Jai Bhagwan vs Madhu Bala

S.K. Jain, J.—This appeal is directed against the judgment of October 26, 1987 passed by District Judge, Sonepat.

Facts of this case are in a narrow compass. Madhu Bala, respondent herein, was married to Jai Bhagwan on December 13, 1978. She gave birth to a still born baby in 1981 who did not survive. On the night intervening 19th/20th of August, 1982 respondent Jai Bhagwan conspired with Maman and his wife Chhanno and committed the murder of Sanjay alias Binny son of Dr. Radha Kishan. The petitioner appeared as an eye witness against the accused, including her husband, at the trial of that murder case. That trial ended in conviction and capital punishment was awarded to the respondent which on appeal was converted into life sentence by the High Court, but against that judgment of the High Court, Special Leave to appeal (Crl. No. 1959 of 1986) filed by the respondent stands admitted in the Supreme Court and is still pending there.

The petitioner sought a decree of divorce against the respondent on the ground of desertion pleading :

(i) that during the trial of the murder case the respondent had levelled wild allegations against her to the effect that she was a woman of week virtues.

(ii) that his family members were aggrieved against her on account of her having appeared as eye witness against the respondent and therefore, they held out throats to her; and

(iii) that she apprehended danger to her life at the hands of the respondent.

The respondent contested the petition by filing written statement. The factum of his conviction and sentence in the murder case and the pendency of SLP in the Supreme Court has been admitted by the respondent. Rest of the allegations levelled by the petitioner against him and his family members were denied.

The parties fought litigation on the following issues ;

(1) Whether the respondent is guilty of desertion as alleged ? OPP.

(2) Whether the petitioner is entitled to a decree of divorce on the ground mentioned in the petition ? OPP.

In her evidence, petitioner herself stepped into the witness box as PW1 and closed her case. Thereafter the respondent made his statement as RW1 in rebuttal and examined Ravi Kaur, his mother, as RW2. The learned Trial Court after taking into consideration, the evidence on record and hearing the learned Counsel for the parties recorded following findings :

(a) that the facts and circumstances of the case apparently show that Madhu Bala deposed as an eye witness against the respondent in the murder case.

(b) that it was not the case that the respondent was convicted in some other murder case and the petitioner had started having some kind of hatred towards him.

(c) that the respondent had deserted the petitioner since 1982 notwithstanding that he had been enlarged on bail by the Supreme Court in August 1987; and

(d) that the respondent was guilty of deserting the petitioner.

In view of the above finding, learned District Judge, Sonepat, came to the conclusion that it was impossible for the parties to live together.

I have examined the pleadings of the parties in the case, evidence adduced by them at the trial and the impugned judgment.

I find force in the argument of the learned Counsel for the appellant that the findings recorded by the learned Trial Court on issues No. 1 and 2 are not based on evidence and that is why he has reached wrong conclusions. Petitioner appearing as PW 1 has not stated that the respondent had deserted her without sufficient cause from a particular date. What she has stated is that the respondent along with two others was tried for the offence of their having committed the murder of one Sanjay. In that case, she had appeared as an eye witness and had deposed against the respondent. The learned Trial Court had awarded capital punishment to the respondent.

But on appeal, the High Court converted the death sentence into life sentence. During the proceedings of that trial, the respondent had levelled wild allegations against her to the effect that she was a woman of loose character. On account of having disposed against the respondent his family members felt aggrieved against her and, therefore, threatened to kill her. She apprehended danger to her life at the hands of the respondent and that the respondent was in jail since 1982.

Her petition u/s 13 of the Hindu Marriage Act was put to her in her cross-examination. It was not mentioned therein that the respondent had levelled wild allegations against her that she was a woman of loose character. In para No. 5 of the petition it is mentioned that in the committing Court as well as in the Trial Court, the respondent and his family members had levelled wild allegations against her. It was also not mentioned in the petition that she apprehended danger to her life at the hands of the respondent. In her cross-examination she had stated that she was not ready to live with the respondent, even if he guarantees her safety and assures that he entertained no malice against her.

On the other hand, Jai Bhagwan respondent has stated that he never deserted the petitioner and was ready to live with her as her husband. He also deposed that neither he nor his mother had levelled any wild allegations against the petitioner regarding her character. He then deposed that it was on account of his conviction in the murder case that he had been compelled to live away from the petitioner which was not voluntarily and that neither he nor any member of his family had ever threatened the petitioner. When cross-examined, he denied to have entertained any grudge against the petitioner for her having deposed against him at the trial of the murder case. He has clearly tated that he did not feel that he would have not been convicted had the petitioner not deposed against him. He denied the suggestion that if the petitioner lived with him, her life would be in danger. Smt. Ravi Kaur, mother of the respondent, appearing as RW-2, has stated that about three years ago she had gone to bring Madhu Bala back but she had not come and that as a matter of fact the petitioner did not like the respondent. She had further stated that she and her son (the respondent) were prepared to keep and maintain the petitioner and that they had not levelled any wild allegation against the petitioner with regard to her character nor they had threatened her in-any-manner. Although, she admitted that for the last five years, the petitioner had not been living with the respondent yet she denied the suggestion that they had deserted petitioner.

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserdendi). Similarly, two elements are essential so far as the deserted spouse is concerned; (a) the absence of consent, and (b) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. In holding the above view, I am fortified by the ratio laid down by the Supreme Court in Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, .

Keeping in view the above ratio, I have surgical scrutinized the facts and circumstances of this case borne out from the record. The marriage between the parties was solemnized on 13.12.1978. The petitioner gave birth to a still born child in 1981 who did not survive. The respondent was challaned, arrested tried, convicted and awarded death sentence by the Sessions Court in 1992 whereafter he remained in prison till August/ September, 1987, when he was released on bail by the Supreme Court, where he had gone against the judgment of this Court vide which his death sentence was converted into life sentence. There is nothing oh the record to show that the parties had separated during the period after the birth and death of the still born child in 1981 and conviction and sentence of the respondent in 1982. Thereafter, as seen hereinbefore, Smt. Ravi Kaur mother of the respondent appearing as RW-2 has stated that three years ago she had gone to bring the petitioner back but she had not obliged. The statement of this witness was recorded on 16.10.1987. It shows that the petitioner was living away from matrimonial house prior to 1984. Petition u/s 13 of the Act was instituted on 25/26.9.1986 when the respondent was still in jail.

Now the question is whether this Act of separation could be attributed to an animus deserdendi. It is now well-settled that the offence of desertion commences when the fact of separation and the animus deserdendi co-exist: Although, it is not necessary that they should commence at the same time. The defacto separation may have commenced without the necessary animus or it may be that the separation and the animus deserdendi coincide the point of time. But in this case, although it is true *hat the parties were residing separately but the act of separation cannot be attributed to an animus deserdendi on the part of the respondent because the separation was beyond his power and control as he was serving sentence under judgment of conviction and order of sentence of a Court of competent jurisdiction.

Coming to the next ingredient of animus deserdendi, I find that it has also not been established on record that the respondent had abandoned the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. As seen hereinbefore, the petitioner has not uttered a word in this regard. Rather, in her cross-examination she has clearly stated that she was not ready to live with the respondent even if he guarantees her safety and assures that he did not entertain any malice-against her.

On the other hand, the respondent has stated that he never deserted the petitioner and was ready to live with her as her husband. On the top of it he has stated that it was not his feeling that he would have been saved from conviction had Madhu Bala not deposed against him.

In view of the above discussion, I am of the considered view that neither of the above two ingredients of desertion has been established on record.

Although, decree of divorce has not been claimed on the ground of cruelty nor any issue has been framed to that effect yet the learned Trial Court in the opening para of his judgment has stated that the present petition was instituted mainly on the pleas of desertion and cruelty. In para No. 7 of the judgment he has dealt with this point and, therefore, it is expedient to deal with this aspect of the case also. It has been pleaded by the petitioner that the respondent and his family members had levelled wild allegations against her in the committing Court as well as in the Trial Court and that on account of having deposed against the respondent in the murder case his family members were gore about her. She has appeared as her own witness and her testimony has been scrutinized thread bare in the earlier part of this judgment. Although, she has not pleaded that the respondent and his family members had held out threats to her and that she apprehended danger to her life at the hands of the respondent yet she has deposed so. She has not stated as to at what point of time and whom of his family members had held out alleged threats to her and as to on what occasion, the respondent had threatened to kill her. The petitioner could have very well substantiate her plea that the respondent and his family members had levelled wild allegations against her character in the committing Court as well as before the Trial Court by placing and proving the certified copies of such statements of the respondent on record. But no effort whatsoever was made on behalf of the petitioner to summon the relevant record or even to place a certified copies of such statement on record. Therefore, an irresistible presumption can be raised the against petitioner to the effect that such documents would not have supported the case of the petitioner, had the same been placed on record. If the petitioner had been threatened by the respondent or anyone of his family members with death it was expected of the petitioner to have lodged a report against that person either in the Police Station or in the Sessions Court during the Trial of the above said murder case but it is not the case of the petitioner that she had done so. Under these circumstances, it cannot be said that the petitioner has proved on record that the respondent had treated her with cruelty.

In the result, the judgment dated 26.10.1987 of Additional District Judge, Sonepat, which is impugned in this appeal cannot be sustained in the eye of law and is, therefore, set aside. Consequently, this appeal is accepted. However, the parties are left to bear their own costs.