbent on the other party to agree to the offer of rejoining. In the facts and circumstances of the present case, it is highly doubtful whether the wife really intended to join the husband in the matrimonial home. Her attitude in continuing in service even at the expense of the marriage being dissolved goes a long way to show that the offer made by her in the Court cannot be taken too seriously.

For the foregoing reasons, I find no merit in the appeal. It is accordingly dismissed, leaving the parties to bear their own costs.