JUDGMENT B.K. Roy and R.K. Mahajan, JJ.
1. This appeal by wife under Section 19 of the Family Court Act. 1984, (hereinafter referred to as the Act) is against the order dated 28.5.1997. passed by the learned additional Principal Judge, Family Court. Kanpur Nagar, decreeing the husband-respondent's Matrimonial Case No. 530 of 1993 filed for grant of divorce of the appellant.
2. The portrayal of the relevant facts are in a narrow compass :
2.1. The respondent, filed the case under Section 13 of the Hindu Marriage Act. 1955 (hereinafter referred to as the 'Marriage Act'} impleading the appellant as the sole opposite party, who is employed as a teacher in Khalsa Girls Inter College. Kanpur, earning from salary and tutions around Rs. 6.000 per month, praying to grant divorce in his favour by dissolving their marriage solemnized on 30.4.1989 alleging, inter alia, to the effect that they are Sikh by birth ; their marriage was solemnised as per the custom (which comes under the Hindu religious customs) at Govind Nagar, Kanpur on 30.4.1989 ; after their marriage the appellant came to his residence but from the very next day she started pressing him either to turn out his aged parents from the house or to separate himself from them or live in a house nearby the house of her parents or to live in her house ; he being a self-respecting man could not agree to any of the aforementioned inhumane demands and flatly refused to oblige her by accepting them which caused great annoyance to her, who became extremely unmanageable, violent and cruel inasmuch as she started picking up quarrels for no cause with him as well as his aged parents many a times she threw cup containing hot tea on him in presence of neighbours and relations but he tolerated all this hoping against hopes that one day she will improve her behaviour and shall discharge her marital obligations but all this went in vain and futile ; a son was born to them on 11.9.1990 who was named Master Guneet Singh but his birth also did not effect any change in her behaviour : the residence of her parents is situate nearby his house and she in his absence frequently used to visit her parents ; each time when she went to her parents she took with her some articles of his house and handed over them to her parents : on coming to know of the aforementioned acts he asked her not to do so but she refused to listen, rather she became more furious ; ultimately in the night of 28.12.1990 she left his house and went to her house with all her belongings--ornaments, clothes, etc., however, after great pursuatlon she returned back to his house after 6 months but left again in the night of 15.9.1992 of her own and this time she took with her 6 gold bangles, 2 ladies gold kara, 2 sets of gold necklace, 3 sets of gold ear tops, 3 gold rings, one Ginni and one gent's gold kara all belonging to him and his mother, valued at Rs. 1,75,000 in presence of Sri Gopal Singh, Sri Kundan Singh, Sri B. L. Bhatia, Sri Paramjeet Singh and others, none of them have been examined as his witnesses ; thus, the opposite party has deserted him wilfully for a period of three years which alone entitles him to seek the decree of divorce by dissolving their marriage ; he is also entitled for the said decree on the grounds of cruelty and mental torture ; he has been even to meet him, which is also an act of extreme cruelty on her part, the cause of action had accrued, firstly, on 30.4.1989 and thereafter on each day when she extended her cruel behaviour towards him and on 15.9.1992 when she of her. own will left his residence and did not return back thus deserting him without any cause.
2.2. The appellant in her written statement alleged, inter alia, to the effect that there was an affectionate relationship between her and her husband and on account of this reason a son was born to them after about 161/2 months of their marriage ; it is true that the house of her parents is nearby husband's house but she had never gone to her parents' house of her own and without permission ; since she is the only daughter of her parents they gave sufficient dowry of Rs. 1,50,000 to her husband ; since she is the only daughter she was sufficiently loved by her parents and taking undue pressure on her to bring Rs. 50,000 from her parents to invest the same in trade ; in the night of 28.12.1990 he assaulted her and forcibly drove her from his house and thereafter she went to her parents house and disclosed all the facts to them, who after listening them became very much worried, went to her husband, met him and gave to him a sum of Rs. 15,000 and somehow made him to keep her along with him ; despite this her husband puts in pressure on her to bring remaining amount and used to torture her ; on 15.9.1992 he assaulted her, got collected all the jewelleries which she was wearing and forcibly drove her out of his house that if she does not bring the balance amount of Rs. 35,000 she will be murdered ; despite all this her husband has been meeting her and at times used to stay at her residence but he never agreed to bring her to his house until and unless Rs. 35.000 is being handed over to him ; on 11.9.1994, the birth day of their son Guneet Singh, he came to her house and stayed with her in the night ; whenever he came to see their son Guneet he was never forbidden ; she is. not on a permanent employment rather she could get a temporary employment, it is totally wrong to say that she earns Rs. 6.000 per month either from lution or from in any manner, and that the suit be dismissed with costs.
3. The following issues were framed :
(I) Whether the opposite party had behaved with cruelty with the applicant as alleged in his application?
(II) Whether the opposite party has deserted the applicant two years prior to the institution of the suit?
(III) To what relief the applicant is entitled to get?
4. The parties filed no documents to support their respective cases.
5. The husband examined himself as P.W. 1 and one Paramjeet as P.W. 2.
6. The wife examined herself as D.W. 1, one Jasblnder Singh as D.W. 2 and one Narendra Pal as D.W. 3.
7. Following observations were made and findings recorded, while decreeing the suit :
(i) Several attempts were made for settlement between the parties but who went on fighting, making allegations/ counter allegations against each other.
(ii) From whatever evidence available, it appears that the wife has cruelly behaved with her husband.
(iii) From the evidence, it is clear that after September, 1992 the parties had never remained together and the wife had deserted her husband finally more than 2 years before the institution of the suit.
(iv) Even during the pendency of the suit, the wife never agreed to live with her husband.
(v) The wife has deserted the husband and has behaved with cruelty and in this view of the matter the suit for dissolution of marriage is fit to be allowed and it is accordingly ordered that the marriage between the parties is dissolved.
8. Mr. Afzal Ahmad. the learned counsel appearing in support of the appeal contended that wrongly construing the facts deposed to by the parties, findings have been recorded by the learned Additional Principal Judge. Family Court, the case has been approached from a wrong angle ; evidence has been misread : accordingly the impugned decree is liable to be set aside by this Court. It is also liable to set aside by this Court for an additional reason that in view of the fact that on a direction made by us the appellant and the respondent has resumed their marital relationship.
9. Sri P. C. Srivastava, the learned counsel appearing on behalf of the respondent, on the other hand, contended that there was no error in the approach of the learned Additional Principal Judge. Family Court in adjudicating the issues ; there has been no error of record in making any observation in regard to the statements made, by the witnesses of the parties including themselves, the learned Additional Principal Judge, Family Court has correctly appreciated the defiant conduct of the wife in refusing to restore back even their marital relationship ; that in terms of the directions made by this Court the respondent went to reside with the appellant but she never allowed resumption of marital relationship even once, which is apparent from the report dated 9.5.1998 of the Additional Principal Judge Family Court submitted in this case.
Our Findings :
10. Section 13 of the Marriage Act reads thus :
"13. Divorce.--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse ; or (ia) has. after the solemnization of the marriage, treated the petitioner with cruelty ; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition ; or
(ii) has ceased to be a Hindu by conversion to another religion : or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.--In this clause.-
(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia ;
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously Irresponsible conduct on the part of the other party ; and whether or not it requires or is susceptible to medical treatment ; or
(iv) has ( * * * ) has been suffering from a virulent and incurable form of leprosy ; or
(v) has ( * * * ) been suffering from venereal disease in a communicable form : or
(vi) has renounced the world by entering any religious order ; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it. had that party been alive ;(***) Explanation.--In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to tne marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of (one year) or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground :
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner ; provided that in either case the other wife is alive at the time of the presentation of the petition : or
(ii) that the husband has. since the solemnisation of the marriage, been guilty of rape, sodomy or (bestiality ; or)
(iii) that in suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure. 1973 (2 of 1974) for under the corresponding Section 498 of the Code of Criminal Procedure. 1898 (5 of 1898)1. a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards ;
(iv) that her marriage (whether consumed or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.--This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)."
11. The conditions laid down by the Legislature is required to be proved by the persons who presents the petition for dissolution of his marriage on the grounds aforementioned. The Legislature puts a note of caution in Section 23 of the Act, in regard to the Court being satisfied of the ground for grant of reliefs.
12. We have extracted the pleadings of the husband from the petition filed under Section 13 of the Marriage Act.
13. We have gone through the evidence of the 5 witnesses which was also read out by both learned counsel.
14. Even though the husband has pleaded that the wife has thrown hot tea on him in presence of neighbourers and relations, no relation of the husband has come to support his case. P.W. 2 Paramjeet Singh. who claimed himself to be neighbour of the husband and his house situate in front of the house of the husband. Paramjeet Singh has very categorically stated in the examination-in-chief that he is not a relation of either parties. Even either of the parents of the husband has not come to support the case of their own son.
In his pleading, the husband has no where disclosed as to on what date the wife had allegedly thrown hot tea on him, From the evidence of the husband, P. W. 1 and the neighbour Paramjeet Singh P. W. 2, it appears that a story has been set up of the attempts made by the panches of the Gurudwara for settlement but in view of the fact that we do not find any pleading of the husband that there was any attempt by the Gurudwara to resolve the dispute between them, we do not consider expedient to rely on their testimony. No Panch of the Gurudwara has come to support the husband. No date has been mentioned either by P.W. 1 or P.W. 2 as to on what date the alleged panchayat through Gurudwara took place. True it is that the husband has stated of throwing hot tea on him but this has not been corroborated by P.W. 2. his own witness. On the contrary, P.W. 2 at the end of his examination-in-chief had stated that he does not know in regard to the quarrel of husband and wife which gives a death blow to the case of the appellant that the wife had thrown on him the hot tea.
P.W. 1 has stated that on 15.9.1992 his wife took away her entire belongings and since then she never returned back. This has not been supported by P.W. 2 in his evidence. P.W. 2 in his cross-examination had Stated that in the morning, he saw the wife taking away the goods to her parent's house from which it transpired to him of their quarrel. On further cross-examination, P.W. 2 stated that the wife used to go to her house but he had never seen her taking any goods of big size.
15. The case pleaded by the husband was corroborated by him in his evidence that the wife never showed him their son for the last 3 years. This was denied by the wife in her evidence. The wife, examined as D.W. 1, on the contrary has proved her case, which is apparent from her following statements :
(In English translation) "She is the only daughter of her parents, she has one brother, she has been visiting the house of the applicant. Whenever she went to the house of the applicant, after Institution of the suit, she was driven away after beating by him stating .that she should bring Dahej [dowry). My father is an old personnel, who has no source of income. I do not know from where I could fulfil the demand of dowry of the applicant. The applicant wants to declare me mad by stating that I throw tea from the cup whereas 1 am absolutely normal, taking classes of English in Khalsa Girls Inter College. My anger is not sharp. I am an Indian wife and do not want divorce. I want to live together."
16. When she was cross-examined as to how many times in 5 years she had gone to her husband's house, she stated that she will furnish evidence. She denied the suggestion that she had put any term while going to her parent's house. She has further stated in her cross-examination that she had not reported in regard to the demand of dowry because of her helplessness. She has further stated that so long she was residing with the applicant, she was not doing any service rather she is doing service for the last 4 years.
17. D.W. 2 Jaswinder Singh, is a neighbour residing by the side of her house. He has stated, inter alia, to the effect that the father of the opposite party is a retired personnel ; that she was not taken by the applicant due to money. When in cross-examination, a suggestion was made to him that she had asked the applicant to give him a sum of Rs. 2 lacs then he will get a compromise effected, he denied the same. D.W. 2 was not cross-examined by the applicant to test the correctness of the statement made by him in examination-in-chief that on 3-4 occasions the opposite parly was not taken by the applicant on account of the money.
18. D.W. 3 Narendra Pa! Singh, happens to be a distant maternal uncle of the wife. He has categorically stated that after marriage, the husband has been making some demand from his father-in-law who is a retired personnel and not in a position to fulfil the demand, which has resulted into dispute. He has further stated that he-too had accompanied the child when he was taken to the residence of husband who. however, declined to keep him in his house.
19. Having gone through the evidence of P.Ws. 1 and 2. we are of the view that the learned Additional Family Judge ought to have not relied upon their evidence.
20. Even though the wife D.W. 1 has categorically stated that she is the only daughter of her parents, to us it appears that this has not been understood by the learned Additional Family Judge, correctly inasmuch as in paragraph 9 of his judgment, while adjudicating Issue Nos. 1 and 2. he has wrongly stated that (in English translation) "the opposite party has also admitted that she is the only issue (Santan) of her parent." The learned Additional Family Judge has failed to consider that she has categorically stated that she is the only daughter of her parents and that she has got one brother as well.
21. The wife being the only daughter of her parents, who from the materials on record appear to be quite aged, it is but natural for a daughter though married to visit her parents specially when they are residing in the same locality at a distance of about one Kilometer.
22. The learned Judge has committed yet another error in accepting the story set forth in evidence of P.W. 1 that the members of the Gurudwara had given their award after which the wife had not agreed for settlement, which was not pleaded by the husband in his application under Section 13 of the Marriage Act.
23. The learned Judge has wrongly refused to rely on the testimony of the wife when she has stated that on 11.9.1994 when her husband has visited her on the occasion of birth day of their son, had spent his night with her. We are of the view that there was nothing unnatural when a husband visits his wife to have a company of his wife after a long lapse arid that too on the occasion of birth day of their own minor son. We believe the case set forth by the wife in this regard, which was duly supported by her evidence.
24. The learned Judge has committed an error in accepting the bald statement of the husband that he was never shown the son. This case has been repudiated by the categorical statement of D.W. 2 who was not even cross-examined by the applicant in that regard.
25. The wife through her evidence has completely supported her case of being driven out of her matrimonial house.
In this regard, relevant is the statement made in paragraph 11 of the petition flied under Section 13 of the Marriage Act wherein the respondent has stated that on 15.9.1992 she had left his residence thereby deserting him whereas this application was filed on 18.9.1995, i.e., to say, three years thereafter but this significant aspect of the matter was also not considered by the learned Judge.
26. For the reasons aforementioned, we are of the view that the learned Judge has committed an error in not only approaching the case from a wrong angle but also not properly considering the evidence adduced by the parties who has also failed to appreciate that the essence of desertion is abandonment of one spouse by the other without reasonable cause and without consent and wish of the other.
27. True it is that some adverse inferences have been drawn against the wife while an attempt was made for settlement but having regard to the entire facts and circumstances, we ourselves directed them to live together but from the materials on the record, it appeared earlier clear to us and still appears clear even today that it was the husband who was at fault inasmuch as it was he who refused to take the wife despite directions made by us in our Chamber. After hearing them personally in our Chambers, we passed another direction and called for a report from the Additional Principal Judge Family Court, Kanpur. From his report, which in its turn based on the report of the Sadar Munsrim. It is clear that the wife had reported that there was restitution of marital relationship between her and her husband though the husband has denied of restitution of such relationship. This report was perused by both learned counsel. No rejoinder has been filed by either of them to the aforementioned report. The appeal is continuation of the Us. Therefore, we are of the view that it was for the husband to come up with a categorical statement on affidavit denying the statement of the wife in regard to restoration of their marital relationship during the period which we had directed them to reside together. Even otherwise also. we are of the view that the statement of the wife as mentioned in the report that there was a re-establishment of the marital relationship during this period, is natural. For this additional reason also, we are of the view that the impugned decree is liable to be set aside.
28. The learned Judge has unfortunately missed to consider that the wife had become teacher in the Khalsa Girls Intermediate College after she was driven out of her matrimonial house and not from before as alleged in his pleadings by the husband. There is nothing tangible on the record to disbelieve her case in that regard that after she was driven out from her marital house in order to maintain herself and her minor son, she took recourse to teaching for survival, which according to her is a temporary service and not permanent one.
29. For the reasons aforementioned, we are of the view that issues were wrongly decided against the appellant rather we decide them against the husband-respondent and that his application was liable to be dismissed.
30. We accept this appeal, set aside the impugned Judgment and decree and dismiss the husband's application filed under Section 13 of the Marriage Act quantifying Rs. 5,000 as cost.