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Smt. Raj Bala Vs. Shri Krishan Avtar Kaushik - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberF.A.O. No. 105 of 1984
Judge
Reported in1985(8)DRJ283
ActsHindu Marriage Act, 1955 - Sections 13
AppellantSmt. Raj Bala
RespondentShri Krishan Avtar Kaushik
Appellant Advocate Umesh Mishra, Adv
Respondent Advocate Anil Kumar, ; Yogesh Kumar Jain and ; Atul Kumar, Advs.
DispositionAppeal allowed
Excerpt:
..... 2. the case of raj bala appellant, on the other hand, has been that she continued to reside with krishan avtar up to the third week of july, 1982 when she was turned out on her failure to satisfy the increasing demands of dowry. she on her part, has as well moved a petition under section 125 cr. she knew well that her father was not so well off as to provide her life long comfortable living. it sometimes is well said that men may he but circumstances do not. there was no reason for raj bala to take the jewellery then as at that time it was not known to krishan avtar that she was going for good. the best evidence in this regard was the record of the hospital. according to raj bala, her father and uncle, demands of fridge, tv, scooter and cash of 10,000/- were raised off and on by..........avtar, the only other witness examined by him is his brother rishi raj. according to him, raj bala left the matrimonial home finally in 1979, but could not remember the date or the month. no neighbour has been examined who could depose that raj bala in fact left in 1979. the friend with whom krishan avtar stayed along with raj bala at jabalpur after the marriage, too was not produced. as against this evidence, raj bala apart from appearing herself in the witness box, has examined her father r.w. 4 mool chand, her uncle r.w. 2 balraj sharma and r.w. 3 rajinder prasad at whose house krishan avtar is said to have left raj bala on 21-7-1982. he is a resident of delhi and has supported this version. thereafter they tried to bring in reconciliation and get raj bala admitted back to the.....
Judgment:

D.R. Khanna, J.

1. Of the two grounds on which Krishan Avtar Kaushik sought divorce from his wife Raj Bala under Section 13 of the Hindu Marriage Act, one relating to cruelty on her part, was negatived by the trial court, and no attempt has been made during the hearing of this appeal to find any infirmity in that finding. That aspect, thereforee, need not be discussed here. It was on the ground of desertion that divorce was allowed. The husband's allegations were that she had left for her parents house on 31-5-1979 after taking away her jewellery from the locker. Subsequently he tried to bring her back on 10-6-1979 by going to her parents' house, but was given callous treatment and told that she had no intention of continuing married life with him, and their relations should be treated as served.

2. The case of Raj Bala appellant, on the other hand, has been that she continued to reside with Krishan Avtar up to the third week of July, 1982 when she was turned out on her failure to satisfy the increasing demands of dowry. She denied that she had of her own left the matrimonial home inMay, 1979, or ever misbehaved with him or his mother. Rather, according to her, all her jewellery and other items of dowry given at the time of the marriage, have been kept by Krishan Avtar.

3. The parties were married at Rohtak on 28-2-1979 according to Hindu rites, and thereafter stayed in the husband's house at village Singhola. They had their honey-moon at Simla, and on return from there left for Jabalpur where they stayed at the house of a friend of Krishan Avtar. Where Raj Bala allegedly showed some spend-thrift tendencies and wanted to purchase gifts for her parents and sisters. This latter allegation has been denied by Raj Bala. This, however, has little bearing on the ground of desertion which is now in purview. Krishan Avtar was M. Com. at the time of marriage, and according to him, he was undergoing Articles in Chartered Accountancy. He, however, could not complete them as according to him, he became very much, mentally upset because of the rude and cruel treatment of Raj Bala. At present he is employed as a clerk in Delhi State Industrial Development Corporation. Raj Bala is B.A. and is not employed anywhere. There has been no child out of the wedlock.

4. The petition for divorce was moved on 13-7-1982. In case Raj Bala's contention that she was turned out on 21-7-1982 is accepted as correct, she was still residing in the matrimonial home on the date when the petition for divorce was filed. She on her part, has as well moved a petition under Section 125 Cr. P.C. This was done on 1-9-1982. The Same is still pending.

5. During the course of hearing of this appeal, Raj Bala and her father who was present throughout, expressed her willingness to go back to the matrimonial home. She has four other sisters, two of whom are married., and three brothers, two again of them married. The father was an Officer in the State Bank of India who retired in August, 1981. The mother is alive, It has been pleaded from her side that these circumstances do not in any manner, impel her to live away from her matrimonial home, and this should reflect that She had no basis to voluntarily leave the matrimonial home. The court has no doubt to be cautious in assessing the plea of willingness to join the husband, lest the same be to defeat the divorce decree which has in the meanwhile been obtained by the husband. However, this conduct cannot be entirely ignored specially if the circumstances bring out that there was hardly any reason for the wife to leave the matrimonial home. She knew well that her father was not so well off as to provide her life long comfortable living. It sometimes is well said that men may He but circumstances do not.

6. The husband has during the course of the hearing of this appeal, declined to admit Raj Bala into the matrimonial home, and has rather asserted that his life had been made difficult by her behavior. His father declined to appear in court, and, Recording to Krishan Avtar he does not want to middle in this dispute.

7. No evidence of the operation of the bank locker by Raj Bala by about 31-5-1979 when she allegedly took away the entire jewellery while deserting the matrimonial home, has been led. The evidence in this regardis confined to the statement of Krishan Avtar alone which has been controverter by Raj Bala. it must be said that it is not possible to accept the version of Krishan Avtar. There was no reason for Raj Bala to take the jewellery then as at that time it was not known to Krishan Avtar that she was going for good. Rather his conduct about 10 days later to go to her parents' house to bring her back, showed that he treated the same to be one of the normal goings to their house. According to Raj Bala she had gone in these days because of 'Swan' Ceremony which the girl in their community perform at their parents' house.

8. The learned trial court has observed that the sudden illness of Krishan Avtar when he was admitted in a Delhi hospital from 20-7-1979 to 15-8-1979 indicated the possibility of his having suffered a shock mentally at the departure of his wife. The best evidence in this regard was the record of the hospital. The same was not produced, nor the doctor who treated him there, examined. In the absence of all this, there was no justification for the court of infer possibilities. Krishan Avtar has not himself mentioned what was the exact ailment from which he sufferred, and what the hospital had diagnosed. Raj Bala has stated that she did visit him in hospital three or four times during his admission there, though of course she could not state from what Krishan Avtar was suffering.

9. The trial court has observed that in the petition for maintenance under Section 125 Cr. P.C. the wife had not mentioned the demands of further dowry. I find that there is actual mention of this in that petition. It was further observed by the learned trial court that on the one hand Raj Bala stated that she continued to stay in the house of her in-laws, and did not want to leave it, she also stated that she was being neglected, ill-treated and even beaten and constantly pastured to bring more dowry items. This circumstance should not have gone against Raj Bala, and in case she still continued to stay on in spite of that treatment, the same reflected weakness on her part, and not an over-bearing character.

10. Apart from Krishan Avtar, the only other witness examined by him is his brother Rishi Raj. According to him, Raj Bala left the matrimonial home finally in 1979, but could not remember the date or the month. No neighbour has been examined who could depose that Raj Bala in fact left in 1979. The friend with whom Krishan Avtar stayed along with Raj Bala at Jabalpur after the marriage, too was not produced. As against this evidence, Raj Bala apart from appearing herself in the witness box, has examined her father R.W. 4 Mool Chand, her uncle R.W. 2 Balraj Sharma and R.W. 3 Rajinder Prasad at whose house Krishan Avtar is said to have left Raj Bala on 21-7-1982. He is a resident of Delhi and has supported this version. Thereafter they tried to bring in reconciliation and get Raj Bala admitted back to the matrimonial home, but Krishan Avtar was adament. According to Raj Bala, her father and uncle, demands of fridge, TV, Scooter and cash of 10,000/- were raised off and on by Krishan Avtar which could not be satisfied by them.

11. Considering all this evidence and the circumstances as discussed above, it is difficult to hold that Raj Bala had voluntarily left the matrimonial home and deserted Krishan Avtar. She has been a newt-working woman who has to look for dependence on others. She knows well the limitations and prejudices that a divorcee woman suffers in our society, and how few are her prospects of remarriage. She is educated up to B.A and can be taken to assess her good or bad. It is not shown that she is working under the adverse influence of anyone. I am, thereforee, unable to concur in the conclusion of the learned trial court in holding that Raj Bala had deserted Krishan Avtar. In fact it is more a case of she being turned out on being unable to satisfy the dowry demands of Krishan Avtar and his mother. Incidentally before concluding it may be mentioned that it also did come up for discussion during the hearing of this appeal that in case the parties cannot amicably in any circumstances live together, they can part company by way of divorce. In that case Krishan Avtar should return the dowry items and marriage expenses of Raj Bala and her parents, and provide adequate amount of alimony. According to Raj Baia, her parents had spent about Rs. 50,000/- in the marriage while Krishan Avtar mentioned the same to be around Rs. 22,000/-. Whatever that be after addition of alimony amount it was suggested if some amount could be paid by Krishan Avtar to Raj Bala, He declined suggestion in this regard,


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