Judgment:
R.L. Anand, J.
1. Karnail Singh (husband) has filed the present appeal and it has been directed against the judgment and decree dated 1.10.1996 passed by learned District Judge, Bathinda, who allowed the petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') filed by Sukhjit Kaur alias Bholo (wife) and passed a decree for dissolution of marriage.
2. The brief facts of the case are that Sukhjit Kaur alias Bholo filed a petition under Section 13 of the Act for dissolution of marriage against her husband Karnail Singh by inter-alia pleading that she was married to Kamail Singh about 7 years ago in Shergarhia, District Hanumangarh (Rajasthan) and after the marriage they lived together at village Kothaguru, district Bathinda. Out of the wedlock two female children were bom and both have expired. It is alleged by the petitioner-wife that soon after the marriage the appellant-husband started maltreating her on the ground that she had brought insufficient dowry, whereas her parents had spent sufficient amount at the time of marriage. The appellant-husband started making more demands of dowry which her parents could not meet. It was further alleged by the petitioner-wife that the appellant-husband was a truck driver. He is addicted to intoxicants and takes liquor daily. He put pressure upon her to bring Rs. 50,000/- from her parents to purchase a truck but her parents could not meet this illegal demand of the appellant. Thereafter she was turned out of her matrimonial home about 2-1/2 years prior to the filing of the petition in three plain cloths. She was given beatings and all the gold and valuables were retained by the appellant. About 15 days prior to the filing of the petition on 8.8.1995 a Panchayat consisting of the father of petitioner namely Darbara Singh, Bhagwan Singh, Thana Singh and Major Singh went to the appellant and requested him to rehabilitate the petitioner but he flatly refused to do so. It was also pleaded by the wife that her husband had deserted her for continuous period of more than two years prior to the filing of the petition.
3. Notice of the petition was given to the appellant-husband, who filed reply and denied the allegations. He stated that his wife gave birth to a daughter on 18.9.1993, but she died on the same day in Dr. Balbir Singh's hospital in Bhagta Bhaika. On 21.7.1994 she gave birth to another female child at Kothaguru and she was attended by Manjit Kaur, a village Dai, but that child also expired. The husband denied the allegations of cruelty and stated that he never demanded dowry or money from the petitioner-wife. Accordingto him, the brother of the petitioner died in June, 1993, but the parents of the petitioner refused to keep his widow, who then got married to some one in Jahanewali. Suba Singh, brother of the petitioner-wife was survived by two daughters. One of them was being brought up by the sister of the petitioner and the younger one namely Chhinder Kaur was brought by the petitioner, who started breast feeding her after the death of her first child. The appellant-husband tried to persuade the petitioner to send Chhinder Kaur back to her parents' house but she refused. According to the appellant, he never deserted the petitioner. Rather, she left her matrimonial home in July, 1995 and refused to return in spite of the efforts made through panchayat consisting of Bikkar Singh, Buta Singh, Balbir Singh and Natha Singh which went to her parents house on 17.9.1995. The petitioner and her parents told the panchayat that they will send the petitioner on the condition that the appellant-husband will not object of keeping of Chhinder Kaur and shall treat her like his own daughter. With this defence the appellant prayed for the dismissal of the petition.
4. From the pleadings of the parties, the learned trial Court framed the following issues :-
' 1. Whether the respondent has treated the petitioner with cruelty OPP
2. Whether the respondent has deserted the petitioner for continuous period of more than two years preceding the presentation of the petition OPP
3. Relief.'
5. The parties led evidence in support of their respective cases and on conclusion of proceedings, the, learned trial Court decided issue No. 1 in favour of the wife and against the husband-appellant. Issue No. 2 was decided against the petitioner and in favour of the present appellant and on the basis of the finding given under issue No. 1, the petition was allowed and a decree of divorce was passed and the marriage of the parties was dissolved forthwith vide impugned judgment and decree dated 1.10.1996.
6. Aggrieved by the impugned judgment and decree of the trial Court, the present appeal by the husband.
7. Notice of the appeal was given to the respondent. Repeated efforts were made for the service of the respondent-wife but to no effect. Resultantly, the appellant filed application under Order 5 Rule 20 C.P.C. for the substitution of service and the substituted service was effected in daily 'Jansatta'. The publication was effected on 10.11.1999 but in spite of the publication nobody gave the appearance on behalf of the respondent-wife. Hence she was proceeded ex parte.
8. I have heard Mr. R.K. Gupta, Advocate on behalf of the appellant and with his assistance have gone through the records of the case.
9. The leaned trial Court returned the finding on issue No. 1 in favour of respondent-wife for the reasons given in para No. 7 of the judgment, which reads as under :-
'7. The various aspects of cruelty in this case must be seen in their proper perspective. The perspective by a woman who desires to have children, but loses two daughters during child birth and gets no support emotional or otherwise, from her husband, who keeps pressuring her for money. Loss of the two children compound by demands of dowry and over and above maltreatment by the respondent of the petition constitute sufficient cruelty and apprehension in the mind of the petitioner that her life would not be safe with the respondent.
Charge regarding demand of dowry, maltreatment and demand of Rs. 50,000/- by the respondent, as contained in the pleadings of the petitioner, is supported by her evidence. Therefore, the matrimonial offence of cruelty stands established and issue No. 1 is decided in favour of the petitioner.'
10. The learned counsel appearing on behalf of the appellant submitted that there is no cogent evidence at all to suggest that the appellant ever treated the respondent-wife with cruelty. He submitted that there is no evidence coming from any independent source that the appellant ever demanded a sum of Rs. 50,000/- from the respondent-wife or her father in order to purchase a truck.
11. There is merit in the contentions raised by the learned counsel for the appellant. If a huge demand of Rs. 50,000/- was ever made from the respondent or her father, in such a situation the father of the respondent was the first person to convene a panchayat or he would have reported the matter to the panchayat or police with regard to illegal demand of dowry or additional amount of Rs. 50,000/-. In this regard there is a bald statement of respondent Sukhjit Kaur which is supported by her father Darbara Singh. The respondent has not examined any independent person to suggest that the appellant ever made a demand of Rs. 50,000/- or that Darbara Singh, father of the respondent-wife was in a position to pay Rs. 50,000/- to the appellant. These type of cases are to be decided on probabilities. It is the common case of the parties that Sukhjit Kaur gave birth to two daughters, but unfortunately both the daughters have expired. It is further proved on the record that the brother of the respondent-wife had expired and he had left behind him two daughters. Since respondent Sukhjit Kaur was without any child, she might have adopted the daughter of her brother and this act of her must not be liked by the appellant. Therefore, Sukhjit Kaur had the probable cause to withdraw herself from the company of the appellant. The marriage in this case survived for 7 years before the filing of the petition under Section 13 of the Act. Had the appellant made a demand of Rs. 50,000/-or treated the respondent with cruelty, such demand could have originated just after the marriage or after a reasonable time of the marriage. To my mind the alleged ground of cruelty is a fabricated affair. I do not agree with the finding of the learned trial Court on issue No. 1 and the same is hereby reversed and decideissue No. 1 in favour of the appellant and against the respondent.
In this view of the matter, I accept this appeal, set aside the judgment and decree of the learned trial Court and dismiss the petition under Section 13 of the Act filed by Sukhjit Kaur. There shall be no order as to costs.
12. Appeal allowed.