Judgment:
S.D. Anand, J.
1. The appellant-wife is in appeal against the impugned judgment and decree vide which the learned Trial Court, while allowing a petition under Section 13(i)(ib) of the Hindu Marriage Act (hereinafter referred to as 'the Act') filed by the respondent-husband, ordered dissolution of their marriage by a decree of divorce.
2. The marriage between the parties was solemnised on 7.7.1992. Thereafter, the parties cohabited as husband and wife but no issue was born out of their union. Immediately after the marriage, the appellant-wife started insisting that the respondent should separate in mess and residence from his natal family which otherwise consists of a widowed mother aged about 90 years and an unmarried sister who was dependent upon the respondent. In view of the circumstances, the respondent expressed his inability to concede the demand made by the appellant-wife who thereafter started cursing herself. It was followed up by an attitude of neglect on the part of the appellant-wife who was always on the look out to create a scene on one pretext or the other. When the respondent-husband tried to persuade the appellant to conduct herself with dignity, she held out a threat that she would leave the matrimonial house. Ultimately, the appellant-wife left the matrimonial house in the month of September, 1994 and stated residing along with her brother. A number of Panchayats were sent by the respondent-husband for a reconciliation but the appellant-wife was disinclined to resume cohabitation.
3. The appellant-wife denied having ever insisted that the respondent-husband should separate from his natal family. She also denied having gone over to live with her brother. The plea raised by her was that though her widowed mother, whose pre-deceased husband was killed by the terrorists, solemnised the marriage and gave sufficient amount of dowry, the respondent-husband and members of his natal family were not satisfied with the adequacy of the dowry brought by her and used to ill treat her. As an example, the averment proceeded, they would always deprive her of the monthly salary which she would get from her office. The respondent and members of his natal family also held out a threat that she would be done to death one day. In month of September, 1994, she was belaboured mercilessly and was turned out of the matrimonial house by the respondent and members of his natal family who retained all her belongings otherwise.
The trial proceeded on the following issues:
1) Whether the respondent treated the petitioner with cruelty as alleged in the petition? OPA
2. Whether the respondent has deserted the petitioner for a continuous period of not less than two years, immediately preceding the institution of the petition? OPA
3) Relief
4. Besides examining, PW-2 Charanjit Singh and PW-3 V.P. Dogra, the appellant stepped into the witness box, as his own witness, as PW-1.
5. The appellant-wife stepped into the witness box, as her own witness, as RW-1 and also examined RW-2 Ajit Singh and RW-3 Mrs. C.K. Bharti.
6. The learned Trial Court recorded a finding adverse to the appellant-wife under both the issues.
7. I have heard Shri G.S. Sidhu, learned Counsel appearing on behalf of the appellant and carefully gone through the file. None entered appearance on behalf of the respondent to assist this Court.
8. The finding recorded by the learned Trial Court under issue No. 1 deserves to be invalidated. The reasons therefor are as under:
The only allegation by the respondent-husband was that the appellant-wife wanted him to separate in mess and residence from his natal family and she got annoyed on his indicating inability to agree with the proposal aforementioned. There is no other instance of cruelty averred in the course of the petition. This fact was, infact, noticed by the learned Trial court as well in paras 9 and 12 of the judgment under challenge. Those paras are quoted as under for facility of reference:
In the petition, the petitioner has not given any specific details of the cruelty on the part of the respondent. No facts and figures and specific allegations have been pleaded. There is nothing as to what was the act of cruelty on the part of the respondent. The only contention is that she wanted to live separately and have been insisting for the same and ultimately, left him.
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12. As there is no specific allegation levelled by the respondent, the suggestion as highlighted by the learned Counsel for the petitioner, cannot be termed as cruelty on the part of the petitioner. This issue is decided in favour of the petitioner and against the respondent.
9. Once the Trial Court has itself recorded a finding that there are no other instances of cruelty even averred in the petition, it could not have recorded the above quoted finding, particularly when there is no convincing evidence available on the file to corroborate the averment by the respondent-husband that the appellant wife wanted him to separate (in mess and residence) from his natal family. Even if that averment is accepted to be correct (for the sake of argument), it cannot be said that the appellant-wife treated the respondent-husband with cruelty because the 'unsatiated' desire on her part is not proved to have been followed up by any act of 'reprisal' in the context.
10. In the light thereof, it is apparent that the respondent-husband had not been able to prove that the appellant-wife had treated him with cruelty. Issue No. 1 shall stand disposed of accordingly in favour of the appellant-wife and against the respondent.
11. Insofar as issue No. 2 is concerned, firm finding recorded by the learned Trial Court under it deserves to be affirmed, for the reasons which may be indicated as under:
12. There is a precise averment in the course of the petition that the appellant-wife left the matrimonial house in the month of September, 1994 and started living with her brother. The further allegation is that she did not return to the matrimonial house thereafter inspite of the fact that efforts were made by the respondent-husband in the relevant behalf. In the course of the counter, the appellant-wife averred that she had, infact, been turned out of the matrimonial house in the month of September, 1994 after having been belaboured. There is, thus, no controversy that the parties are residing separately since September, 1994.
13. The appellant-wife averred that she was maltreated by the respondent-husband and members of his natal family who used to even deprive her of the monthly wages which she would get from her employer.
14. That part of the averment is falsified by the statement of none else or other than the appellant-wife herself who conceded that she used to get her salary by cheque; that the respondent-husband never withdrew any part of her salary from the bank ('I used to receive salary by cheques. The petitioner never withdraw my salary from the bank.'). Besides it, she also conceded (as correct) a suggestion that she and the respondent-husband held a joint bank account and a locker ('It is correct that I have joint account with the petitioner in Bank of Baroda, in Jalandhar Branch. It is also correct that I have joint locker with the petitioner. It is incorrect that all the jewellery lies in the locker.') It is not her allegation that the respondent-husband ever withdrew any amount from joint account or had taken any item of jewellery from the joint locker . She conceded that she had never addressed the respondent-husband to fetch her to the matrimonial house or that she served any legal notice upon the respondent to the above effect. She also did not file a plea under Section 9 of the Act for the restitution of conjugal rights. At the trial, she made an offer that she is ready to accompany the respondent husband provided he provides security for her safety. In that context, the learned Trial Court correctly noticed that offer made by the appellant-wife was a mere camouflage and she was not actually inclined to accompany the respondent-husband ('In her entire examination-in-chief, the respondent has nowhere stated that she is still ready to live with the petitioner. She was cross-examined on this point by the counsel for the petitioner. However, she made a very cautious and well-guarded statement to the effect 'that she was ready to go with the petitioner provided he gives surety for her safety.' This statement appears to be just a camouflage without any elaboration. The respondent has admitted that the petitioner is a vegetarian and non-drinker. She never made any complaint anywhere regarding the behaviour of the petitioner till this divorce petition was filed by the petitioner. The respondent has clearly stated that she stayed in the house of the petitioner from November, 1992 to September, 1993.').
15. It was, then, appropriately noticed by the learned Trial Court that the appellant-wife did not examine her brother or any one from her family to make a deposition supportive of her stance. If the appellant-wife had actually been belaboured, threatened and turned out of the matrimonial house thereafter in September, 1994, as averred by her in the counter, there is no reason why she could not have examined her brother or sister-in-law or any other member of her family to deposition in favour thereof, particularly when it is her own statement that she did not get herself medically examined.
16. In the normal course of things, a wife would be expected to stay at the matrimonial house and provide conjugal company to the husband. In this case, the appellant-wife averred that she was turned out of the matrimonial house after having been belaboured by the respondent-husband and members of his family. That averment has not been found to be reliable. She has also-not been able to prove that respondent-husband and members of his natal family used to deprive her of the monthly wages, thereby forcing her to be at their mercy for any and every requirement. It is apparent from the attitude of the appellant-wife that she is staying away from the matrimonial house without any reasonable cause. Apart therefrom, she also made a make-believe statement regarding her willingness to go over to the matrimonial house. Infact, she is not at all proved to have been willing to resume cohabitation.
17. In the light of the above discussion, the finding recorded by the learned Trial Court under issue No. 2 shall stand affirmed.
18. The reversal of finding on issue No. 1 notwithstanding, the appeal is held to be denuded of merit in view of the affirmation of finding under issue No. 2 and is ordered to be dismissed.