JUDGMENT
Sarojnei Saksena, J.
1. Appellant, husband has filed this appeal against the dismissal of his divorce petition.
2. Admittedly, the appellant was married to the respondent-wife in April 1973 at Village Garhi Mutton, District Hoshiarpur. They lived together till 1983- 84. Since 1984 they are living separately. No child was born in this wedlock.
3. Petitioner-appellant’s contention in the lower Court was that after marriage they resided together at Villages Ratinda and Rahon. The respondent-wife has deserted him for a continuous period of about seven years immediately preceding the presentation of the petition on April 16, 1991. She has deserted him with the intention of permanently abandoning his society without his consent. Appellant is a handicapped person. She did not like the marriage with him from the very beginning, though he and his parents tried their level best to protect the marriage. She also insisted him to live separately at her parent’s village, but as his mother was ailing, he could not accede to her wish. She used to go to her parental home off and on without taking his permission. The invitation card of the marriage of his brother was sent to her and to her parents, which was to be solemnised on May 9, 1974, as at that time she was at her parent’s house. None came to attend the marriage and the card was returned back with an insulting letter. The respondent- wife left his house in his absence and took away her gold ornaments and other valuable clothes etc. He went twice and convened panchayat also to bring her back but she declined to come back to the matrimonial home. On January 14, 1986, he gave a notice to her to join the matrimonial home but instead of coming back, she filed a petition under Section 125, Cr.P.C. against him on January 20; 1986 and claimed maintenance. She is a lady of quarrelsome nature. So long she lived in his house, her treatment towards him was very cruel. She used to abuse him. She never liked his talking to his friends, sitting with his parent or coming late at night. He filed a divorce petition earlier but later on he withdrew it on the assurance of the respondent that she would enter into a compromise. Thus he claimed divorce and in the alternative a decree for judicial separation on the grounds of cruelty and desertion.
4. The respondent-wife denied the alleged acts of cruelty and desertion. She raised a preliminary objection that earlier the petitioner-appellant filed a divorce petition on the ground that she is not a complete woman, she has not mensurated at all and as such is incapable of conceiving a child. There was some defect in her genital organs and as such normal sexual intercourse is not possible with her, though she has been treated by various doctors. During the pendency of that petition, she was examined by doctors of Medical College and Hospital, Amritsar, who gave a report negativing the above allegations made in the divorce petition and thereafter ultimately he withdraw his petition on January 29, 1991. He has filed this divorce petition by putting alias in the names of both the parties, which has also no basis. According to her, her marriage was performed with the consent of the parties. She never behaved with him cruelly or abused him. His treatment was very cruel towards her. She never asked him to live separately in the village of her father. He always neglected her, used to come late in the night and treated her with cruelty. He was addicted to liquor and under its influence he used to beat her. He used to taunt her that she is a barren lady. He was bent upon performing second marriage. He often used to demand dowry also. In January, 1984 he turned her out of the matrimonial home after giving her severe beating on the ground that she has brought less dowry. Since then she is living in her parental home. Petitioner-appellant made false allegations against her womanhood in his earlier petition, which is a continuous source of cruelty to her. He also gave false statement in the Court. Thus, she denied the prayer, though she admitted that she has filed a petition under Section 125, Cr. P.C.
5. Trial Court framed the issues. Parties adduced their evidence. The Trial Court came to the conclusion that the petitioner-appellant has failed to prove that the respondent-wife has deserted him. The issue, of cruelty was not decided as the petitioner-appellant’s Counsel did not advance any argument on the point of cruelty. o
6. Petitioner-appellant’s learned Counsel stressed strongly that in the lower. Court the ground of cruelty was not given up by the petitioner-appellant. The Trial Court has not decided that issue. Relying on various authorites, to which a reference will be made later on, he contended that admittedly the respondent-wife is not living with the petitioner-appellant since January, 1984. He made many attempts to bring her back, but she declined. From her own testimony if it evident that she is emphatic that she does not want to rejoin the petitioner-appellant. Thus, the factum of desertion as well as the intention to bring cohabitation permanently to an end is duly proved by the petitioner-appellant. Still the Trial Court has dismissed the divorce petition holding that he has failed to prove the ground of desertion.
7. His second contention is that by living separately for the last so many years from the petitioner-appellant, the respondent has treated him cruelty. According to him, married life without sex is meaningless. The appellant has been denied the pleasures of sexual life by the respondent as she is continuously residing at her parental home and has positively declined to come back to him. Thus, according to him, the appellant has also proved the ground of cruelty and on both these counts he is entitled to get a decree of divorce.
8. His last contention is that the parties are living separate since January, 1984. The marriage is emotionally and actually broken. On this ground of irretrievably broken marriage also the decree of divorce can be granted in his favour.
9. The respondent’s learned-Counsel supported the impugned judgment and decree and contended that earlier the petitioner-appellant filed divorce petition, copy of which is filed by the respondent as Exhibit P 2. In this petition also, he raised the plea of desertion and also pleaded in para 6 (iii) that due to the defect in the genital organs of the respondent normal sexual intercourse with her is not possible. Whenever he approached her for intercourse, the respondent avoided it saying that she experienced great pain. She would not allow the appellant to make love with her. For defective sexual organ, the respondent had been getting treatment from various doctors, but without any success. The appellant cannot have normal sexual relationship (coitus) with the respondent, which has caused great mental torture to the appellant. For all these years the appellant was hopeful that with the medical treatment, the respondent would be cured but all in vain as the doctors stated that the defect is since her birth. He also pointed out that during the pendency of that divorce petition, she was subjected to medical examination by the doctors of the Government College and Hospital, Amritsar. According to the report given by the doctors Exhibit R3, normal sexual intercourse is possible with her. Thus, the petitioner-appellant not only took a wrong plea to obtain divorce, but thereby has caused great mental torture to the respondent- wife. He also pointed out that parties were married in April, 1973 and till January, 1984 they lived together. They could not beget any child. That was the main reason why the petitioner-appellant wanted to get rid of her and to marry another woman. H admits that, no doubt, everybody is keen to have an issue of his own, but if without any fault of the woman the husband is not able to raise his progency the wife cannot be turned out of the matrimonial home on this count. He further pointed out that till the respondent was living with him, she was always tortured on that count. He used to call her a barren woman. He also pointed out that the wife has proved that he is addicted to liquor and under its influence he used to beat her and to demand dowry also. He forced her to give him permission to marry again as she could not bear a child to him and finally on this Count he beat her and turned her out of the matrimonial home. Since then she is living at her parental house. When she came back to her parental house, after three days hex father made an attempt to rehabilitate her and took a panchayat also, but the petitioner-appellant declined to rehabilitate her. Hence according to him, it cannot be said that she has deserted him. Rather the appellant-husband is guilty of constructive desertion. He cannot be allowed to take advantage of his own wrong and to seek divorce on that ground.
10. Respondent learned Counsel contends that so far as the ground of cruelty is concerned, the petitioner-appellant has utterly failed to prove it. He has alleged that he sent an invitation card for the marriage of his younger brother, but neither the respondent nor her father came to attend it. Rather they returned the card writing abusive language therein. That card is not produced by him. He also pointed to that there is no reliable evidence on record to believe that she wanted him to reside at her parental house or she used to go to her parental home off and on without his permission. According to him, the husband has utterly failed to prove any act of cruelty on the part of the respondent-wife. Thus, according to him, the Trial Court has rightly dismissed the divorce petition.
11. Living apart and depriving husband of cohabitation is also an act of cruelty. But in this case on that ground alone the husband is not entitled to obtain a decree of divorce against the wife. It is alleged that the husband is a handicapped person. Now his parent have died. His brother and sisters are settled separately. He is living all alone and now he needs the company of the wife most. But on this ground also now he cannot ask the wife to rejoin him as when she was living with him, he did not behave with her properly. The wife has proved that as she could not bear a child, she was treated cruelly by the husband. He used to call her a barren woman and used to beat her on that account. Her this testimony does hot require any corroboration as it is duly corroborated by the allegations made by the petitioner-appellant in his earlier divorce petition Exhibit P 2. A plain perusal of the allegations made in this earlier divorce petition makes it evident that he levelled this false allegation against his wife that she is not a normal woman. Thereby he slashed her womanhood and caused a deep mental injury to her. During the pendency of that divorce petition she was medically examined and the doctors opined that she is capable of enjoying normal sexual life. Thus, it is apparent that by levelling such inhuman and insulting, allegation against her, he caused her mental cruelty. Today he cannot say that by living separate for so many years, she has deprived him of sexual pleasures. It appears that the respondent- wife’s testimony is truthful that because she could not bear any child in this wedlock, he wanted to divorce her, so that he may marry again. With that purpose he filed earlier divorce petition on false ground and after the opinion of the doctors was obtained, he got his petition dismissed. In this petition, he alleged that he got withdrawn his petition on the assurance of the respondent-wife that she would enter into a compromise, but on oath he is conspicuously silent on these points.
12. Petitioner-appellant has pleaded that her behaviour towards him was cruel. She used to insult him, she used to go to her patental home off and on without seeking his permission, she used to insist him to live separately at her parental home, she used to abuse him, she used to quarrel with him and his parents, she never liked his coming home late or his talking to his friends and sitting with his parents. But on all these allegations he has not adduced any evidence. Even on oath, he has simply stated that she wanted him to stay with her parents, and she used to leave the matrimonial home off and on without his permission. He does not state a word that she used to quarrel with him or used to abuse him. So far as the alleged act of cruelty in sending back the invitation card of marriage of his younger brother is concerned, that is also not proved because the said card is not filed.
13. According to the husband-appellant, when she left the matrimonial home, he went to her house and convened a panchayat also, but she declined to comeback. He has examined Tarsem Singh PW 2 to corroborate him on this point. No doubt, this witness went to her father’s house and she declined to come back to the matrimonial home saying that he is a handicapped person. The husband does not say so. Admittedly, the husband-appellant was handicapped even when she was married to him. Had it been so, she would not have married him. Tarsem Singh PW 2 has stated that the respondent lived with the husband-appellant for 10 years, but during this long period he never heard of any complaint against the respondent. Appellant’s only complaint was that she used to leave the matrimonial home on her own. If her behaviour was cruel towards him, he would have made such a complaint to this witness as well, who is a man of his confidence.
14. Respondent-wife has stated on oath that she lived with him for 13 years. He used to maltreat her. He used to taunt her for not bringing sufficient dowry. As she could not bear any child, he used to quarrel with her and under the influence of liquor he used to beat her. She is categoric that when she has living with him, he forced her to give him in writing, permitting him to marry again as she could not bear any child and finally after being beaten. She was turned out of the matrimonial home. After three days her father convened a panchayat but the appellant-husband refused to habilitate her. In cross-examination she has clearly stated that after marriage only for 10 days he behaved properly with her. She has also stated that about his cruel behaviour he made complaints to her parents but no report was lodged with the police. In such matrimonial disputes, it is too much to expect any party to go to the police to lodge such a report. She has admitted unequivocally that after the filing of this divorce petition, now she is not willing to join her matrimonial home.
15. Where the wife is forcibly turned out of the matrimonial home by the husband, the husband is guilty of constructive desertion, because the test is not who left the matrimonial home first. If one spouse by his words and conduct compels the other spouse to leave the matrimonial home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home, See Bipan Chander Shah v. Prabhawati, AIR 1957 SC 176.
16. Appellant’s learned Counsel has relied on Asha Rani v. Gurucharan Lal, 1986 (1) HLR 462. But the facts of that case are distinguishable. In that case the parties were living separate for six years. No attempt was made by the wife for reconciliation. Hence it has held that the wife has deserted the husband and on that ground the decree of divorce was granted. But in this case the wife has proved that she was maltreated and torturned by the husband and the main ground of this cruel behaviour was that she could not bear any child. By filing earlier divorce petition and levelling false and baseless allegations against her womanhood, he has treated her with cruelty and on that count he has turned her out of the matrimonial home. Thus the husband is guilty of constructive desertion.
17. In Amarjit Kaur v. Babu Singh, (1988-1)93=I (1989) DMC 388, PLR 131 it is held that divorce cannot be granted simply on the ground that the husband and wife are living separately for about 7/8 years before the filing of the petition for divorce. There must be cogent evidence on record to prove that the wife had no intention to join the matrimonial home after she parted company. In that case since this element was missing absolutely, petition for divorce was declined.
18. In Maya Devi v. Gopal Chand, 1988(1) CLJ 510=II (1988) DMC 247, the wife filed a divorce petition on the ground of cruelty. The wife proved that she was given beating on a number of occasions by the husband, which amounted to curelty. When it became impossible for her to stay in the matrimonial home, she was forced to leave it. Decree was granted in her favour.
19. Appellant’s Counsel has relied on Ranbir Singh v. Balbir Kaur, (1995- 3)111 PLR 170 and Amarjit Kaur v. Sarup Singh, (1995-3) 111 PLR 726 in support of his contention, that since the wife has left him-the husband who is a handicapped person-when he needs her company and has deprived him of the pleasures of sexual life/she has weated him cruelly and since she is not rejoining him, despite his efforts to rehabilitate her, she has deserted him. Both these authorities are distinguishable on facts. In Sarup Singh’s case (supra) the husband met with an accident and became a paralytic and handicapped person. At that time the wife forsook him, as, according to her, he is not now fit to do anything. She had no reason to leave him in the lurch when he needed her maximum, physical and moral assistance. She left the matrimonial home on her own. It is observed that marital he is to be respected by both the spouses; The bond between them should be so thick that they should be ready to enjoy the pleasures of life and suffer afflictions of life standing side by side. Wedlock should not be a deadlock. She should live in harmony not antimony. With real concerned for each other, they should demonstrate tolerance with sense of reciprocity. In Ranbir Singh’s case (supra) since the wife after completing her B.A. was doing her diploma course, her behaviour was not submissive and obedient to her husband, who is a Head Constable in the Police department. She started living separate from her husband and deprived him of the pleasures of sexual life. On the basis of this evidence, it is held that joint living of the parties has become impossible. Hence decree for judicial separation was granted.
20. In this case, the wife has proved that the husband has treated her cruelly. He has not only caused her physical cruelty when she was living with him, but even thereafter by filing divorce petition Exhibit R 2 he has caused her grave mental cruelty. Because she could not bear any child, she was treated cruelly. She was beaten and was finally forced out of the matrimonial home. No doubt, sex plays an important role in marital life and cannot be separated from other factors, which land to matrimony a sense of fruition and fulfilment. But when the husband behaves in such a cruel manner only on the ground that she is unable to bear any child, she cannot be expected to live with him and to give him all other pleasures of life. It is complained that she is unable to give him sexual pleasure. In this petition the husband is totally silent on this point. Therefore, he cannot be heard on the point that by living separately for the last so many years, the wife has deprived him of sexual pleasures and thus has treated him with cruelty. No doubt, the simple trivialities, which can truly be described as the reasonable wear and tear of married life have to be ignored. But this case has travelled beyond that scope. It cannot be said that she has condoned his acts of cruelty. She lived with him as long as she could tolerate him, tolerate his tortuous and cruel acts, but even then as he was not satisfied with her, he forced her to leave the matrimonial home. Thereafter, now if she does not want to come back to the matrimonial fold, it cannot be said that she has brought matrimonial life to an end permanently. The fact of desertion is obvious, but the husband has utterly failed to prove another element of desertion i.e. animus deserendi. Rather the husband is guilty of constructive desertion. He has compelled her to leave the matrimonial home. If after bearing so much at his hands and after his filing of the earlier divorce petition Exhibit, R 2 she does not want to come back to the marital fold, she cannot be accused of either causing mental cruelty to the husband or of deserting him in the legal sense.
21. Thus, in my considered view, the Trial Court has not fallen into any error in dismissing the divorce petition. Consequently, finding no merit in the appeal, it is hereby dismissed with costs, which are quantified at Rs. 2,000/-.