JUDGMENT
J.S. Narang, J.
1. Ram Partap, the respondent-husband got married to Smt. Vimlesh the appellant-wife on 3.2.1982 according to Hindu rites and the Ceremonies at Sirsa. Both of them resided in the material home and the marriage was duly consummated. A son was born out of this wedlock, in January, 1983.
2. A petition has been filed by the husband under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) on 11.10.1994 for seeking divorce on the ground of mental cruelty caused to him on account of abbreviated quarrelsome behaviour of the wife. It is further alleged that she avoids to perform her obligations qua the household liabilities and consistently uses foul language towards the husband and the other members of the family. It is further averred that the husband kept on bearing with it to save the marriage and buy peace for the family and also in the larger interest of the child. It is alleged that about three years prior to the filing of the petition, the wife had picked up such quarrels on petty matters and created unpalatable situation in the family. It is further averred that she avoided making meals, cleaning utensils, washing clothes etc. and that whenever she was asked as to why these things have not been done by her, in return, abusive and rustic language was used. The cumulative effect of the same has been that the husband has suffered mental cruelty and unbearable torture at the hands of the wife. It is further alleged that the matter was taken up with the father of the wife and in return he had taken her to his own house on 14.11.1985 and that since then she has not come back to her matrimonial home. It is averred that at the time of leaving the matrimonial home, she had taken with her all the valuable, clothes, ornaments and cash amounting to Rs. 8,000/-. The husband made numerous efforts to bring her back to the matrimonial home but the wife and her parents were never ever inclined to accept the request of the husband. On a number of occasions, a panchayat of the respectable was taken to the house of the wife but the effort was without any successful result. It is contended that the wife deserted the petitioner for almost 9 years, the petition for seeking divorce was filed on both the grounds i.e., mental cruelty and desertion.
3. The wife contested the petition and filed a detailed written statement. It has been categorically averred that she never ever wanted to leave the matrimonial home and she has always been willing to go back to her matrimonial home and has always been performing her matrimonial obligations and has always been a dutiful wife. It has also been categorically stated that she had never left the company of the petitioner voluntarily and had also never left the matrimonial home at her own instance and that in fact she had been thrown out of the matrimonial home by him. The allegation is that the husband never accorded an appropriate status to the wife and infact always showed his inclination to remarry a woman who may prove to be a modern wife. It is admitted that the wife is not a very highly educated lady but at the same time has always proved to be a dutiful house wife as she has brought up her child in a dignified and proper manner. She herself and her parents made a number of attempts to rehabilitate her matrimonial home but the obstinacy on the part of the husband completely deterred her efforts. It is contended that she is and has always been ready and willing to live with the husband and it has been emphatically denied that any panchayat of the respectable/elders of the family of the husband came to the house of the wife for bringing her back to the matrimonial home. It has been further denied that she had ever brought anything from the matrimonial home much less the ornaments and a sum of Rs. 8,000/-, in fact she had been turned out of the house without anything but with the child.
4. A replication has been filed denying all the averments contained in the written statement and reiterated the averments contained in the petition.
5. Upon pleadings of the parties, the issues were framed, one relating to cruelty and the other desertion on the apart of the wife. The evidence has been led by both in support of their respective claims.
6. The husband appeared as his own witness and his father has also been examined as a witness and three more witnesses, namely Sarvashri Mahabir Parshad, Jagdish Chander and Gian Chand have been examined from the vicinity of the matrimonial home. So far as statement of the husband and the father is concerned, it is tutored statement. A perusal of the statement of the husband shows that there are certain averments which have been made in examination in chief which have not been stated in the petition and that he has categorically admitted that the allegation relating to the threat given by the wife to self immolate herself was not reported to the police authorities. He has also admitted that at the time of marriage, he was not employed in service but was working as an Agent of the National Insurance Company. He has also admitted that he had never even filed any petition for restitution of conjugal rights nor any application had been filed for taking custody of the child. It is also admitted that he has never ever spent any money for bringing up of the child he has categorically stated that he is not willing to take her to the matrimonial home even if she is ready to live with him without any condition. The perusal of the statement of the father of the husband also shows that it is tuterred statement as he has also alleged the facts as have been stated by the husband. However, he has corroborated the fact that the threat of self-immolation allegedly given by the wife was never reported to the police authorities. He has admitted that his son had stayed with the wife for some time but she is not capable of staying with him now. He has also admitted that he has never even sent any gift or any article to his grandson but has stated that he had gone twice to bring him to his own house.
7. So far as the other witnesses are concerned, they have not made statements which are corroborative of the allegations stated to have been made by the husband in the petition. It has been admitted by one of the witnesses, namely, Shri Jagdish Chander that the fact that has been stated by him relatives to about 11 years ago. He has also admitted that the statement made by him in examination-in-chief is not corroborative from any record as none has been brought by him. He has also admitted that nothing has been entered in any minute book of the Sabha relating to the dispute of the husband and wife. Another witness Shri Gian Chand has categorically admitted that ladies of the house of the husband are Parda Nashin ladies and resultantly there is no inter-action of the family of the witnesses and the husband. He has also admitted that he had never ever heard any kind of shrieks or loud voices from the house of the husband and he has tried to clarify the statement by stating that the meaning of this statement is that he has never ever heard them creating a situation which could be termed as harassment to the wife.
8. On the other hand, the wife has examined herself as her own witness and has also examined her father as witness and apart from them no other witness had been examined. She has categorically stated that she has been turned out of the house in the year 1985 on the auspicious occasion of Diwali. She has also stated that all her dowry articles inclusive of Istridhan are in possession of the husband and his family members. She has categorically stated that she used to attend to the domestic responsibilities as a dutiful wife. The change in the behavior of her husband was found after he had been taken into service by the Insurance Company. It has been admitted by her that her husband was residing at Elanabad and that he used to come to Sirsa occasionally but she had not been taken to Elanabad but was asked to remain in the house of the husband at Sirsa. She has categorically denied that she had ever quarreled on petty matters and used to leave the matrimonial home without the consent of her husband. The perusal of the cross-examination shows that the suggestions given to her are not at all corroborative of culmination into mental cruelty allegedly stated to have been caused to the husband. The father of the wife has categorically stated that his daughter had been sent back to the parental home with one requirement that she should agree for granting divorce to her husband. It has also been admitted that the wife had not gone to the house of the husband on the occasion of marriage of her sister-in-law and brother-in-law and on other occasions as she had never been invited on such occasions.
9. Learned Additional District Judge has returned finding upon the issue, relating to mental cruelty, against the husband. It has been categorically held that even if disputes on small and petty matters are taken to have been admitted, this would not mean that the same can be stated to have culminated into mental cruelty caused to the husband. Small difference between husband and wife are the normal way of life, it is inevitable result when two persons live together, some differences do occur between the two. Such consequences are natural. Even if two brothers are living together, they also bound to have difference of opinion and that small differences between father and son also cannot be ruled out, this would not mean that they would fall apart and would become enemies or such differences would result into making sour the relationship between themselves. The husband has not been able to lead any cogent evidence wherefrom it can be inferred that he suffered from mental cruelty on account of the actions of the wife. Thus, the learned Additional District Judge has come to a correct conclusion and decided the issue against the husband.
10. So far as issue No. 2 relating to desertion is concerned, the finding has been returned against the wife holding that she had deserted the husband by leaving matrimonial home in the year 1985 and had never gone back to her matrimonial home. I am afraid, the finding is not well based. It is the statement of her husband that a panchayat had been taken to her house to bring her back to the matrimonial home but no corroborative evidence has been brought on record in this regard. He has categorically admitted that he had never ever filed any petition for restitution of conjugal rights. The petition has been admittedly filed after nine years from the alleged date when the wife is stated to have gone out of the matrimonial home. It has been stated by the wife that in fact she had been turned out of the house. The father had made best possible efforts for persuading his son-in-law and the father of the son-in-law for rehabilitating his daughter into the matrimonial home. It is unfortunate that she had never been accepted into the family. It has been stated by him categorically that he always wanted that his daughter should go back to her matrimonial home and should live happily with her husband. Whereas, the approach of the husband and his father had never ever been congenial. In fact, they had always been asking that she should give her consent for dissolution of the marriage performed. It has also been admitted by the husband and the father of the husband that they have never ever sent any money for the unkeep of the wife and the grandchild. This approach itself shows the attitude of the husband and the grandfather. It is normally said that a grandfather always has a soft corner for the grandchild but in the facts averred and the evidence brought on record nothing of the kind has been seen. It has been admitted that the wife is only a matriculate and perhaps this fact has not been really accepted by the husband. The so called independent evidence, brought on record by the husband, has rather proved one fact that the alleged allegation against the wife that she had not given respect to the members of the family of the husband and that she had insulted the husband and the members of the family by using foul language, the witness Shri Jagdish Chander has categorically stated that he had not heard any kind of loud voices or any kind of shrieks from the house of the husband which corroborates that such allegations are false.
11. Admittedly, the wife has also not filed any petition for seeking restitution of conjugal rights. Be that as it may, the fact which has come on record is that the ladies of these familities are ‘Pnrda Nashin ladies’ thus filing such kind of petitions is not expected from them. The wife has categorically stated in the petition and also in her oral evidence that she has always been ready and willing to join her husband in the matrimonial home but he was not willing to take her back into the matrimonial home. However, husband has categorically stated that he is not willing to take her back to the matrimonial home even if she wants to come back without any condition. This statement categorically belies the claim of the husband that the wife had deserted him. The statement of the husband has not been taken note of by learned Additional District Judge. The excepts taken from the cross-examination of the husband read as under: –
“I am not ready to keep the respondent with me at this stage even if she is ready to
join me unconditionally.”
12. The citations which have been referred to by the learned Additional District Judge are not applicable to the facts of the present case. He has lost sight of the statement made by the husband as noticed aforesaid.
13. I am of the opinion that learned Additional District Judge fell into error in returning finding on issue No. 1 against the appellant and in favour of the husband, no cause or circumstances has been spelt out from which it could be inferred that the appellant had deserted her husband. The fact is that the husband has not shown inclination at any stage to take her back or bring her back to the matrimonial home. He has categorically stated that even if she wants to come back to the matrimonial home without any conditions, he is not ready to take her back. Resultantly, it is this reason that he had never ever filed any petition for restitution of conjugal rights. Thus, the allegation that she has deserted and she has never been ready and willing to join matrimonial home stands belied.
In view of the above, the appeal is accepted and the finding on issue No. 2 as re
turned by the learned Additional District Judge is reversed. Resultantly, the petition filed
by the husband for seeking divorce on the ground of mental cruelty and desertion is dismissed. The decree be drawn accordingly.