G.C. Garg, J.
1. This is a wife's appeal. The respondent-husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce on the ground of desertion. The marriage between the parties took place on May 8, 1977. The couple was not blessed with any child. The husband in order to prove desertion, has alleged that right from the marriage, the wife adopted a cold response to the matrimonial obligations as also her relations with him despite his efforts to adjust her in the married life. She would, most of the time remain at her parent's house. She would create scenes in order to humiliate him and his family members. She was operated upon for tumour of the uterus by Dr. Devi at Chandigarh in a private Nursing Home in the year 1982. The wife called her father who gave a threat to the husband that he would not allow her daughter to continue to live with him. Her father lodged a complaint with the police, where the matter was compromised and he consequently look his daughter to Delhi on September 16, 1982 along with articles of Istri-dhan, jewellery and other belongings. The wife thus, left the matrimonial home not only against the wishes of her husband, but despite his persistent resistance. Thereafter she never visited her matrimonial home. It was thus pleaded that the wife left the matrimonial home intentionally and deliberately, and for good. She is living away from her husband for a continuous period of over two years and has thus deserted her husband.
2. The husband has further alleged in the divorce petition that he filed a divorce petition on the ground of cruelty but it was got dismissed in default. At that time, the ground of desertion was not available to him since the period of two years had not yet elapsed. It was also mentioned that in proceeding under Section 125 of the Code of Criminal Procedure initiated by the wife, in the Court of Metropolitan Magistrate, Delhi, she was awarded maintenance.
3. Prayer of the husband seeking amendment of the divorce petition by including the ground of cruelty as well, as a ground for divorce was, however, declined by order dated September 2, 1987.
4. The petition for divorce was resisted by the wife by contending that the dismissal of the earlier petition by the District Judge, Ambala was a bar to the maintainability of the present petition. On merit it was contended that the wife has not deserted the husband but she has been turned out of the house after insulting and humiliating her. She also alleged beating at the hands of her husband and mother-in-law for pressing her to sign application for divorce by mutual consent. She, however, admitted having been operated upon by Dr. Devi on August 6, 1982 and that her father visited Chandigarh on September 1, 1982 after he came to India in August, 1982. It is further the case of the wife that her father stayed at Chandigarh for 2/3 days at the residence of Mr. C.L. Gulati, his relation, and that on September 3, 1982, the husband raised a demand of Rs. 5,000/- from her father to meet the expenses incurred by him on her medical treatment, but when her father refused to oblige her husband, he asked her father to take her along with to which he did not agree. Her father left for Delhi on September 4, 1982. She was ultimately turned out of the house on September 10, 1982 after beating her mercilessly and obtaining signatures on two blank paper. The husband informed Mr. Ashok Bhasin on telephone about the condition of the wife being serious and sent for her father from Delhi, who came to Chandigarh on September 11, 1982 along with Basant Kaur and Balbir Singh. The husband was persuaded to rehabilitate his wife but he declined to do so. Some articles belonging to the wife were delivered by her husband at the residence of Mr. Chopra and she was compelled to take the same. It is the further case of the wife that the jewellery articles were to be returned on September 12, 1982 but her husband did not return the same and rather lodged a report with the police station on September 14, 1982. The factum of the Metropolitan Magistrate, Delhi having awarded maintenance allowance under Section 125 of the Code of Criminal Procedure due to the above desertion by her husband was admitted. The husband controverted the allegations made by the wife and reiterated the allegations made by him in the divorce petition by filing a replication.
5. As a result of the above pleadings, the following issues were framed :-
1. Whether respondent has deserted the petitioner for a continuous period of two years immediately before filing of the present petition? OPP
2 Relief.
In the month of March, 1987, the appellant-wife moved an application under Order 14 Rule 5 read with Section 151 of the Code of Civil Procedure requesting for framing of additional issues arising out of the preliminary objections raised by her in the written statement. This application was allowed vide order dated April 1, 1987 and the following additional issues were framed :-
1-A Whether the present petition for divorce is barred under Order 2 Rule 2 C.P.C. OPR
1-B Whether the present divorce petition is barred because of the dismissal of the previous divorce petition of the petitioner for non-prosecution? OPR
6. The Matrimonial Court, after considering the evidence led by the parties, allowed the divorce petition and dissolved the marriage between the parties by a decree of divorce on the ground of desertion. The parties were, however, left to bear their own costs. Hence this appeal at the instance of the wife.
7. Learned counsel for the petition at the outset, argued that though additional issues 1-A and 1-B were framed on the pleadings of the wife by order dated April 1, 1987, yet the learned District Judge while granting a decree of divorce in favour of the husband returned no finding on these issues. In the circumstances it was submitted that the judgment and decree passed by the learned District Judge be set aside and the case remitted back to the District Judge for disposal in accordance with law after returning a finding on the additional issues as well. On merits of the additional issues, the learned counsel referred to Exhibit Rule 1, the divorce petition as also Exhibit Rule 3, the order passed thereon by the learned District Judge, Ambala dismissing the divorce petition for non-prosecution. Learned counsel also referred to the statement of the wife PW-1 to show that the divorce petition filed by her husband at Ambala had been dismissed and that she had been granted maintenance in proceedings under Section 125 of the Code by the Metropolitan Magistrate at Delhi on the consent of her husband. The contention of the learned counsel for the petitioner is without merit. There is no manner of doubt that additional issues had been framed and no firm finding has been returned by the learned District Judge while granting a decree of divorce in favour of the husband on the ground of desertion but a reading of the judgment under appeal, however, shows that the District Judge was alive to the situation, otherwise there was no occasion for him to say that the mere filing of the divorce petition by him at Ambala and getting it dismissed in default are of no consequence, especially when two years' period had not elapsed when the petition for divorce was filed before the learned District Judge at Ambala. Anyway, this does not vitiate the decree granted by the District Judge. Learned counsel for the appellant could not refer to any evidence on record on the basis of which a conclusion could be arrived at that the present petition for divorce is barred either by the provision of Order 2 Rule 2 or on account of the dismissal of the previous divorce petition for non-prosecution. The earlier petition Exhibit Rule 1 had been filed only on the ground of cruelty and the ground of desertion was then not available to the petitioner since the period of two years, as required by the provisions of Section 13 of the Hindu Marriage Act (for short 'the Act') for seeking divorce on the ground of desertion had till then not elapsed. If a ground for seeking divorce was not available when the husband filed the earlier petition, it cannot be successfully argued that the present petition seeking divorce on the ground of desertion would be barred either under the provisions of Order 2 Rule 2 or under any other provisions of law. The only effect in my view is that the petitioner is debarred to seek divorce on the ground of cruelty which ground has not been pressed into service in the present petition. If a ground was not available earlier, the question of pleading the said ground at that time, did not arise. This being the position, it cannot be said that the present petition seeking divorce on the ground of desertion is barred under any provision of law. The filing of the divorce petition on the ground of cruelty and the dismissal thereof is not disputed by either of the parties. The only question is the effect thereof. In the circumstances, I see no reason to set aside the decree passed by the learned District Judge, only on the ground that the learned District Judge failed to record findings on additional issues 1-A and 1-B, and remit the case for disposal afresh in accordance with law. As noticed above, I have myself dealt with the submission of the learned counsel for the appellant on the two additional issues and find no merit therein.
8. Faced with the above situation, learned counsel for the appellant on merits, vehemently contended that the learned District Judge erred in granting the petition of the husband and in dissolving the marriage between the parties by a decree of divorce on the ground of desertion. Learned counsel submitted that in order to prove desertion and to claim the relief on that basis, the spouse claiming such relief is duty bound to discharge the burden which lay on him to prove desertion. Referring to the statement of the husband wherein he stated that he is not prepared to keep her and also to statement Exhibit C.1 made before the Metropolitan Magistrate, Delhi, learned counsel submitted that it can safely be concluded that the husband himself was not prepared to keep the wife and consequently, it ought to have been held that he is not entitled to a decree of divorce on the ground of desertion. In order to demonstrate that the burden to prove desertion lay on the husband and that what really desertion is, learned counsel made reference to Bipinchandra Jaisingbai Shah v. Prabhavati, A.I.R. 1957 S.C. 176, Smt. Rohini Kumari v. Narendra Singh, A.I.R. 1972 S.C. 459, Uma Wanti v. Ram Dayal, 1986 Marriage Law Journal, 86 and Amarjit Kaur v. Babu Singh, 1989(1) H.L.R. 632. The learned counsel also submitted that the wife is even now prepared to live with the husband and it has not been proved as to how and in what manner she deserted the husband and is living apart. After hearing the learned counsel for the parties, the submission made by the learned counsel for the appellant lacks conviction.
9. There is admittedly no dispute between the parties that the wife is living separately from her husband since the middle of September 1982. Compromise Exhibit P.1 dated September 11, 1982 is a very material document in this case. It is signed not only by the wife and her father, M.S. Sethi, but by the husband and a witness as well. This document was exhibited after it was admitted by the wife on January 14, 1987. It was in the month of September 1982 when the father of the wife visited Chandigarh that this compromise was arrived at between the parties. The articles of Istri-dhan were returned by the husband to the wife at the residence of Mr. Chopra, who signed Exhibit P.1 as a witness and Were admitted to have been received by the wife. Not only this, the wife also received her passport, certificates and fixed deposit receipts. This compromise clearly records that the articles of jewellery will be returned lateron. This document clearly brings to the fore that the parties at that point of time had decided to live separately and the articles of Istri-dhan had been taken by the wife whereas the jewellery yet remained to be returned which was to be returned the next day. Thus, in the context, the allegation of the wife that she had been mal-treated, beaten and turned out of the house cannot be accepted in the presence of letters Exhibits P.2 to P.17 exchanged either between the parties or their relations, which show that the parties had cordial relations. It is also not made out by the appellant-wife that she had been turned out of the house on account of not meeting the demand of dowry as nothing has been brought out that her parents gave any other articles of dowry during the period from March 1977 till the year 1982. It seems that the dispute between the parties arose after the wife developed Gynae problem in the year 1982 and she was operated upon in August, 1982 by Dr. Devi for uterus tumour. It is only on account of this operation that the appellant-wife ultimately left the matrimonial home in September, 1982 after signing compromise Exhibit P.1 and taking possession of the articles of her Istri-dhan which had been returned to her in the presence of her father at the residence of Mr. Chopra, by the respondent-husband. If the wife had been turned out of the house, this compromise Exhibit P.1 would have never come into being and the question of her accepting the articles of dowry would not have arisen. The execution of the compromise is not in doubt, having been admitted by the parties, though the articles of the jewellery remained to be returned which were to be returned on the next day which turned out to be a holiday. The stand of the husband about compromise Exhibit P.1 is also supported by Shri N.K. Nanda, Advocate, who attended the marriage of the parties.
10. In the written statement filed by the wife, the only allegation is that her husband demanded Rs. 5,000/- from her father on account of expenses which he had incurred on her medical treatment. No incidence of beating could be culled out from the entire written statement and it is only stated that she was being mal-treated. In her statement as RW-1, she has re-iterated the demand of Rs. 5000/-. Similar is the statement regarding demand of Rs. 5000/- by Manohar Singh RW-2, her father. The wife in her statement, has further stated that her husband was insisting that her father owned a plot at Mohali and her brother at Panchkula and that they should give one of these plots to him. She was given a beating a few days before her parents left for Canada on the plea that her father should pay him rupees two lacs which he received on the eve of his retirement but this allegation is neither in the written statement nor was put to the husband when he appeared as his own witness. Again the witness of the document Exhibit P.1 who is living in Chandigarh, has not appeared in the witness box to support the allegation of desertion made by the wife. All this shows that the parties to the marriage took a decision for themselves to live separately and to put to an end to the matrimonial alliance and with an intention not to resume co-habitation. This is precisely what has been concluded by the learned District Judge while, referring to the evidence brought on the record. It is, thus, clear to me that there is no escape from the conclusion that the wife deserted the husband for a period of more than two years without any reasonable cause and of her own sweet will. While parting company, she not only took away articles of her Istri-dhan but also her passport and Fixed Deposit Receipts, and certificates etc. Jewellery could not, however be returned to her as September 12, 1982 turned out to be a holiday on which day it was to be returned and thereafter she never seems to have raised a demand for the same. The wife even closed her account in the Bank of India on September 15, 1982. In the circumstances it is not a case where she was thrown out of the house after giving her a beating or mal-treating her and with a view not to rehabilitate her in the matrimonial home.
11. The above conclusion also finds support from the fact that the husband got the wife operated upon from a well known doctor (Dr. Devi) in a private Nursing Home. If the things had been otherwise, he would not have spent any amount on her treatment and that too, in the absence of her parents. The allegation of demand of Rs. 5000/- from the father of the wife seems to me to be a made-up affair. The wife while appearing as her own witness before the Metropolitan Magistrate, Delhi way back in September, 1983 in her examination-in-chief stated that she was not prepared to reside with the respondent-husband. The husband while appearing as AW-1 in this case categorically stated that the wife left the matrimonial home in September, 1982 for good after quarrelling with him and has not returned since then. In cross-examination, an effort is made to suggest that the husband was living with one Jaspal Kaur, one of the daughters of his maternal uncle, though this was not the allegation in the written statement. During the pendency of this appeal, this allegation is highlighted in miscellaneous applications seeking payment of maintenance pendente lite. However, during the course of arguments, it was alleged that the husband is living with Jaspal Kaur and has got a son from her. These are only allegations and in no way help the appellant-wife, the same having not been put to trial by seeking amendment of the pleadings. No notice therefore, can be taken of the same for the purposes of decision of the appeal.
12. In Kashmir Kaur v. Prem Singh, 1990(1) All India Hindu Law Reporter 461, the husband was granted a decree of divorce in a petition filed by him in somewhat similar circumstances. The wife had taken away her articles from the matrimonial home after executing a document and further gave a statement in proceedings under Section 125 Cr. P.C. launched by her against her husband to the effect that she would not return to the matrimonial home.
13. There is no quarrel with the propositions of law laid down in Bipinchandra Jaisingbai Shah's, Smt. Rohini Kumar's, Uma Wanti's and Amarjit Kuar's cases, noticed above, as it is undoubtedly for the spouse seeking divorce on the ground of desertion to prove desertion for a continuous period of two years and upwards, and that there was an intention on the part of the deserting spouse to put an end to the matrimonial obligation without the consent of the other. Married life is based on mutual obligations and whether a spouse has deserted the other without the other's consent with a view to put an end to the matrimonial obligation for ever has to be gathered from the facts pleaded and the evidence led, having regard to the normal wear and tear of married life.
14. Viewed in the above perspective and having regard to the evidence led, especially the writing Exhibit P.1, no fault can be found with the finding arrived at by the learned District Judge, the husband having already made out a case of desertion, entitling him to a decree of divorce on that ground. No good cause has been shown by the wife for not returning to the matrimonial home. She is living away from her husband now for a period of over 11-1/2 years.
15. Civil Misc. application No. 10804-M of 1993 was moved by the wife under Section 340 Cr. P.C. read with Sections 191, 192 and 193 of the Indian Penal Code for punishing him for fabrication false evidence in the shape of reply to the application demanding maintenance pendente lite. It is alleged that the husband filed reply to the application in the shape of affidavit by intentionally and deliberately stating that some of the payments demanded had been made through demand drafts, which in fact had been handed over. It is not necessary to go into this matter as the husband offered to pay all the arrears of maintenance pendente lite before the start of hearing and even on a date earlier thereto, but the wife, present in Court refused to accept the amount. In the above situation, I see no reason to go further into the matter and leave it there.
16. As a result of the above, the appeal as also the Criminal Misc. application are dismissed. The parties are left to bear their own costs.