D.R. Khanna, J.
(1) This appeal has been moved by Gita Masand against a decree of divorce granted by Shri G.S. Dhaka, Additional District Judge Delhi on 7-2-1984 in a petition for divorce brought by her husband Narain Dass Masand. Of the two grounds alleged on which divorce was claimed,the one relating to desertion was not proved. No attempt to seek reversal of that finding in this appeal by Narain Dass has been made. Divorce instead has been granted on the ground of cruelty, and the basis of the same has been the charge of adultery which Gita Masand leveled against Narain Dass and further that she had at one time taken sleeping pills in excess. It maybe relevant here to mention that the allegation of adultery was not initially made the subject matter of the divorce petition but was introduced by way of amendment as a result of the written statement which Gita Masand had filed and in which she had mentioned that Narain Dass bad been ill-treating her because he had fallen in love with another girl named Surinder Kaur employed in his office for the last three years, it was added that Narain Dass had mala-fide and with selfish motive sought divorce to enable him to remarry her that employee who is young and beautiful.
(2) The parties were married according to Hindu rites on 12-3-1967 and they have three children now between the ages about 7 to 17 years. They are all at present living with Gita Masand, and in a petition moved under Section 125 Cr.P.C., Narain Dass has been required to pay Rs. 500.00 per month to them as maintenance which has now been raised to Rs. 750.00 per month.
(3) At the time of the marriage, Narain Dass was employed at a small salary of Rs. 150.00 per month in an airlines office. Shortly thereafter they went to England and lived there for a number of years. Two children were born there. By about 1976 they returned to India and Narain Dass started travel agency business in Connaught Place, New Delhi. The parties continued living happily till about the beginning of 1979. Shortly before that GitaMasand had gone to England where her third child was born and returned from there by the end of February 1979. Gita Masand's grievance is that on her return from there, she found the behavior of Narain Dass towards her totally changed and he started ill-treating and abusing her. He would come late at night and became indifferent to her. This happened according to her as by about this time, the girl Surinder Kaur, joined is office as his employee.Narain Dass then started praising Surinder Kaur in the talks with GitaMasand and even expressed a desire that Gita Masand could separate from him so that he could marry her. He would take her in outings and sometime take the children along. The attitude of Narain Dass, accordingly became very rude and he used to give her beatings also and pull her hair. On one occasion, she felt so disgusted that she took sleeping pills and had to be admitted in a hospital. According to Gita Masand, the police wanted to take action against Narain Dass for his rendering her in that situation but the still came to his rescue and ensured that no action was taken aganisthim. On one of the occasions, she had gone to the office of her husband and found Surinder Kaur sitting in his cabin. She waited outside and when Surinder Kaur came out and she went in, Narain Dass took her to task for not extending greetings to Surinder Kaur. To this she replied that Surinder Kaur an employee should have instead wishedher. Finally, according to Gita Masand, she was turned out from the matrimonial home by Narain Dass after being given beating in the last week of May 1981. Now she is living with her father who is a retired headconstable of police and who had as well served Narain Dass's office for about3 years between 1976 and 1979 as an employee.
(4) It is noteworthy to mention there that Narain Dass moved the divorce petition in the trial court on 13-1-1981. At that time Gita Masand was still living in the matrimonial home and it was not till the end of May 1981 that she left. According to Narain Dass, they were living in separate portions of the same house, the marriage otherwise having broken.
(5) The case of Narain Dass has been that Gita Masand has been extremely ill tampered and rude to him and would not sometime go with him to social functions and actually insulted him before his friends also.She had further been threatening to commit suicide and get him involved in a police case and in this process once took 25 sleeping pills and bad to be removed to hospital where medical treatment saved her. It was also stated that she had been instigating the children against him.
(6) In the amended petition which Narain Dass later filed he took exception to the stand taken by Gita Masand that he had developed love affair with Surinder Kaur, and rather totally denied any such intimacy. Her that allegation was termed as false accusation of adultery towards him and on this additional ground of cruelty, he as well sought divorce.
(7) He however, admitted that Surinder Kaur is working as an employee in his office. Her age is said to be now about 27 years and she is unmarried and educated up to M.A.
(8) There is no doubt that Narain Dass is now well off in his business.He has now a car and his financial position has substantially flourished since his marriage.
(9) The learned trial court after considering the evidence produced on record held that so far as the plea of desertion the same was not established.Divorce was, however, granted on the ground that Gita Masand had made a false accusation of adultery against Narain Dass, and had also once taken excessive sleeping pills.
(10) Before proceeding further, a significant development which has taken place in the meanwhile, may be referred to here. Gita Masand filed the present appeal against the decree of the trial court, and the same was admitted on 24-2-1984. On her separate application, the Court restrained the respondent from marrying in the meanwhile. The respondent appeared before the Court on 4-4-1984, and stated that he had not remarried. The interim restraint order was, thereforee, made absolute. It, however, so transpired that on 31-8-1984 when the appeal came up for hearing before Goswamy, J., none appeared from the side of the appellant and as such it was dismissed in default. Gita Masand, however, later moved an application for restoration of the appeal in which her counsel stated that he did not see the case in the list on 31-8-1984 or before, and, thereforee,could not make appearance. The absence was pleaded to be due to bonafide reason, and not for ulterior intention. Goswamy, J. by an order dated12-11-1984 accepted this application on being satisfied that there was sufficient cause for non-appearance of the counsel, and restored the appeal. The appeal then came up for hearing on 3-12-1984 when none appeared from the side of the respondent. The appellant's counsel then stated that he had been given to understand that the respondent had remarried in spite of the interim injunction issued, and thereforee, sought adjournment for moving an appropriate application. Later contempt application C.C.P. No. 241 of1984 was moved from the appellant's side. In this it was brought out that the remarriage that the respondent has effected, was with none other than Surinder Kaur about whom the appellant had been making allegations in the trial court. The respondent after obtaining some adjournments in reply admitted that the second marriage had been effected. This according to him, was on 2-10-1984, and at that time the appeal was laying dismissed in default. In the circumstances, he contended that the stay order was not operative at that stage, and, thereforee, no contempt was committed by him by that second, marriage. It was after this that the application for restoration was moved on 16-10-1984, and the appeal restored on 12-11-1984. The respondent does not dispute that it is with Surinder Kaur who has been employed with him, that he has effected this marriage. From his side, however, it has been urged that this was because of the accusation levied by Gita Masand against them and in order to save the honour of Surinder Kaur.
(11) I have heard the parties and given my utmost consideration to the entire matter. As already noted above, so far as the allegations made by Narain Dass that Gita Masand had been ill-tempered, and displaying an insulting attitude towards him, the same was not accepted by the trial court.I have no reason to differ with the assessment of evidence in that regard.She had stood by him as his wife when his financial position was quite low.She went with him abroad and bore three children to him who are all sons.No Specific instance has been brought out which happened before 1979 to bring out that the matrimonial life had any stormy weather. It was going on smoothly till the entrance in the arena by Surinder Kaur as an employee in the office of Narain Dass. By then his financial position had taken a considerable upward turn, and Gita Masand too was sent to London so that she could deliver her third child there. Perhaps Narain Dass thought of having more free time with Surinder Kaur in her absence. According to Gita Masand when she returned from London with her new born child, the entire matrimonial complex was found changed. Narain Dass became indifferent and extremely rude to her, would come late at night and would be mostly talking of Surinder Kaur, and her looks. On protestations against this rude behavior from Gita Masand, he would beat her as well. This is borne out from the testimony of the eldest son of the parties who was at that time around 15years of age. I am unable to reject his testimony on the ground that since he was at that time living with the mother, he was under her influence to depose against him. After all he was his son as well, and he had witnessed bow the home had broken down, and what used to happen. He has been specific that Narain Dass even took the children with Surinder Kaur tooutings, and would come late at night.
(12) It is sometimes well said that men may lie but circumstances do not. The unusual baste which Narain Dass displayed in marrying Surinder Kaur during the interregnum period in which the appeal had unfortunately stood dismissed in default, brings out and corroborates more than what Gita Masand had all through been in trial court trying to bringhome. This marriage rather reflects the genuineness of the stand taken by her in that court and the falsity of the case set up by the husband there. I am unable to accept the solicitudes posture on Narain Dass's behalf that he has per-force done so in order to save the honour of Surinder Kaur. A person who has chosen so readily to discard a wife who had stood by him in his difficult days and borne him three children can hardly be heard to take shelter behind the virtuous obsession of saving the reputation of a helplessgirl.
(13) I am unable to approve the approach adopted the trial court in allowing a decree for divorce simply because the wife had mentioned of a love affair which the husband had developed with his employee. Firstly the written statement did not make specific mention of adultery between them.There could also be no direct evidence of the amorous relationship between them which the wife could have placed before the Court. It is the overall circumstances which have to be weighed in cases of this type, and whether after their proper assessment it can be taken beyond reasonable doubt thata relationship of unfaithfulness to the marriage or adulterous life has been brought out. I am further unable to hold that a spouse should not, in anycase, make allegations of unfaithfulness to the other even if genuine reasons exist for the same. Law does not expect that the spouse should continue to suffer silently and without protest. Not many self-respecting and dignified spouses would readily accept unfaithfulness in matrimonial life withoutprotest.
(14) I am further of the view that the taking of excessive sleeping pills by Gita Masand was not as a result of any suicide tendency prevailing in hercharacter. It was more reflective of desperation and acute mental frustration in which she had been rendered on being ignored, insulted and beaten by her husband in preference for another woman. She must have found herself desolate and forsaken.
(15) In the totality of these circumstances, I am unable to sustain the decree of divorce which the trial court has awarded. It has been rather GitaMasand who has been the victim of cruelty and high-handedness on the part of Narain Dass, and it is the latter who has been the person responsible for the break down of the matrimonial home. I am not oblivious of the second marriage which Narain Dass has in the meanwhile effected with Surinder Kaur and her future being now as well involved. In unfortunate cases of remarriages, the courts of course do consider the need to find out a via-media in the context of the new developments, and sometime provide adequate alimony to the aggrieved party. However, the unusual baste displayed by Narain Dass in remarrying Surinder Kaur and his mala fid stealing a march over the decision that may be given in this appeal, do not call for any indulgent attitude towards him and permit him to make the best of his own extreme wrong done to Gita Masand. In F.A.O. 57 of 1983(Smt. Sneh Lata v. Kewal Krishan), decided on 23-11-1984. I had the occasion to observe as under : -
'NORMALLY when one of the spouses after a decree of divorce has effected another marriage, a difficult situation arises, and the court has to ponder a lot whether sustenance of the earlier marriage is worthwhile and fresh complications may not be created where a third person's life is involved and she or he has been taken into anew wedlock. Judicial hesitancy is bound to be there in suchcircumstances. However, when the case is of the nature which palpably brings out a deliberate conduct on the part of one of the spouses to steal a march and set at naught the legitimate remedy which may be available to the other spouse of filing appeal, a serious view of the matter has to be taken, and the court should not keep its hands off in shere resignation and allow the party to sit pretty, taking advantage of its own wrong. It is as such that I have felt constrained to go into the merits of the appeal, and this is specially so when it has been urged from the side of the appellant that she has been a helpless woman whose only fault appears to have been that she did not come up to the expectations of better looks which the husband had. All this period, it is pointedout, that she has not claimed any penny as maintenance for herself and her child whom she is maintaining by her singular efforts, andthe respondent too has not chosen to display any responsibility for their maintenance.'
(16) The result, thereforee, is that the appeal is allowed and the decree of divorce reversed. The appellant will be entitled to costs throughout.
(17) Since technically speaking the stay order of this Court was not operative when the appeal had stood dismissed in default, no punishment can be awarded to Narain Dass under C.C.P. 241 of 1984 though as already noted above) it must be said that he has clearly acted mala fide.
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