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Rajinder Kumari Vs. Padam Prakash - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF. A. F. O. No. 31-M of 1984
Judge
Reported inAIR1985P& H232
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 51 and 107; Hindu Marriage Act, 1955 - Sections 13
AppellantRajinder Kumari
RespondentPadam Prakash
Cases ReferredLachman Utamchand v. Meena
Excerpt:
.....of his brothers, a resident of delhi, conveyed to him the happy news. it has to be seen from the evidence led by the parties whether those tests have been satisfied. 10. he was advised to be taken away to a better hospital and then he was taken to sri ganganagar on 3-4-1983, whereat he remained admitted till 11-4-1983. the wife claims that when the husband responded to her call, he remained with her for a night in wadhwa nursing home, then accompanied her to sri ganganagar, remained with her for some time in the hospital at sri ganagnagar and finally, after the discharge of the child on 11-4-1983, had taken her to his house and kept her there for two days. they could be good witnesses and equally bad witnesses. at this juncture, it need to noticed that her counsel, all the while in..........him the happy news.all the same, the following morning on 13-9-1979 he was at delhi to be with his wife and child. he spent there roughly 10 to 12 days' time, concededly spending some time in the hospital and the remaining in the house of his sister-in-law kamal koshi. it is at this point of time that unpleasantness seemingly brewed up between them, for he wanted to take his wife and child back to sri ganganagar but the wife as also her sister were not willing to agree to his suggestion. the ostensible reason given was the caesarean operation, the dedicate health of the wife and the infancy of the child. as the wife alleges, at that time he made a demand of scooter and a television set as part of the customary presents to be given to him on his becoming a father but the husband, on the.....
Judgment:

1. The advice in melody sung by an American bard last century in the wild West is even today relevant for husbands and can perhaps serve as a pointer in this matrimonial dispute:

'Be to her faults a little blind.

And be to her virtues very kind.'

The wheels of marriage have to keep running and need oiling if as an institution it has to survive. Herein this Court is confronted with a dispute which is more a case of inflation of the ego rather than the normal gurgle of confluence of two streams. The wise aptly say: 'Love is selflessness' and conversely 'Self is lovelessness'. Each husband and wife, herein, having at one time or the other asserted his or herself have marred their chances of reconciliation; though the marriage is not very old and there exists a binding factor in the shape of a four year old good-looking son. The husband successfully claimed divorce from his wife on the basis of desertion and cruelty from the first matrimonial Court. The wife clamouring for the maintenance of her marital statutes is in this Court being at pains to justify her being away from her husband and to refute and mollify the suggested acts or instances of cruelty.

2. On broad outlines, the parties do not differ but, as is normal, on details they have extremely divergent versions. To being with, let the admitted facts be taken note of. Before marriage Padam Parkash, the husband, was a J. B. T. teacher employed in the State of Punjab. His parental family lived in the border town of Sri Ganganagar in Rajasthan. Rajinder Kumari, the wife, was a B.Ed. teacher employed in the State of Punajb. Her parental family was living at Abohar, another border town, but in the State of Punjab. Both the towns are about 30 miles apart. Undisputably, the husband was less qualified, and a low graded teacher fetching a lesser sum as salary. On the other hand, the wife was better qualified, and better graded fetching comparatively a larger salary. They were married at Abohar on 5-3-1978. As was expected, they arranged their marital home at Sri Ganganagar in the parental house of the husband. They managed their postings also in such a way so as to be near Sri Ganaganagar; the wife getting posting at village Kaller Khera and the husband at village Gumjal, both in Punjab State but situated on the Sri Ganganagar-Abohar road. Availing bus services, they attended to their respective duties.

The husband is at variance how came his posting at village Gumjal and alleges that it was on account of a complaint filed by the wife against him and as a punishment, but this does not sound to be true, for, geographically speaking, Gumjal is the first village on the Punjab side from Sri Ganganagar and very near to it. He could not have chosen for himself a better place for posting. Admittedly, on 3-8-1979, the wife, who was expecting a baby, left Sri Ganganagar and proceeded to Delhi putting herself under the care of her sister Kamal Koshi P.W. According to the wife, she went to Delhi with the consent of the husband. The husband disputes it and says that she had gone there without his consent, being arrogant as being better qualified and paid. Be that as it may, a caesarian son was born to her at Lady Harding Hospital, New Delhi on 12-9-1979 and the happy news was conveyed to him instantaneously. Here, again there is a divergence and the wife claims that her people sent him a telegram conveying the good news but the husband says that one of his brothers, a resident of Delhi, conveyed to him the happy news.

All the same, the following morning on 13-9-1979 he was at Delhi to be with his wife and child. He spent there roughly 10 to 12 days' time, concededly spending some time in the hospital and the remaining in the house of his sister-in-law Kamal Koshi. It is at this point of time that unpleasantness seemingly brewed up between them, for he wanted to take his wife and child back to Sri Ganganagar but the wife as also her sister were not willing to agree to his suggestion. The ostensible reason given was the caesarean operation, the dedicate health of the wife and the infancy of the child. As the wife alleges, at that time he made a demand of scooter and a television set as part of the customary presents to be given to him on his becoming a father but the husband, on the other hand, denies this vehemently. However return he did to Sri Ganganagar.

3. In November, 1979 (the date being immaterial), the wife left Delhi and came to her parental house at Abohar (Geographically speaking, Abohar falls on the way from Delhi to Sri Ganganagar). Then seemingly started a tug of war between the parties so far as their pleading and evidence goes. Each tried to outdo each other in depicting their respective efforts to re-establish the matrimonial home till the crucial date of 1st March, 1980. Whereas the husband claims that firstly in November, 1979 he alone: then secondly on 13-1-1980 a cousin of his by the name of Jagdish Raj PW 4; and thirdly on 31-1-1980 his parents, his uncle and himself, made efforts to bring the wife to the matrimonial home, the wife on the other hand claims that Panchayats were taken by her father and relatives on two to three occasions in that interval, seeking her rehabilitation but in vain. While at Sri Ganganagar, as averred by her, she was put certain demands to be met by her. Firstly the husband had raised a demand of Rs. 15,000/- avowedly to get over the obligation to marry off his sister which was added to (as stated at the trial) by another sum of Rs. 10,000/- as demanded by his father. The learned trial Judge, in a long and winding judgment scathingly commented on the vagueness, quality and somewhat discrepant statements of the wife's witnesses in the matter of formation of her Panchayats. On the other hand, the husband's evidence, despite being that of relatives, was commented favourably on account of its precision and apparent naturalness. This was one of the factors which weighed with the learned trial Judge to break the matrimonial bond.

4. Now on the crucial date of 1st Mar. 1980, the husband (keeping apart as to whether he was accompanied by his parent or not) concededly visited the house of his father-in-law and met his wife. Whereas he suggested that it was a repeated visit to bring back the wife, she on the other hand had a different version which was embodied in a complaint filed by her on 4-3-1980 to the Station House Officer, Police Station, Abohar. That is Exhibit P-1. Therein the complete history of her martial life is given. In para 3 thereof, she mentioned that, while at Sri Ganganagar, her husband's family had constantly asked her for a scooter, television etc. In para 7 thereof, she mentioned the demand of Rs. 15,000/- made by her husband to meet the expenses of his sister's wedding. In para 9 thereof, she mentioned about the unpleasantness taking place when she expressed her helplessness at Delhi to proceed with the husband to Sri Ganganagar. Statedly she and her sister were abused and even threatened that some one of them would be murdered. And, on that count, allegedly, she dropped down at Aboar in Nov. 1979 being afraid. In para 10 thereof, she stated that the husband once visited her father's shop, abused him and thereafter came to her in the house but, after casual talk, went away. In para 11 thereof, she stated that on 6-2-1980 he visited her again in her parental house and forcibly committed sexual intercourse with her.

In para 12, she stated that on 1-3-1980 he again came and attempted to have forcible sexual intercourse with her as also to forcibly lift ant take away her infant six months old son. Statedly, when she tried to resist, she was given a beating during which she raised an alarm. Statedly, she even bled from her injuries. Statedly, the neighbours collected and thereafter the husband left. In para 13, she stated that she had obtained a medical certificate which she could produce regarding her injuries. In para 14, she states that she was under constant threat of physical harm from the husband as otherwise there was no reason for her sitting at home without pay, not joining her duties. She, therefore, prayed that necessary action be taken against the husband as she apprehended breach of peace at his hands. This complaint was a dig to the foundation of marriage.

The Station House Officer, Police Station, Abohar, as it appears, called the husband, some people from his side as also that of the wife and some members of public to probe into the matter. Undisputably, one Darbari Lal PW2, Ex-Municipal Commissioner, Abohar, a person belonging to the community of the parties, was associated to interfere in the matter to effect a compromise. That happened on 11-3-1980. Subsequently, at the instance of Darbari Lal PW2, the husband was willing to some sort of compromise but the wife was adamant that proceedings under Ss. 107/51, Criminal P. C., be taken against him. To carry the cue father, the proceedings went on to their logical end and were culminated on 9-12-1980 by the order of the Executive Magistrate, whereby the husband was bound down under Ss. 107/51, Criminal P. C., for a period of one year to keep the peace. Though a functionary of the office of the Executive Magistrate appeared at the trial as PW3 and submitted that file was summoned by the husband, yet the file has not been made available here possibly as the file has been sent back. However, at the Bar, an attested copy of the order has been shown to me, from which these details have been vouchsafed. Rather there is no dispute on that count. All what can reasonably be deduced therefrom is that the version of the wife, as given in the complaint Exhibit P-1, was not found to be baseless and there was something to go on, on the basis of which the learned Executive Magistrate chose fit to bind down the husband to keep the peace for one year. Undisputably, he did not appeal against that order and it remained final. As is plain, its efficacy had to expire on or before 9-12-1981. And, before the expiry of that date, he on 20-10-1981 filed a petition for divorce, as said before, on the grounds of cruelty and desertion.

5. On the pleadings of the parties, the learned trial Judge framed the requisite issues, placing the onus on the husband to prove whether the wife had deserted him for a continuous period of two years immediately preceding the presentation of the petition and had treated him with cruelty. On the evidence led by the parties, he concluded that the attitude and conduct of the wife left no doubt that she had deserted the husband without reasonable cause and that it was an intentional permanent forsaking and abandonment of the obligations of marriage on her part. Now, it is required to be seen whether the evidence led by the husband stands the test of requirement of law with regard to cruelty and, more particularly, with regard to desertion.

6. When the Hindu Marriage Act, 1955, was brought on the statute book, the ground of desertion was not available for a decree of divorce. It could only be available for a decree for judicial separation. Desertion, in that context, came to be interpreted and elaborated by the Supreme Court in Lachman Utamchand v. Meena AIR 1964 SC 40. It was held that, in its essence, desertion meant the international permanent forsaking and abandonment of one spouse by the other without the other's consent, and without reasonable cause. It was taken as a total repudiation of the obligations of marriage. The offence of desertion was said to commence when factum of separation and the animus deserendi co-existed, it being not necessary that they should commence at the same time. But, ultimately at one point of time the animus deserendi had to co-exist. Now by the amendment caused to the parent Act in 1976, the ground of desertion, it being for a continuous period of not less than two years immediately preceding the presentation of the petition, has been made a ground for divorce. The Explanation which was part of the earlier S. 10 has now been picked up and placed in S. 13 of the Hindu Marriage Act, 1955, which is to the following effect:-

'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 the marriage, and its grammatical variations and cognate expressions shall be construed accordingly'.

7. The husband, in order to succeed on the ground of desertion, has to initially prove that he on his part was not guilty of such conduct which gave a reasonable cause to the wife to leave the matrimonial home. And if the wife was staying away from him, he was not, in any way, taking advantage of his own wrong, as envisaged in S. 23 of the Hindu Marriage Act. It has to be seen from the evidence led by the parties whether those tests have been satisfied.

8. With the aid of the learned counsel for the parties, I have been taken through the pleadings, the amended pleadings and the evidence led thereon at two different stages. To digress a little, a set of facts, which statedly came about during the pendency of the divorce petition need, at this stage, to be noticed. It is claimed by the wife that on 1-4-1983 the child seriously ill at Abohar. She thereupon sent a telegram to the husband informing him about it. According to her, she even sent a peon to fetch him and he was brought to the scene. The child was attended to by Dr. Manohar Lal Mitra RW9, a private medical practitioner. He was admitted the same day in Wadhwa Nursing Home by Dr. H. K. Wadhwa R. W. 10. He was advised to be taken away to a better hospital and then he was taken to Sri Ganganagar on 3-4-1983, whereat he remained admitted till 11-4-1983.

The wife claims that when the husband responded to her call, he remained with her for a night in Wadhwa Nursing Home, then accompanied her to Sri Ganganagar, remained with her for some time in the hospital at Sri Ganagnagar and finally, after the discharge of the child on 11-4-1983, had taken her to his house and kept her there for two days. All this period she terms as 'cohabitation' causing disruption to the legal continuity of desertion and describably as condonation. Surprisingly, none of the doctors, who attended on the child, could vouchsafe as to whether they had seen the husband at the time of the convalescence of the child. All they could say was that the wife had mentioned that the father of the child had been on attendance on him. The learned trial Judge disbelieved the story of the wife in that regard and rather commented adversely on her conduct, treating it to be a case of 'creation of evidence' to forestall an anticipated result.

I propose to stave off these sets of facts at this stage, for, it seems to me, that nothing can come out of them even if the case of the wife is accepted as correct. This does not mean that her facts in that regard are taken as correct. Isolatory meetings of the parties in that regard at various hospitals, whether with or without the incidences of sexual intercourse, though in the circumstances occasion for those was possible, do not, to my mind, mean 'cohabitation' between the parties. It is not merely the physical putting of the two spouses together at a point of time which would make 'cohabitation' but their being in a 'state of things', the entry of which ends up desertion. Though her allegations that the husband kept her for two nights in his house after the discharge of the child from the hospital may go to show that resumptive process had started in that direction yet no explanation is forthcoming in her evidence as to then who was responsible for disruption of that 'state of things'. She does not say a word as to why she left Sri Ganganagar and equally does not accuse the husband for having turned her out of his house. This evidence, to my mind, is utterly useless and the amendment sought for to the pleading was, to say the least, ill-advised. I thus rule out this evidence altogether.

9. At this stage, I also propose to discard the evidence led by both the sides on the question of there being called Panchayats and their respective efforts to get together under the same roof. Evidence of this kind is not difficult to get. Relatives are persons who would in any case come forward to support such assemblages. They could be good witnesses and equally bad witnesses. On the side of the wife, the evidence was discrepant, vague and indefinite as to when those Panchayats took place and what was the cause of their futility. On the side of the husband the efforts of reconciliation are equally vague. It is ununderstandable how could a cousin (Jagdish Rai PW4) alone manage the bringing of the wife to the matrimonial home on the Lohri festival on 13-1-1980. It is equally ununderstandable as to why his visit, as alleged, was frowned upon by the sister of the wife, namely, Smt. Sumitra Devi. Thus, I rule out the evidence of both the parties in this regard as being sheer roughage to fill up their respective stories.

10. Now, we are left with a word of the wife against the word of the husband and vice versa. The husband has two instances of cruelty to suggest: (I) that he was insulted and humiliated (though he wanted to compromise) by being proceeded against under Ss. 107/151, Cr.P.C. and (ii) that the wife had falsely accused him of womanising before his near and dear ones. So far as the first instance is concerned, there is the seal of the Executive Magistrate that his conduct required him to be bound down for a period of one year. He cannot turn round and say that he was unjustly accused of having manhandled his wife. Had it been otherwise, her case could not have been accepted by the Criminal Court. No evidence has been led by him to show that he had unjustly been accused of the incident. His bare allegation that, since the wife was resident of Abohar and was capable of exercising her influence to get him involved in the security proceedings is too tall to swallow. Nothing has been brought on the record, suggestive of the fact that the wife had any influence either with the Station House Officer of with the Executive Magistrate in that regard.

The cruelty, as alleged by him, is the result of his own doing. If he had suffered on account of the executive Court's order, it is because he himself gave grounds to the wife to seek such relief against him apprehensive of breach of peace at his hands. He cannot be allowed to cash on his own wrong in that regard and term this incidence as cruelty. His plea in that regard has to be and is hereby negatived. With regard to the other plea that his wife had falsely been accusing him of womanising in the presence of his near and dear ones, it need be noticed that in her written statement she emphatically denied this. She did not utter a word about it in her examination-in-chief. However, in cross-examination, she was questioned about it and then she said in the affirmative that she knew he was a womaniser but she had never given vent to it before any person in that regard prior to her making statement in the Court.

At this juncture, it need to noticed that her counsel, all the while in cross-examining the witnesses of the husband, had put the suggestion that the husband had developed a dislike for the wife because he was handsome to look at and she was dark complexioned. The witnesses refuted the suggestion. The Court did not pass any remark thereon. However, the parties, all the while when this appeal was being argued, and even earlier while making efforts for reconciliation, have been appearing before me. It is so plaint to look that that husband is a presentable young man by all means, who borders on being handsome. The wife, on the other hand, cannot claim herself such an advantage. She is obviously dark complexioned. The cross-examination of her counsel on these lines was more than justified.

And the cross-examination of the husband's counsel, to put it in her mouth that the husband was accused of being a womaniser was to drive her to a point wherefrom there was no escape. That cannot, in any event, be called an incidence of cruelty, the insinuation being blurted out in cross-examination. Such cruelty had otherwise to be pleaded as a fact happening prior to the presentation of the petition for divorce. No one can say that the moment the wife blurted out in cross-examination that he was a womaniser, cruelty started retrospectively. Thus, on the second ground of cruelty also, the plea raised by the husband has to be negatived. The ground of cruelty altogether fails.

11. With regard to desertion, the tell-tale facts worth recapitulation here are that, on the day when the wife was accused of desertion, there was a subsisting order of the criminal Court against the husband. Now, in the face of that, the wife was clearly justified to stay away from the husband. She was staying away on account of the conduct of the husband. He had to prove that he had purged himself of such conduct. When he had called himself the criminal Court's file as part of his evidence, he cannot be allowed to get away with it merely by saying that the subsistence of order of the criminal Court tendered to be cruel on him. He cannot shut his eyes to the foundation thereof. Besides, the husband's claim is that the desertion started on 3-8-1979 when the wife left for Delhi to deliver the child. He claims it on the basis because it was without his permission. Had it been without his permission and he was angry in that regard, he need not have gone to Delhi to look after his wife and the child. It does not make the slightest difference whether his wife or his brother informed him about the birth of the child. If his brother informed him, it obviously means that his brother had some report and concern for the welfare of his sister-in-law and the new born child.

The fact remains that admittedly the husband was in Delhi and was welcomed by the wife and her relatives. That rules out animus deserendi, though factually the wife was not physically in the matrimonial home at that time. In that situation, to say that the desertion commenced on 3-8-1979 is utterly native. From the evidence laid on the file, it is clear that the factum of separation was there but no animus appeared on behalf of the wife to desert the husband, permanently forsaking the matrimonial bond. Her anguish as reflected on the day of reconciliation on 11-3-1980 before the police, expressing that she was not prepared for a compromise, can hardly be stated to be an instance of permanently forsaking the matrimonial home. At best, it can be said to be momentarily a hard attitude but it was followed, as subsequent events to go, by hardening of the attitude of the husband. Love died out: so did regard and sentiment. And then the ego of the husband emerged, which keeps us pts ugly head till today between the parties. I am thus of the considered view that the husband is not entitled to relief on his own conduct.

12. Before parting with the judgment, I cannot help but add a bit advice to both parties that, if not for anything else at least for the sake of the child, they should forsake their individual 'selves' and forgive each other their lapses and get together again under a common roof. Concludingly, the song of the bard, as noticed at the outset, comes handy to guide the husband so that he forgets the faults of the wife and extols her virtues, and so should the wife do likewise towards her husband. I do hope that this piece of advice would not fall on dear ears.

13. For what has been said about, this appeal succeeds setting aside the judgment and decree of the Court below, letting the matrimonial bond between the parties subsist. There shall, however, be no order as to costs.

14. Appeal allowed.


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