Zora Singh vs Gurmel Kaur

G.C. Garg, J.—Appellant, herein, filed a petition u/s 13 of the Hindu Marriage Act ( for short ''the Act'') alleging that marriage between the parties deserves to be dissolved by a decree of divorce on the grounds of desertion and cruelty. Marriage between the parties was solemnised according to Hindu rites at Ludhiana on June 26, 1977. the couple was not blessed with any child. Petition for divorce was filed on January 13, 1984 praying for the relief noticed above. The petition was contested by the respondent-wife by filing a written statement whereby allegations levelled against her were denied.

It is not considered necessary to notice the allegations as made in the petition or the written statement as the same will be noticed in the light of the contentions raised at the appropriate stage.

The trial Court by judgment and decree dated January 25, 1990 dismissed the divorce petition after holding that the respondent lived with the husband upto August 4, 1982 when she left the house in routine and there was not an iota of evidence to suggest that she had at that time an intention either not to return to the matrimonial home or to bring co-habitation permanently to an end. In other words, the finding is that there was no animus deserdendi on the part of the respondent when she left the matrimonial home on August 4, 1982. The ground of cruelty was also negatived. As a result of these findings, the petition was dismissed. It is how this appeal came to be filed by the husband.

Learned counsel for the appellant very fairly and rightly did not press into service the ground of desertion for seeking divorce and confined his submission only on the point of cruelty. The finding on the point of desertion as recorded by the learned Addl. District Judge is thus affirmed.

In order to prove cruelty on the part of the respondent-wife entitling the appellant to have divorce on that ground, learned counsel for the appellant referred to F.I.R., Exhibit PA lodged by the father of the appellant against Manjit Singh and Jagjit Singh, brothers of the respondent wherein it was alleged that they threatened the appellant for ill-treating their sister and that they fired from their revolver in the air. Further reference was made to Exhibit PB, a Judgement of this Court dated October 10, 1983 whereby the F.I.R. lodged at the instance of Manjit Singh, brother of the respondent against the appellant and his father, was quashed. Learned counsel for the appellant still made reference to an order Exhibit PC dated 31.5.1984 passed on a complaint made by one Balwant Singh against Zora Singh appellant and his father, whereby the complaint was dismissed and the latters were acquitted, to contend that these act of the respondent, her brothers and her relations amounted to mental cruelty entitling the appellant to a decree of divorce. It has, however, not been shown that these proceedings were taken against the appellant either by the wife of or at her instance. None of the three complaints referred to above was made by the respondent. The complaint which culminated into the order Exhibit PC was filed by Balwant Singh son of Arja Singh who is not related to the respondent whereas the other complaint Under Sections 406, 494 and 506 of the Indian Penal Code which culminated into the order of this Court dated October 10, 1983, Exhibit PB, was not initiated by the respondent-wife, the same having been filed by her brother Manjit Singh. The petition u/s 482 of the Code of Criminal Procedure was allowed by the High Court and F.I.R. No. 137 dated 19.10.1981 Under Sections 406/494/506 IPC was quashed, the same having been filed by the brother of the respondent and not by the respondent, who could be the aggrieved person. It is not shown by reference to any evidence on the record of this case that Manjit Singh lodged the said F.I.R. at the behest of the respondent. If that had been so, the F.I.R. would have perhaps not been quashed as Gurmail Kaur respondent would have owned it at any stage of the proceedings which were taken upto the High Court. She thus, cannot be accused of filing a complaint either by Balwant Singh or by her brother Manjit Singh. As regards, F.I.R. Exhibit PA, suffice it to say that it was lodged by the father of Zora Singh himself against the brothers of the respondent, Under Sections 336/506/504/148 read with Section 149 of the Indian Penal Code. The appellant thus, cannot take any advantage of the said F.I.R. for seeking divorce on the ground of cruelty against the respondent. Any act of cruelty, if at all, committed by the brothers of the respondent or by third parties which are not shown to have been done by them at the instance of the respondent, cannot be attributed to the respondent entitling the appellant to seek divorce on the ground of cruelty.

Further submission of the learned counsel for the appellant is that the respondent levelled serious allegations of adultery against her husband which forced him to report the matter to the police. Learned counsel for the appellant, however, could not take the matter any further. Report made to the police by the appellant has been placed on the record as Exhibit PF and a reading thereof shows that no such imputation has been made therein. This apart, it is not alleged either in the petition or disclosed during the course of evidence as to when such accusation was made by the wife against the appellant. Thus, it remains an allegation only and the husband has failed to substantiate the same any further. No relief on that account can thus, be granted to the husband.

The respondent-wife in her written statement submitted that the allegations levelled against the husband were not false. It was brought out that the husband was not only guilty of adultery but he married one Bhupinder Kaur and brought her in his house who as a result of this illegitimate relationship gave birth to a female child. However, the child and the said Bhupinder Kaur died later on and despite all this, she was ready and willing to live with the appellant. There is thus, a definite allegation of adultery levelled by the wife against the husband in her written statement. If these allegations had been put to trial and proved to be false the appellant would have been certainly entitled to a dec ee of divorce on the ground of cruelty. This, however, is not the situation is the present case. The appellant did not seek amendment of the petition seeking divorce on this ground of cruelty after these allegations had been made in the written statement. Once that is so, no relief can be granted to the appellant on the basis of such allegations even if these were false, found to be false or not proved. Support for this view can be had from a Division Bench judgment of this Court reported as Paras Ram v. Kamlesh AIR 1982 (P&H) 60.

There is however, still another aspect of the matter as regards the allegations of adultery made by the respondent in her written statement against her husband. The respondent, in my view, has been able to prove the allegations as levelled by her in the written statement, whereas the husband has failed to prove that the allegations against him were false. Reference to the statement of Dr. Chander Parkash RW-J would show that Bhupinder Kaur wife of Zora Singh resident of village Basain gave birth to a female child and intimation regarding birth of this child was sent to the Municipal Committee, Jagraon and the said entry also exists in his patients'' register at Sr. No. 3 which is dated April 2, 1981. Charan Singh RW-3, a member of the committee of Gurdwara of village Mastwana deposed that he witnessed the Anand Karaj of the daughter of Bakhtawar Singh with Zora Singh, the appellant in the present case. He further deposed that father of the appellant was also present at the time of Anand Karaj and the Anand Karaj was performed by Naginder Singh (RW-7). In cross-examination this witness, however, stated that a register is maintained in the Gurdwara to enter the marriages which take place there but this marriage was not entered as some marriages are entered there and some are not got entered. Naginder Singh RW-7 while appearing as a witness on June 9, 1988 slated that about 8 years ago he performed the marriage of Zora Singh with Bhupinder Kaur by Anand Karaj ceremony in the presence of Guru Granth Sahib in the Gurdwara and that the father of Zora Singh and other relations were present there.

Tarlochan Singh RW-5 Ex-Municipal Commissioner is produced to show that he tried to effect compromise between the parties, the dispute being that appellant Zora Singh was not bringing his wife from her parents'' home. This witness further disclosed that he was invited by Zora Singh to attend the Akhand path in his house in connection with the death of his daughter and at that time it was disclosed to him (witness) that he (appellant) had re-married a girl belonging to a village near Barnala and that lady was then present in the house and was introduced to him as his second wife.

Still another witness Baldev Singh RW-6, ex-Sarpanch of village Rajkot was produced to show that the he knew the parties and had attended the Akhand Path ceremony performed on the death of the daughter of Zora Singh. Admittedly, Zora Singh was not blessed with a child from the marriage with the respondent. If Zora Singh had no daughter, question of Akhand Path taking place at the residence of Zora Singh would not have arisen. The allegation of the wife in her written statement that Zora Singh contracted another marriage with Bhupinder Kaur and ultimately was blessed with a daughter, leads credence to her case to the extent that Zora Singh did contract second marriage with Bhupinder Kaur who, as a result of this wedlock, gave birth to a daughter from the loins of Zora Singh and on whose death, Akhand path was attended by the persons noticed above. Thus, in the circumstances, the allegations levelled in the written statement cannot be termed as false or in other words, the allegation of adultery levelled against the husband cannot be said to be totally false or without substance. Rather a reading of the above evidence goes to show that Zora Singh had contracted second marriage and despite this, the respondent was ready and willing to live in the house of her husband. This being the situation, the appellant cannot claim that the allegations levelled in the written statement amounted to cruelty entitling him to a decree of divorce on that ground.

Learned counsel for the appellant further submitted that the respondent has not appeared as her own witness and she has been residing in a foreign country for the last about eight years and from this, it ought to be inferred that she is not interested to settle in the matrimonial home. I am, however, not impressed with the contention. The appellant appearing as his own witness has categorically staled that he is not willing to keep the respondent any more. Even during the course of arguments, it was not suggested that the appellant is ready to keep the respondent as his wife. Once that is so, the appellant cannot seek relief of divorce on the ground that the respondent has either not appeared in the witness box or has been residing in a foreign country for the last about eight years. As against this, the brother of the respondent as also the counsel appearing for the respondent took a categorical stand that if the appellant is ready to keep the respondent, she will straightaway come to India and join the appellant and that the respondent is and was at all times ready and willing to stay with the appellant in the matrimonial home.

Learned counsel for the appellant as a last resort submitted that having regard to the totality of the facts and circumstances of this case, especially false criminal cases having been filed by both the sides against each other resulting in enough bitterness between the two families, the parties having not lived together for the last about twelve years and that no offer has been made by the appellant to join the respondent or by the respondent to join her husband, it is not possible for the parties now to live together. Thus, on the strength of the above, it was prayed that marriage between the parties be dissolved by a decree of divorce as the above facts, if taken together, in themselves amount to mental cruelty. In support of his submission, learned counsel for the appellant placed reliance on Krishna Rani v. Chuni Lal Gulati 1981 HLR 16 M.K. Malhotra v. Kirti Malhotra 1987(1) HLR 199 and Smt. Savita Chadha v. Ravinder Singh Chadha 1987(2) HLR 412.

Learned counsel for the respondent pointed out that the respondent was at all times ready and willing to live with the appellant but the latter did not accept her offer and the appellant, therefore, cannot take advantage of his own wrong. Reference in this context was made to Chander Mohan v. Smt. Neelam Kumari (1987) 92 PLR 149 to show that even lodging of F.I.R. by the wife u/s 498A and 406 of the Indian Penal Code for return of dowry did not amount to mental cruelty to the husband so as to give him a cause to seek divorce on the ground of cruelty. Shyam Lata Vs. Suresh Kumar, was referred to show that even a complaint by the wife Under Sections 107/151 Cr. P.C. which was dropped, did not give a cause to the husband to seek divorce. Learned counsel for the respondent submitted that though it is not proved in this case that complaints were made by the wife or at her instance, yet these complaints do not give any cause to the appellant for seeking divorce.

Learned counsel for the respondent forcefully submitted that the only effort of the appellant is to get divorce by whatever means, as he is very keen to have a child, which the respondent had not been able to bear, despite they have lived together as husband and wife for few years. Reference was made to the statement of appellant''s father in that behalf wherein he stated "I want that my son should get a child." In this context, it was submitted that the appellant is not entitled to a decree of divorce or any other relief.

I have considered the submission and am unable to agree with the learned counsel for the appellant. As earlier noticed, the appellant has not been able to establish that the respondent ever made a complaint against him or that two complaints were made at her instance. Other allegations levelled against her have not been proved. A reading of the evidence on the record leaves me with an impression that the appellant is desperate to have a child, which the respondent has not been able to bear. She was even prepared to live with the appellant after the latter had contracted second marriage. The fact that the respondent has not given birth to a child cannot give a cause to the appellant to seek divorce. The judgments relied upon by the learned counsel for the appellant are on their own facts and do not fit in to the facts and circumstances of the present case. The appellant by refusing to rehabilitate the respondent in the matrimonial home cannot seek divorce on the ground of cruelty as it will, in my view, amount to taking advantage of one''s own wrong.

I have, however, given a serious thought to the contention of the learned counsel for the appellant to the effect that even if the appellant is not entitled to divorce on the ground of cruelty, he is certainly entitled to a lesser relief, namely, a decree for judicial separation having regard to the totality of facts already noticed, Learned counsel for the appellant highlighted that the respondent took a large number of opportunities before the trial Court to appear as her own witness and in spite of delaying the proceedings for such a long time, did not appear as her own witness. Her revision petition was also dismissed. He further submitted that the respondent has been living in a foreign country for the last more than eight years and obviously she must have attained citizenship of that country and has not visited India during this period. It was also highlighted that strictly speaking, though the parties are living apart for the last more than 11 years but for all purposes they are living apart for the last about 14 years. Besides this, it was pointed out that the parties, their relations or friends have been dragging each other in serious criminal litigation not only prior to the filing of the divorce petition but even thereafter. In the circumstances, learned counsel for the appellant strenuously argued that during this long period of 16 years of married life, the parties have lived together only for a year or two and it will not be possible for them to live together as husband and wife. Having regard to the ground realities with which we are faced the submission made by the learned counsel for the appellant cannot be said to be wholly without merit. It is true that it has not been proved that criminal litigation was initiated by the wife or by her brothers and others at her instance but the fact remains that the brothers of the respondent and other relations must have forced the appellant and his father to face criminal litigation with a view to impress upon them to rehabilitate the respondent in the matrimonial home. The fact that the respondent is living in a foreign country for the last about eight years and has not appeared in Court as her own witness in spite of availing a large number of adjournments, could not be disputed by the learned counsel for the respondent. It was only submitted that the respondent would join the appellant as and when he desires her to do so. It is in this situation, I am lead to believe that the parties will not be able to live together as husband and wife. Though the appellant has failed to make out a case for the grant of divorce on the ground of cruelty, yet the circumstances of this case as noticed in this para and the foregoing paragraphs demand that the appellant is entitled to a lesser relief namely, a decree of judicial separation which in this case would be a just relief. Section 13A of the Act was inserted by Central Act No. 68 of 1976 providing for the grant of alternate relief in divorce proceedings where the Court considers it just to do so having regard to the circumstances of the case, It further authorises the Court to pass a decree for judicial separation instead of a decree for divorce.

Consequently having regard to the totality of the facts and circumstances of this case, the relief of dissolution of marriage by a decree of divorce on the grounds pleaded in the petition is declined. The appellant has, however, instead, made out a case for the grant of a decree for judicial separation. It is considered just so to do having regard to the circumstances of this case as noticed above. The appellant, is, thus, granted a decree for judicial separation instead of a decree for divorce and the appeal to that extent is allowed. There will be no order as to costs.