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Snehiata Seth Vs. Kewal Krishan Seth - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 57 of 1983
Reported inAIR1986Delhi162; 27(1985)DLT449; 1985(8)DRJ107; 1985RLR75
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantSnehiata Seth
RespondentKewal Krishan Seth
Advocates: B.S.C. Singh and; P.R. Bahl, Advs
Cases ReferredMrs. Swaraj Garg v. K. M. Garg
hindu marriage act, 1955 - section 13(1)(ib)--wife going to parent's house of the suggestion of her mother-in-law that it would help cooling husband's temper and bring about peace in the family cannot be held guilty of desertion to serve as a ground for divorce. husband contacting second marriage soon after the decree of divorce and while avoiding service of stay order passed by high court--held this conduct can be taken in to consideration for proper appreciation of parties' evidence. - - the same shows that sneh lata had taken prompt steps to apply for copy of judgment, and the appeal too was filed within one day of its being ready it is apparent that kewal kishan showed unusual haste which must be treated as one in bad faith, and to take a march over the judicial proceedings and..........evidence on record and the circumstances of the case i am unable to sustain the finding of the learned trial court that the appellant had deserted the respondent and, thereforee, the latter was entitled to a decree of divorce. the appeal is allowed, and the decree of divorce reversed. the appellant will be entitled to costs throughout. counsel's fee rs. 1,000.

D.R. Khanna, J.

(1) This appeal has been moved by Sneh Lala Seth against the decree of divorce passed against her and in favor of her husband Kewal Kishan Seth on 7-1-1983 under Section 13 of the Hindu Marriage Act by Sh. R.D. Aggarwal, Additional District Judge, Delhi.

(2) Kewal Kishan had sought divorce on two grounds. One was of cruelty and the other desertion. So far as the former ground, the learned trial court negatived the same, but allowed divorce after holding that Sneh Lata had, in fact, deserted the petitioner for a continuous period of over two years.

(3) The parties were married on 8-9-1973. It was an arranged marriage. Both have been working. The wife has been employed as a teacher in a school. While the husband is a bank employee and is at present holding the post of Assistant Manager, drawing over Rs. 3000.00 per month. A son was born out of wedlock on 18-1-1975, Sneh Lata left the matrimonial home on the evening of 31-7-75 and ever since then the parties have not lived together.

(4) At the time of hearing of this appeal none has appeared from the side of Kewal Kishan, respondent and as such arguments have been heard from the side of the appellant. This appeal was filed on 16-2-83, i.e. within. about five weeks of the trial court's judgment. Along with this appeal the appellant moved an application seeking restraint of the respondent from effecting second marriage. Stay was granted by Wad, J. to that effect on 23-2-1983. For one of the hearings the respondent could not be served, and according to the petitioner he designedly did not accept service though had come to know of the appeal and stay order, and this was amply borne out when on3-4-1983, he appeared in court and suddenly took up the stand that he had in the meanwhile already remarried. I find that the appeal was otherwise within time in case the time spent between 11-1-83 and 15-2-83 for obtaining the certified copy was excluded. The same shows that Sneh Lata had taken prompt steps to apply for copy of judgment, and the appeal too was filed within one day of its being ready It is apparent that Kewal Kishan showed unusual haste which must be treated as one in bad faith, and to take a march over the judicial proceedings and confront the appellant and the court with dubious fact accomplice. I will have occasion to discuss later how far this conduct corroboratively reflects the other conduct of the respondent as to who was responsible for Sneh Lata to live apart from him and in the house of her parents.

(5) 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 sustence 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 a new wedlock Judicial hesitancy is bound to be there in such circumstances. 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 sphere 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 pointed out, that she has not claimed any penny as maintenance for herself and her child whom she is maintaining by her singular efforts, and the respondent too has not chosen to display any responsibility for their maintenance.

(6) So far as the first ground of divorce, viz. cruelty the learned trial court has discussed the evidence in details, and has found that the same not been substantiated. The respondent has not appeared to show any infirmity in the discussion of that evidence or the conclusion arrived at. In fact, after going through the evidence on record, I am inclined to fully uphold that finding. The allegations of cruelty were generalised in term of bad temperament and rude behavior by the appellant. However, instances which were brought out, were of insignificant nature, and rather it was admitted that although the appellant was a working lady, she was fully devoting herself to the house-hold duties and attending to them. One of the incidents mentioned was of an uncle of the respondent taking dinner at the respondent's house. The learned trial court has brought out discrepancies in that regard, and further mentioned that the versions given by different witnesses who were all relations of the respondent were not unifortn. Another incident mentioned was on the occasion of the marriage of the appellant's sister. The respondent and his family were said to have given meagre shagun' to which the appellant objected. This too has not been accepted by the learned trial court, and it was taken note that in case the appellant wanted larger amount to be given on the occasion she had a bank account, and she could have well supplemented money of her own. Still another ground was that because of the quarrel arising from the preceding incident, the appellant tried to strangulate herself with a cord ('nala'). This ground was not initially taken in the petition, but was sought to be brought in by way of amendment subsequently. There is discrepancy whether the respondent's mother was present at that occasion. The trial court has disbelieved the same, ami in my opinion rightly. The fourth incident was that the appellant did not go with the respondent to the railway station when the latter's younger brother was going to Bhavnagar for some cays. Although the appellant has denied this, it is apparent from the record that she was in advance stage of pregnancy then, and in case the respondent's younger brother was just going to a place outside Delhi for some days, it was not a matter which should have been of such significance as to treat the default of the appellant in not going to the station as a cruelty on the respondent.

(7) The parties had been living in houses where some other families have also been residing. It is note-worthy that no independent witness at all has been examined who could testify that they heard any quarrels between ihe parties or that the attitude of ihe appellant was aggressive and non-cooperative.

(8) I, thereforee, uphold the finding of the trial could that there was no cruelty-perpetrated by the appellant which could have justified the ground of divorce to the respondent

(9) Adverting next to the ground of desertion which has prevailed with the learned trial court, there is no dispute that ihe appellant left the matrimonial home on the evening of 31-7-1975. The version of Kewal Kishan as disclosed by his mother, was that she had slated that Kewal Kishan would be waiting for her at the Vivek Cinema, and, thereforee, she was going to join him there. She instead went along with her child to her parents' house, and never returned thereafter. According to the respondent. efforts were made by the relations to bring her back, but without result.

(10) The appellant's version on the other hand has been that although the respondent had duly seen her before marriage, he did not reconcile to her looks, and thereforee, had been in look out for divorce, and had been pressing her to agree to the-same. For two nights before 31-7-S975, the respondent did not come to the house, and thereforee she and her mother-in-law felt worried. It was then that the mother-in-law told her that it would be better if she went away to her parents' house for two-three days, and this would pacify the respondent. According to the appellant, it was as such that she in obedience to the direction of her mother-in-law went to her parent's house. Two-three days later, she again came back, but the mother-in-law told her that the temper and mood of the respondent were still not pacified, and she should still remain in her parents' house. According to her, she and her relations and friends made several attempts to prevail upon the respondent to admit her back to the matrimonial home, but without success. As against the witnesses of the respondent who were all his relations, the appellant examined a number of her colleagues who had accompanied her to the bank of the respondent and tried to impress upon him that the appellant should be taken back, but without response.

(11) There is no evidence that before leaving for her parents' house on 31-7-1975 that the appellant had been clandestinely removing her clothes, ornaments etc. from the matrimonial home to her parent's house. In case she had gone to Vivek Cinema, as represented by her mother-in-law she would have naturally gone with the clothes she was wearing and not taken along her other clothes and ornaments. The mother-in-law has in the witness box, attempted to depose that she later found that she had taken a box away with the help of a servant of their neighbour, and had removed her clothes and ornaments. Neither that neighbour nor the servant has been examined.

(12) During the course of the trial and the evidence that was recorded, the appellant throughout displayed her willingness to go back to the matrimonial home. She stated so in her deposition as well. As against that, the respondent was categorical that he was not ready to take her back. The alleged conduct of cruelty on the part of the appellant about which reference has been made above, was non-existent. There was apparently, thereforee, no reason for the appellant to leave the matrimonial home, specially when she had a child of six months with her. Then there has been the circumstance of the unusual and dubious haste which the respondent displayed in entering into another wedlock. A number of independent witnesses have been examined by the appellant who stated that they approached the respondent for reconciliation, but he did not show any response. As against this evidence, the respondent has produced his relations only and another person, named, Keshav Kumar Malhotra, about whom the appellant had stated that she does not know him at all.

(13) It is sometime well said that men may lie but the circumstances do not. When it is a matter of assessment of oral evidence of witnesses, the circumstances in which certain state of affairs have happened acquire significance. It has been as such that I have discussed above the circumstances that the appellant had no reason to desert the respondent and rather the respondent who had designs to free himself from the matrimonial bonds, and embark upon another marriage. The learned trial Court has laid considerable emphasis on the requirement that the wife must reside in the house of the husband and the circumstance that the wife had in the preseat case her.self gone to her parents' house showed that she had an intention to desert him. lam afraid this has been too much of a simplification of the evidence, and circumstances which were required to be weighed. Of course, normally a wife's place is in her husband's house. However the law has not been rigid in this regard. Recently this Court had the occasion to adjudicate over a matter where a working lady had perforce due to exigencies of her service stayed at a station away from her husband. The husband insisted that she must come back and reside with him, and if she did not do so she should be held guilty of desertion. This was negatived. See in this regard Mrs. Swaraj Garg v. K. M. Garg, : AIR1978Delhi296 . In the present case, the appellant had not of her own volition gone to the house of her parents. It was as desired by her mother-in-law, and in order to ensure that perhaps the temporary going may bring in cordiality and restore the mood and temper of the husband. She had every intention to come back. Unfortunately the doors of the matrimonial home were thereafter shut out for her.

(14) With this State of the evidence on record and the circumstances of the case I am unable to sustain the finding of the learned trial court that the appellant had deserted the respondent and, thereforee, the latter was entitled to a decree of divorce. The appeal is allowed, and the decree of divorce reversed. The appellant will be entitled to costs throughout. Counsel's fee Rs. 1,000.

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