Sarojnei Saksena, J.@mdashThis is wife''s appeal against decree of divorce granted on April 28,1988, by Mr. M.L. Singal, Additional District Judge, Amritsar on the grounds of cruelty and desertion.
2. Uncontroverted facts of the case are that wife-appellant was married to petitioner-respondent Kimti Lal on February 4, 1971 at Amritsar according to Hindu rites. The matrimonial home is at Tarn Taran. In this wedlock appellant Kailash Rani has given birth to three children, who were aged 13,11 and 10 years at the time when the petition was presented in the month of December, 1986. Since November, 1979 they are living separately. The children are with the mother. Appellant-wife filed a petition u/s 125, Cr.P.C. against the husband/ father claiming maintenance for herself and her children, which is allowed by the Magistrate''s Court. Husband-respondent also filed a petition u/s 9 of the Hindu Marriage Act, 1955 (in short, the Act) which was dismissed.
3. Petitioner-respondent''s contention in the lower Court was that after marriage for few months, Kailash Rani behaved properly with him and his family members. He is living with his mother, brothers and sisters. Thereafter she started pressing upon him to have a separate residence for both of them. He could not accede to her wishes, as he was supporting his family. His father is not shouldering the responsibilities of the family. His brothers- and sisters were unmarried when he filed the petition. Since her request was not acceded to, she started nagging him. At times she refused to cook food also. She not only misbehaved with him but with his mother, brothers and sisters also and sometimes with the children as well. Once she threatened him to commit suicide with a view to implicate whole of the family in a criminal case. Her behaviour towards him, his children and specially with his mother made him mentally upset. Thus, she treated him with mental cruelty. In the month of November, 1979, repudiating all marital obligations, she left the matrimonial roof and started living at her parental home alongwith children. Thereafter in the month of January, 1980, she filed a petition u/s 125, Cr.P.C. In those proceedings she deposed that she is not prepared to cohabit with him. Maintenance is granted to her and to the children as well, which is being paid to them. He took Panchayats also and many a times he himself asked the appellaiit wife to come back to the matrimonial home, but she declined and thus she has deprived him of the pleasures of married life and thereby also she has treated him with cruelty. Alleging that he has not condoned her acts of cruelty, he claimed divorce on both these grounds u/s 13 of the Act.
4. Wife-appellant in her written statement repudiated all these allegations and asserted that she always behaved like a dutiful wife/daughter-in-law in the matrimonial home, but she was harassed and maltreated by her husband as was not satisfied with the dowry brought by her. He demanded cash for his business. As her father has died and her brother is not in good financial position to give the demanded cash to the husband, she was maltreated. Ultimately she was beaten and was turned out of the matrimonial house alongwith all the children. She has also denied that she ever threatened him to commit suicide and to implicate the whole of his family in a criminal case. She filed maintenance petition, which is allowed. Thereafter the husband-respondent used to come to Amritsar at her parental home to pay her maintenance and on those occasions he used to reside with her for few days. Thus, both the grounds of .cruelty and desertion are emphatically denied. �
5. On these pleadings, issues were framed. Parties adduced their evidence.
6. The Trial Court came to the conclusion that the wife treated the husband with cruelty, threatened him to commit suicide with a view to implicate them all in a criminal case. She not only maltreated her husband but also her mother-in-law, brothers-in-law and sisters-in-law. The Court rejected her plea that the husband ever demanded anything in dowry and on being dissatisfied he maltreated her. The Court also believed that she insisted that he should reside separately with her but he expressed his inability as he was maintaining his whole family. His brothers and sisters were unmarried and his father was not shouldering the responsibilities of the family. That enraged her so much that she started torturing the husband to the utmost and in November, 1979 without any reasonable cause or excuse she left the matrimonial home. The Court also held that even thereafter the husband made attempts to bring her back, but she declined. Thus she has deserted him and factually has bought cohabitation permanently to an end. On the basis of these findings, the Court granted decree of divorce in favour of the husband.
7. The appellant-wife''s learned Counsel valiantly argued that the husband has utterly failed to prove both the grounds of divorce. Husband''s only allegation was that after 5/6 months of the marriage, the wife insisted that the husband should live Keparately with her, leaving his brothers, sisters and mother. He could not accede to her wishes as he is shouldering all the responsibilities of the family. His refusal enraged the wife and she started misbehaving with him and with the members of his family. On that count alone she threatened that she would commit suicide and implicate all the in-laws. The husband''s contention is that thereafter in November, 1979, she left the matrimonial home and refused to come back though he made many efforts to bring her back. Learned Counsel, criticising the statement of the husband, argued that in Indian society no woman, would leave her matrimonial home simply on this ground that the husband has refused to set up a separate residence for her. So far as cruel behaviour is concerned, the husband alone has stated so. He has not examined his brothers, sisters or mother to corroborate his testimony. No doubt, he has examined his two neighbours, but they did not say a word about the cruel behaviour of the wife. They have only deposed that she asked him for a separate residence and when he declined, she went to her parental home. They were the members of the Panchayat. They went to her parental home, asked her to come back but she declined on the same pretext. He also pointed out that conversely the wife has examined Bihari Lal RW-2, who is father of the husband-respondent. Bihari Lal has corroborated the statement of Kailash Rani and has repudiated ail the allegations made by Kimti Lal husband against his wife Kailash Rani. According to him Kailash Rani has given a reason why she was beaten and turned out of the matrimonial home. According to her, he demanded cash, but her father is dead. Her brother was not in a position to pay that amount to her husband. Therefore, he maltreated her and turned her out of the matrimonial home. The fact that all the three children are residing with the appellant-wife clinches the issue. Had she left the matrimonial home on her own on account of non-fulfillment of her wish of separate residence, at least she would not have been in a position to take all the three children with her. This fact only shows that she was turned out of the matrimonial home by the husband alongwith the children. This happened in November, 1979. In January, 1980 she filed a petition u/s 125, Cr.P.C. which was allowed despite the hot contest put up by the husband-respondent. The case went upto the High Court and ultimately the order of maintenance was upheld.
8. He also pointed out that the husband-respondent filed a petition u/s 9 of the Act for restitution of conjugal rights, which was also dismissed. These legal proceedings also corroborate her stand that she was maltreated and was turned out of the matrimonial home. She has denied that she ever asked the husband to live separately or she quarreled or misbehaved with him or with his family members. She has also denied that she threatened her husband to commit suicide as he was not agreeing for separate residence. Bihari Lal RW-2 has corroborated her on all the material particulars.
9. The respondent-husband''s learned Counsel countenanced all the arguments raised by the appellant-wife''s learned Counsel. She submitted that the husband was keen to live with her. Because of the family responsibilities he was not in a position to have a separate residence. That enraged the wife so much that she left the matrimonial home and since November, 1979 she has hot resumed cohabitation with the respondent. Husband-respondent has proved that after 5 / 6 months of the marriage, she started misbehaving and ill-treating him and his family members because he declined to have a separate residence. He has also stated that once she threatened to commit suicide with an intention to implicate all the in-laws in a criminal case. So far as Bihari Lal RW-2 is concerned, her contention is that he is not on good terms with his son-respondent. Therefore, he has deposed against the interests of his own son. According to her, the Matrimonial Court has rightly not relied on his statement.
10. In support of the rival contentions, both the Counsel have relied on
11. In this case the husband-respondent''s only allegation is that the wife wanted him to live separately. When he declined she started misbehaving, and harassing him and his family members and on that count once she threatened him to commit suicide to implicate his whole family. But no other witness has corroborated him on the point that she threatened to commit suicide. Wife-Kailash Rani has denied this allegation. She has also denied that she ever asked him to live separately or she misbehaved or tortured her husband or his relations. She has given another reason. According to her, the husband demanded cash to be brought from her parental home. Her father is no more alive. Her brother is not in a position to pay that amount to her husband. That enraged the husband and'' he turned her out of the matrimonial home. She has also stated that even earlier on many occasions the husband turned her out of the matrimonial home. She has given birth to three children in this wedlock and the children are residing with her. her father-in-law Bitiari Lal RW-2 has corroborated her. He has testified that Kimti Lal was torturing Kailash Rani for �not bringing cash from her parental home. In the estimation of the father, Kimti Lal is a man of bad character as he is addicted to drinking.
12. No doubt, since November, 1979 wife-Kailash Rani is residing in her parental home but this is also proved on record and is also admitted by Kimti Lal husband-respondent that after the maintenance order was granted in her favour, he used to go to Amritsar to pay her maintenance and on each occasion he used to stay with her for.2/3days. He has also admitted that since the date of the filing of this divote petition; he has stopped going to his. wife, The Trial Court has commented that only on the basis of this circumstance it cannot be deduced that the couple resumed cohabitation during his these visits. Parties are silent over it. As it is a natural conduct, no such adverse inference can be drawn. Husband-respondent Kimti Lal has admitted that before filing this divorce petition he was regularly going to Kailash Rani''s parental home at Amritsar within every 2/3 months to pay her the maintenance amount and used to stay with her for 2/3 days. Thus, it becomes obvious that the husband-respondent has failed to prove that Kailash Rani repudiated the marital obligations completely and thereby has deserted him for the last two years preceding the presentation of the petition.
13. Further, the husband cannot be allowed to take advantage of his own wrong. If he ill-treats the wife and drives her out of the matrimonial home thereafter he cannot complain that she has deserted him. If the wife Kailash Rani would have left the matrimonial home without any reasonable cause or excuse, his petition filed u/s 9 of the Act would have been allowed and further considering the provisions of Section 125(4), Cr.P.C. Kailash Rani''s petition for her own maintenance would have been dismissed by the Magisterial Court, but that order was confirmed upto the stage of High Court. These circumstances lend support to Kailash Rani''s statement that husband Kimti Lal was demanding money and since his demand could not be satisfied by her brother, she was tortured and was driven out of the matrimonial home. Therefore, she has a reasonable cause and excuse to live separate from him. On both these counts it cannot be said that she has treated the husband with cruelty or has deserted him.
14. So far as the point of cruelty is concerned, husband-respondent Kimti Lal could not examine his brothers, sisters or even his mother to corroborate his statement that Kailash Rani was asking him to live separate and as he declined to accede to her dictate, she started nagging him and misbehaving with his mother, brothers and sister and also with her own children. If this would have been true, at least Kimti Lal''s brothers, sisters or mother could have been examined to corroborate him, though during trial they were attending the Court in person, as it evident from the statement of Kailash Rani herself. Conversely, Kailash Rani has examined Bihari Lal RW-2 who has specifically stated that Kimti Lal was demanding money from Kailash Rani. As she could not bring money from her brother/he started maltreating her, beat her and turned her out of the matrimonial home. He has denied that she ever misbehaved with her husband or with other members of the family. He has also denied that she ever threatened to commit suicide. According to Bihari Lal RW-2, she always behaved like a dutiful daughter-in-law .and her behaviour was proper with all the members of the family. He is categoric that he is living jointly with his sons in the same house. Even this part of the statement of Bihari Lal could not be controverted by husband Kimti Lal. Even her brother Mohan Lal RW-3 has stated that Kimti Lal was demanding money. As he was not in a position to pay that amount, husband-respondent Kimti Lal turned out Kailash Rani from matrimonial home in 1979. He has also testified that Kimti Lal filed a petition u/s 9 of the Act, which was dismissed. In that case also Kailash Rani has stated that she is ready and willing to reside with her husband. Even before the lower Court Kaitesb Rani testified that she is still ready and willing to go to her matrimonial home but Kimti Lal has emphatically stated that now he does not want to rehabilitate her.
15. The Trial Court has wrongly observed that if Kailash Rani was ready and willing to resume cohabitation with the husband-respondent, she would have filed a petition u/s 9 of the Act and since no such petition is filed by her, that indicates that she does not want to come back to the matrimonial home. No such inference can be drawn. The facts of this case are otherwise. The husband file a petition u/s 9 of the Act, which was dismissed.
16. On metriculous and minute scanning of the evidence on record, in my considered view, the husband respondent has utterly failed to prove both the grounds of divorce, i.e. cruelty and desertion. He maltreated the wife, drove her out of the matrimonial home; even thereafter used to go to her parental home and used to reside with her for few days on each such occasion when he used to go to pay maintenance to her and, therefore, u/s 23(1)(a) of the Act, he cannot be allowed to take advantage of his own wrong and seek divorce on these grounds.
17. The husband-respondent''s learned Counsel argued in the alternative that it is a case of broken marriage. Hence, on this ground the decree of divorce can be granted in favour of husband. While considering the facts of the case, I have held above that the husband drove out the wife of the matrimonial home as his demand was not satisfied and he treated her with cruelty. No doubt, the parties are Using separate since November 1979, but if such prayer is allowed in a case of such facts, it will amount to negating the provisions of Section 23(1)(a) of the Act. Thus, in my considered view, even on this ground that marriage has irretrievably broken, divorce decree cannot be granted in favour of the husband.
18. Consequently, the appeal is hereby allowed. Trial Court''s judgment and decree are set aside.
