CIVIL APPEAL None on 27 August 1985

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO No. 50-M of 1993 (O&M)Date of decision: May 03,2011

Yash Paul Handa

.. Appellant

v.

Saroj Handa alias Saroj Malhotra

.. Respondents

CORAM: HON'BLE MR. JUSTICE RAJESH BINDALPresent: Mr. Sumeet Mahajan, Senior Advocate with Mr. Amit Kohar and Mr.Vaibhav Sehgal, Advocates for the appellant.

Mr. D. D. Gupta, Advocate for Mr. A. L. Jain, Advocate for the respondent.

...

Rajesh BindalJ.

The husband is in appeal before this court against thejudgment and decree dated 9.1.1993, passed by the learned court below,dismissing the divorce petition filed by him.

Briefly, the facts are that marriage between the parties wassolemnised on 29.8.1973. Two daughters were born out of the wedlock on24.11.1974 and 16.1.1976. The wife at the time of marriage was employedas a teacher in Government Girls High School, Bassi Pathana, whereas thehusband was working with Food Corporation of India. The parties livedtogether till November, 1978, as claimed by the husband (till March, 1979,as claimed by the wife). Thereafter, the wife stayed with her father at BassiPathana along with her children. She came back in May, 1982 to Patialaand went back in July, 1983. The divorce petition was filed by the husbandon 27.8.1985 on the grounds of cruelty and desertion, which was dismissedby the learned court below on 9.1.1993. It is this judgment and decree of

the learned court below, which is impugned in the present appeal.

The divorce petition was filed by the husband with thepleadings that the respondent-wife resided with the husband till October,1978. She used to go to Bassi Pathana daily to attend her duties in theschool and come back to Patiala in the evening. In November 1978, onaccount of marriage of her brother, she left Patiala many days before themarriage. While going, she took entire jewellery and clothes with her.Even after the marriage had been solemnised, the respondent did not comeback to Patiala, rather, even got the daughters also admitted in the schoolat Bassi Pathana. The efforts made by the husband to bring her back toPatiala either by getting her transferred or even by resigning from the job,did not yield any result. With the intervention of respectables, the wifecame back to Patiala in May, 1982. Both the children were got admitted inthe school at Patiala. Again the request of the husband to get hertransferred to or nearby Patiala was not taken in a good taste by the wife,as every time she used to get her transfer order cancelled while exercisingher influence in the department. Her conduct was stated to be such whichcaused mental cruelty to the husband and made his life a hell. On 8.7.1983,the wife again left for Patiala in vacations along with the children andthereafter did not return back. As there was desertion for a period of morethan two years, the petition for divorce was filed. It was further statedtherein that the wife used to pressurise the appellant to leave his parentsand settle with her at her father's house at Bassi Pathana, as she is the onlyfemale member in the house as her three brothers were living atChandigarh. The appellant-husband could not accede to her request inview of the fact that he was the only son of his aged parents.

In reply, the allegations made by the husband were denied bythe wife stating therein that at the time of marriage, one of the majorconsideration was that she was serving. The family of the husband, whichconsisted of his parents and four sisters, was not financially well-off andliving in a small tenanted house. She lived at Patiala upto March, 1979.She was made to hand over whole of her salary to the appellant. She wasmerely given bus expenses. After the marriage, demand of dowry was

made. The respondent-wife was asked to furnish the account of her earningeven prior to marriage. There was unhappiness on account of the fact that amale child was not born. The respondent being hard pressed and not in aposition to take care of the children had no other choice but to shift toBassi Pathana so that she could take care of the children, however, sheused to visit Patiala on every week-end along with her daughters. In fact,the appellant did not object to her living at Bassi Pathana being unable tocontrol his family members who used to mis-behave with the respondent.She had gone to attend the marriage of her brother only a day in advance.She had only taken few clothes and one set of ornaments. The avermentsregarding transfer of the respondent were denied. It was claimed that therespondent used to contribute for construction of the house by theappellant at Patiala. She also stayed at Patiala during vacations and hadbeen supervising the work of construction of the house along with hermother-in-law. After Greh Parivesh ceremony, the respondent herself cameback to Patiala in the hope that life will settle down. The respondent evenattended the marriage of her sister-in-law in Patiala on 19.4.1984 andstayed there for a month continuously. She further stated that she was stillready and willing to comply with the wishes of the husband and stay withhim at any place he chooses. The allegations regarding pressure on theappellant to shift to Bassi Pathana were denied stating therein that father ofthe respondent was more than 75 years of age and he was residing with hisson at Chandigarh since 1980 on account of some old-age ailments. In fact,the respondent was living at Bassi Pathana along with her daughters.

In the replication, the husband denied the averments made bythe respondent in the written statement and reiterated what was stated inthe petition.

On the pleadings of the parties, the learned court belowframed the following issues:

“1.Whether the respondent has treated the petitioner withcruelty as alleged ? OPPcruelty as alleged ? OPP

2. Whether the respondent has deserted the petitionercontinuously for a period of more than two yearscontinuously for a period of more than two years

preceding the filing of the petition, as alleged ? OPP

3. Whether the petitioner is entitled to a decree ofdivorce ? OPP

4. Relief.”

After considering the evidence led on record and also the factthat during the pendency of divorce petition, the parties lived together forsome time from June, 1988 to August, 1988, the petition was dismissedfinding that there was no cruelty and further that it was pre-mature.

Arguments

Learned counsel for the appellant-husband submitted that it isa case in which the parties lived together only for 5-6 years after themarriage and are residing separate for the last more than two decades. Thisitself amounts to cruelty as the husband is being deprived of the pleasuresof matrimonial life. He was also deprived of the love and affection of hisdaughters. In fact, the respondent could not adjust in the matrimonialhome. She used to taunt about the status of the family. She abandoned thematrimonial home and went to her parental home in November, 1978 onthe occasion of marriage of her brother but never to come back. She goteven the children admitted at Bassi Pathana. With the intervention ofrespectables, she was convinced to come back in May, 1982. Thereafter,she stayed for about a year and again went back on 8.7.1983. Allpersuasions to bring her to the matrimonial home failed. Under thesituation, the appellant filed a divorce petition on 27.8.1985. As providedin law, efforts for reconciliation were made and as a result thereof fromJune to August, 1988, the respondent remained with the appellantintermittently for a few days but there was practically no matrimonialrelation as there was no cohabitation.

He further argued that one of the grounds on which thelearned court below held the petition to be pre-mature is that during thependency of the petition before the learned court below, the parties hadlived together. In fact, that was in terms of the policy. That cannot be takento be against the appellant, as the court was required to make those effortsbefore finally deciding the case. That will not dilute the ground ofdesertion taken by the appellant as even after August, 1988, the petition

remained pending for about five years and the parties lived separate.

As regards cruelty, the learned court below held that therewere vague allegations in the petition. The fact is that the appellant did notwant to level wild allegations against the respondent. It should not betaken against the appellant.

He further submitted that the conduct of the respondent duringthe pendency of appeal before this court is also relevant and is required tobe considered by this court, namely, that on 10.10.2000, FIR No. 518 wasgot recorded against the appellant and his mother under Sections 494/498-A IPC. Both were arrested and remained in jail. However, ultimately thetrial court acquitted the respondent on 3.3.2007. The appeal filed by theState against the judgment of acquittal was dismissed on 11.2.2009.

Still further, the submission was that intention of the wifewas not to live at Patiala. She made all kinds of excuses for the same. InJuly, 1978 she was transferred to village Lachkian near Patiala but got thetransfer order cancelled stating that she only wanted to be transferred toPatiala, though the aforesaid village was merely eight kilometers fromPatiala. He further referred to the statement of R.W. 5- Sardari Lal, brotherof the respondent, who did not say that relation of the parties werestrained. In fact, there was no cogent explanation available on record as towhy the respondent was living separate. In the absence thereof, thedesertion was duly proved. Reliance was placed upon Krishna Deviv. BrijBhushan, 2007(2) RCR (Civil) 556; Sanghamitra Ghoshv. Kajal KumarGhosh, (2007) 2 SCC 220; Rishikesh Sharmav. Saroj Sharma,(2007) 2SCC 263 and Samar Ghoshv. Jaya Ghosh, (2007) 4 SCC 511.

On the other hand, learned counsel for the respondentsubmitted that the appellant in the present case has not been able to proveeither the desertion or the cruelty. There is no specific instance in thepetition filed by the husband regarding any act of cruelty by therespondent. In the absence of any specific allegation, no evidence led insupport thereof cannot be considered, though even there is no evidencealso as such on record. The wife never wanted to leave the matrimonialhome. It was because of the conduct of the family members of the

appellant that in larger interest of the welfare of the two daughters, whowere to be taken care of, that the respondent had shifted to Bassi Pathanawhere she could properly educate them. In fact, the appellant alwaysshirked from his responsibilities. He was more attached towards hisparents and sisters. Even after shifting to Bassi Pathana, which was withthe consent of the appellant, the respondent had been regularly visitingPatiala on week-end or the holidays. She had even contributed forconstruction of the house at Patiala and also spent time in supervising theconstruction along with her mother-in-law. She had attended the GrehParivesh ceremony in the year 1982. Not only this, she had also attendedthe marriage of her sister-in-law on 19.4.1984. That itself shows thatrelations of the families were not strained. At the very first occasion, therespondent in her reply to the divorce petition filed by the appellant, whichthough was a shock for her, stated that she was ready and willing to livewith the respondent wherever he wants. She had even lived with himduring the pendency of the petition before the court below during June toAugust, 1988. To submit that there was no co-habitation is patently wrong.The parties lived like husband and wife. In fact, the appellant alwayswanted to avoid the respondent. He was trying to find ways and means forthe same. Her living at Bassi Pathana was with the consent of theappellant, however, now he wants to give it a colour of desertion. Insupport of her plea that she had been regularly visiting Patiala even aftershe had come to Bassi Pathana, she had produced oral evidence whereasagainst that, there is only the statement of the appellant with nocorroboration. Though the husband is trying to take a stand that he hadasked the respondent to leave the job and shift to Patiala but consideringthe fact that he was not supporting the family and she was to take care ofthe children, she did not take that decision. Now without the help of theappellant, both the daughters have been married. The FIR was gotregistered under Section 494 IPC for the reason that the husband in facthad either re-married or had living relations with some lady. The momentit came to the notice of the respondent, the FIR was got registered. Merelybecause the husband had been acquitted on account of lack of evidence,

the same should not be taken against the respondent. In matrimonial cases,many decisions are taken by either of the parties as advised by theircounsels. The fact that the wife had not indulged in any litigation againstthe husband or his family member ever since she started residing separatein March, 1979 till the filing of the divorce petition, shows that there wasno ill-will. He further referred to Diwali greeting card (Ex. R1) sent by theappellant in the name of the daughter which even had a message from thesister-in-law of the respondent to her and also for the children. Theaforesaid greeting card shows that there was no ill-will as such in thefamily.

Heard learned counsel for the parties and perused the relevantreferred record.

The undisputed facts on record are that the parties are livingseparate since July, 1983. Thereafter, for a short period, the parties livedtogether from 2.6.1988 to August, 1988 during the pendency of divorcepetition before the learned court below as the efforts were being made forreconciliation. Though it is sought to be claimed that subsequent thereto aswell the wife had been visiting her matrimonial home, but there is nodefinite material on record to show that. The husband, who is the onlyson of his parents, is living at Patiala, whereas the wife shifted to herparental home at Bassi Pathana. Even though initially it was sought to beclaimed that because of the father of the wife being not well, she wasliving there but in fact it has come on record that later on the father hadshifted to Chandigarh and was living with his son. The intention of thewife not to live with the husband is evident from the fact that once she wastransferred to a village close to Patiala but she got her transfer ordercancelled. Meaning thereby to state that the wife was living at BassiPathana on account of her job requirement will not be correct, more so ithas come on record that even at the time of marriage the wife wasemployed and after the marriage she had been attending to her duty bycoming daily to Bassi Pathana from Patiala.

It has also been claimed by the wife that she had performedthe marriage of her daughters without the help of the husband. Nothing

produced on record has been referred to at the time of hearing to show asto whether father was even informed of the marriage and requested to join.

Still further, though admittedly from the year 1988, theparties are living separate but still on 10.10.2000, the wife got FIR No. 518registered against the husband and his mother under Sections 494/498-AIPC. Both were arrested and remained in jail till they were released onbail. However, they were finally acquitted by the trial court and even theappeal filed by the State against the judgment of acquittal was dismissed.Meaning thereby, apparently false allegations were levelled against thehusband and his mother regarding demand of dowry and also bigamy. Thiswould certainly amount of cruelty.

The claim made by the wife that the husband was moreattached towards his parents and the sisters is merely to be noticed andrejected considering the fact that a person has to perform many duties andmaintain many relations. The marriage does not mean the end of otherrelations. The man is a social animal. Many a times it is seen in the societythat the wife does not tolerate the relatives including the parents of thehusband and that becomes the root cause of difference of opinion, whereason the other side, she expects the husband to entertain and have relationswith her family. These double standards adopted by the wives createbitterness. In case the things are taken positively and the wife joins thehusband in performing the social obligations, this reason for difference ofopinion can very well be avoided.

Even the finding recorded by the learned court below to theeffect that the parties having lived together during the pendency of petitionbefore the court below the divorce petition was pre-mature, is totallyerroneous. The courts are required to make serious efforts forreconciliation, which is the mandate of law. It is only after the process ofmediation and conciliation in the matrimonial dispute fails that the courtsshould proceed to decide the case on merits. In the present case as well,such an effort was made by the court and it succeeded also to some extent,as the parties were made to live together. However, still since they wereproceeding further in two parallel lines, there was no joining point. They

remained where they were. The parties were, in fact, summoned in thiscourt in person as well, but there were no chances for reconciliation.Denial of pleasure of matrimonial life for such a long duration amounts tocruelty.

For the reasons mentioned above, in my opinion, the appellanthas been able to make out a case for grant of divorce on the grounds ofdesertion and cruelty. Accordingly, the appeal is accepted. The judgmentand decree of the learned court below is set aside. The divorce petitionfiled by the appellant-husband is accepted. Decree sheet be preparedaccordingly.

May 03,2011mk

( Rajesh Bindal ) Judge