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Dharam Dev Malik Vs. Raj Rani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 317 of 1982
Judge
Reported inAIR1984Delhi389; 1984(7)DRJ19
ActsHindu Marriage Act, 1955 - Sections 3, 13(1) and 23
AppellantDharam Dev Malik
RespondentRaj Rani
Cases ReferredLlewellyn v. Llewellyn
Excerpt:
.....to resist the conclusion that the appellant must have manoeuvred to leave the respondent at her parents' house and then forget all about her. the son of the respondent still appears to be an anathema to him and he nowhere states that there was any love lost between him and the child. 246/73 and he was left with no option but to admit that both the grounds of desertion as well as adultery were taken by him in that petition. it may as well be that his parents refused to oblige him by giving false evidence. anyhow, on a broad and overall view of all these facts, i entertain no doubt, in my mind, that the appellant, for reasons best known to him, did doubt the conjugal fidelity and chastity of the respondent and, thereforee, he contrived to get rid of her by quietly taking her to sonepat..........stepped into the witness box as aw 1 and simply stated that 'in january 1966 the respondent left my house. she wanted to go to sonepat but i had tried to dissuade her. in the evening when i came back i found that she had already left my home all alone'. evidently he has not assigned any reason which impelled the respondent to leave his house and his testimony verily leaves an impression that the respondent having suddenly made up her mind to go to sonepat, left the matrimonial home without any rhyme or reason, never to return. so he has left the court guessing as to what must have transpired between the parties which persuaded the respondent to leave her matrimonial home for good. on the contrary the respondent deposed as rw1 that after having stayed for about a year and two.....
Judgment:

J.D. Jain, J.

(1) This appeal springs from judgment dated 30th September 1982 of an Additional District Judge whereby he dismissed the petition of the appellant/husband for divorce on the grounds of desertion and cruelty as being without merit.

(2) The carriage between the parties was solemnised on 7th October 1964 at Sonepat, to which place the parents of the respondent/wife belonged, in accordance with Hindu rites and ceremonies. Thereafter, they lived together as husband and wife at 123/2, Rouse Avenue, New Delhi, uptil January 1966. The said house had been allotted to the father of the appellant as a railway employee and as such the parties were living with him as members of his family. A son was born to the respondent in December 1965. However, the appellant does not own his paternity). Since January 1966 onwards the respondent has been living at Sonepat with her parents. The contention of the appellant is that she left her matrimonial home on 19th January 1966 for Sonepat without his consent and against his wishes and she has not returned to her matrimonial home despite repeated efforts having been made by him i.e. the appellant, from time to time to bring her back to her matrimonial home. Hence, he seeks divorce on the ground of desertion by the respondent without any just cause.

(3) It may be pertinent to give here the past history of litigation which had been going on between the parties prior to filing of this petition on 28th November 1981. The appellant had earlier moved a petition being H.M.A. No. 246/73 for judicial separation sometime in 1973. The grounds for judicial separation were desertion, cruelty and adultery. It was, inter alia, averred by the appellant that he had gone to Chandausi for training on or about 18th March 1965 and while he was still there, he learnt that the respondent was pregnant. On coming to know of it he was completely dazed and shocked because the respondent had not conceived the child from him. So he rushed back to Sonepat and enquired from the respondent as to how the conception had taken place but the respondent refused to give any answer. So, smelling some foul play he kept a strict watch over her movements. One day in August 1965 he came back home at about 3 P.M. and instead of knocking at the door he pushed open the window of the room and to his great astonishment and annoyance he found that the respondent was in a compromising position with his youngest brother and they were having sexual inter course. However, the youngest brother of the appellant ran away through the rear door of the house and the respondent bolted the room from inside. She refused to open the door. Meanwhile the mother of the appellant too came there. He then brought all these facts to the notice of his parents but they pacified the appellant saying that they would themselves look into the matter. However, on one night towards the end of year 1965 the father of the appellant saw the youngest brother of the appellant sneaking into the bedroom of the respondent at an odd hour, viz., at about 2.30 A.M. (night) and he was accosted by his father. Thereafter the respondent left the appellant in or about the end of the year 1965 or beginning of 1966 for Sonepat without any rhyme or reason. (See Ex. P 1, copy of the previous petition).

(4) The said petition was resisted by the respondent tooth and nail who vehemently refuted all the allegations leveled against her especially the allegation about her having promiscuous relationship with the youngest brother of the appellant. She asserted that in fact a son by the name of Arun Kumar was born to her in December 1965 and thereafter the appellant and his parents started making wrong, baseless, malicious and reckless allegations against her character and she was virtually turned out of the house after maltreatment and beating. thereforee, she had to knock at the door of her parents' house Along with her son in great distress and she was forced to live there eversince then.

(5) After the issue had been framed in the said petition, it was fixed for evidence of the appellant. However, the appellant did not adduce any evidence on 27th October 1975. The case was, thereforee, adjourned to 27th January 1976 but the appellant did not turn up of the said date. Consequently, the petition was dismissed in default.

(6) Another fact which may be noticed at this stage is that an order was made in the said case granting maintenance pendente lite to the respondent under Section 24 of the Hindu Marriage Act (for short the Act). The appellant went in appeal against the said order being F.A.O. No. 64/75 but the same was dismissed by the High Court of Punjab and Haryana on 23rd May 1975.

(7) The present petition was resisted by the respondent on various grounds, namely, (1) that this petition is not maintainable on the self-same, ground of desertion as the dismissal of the previous petition would operate as resjudicata; (2) that there is abnormal delay in instituting this petition and no Explanationn for the same has been furnished by the appellant; and (3) that the appellant himself was guilty of the offence of desertion inasmuch as it was he who took her to her parents' house at Sonepat in January 1966 and left her there but he did not bother to bring her or call her back thereafter. On the contrary efforts were made by her parents to bring about reconciliation and send her back to her matrimonial home but the same did not yield any fruitful result.

(8) The first question which naturally falls for determination in this case is whether it was the respondent who had left her matrimonial home without any rhyme or reason and withdrew from the society of the appellant without any just cause or whether she was forced to stay with her parents at Sonepat all these long years on account of callous indifference or neglect by the appellant. The appellant stepped into the witness box as Aw 1 and simply stated that 'In January 1966 the respondent left my house. She wanted to go to Sonepat but I had tried to dissuade her. In the evening when I came back I found that she had already left my home all alone'. Evidently he has not assigned any reason which impelled the respondent to leave his house and his testimony verily leaves an impression that the respondent having suddenly made up her mind to go to Sonepat, left the matrimonial home without any rhyme or reason, never to return. So he has left the court guessing as to what must have transpired between the parties which persuaded the respondent to leave her matrimonial home for good. On the contrary the respondent deposed as RW1 that after having stayed for about a year and two months with the appellant at Rouse Avenue she went to her paternal home at Sonepat and the appellant then went there to bring her back. During that visit the appellant expressed the grievance to her father that the members of the marriage party (barate) had not been properly entertained and the dowry given to her in marriage was inadequate. However, she came back to Delhi with the appellant. Thereafter, she gave birth to a male child on 17th December 1965 at Delhi. On 30th January 1966 the ap- pellant took her to her father's house at Sonepat and leaving her there he came back to Delhi. The appellant did not go to her parents' house thereafter in order to bring her back till now. Obviously she too has not come out with the real cause which led the appellant to leave her at her parents' house and then forget all about her. It is significant to note that there is not even a whisper in the written statement filed by the respondent about any dissatisfaction on the part of the appellant or his parents with the dowry given to her in marriage. No such suggestion was made even to the appellant when he was in the witness box. Hence, story about inadequacy of dowry and resultant grievance of the appellant and his parents fails to inspire confidence. It seems to be just an afterthought.

(9) The matter, however, does not end there. It is trite that men may lie but circumstances do not. In the instant case, the circumstances eloquently speak of what must have happened. As stated above, in his previous petition for judicial separation the appellant had leveled charge of adultery against the respondent in unequivocal language. He went to the extent of saying that he had seen the respondent in a compromising position with his youngest brother with his own eyes. If that be so, it must have given a severe jolt to the matrimonial relations between the parties and the marital relations between the two could no longer be smooth, not to speak of pleasant and happy. In the alternative, if the allegation of adultery leveled by him against the respondent in his previous petition was false and baseless, it would certainly warrant an inference that he was not at all happy with her and somehow he wanted to get rid of her. He stooped sollow as to indulge in character assassination of his own wife in order to achieve his object. It is noteworthy that the appellant has not till today owned the paternity of the son who was born to the respondent as far back as December 1965. Hence, keeping in view the whole conduct of the appellant, there can be little doubt that he did entertain grave doubt about the paternity of the son of the respondent and he has not been able to reconcile himself to the idea that he was born of his loins. Indeed the stand taken by the respondent in his written statement to the previous petition as well as present petition re-inforces this conclusion, it is, thereforee, difficult to resist the conclusion that the appellant must have manoeuvred to leave the respondent at her parents' house and then forget all about her. The son of the respondent still appears to be an anathema to him and he nowhere states that there was any love lost between him and the child.

(10) The learned counsel for the appellant has, however, made a valiant effort to get out of this predicament by urging that the respondent/ wife has been shifting ground from time to time as it would be clear from a mere juxtaposition of her previous written statement, her application under Section 488 Cr. P.C. in the court of the Judicial Magistrate at Sonepat and her written statement to the present petition. In her previous written statement (copy Ex. P 1) she had averred that after the birth of a son to her in December 1965, the appellant and his parents started making wrong, baseless, malicious and reckless allegations against her and she was practically turned out of the house after being maltreated and beaten. It was on that account that she went to the house of her patents Along with her son in help- less condition and was living there in great distress. Obviously, there is not even a whisper about the appellant having left her at Sonepat which is her stand in the instant case. In her application under Section 488 Cr. P.C. (Ex. P 4) for grant of maintenance to the Chief Judicial Magistrate she had stated that the parties had been residing happily and a son named Arun Kumar was born on 17th December 1965 out of the wedlock,' that in the year 1966 the appellant shifted to Sonepat in a rented house of Jessa Ram with mala fide intention and thereafter he indulged in beating and maltreating her. He also made wild and malicious allegations against her presumably at the instigation of his parents and relations. Further, according to her, after residing at Sonepat with her for sometime the appellant deserted her and her son Arun Kumar and, thereforee, she was left with no alternative but to go to her father's place where she had been staying since then. Obviously' her version as regards the circumstances in which she was compelled to go to her parents' house at 'Sonepat and live with them as embodied in Ex. P 4 is absolutely different from and contradictory to the stand taken by her in her previous written statement. In the instant case, her stand is quite at variance from either of the two stands spelt out in Ex. P 1 and P 4. Pertinently during her cross-examination, her attention was invited to para 3 of her written statement (Ex. P1) and she dubbed the same as untrue saying that she had not left the house of the appellant of her own but the appellant had taken her to her father's house. In the next breath she stated that the appellant had taken a room on rent in Sonepat where he had stayed with her for about 2 or three days and thereafter he left the said room. So after waiting for his return for sometime she left for her father's house. It is thus manifest that she has been saying different things at different times. It is, thereforee, difficult to make out which of these versions is credible or true. However, a perusal of her father's testimony would show that in the third week of January 1966 the appellant took the respondent to his house and left her there. In his cross-examination he reiterated this fact and explained that the appellant had left the respondent at his house on 20th or 21st January 1966 and that the appellant had brought her from Delhi. Thus, the story of the appellant having taken a room on rent at Sonepat and stayed there with the respondent for a few days before deserting her appears to have been concocted with a view to give jurisdiction to the court of the Judicial Magistrate at Sonepat. As for her earliest version in the written statement (Ex. P 1) it appears to be partly true, in that she must have been maltreated, if not beaten, on account of the suspicion which the appellant somehow nurtured in his mind about the legitimacy of the respondent's son. Strangely enough when in the witness box the appellant had first feigned complete ignorance about the grounds which he had put forth for judicial separation in his previous petition. He even went to the extent of saying that he did not know whether it was on the ground of desertion, cruelty and adultery. He was thereupon confronted with the original petition for judicial separation being H.M.A. Case No. 246/73 and he was left with no option but to admit that both the grounds of desertion as well as adultery were taken by him in that petition. Obviously hesitation on his part to admit the grounds taken by him in his previous petition for judicial separation stemmed from a guilty conscience. Although he had cited his own parents as witnesses to adultery on the part of the respondent he lacked courage to examine them as witnesses or even come forward to depose to the facts relating to her promiscuous relations with his youngest brother. It may as well be that his parents refused to oblige him by giving false evidence. Anyhow, on a broad and overall view of all these facts, I entertain no doubt, in my mind, that the appellant, for reasons best known to him, did doubt the conjugal fidelity and chastity of the respondent and, thereforee, he contrived to get rid of her by quietly taking her to Sonepat and leave her at the house of her parents.

(11) Even assuming for the sake of argument that the respondent herself left the matrimonial home, there can be little doubt that she must have been forced to do so for compelling reasons. It certainly passes one's comprehension that in a Hindu society where marriage is still regarded as a sacrament, a Hindu wife would have no regard for the sanctity of marriage and she would desert her husband just after a year and a few months of her marriage for no rhyme or reason. Rare exceptions apart, such an idea is completely abhorrent to commensense of one who has even an inkling of the social outlook and mental attitude of a Hindu wife towards her husband. Certainly nothing has come on the record which even remotely suggest it to be a case of rare exception.

(12) It is well settled that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligation of marriage. As observed by the Supreme Court in the of quoted case of Bipinchandra Jaisinghbai Shah v. Prabhavati, : [1956]1SCR838 that :-

'For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.'

(13) It is equally well settled that the burden of proving desertion the factum as well as the animus deserendi is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the court the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife where she is the deserting spouse, does not prove just cause for her leaving apart, the petitioner husband has still to satisfy the court that the desertion was without cause. (See Lachman Utamchand Kirpalani v. Meena alias Mota, : [1964]4SCR331 and Dr. N.G. Dastane v. Mrs.'S. Dastane, : [1975]3SCR967 ). In the latter case, the Supreme Court further laid down that the word 'satisfied' in Section 23 must mean 'satisfied on a preponderance of probabilities'. Hence, the inference of desertion has to be made on a balance of probabilities. The circumstances, in the instant case, speak eloquently against the appellant. As said by the Supreme Court in Bipinchandra Jaisinghbai Shah (supra) that:-

'If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. ... ............'

(14) As observed by me earlier, it does not appeal to commonsense that the respondent would have left the house of her husband for no rhyme or reason. Assuming argued for a moment that she did so, nothing has come on the record to suggest that she had withdrawn from the society of the appellant with the intention of repudiating her matrimonial obligation for ever. Even otherwise it is manifest that after serious allegation of adultery was leveled against her which allegation the appellant did not have the courage to prove, she was left with no face to come back to her matrimonial home of her own accord. It Was, thereforee, for the appellant to have expressed contrition and made complete atonement for his highly wrongful act.

(15) Unfortunately for the appellant I have looked in vain for any evidence of expiation on his part for this grave wrong to the respondent.

(16) In the absence of any evidence to this effect, the continued residence of the respondent at her parents house can, by no stretch of reasoning be said to be without just cause. As a necessary corollary, it would follow that she cannot be held guilty of the matrimonial offence of desertion.

(17) The story of the appellant that he went to fetch her back to the matrimonial home two or three months after she had gone to Sonepat in January 1966; that he again went to Sonepat in 1972 but her parents were not ready to send her back, that still later he made efforts in January 1978 and June 1978 but the parents of the respondent were not willing to send her back has been disbelieved by the trial Court and on a consideration of the evidence on the record, I find that the conclusion arrived at by the trial Court is perfectly correct. In the first instance, he did not spel out the various visits made by him to Sonepat from time to time in his petition. Shorn of minute details he could mention at least the months or the years in which he had made attempts to bring her back to his fold. Obviously he made vague averments in the petition so that he could later concoct any story according to his own convenience and choice. Secondly, the witnesses examined by him, as having accompanied him on various trips to Sonepat in order to complish this task appear to be suborned and false. It is somewhat astounding that none of them had even seen the face of the respondent and still they were chosen to accompany the appellant for this holy task. What persuasive influence they could exert' over the respondent and to what extent they could bring home the sincerity of purpose on the part of the appellant to the respondent is anybody's guess. That apart it would appear from the evidence of Krishan Mohan Sharma, Public Witness 2, who is a senior colleague of the appellant, that on both the occasions he accompanied the appellant, once in May, 1972 and again in January 1978, they could not contact the respondent as her father would not allow them to enter the house and he refused point blank to talk an the subject. No plausible Explanationn for this stubborn and recalcitrant attitude on the part of the respondent's father is available on the record. Bhim Sen Chawla, Public Witness 3, is the landlord of the appellant, the latter having lived in his house A-56, Amar Colony, Lajpat Nagar, New Delhi, from 1973-1978. According to him, he and Mst. Hazra Begum, Public Witness 2, had accompanied the appellant but only Hazra Begum went inside the house and had a talk with the respondent. However, even Hazra Begum came back disappointed after a few minutes and she informed them that they (respondent's parents) were not ready to send her back. The testimony of Hazra Khatoon, Public Witness 2, makes a rather interesting reading. According to her, she met the respondent and her mother and requested the respondent to return to appellant's house but she declined. She has not given any reason whatsoever for her disinclination to return to her matrimonial home. During crossexamination she reiterated that her mother was also present and refuted the suggestion that her mother had died a number of years ago. However, in the next breath she said, 'But an old woman was present in the house'. Obviously wisdom had dawned on her by then because she has neither seen the respondent nor her mother prior to the alleged visit. She further stated that the appellant did not go inside the house along with her and that the father of the respondent too was not present. Obviously no reliance can be placed on such like evidence and the learned Additional District Judge has rightly rejected the same as unworthy of credence.

(18) The appellant has also stated in his deposition that in December 1979 he had a talk with the respondent in the court at Sonepat and he tried to persuade her to return and resume cohabitation with him but she declined. Further, according to him, after the dismissal of his previous petition for judicial separation he had gone to Sonepat in the year 1976 for reconcilation but in vain. During cross-examination he asserted that he had told , his counsel both these facts at the time of drafting the present petition for divorce. However, he conceded that there was no mention of the same in the petition. For obvious reasons no reliance can be placed on this part of the testimony either not only because it appears to be an after throught but also because he does not throw any light as to what he actually talked to the respondent. That he never meant business and there could be no sincerity of purpose in his alleged visits to Sonepat for reconciliation is manifest from his categorical statement during his cross-examination that he was not ready to keep the respondent with her now if she offered to return and resume cohabitation unconditionally. I made an attempt to bring about reconciliation between the parties, even in this appeal, before the start of arguments but the appellant again refused point blank to take the respondent back home although she appeared to be genuinely desirous of returning to her matrimonial home. To crown all, the appellant did not give even his correct residential address in the petition for divorce. In the caption of the petition he simply gave his official address and in para 2 of the petition he gave his address 'A-93, Lajpat Nagar, New Delhi', which is non-existent. This is apparent from his cross-examination during which he said that his residential address was A-39, 'Amar Colony, Lajpat Nagar. The contention of the respondent is that he had been deliberately suppressing and concealing his correct residential address because he entertained an apprehension that she might unexpectedly arrive at his house and stay there. Certainly, this contention cannot be brushed aside lightly in view of the overall conduct of the appellant.

(19) Having dwelt on these important aspects of this case, I do not feel it necessary to embark upon a discussion of the evidence relating to the efforts made by the respondent or her parents for reconciliation. As observed earlier, there can be no shadow of doubt that the appellant has not been able to reconcile himself with regard to the paternity of the respondent's son and accept him as his son. So, all his loud talk that he was desirous of taking respondent back to his fold is just a white lie and a blatant falsehood.

(20) Last but not the least, there is abnormal delay on the part of the appellant in filing this petition for divorce. He has rendered no Explanationn for the same except saying that he had not moved the petition earlier in the hope that the respondent would agree to reconciliation, I have already noticed the kind of efforts he made at reconciliation. On his own showing after his first visit to Sonepat in 1966 which was two or three months after the departure of the respondent from her matrimonial home he went to Sonepat in the year 1972. No Explanationn is forthcoming as to why this long interval of six years was allowed if he was really sincere and honest about bringing her back to his fold. As was observed by Hodson, L.J., in Llewellyn v. Llewellyn (1955) 2 All Er 110, that :-

'c is not to be used as a place to which people can come for redress just when it suits them.'

(21) So even though long unexplained delay on the part of the appellant may not per se be fatal to the petition for divorce, it certainly is a factor to reckon with while exercising discretion in favor of a party. Section 23(1)(d) of the Act lays down that, 'in any proceeding under the Act. whether defended or not, if the court is satisfied that there has not been any unnecessary or improper delay in instituting the proceeding, the court shall decree such relief.' Hence, the court has to take into consideration long and improper delay which remains unexplained while deciding whether a decree for divorce may be passed or not. Such a conduct on the part of the appellant certainly becomes relevant when considering want of sincerity of purpose. In a way his acquiescence in prolonged separate living of the respondent without demur renders him a consenting party to the same. He cannot, thereforee, turn round now and take advantage of his own wrong. His contention that the instant is a clear case of irretrievable breakdown of marriage and thereforee, delay alone should not be stand in the way of divorce cannot be accepted: As already seen he is primarily responsible for forcing separation on her and is thus guilty of constructive desertion.)

(22) To sum up, thereforee, I find no merit in this appeal. It is accordingly dismissed with costs.


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