High Court Punjab-Haryana High Court

Avtar Singh vs Smt. Rajinder Kaur on 31 March, 2009

Punjab-Haryana High Court
Avtar Singh vs Smt. Rajinder Kaur on 31 March, 2009
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
F.A.O. No-60 of 2006 -2-

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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
F.A.O. No-60 of 2006 -3-

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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
F.A.O. No-60 of 2006 -4-

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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.

F.A.O. No-60 of 2006 -5-

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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
F.A.O. No-60 of 2006 -6-

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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
F.A.O. No-60 of 2006 -7-

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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
F.A.O. No-60 of 2006 -8-

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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.
F.A.O. No-60 of 2006 -9-

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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
F.A.O. No-60 of 2006 -10-

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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
F.A.O. No-60 of 2006 -11-

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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
 F.A.O. No-60 of 2006          -12-

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