Surjit Kaur vs Tirath Singh

Gokal Chand Mital, J.—Surjit Kaur appellant was married to Tirath Singh on 30th of July 1964, and both of them lived is husband and wife and cohabited for seven years up to June/July, 1977, at village Daulatpura, District Faridkot. By then, three daughters had been born. In June/July 1971, admittedly, the husband and wife separated and the wife started living with her parents along with the eldest daughter where as the younger two daughters remained with the husband. The husband is a teacher whereas the wife does no work besides house-hold.

Soon after separation, the wife filed petition (Exhibit R-8) dated 12th of July. 1971, u/s 488 of the Code of Criminal Procedure claiming maintenance from the husband in which she was granted maintenance at Rs. 60/- per mensem for herself and for her daughter, vide order dated 26th of July, 1972, which was upheld on revision of the husband by the Sessions Judge, on 11th of December, 1972, vide order Exhibit R. 11. Later on 29th of October, 1974, the husband filed a petition u/s 10 of the Hindu Marriage Act (hereinafter referred to as the Act) for claiming judicial separation from his wife on the allegations of (sic). That petition was ultimately withdrawn by the husband on 3rd of August, 1976, vide order Exhibit R. 9.

In the meantime, the wife field another petition u/s 488 of the Code of Criminal Procedure for claiming enhancement of maintenance for herself and the daughter which was allowed by the Judicial Magistrate on 25th of February, 1976, granting enhancement by Rs. 10/- per mensem to each of them. The husband as well as the wife filed revisions against this order and both were dismissed by the Sessions Judge, Faridkot 3rd of February, 1977, vide Exhibit R. 10.

The husband, after withdrawing his petition u/s 10, filed a petition u/s 13 of the Act for divorce on 5th of August, 1976, that is, two days after the withdrawal, on the same grounds of desertion and cruelty. The wife opposed the petition and pleaded that it was the husband who was guilty of desertion as he had turned her out after giving besting whereas she had always been ready and willing to live with him and pleased that she was still prepared to live with him The trial Court recorded the statements of the parties before issues on 2nd of December, 1976, where the wife stated that she was prepared to go and live with the husband whereas the husband stated that he was not prepared to keep the wife. The trial Court framed the following issues:--

(1) Whether the respondent deserted the petitioner in July, (sic), without any reasonable cause? O.P.P.

(2) Whether the respondent treated the Petitioner with such cruelty that it was dangerous for him to live with her? O P. P.

(3) Relief.

After evidence was led, the trial Court did cot find any cruelty on the part of the wife However he found that on comparison of the conduct of the parties, it WAS the wife and not the husband who was guilty of desertion. The further finding of the Court below deserves to be noticed in his own words to see how the mind of the learned Judge was working in giving the decision. It reads :--

The parties separated in July, 1971. There had been a good number of rounds of litigation between them both on criminal and civil side There is no likelihood of the parties joining their heads. Surjit Kaur is of incompetable temperament, according to Tirath Singh. The marriage between the parties, as it exists, at present is limping it would not be reasonable just and proper that both of them should be tied together for the rest of their lives to keep them always in a state of misery The marriage in question is clearly broken one Section 3 of the Hindu Marriage Act, as amended upto date, has, liberalised divorce so that the broken marriages are dissolved and the parties to the marriages are made free from the bond, if they are unable to live together in spite of the due opportunities having been given to them to resolve their differences and live together. I am supported in my above view, by the observation made in Bimala Devi v. Singh Kuj (1977 C.L.J. 154) which is a Full Bench authority. It was also held in Baloch Khan v. Zainib Bibi (A.I.R. 1931 Lah. 561) by Honb''le Mr. Justice Shadi Lal, is follows: --

''When the breach between the husband and wife is irremediable and it is quite impossible for the latter to return to the former after many years'' separation, without leading to fresh trouble and dispute, she is entitled to live separately and get maintenance'' This very principle has been adopted by the New Hindu Marriage Act.

Consequently, by judgment and decree dated 28th of September, 1978, he allowed the husband''s petition and dissolved the marriage through the decree of divorce, but added the rider that the amount of maintenance fixed or the Criminal side shall be payable by Tirath Singh to Surjit Kaur within he meaning of section 25 of the Act till her remarriage. Feeling dissatisfied with the judgment and decree of the Court below, the wife has come in appeal to this Court.

Shri RL Sarin, appearing for the wife, has urged that no desertion on the part of the wife has been proved and on the contrary he urges that it is proved chat it was the husband who was responsible for maltreating the wife and turning her out of the house twice ever in June/July 1971, besides mal treating her throughout her stay of seven years with the husband He has highlighted the facts that when the petition u/s 488 of the Code of Criminal Procedure was filed by the wife, no allegation was made by the husband, which have been made in the present petition, for showing cruelty and desertion on the part of the wife. He further urges that even in the petition u/s 10 of the Act filed by the husband on the earlier occasion no such facts were alleged against the wife regarding cruelty and desertion, which have been alleged now in this petit on, which clearly shows that they are an after thought and the husband wants to get rid of the wife some how or the other.

The present petition is based primarily on the facts stated in paras 4 and 6 which deserve to be reproduced below:--

4 That the respondent has deserted the petitioner since July, (sic), without any reasonable cause and she has not joined the petitioner in spite of his best efforts 6 that although the parties lived together as husband and wife about five years earlier, the respondent became very much aggressive in her conduct After one year of the marriage she has been using most filthy and abusive language and got annoyed and furious for no reason at all. The respondent would not spare the petitioner and shall attack throwing utensils, etc., on mere asking that she should made the meals hot The respondent did not wash the clothes or bed sheets of the petitioner and also did not do the house hold duties. This is how the respondent makes a wilful and gross negligence. The respondent tailed upon the father of the petitioner with utter disrespect and yielded no services to her.

The respondent beat the children so brutally that such beating could not be tolerated at all. The youngest daughter was thrown at the burning stove whereby her belly was burnt and she received injuries.

The wife has denied the contents of paras 4 and 6 and has asserted that she was being mal treated by the husband on account of less dowry and always wanted her to bring more money from her parents and when the wife failed to bring more money from her parents, she was turned out of the house after giving beating The allegations leveled in para 6 were also denied and it was alleged that the is till ready and willing to join the society of the petitioner and it was specifically averred that the husband wants to get rid of her under one pretext or the other.

A reading of para 4 of the divorce petition shows that it just contains the bare allegations of the wife deserting the husband since July, 1971, without any reasonable, cease besides stating that she has not joined the husband in spite of his best efforts Let me first examine the matter of desertion and I will decide the matter of cruelty contained in para 6 a little later.

According to Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, and Lachman Utamchand Kirpalani Vs. Meena alias Mota, it is for the petitioner to prove (1) the factum of separation and (2) intention to bring cohabitation permanently to an end (animis deserendi). Therefore, it is for the petitioner-husband to prove desertion as also the fact that the wife is not willing to come back and resume cohabitation, which would show that she has no animus revertendi.

If the husband is able to prove the allegations contained in para 4, then he would succeed but if he fails to prove the same, then he must fail in obtaining divorce on the ground of desertion. The husband has appeared as P.W. I, and has stated in cross-examination as follows :--

I never contacted the respondent to get her back. However, my father had been makings efforts on my behalf, My father contacted the respondent for ''he first time about 4� months back.

This statement was made by him on 16th of April, 1977, It shows that he never tried to bring his wife back and the allegation in para 4 of the petition that she did not join him in spite of best efforts is not made out from his statement. The father of the husband, on whom he banks upon, appeared as P.W. 2 and stated as follows in his cross-examination :--

I was not asked about contacting the respondent in a Panchayat in that case. I never went to the place of the respondent after my statement recorded in the maintenance proceedings. I had given in that statement that I had nor gone to the place of the respondent to get her back.

From a reading of the aforesaid statement, it is clear that he never went to bring the wife of his son after his statement was recorded in the maintenance proceedings which were decided on 26th of July 1972. Therefore, he contradicts his son when he stated that his father bud gone to bring his wife 4� months back, that is, somewhere in November/December, 1976. The father never stated that he even went to bring the wife his son back or that his son tried to bring her back. In view of the aforesaid two statements no useful purpose would be served by referring to the statements of other witness produced by the husband as they cannot do anything better than what the husband or his father has done Consequently, on the shoving of the husband himself, he made no efforts to bring her back and as such he has failed to discharge the onus which lay on him according to the Supreme Court decisions.

On the other hand, the wife has been able to prove that the husband has been mal-treating her all the time she stayed with him find that she her father and other members of the Panchayat tried to being about reconciliation in June/July 1971, when she was turned out of the house by the husband after giving beating an in spite of that the husband refused to keep her and that the husband is guilty of desertion and not the wife. In this regard, (sic) be made to the statements of tie wife as P.W. 1, Puran Singh, a resident of the village of the husband as R.W. 2 an Kundan Singh, father of the wife as R.W. 5 Surjeet Kaur has clearly stated that after she as (sic) out of the house by the husband after administering beating, she had gone to the village of the husband in a Panchyat along with her parents and she was allowed to stay with the husband for 8 or 10 days when again she was turned out of the house When the panchayat went to the house of the husband second time, he refused to keep her with the result that she was forced to file a maintenance petition before the criminal Court where was awarded maintenance. Her statement is corroborated by Puran Singh and her further in the aforesaid material particulars. Again Puran Singh some short of enmity is tried to be shown in cross examination by the husband but after reading the whole statement. I am inclined to believe his statement which appears to be truthful. He was with the Panchayat on both the occasions At the meeting of the first Panchayat, Surjit Kaur was allowed to remain in the house of the husband but at the second time Tirath Singh and his father refused to keep her. Similar is the statement of the father of Surjit Kaur which appears to be truthful and natural on the facts and circumstances of this case. Under the circumstances, I accept the evidence of R.W. 1, R.W. 2 and R.W. 5 and hold that it was the husband who was responsible for turning out the wife for no rhyme or reason.

Accordingly, finding no desertion on the part of the wife with intention not to resume cohabitation and on the contrary finding that the husband was responsible for turning out the wife, I find no desertions as alleged by the husband is proved in this case and accordingly I upset the finding of the trial Court and hold that the husband is not entitled to divorce on the ground of desertion.

Now coming to the allegations of cruelty contained in para 6 of the petition, the trial Court has not recorded any finding in favour of the husband. Even before me (sic) effort has been made by the counsel for the husband to have a finding in his favour, On the other hand, Shri R.I. Sarin, appearing for the wife, has invited my attention to two facts, that is, that in the previous maintenance proceedings and the earlier petition u/s 10 of the Act for judicial separation, the husband never levelled any of the allegations which are contained in para 6 of the present petition for getting a finding on the point of cruelty at the hands of the wife For that matter, he has invited fry attention to the cross examination of the husband a P.W. 1 and his father as P.W. 2. The relevant passage from the statement of the husband is reproduced below :--

I had not given the grounds of the respondent''s insulting my father in my Petition u/s 10 of the Hindu Marriage Act or in the reply in maintenance proceedings. Similarly, the act of the respondent in insulting me is missing at both the places. I had not given that the respondent bad thrown my daughter on a burning stove at both the places.

Reference may now be made to the following statement of his father as P.W. 2 : --

I had not given the incident of the burning of the daughter on the stove in the maintenance proceedings.

Besides the above, tie statements of P.W. 1 and P.W. 2 are contradictory on material particular to the effect that P.W. 1 states that when his daughter received burn injuries, he himself applied burnol and did not show her to any doctor whereas his father as P.W. 2 states that the child was got treated from the village doctor for her burns although he could not give the name of the doctor nor the period when she got burn injuries.

Keeping the aforesaid facts in view, coupled with the facts that the husband opposed the maintenance proceedings and filed a petition for judicial separation earlier, it is clear that the husband wants to get rid of the wife for the reasons rest known to him From the record I am not able to decipher any justifiable reason for the husband nor so keep the wife or for the wife to keep away from the husband the (sic) was ready and willing to live with the husband at all relevant points of time whereas the husband has not been willing to keep her Just to get rid of the wife it appears that false allegations were levelled in para 6 of the petition to make a ground of cruelty which the husband has miserably failed to prove for the reasons detailed above. Accordingly, I hold that the husband is not entitled to divorce on the ground of cruelty.

From a reading of the aforesaid facts of the case, I am of the view that the decision in Baloch Khan v. Zainib Bibi (supra) and two other judgments relied upon by the trial court are nor applicable to the facts of this case and are clearly distinguishable. Nor do I subscribe to the view of the trial Judge that the amendment in the Marriage Laws by 1976 amendment was in consonance with the decision in Baloch Khan v. Zainib Bibi (supra). The Lahore High Court decision was not under the matrimonial law but arose out of proceedings for maintenance started u/s 483 of the Code of Criminal Procedure

For the reasons recorded above. I allow this appeal, set aside the judgment and decree of the Court below and dismiss the petition for divorce filed by the husband with costs. (Counsel''s fee being Rs. 250/-).