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Sinder Kaur vs Surinder Singh on 16 August, 2018

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

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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.

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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.

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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

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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.

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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

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