IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(214) FAO-M-287-2007
Date of Decision: August 16, 2018.
Sinder Kaur
…. Appellant
Versus
Surinder Singh
….. Respondent
CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI
HON’BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present: Mr. Ashish Grover, Advocate, for the appellant.
None for the respondent.
M.M.S. BEDI, J (ORAL)
Appellant Sinder Kaur wife of respondent Surinder Singh, has
preferred this appeal against the judgment and decree dated 25.09.2007
allowing petition under Section 13 of the Hindu Marriage Act filed by the
respondent-husband and granting decree of divorce to the respondent-
husband on the ground of desertion only.
It is pertinent to observe here that the respondent-husband had
obtained an ex parte decree of divorce on 19.10.2001 from the Court of
Shri D.S. Sheoran, Additional District Judge, Jagadhari. The appellant-wife
filed an application under Order 9 Rule 13 CPC as a result of which ex parte
decree of divorce dated 19.10.2001 was set aside and the divorce petition of
the respondent-husband was ordered to be considered after enabling the
appellant to file written statement.
The original claim of the respondent in his petition under
Section 13 of the Hindu Marriage Act was that the parties had married on
1 of 6
24-08-2018 00:39:14 :::
FAO-M-287-2007 -2-
12.04.1989 at Ludhiana. Thereafter, a son was born on 30.12.1990 at
Yamunanagar. The appellant-wife allegedly, on 30.09.1991, had gone to
Ludhiana along with her brother on the pretext of seeing her ailing mother
but she did not return despite repeated telephone calls. Thereafter, the
appellant-wife had allegedly written a letter dated 18.04.1992 that she had
severed all the ties with the respondent and did not want to live with him
any more and had asked for her belongings. A panchayat was allegedly
convened on 05.02.1994. Thereafter, the appellant-wife started living with
the respondent in his house and a female child was born on 02.01.1995.
Another female child was born on 04.09.1996. The appellant-wife,
allegedly, left the house of the respondent on 15.06.1997 in his absence and
took away all the jewelery. The respondent-husband leveled allegations that
the appellant-wife was staying in the house of one Mohinder Singh at
Bhatia Nagar, Yamunanagar. The appellant along with wife of Mohinder
Singh had come to the house of the respondent and took one iron box
containing clothes and other valuable articles and left for Bikaner on
16.06.1997 without knowledge and consent of the respondent.
When the appellant was given opportunity to file written
statement after setting aside of the ex parte judgment and decree of divorce,
as mentioned hereinabove, she has taken up a plea that she had been
mercilessly beaten and turned out of the matrimonial home on 30.09.1991.
She denied all the allegations.
The trial Courtframed the following issues:-
“1. Whether the respondent has treated the petitioner
with cruelty on the grounds alleged in the petition, if so,
to what effect? OPP.
2 of 6
24-08-2018 00:39:14 :::
FAO-M-287-2007 -3-
2. Whether the respondent has deserted the petitioner
since 16.06.1997 without any sufficient and reasonable
cause, if so, to what effect? OPP.
3. Whether the petition is not maintainable? OPR.
4. Whether the petitioner has no come to the Court with
clean hands? OPR.
5. Relief.”
The respondent appeared as PW-1 and examined Inder Raj
Kapoor as PW-2, Gurjeet Singh as PW-3 and Balwant Singh as PW-4
whereas the appellant herself appeared as RW-4. Besides this, she examined
her father Acchhar Singh as RW-1, Sohan Singh as RW-2 and Gorakh Nath
as RW-3.
On appreciation of evidence, the lower Court gave finding on
issue No.1 against the respondent holding that he had not been dealt with
cruelty by the appellant. However, on issue No.2, the lower Court held that
the appellant had deserted the respondent-husband.
Aggrieved by the findings of the lower Court, the appellant-
wife has preferred this appeal.
It is not out of place to observe here that the appeal was filed in
the year 2007. Thereafter, the respondent had been served and appearing
before this Court through Mr. Robin Dutt, Advocate. The appeal was
admitted on 24.07.2009. A sum of Rs.2500/- per month was assessed as
maintenance pendente lite. The respondent had been appearing before the
Permanent Lok Adalat when an attempt for reconciliation was made.
Thereafter, the respondent opted to absent himself as such he was proceeded
against ex parte on 05.08.2016. The lower Court record was requisitioned
on 24.10.2016. The lower Court record was received on 16.03.2017.
3 of 6
24-08-2018 00:39:14 :::
FAO-M-287-2007 -4-
Counsel for the appellant had sought time to inspect the record. Though the
respondent had engaged a counsel but no attempt was made to put in
appearance. On 29.08.2017, in the interest of justice, we deemed it
appropriate to issue a notice by registered post as well as by ordinary
process to the respondent to put in appearance before this Court and clear
the entire arrears of maintenance pendente lite with effect from 24.07.2009.
Court notices were sent by registered post. The respondent had put in
appearance before this Court on 30.10.2017. He was asked to clear the
arrears of maintenance and was given an opportunity to engage a counsel to
defend himself. He was again directed to appear on 01.12.2017 along with
the arrears of maintenance pendente lite. On 01.12.2017, the respondent did
not appear. Case was taken up on 30.01.2018 when he again opted not to
appear. Case was adjourned to 23.03.2018 to clear the entire arrears. Again
he opted to absent himself, as a result of which we were constrained to
strike off his defence in the appeal and fix the case for final disposal.
Case has been taken up for final disposal today.
We have gone through the judgment of the lower Court
pertaining to the finding on issue No.2.
Counsel for the appellant, in the light of judgment in Rajinder
Kaur Vs. Kuldeep Singh, 2009 (2) R.C.R. (Civil) 114, submits that the
appeal deserves to be allowed merely on the ground that the arrears of
maintenance have not been paid by the respondent.
We express a doubt regarding the proposition of law that non-
payment of the arrears of maintenance will ipso facto result in allowing of
the appeal without considering the merits especially when the respondent
4 of 6
24-08-2018 00:39:14 :::
FAO-M-287-2007 -5-
has been proceeded against ex parte.
Without expression of any opinion regarding the correctness of
the desertion in the said judgment, we are of the opinion that no absolute
law has been laid down in the said judgment by the Single Bench.
In the interest of justice, we have carefully gone through the
record which has been received and perused the statement of the appellant
made in the Court while appearing as a witness as RW-4. In the written
statement, the appellant-wife had given the reasons for non-joining the
company of the respondent. She stated that she had been harassed on
account of family members of the respondent demanding dowry besides a
car. She has stated in her statement that she was ready to live with the
respondent as his wife and wanted to serve her children who wanted to stay
with the respondent.
The lower Court, while deciding issue No.2, seems to have
ignored the legal proposition before a decree of divorce granted on the basis
of desertion. The actual factum of desertion for a period of more than two
years is required to be seen taking into consideration the intention to desert.
The most important ingredient i.e. animus deserendi has not been
established, in the present case as the evidence produced by the appellant
indicates that panchayats were convened and efforts were made for bringing
about cohabitation between the parties.
Counsel for the appellant has submitted that the appellant-wife
is ready to join the company of the respondent and never had an intention to
desert her husband and other family members.
5 of 6
24-08-2018 00:39:14 :::
FAO-M-287-2007 -6-
In view of said circumstances, the judgment of the lower Court
on issue No.2, deserves to be set aside and decree of divorce granted to the
respondent also deserves to be struck down on merits as well as for the
reasons of respondent having not paid the arrears of maintenance. He does
not have any right to contest the appeal, his defence in the appeal having
been struck off.
In view of said circumstances, the appeal is allowed and
judgment and decree dated 25.09.2007 passed by Additional District Judge,
Yamunanagar, is hereby set aside. Finding of the lower Court on issue No.2
is reversed. Decree of divorce granted to the respondent nullifying the
marriage on the ground of desertion is set aside henceforth.
Decree sheet be drawn accordingly.
(M.M.S. BEDI)
JUDGE
August 16, 2018 (ANUPINDER SINGH GREWAL)
harsha JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
6 of 6
24-08-2018 00:39:14 :::