F.A.O. No-60 of 2006 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O. No-60 of 2006
Date of decision: 31.3.2009
Avtar Singh
...Appellant
Versus
Smt. Rajinder Kaur ...Respondent
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Ms. Jatinderjit Kaur, Advocate for the appellant.
Mr. Dhirinder Chopra, Advocate for respondent
S.D.ANAND, J.
The appellant-husband had filed a petition against the
respondent-wife to obtain dissolution of their marriage on the plea of
desertion and cruelty. The petition was rejected by the learned Trial
Court vide order dated 3.2.2006.
The marriage between the parties was solemnised on
17.7.1988. The appellant-husband had announced to the
respondent-wife that he is a divorcee. The parties cohabited, as
husband and wife, at village Tajpur till 21.9.1990. However, no issue
was born out of their union. The respondent-wife was a headstrong
lady. From the very inception of the marriage, she used to dictate
terms to him just because the latter happened to be a divorcee. She
was in the habit of abusing the appellant and his parents. She
would, at times, leave the matrimonial house unannounced. After
about 1-1/2 months of the marriage, she confined herself in a room
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which could be got opened only after much persuasion. The
respondent-wife would announce that since she had been married to
a divorcee against her wishes, she would not continue at the
matrimonial house and would commit suicide. On one particular
occasion, she held an insecticide tin in her hand and threatened to
commit suicide. The information with regard to her conduct was
given to her parents who, instead of advising her, evaded
responsibility and informed the appellant that it was his responsibility
to look after her. After sometime thereof, the appellant went
overseas (United Kingdom) to earn livelihood. However, on account
of the continued misbehaviour on the part of the respondent-wife, he
had to get back home at the instance of his parents, and had to
thereby miss the job opportunity. However, even after his return
home, things did not improve and the respondent-wife continued to
misbehave with him and other members of his family. She would
never cook food for them. On 28.4.1989, she left the house
unannounced and took away all her dowry articles and clothes. It is
on account of the intervention of the Panchayat that she got back to
the matrimonial home where she stayed over till 21.9.1990. Even
during that period, she would, at times, leave the matrimonial home
unannounced. On 23.5.1990, appellant-husband went over to the
natal house of the respondent-wife to persuade her to get back to the
matrimonial house. Piara Singh, maternal uncle of the respondent
wife, abused and insulted him. On 21.9.1990, the respondent-wife
came over to the matrimonial house in the company of her relations
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including Manjit Singh and Piara Singh etc. The party was also
accompanied by a Police Constable. The party threatened and
insulted the entire family of the appellant who, thereupon, filed a
divorce petition in the District Court, Jalandhar, which was withdrawn
by him on 29.9.1992 as the parents of the respondent-wife
demanded money for agreeing to the grant of mutual divorce. It was
followed by a get together of common friends and relatives of the
parties wherein the respondent-wife side caused injuries to the
father and a cousin of the appellant. An FIR (No. 139 dated
6.10.1990 under Sections 323/324/34 IPC) came to be lodged at
Police Station Division No.4, Jalandhar. It was on the above
allegations that the appellant-husband filed a plea for divorce on an
averment that the respondent-wife had through out treated him and
members of his family with cruelty.
The respondent-wife pleaded estoppel, by act and
conduct, on the part of the appellant-husband. She claimed that she
stayed at the matrimonial house till 21.5.1990 and that she was
forced to abort a child on the premise that birth of a child would
hinder her settlement in the UK. She was assured that she could
beget a child after being at U.K. She denied having ever misbehaved
with the appellant-husband in a cruel manner. She also denied
having ever attempted suicide or having held out a threat therefor.
Qua the allegations pertaining to the circumstances under which the
appellant-husband returned home from United Kingdom, it was
averred that he came back to India only because the period of
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validity of the visa was over. That she was maltreated by the mother
of the appellant-husband during the latter’s absence and that even
medical aid was denied to her when she fell ill was the further
averment. She proceeded to aver that she had been once to her
natal house where she had stayed over for a period of about nine
months and her restoration to the matrimonial house could be
secured only with the intervention of the respectables. Even
thereafter when she came back to the matrimonial house, the
behaviour of the appellant-husband and his mother did not change
and they continued to taunt her for having brought inadequate
dowry. The appellant also told her that she was not of his liking.
She denied that the divorce petition came to be withdrawn by the
appellant-husband on 29.9.1992 on account of the demand raised by
her parents for payment of money for the grant of a mutual divorce.
She asserted that she is still ready and willing to live in the
matrimonial house with the appellant-husband and it is for that
purpose that she had also filed a petition under Section 9 of the Act.
The trial proceeded on the following issues:-
1. Whether the respondent has treated the petitioner
with cruelty?OPA
2. Whether the respondent has deserted the petitioner
without any reasonable cause?OPA
3. Whether the petitioner has not come to the Court
with clean hands?
4. Relief.
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The learned Trial Court recorded findings adverse to the
appellant-husband under all the issues. As a result thereof, the
petition filed by the husband was ordered to be dismissed.
It was argued on behalf of the appellant-husband that the
impugned findings deserve invalidation in view of the fact that there
is plenty of evidence on the file to prove that the appellant-husband
was always inclined to resume cohabitation and that it was always
the respondent-wife who was a reluctant partner in the relevant
behalf. Reliance, in support of the advocated view, was placed upon
the fact that the appellant-husband had twice withdrawn the divorce
petition filed by him
The plea advocated is completely denuded of merit. The
reasons therefor are as under:-
It requires to be noticed, at the very outset, that it is
apparent from the record that there is a decree under Section 9 of
the Act in favour of the respondent-wife and against the appellant-
husband and has not been complied with till date. In that context, it
would be relevant to notice the statement made by the appellant-
husband at the trial ( of the present case) that he is not ready and
willing for resumption of cohabitation under any circumstances. That
statement of his falsifies the plea advocated on his behalf (in the
presentation before this Court) that he was always inclined to resume
cohabitation and that it was always the respondent-wife who was the
reluctant partner in that behalf. Even otherwise, the fact that he
twice filed divorce plea would also take the wind out of his sails in the
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relevant context. He did aver, in the context, that he had to withdraw
those petitions as the respondent side insisted upon payment of
certain amount before they could agree upon the grant of a mutual
divorce. How exactly the question of payment came up defies logic.
It was a pure and simple case in which he had filed divorce plea on
various averments. It was not a case where the petition had been
filed under Section 13-B of the Act. It is the only in that eventuality
that a spouse could perhaps put up the indicated plea which (plea)
would appear to be totally irrelevant to the filing of a divorce petition
under the Act but not in terms of the provisions of Section 13-B of the
Act.
Qua the suicide attempt by the respondent-wife, the
appellant-husband testified that that her parents had been duly
informed in the relevant behalf and that they, instead of advising
her, evaded responsibility and informed the appellant that it was his
responsibility to look after her. The averment aforementioned is
supported by the solitary and self-serving statement made by the
appellant-husband himself. There is no evidence to corroborate the
plea on behalf of the appellant-husband that the alleged attempted
suicide (by the respondent-wife) had ever been intimated to her
parents. If the respondent-wife was of a rude temperament from the
very beginning and she had actually been holding out a threat that
she would commit suicide, it would have been very natural on the
part of the appellant-husband to intimate attempted suicide to the
parents of the respondent-wife. If the respondent-wife had actually
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attempted suicide, it was enough to give a signal to the appellant-
husband that she meant trouble and it would bring him into conflict
with the law. There is no proof that the attempted suicide by the
respondent-wife was ever brought to the notice of the parents of the
respondent-wife.
Insofar as the the other allegations of cruelty are
concerned, those are supported by the solitary statement of the
appellant himself. If there was even an iota of truth in the allegations
in the relevant behalf, there is no reason why he could not have
atleast examined his mother. By the very nature of things, she was
the best circumstanced to own up the averment. He had also not
offered an explanation about why his mother was not examined at
the trial. Apart therefrom, the relevant allegations are general in
character and cannot form the basis of grant of a decree of divorce.
It stands already noticed that the appellant-husband
made a precise averment that he had been to UK for earning
livelihood but that he had to get back home because of the
misbehaviour of the respondent-wife during his absence. Countering
that allegation, the respondent-wife raised a precise plea that the
appellant-husband came home only because the period of validity of
the visa was over. The onus, thus, was upon the appellant-
husband to prove the falsity of the allegation levelled by the
respondent-wife. The appellant-husband could best do it by
producing some letter etc. which his mother may have addressed to
him in the relevant behalf. He could very well prove that fact by
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examining his mother whose testimony could have thereby been
tested on the touchstone of cross-examination. He could produce his
visa to disprove the allegation by the respondent-wife that he came
home only because the period of validity of the visa was over. No
steps were taken by the appellant-husband in the relevant behalf.
It also requires pointed notice that the appellant-
husband raised a plea at the trial that he used to receive threatening
letters from the militants in the context of strained relations with the
respondent-wife. As correctly noticed by the learned Trial Court, the
appellant-husband did not produce any such letter on record.
Further, as correctly noticed by the learned Trial Court, the parties
are residing separately since long and the appellant-husband had
filed two divorce petitions during that period of separation, both of
which were withdrawn by him (one on 29.9.1992 and another on
21.11.1994). The averment made by him that he had withdrawn the
divorce petitions because the parents of the respondent-wife had
demanded the money to agree for mutual divorce is neither here not
there. An estranged spouse is not required to make any prayer the
parents of the other spouse with a view to pursue the divorce plea.,
particularly when it was not a plea filed under Section 13-B of the
Hindu Marriage Act. Apart therefrom, interestingly enough, the
appellant-husband had raised a plea at the trial that there had been
a documented compromise vide which it had been agreed that the
parties would agree to a mutual divorce on payment of alimony of
Rs.75,000/-. No such document had been proved on record.
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Insofar as the incident dated 23.5.1990 is concerned, the only
witness examined in the relevant behalf is PW-2 Karamjit Singh.
That witness had to concede, in the course of cross-examination at
the trial, that he was actually not present at the spot and that he
reached the spot later on. It cannot, thus, be said that the appellant-
husband had been able to prove that any incident had taken place
(on 23.5.1990 ).
Even otherwise, it requires pointed notice that the
respondent-wife is proved on record to have filed a petition under
Section 9 of the Act which came to be decreed on 3.2.2006. The
appellant-husband was very forthright in the course of cross-
examination when he testified that he is not ready and willing for
resumption of cohabitation under any circumstances. The facts,
thus, evidence that the respondent-wife is inclined to resume
cohabitation and she filed a petition under Section 9 of the Act for
that purpose only; whereas the appellant-husband had categorically
testified that he is not ready and willing for resumption of
cohabitation under any circumstances and it is not even the
averment on behalf of the appellant-husband that he had complied
with the decree under Section 9 of the Act.
The appellant-husband had, thus, not been able to prove
that the respondent-wife had deserted him or was guilty of any act of
cruelty vis-a-vis him. The material obtaining on the file is proof
adequate enough of the fact that the appellant-husband had
maltreated the respondent-wife and it is that mal-treatment on
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account of which the respondent-wife is compulsively, nay
unwillingly, putting up at her natal house.
There was an averment by the appellant-husband that he
had been belaboured by certain relations of the respondent-wife and
he had lodged an FIR in the relevant behalf. However, the appellant
conceded in the course of cross-examination that the accused in that
case were acquitted by the Court. The factum of the alleged episode
does not, thus, advance the appellant-husband’s case in any
manner.
The following facts can safely be culled out from the
above discussion:-
a) There is a valid decree under Section 9 of the Act in
favour of the respondent-wife and against the
petitioner-husband who has not complied with it till
date. On the other hand, the appellant-husband
has made a categorical averment in the present trial
to the effect that he is not ready and willing for
resumption of cohabitation under any
circumstances.
b) The appellant-husband has not been able to prove
the allegations that the respondent-wife had
deserted him or was guilty of having committed any
act of cruelty vis-a-vis him. On the other hand, the
material available on the file is proof adequate
enough of the fact that it was the appellant-husband
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who had maltreated her, thereby compelling her to
be away from the matrimonial house.
For the reasons noticed above, the appeal is held to be
denuded of merit and is ordered to be dismissed.
March 31, 2009 (S.D.Anand)
Pka Judge
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