Anju vs Krishan Singh Thakur

Tarlok Singh Chauhan, J.

CMP No. 18245 of 2014.

This application has been preferred by the applicant for amendment of the petition filed by her under Section 13(1)(ia) of the Hindu Marriage Act whereby she has sought incorporating Section 13(1)(ib) of the Hindu Marriage Act (hereinafter referred to as the ''Act''). It is alleged that inadvertently the appellant had only mentioned the provisions of Section 13(1)(ia) of the Act and failed to insert Section 13(1)(ib) though her case as pleaded clearly fell within the purview of Section 13(1)(ib) of the Act. It is further represented that it is only on account of typographically mistake that this error has occurred and the applicant even otherwise does not want to lead evidence.

Taking into account the averments made in the application and the nature of amendment proposed, I find that this application is only formal in nature and, therefore, deserves to be allowed. Moreover, the applicant has clearly stated that she does not intend to lead any evidence in support of the same and would rely upon the pleadings and evidence already led.

Taking into consideration all the aforesaid facts and circumstances, I find that the applicant has been able to carve out a case for amendment of the petition and the application is accordingly allowed and the amended petition is ordered to be taken on record. Application disposed of.

FAO (HMA) No. 32 of 2014.

The appellant (hereinafter referred to as the petitioner) had sought divorce under Sections 13(1)(ia) and (ib) of the Act for dissolution of her marriage. It is alleged that marriage between the parties had been solemnized as per the Hindu rites and custom prevalent in the area on 02.08.1987. After marriage, the petitioner and respondent lived and cohabited together as husband and wife and three issues were born out of this wedlock. For the initial five years of her marriage, the petitioner was treated well, but thereafter the respondent started maltreating and beating her without any rhyme or reason. The respondent began to demand dowry such as ornaments and cash and openly threatened her that in case she failed to do so, he would kill her. The respondent also started beating their minor children Vikash and Avinash. On 22.10.2008 after giving severe beatings to the petitioner and the two children, the respondent turned them out from the house and threatened them not to return back, failing which they would be done away with.

It is further pleaded that the respondent deserted and neglected the petitioner and proceedings under Section 125 Cr.P.C. and Domestic Violence Act were stated to be pending.

The respondent was served in the proceedings and appeared before the trial Court on 31.05.2013, but lateron failed to file reply and his counsel also did not appear, constraining the trial Court to proceed ex parte against the respondent.

To substantiate the allegations of cruelty, the petitioner filed her affidavit Ex. PW-1/A wherein all the averments made in the petition were reiterated. She also examined her mother Bimla Devi as PW-2, who in her statement reiterated what the petitioner has stated in her affidavit Ex. PW-1/A.

The learned Court below dismissed the petition on the following grounds:-

i) The petitioner had not examined her two sons and, therefore adverse inference was drawn against the petitioner for not examining her two sons Vikash and Avinash.

ii) It was not believable that after 21 years of marriage, the petitioner would be turned out of the matrimonial home that too when she failed to meet the demand of dowry.

iii) It was difficult to believe that after 5 years of marriage, the respondent would demand dowry.

iv) It was next difficult to believe that even after demand of dowry, the parties continued to have conjugal relationship for another 16 years during which time the younger son of the parties Abhay Thakur was born.

v) The petitioner had failed to examine any witnesses from the vicinity to prove the allegations of beatings. Statement of PW-2 did not inspire confidence as she was highly interested witness.

vi) It was not understandable how the petitioner continued to tolerate the respondent under one roof when demand of dowry had been made after five years of marriage.

vii) The petitioner''s statement did not inspire confidence as it was not understandable why she chose to remain tight-lipped despite the fact that she was beaten by the respondent and turned out her from the matrimonial home alongwith two sons.

I have heard learned counsel for the petitioner and have gone through the records of the case and find that the findings recorded by the learned Court below are not at all sustainable and are based more on individual perception than being based on records. The findings as recorded are based on surmises and conjectures and, therefore, cannot be sustained.

In a case of this nature, there is no rule of law which may require corroboration of the petitioner''s testimony in the sense that even the testimony of a single person especially the victim of cruelty in a proceeding, can be acted upon if it inspires confidence. The requirement of corroboration where cruelty is alleged is merely a matter of practice and not a rule of law and it has never been decided that the Court is not entitled in a proper case, where there is no doubt where the truth lies, to act on the uncorroborated testimony of the petitioner.

The learned Court below has been totally oblivious to the fact that in cases of this character where cruelty is committed inside the doors of the house, the possibility of eye witnesses is remote. Moreover, it is more than settled that it is the quality and not quantity of the evidence that matters.

I fail to understand how the learned Court below proceeded to draw an adverse inference only because the petitioner had not chosen to examine her two sons in support of her contention, particularly, when her mother PW-2 had already stepped into the witness box.

The mere fact that 21 years of marriage and 16 years of alleged cruelty had elapsed was no reason to disbelieve the evidence led by the petitioner. It is common knowledge that the parties to a matrimonial home irrespective of the differences, maltreatment, cruelty etc. still try to protect their matrimonial home from public gauge and seldom discuss or disclose these facts. Therefore, mere silence over such period of time could not have been held to be a circumstance against the petitioner, particularly, when cruelty can never be a acquiescence.

Further, it is beyond my comprehension as to how the case of the petitioner could have been rejected by the Court below on the ground that petitioner had failed to examine any witness from the vicinity. The petitioner had never claimed that she had been beaten in public view or in the presence of her neighbours. I only need to remind the learned Court below that the physical cruelty complained of is cruelty behind the close doors of the matrimonial home and, therefore, there will hardly be any witness of the same. I observe so because it would be puerile and artificial to accept independent oral evidence to corroborate such matrimonial cruelty.

The wife has made specific complaint of matrimonial cruelty. According to her, she used to be assaulted by her husband though she had, of course, not complained to the police or the doctor. But, then in absence of evidence of medical expert or a report to the police, according to me, would be too meager, myopic and puerile reason to discard the evidence about matrimonial physical cruelty.

The only factor which appears to be weighed with the learned Court below was that though the petitioner claimed that cruelty was being meted out to her since last 16 years, but during this period, she had given birth to the younger son of the parties which belied her claim. The mere fact that the petitioner gave birth to the younger son about 12 years ago could only be a circumstance to hold that the petitioner at the relevant time might have condoned the act with a pious and sincere hope of strengthening her already crumbled matrimonial home, but then that does not mean that the petitioner had condoned her right for all times to come.

The petitioner has also sought a decree of divorce on the ground of desertion. No doubt, if a spouse abandons the other spouse in a state of temporary passion without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there:-

i) the factum of separation; and

ii) the intention to bring cohabitation permanently to an end (animus deserendi).

Similarly, two elements are also essential so far as deserted spouse is concerned:-

i) the absence of consent;

ii) absence of conduct, giving reasonable cause to the spouse leaving the matrimonial home to form the necessary attention aforesaid.

Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference so drawn in a case may not be applicable to another case. Therefore, in each case, the acts and conducts, expression, intention both anterior and subsequent to the actual acts of separation have to be taken into consideration. If, in fact, there has been a separation, the essential question always is whether that act could have been attributable to an animus deserendi. The offence of desertion commences when the fact of separation and animus deserendi co-exist, but it is not necessary that they should at the same time. The de facto separation may have commenced when the necessary animus deserendi coincide in the point of time.

In the present case, it is more than apparent that the respondent has deserted the petitioner for more than six years and not only this he did not put in appearance either before the Court below or even before this Court. Admittedly, these proceedings are pending since 02.03.2013 and even during the course of these proceedings, the respondent by not attending the same has made his intention loud and clear to bring cohabitation permanently to an end after having separated in 2008. Therefore, even on this score, the petitioner is entitled to a decree of divorce under Sections 13(1)(ia) and (ib) of the Act.

On the basis of the aforesaid discussion, it can safely be concluded that the findings recorded by the learned Court below are absolutely perverse and, therefore, not sustainable and are accordingly set aside. The petition filed by the petitioner for divorce is allowed with costs throughout assessed at Rs. 30,000/-.

CMP No. 2321 of 2014.

This application has been preferred by the applicant for grant of litigation expenses at the rate of Rs. 50,000/- and maintenance pendent lite during the proceedings at the rate of Rs. 25,000/- per month. The respondent is stated to be serving as Superintendent Grade-II in the Himachal Pradesh State Electricity Board Limited and earning about Rs. 60,000/- per month and that apart is stated to be possessed of movable and immovable property. There is no rebuttal to such averments. The fact that the respondent is working as Superintendent Grade-II has otherwise been substantiated by the report received on the summons sent for effecting service on the respondent wherein it was stated that the respondent was working as Superintendent Grade-II (Audit Party) in the Office of Himachal Pradesh State Electricity Board Limited.

Therefore, taking into consideration that the respondent is bound to maintain his wife (including his divorced wife), the respondent is directed to pay monthly maintenance at the rate of Rs. 20,000/- per month with effect from the date of application i.e. 13.01.2014 and further to pay a sum of Rs. 25,000/- as litigation expenses.

Since the petitioner is a destitute, she cannot be compelled to knock the doors of the Court time and again in order to enforce her right of maintenance and, therefore, it is directed that on presentation of the copy of this judgment by the petitioner alongwith her bank account details to the employer of the respondent, it shall be obligatory upon the employer to make a monthly deduction and transfer the amount of maintenance and the costs awarded to the account of the petitioner. The application is disposed of.