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Raj Kumar Ohri Vs. Parmod Kanta - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal Order No. 171 of 1980
Judge
Reported in19(1981)DLT338; 1981RLR346
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantRaj Kumar Ohri
RespondentParmod Kanta
Advocates: V.M. Issar and; B.R. Sabharwal, Advs
Cases ReferredDunn v. Dunn
Excerpt:
.....wanted to leave on her own the matrimonial home she could have very well proceeded to her brother's house instead of going to kalkaji and there was no need also for the father-in-law being called. the statement of the respondent that the quarrel on that day was the last of the scries, and took place like others because of the mechinations of the brother's wife seems more probable. in these circumstances, i find that the appellant failed to prove animus deserendi on the part of the respondent. i want to say a word also on the proposition that a husband has the right to say where the home should be, for, indeed, it is the same fallacy in another form). if that were a proposition of law it could put a legal burden on the wife to justify her refusal) but it is not a proposition of..........he had been iltreating her. i think it was all the more reason for the petitioner to move to his house in kalkaji along with the respondent-wife. if an adult considers himself/herself fit for marriage, the least one expects from him/her is that after -marriage he/she would be concentrate enough to cause within his/ her own limitations the least physical inconvenience and discomfiture to the other spouse. life is a continuous process of the weakening of old bonds and the creation of new ones and matrimony is the stage when this process assumes startling proportions and in some cases it is almost traumatic. in the present case wife was not allowed to develop a sense of belonging and not given a chance to make a home. she was offered only strangeness, humiliation and an impenatrable mass.....
Judgment:

S.N. Kumar, J.

(1) This is an appeal against the order dismissing a peti. corporation under the scc. 13(l)(b) of the Hindu Marriage Act seeking a decree of divorce on the ground of desertion. The parties were married on 17 November 1965 and separated within a year of their marriage. The trial court framed the following issues :-

1. Has the respondent deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

2. Had the petitioner been trying to persuade the respondent to return to his house and, thus there is no unnecessary or improper delay in institution of the proceedings?

3. Relief.

(2) The trial court decided issue No. I, against the petitioner-husband and issue No. 2 in his favor. Before me issue No. I was only pressed by both the sides.

(3) The trial court found on issue No. I that the respondent-wife was not guilty of committing desertion and it was the petitioner who by the treating the respondent with cruelty was guilty of constructive desertion.

(4) The parties were married in November 1965 and the respondent- wife came after marriage to Kalkaji as a bride where her mother-in-law and father-in-law were living and then the parties shifted to house no. 8257, Kidwai Nagar which was a two room government quarter allotted to the brother of the petitioner-husband where the brother with his wife and 3 children was living. The case of the petitioner-husband is that the respondent lived in Kidwai Nagar house till about the first week of September 1966 when she (respondent) picked up a quarrel with the petitioner and abused him and his brother. He further stated that when his father came to know about it he .took the respondent to Kalkaji from where the respondent left on 12th September 1966, without asking the petitioner or her father-in-law and went to her brother's house which was in old Delhi. He further stated that his father and brother went several times to bring the respondent back but she refused to come and never returned. Further the case of the petitioner is that the respondent did not want to live with his brother's wife and was always pressing upon him to live separately and that she always wanted to go to her brother's house and stay there. In order to show that the .respondent wanted to leave his company he alleged that in the month of August 1966 she took all her jewellery and valuable clothes to attend a marriage in her family at Amritsar and upon coming back after attending the marriage, she left her jewellery and clothes at her brother's house saying that there was some other function which was to follow soon so she did not think it proper to bring her jewellery and clothes. When he reminded her about the jewellery and clothes she picked up quarrel and abused him and his brother whereupon his father took her to Kalkaji.

(5) RESPONDENT'S case is that she was reluctant to go and live in Kidwai Nagar and she advised her husband to stay with his old parents at Kalkaji. All the items of her dowry were also taken from Kalkaji to Kidwai Nagar. She further stated that the petitioner owns a house in Kalkiji and the parties lived thereforee a few days before shifting to Kidwai Nagar where the peti tioner, according to her, started beating her under the influence and instructions of his brother's wife. She further stated that she was made to work from morning to evening and the petitioner always tried to behave in a manner that would please his brother's wife. She stated that the occasional beating by the petitioner started in January 1966 and continued till February/ March 1966 when her father in law took her to Kalkaji for some time. She further stated that in June/July 1966 the petitioner took her back to Kidwai Nagar because her mother-in-law had been admitted to Safdurjung Hospital and she was brought back to Kidwai Nagar to look after her by visiting her in the morning as well as in the evening.During that period also, according to the respondent) the petitioner gave her beatings and one day after severe beating was given to her the brother of the petitioner called her father-in-law. According to the respondent the petitioner abused his father even and told him that' he was not ready to keep the responden in his house, whereupon the father-in-law took her to Kalkaji in October/November 1966. ' According to her, her father in-law told the brother of the respondent that the petitioner was not ready to keep the respondent with him and as such he should take her away and then she left with her brother. As far as the marriage in the family at Amritsar is concerned she stated that there was no marriage in the family at Amritsar and she did not take any jewellery or valuable sarees and she left with two sarees and she never intended to take away jewellery - and visit her after that nor the clothes on any pretext. She further stated that the petitioner never came to tried to take hr back, nor-he ever invited her on any function/ceremony in the family.

(6) It is not disputed that the parties were not living happily. Whether the husband was beating his wife or not, the relations were far from happy. It is also not in dispute that the day she was taken from Kidwai Nagar to Kalkaji by her father-in-law the parties never met each other and that was. the final parting. The trial court has disbelieved the statement of the petitioner on all material facts. 'Now a few words about the animus 'deserendi, It starts.with the stage that respondent-wife took away.her jewellery and clothes in. August 1966 but if this is correct then it falsifies the statement of the petitioner about the fight which took place before the final parting. According to him the respondent returned from Arnritsar on 30th August, 1966. This is the dale given by him in the petition. However, I find that' in his statement he has stated that she returned fromAmritsaron'20th August 1966. He stated that after coming from Arnritsar she went to her brother's house where she left all her jewellery and expensive clothes. He further stated that when he enquired about her jewellery and clothes and stated that she will have to go to her brother's house again for attending a function so she' left' her jewellery and clothes there. According to the petitioner in the'' first week of September 1966 he r' minded her about her jewellery and clothes. In paragraph 6 of the petition he stated that the Explanationn given by the respondent as to why she left her jewellery and clothes at her brother's house was accepted by him as correct. He has not stated whether that function which she was supposed to have attended was over or not. If the function had not taken place there was no occasion for him to again ask about the jewellery and the clothes in the first week of September, 1965. There was no reason for the parties quarreling about some thing which had already been sorted out. If this could not be the reason for the quarrel between the' parties- there must be some other reason which the appellant has- not disclosed.' Whatever the cause of the fight it is common case before me that the father of the petitioner was summoned to take' the respondent away to Kalkaji. The statement of the respondent'' that the petitioner did not want to keep her was the reason for her father-in-law to take her away from Kidwai Nagar has to be believed because it is not even suggested that the respondent told her father-in-law that she does' not want to live with her husband and that she wanted to go and live in Kalkaji. It is also not suggested that the appellant either objected to his wife being taken to Kalkaji or that he told his wife not to go. Had the respondent wanted to leave on her own the matrimonial home she could have very well proceeded to her brother's house instead of going to Kalkaji and there was no need also for the father-in-law being called. It is not suggested that the respondent was not used to traveling about in Delhi of her own and could not go to her brother's house if she wanted to. It is evident, thereforee, that the respondent was not on that particular day intending to leave the company of her husband on her own initiative. The father-in-law was called because he was an elder member of the family and could give her shelter. In these circumstances, it is more probable that the wife was turned out of the house as has been held by the trial court.

(7) The story of the visit to Amritsar has been disbelieved by the trial court and I think rightly so. I think this story was put up to give a plausible cause for the fight which ended in final separation. The statement of the respondent that the quarrel on that day was the last of the scries, and took place like others because of the mechinations of the brother's wife seems more probable. In these circumstances, I find that the appellant failed to prove animus deserendi on the part of the respondent.

(8) The learned counsel for the appellant pointed out to me various discrepancies as to the months in which various incidents took place as mentioned in the legal notice sent by the respondent before the filing of the petition) the pleadings and the statement made in court. I do not think that much significance can be attached to these discrepancies because the happenings ere of 1966 whereas the proceedings started in the year 1976. Furthermore these are not material for the purposes of the present petition. Broadly there is no dispute between the parties that some time in 1966 the respondent was taken by her father-in-law to Kalkaji. It is also admitted that the mother of the petitioner had an operation in Safdarjung Hospital around the months July/August, 1966 and that Safdaijung Hospital is very close to Kidwai Nagar and the respondent was looking after her mother-in-law while she was admitted to hospital for a period of about 3 weeks. The precise months for the various happenings such as beatings etc. before that period are not very material. In my opinion, even the months in which the respondent was taken from Kidwai Nagar to Kalkaji is also not very material. The respondent's case is that she was taken in the month of September 1966 and she stayed with her in-law till about October/November 1966 when her father-in-law hold her brother that the petitioner is not ready to keep her and he cannot persuade his son to keep the respondent. Thereupan her brother took her away. According to the petitioner respondent's brother- took her inseptember 1966 whereas according to the respondent this happened in about October/November 1966. The learned counsel for the appellant stated the animus deserendi on the part of the wife was there before the respondent went to Kalkaji with her father-in-law because she took her jewellery and clothes earlier and then never joined her husband. This shows that her intention to desert her husband was always there around August 1966. The trial court has not agreed with the petitioner and has held that the petitioner was guilty of constructive desertion as he turned out his wife from her matial home. I think the trial court has rightly come to this conclusion and I do not find any error. One other factor which I think is of much significance supports the finding of the trial court. To prove desertion the deserted spouse has to show on record ( I ) factum of separate (2) animus deserendi (3) absence of consent of the deserted spouse and (4) absence of conduct on the part of the deserted , giving reasonable cause to the deserting spouse to develop the aforesaid animus. It is common case that the parties have been living separately since 1966. Assuming that the wife at some stage developed animus deserendi and further assuming it was against the wishes of the petitioner I think petioner's conduct other than beatings, if any, was such which did give reasonable cause to the respondent to leave the matrimonial home. The marriage between the parties took place in 1965. Public Witness PW-2 the father of the petitioner, in his crossexamination admitted that one house bearing No. 70-G/B Kalkaji New Delhi jointly belongs to the petitioner and one of his brothers. This house was gifted by the father to his two sons after the marriage of the petitioner. The father himself and his wife live in H. No. H-59, Kalkaji, New Delhi The petitioner also admitted in the cross-examination that house No. G-70/B belong to him and his brother and this was the house where his father resided before his marriage and after his marriage the father shifted to H. No. H-59, Kalkaji. He further admitted that this house remained vacant for more than a year. It is also the case of the petitioner that the respondent was always pressing upon him to live separately. Although the respondent does not admit this but her grievance, according to her, always was that the petitioner was under the influence of his brother's wife and upon her instigation he used to mal-treat and beat her. In substance, the main difference between the husband and wife was about the place of living. The petitioner took lot of pains to establish that before his marriage he was living with his brother, his wife and children in Kidwai Nagar and after his marriage he wanted to live in the same place. As noticed by me above the old father and the mother were living in Kalkaji and H. No. 70-G/B was vacated by the father soon after the marriage of the parties in 1965 and the said house was, gifted to the petitioner and was also kept vacant. It is probable that the father had vacated that house soon after the marriage to make it available to the petitioner and the respondent for their residence. inspire of the fact that the Kidwai Nagar quarter was a small quarter where already 5 to 6 members of the brother's family were staying the petitioner insisted that he and his wife should stay there. The statement of the respondent that there was no maid servant even in the Kidwai Nagar house and that she was made to work from morning till evening has not been controverter. Whatever the constraints of brotherly loyalities and sister-in-law's affection may be the conduct of the petitioner was totally unreasonable. The learned counsel for the appellant-petitioner made a grievance that the respondent has been making allegation of intimacy between the petitioner and his sister-in-law. I am afraid I have not found any such allegation although she has been maintaining that the petitioner was acting under the influence of his sister-in-law and upon her instigation and instructions he had been iltreating her. I think it was all the more reason for the petitioner to move to his house in Kalkaji along with the respondent-wife. If an adult considers himself/herself fit for marriage, the least one expects from him/her is that after -marriage he/she would be concentrate enough to cause within his/ her own limitations the least physical inconvenience and discomfiture to the other spouse. Life is a continuous process of the weakening of old bonds and the creation of new ones and matrimony is the stage when this process assumes startling proportions and in some cases it is almost traumatic. In the present case wife was not allowed to develop a sense of belonging and not given a chance to make a home. She was offered only strangeness, humiliation and an impenatrable mass of hoslies, loyalities. She was prepared to weaken the old bonds and creat new ones whereas the conduct of the husband shows a total disregard of his matrital responsibility. He, in my opinion, gave adequate cause to the respondent to leave the matrimonial home even it be assumed that she was not turned out,. Denning L. J. observed in Dunn v. Dunn (1948) 2 All E .R. 822 as under:

'I want to say a word also on the proposition that a husband has the right to say where the home should be, for, indeed, it is the same fallacy in another form). If that were a proposition of law it could put a legal burden on the wife to justify her refusal) but it is not a proposition of law it is simply a proposition of ordinary good sense arising from the fact that the husband is usually the wage earner and has to live near his work. It is not a proposition which applies in all cases. The decision which affects both the parties and their children. . It is their duty to decided it by agreement) by give and take, and not by the imposition of the will of one over the other. Each is entitled to an equal voice in the Ordering of the affairs which are their common concern. Neither has a casting vote. Though) to be sure, they should try so to arrange their affairs that they spend their time together as a family and not apart. If such an arrangement is frustrated by the unreasonableness of one or the other, and this leads to a separation between them) then the party who has reduced the separation by reason of his or her unreasonable behavior is guilty of desertion. The situations which may arise are so various that I think it unwise to attempt anymore precise test than that of unreasonableness.'

(9) Not that every time a wife says that the husband should live separate from his brother) parents etc. and the husband refuses to do so it would be an unreasonable behavior on the part of the husband. Each case has to be considered on its own facts. In the present case I have no doubt that the husband's behavior was unreasonable.

(10) In the light of the above discussion) I dismiss the appeal. No order for costs because legal expenses for these proceedings have already been paid to the respondent by the appellant.


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