Divorce on Desertion – Marriage without sex is an anathema

IN THE HIGH COURT OF PUNJAB AND HARYANA

F.A.O. No. 160-M of 1991

Decided On: 30.03.1995

Appellants: Meena Rani
Vs.
Respondent: Madan Lal

Hon’ble Judges:Sarojnei Saksena, J.

Counsels:For Appellant/Petitioner/Plaintiff: Brij Mohan Lal, Adv.For Respondents/Defendant: C.B. Goel, Rajinder Goel and R.C. Chauhan, Advs.

Subject: Family

Catch Words:

Acts/Rules/Orders:Hindu Marriage Act, 1955 – Sections 13(1) and 28

Cases Referred:Amarjit Kaur v. Babu Singh, (1988-1) 93 P.L.R. 131, I (1989) DMC 388

Disposition:Appeal dismissed

JUDGMENT

Sarojnei Saksena, J.

1. Appellant-wife has filed this appeal against the decree of divorce, dated 29.11.1991, under Section 28 of the Hindu Marriage Act, 1955 (in short ‘Act’) passed in favour of husband-respondent under Section 13(1)(ia)(ib)of the Act.

2. Uncontroverted facts are that the parties were married on 14.4.1986. Thereafter, they lived together upto May 1987, according to the husband and upto 26.2.19.88 according to the wife. Since then they are living separately.

3. The respondent-husband in the petition alleged that since May 1987, the respondent is living in her parental house at Kharar. She is working in Land Mortgage Corporative Bank at Kharar. After marriage till May 1987, the appellant-wife used to go to her place of employment daily from Chandigarh. Sometimes she used to stay back at her parental home and used to return after 3/ 4 days. After one month of the marriage she went to her parental house for two days but she did not come back. This continued upto August, 1986. The respondent went to her parental home many a times. In August, 1986 she came back to the matrimonial home but left the house for ever in May, 1987 with an intention to permanently desert the respondent. The respondent always behaved with her properly but her behaviour towards him and the members of his family was not proper. She always used to force him to live separately or to live as a resident son-in-law at her parental home. He never acceded to her desire. She never gave her pay to the respondent and whenever he asked her about her salary she always replied that she is repaying the loan taken by her. The details of the loan were never disclosed by her. He convened a Panchayat also to bring her back to the matrimonial home but she, her mother and brother declined. On 13.9.1988 her brother-in-law named Roop Lal came to his office and asked him to start residing at Kharar. He assaulted him also but thereafter he lodged a false complaint against him in Sector 17, Chandigarh, where he was called by the police and was made to sit upto 10 p.m. This was all done at the instance of the appellant-wife. She has withdrawn from his society with effect from 16.5.1987 without any reasonable cause or excuse, without his consent and against his will. Her arrogant and insolvent behaviour has caused mental cruelty to him. Thus he prays for a decree of divorce on the grounds of cruelty and desertion.

4. The appellant-wife resisted the petition and raised a preliminary objection about the maintainability of the petition on the count that she resided with the petitioner-respondent in the matrimonial home upto 26.2.1988 and since the petition is filed on 7.8.1989 it is pre-mature. She inter alia denied all the allegations of cruelty and desertion. According to her, husband his parents, brother and sister always taunted and tortured her for bringing less dowry. They started demanding Rs. 60,000/- more on account of dowry and on that count she was turned out of the matrimonial home on 13.5.1986. On 23.5.1986, the respondent came to her parental home at Kharar and again insisted for the payment of Rs. 60,000/-. After great deal of pursuation on several meetings he agreed to rehabilitate her and ultimately she went to her matrimonial home on 31.7.1987. But again on 26.2.1988 she was beaten by her husband and in-laws and was turned out of the house for not bringing Rs. 60,000/-. All her dowry articles were retained by them. Even before marriage they demanded handsome dowry and suggested that she can raise loan for this purpose and can repay it from her salary after the marriage. Thus she took a loan and has repaid it within the knowledge of respondent-husband. She disowned that Roop Lal’s incident took place at her instance. She also denied that her behaviour was insulting or harassing towards him or towards his relations, rather, who was tortured by them. Thus both the ground of divorce are denied by her.

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5. Husband filed replication. The Trial Court framed issues on the basis of pleadings of the parties. The parties adduced evidence in support of their pleading. On a minute scanning and appraisal of the evidence on record, the Trial Court came to the conclusion that the respondent-husband has proved that the appellant-wife treated him with cruelty and she has deserted him. Thus, decree of divorce was passed.

6. The appellant’s learned Counsel pointed out that the appellant lived with the respondent upto 26.2.1988 while this petition was filed on 7.8.1989. Thus on the ground of desertion, the petition is premature as being filed within two years of 26.2.1988. He further stressed that from the parties evidence it is also evident that the respondent knew very well that the appellant has taken a loan before marriage to meet the expenses of the marriage. Since, she was required to repay it she was unable to hand over her salary to her husband. On that count, it cannot be said that she had treated him with cruelty, rather, she was always taunted and tortured by her husband and his relations. Twice she was beaten and turned out of the matrimonial home. No doubt, since 26.2.1988 she is living separately from her husband but on that count alone divorce decree cannot be granted in favour of the respondent. From his own statement it is evident that he does not want to live with her though she has expressed her willingness to come back to the matrimonial home. These facts show that the husband is guilty of constructive desertion and of treating her with cruelty. She has admitted that she asked her husband to shift or to live separately from the members of his family but this admission is not unqualified. She has further stated that her mother-in-law and sister-in-law were mal-treating her, hence she expressed the desire that her husband should live separately. Relying on Amarjit Kaur v. Babu Singh (1988-1) 93 P.L.R. 131 = I (1989) DMC 388, appellant’s learned Counsel argued that merely because the parties are living separately for 7/8 years, this fact itself is not sufficient to grant a decree of divorce unless the husband further proves that the wife has no intention to live with him. He further contended that the respondent husband has not given any cogent explanation as to why the appellant does not want to live with him conversely he has clearly stated that he does not want to live with the appellant. It is evident that fault lie with him and not with her. He also pointed out that the Trial Court has simply held that the case of the husband is more probable and on that count divorce decree has been granted in his favour. On all these counts he has prayed for the reversal of the impugned decree.

7. The respondent-husband’s learned Counsel contended that in reply to paras 4 to 8 of his petition, the appellant-wife has pleaded that on 26.2.1988 she was turned out of the matrimonial home and thus she had to take shelter at her parental house. Before the marriage, on the suggestion of the respondent and his relations she took loan to give more dowry to respondent. Hence that fact of loan is within the knowledge of the respondent. After the marriage he and his relations started demanding Rs. 60,000/- and on that count she was turned out of the matrimonial house on 13.5.1985. Again she was taken to the matrimonial home on31.7.1987 but again on the point of demand of dowry she was maltreated by the husband and his relations and ultimately she was turned out of the house of 26.2.1988 but by adducing evidence she could not prove these allegations. He submitted that she has admitted that before the marriage her husband and his parents were told that her father has expired without leaving any property or cash, therefore, they are unable to give handsome dowry. In this scenario her allegation appears to be palpably false that after the marriage respondent or his relations started demanding Rs. 60,000/- as dowry on that count she was beaten and turned out of the matrimonial home.

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8. He further pointed out that she has pleaded that on the suggestion of the respondent and his parents, loan before her marriage for arranging dowry but she has failed to prove this fact. She has not filed any document to prove as to how much loan she has taken and from where she has taken. She has stated that now as she has repaid the full loan amount, the documents are destroyed. This answer is hardly believable. According to him she does not even know that her mother-in-law suffered a heart attack in the year 1987. She never tried to come back to the matrimonial home after 16.5.1987. Although she was insisting that the respondent should either live as resident son-in-law at her parental home at Kharar or should live separately at Kharar but since the respondent is living with his parents, sisters and brothers he was unable to take a separate residence. He further contended that the appellant has admitted that her father has died before marriage. Her brother got the job about a year or two years earlier to my marriage. Her younger sister aged 22 years is still unmarried. So with a view to render financial help to her family, she is living at village Kharar and she does not want to come back to the matrimonial home. When she lived with the respondent her behaviour was not proper and she deprived him of all the pleasures of married life. Thus she treated him with cruelty and deserted him permanently. On these counts, the Trial Court has granted the impugned decree in his favour. The impugned judgment and decree do not suffer from any infirmity or irregularity.

9. From the record it is evident that the parents were married on 14.4.1986. Madan Lal, P.W. 1, has stated that after marriage, the appellant was daily going to Kharar to attend her office but many a time she used to stay back at Kharar: She wanted him also to shift to Kharar and to start residing in her parental home, but as he refused, she finally left the matrimonial home in May, 1987. He has further stated that in June, 1987 his mother suffered a heart attack but she never came to see her. He has clearly stated that now he is not prepared to accept his wife. Even during reconciliation proceedings he refused to take her back but according to him for his this denial the reasons are obvious. His wife is more interested in her parental home. She is rendering them all the financial help. She does not disclose as to how much loan she has taken and from where it was taken and when it is repaid. She never offered her pay to him. Her behaviour with him and with the members of his family was not good. He has stated that once her brother-in-law Roop Lal came to his office and mis-behaved with him and later on filed a false complaint against him. He is corroborated by Harnek Singh, P.W. 2.

10. Appellant Meena Devi has stated that in her marriage, dowry was given by her parents according to their capacity but the husband and his family members were not satisfied with the dowry given. After the marriage they started demanding Rs. 60,000/-and on that count she was turned out of the matrimonial home. This reason assigned by her for her withdrawal from the matrimonial home does not stand to reason. She has admitted that before marriage her husband was told that her father had already expired. Her brother is employed only recently; her mother and younger sister do not earn anything therefore, handsome dowry cannot be given in her marriage. The respondent and his family members accepted this condition. Therefore, it is unbelievable that after the marriage the respondent and his relations started demanding Rs.60,000/- from the appellant to be brought from her parental home as a dowry. There is no explanation given by her for her not joining the respondent in the matrimonial home. She has stated that on 31.7.1987 she was again brought back to the matrimonial home. She lived therefor 5/6 months but again she was beaten, tortured and turned out of the matrimonial home on 26.2.1988. The respondent-husband has not admitted this fact. It is evident from her own statement that her father died in the year 1976; her brother got employment only few months before her marriage. She is employed in Cooperative Bank at Kharar. Thus in these circumstances, the respondent’s learned Counsel’s argument appears to be more probable and believable that the appellant is more interested in living with her parents so that she may render financial assistance to her family members. She has not chosen to disclose the details of the alleged loan. No documentary evidence is adduced to corroborate her on that point. She has admitted that she wanted her husband to live separately and the reason assigned is maltreatment. But merely saying that she was maltreated by his relations will not absolve her from the responsibility of withdrawing herself from the husband’s society without any reasonable and probable cause. She has examined Amrik Singh, R.W. 2 to corroborate her but he is a witness who has not seen any incident. He only over heard certain talks from the house of the respondent-husband. He is not on visiting terms with the respondent though he is a nephew of Charan Singh, who got this marriage settled. The Trial Court has rightly disbelieved the statement of this witness.

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11. No doubt, during trial the appellant has stated that she is willing to go to her matrimonial home this is nothing but simply a ritual to frustrate the husband’s attempt to obtain a decree of divorce. Husband has honestly stated that now he cannot accept his wife and live with her in the matrimonial home.

12. The facts of Amarjit Kaur’s case (supra) are quite distinguishable. In matrimonial cases each case is to be decided on the facts of that case only. The appellant-wife could not prove any reasonable or probable cause for her leaving the matrimonial home. For the last so many years they are living separately. During this period wife herself never made any attempt to rejoin him. Her intention is obvious. She is more interested in supporting her mother, brother and sister who are still unmarried. She does not want to give pay to her husband nor is interested in disclosing as to what happens to her pay. I am told that Kharar is not far away from Chandigarh. If she really wanted to continue her job and to lead a happy married life, she could have lived with the respondent and could have gone to her office daily from Chandigarh instead of continuously residing with her parents at Kharar. By withdrawing herself from the society of the husband she has treated him with cruelty as marriage without sex is an anathema.

13. From the parties evidence on record it is evident that the marriage is totally broken emotionally as well as factually. On the basis of this evidence, the Trial Court has rightly held that the appellant has, deserted the husband. Both the parameters of desertion are hereby proved.

14. Accordingly, I find that the appeal is meritless. It is hereby dismissed. No order as to costs.

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