Ravinder Kaur Vs. Raj Birender Singh - Court Judgment

R.L. Anand, J.

1. This L.P.A. is directed against the judgment dated 10.12.1993 [reported as (1993-3) 105 P.L.R: 442] passed by the learned Single Judge who affirmed the judgment and decree of the Trial Court dated 28.1.1988 by which the petition under Section 13 of the Hindu Marriage Act filed by the respondent-husband (Dr. Raj Birender Singh) was allowed on the ground of desertion.

2. The brief facts of the case are that Dr. Raj Birender Singh filed a petition under Section 13 the Hindu Marriage Act against his wife Smt. Ravinder Kaur appellant on the ground of desertion by inter alia pleading that the appellant had deserted him for a continuous period of two years immediately preceding the filing of the petition on 12.3.1985. It has been averred by the respondent-husband that parties to the marriage were married at Delhi on 8.5.1977 according to the Sikh religious rites and they cohabited together as husband and wife at different places viz., Ambala Cantt., Chandigarh, and Delhi but no child was born out of the wedlock. The husband alleged that the marriage was a failure from the very outset as the wife was not inclined for marriage and she adopted a cold attitude towards the husband regarding her matrimonial obligations. He tried his best to keep the appellant wife happy but she could not adjust in the married life. The husband alleged that his wife remained most of the time at her parent's house and used to stay with him for short spells only. Her, attitude was also insulting and humiliating towards his parents. She used to create scene in order to humiliate the husband and his family. She was suffering from tumour in the uterus and was got operated from Doctor Devi at Deep Nursing Home, Chandigarh. Thereafter she called her father and he came to Chandigarh and gave threats to the husband to the effect that he would not allow his daughter (appellant herein) to reside with the respondent-husband and also lodged report with the police which ended in a compromise. Finally the father of the appellant took her to Delhi on 16.9.1982 alongwith her articles of dowry etc. The appellant-wife left the house of the respondent-husband against his wishes. Thereafter, the appellant never visited the house of the respondent. This desertion on the part of the wife was intentional. The husband earlier filed a petition under Section 13 of the Hindu Marriage Act in the Court of District Judge Ambala, on the ground of cruelty but that petition was got dismissed being not pressed as by then the period of two years had not elapsed. It was also maintained that in the proceedings under Section 125 of the Code of Criminal Procedure, instituted by the wife before the Metropolitan Magistrate at Delhi she was awarded maintenance allowance.

3. This petition was resisted by the wife contending that dismissal of the earlier divorce petition by the District Judge, Ambala, would bar the maintainability of the present petition. It was also contended by the appellant (wife) that she had not deserted her husband, rather she was turned out of his house by him. She was insulted and humiliated at the hands of her husband. The wife stated that her husband and his mother used to beat her and pressurise her to sign an application for divorce on the basis of mutual consent. She had been tolerating all the insults in the hope of retaining her matrimonial relations. She, however, admitted having been operated by Lady Doctor P.K. Devi at Deep Nursing Home, Sector 21, Chandigarh, on 6.8.1982 and was discharged ten days thereafter. Her father came to India from Canada in August, 1982 and visited Chandigarh on 1.9.1982. He stayed at Chandigarh for two-three days at the residence of Shri G.L. Gulati his relation. On 3.9.1982 the husband demanded a sum of Rs. 5,000 /- from her father on account of the expenses incurred by him on her medical treatment but her father did not agree to do so, upon which the husband asked the father of the appellant-wife to take her along but he did not agree. Thereafter the father of the wife left for Delhi on 4.9.1982 and the wife was turned out of the matrimonial home on 10.9.1982 after beating her mercilessly and obtaining her signatures on two blank papers. Thereafter the husband informed Ashok Bhasin through telephone about the condition of the wife being serious and requested to send her father from Delhi, who came to Chandigarh on 11.9.1982 alongwith Smt. Basant Kaur and Balbir Singh. They contacted the respondent-husband at the residence of Mr. Chopra and persuaded him to rehabilitate his wife. The husband declined to do so and on the same day some articles belonging to the wife were delivered at the residence o'f Mr. Chopra and the wife was compelled to take the same. The jewellery articles were to be returned on 12.9.1982 but the husband did not return the same and a report was lodged at Police Station, Chandigarh, on 14.9.1982. It was also alleged by the wife that the Metropolitan Magistrate, Delhi, had awarded maintenance allowance under Section 125 of the Code of Criminal Procedure due to the above referred desertion on the part other husband.

4. A rejoinder was filed to the written statement on behalf of the husband in which he reiterated his allegations made in the petition by denying those of the written statement.

5. On the pleadings of the parties the Trial Court framed the following issues:

(i) Whether respondent has deserted the petitioner for a continuous period of two years immediately before the filing of the present petition? OPP

(ii) Relief.

The record of the Trial Court shows that two more additional issues were framed on 1st April, 1987, which are to the following effect:

1-A. Wheather 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 parties led oral and documentary evidence in support of their case and the learned District Judge, Chandigarh, vide judgment dated 28.1.1988 allowed the petition of the husband on the ground of desertion only.

7. Aggrieved by the judgment and decree of the Trial Court, Smt. Ravinder Kaur appellant filed an appeal in this Court and the said appeal was also dismissed by the learned Single Judge vide judgment and decree dated 10.12.1993, alongwith the application under Section 340, Cr.P.C., which was moved by the wife, for punishing her husband for the alleged fabrication of false evidence. It may also be mentioned here that the Trial Court did not give any specific findings on issues Nos. 1-A and 1-B and the appellant advanced arguments before the learned Single Judge for the remand of the case on the plea that the Trial Court failed to return the findings on issues Nos. 1-A and 1-B, but the plea of the wife did not prevail upon the mind of the learned Single Judge and rightly too because divorce in the present case has been granted to the husband on the ground of desertion and the aspect of cruelty has not been considered by the learned Single Judge. Otherwise also the petition of the husband was not barred under Order 2 Rule 2, C.P.C. or under Section 11, C.P.C. The learned Single Judge while rejecting the argument of the wife on issues Nos. 1-A and 1-B held as follows :

'Learned Counsel for the petitioner 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 be 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 R-l, the divorce petition as also Exhibit R-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 HW-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 provisions of Order 2 Rule 2 or on account of the dismissal of the previous divorce petition for non-prosecution. The earlier petition Exhibit R.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 lapsed. 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 it having been filed only on the ground of desertion. 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. Even before us the learned Counsel appearing on behalf of the appellant did not advance any argument on issues Nos. 1-A and 1-B. During the pendency of this appeal Smt. Ravinder Kaur has filed an application under Order 6 Rule 17, C.P.C., read with Section 152, C.P.C. praying that she may be allowed to amend her written statement and it has been averred that her husband was allegedly carrying on with Smt. Jaspal Kaur, who is none other than the daughter of his real maternal under Darshan Singh Ahluwalia. Jaspal Kaur and her husband were living as husband and wife and they also got a male child whom they happened to Christian Sharanjit Singh. That child was born in Chandigarh in September, 1985 in a private nursing home. The wife has been able to get the documentary evidence in support of the birth of the child. The child was got admitted in the name of Sharanjit Singh in St. Stephen School, Sector 45, Chandigarh. At the time of filing of the application the child was a student of 4th Class. His parentage has been shown as Dr. Raj Birender Singh and mother as Jaspreet Kaur. Since the husband was interested in Smt. Jaspal Kaur, therefore, he treated the applicant-wife with cruelty and as he was not interested in her, perhaps with this background the respondent-husband earlier filed a petition for divorce in Ambala. Thereafter he withdrew the petition and filed the present petition under Section 13 of the Hindu Marriage Act.

9. Alongwith the application, the applicant, Smt. Ravinder Kaur filed a certificate showing that a male child by the name of Sharanjit Singh was bom on 10.9.1985. In this certificate the name of the mother has been recorded as Jaspal Kaur while that of father R.B. Singh.

10. Notice of the application, was given to the respondent, who denied the allegations by stating that the averments made in the application are unfounded, imaginary and baseless. The applicant never sought amendment to the written statement in the Trial Court. She levelled allegations of adultery against the respondent in the cross-examination and when the respondent wanted to amend his petition, his prayer was opposed by the present applicant. The proposed amendment is, not necessary for the determination of the dispute between the parties. The applicant has no where stated in the Trial Court about the alleged illicit relations between the respondent and Smt. Jaspal Kaur. The present application has been moved in order to linger on the proceedings and it being malaise may be dismissed.

11. By this judgment we are disposing of the application as well as the main appeal itself and at the first instance we are disposing of this application with the observation that the proposed amendment besides being highly belated is also an attempt to introduce a new plea of alleged fact which cannot be allowed to be proved to the applicant. Therefore, the application under Order 6 Rule 17, C.P.C. dated 19.2.1994, is hereby dismissed.

12. We have heard Mr. R.S. Bindra, Senior Advocate, on behalf of the appellant, and Mr. Hemant Kumar, Advocate, on behalf of the respondent, and with their assistance we have gone through the record of the case.

13. It has been argued by the learned Counsel appearing on behalf of the appellant that the learned Single Judge as well as the Trial Court fell in error in holding that the appellant-Ravinder Kaur had deserted the respondent for a continuous period of two years prior to the filing of the petition. He submitted that the main reliance of the Courts below was on the document (EX.PI) - a writing which was executed by Smt. Ravinder Kaur appellant in favour of her husband by which she had taken the household articles in the presence of her father and Mr. Chopra, who have also attested this document besides respondent Dr. Raj Birender Singh. The Counsel submitted that by no stretch of imagination from this document it can be inferred that the appellant had deserted her husband so as to constitute a ground for desertion as envisaged under the provisions of Section 13 of the Hindu Marriage Act. He submitted that the factum that the parties to the litigation had started living separately since September, 1982 per se is no ground to come to the conclusion that there was total repudiation to end the matrimonial ties on behalf of the appellant. At the most it can be said that the appellant had taken away some of her articles which were necessary for her living separately, which was under a compromise arrived at between the parties. Till an intention on the part of the appellant that she wanted to put the matrimonial ties to an end completely in bome out, decree for divorce in favour of the, respondent-husband could not be granted either by the Trial Court or by the First Appellate Court. While disposing of the issue of desertion the Hon'ble Sigle Judge was pleased to hold :

'......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 P2 to P17 exchanged either between the parties or their relations, which show that the parties had cordial relations.'

The learned Single Judge also held :

'....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.I 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.....'

It was also observed by the learned Single Judge :

'....All this shows that the parties to the marriage took a decision for them-selves to live separately and to put to an end to the matrimonial alliance and with an intention not to resume co-habitation.'

The above observations were made by the learned Single Judge after taking into consideration the stand of the wife, who pleaded in the Trial Court that her husband demanded a sum of Rs. 5,000/- from her father for the medical expenses incurred upon her when she was operated upon in the Deep Nursing Home.

14. This Court is quite aware of the dictum of the Hon'ble Supreme Court that a question of fact, howsoever erroneous may be, cannot be taken into consideration in the second appeal. But it has to be seen in the present case whether the conclusion drawn by the learned District Judge, Chandigarh, and the learned Single Judge could be borne out after interpreting the document (Exhibit PI) upon which reliance has been placed by the Trial Court and by the learned Single Judge. Section 13 of the Hindu Marriage Act lays down as under :

'11. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented either by the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) xxx xxx xxx xxx (ia) xxx xxx xxx xxx

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

xxx xxx xxx xxx'

The Explanation added to Section 13 is as follows :

'Explanation.-In this sub-section, the expression 'desertion' 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 the wilful neglect of the petitioner by the other party to the marriage, and its grammatical, variations and cognate expressions shall be construed accordingly.'

15. In its essence 'desertion' means intentional permanent forsaking arid abandonment of one spouse by the other without other's consent and without reasonable cause. It is a total repudiation of the obligations of the marriage. For the offence of 'desertion', so far as the deserting spouse is concerned, two essential conditions must be there :

(i) The factum of separation; and

(ii) The intention to bring be cohabitation permanently to an end (animus deserendi).

Similarly two elements are essential so far as the coerced spouse is concerned:

(i) The absence of consent; and

(ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.

Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The defacto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. It is well settled that the burden to prove desertion, i.e., the factum as well as animus deserendi is upon the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire filing period of two years before filing the petition as well as that such desertion was without just cause.

16. Desertion is not only a physical act and as we have just said the jeopardisation of the obligation of marriage or an abandonment of one spouse by the other without that other's consent and without reasonable cause, in order to bring the cohabitation permanently to an end, is also a 'desertion', m the present case the husband has to establish two facts and those two elements must co-exist to grant him a decree of divorce :

(i) Factum of separation; and

(ii) Animus deserendi.

The Court below has returned the finding on issue No. 1 against the appellant mainly on the ground that she has expressed her intention to bring the matrimonial ties permanently to an end with the execution of the document (Exhibit PI) in the presence of her father and Mr.Chopra In our considered view this document cannot be read in isolation but has to be read with the previous letters Exhibits P2 to PI 7, which are also of the year 1982. m none of these letters the wife has ever expressed her intention to her husband that she wanted to desert him or that she wanted to say good-bye to the matrimonial ties for all times to come. Even Exhibit PI does not prove the case of the respondent-husband. This document is mere a receipt rather than a letter/ wherein Smt. Ravinder Kaur appellant had acknowledged having received about 15 items mentioned therein except the jewellery items, has passport, certificates and Fixed Deposit Receipt. She has nowhere stated in this document that she was not interested to live in the matrimonial home any further or that she is repudiating the matrimonial obligation for all times to come what it looks to be is that of a kind of estranged relations between the parties to the petition; the appellant wanted to live separately with the consent of her husband and for that purpose she took some other Istri Dhan articles in the shape of household articles, such as, tea set, dinner set, ceramic fry pans, kitchen food cutter, toaster, oven, electric press, sewing machine, tea set (steel) with tray, pressure cooker, cutlery set ice box, old clothes, beddings, wall clock and table lamp (Brass). No doubt Exhibit 1 is an evidence of conduct of the appellant but is not to the extent that she had expressed her intention to break the matrimonial ties. When the parties had decided to live separately, but without intention to break the matrimonial ties, the evidence of desertion will not be proved in the light of the discussion and the judgment of the Hon'ble Supreme Court reported as Lachman Utamch and Kirpalani v. Meena @ Lata Late, AIR 1964 SC 40. Recently this High Court has also held in Pawan Kumar v. Chanchal Kumari, (1996-2) 113 P.L.R. 199, to the effect that when there is an agreement between the parties to the marriage to live separately, this separation per se does not prove desertion, which means intentional permanent forsaking and abandment of one spouse by the other, without the other's consent and without reasonable cause. Even from the oral evidence which has been led by the parties, we have not been able to draw the conclusion that Smt. Ravinder Kaur appellant had deserted the respondent (Dr. Raj Birender Singh). In the present case it is not difficult for us to draw an inference why the appellant has been turned out from the house of the respondent. It is the common case of the parties that the appellant was operated upon by Dr. Devi of her uterus ana' perhaps for that reason she was not in a position to conceive a child, giving handle to the respondent to create trouble for the appellant forcing her to live separately, of course with the consent of the parties. Otherwise, it does not stand to reason for a lady like the appellant, who has no independent source of security, would prefer the house of her father for all times to to come than the matrimonial home.

17. In the light of the above discussion, we are inclined to hold that the trial Court and the learned Single Judge fell in error while deciding issue No. 1 in favour of the respondent. We are of the considered view that the respondent has failed to discharge the onus of issue No. 1 as required under the law and we decide this issue against the respondent and in favour of the appellant by reversing the findings of the Trial Court and of the learned Single Judge.

18. In view of our above discussion, this appeal is allowed, the judgment of the learned Single Judge and that of the Trial Court alongwith the decree are hereby set aside and the petition under Section 13 filed by the respondent (Dr. Raj Birender Singh) is hereby dismissed. The parties are, however, left to bear their own costs.