Surinder Singh vs Suresh

A.L. Bahri, J.—Surinder Singh. husband in this First Appeal challenges judgment and decree of the District Judge dated November 10, 1987 dismissing his petition filed u/s 13 of the Hindu Marriage Act. The petition was filed on the grounds namely, cruelty on the part of the respondent and desertion. Marriage between the parties took place on.June30.1982. For sometime, they lived together. No child was born out of the wedlock. The appellant is serving in the Navy. After the marriage, the respondent wife stayed with the husband for about 2 days and thereafter left for her parents house. She came back on July 2. 1982 and stayed there up to July 21, 1982. She left the house without knowledge of the petitioner in his absence on that date. When family members of the petitioner objected to the same, she adopted a defiant attitude and abused them. On September 30, 1982, the husband brought his wife back to his house after grant persuasion where she stayed up to October, 5,1982. He was completly ignored by her during this period. She neglected her duties of a legally wedded wife. She did not attend to the domestic duties. She refused to cohabit with the husband. She insulted her husband in the presence of his friends and relations. Thus, she treated her husband with cruelty. After leaving husband''s house in the company of her brother, she never visited his house again. Several times, attempts were made to bring her back but futile.

The petition was contested by the wife Smt. Suresh. She admitted the factum of marriage and that no child was born" out of the wedlock. The husband and her in-laws, started maltreating her, raising demands of dowry. She was not provided with food and drinks for days together. She was given beating. She denied having left the house of her husband on July 21, 1982 without his knowledge. She also denied that she was brought from her parents'' house and she finally left on October 5, 1982. She denied the allegations of cruelty and desertion. It was in the first week of November, 1982 that she was given severe beating and turned out of the house by the husband after snatching all her Istridhan. Since, her parents were poor, unable to maintain her, she was residing with her maternal uncle. She filed an application for maintenance u/s 125 of the Code of Criminal Procedure. The present petition filed by the husband Surinder Singh was counter-blast to frustrate her application aforesaid. She was ready and willing to join her husband provided she was honourably maintained and not maltreated.

On the pleadings of the parties, the Trial Court framed the following issues :

(1) Whether the respondent has been cruel to the petitioner ? OPP.

(2) Whether the respondent has deserted the petitioner without sufficient cause ? OPP.

(3) Relief.

After both the parties had led evidence, both the issues were decided against the husband and the petition was dismissed by the Trial Court.

I have heard the counsel for the parties and with their assistance, evidence produced in the case has been perused.

In matrimonial cases, pleas are required to be specific and the evidence on the pleadings is required to be taken into consideration. In para 4 of the petition, the husband referred to certain matters with respect to the grounds of cruelty which need to be noticed :

(i) On July 21, 1982, the wife was alleged to have left the house. It was pleaded "But it transpired from the behaviour of the respondent that she was a vagabond type of lady and wanted to be free from all the limitations of the family circle, and used to leave the house of the petitioner without the knowledge of the petitioner and on being checked by the petitioner, she used to get annoyed and the petitioner taking it leniently ignored this action of the respondent with the hope that by passage of time she would adjust herself in the family of the petitioner."

(ii) He further pleaded that on July 21, 1982 the respondent left the house of the petitioner without the knowledge of the petitioner and when his family members objected to it the respondent adopted a different attitude, and abused them.

(iii) He further pleaded that when he brought her on September 30, 1982 and she stayed in his house up to October 5, 1982, she completely ignored him by stating "during this period the respondent completely ignored the petitioner and also Ignored her duties of legally wedded wife, and did not attend to the domestic duties, and even at occasion she refused to cohabit with the petitioner, any way the respondent caused insult to the petitioner when she called names to the petitioner in the presence of the friends and relatives of the petitioner, and thus treated the petitioner with cruelty".

At the outset, it may be stated that though allegations were levelled as :

(i) above on the character of the wife, no evidence worth the name was produced by the husband in this respect. This allegation, therefore, is not at all substantiated. With regard to the items. (ii) and

(iii) above, it may be mentioned that misconduct on the part of the wife was alleged on two occasions; one on July 21, 1982 and the other during the period September 13, 1982 to October 5, 1982. The evidence produced is, therefore, to be scanned in the light of the aforesaid pleadings.

P.W. 1 Surinder Singh husband in his statement recorded on March 21, 1987 deposed that after the marriage for about 20 days, they lived together. She insisted that he should keep her with him at the place of his posting. Since, he had problem of accommodation and that his parents needed company, he insisted that she should stay with them. She, however did not agree and preferred to stay at her parents house. In October, 1982 he went to fetch her, but she and her mother refused to send her till assurance was given that she would be kept with him. With great difficulty and persuasion, he brought her back. She stayed for about 3 days at his house where she refused to cohabit with him. She wanted to visit cinema house. After he left for his duty on the expiry of the leave, in his absence she left his parents house without his permission.

At this stage, it may be stated that no value can be attached to the evidence of Surinder Singh husband has reproduced above as is clear from his pleadings, it is not his case that in October 1982, his wife had lived with him and had misbehaved.

Subsequently, on August 11, 1987 Surinder Singh petitioner (wrongly described as Surinder Kumar) again appeared as P.W.I. He came forward with new versions. After the marriage, both of them lived together for about 12 days. When she went back to her parents house, she was again brought back and she lived for about 3 days when she left his house without his consent. He came on leave on September 30, 1982 for 3 or 4 days and brought his wife to his house after great persuasion. Her parents insulted him, abused him and he was not permitted to meet his wife for some time. However, on that day, he brought his wife who lived with him for 3 days. During this period, she did not behave properly with him. She refused her legal duties. She refused to cohabit with him. He was on leave on October 3, 1982, when his friends were also present, she insulted him. On October 5, 1982, she left his house in his absence without telling his parents, taking away jewellery etc.

From this evidence as reproduced above, it is quite clear that the appellant husband returned to his duty on October 3, 1982 and it was on that day when the wife is alleged to have insulted him in the presence of his friends. It was not specifically pleaded that this occurrence took place on October 3, 1982. During cross-examination P.W. 1 Surinder Singh stated that one Rajbir, his friend was present in his house in whose presence, he was insulted. The aforesaid Rajbir has retired from the Navy service "and had settled at Delhi. This Rajbir was not produced to corroborate the statement of the husband. The other evidence of this point consists of Hari Singh P.W. 2. He made general statement that when wife was brought back to the house on September 30, 1982; when Surinder Singh had come" for 3-3 days leave, she quarrelled with her husband and insisted that she should be taken at the place of his posting. In their absence, she had left the house on October 5, 1982. This witness did not state that Smt. Suresh insulted her husband in the presence of Rajbir. During this span of time, the general statement that she had been quarrelling with the husband or she was insulting him is of no consequence as stated by him. Demand of the wife to stay with her husband at his place of posting cannot in any manner be stated to be unreasonable or annoying.

During cross-examination, P.W. 2 Hari Singh stated that on October 5, 1982 brother of Sent. Saresh had corns and left their house, it was thereafter that Smt. Suresh left the house. No report was made by them regarding articles taking away by Smt. Suresh including ornaments etc. If, brother or Smt. Suresh had come on October 5, 1982, when Surinder Singh was not there, there was no reason why in the company of her brother Smt. Suresh would not have left the house. The evidence of Hari Singh PW. 2 does not corroborate the evidence of Surinder Singh P.W. 1. PW. 3 is Narender Singh whose evidence is also of general nature. According to him, after the marriage, husband wife were living together for 12 days. Thereafter 2 months, the husband came on leave for about 4-5 days and brought his wife. He returned on the expiry of his leave. During this period, the wife insisted that she should stay with him at the place of his posting and that she will not live separately with parents. He did not stats anything about any particular instance when Smt. Suresh ever insulted her husband. During cross-examination, he stated that mother of Surinder Singh had informed his wife who further informed him about it. Such evidence, being hearsay is not helpful in deciding the case. Further- more, this witness had earlier appeared in the maintenance case for the husband. Even in that statement, he had not stated that Surinder Singh had informed him that his wife was insisting that she should be taken to the place of his posting.

Ram Chander P.W. 4 who is brother-in-law of Surinder Singh stated that after the marriage, Smt. Suresh lived in her husband''s house for about 15 days. In October 1982, she left him. She was not well behaved in the house. She was not doing any domestic work. His evidence is, therefore, not helpful to the husband being general in nature and not relating to any specific period of instance. The husband on the evidence aforesaid has rightly failed to establish the ground of cruelty or that Smt. Suresh had misbehaved during the period September 30, 1982 to October 4, 1982 or that on July, 21 1982 Smt. Suresh adopted a different attitude and abused them.

The evidence of the husband having been discarded as above, there is no reason why evidence of Smt. Suresh respondent should not be accepted. She appeared as R W. 1 and categorically stated that after 4 months of the marriage, she was turned out of the house by her husband after giving her beating. She went to her parents house who advised her to go back to her-in-laws, but she went to the house of her maternal uncle at Seehma village and started living there in November 1984. After interval of 3-4 days her husband who was in service, used to visit his house during her stay there. She further offered to live with him as his wife. She used to do the entire household work. She never proposed for living separately. She., deposed about her application filed u/s 125 of the Cr.P.C., pending in the Court of Chief Judicial Magistrate, Narnaul. It was thereafter that her husband filed the present petition for divorce. R.W. 2, Siat. Naraini, mother of Suresh supported her version. R.W. 3 Kishan Singh is a neighbour of Surinder Singh. He deposed that Smt. Suresh lived in her husband''s house for about 4 months and there were quarrels on account of dowry. His house is adjacent to the house of Surinder Singh. Smt. Suresh was turned out of the house in September. 1982. During cross-examination, he stated that after 2 3 days of the marriage, quarrels started. He stated that his wife visited the house of Surinder Singh and his wife told him about the quarrel. His evidence was criticised on the ground that the same was based on the information given by his wife who was not produced. This contention cannot be accepted as his evidence is direct off hearing the quarrel by sitting in his own house. He is an ex-military inamical and neighbour. There is no evidence produced that he was ever persons towards Surinder Singh appellant. He was joined later on when nothing, thus from wife side had come to approach the husband. There is to discard this independent and natural witness.

It is not considered necessary to refer to the evidence of both the parties that after November 1982, visits were made on their side to each other village for re-approachment. The fact remains that those talks did not mature into any result Surinder Singh when appeared as witness categorically stated that he was not willing to keep hi-; wife with him whereas Smt. Suresh had again offered to live with him.

Although allegations of cruelty as pleaded have not been established, there was neither any plea nor any evidence that the acts of Smt. Suresh ever endangered health, limb or life of her husband. Also, there is no evidence that by the acts of 5mt. Suresh, there was any apprehension of danger to limb, health or life of her husband. In the absence of the above/ground of cruelty cannot legally be established. It was so observed by M.M. Punchhi, J. (now Judge of the Supreme Court) in Kamlesh Vs. Paras Ram, wherein some false allegations of adultery were alleged, it was stated that it should further be proved that the allegations were of such a grave character so as to cause danger to limb, life or health or giving rise to reasonable apprehension of such dangers. It was further observed :

"The relief of divorce granted treating the false and unfounded allegation of adultery, an act recognised by the Courts as ''legal cruelty'', to be ''cruelty'' contemplated u/s 13(1)(ia) has to be ; set aside."

Similar view was expressed by Calcutta High Court in Tapankumar Chatterjee Vs. Smt. Kamala Chatterjee,

Keeping in view, the ratio of the decisions aforesaid, and the facts of the case in hand, the appellant has failed to prove the ground of cruelty.

The appellant has also failed to prove desertion on the part of Smt. Suresh. The contention of the counsel for the appellant is that present is a case of broken marriage as both the spouses are living separately for the, last about 8 years and there are no chances of their re-union. Hence divorce should be granted. In support of this contention, reliance has been placed on the decision of SS. Sodhi, J. in Neelam Vs. Vinod Kumar Midha, . The ratio of this decision cannot be applied to the facts of the case in hand. That was a case where spouses lived together for a short period and the wife deserted the husband. No effort was made by either side to resume co-habitation. There was litigation for return of dowry articles. In such circumstances, it was stated that the desertion was writ large. Present is not a case whether the wife has deserted her husband. Rather, she was turned out of the house after giving beating. During her stay in husband''s house she was given beating for bringing lesser dowry. The husband, thus cannot take benefit of his own wrong.

Mere separation between the spouses for a long time does not amount to desertion as contemplated under the provision of the Hindu Marriage Act. There has to be intention on the part of the deserting spouse to permanently break the matrimonial alliance. As already stated above, there is no evidence produced by the appellant that Smt. Suresh ever wanted to break matrimonial alliance. Rather she has always been ready and willing to live with her husband.

The case of the appellant, is that his wife Smt. Suresh deserted him in October 1982 and for a year or two, some efforts were made to bring her back, that was up to 1984, and without any delay the present petition was filed on February 19, 1987. There is no merit. No reason is given either in the petition or in the evidence produced for not approaching the Court promptly. A certified copy of the order passed on the application of Smt. Suresh, filed u/s 125 of the Code of Criminal Procedure is on the file (page 113). This shows that the application u/s 125, Criminal Procedure Code was instituted on December 8, 1984. Thus, it would be clear that Smt. Suresh had approached the Court in December 1984 with her own version whereas Surinder Singh appellant approached, the Court in 1987. There is force in the contention of counsel for the respondent wife that the present divorce petition was filed in order to frustrate the purpose of the application filed by Smt. Suresh for maintenance. The appellant is not entitled to the relief even on the ground of delay which remains unexplained.

For the reasons-recorded above, findings of the Trial Court on both the issues are affirmed. This appeal is dismissed.