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indu Gupta Vs. Rajeshwar Pershad - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 200 of 1980
Judge
Reported inAIR1982Delhi344; 1982(3)DRJ172; 1982RLR216
ActsHindu Marriage Act, 1955 - Sections 13(1)
Appellantindu Gupta
RespondentRajeshwar Pershad
Advocates: J.K. Jain and; J.L. Kalra, Advs
Excerpt:
.....for 6 or 7 months as averred by the husband. her case was that she was left by her husband at her brother's house towards the end of december, 1976. she bad not taken any jewellery or costly clothes with her. one says that he did not attend the marriage of his cousin which was solemnised in that very house in which he was living in roop nagar as the uncle was financ ally better of, the other says that he did attend the marriage. she admitted that she had not complained to her brothers about the beatings or having been treated cruelly by the in-laws. (17) it is no doubt true that any wife would like to have a comfortable life after marriage. in the present times of economic turmoil and economic disparities, i do not expect the husband to run a separate establishment in the salary which..........and took away all her jewellery and costly sarees etc. and since then has been living at her brother's house without his consent. inspire of the efforts made by the husband and his family to bring her back she has refused to do so without any reasonable excuse or cause. hence, the petition for dissolution of the marriage. (3) the wife appellant herein' denied that she had led a happy married life for 6 or 7 months as averred by the husband. she also denied that she ever wanted her husband to break ties with his parents or live separately from them. she alleged that his parents and other relations of the family of the husband had treated her cruelly on occasions beat her. according to her she was treated as an 'untouchable'. she was not even provided a charpoy for sleepnig. her case.....
Judgment:

Charanjit Talwar, J.

(1) This is an appeal under section 28 of the Hindu Marriage Act challenging the judgment and decree passed, on March 20, 1980 by Shri P.L. Single, Additional District Judge, Delhi dissolving the marriage of the parties herein under section 13(l)(b) of the Act on the ground that the appellant-wife had deserted her husband for a continuous period of more than two years immediately preceeding the presentation of the petition by the husband.

(2) The parties were married in Delhi on 11th May, 1971, in accordance with Hindu Rites. They were residing at 11/142, Biria New Line, Kamla Nagar, New Delhi, in a quarter allotted to the husband's father where in all 12 other members of the family were also living. The parties led a happy married life for about 6/7 months in that house consisting of one room and a varandah. Thereafter, it is the husband's case that his wife wanted him to break away from his parents and other members of the family and live separately. As he is the eldest son, be expressed his inability to do so. Despite his having made his position clear, the wife continued to compel him to leave his parents and live separately from them. According to them in the month of June, 1975, she left the matrimonial home to attend a marriage in her family and took away all her jewellery and costly sarees etc. and since then has been living at her brother's house without his consent. inspire of the efforts made by the husband and his family to bring her back she has refused to do so without any reasonable excuse or cause. Hence, the petition for dissolution of the marriage.

(3) The wife appellant herein' denied that she had led a happy married life for 6 or 7 months as averred by the husband. She also denied that she ever wanted her husband to break ties with his parents or live separately from them. She alleged that his parents and other relations of the family of the husband had treated her cruelly on occasions beat her. According to her she was treated as an 'untouchable'. She was not even provided a Charpoy for sleepnig. Her case was that she was left by her husband at her brother's house towards the end of December, 1976. She bad not taken any jewellery or costly clothes with her. In fact her jewellery was still in the possession of her husband.

'(1)Whether the respondent has deserted the petitioner for two year or more before the presentation of the petition for divorce (2) Relief.'

(4) After assessing the evidence, the trial Court, as noticed above, passed a decree dissolving the marriage between the parties on the ground that the wife had deserted the husband. The learned trial Court has found that the offer of the wife to join her husband was not actually genuine. She stated so in the written statement and in her testimony only to meet the allegation of desertion on her part.

(5) The finding is that as the accommodation available to the husband and his family was meagre and cramped the wife had pressed the husband to leave that house and live separately. But as the husband, who is drawing only about Rs. 400.00 per month, being the eldest son, has to support his brothers and sisters apart from helping his parents. He was unable to maintain a separate establishment. That seems to be the cause, it has been held, for the wife to leave her matrimonial home. The trial Court has further found that the parties had been living separately from June, 1975, and that the wife had deserted on the protext of attending the marriage of her cousin.

(6) The parties are at varience about the year on the month from which they have been living apart. According to husband, his wife left the matrimonial house in the month of June, 1976 on the protext of attending the marriage of a cousin. The wife's versior however, is that she was turned out of the matrimonial house in the month of December, 1975. The learned trial Court has accepted the plea of husband and has held that Indu Gupta, appellant herein, had left her husband on the occasion of the marriage of a cousin and thereafter, has not rejoined him.

(7) Admittedly, the marriage of the cousin of the appellant, Indu Gupta. was solemnised at 8/2 Roop Nagar, Delhi in the summer of 1975. Ram Gopal, the brother of the appellant, who appeared as R.W.2, while admitting the factum of marriage, denied that either Indu Gupta or the witness attended that marriage. It is pertinent to note that the marriage took place in the same house where this witness was living. The reasons given by this witness for not attending the marriage of his cousin (father's brother's son) were 'we do not attend such function at the marriages of the family of my uncle, because they are financially of higher standard and they do not invite my sisters'. However, Prabhu Dayal, RW3, another brother of the appellant, admitted in cross-examination that he and Ram Gopal, R. W.2 had attended the said marriage. Apparently, this brother had come from his village to do so.

(8) The taxi driver who had taken Smt. lndu Gupta and her brother to Roop Nagar has been produced on behalf of the husband. He is Ram Chand, PW4. He frankly admitted that he was a friend of the husband. In crossexamination, he could not tell the name of the brother of the wife nor could he give the exact number of the house of the respondent's brother. He. however, stated 'he is the elder brother of respondent and live near Roop Nagar Police Sation. I had charged Rs. 3.00 as taxi fare. I remember the month and the year because Emergency was proclaimed immediately thereafter. I do not remember the date, month when the Emergency was proclaimed.'

(9) The evidence of the brothers of Smt. Indu Gupta is contradictory; one says that he did not attend the marriage of his cousin which was solemnised in that very house in which he was living in Roop Nagar as the uncle was financ ally better of, the other says that he did attend the marriage. A definite attempt has been made by the brothers to show that their sister had not attended that marriage. It is not possible to believe the version of the wife and her brothers on this aspect. I agree with the finding of the trial Court that the appellant attended the marriage of her cousin in June, 1975. It is not the case of the appellant that she attended the marriage and came back to her matrimonial house and was thereafter left in December, 1976 by her husband at her brother's house in Roop Nagar. According to the finding of the trial Court, this version that she was left in December, 1976, is not borne out from the evidence. In her testimony, she asserts that 'in the winter season the petitioner took me for a stroll and then told roe that I should live with my brothers Gopal. It was in the year 1976 but I do not remember the date or the month. The petitioner accompanied me inside the house of my brother Ram Gopal and after leaving me there he himself returned. The petitioner did not have any talk with my brother or his wife.' Ram Gopal R.W.2, corroborates the fact that his sister Indu Gupta was left by her husband at the witness's house. The trial Court has not believed the testimoney of the respondent and her brother regarding the fact of her being left by the husband in December, 1976. I have no reasons to disagree with that finding. It appears to me that this allegation that the wife was abandoned in December, 1976 has been introduced falsely to meet the case of the husband that she had left in June, 1975 on the protext of attending the marriage of her cousin. The version of the husband is more plausible, marriage of such a close relation in the same town is invariably attended by the relatives. The wife does not give any reason for not attending the same, the brothers'' version, as I have noticed above, seems to be false. In view of these two rival contentions, the trial Court found that the wife had left voluntarily in June, 1975 to attend the said marriage. That after seperation the parties have not lived together is admitted. The conflict was only regarding the period.

(10) Now, what is to be seen, is whether the wife had a reasonable excuse or a cause to live separately from her husband for the period of two years.

(11) In her lestimoney, Indu Gupta, stated that she was being treated cruelly by her in-laws as she had not brought enough dowry. Her further case was that she was given beatings occasionally and was being treated as an untouchable. She did not even have enough space to sleep at night. She admitted that she had not complained to her brothers about the beatings or having been treated cruelly by the in-laws. She admitted that her husband never beat her.

(12) The husband's case is that even during the period when the parties were living together till June, 1975, his wife used to pick upqu arrels with him on the ground that the accommodation available in the matrimonial house was not enough and that he should live separately. According to him, on a number of occasions after quarreling with him regarding paucity of accommodation she used to leave the matrimonial home to go and stay with her brother for considerable long time. The trial Court has found this fact to be true No useful purpose will be served by appraising the evidence all over again. The learned trial Court has analysed it.

(13) Mr. Jain, learned counsel for the appellant, did not contest these findings seriously. He, however, vehemently urged that because of paucity of accommodation, the appellant has a reasonable cause for not living in the matrimonial house.

(14) That the matrimonial house is cremped and over-crowed comprising of a room and a verandah, is not in dispute. The fact that about 14 people live in that accommodation and the fact that the wife had no proper place even to sleep, is also not in dispute. The wife has stated in her cross-examination that she used , sleep at night under the Charpoy of her husband in a corner of the verandah of that house. Under these circumstances there could not be much of privacy.

(15) But is that a reasonable cause for desertion? Under the circumstances of the case. I am called upon to decide only this question

(16) It has been brought out by the husband that prior to the marriage, which was arranged one, the brothers of the wife knew of the conditions in which the husband was living, that there were so many members in the family sharing that accommodation allotted to the father of the husband was also known to them. It was, thereforee, urged on behalf of the husband tnat the reason made out by the wife not to live with him in the matrimonial home is not at all reasonable. This could not be an excuse for leaving the matrimonial home. The offer now made by the wife to join the husband in that very house was not acceptable to him. In this Court also the counsel for the husband, respondent herein, frankly' submitted that the respondent was no longer willing to take back the appellant because of her willful desertion.

(17) It is no doubt true that any wife would like to have a comfortable life after marriage. For her to expect that she and her husband should have a separate room or some space in the house where they can pass some time undisturbed, is not unreasonable. But, can non-availability of such accommodation in the fact and circumstances of the case be pleaded as a ground by the wife not to a live with her husband in the matrimonial home. The Courts cannot over-look the fact that in an arranged marriage, this factor regarding the parties having to live in a joint family is known before the marraige. In the present case the husband is drawing about Rs. 400.00 p. m. He has social and moral, if not legal, obligations and duty to help his parents and his younger brothers and sisters. Living separately at the behest of his wife, apart from the hardship which the husband in this meagre income will have to face in as much as to rent suitable accommodation and to make a living, he would be depriving his parents of the assistance which he is giving to them. The result would be that by living separately, even in a jhugat which is also difficult to procure in Delhi on the pay he is drawing; he would not have the bare necessities of life. Apart from that his parents would also be deprived of, the helf which he is giving them. In all probability by setting up two separate establishments, which the family can illafford, the entire family would be ruined. By clubbing together the entire inc.ome of the family, while living in a quarter allotted to the father of the husb and by his employers, the family, it seems, is able to make both ends meet.

(18) The parties were present in the Court. They appeared to be belonging to a lower middle class family. In the present times of economic turmoil and economic disparities, I do not expect the husband to run a separate establishment in the salary which he is getting in the fond hope of regarding happy married life. He is per force living with his parents. Before the marriage the appellant knew fully well that the husband was living in the joint family.

(19) The finding of the trial Court is that her earlier conduct was to the effect that she was not prepared or willing to continue living in that house. I have no reason to disagree with that finding. Her excuse, thereforee, for not joining her husband and living separately from him from June, 1975, to the date when the petition was presented in Court by the husband, namely 30th May, 1978, cannot be held to be a reasonable cause. It has to be held that her intention, at least till the petition of the husband, was to bring an end to combination.

(20) Accordingly I afiirm that findings of the learned trial court The judgment and decree dated 20th Vlarch 1980, are hereby affirmed. The appeal thus fails and is hereby rejected.


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