FAO No.754 of 2014 (O&M) {1} IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.754 of 2014 (O&M) Date of decision:06.03.2014 Smt. Rajni .....Appellant Versus Rakesh .....Respondent CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MS. JUSTICE NAVITA SINGH Present: Mr. Ramender Chauhan, Advocate for the appellant. S.S. SARON, J.
1. The appeal has been filed by Smt. Rajni-appellant-wife against the judgment and decree dated 8.1.2014 passed by District Judge, Family Court, Bhiwani, whereby petition of the appellant seeking dissolution of marriage between the parties by a decree of divorce on the ground of cruelty and desertion as envisaged by the provisions of Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 (`Act' for short), has been dismissed.
2. The marriage between the parties was solemnized at Bhiwani according to Hindu rites and ceremonies on 8.12.2010. From the marriage, the parties have no issue. According to the appellant, her Singh Ishwar 2014.03.19 01:12 I attest to the accuracy of this order High Court Chandigarh FAO No.754 of 2014 (O&M) {2} parents spent about Rs.6 lacs in the marriage. Besides, gold and silver ornaments, valuable clothes, domestic articles and electronic items were given to her by her parents. However, the respondent-husband and his family members were dissatisfied with the dowry and they taunted her for brining inadequate dowry. A demand for an Alto car, besides Rs.2 lacs in cash, gold chain and gold ring was raised. It is alleged that the appellant was periodically given a beating by the respondent and his family members. An application was moved before Superintendent of Police, Bhiwani on 8.8.2011 against the respondent and his family members. She was ousted from her matrimonial home on 16.3.2011. The appellant also filed a petition under Section 125 of the Code of Criminal Procedure seeking monthly maintenance, besides she has also filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Therefore, she prayed for grant of a decree of divorce.
3. The respondent-husband contested the petition. He denied the allegations for demand of dowry. It is alleged that the behaviour of the appellant from the very inception of the marriage was abnormal towards the respondent and his family members. The respondent performed his obligations as a good husband and provided all amenities and facilities to his wife. In the absence of the respondent and his family members, Singh Ishwar 2014.03.19 01:12 I attest to the accuracy of this order High Court Chandigarh FAO No.754 of 2014 (O&M) {3} Deepak, brother of the appellant, came to the house of the respondent on 18.3.2011 and took the appellant with him to her parental home with all the valuable clothes, gold and silver jewellery. The respondent went to the parental home of the appellant three/four times to bring her with him, but the appellant and her parents flatly refused. The respondent convened a panchayat to settle the matter but parents of the appellant flatly refused to send her with him. They threatened that they would involve the respondent and his family members in a criminal case. It is stated that the appellant herself had withdrawn from the society of the respondent. It was prayed that the petition of the appellant be dismissed.
4. From the pleadings of the parties, learned trial Court framed the following issues: - 1. Whether the petitioner (now appellant) is entitled to decree of divorce on the grounds of cruelty and desertion, as alleged?. OPP2 Whether the petition of the petitioner (now appellant) is not maintainable in the present form?. OPR3 Whether the petitioner (now appellant) has no cause of action or locus standi to file the present petition?. OPR4 Whether the petitioner (now appellant) is estopped by his (sic.-her) own act and conduct from filing the present petition?. OPR5 Relief.
5. After considering the evidence and material on record, the Singh Ishwar 2014.03.19 01:12 I attest to the accuracy of this order High Court Chandigarh FAO No.754 of 2014 (O&M) {4} learned trial Court held that the ground of desertion was not made out inasmuch as the marriage was solemnized on 8.12.2010 and according to the appellant, the respondent had deserted her on 16.3.2011. It was observed that the petition for divorce had been filed on 31.3.2012, i.e. before the expiry of mandatory period of two years. Accordingly, it was held that divorce could not be granted on the ground of desertion. Indeed, the petition for divorce on the ground of desertion could not have been filed before a period of two years had elapsed from the date of desertion till presentation of the petition for divorce. Section 13 (1) (ib) of the Act, envisages that a marriage may be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. In the present case, the mandatory period of two years immediately preceding the presentation of the petition has indeed not elapsed.
6. Insofar as divorce on the ground of cruelty is concerned, it was held that the incidents illustrated by the appellant-wife were not more serious than ordinary wear and tear of married life. In fact she stated that she wanted divorce after taking a sum of Rs.6 lacs from the respondent. She had also alleged that a criminal case under Sections 498-A and 406 Singh Ishwar 2014.03.19 01:12 I attest to the accuracy of this order High Court Chandigarh FAO No.754 of 2014 (O&M) {5} Indian Penal Code was lodged against the respondent and his family members. The police had recovered the dowry articles except her jewellery. The respondent had also filed a petition under Section 9 of the Act seeking restitution of conjugal rights but she had flatly refused to accompany the respondent without giving any reasons. Narender Singh, PW2, father of the appellant also deposed that they were ready to compromise the matter with the respondent and his family members if they were ready to pay Rs.6 lacs to them. It was observed that the intention of the appellant and her father was only to receive an amount of Rs.6 lacs and the appellant herself did not want to live with her husband. The seeking of divorce on the ground of cruelty was held to be not proved. It was held that the appellant-wife had not placed any material on record to show that she was subjected to such conduct which is of such a character so as to cause danger to her life, limb or health giving rise to a reasonable apprehension that it would be dangerous for her to live with the respondent.
7. Learned counsel for the appellant has not been able to assail the findings recorded by the learned trial court. It is, however, submitted by learned counsel for the appellant that in fact the petition for divorce on the ground of desertion was premature and the cause of action has Singh Ishwar 2014.03.19 01:12 I attest to the accuracy of this order High Court Chandigarh FAO No.754 of 2014 (O&M) {6} accrued to the appellant after the expiry of two years from the date of desertion to file a petition for divorce on the ground of desertion. Such a petition ought to have been filed after the cause of action accrued in favour of the appellant. Therefore, it is prayed that the appellant may be allowed to withdraw the appeal so as to file a fresh petition on a separate and distinct cause of action which has now accrued to her.
8. In the circumstances, the appeal is dismissed as withdrawn so as to enable the appellant to file a fresh petition in accordance with law. (S.S. SARON) JUDGE (NAVITA SINGH) JUDGE0603.2014 ishwar Singh Ishwar 2014.03.19 01:12 I attest to the accuracy of this order High Court Chandigarh