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Mst. Daljit Kaur Vs. Balwant Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Miscellaneous Appeal No. 128 of 1979 (35/80)
Judge
Reported in1981WLN(UC)230
AppellantMst. Daljit Kaur
RespondentBalwant Singh
DispositionAppeal dismissed
Cases Referred and Lachman v. Meena
Excerpt:
.....family wanted dowry and gave beating to her on that account has rightly been disbelieved by the learned district judge. so far as the alleged maltreatment of the appellant by the respondent is concerned there is no evidence except the statement of smt. daljeet kumar d.w. 4 and her statement has rightly been disbelieved by the learned district judge.;appeal dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of..........act 1955, hereinafter referred to as the act, against the judgment dated october 31, 1979, of the learned district judge, ganganagar under which he allowed the application under section 13 of the act of the respondent balwantsingh filed by him against the appellant.2. the marriage of the appellant with the respondent balwant singh took place on fagun samvat 2021 in accordance with sikh religion. after the marriage both lived together at chak no. 172 at the house of the respondent, but some time in the month of september, 1965, the appellant is said to have left the respondent and went to the house of her parents and did not return. a petition under section 9 of the act for restitution of conjugal rights was filed by the respondent against the appellant and that miscellaneous petition.....
Judgment:

M.B. Sharma, J.

1. This is a wife's appeal Under Section 28 of the Hindu Marriage Act 1955, hereinafter referred to as the Act, against the judgment dated October 31, 1979, of the learned District Judge, Ganganagar under which he allowed the application Under Section 13 of the Act of the Respondent Balwantsingh filed by him against the appellant.

2. The marriage of the appellant with the Respondent Balwant singh took place on Fagun Samvat 2021 in accordance with Sikh religion. After the marriage both lived together at Chak No. 172 at the house of the Respondent, but some time in the month of September, 1965, the appellant is said to have left the respondent and went to the house of her parents and did not return. A petition Under Section 9 of the Act for restitution of conjugal rights was filed by the respondent against the appellant and that miscellaneous petition No. 7 of 1968 was later on compromised and the appellant started living with the Respondent.

3. The Respondent filed an application against the appellant in the court of District Judge Ganganagar on March 6, 1978 Under Section 13(l)(ib) of the Act. It was averred in the petition that the appellant deserted the Respondent, some time in the month of August 1972 and thereafter inspite of efforts did not return to the Respondent to discharge her matrimonial obligations towards him. Earlier also a petition for judicial separation was filed but because of the amendment in the Act in the year 1975 that petition was withdrawn and because the amendment gave a right to file a petition for divorce on the ground of desertion also the present petition was filed.

4. The application was contested by the applicant mainly on the two grounds that she did not bring enough dowry in the marriage and she wascalled upon by the Respondent and his mother to bring Rs. 10,000/- by way of dowry and they used to treat her with cruelty. The learned trial court on the pleadings of the parties framed the following issues:

(1) Whether the non-petitioner has deserted the petitioner for a continuous period of more than two years immediately before presentation of the petition and on that ground the petitioner is entitled for a decree of divorce Under Section 13(1)(ib) of the Act?

(2) Relief?

After recording the evidence of the parties the learned District Judge Ganganagar dissolved the marriage of the Respondent with the appellant by a decree of divorce.

5. I have heard the learned Counsel for the parties and have been taken through the evidence on record. In explanation of Section 13(1) of the Act, the expression desertion has been defined and it means the desertion of the petitioner by the other party to marriage Without reasonable cause and without the consent or against the wishes of such party, and includes the wilful negligence of the petitioner by other party to the marriage and its grammatical variances and cognate expressions are to be construed accordingly. To construe desertion two essential conditions must be there, namely, (i) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus desired). Similarly so far as the deserted spouse is concerned, two elements are essential (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form a necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case which circumstances may vary from case to case. See Bipin Chandra Shah v. Prabhavati, : [1956]1SCR838 and Lachman v. Meena, : [1964]4SCR331 .

6. In the instant case so far the factum of separation is concerned there is no dispute between the parties and it can be held on the material on record that both the husband and the wife are living separately since the year 1972 i.e. for a period of much more than 2 years immediately preceding the presentation of the petition. The only question is as to whether the appellant had any reasonable cause to reside separately from the respondent and whether there was any conduct of the respondent giving reasonable cause to the appellant to live separately from the respondent. The learned District Judge on the appreciation of the evidence has held that the appellant left the house of the Respondent of her own accord and she was not driven out by the respondent. It has also been observed that the respondent was always willing and wanted to bring the appellant to his house but it was she who refused to come and all these facts in the opinion of the learned District Judge, proved that the appellant has deserted the respondent within the meaning of explanation to Sub-section (1) of Section 13 of the Act. From the evidence of the respondent and his witnesses, it which has been discussed in detail by the learned District Judge it can be said that the appellant left the house of the respondent and for having done so there was no cause with her. As already stated earlier a case was set up by the appellant that her husband aid the Respondent and the members of his family were not happy as she had not brought sufficient dowry in the marriage and they were always insisting upon her to bring more money. The case set up by her does not appear to be correct. A look at the written statement of the appellant will show that it was not mentioned therein as to what amount by way of dowry was further demanded from her and what amount she paid to her husband and members of his family. All that was written in the written statement by the appellant is that the Respondent and the members of his family used to demand dowry from her parents and used to threaten that in case she returns without dowry she will not be left alive and the second marriage of the respondent will be solemnized with some body. In her statement the appellant Daljeet Kaur has stated that on one occasion i e. in the year 1965 when a compromise was arrived at she returned with a sum of Rs. 10,000/-buc even that did not satisfy her husband and his mother. She is not supported on this point either by her own father Shri Jwala Singh D.W 1 or by any other, person who are said to be accompanied Jwala Singh, to the house of the Respondent. There is material on record that in Chak 172 where the house of the respondent is situated, other daughters of the same village to which Jawala singh belongs have been married and some of them are even the cousin sisters of Smt. Daljit Kaur. Surprisingly, none of the relations were assembled in the Panchayat which is said to have taken place at the house of the respondent in Chak 172. Therefore the case set up by the appellant that the Respondent and the members of his family wanted dowry and gave beating to her on that account has rightly been disbelieved by the learned District Judge. So far as tie alleged mal treatment of the appellant by the respondent is concerned there is no evidence except the statement of Smt. Daljeet Kaur D.W. 4 and her statement has rightly been disbelieved by the learned District Judge. It was very natural that if she would have been mal treated by her husband or members of his family she would have complained to her relations who were married in that very village, village than a small village and as such the relations must have bean available and there must have been access for Daljit Kaur to have met them in the village.

7. In the result, I do not find any force in this appeal and it is hereby dismissed with no order as to costs.


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