S.S. Saron, J.
1. This is wife's appeal against the judgment and decree dated 2.5.1991 passed by the learned Additional District Judge, Hoshiarpur, whereby the petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) filed by the appellant for the grant of decree of divorce has been dismissed.
2. The appellant Harjit Kaur filed a petition under Section 13 of the Act for the grant of divorce on the ground of cruelty and desertion. The marriage between the parties was solemnized at village Mandialan, Tehsil and District Hoshiarpur, according to Hindu religious rites and ceremonies in the month of November 1975. After marriage, the parties lived in their matrimonial home at village Bassi Daulat Khan, Tehsil and district Hoshiarpur, for about three years. No child was born out of the wedlock between the parties. The appellant in her petition alleges that the respondent is in the habit of taking excessive liquor and has always treated her with cruelty. He used to beat her without any reason. After about three years, the relations between the parties became strained and she was turned out of the matrimonial home in bare three clothes with the comments that she was not able to bear a child. Thereafter the petitioner remained in the house of her parents for about 3/4 months. The father of the appellant convened a 'Khangi' (family) panchayat, which went to the house of the respondent and after efforts and persuasion, the appellant was rehabilitated in her matrimonial home. The parties then shifted their residence in Mohalla Fatehgarh, District Hoshiarpur, in a rented house and they remained and cohabited there uptil 1982. The respondent then went to Bahrain and remained there upto 30.1.1986. When he came back he stayed at the matrimonial home for a period of three months. During this period also, he ill treated the appellant by taking liquor daily. He always compelled the appellant to sign divorce papers to which she did not agree. She was not given food for a couple of days. Then the respondent again went to Bahrain and the never sent any maintenance to the appellant and nor did he write any letter to her. The appellant tolerated the misbehaviour of the respondent with a hope that some better sense would prevail upon him. The respondent it is alleged has treated the appellant with grave cruelty and he has also deserted her for more than two years before the presentation of the petition and hence she prayed for the grant of divorce.
3. The respondent filed his written statement in which the material particulars with regard to the factum of marriage, place of marriage and the statuts of the parties before and after marriage, was admitted. It is stated that the appellant lived with the respondent upto 29.4.1987. He on the asking of the appellant and her father lived at Mohala Fatehgarh in a rented house. Besides, they also lived at Sutehri Road, Hoshiarpur, where the appellant shifted out in the absence of the respondent. The other allegations are denied. It is denied that the respondent is in the habit of taking liquor or that he ever beat the appellant. Rather from the time of marriage, the appellant was wanting the respondent to live separately from his parents, for which he did not agree. Therefore, the appellant went to her parents house in the year 1978. After 3/4 months when she did not come back, the respondent went to bring her back and she accompanied him only when he agreed to live separately. He took a portion of house in Mohalla Fatehgarh, Hoshiarpur on rent and they lived there for about four years i.e. upto 1982. It has been denied that after three years of the marriage, the respondent turned out the appellant in three clothes with the remarks that she was not fit to bear a child. The allegation that the father of the appellant brought a panchayat to the house of the respondent to persuade him to rehabilitate the appellant, has also been denied. It is stated that he had gone to Bahrain for the first time on 24.8.1982 and came back on 30.1.1987 and not on 30.1.1986 as alleged. While at Bahrain, he had been regularly sending money to the appellant for which she had opened savings account No. 28970 with the State Bank of India, Hoshiarpur. The other amounts sent by the respondent to the appellant are entered in the aforesaid saving back account. In the absence of the respondent, the appellant shifted to the house at Sutehri Road Hoshiarpur. The appellant and the respondent happily live there for three months and during this period there was no mal-treatment on the part of the respondent towards the appellant. It is averred that he never asked the appellant to sign any divorce papers and he never wanted any divorce. However, the respondent after living with the appellant for three months again went to Barhain on 27.4.1982. From there he was having regular correspondence with the appellant and had been continuously sending money and clothes which fact is borne out by two money order receipts dated 5.5.1987 and 20.5.1987 and entries in the afore-referred saving bank account. The last letter received by the respondent from the appellant from Bahrain is dated 30.10.1988. In this manner the allegation of cruelty and desertion have been denied. The respondent came back from Bahrain on 6.4.1990 and on reaching Hoshiarpur, he came to know that the appellant had gone to her parental house in village Mandialan in January/February 1990 and that while leaving the house, she took with her all the household articles. The respondent took his cousin brother Daulat Ram son of Sarwan Ram and Mohinder Singh, Sarpanch of village Bassi Daulat Khan to the house of the appellant in the first week of May 1990 to bring the appellant. There the appellant and her parents point blank refused to send the appellant.
4. The appellant filed replication to the written statement in which the allegations made in the written statement were denied and those of the petition were reiterated.
5. On the basis of the above pleadings, the following issues were framed by the learned Additional District Judge, Hoshiarpur:-
1. Whether the respondent treated the petitioner with cruelty and deserted her for the stipulated period? OPP
2. Relief.
6. The learned trial Court in pursuance of its impugned judgment and decree decided both the issues against the appellant and dismissed her petition. It is against this judgment and decree that the present appeal has been filed.
7. I have heard Shri Sudeep Mahajan, Advocate, learned counsel for the appellant. None has put in appearance on behalf of the respondent. With the assistance of the learned counsel for the appellant, I have gone through the records of the case.
8. The learned counsel for the appellant has stated that the respondent has maltreated and has subjected the appellant to cruelty within the meaning of Section 13(1)(i-a) of the Act. Besides, he has deserted her for a continuous period of not less than two years immediately proceeding the presentation of the petition within the meaning of Section 13(1)(i-b) of the Act. It is also contended that there has been a mis-reading of the evidence on record by the learned Court below which warrants the acceptance of the appeal and setting aside the impugned judgment and decree.
9. In support of her case, the appellant Smt. Harjit Kaur appeared as her own witness as PW1. Besides, Tarsem Lal Sarpanch, village Mandialan appeared as PW2 and Garib Dass, who is resident of Mohalla Fatehgarh, Hoshiarpur and is the intermediary to the marriage between the parties appeared as PW3.
10. The respondent in support of his case appeared as his own witness as RW2. He produced Shri Mohinder Singh Sarpanch of village Bassi Daulat Khan as RW1. Besides, Gurparkash, Clerk, State Bank of India, Hoshiarpur as RW3 and closed his evidence.
11. The question that is to be seen is whether the respondent has after the solemnization of the marriage treated the appellant with cruelty. Besides, whether the respondent has deserted the appellant for continuous period of not less than two years immediately preceding the presentation of the petition.
12. From the facts of the case, the position is that the marriage between the parties was solemnized in November 1975. The parties lived together till 1978 when the appellant left the matrimonial home or as the appellant says driven out. This aspect of withdrawing from the matrimonial home would not amount to cruelty as admittedly the parties thereafter resumed cohabitation. Therefore, any act which can be said to amount to cruelty stood condoned. It is not in dispute that after 1978 the parties lived together in Mohalla Fatehgarh, District Hoshiarpur, Therefore, the initial separation in the year 1978 is inconsequential. It is on 24.8.1982 that the respondent left for Bahrain and he returned to India on 30.1.1987. In this manner he stayed away from the appellant for four and a half years. He thereafter lived with the appellant for about four months and then again went to Bahrain on 27.4.1987 and returned to India on 6.4.1990 i.e. after a period of about three years. The present petition for divorce was instituted in the District Court at Hoshiarpur on 3.2.1990.
13. Insofar as the allegations of cruelty are concerned, it is to be established by the appellant that the conduct of the respondent has been of such a character so as to cause danger to life, limb or health (physical or mental) so as to give rise to a reasonable apprehension of such a danger. This has been accepted to be the meaning of cruelty and has been held by the Court to be rather difficult to define. It depends on facts and circumstances of each case which is to be assessed bearing in mind the social status of the parties, their custom and traditions, their educational level and the environment in which they live.
14. It has come in the evidence of the Mohinder Singh Sarpanch RW1 that the respondent is a labourer and he used to work in his fields. Besides, in the statement of Garib Dass PW3, it has come on record that the appellant used to get scribed her letters from the daughter of Kasturi Lal of Mohalla Fatehgarh, Hoshiarpur. Therefore, the parties are illiterate or at the most semiliterate. They live in rural area of Hoshiarpur district and the respondent had been going to Bahrain to do work. He went to Bahrain for four and half years in the first instance and for three years in the second stint. The allegations of maltreatment and taking liquor have been made by the appellant. However, the same have been denied by the respondent. Though there is no reason to disbelieve the wife that the husband was taking liquor but nothing has come on record to show that his drunkenness was distressing or was not endurable. There is no material on record to show that drunkenness was accompanied by insults, abuses or violence. Therefore, drunkenness per se in the circumstances of the case does not amount to cruelty. Taking of excessive liquor no doubt is a disgusting conduct but is not independent ground, which alone or by itself amounts to cruelty. The evidence that has been produced on the record shows mere bald allegations of the appellant being subjected to maltreatment at the hands of the respondent. Mere general allegations have been made without any substance. The allegations appear to be in the normal wear and tear of human life. The letter Ex.P1 and P2 on which reliance has been placed by the appellant, also do not show any conduct on the part of the respondent which can be said to amount to cruelty towards the appellant. Therefore, the appellant has not suffered such threat to her life or that danger was caused to her life, limb or health (physical or mental) so as to give rise to a reasonable apprehension that it would be dangerous to live with the respondent. In this view of the matter, the findings of the learned Additional District Judge, that cruelty is not established is correct.
15. The next question that is to be seen is whether the respondent has deserted the appellant for a continuous period of two years before the presentation of the petition. The learned trial Court decided both the questions together as one issue had been framed. However, desertion is an independent ground for matrimonial relief in terms of Section 13(1)(i-b) of the act. There is no consistent definition of 'desertion' under the Act. It merely 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 wilful neglect by the other party to the marriage. The Hon'ble Supreme Court in the case of Adhydatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002)1 Supreme Court Cases 308 while dealing with desertion held as follows:-
'7. 'Desertion' in the context of matrimonial law represents a legal concept. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end - (animus deserendi);
3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;
The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the explanation. The explanation has widened the definition of desertion to include 'wilful neglect' of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, 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 deserendi). 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. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.'
16. It is in terms of the above dictum of the Hon'ble Apex Court that the question of desertions is to be examined in the circumstances of the present case. The fact of separation (factum desernedi) is established in this case. The parties are admittedly living separately. The learned District Judge has however held that since the parties exchanged letters and the appellant received amount from her husband atleast upto 30.9.1988, therefore, when the petition was filed on 3.2.1990, it cannot be said that the appellant had been deserted by her husband for a period of not less than two years. Besides, he has referred to the letter Mark C, which is dated 3.10.1988, where the appellant acknowledged the receipt of Rs. 10,000/- from her husband. In these circumstances, it was held that desertion has not been proved. Applying the test as referred to by the Hon'ble Supreme Court in Adhyatma Bhattar Alwar's case (supra), it is to be seen in addition to the fact of there being separation between the parties, that there is an intention to bring the cohabitation permanently to an end (animus deserendi). It may be noticed that in the circumstances of the case that the husband has been living separately for almost seven and half years except for a brief spell of three months from 3.1.1987 to 27.4.19S7 i.e. the period when he came from Bahrain and went back. The writing of letter dated 3.10.1988 Mark C, which in any case is not proved on record by exhibiting it, would not condone the act of desertion. The sending of money periodically and writing a letter would not be a substitute for having the company of the spouse. There is indeed loss of consortium for the appellant in respect of her husband. It is established on record that the respondent husband has been living away from his wife for a period of seven and half years except for a brief spell of three months. Even during the pendency of this appeal in this Court, the husband despite being served for 28.5.2001 has not put in appearance to contest the appeal. Therefore, the two essential conditions the factum of separation and to bring cohabitation permanently to an end stand established in the case. The two elements essential as far as deserted spouse is concerned i.e. absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention are to be seen. The respondent has been staying away for almost seven and half years continuously does show such conduct on his part to give reasonable cause to the appellant that he is staying away from her and this is obviously without her consent. Therefore, I am unable to agree with the observations of the learned trial Court that there had not been separation for continuous period of two years before the filing of the petition. As already noticed above, the petition was filed on 3,2.1990 and soon thereafter on 6.4.1990 the respondent returns and is stated to have taken a panchayat comprising of Mohinder Singh Sarpanch and Daulat Ram son of Sarwan Ram to the parental house of the appellant in the first week of May 1990, This is obviously after the filing of the petition for divorce. The continuous absence of the respondent from his matrimonial home and mere fact that he sent money and written a letter, which is not proved would not condone the fact of desertion. There is an intention on his part to bring the cohabitation permanently to an end.
17. Therefore, the ground of desertion stands established in the facts and circumstances of the case. However, in the peculiar circumstances of the case and keeping in view the fact that the respondent has not put in appearance, it would not be proper to dissolve the marriage by a decree of divorce. Therefore, in terms of Section 13-A of the Act, the alternate relief of passing a decree for judicial separation would be more proper, so that in case there is chance of saving the marriage that possibility is not out of reach. Therefore, instead of granting the decree for divorce, it would be more appropriate to pass a decree for judicial separation in terms of Section 10 of the Act.
Keeping in view above facts and circumstances this appeal is partly allowed and adecree for judicial separation of marriage between the parties is passed. In the circumstances, there shall be no order as to costs.