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Shyam Chand Vs. Smt. Janki - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Appeal No. 46 of 1963
Judge
Reported inAIR1966HP70,1966CriLJ1438
ActsCode of Civil Procedure (CPC) , 1908 - Section 96; ;Evidence Act, 1872 - Sections 8 and 43; ;Hindu Marriage Act, 1956 - Sections 10, 10(1), 40, 41 and 42
AppellantShyam Chand
RespondentSmt. Janki
Appellant Advocate R.N. Malhotra, Adv.
Respondent Advocate Sita Ram, Adv.
DispositionAppeal dismissed
Cases ReferredIn Mst. Bhagwanti v. Sadhu Ram
Excerpt:
- .....one child died; two children--one son and one daughter--are alive. the respondent had gone to her father's house in august 1957 and had come back on 19-6-58. after that, the parties had lived at villages bedar and ghorna till the first, week of september 1958 when the respondent had left the appellant and had gone to the house of her father. the respondent had not come back, despite requests of the appellant and other respectable persons. the respondent had, thus, deserted the appellant, for, a continuous period of not less than two years, immediately preceding the presentation of the petition, and the appellant was entitled to get a decree for judicial separation, on that ground. 2. the petition was contested by the respondent. she admitted that the parties were married in june 1951.....
Judgment:

Om Parkash, J.

1. This appeal, against a decree of the learned Senior Subordinate Judge Mahasu, has arisen out of a petition, filed by the appellant, under Section 10 (1) (a), Hindu Marriage Act, against the respondent, his wife. The petition was based on the following allegations :-

The appellant and the respondent were married in June 1951 at village Bedar, Tehsil Theog. The parties had lived at that village till February 1952. They had, then, shifted to village Ghorna where the appellant was carrying on a shop. Three children were born to the parties. One child died; two children--one son and one daughter--are alive. The respondent had gone to her father's house in August 1957 and had come back on 19-6-58. After that, the parties had lived at villages Bedar and Ghorna till the first, week of September 1958 when the respondent had left the appellant and had gone to the house of her father. The respondent had not come back, despite requests of the appellant and other respectable persons. The respondent had, thus, deserted the appellant, for, a continuous period of not less than two years, immediately preceding the presentation of the petition, and the appellant was entitled to get a decree for judicial separation, on that ground.

2. The petition was contested by the respondent. She admitted that the parties were married in June 1951 and that children were born out of the wedlock. But she denied that she had deserted the appellant. The plea of the respondent was that she was maltreated, beaten and turned out of his house by the appellant. Giving details of the maltreatment, the respondent had stated that she was kept in a separate room at Bedar while the appellant lived at Ghorna and that the rations given to her at Bedar, were meagre and were hardly sufficient for her subsistence. She had, further, stated that she was kept in a cowshed at Ghorna, was deprived of the children, was beaten and ultimately turned out. According to the respondent, her father along with some other respectable persons had approached the appellant to take her back but the appellant had refused to take her back and had indicated his intention to divorce her. The respondent alleged that the petition for judicial separation was filed mala fide to counteract and nullify the order of payment of maintenance, obtained by her, against the appellant, from the Nyaya Panchayat, after she had been turned out, by the appellant.

3. In his replication, the appellant denied the allegations about maltreatment, beating and turning out the respondent. He alleged that the respondent had been provided with all the comforts at Bedar and Ghorna, that she bad unjustifiably left the house of the appellant, and that her conduct and behaviour had compelled the appellant to file the petition for judicial separation.

4. The learned Senior Subordinate Judge, Mahasu, who had tried the petition, held that the appellant had failed to prove that the respondent was guilty of the matrimonial offence of desertion. His finding was that the appellant had maltreated the respondent and, by his conduct and behaviour, had compelled her to leave the matrimonial home and to live with her father. As a result of his findings, the learned Senior Subordinate Judge dismissed the petition of the appellant.

5. Aggrieved by the order of the dismissal of his petition, the appellant has come up in appeal to this Court.

6. The only question, which requires decision, in the appeal, is whether the learned Senior Subordinate Judge was right in holding that the appellant had failed to prove that the respondent had deseuted him within the meaning of Section 10 (1) (a), Hindu Marriage Act. The expression 'desertion' has been defined in the Explanation to Section 10 (1). This explanation reads:--

'In this section, the expression 'desertion' with its grammatical variations and cognate expressions means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage.'

7. The above Explanation was considered, and the expression 'desertion' was interpreted by their Lordships of the Supreme Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40, a case under Section 10(1) (a), Hindu Marriage Act. Their Lordships adopted the interpretation, put on the expression 'desertion', in Bipinchandra Jaisinghbai Shah v. Prabhavati, (S) AIR 1957 SC 176. In the latter case, it was observed:--

'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 desecendi). 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. Desertion is a matter of inference to be drawn from the facts and circumstances of each case.'

It was further observed:--

'Where the wife is forcibly turned out of her marital home by the husband the husband is guilty of 'constructive desertion', because the test is not who left the matrimonial home first. If one spouse by his words and conduct compel the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home.'

8. The question, whether, or not, the appellant had established the matrimonial offence of desertion, against the respondent, is to be decided in the light of the above principles, enunciated by their Lordships of the Supreme Court. The respondent was, admittedly, residing at the house of her father, since the first week of September, 1958. The contention, on behalf of the appellant, was that the respondent had left him without reasonable cause and was living at the house of her father in order to assist him in the management of his property as the respondent's father was an old man and had none else to look after the property. On the other hand, the contention, on behalf of the respondent, was that she had been consistently ill-treated by the appellant, and had been driven out of the matrimonial home. The burden of proving that the respondent had left the matrimonial home without reasonable cause was on the appellant. The appellant had produced oral evidence to show that he was treating the respondent nicely and that she had left him without just cause. Chet Ram PW. 1, Nathu Ram PW. 2, Dhani Ram PW. 3, Balak Ram PW. 4, Beragi Ram PW. 5 and Jai Ram PW. 6 stated that the respondent was treated well by the appellant Chet Ram PW. 1, Nathu Ram PW. 2 and Balak Ram PW. 4, further, stated that they had, on different occasions, approached the respondent to come back to the house of the appellant, but that she had refused. In rebuttal, the respondent had produced oral as well as documentary evidence, to prove that she was being ill-treated by the appellant. Phagnu DW. 7 stated that, once, the respondent had been beaten by the appellant in his presence and had been turned out of the house:

Sahi Ram DW. 3, President of the Gram Panchayat, had stated that the respondent had complained to him that the appellant had turned her out of his house and had requested him to persuade the appellant not to maltreat her and to take her back in his house. Sahi Ram had further, stated that he had, asked Daulat Ram DW. 8, a member of the Gram Panchayat, to approach the appellant and to persuade him to take back the respondent in his house. Daulat Ram DW. 8 had stated that, he along with Panu Ram DW. 1, Moti Ram DW. 2 and Gopu Ram DW. 9, father of the respondent, had approached the appellant for effecting a reconciliation between him and the respondent, but that the appellant had refused to keep the respondent at his house. Daulat Ram, had, further, stated that the appellant had indicated his intention to divorce the respondent. The evidence of Daulat Ram DW. 8 was corroborated by Panu Ram DW. 1. Moti Ram D. W. 2 and Gopu Ram D. W. 9.

9. The learned Senior Subordinate Judge accepted the evidence of the witnesses of the respondent in preference to the evidence of the witnesses of the appellant. He was of the view that the evidence of the former witnesses was much more convincing than that of the latter. It was contended, on behalf of the appellant, that the learned Senior Subordinate Judge erred in relying upon the oral evidence, adduced by the respondent, in preference to the oral evidence; adduced by the appellant. There was conflict of oral evidence of the parties, regarding treatment meted out to the respondent, by the appellant. Now, when there is such a conflict, and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which had escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the opinion of the trial Judge, vide Sarju Pershad v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120. It was not shown, on behalf of the appellant, that there was some special feature about the evidence of any of the witnesses of the appellant which had escaped the notice of' the learned Senior Subordinate Judge or that there was sufficient balance of improbability to displace his opinion as to the credibility of witnesses.

The documentary evidence, produced by the respondent, tended to discredit the contention, and consequently, the evidence of the witnesses of the appellant, that the respondent was being well treated by him and that he was eager to take her back in his marital home. It was, admitted by the appellant, that the respondent had made an application for the grant of maintenance, against him in 1957, and that the application was compromised. Ex. DW-6/A is a copy of the compromise. According to this compromise, the appellant had undertaken to take back the respondent am her children in his home and to maintain them. He had, further, agreed that, in case he failed to do so, he would be liable to pay a maintenance allowance of Rs. 50/-, per mensem. Had the respondent been treated well, by the appellant, she would not have gone to a Court of law to get maintenance. It may be pointed out that there is not an iota of evidence, on record, that the respondent was purposely residing at the house of her father in order to assist him in the management of his property. None of the witnesses of the appellant stated that the respondent was looking after the property of her father, Gopu Ram DW. 9, the father of the respondent, denied that the respondent was looking after his property. Gopu Ram stated that he was quite physically fit to manage his own affairs and that his wife and daughter-in-law assisted him in the management of his lands and other property.

10. It appears that in pursuance of the compromise Ex. DW-6/A, the respondent had gone to the house of the appellant and had lived there for some time. She had, again, to leave the house in the first week of September, J958. She had, first, approached the President of the Gram Panchayat, for effecting reconciliation between herself and the appellant. The efforts for reconciliation did not bear any fruit. The respondent, then, on 23-6-59, put in an application, in the Nyaya Panchayat, for the grant of maintenance. She had made allegations of maltreatment in the application. Ex. DW-6/B is a copy of the application. The Nyaya Panchayat had, by its order, copy Ex. DW-6/C, granted a maintenance allowance of Rs. 50/-, per mensem to the respondent. The maintenance allowance was reduced to Rs. 40/-, per mensem by a Full Bench of the Nyaya Panchayat, on an appeal by the appellant. Ex. DW-6/D is a copy of the order of the Full Bench.

A revision, by the appellant to the Sub-Divisional Judge, against the order of the Full Bench, was dismissed, vide Ex. DW-6/E. It was urged, on behalf of the appellant, that the documents Ex. DW-6/A to Ex. DW-6/E were not relevant and admissible in proceedings under Section 10, Hindu Marriage Act. The argument was that the aforesaid documents were copies of proceedings and orders, arising out of applications, under Section 488, Cr. P. C., and were not relevant and admissible in civil proceedings. In support of the above argument, reliance was placed on the following observations, made in B.N. Kashyap v. Emperor, AIR- 1945 Lah 23 (FB):--

'A finding on certain facts by a civil Court in action in personam is not relevant before the criminal Court when it is called upon to give a finding on the same facts. Similarly the finding on certain facts by the criminal Court is not relevant before the civil Court when it is called upon to give a finding on the same fads.'

11. The above observations are not at all applicable to the case in hand. The Court, in the present case, was not called upon to determine the question of maintenance, which was determined in the maintenance proceedings, The Court was to determine whether or not there was reasonable cause for the respondent's leaving the marital home. This matter was not decided in the maintenance proceedings. It is true that the orders, passed in maintenance proceedings, were not relevant under Section 40, or Section 41 or Section 42 Evidence Act. But it is not correct to say that they could not be relevant under any other provision of the Evidence Act, Under Section 43 of that Act, an order, though not relevant under Sections 40, 41 and 42, may be relevant under other sections of the Act.

In Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani. (1002) ILR 20 Cal 187 (PC) orders, passed under Section 145, Cr. P. C., were held relevant, for certain purposes, in a civil suit, under Section 13, Evidence Act, though, the orders were not relevant under Sections 40, 41 and 42. Of course, the grounds or the reasons, on which the orders were based were not relevant. In Mst. Bhagwanti v. Sadhu Ram, AIR 1961 Punj 181, a compromise, effected in proceedings, under Section 488 Cr. P. C., was taken into consideration in proceedings, relating to a petition under Section 10 (1) (a), Hindu Marriage Act.

12. The documents Ex. DW-6/A to Ex. DW-6/E were relied upon to show the conduct of the appellant towards the respondent. Those were relevant and admissible under Section 8, Evidence Act.

13. For the reasons, stated above, there does not appear to be any valid reason to reject the opinion of the learned Senior Subordinate Judge that the evidence of the witnesses, of the respondent was much more convincing and reliable than the evidence of the witnesses of the appellant.

14. The oral and documentary evidence, adduced by the respondent, established that the the respondent had applied against the appellant for the grant of maintenance in 1957, that the parties had effected a compromise in the application, according to which the appellant had undertaken to take back the respondent and her children and to maintain them, and that the appellant had turned the respondent out of his home in 1958, that the father of the respondent and other persons had approached the appellant to take back the respondent but the appellant had refused to take her back and had indicated his intention to divorce her, and that the respondent had, then, applied for maintenance which was granted by the NyayaPanchayat. The conduct of the appellant, deducible from the above circumstances, amounted to driving out the respondent from the matrimonial home. It could not, therefore be held that the respondent had left the matrimonial home without reasonable cause. The learned Senior Subordinate Judge was right in holding that the appellant had failed to prove that the respondent had deserted him.

15. In this Court, the appellant had made an offer that he was prepared to take back the respondent in his home and to maintain her. The appellant had, further, offered to make the maintenance a charge on his property or even, to transfer the property in favour of the respondent. This offer was characterised as bogus, hollow and mala fide and not acceptable, on behalf of the respondent.

16. The circumstances of the case lend support to the contention, of the respondent that the offer, made by the appellant, was not a bona fide one. The appellant had filed a petition for judicial separation. Mad the appellant been genuinely desirous of taking back the respondent in his matrimonial home, he would have filed a petition for restitution of conjugal rights and not for judicial separation. The appellant had not made the offer in the trial Court. The offer was made at a belated stage in this Court. The appellant had opposed the grant of maintenance, to the respondent, tooth and nail. He had transferred his lands, in favour of his brothers, after the order of maintenance was passed.

17. The offer, made by the appellant, to take back the respondent, did not evince any change of heart, on his part. The offer was not a sincere and genuine one. The respondent was justified in not accepting the offer. The offer, which was not bona fide one, could not obliterate the past misconduct of the appellant.

18. The result is that the appeal fails and is dismissed with costs.


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