Navodita vs Dinesh Singh

V.K. Jhanji, J.—This order of mine will dispose of F.A.O. No. 19-M of 1991 and F.A.O. No. 20-M of 1991. Both these appeals have been preferred by the wife; one against order dismissing her petition u/s 13 of the Hindu Marriage Act on the ground of cruelty and desertion and second dismissing her petition u/s 27 of the said Act for return of dowry articles.

Shrimati Navodita is the appellant in both the appeals. The marriage between the parties took place at Kurukshetra on 7-6-1985. There is no child out of the wedlock. Petition u/s 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for dissolution of marriage was filed by the wife on 4-11-1987 on the ground of cruelty as well as desertion. In the petition, it was claimed by the wife that at the time of marriage, her parents spent a sum of Rs. 1,75,000/-. As per the wishes of the husband and his parents, cash and dowry was given to their satisfaction. She has given the details of dowry articles in the petition, which were given at the time of the marriage. As per the case set up by her, her husband and his parents were not happy with the dowry which was given and they started abusing the wife and her parents for not bringing adequate dowry to their satisfaction. Husband wanted cash of Rs. 2,00,000/- in order to start business of plying bus and for this purpose, there was some correspondence with some owners of the buses who bad permits along with the buses but the wife and her parents expressed their inability to manage this demand made by the husband. She further claimed that the husband took Rs. 6,000/- on 23-10-1986 and Rs. 7000/- on 25-11-1986 by coming to Kurukshetra. She gave this amount from her account through cheques. Because of her failure to manage the huge amount which was demanded by her husband, she was maltreated by her husband and his parents. She stayed in the matrimonial home upto September, 1985. During this period the wife was treated with cruelty so as to compel her to bring the money for purchase of a bus. She was compelled to leave the matrimonial home in October, 1985 and she came to her parents at Kurukshetra. Her father took her to her matrimonial home and at that time he gave an assurance that he will manage a sum Rs. 50,OOQ/- after selling his agricultural land and the husband could invest this amount in any manner. This effort also proved futile as she came back immediately. Thereafter, she was not allowed to take her Jewellery, clothes and other dowry articles including the gifts which were given at the lime of marriage. She took admission in Kurukshetra University and completed her M.A. as a regular student and during two years, when she was studying her husband did not care to take her back to her matrimonial home. This was with the intention to bring co-habitation permanently to an end without any reasonable cause. During this time, wife made several attempts for reconciliation but the husband did not permit her to join the matrimonial home. Wife thus claims that the husband is guilty of cruelty and desertion.

The petition was contested by the husband who not only. denied the allegations made in the petition but also stated that the father of the wife suggested to him to leave his job and start the business of spare parts or .transport as she had sufficient funds with him, Since his father-in-law was a government servant working in Food Corporation of India, it was difficult for him to keep cash in bank and so he wanted the husband to start the business. He managed a shop at Bulandshahr for running the business of spare pans and wanted his son-in-law to see the shop in question so as to start the business. As per the direction of his father-in-law he saw the shop and suggested that instead of rushing the business of spare pans, business of transport is better whereas the investment in both the businesses would be about Rs. 2,00,000/-. The husband, in the written statement, claimed that his father-in-law wanted him to do Benami business in his name as there was no male member in the family except his daughter. The scheme of business could not see light of the day because he was not willing to stay at Kurukshetra as was suggested by his parents. He also denied that he took sum of Rs. 6.000/- on 28-10-1986 and Rs. 7,000/- on 25-11-1986. In his written statement, he explained that he went to Kurukshetra very often and on 28-10-1986 wife was in need of Rs. 6,000/- as she and her mother were ill. He was not carrying Rs. 6,000/-, with him and, therefore she gave a cheque of Rs. 6.000/- to him which he withdrew from the bank and gave it to her. He also stated that in the month of July, 1985, he deposited a sum of Rs. 10,000/- in the name of his wife as security deposit for the purchase of Gypsy Jeep (Maruti). The said amount was withdrawn by him later on and cheque of Rs. 10,700/-was got deposited in the bank account of his wife at Kurukshetra. He also claimed that the wife has condoned the acts of cruelty by joining his society at the time of marriage of his sister in June, 1986 where she remained upto the last week of July 1986. During this period she got treatment at Lady Harding Hospital, New Delhi. She also came to stay with him in the first week of October, 1986 when there was strike in Kurukshetra University and remained with him upto 27-11-1986. On 27-11-1986, she left with her brother in his absence with cash of Rs. 3.730/- gold ornaments jewellery, letters written by her to him with an ulterior motive, on 24-12-1986 her cousin and two other persons came to his residence and asked for the articles which were written by her and look all the articles. He also claimed that he sent a telegram to her parents about her behaviour on 29-11-1986 but received no intimation. He and his father went to Kurukshetra to her parents who refused to send her back to her matrimonial home. They asked him to have some accommodation separate from his parents but he refused to oblige at that time. In the last week of January, 1987, he went lo Kurukshetra and asked his wife to come to him as he bad arranged separate accommodation but. she refused to join his society at Delhi without any reasonable excuse or just cause. In the written statement, he also made a reference to a petition filed by him u/s 9 of the Act for restitution of conjugal rights which at the lime of filing the petition by his wife, was pending in Delhi Courts.

Wife, in her petition u/s 27 of the Act for return of dowry articles has given complete details of the dowry articles which were given at the time of marriage. Both the petitions were consolidated and tried together by the Additional District Judge, Kurukshetra. Petition u/s 13 of the Act was dismissed as the Additional District Judge, on the appreciation of the evidence, was of the view that the relations between the husband and wife were not strained as claimed by the wife. The plea of the wife with regard to demand of dowry was also not accepted by the trial Judge. Petition u/s 27 of the Act was dismissed in view of the decision given in petition u/s 13 of the Act, without going into merits of the said petition wife has preferred both these appeals challenging the orders dismissing her petition u/s 13 of the Act as well as dismissing her petition u/s 27 of the Act.

Mr. Ashok Aggarwal, Senior Advocate, learned counsel for the appellant-wife read (he entire evidence on record including the statements of the witnesses and contended that the allegation of the wile with regard to demand of dowry is proved on the record. He also contended that the wife had been staying with her parents after August/September, 1985 and despite efforts for reconciliation the husband refused to keep her and therefore she is not only entitled to a decree of divorce on the ground of cruelty but also on the ground of desertion.

On the other hand, learned counsel for the husband-respondent Shri C.B. Goel, Advocate maintained that no interference is called for by this Court as the trial Court has taken into consideration the entire evidence on record to come to a finding that the husband has neither treated the wife with cruelty nor is he guilty of desertion. He also contended that the wife, of her own accord had stayed at Kurukshetra and had taken admission in M A Classes without the consent of her husband. He further contended that the husband or his parents never demanded any money for starting the business but it was father of the wife who himself suggested to invent some amount for doing Benami business through the husband.

After hearing the learned counsel for the parties at length and perusal of the entire record, I am of the view that both these appeals deserve to succeed.

It is now settled that demand of dowry, if proved amounts to cruelty entitling the wife to get a decree of divorce for dissolution .of marriage. Though the husband has denied the allegation made in the petition yet at the Same time he has set up a specific case that his father-in-law wanted him to start the business in his own name either of running of shop of spare parts or business of transport. He also admits in his statement in Court as RW-1 that his father-in-law saw a shop for him at Bulandshahr and advised him to start business of spare parts at Bulandshahr He further admits that he went to Bulandshahr, for seeing the shop but instead of running a shop of spare parts, he suggested for purchasing a Mini Bus.

I am not impressed with the argument of the learned counsel for the husband that his father-in-law wanted him to do Benami business in his name. This plea seems to be an afterthought. His father-in-law admittedly was working in Food Corporation of India and nothing has been brought on record to show that apart from salary he had any other income sufficient enough to invest for starting the business even otherwise, if the husband was doing reasonably well, there was no reason for him to leave the service and start business unless he himself was interested in doing the business and for that reason he was demanding money from his father-in-law. The allegation of the wife that they were not satisfied with the dowry given also finds support from letter, Ex. R-2 written by her husband to her in January 1986 in which he has made a reference to some advertisement appearing in the Hindustan Times for the dealership of Maruti Cars. In this letter her asked his wife that she must talk to her father about this as the last date for making applications for dealership was 4ih February, 1986 In the said letter he further stated that once he gets this dealership, it would be very good and it will also solve the problem once for all. He has not explained in his statement as to under what circumstances he had written this letter and why he asked his wife to talk to her father in this connection. This, to my mind, must be only for the reason that he was wanting his father-in-law to arrange money so that he could get dealership of Maruti Cars.

Wife in her petition has also alleged that husband took a sum Rs. 6.000/- from heron 28-10-1986 and a sum of Rs.7,000/- on 25-11-1986. In reply to this allegation husband has stated not only in his written statement but also in his statement in Court that on 28-10-1986 when he went 10 Kurukshetra, wife was in need of Rs. 6000/-. At that time he was not having the said amount and therefore wife drew a cheque for a sum of Rs. 6,000/- and asked him to withdraw the amount from the bank from her Savings Bank Account. He withdrew the amount from the bank and handed over the same to wife on the same very date. This explanation on the face of it cannot be accepted. In case, wife was in need of Rs. 6,000/- then there was no occasion for her to ask her husband to withdraw the amount for her from her Bank Account particularly when according to him. he had gone to Kurukshetra only for a day. So far as the allegation of the wife about withdrawal of a sum of Rs. 7,000/-on 25-11-1986 is concerned she has not been able to prove the same conclusive although she has been able to prove that her husband was in Kurukeshtra on 25-1 1-1986. The wife has brought on record statement of Account, Ex. A-l as well as copy of the cheque dated 25-11-1986. The cheque is drawn on ''Self and on the back of the cheque signatures of only wife appear whereas on the cheque, Ex. RW-2/A for Rs. 6000/-, signatures of wife as well as husband are there. I am also not prepared to accept the argument of learned counsel for the husband that the husband was always willing and ready to keep his wife with him and it was only she who is responsible for the break of marriage. It has come on the record that husband did file petition u/s 9 of Hindu Marriage Act for restitution of conjugal rights in a competent court at Delhi but never pursued the same and got the be same dismissed for non-prosecution. If husband was so keen to have the company of his wife, there was no reason for him to get his petition dismissed for non-prosecution. In, his petition u/s 9 of the Act, he could well prove that wife had withdrawn from his society without any reasonable cause. He has also not given any explanation as to why that petition was not pursued. Thus on the facts proved on the record of this case, I am satisfied that the wife has successfully proved on record that there was demand for dowry. This amounts to cruelty and wife is entitled to get divorce on this ground.

Now coming to the ground of desertion, I find (hat marriage between the parties took place on 7-6-1985 and the wife in her petition has claimed that she was compelled to leave the house in September, 1985. It is admitted by both the parties that wife took admission in M.A. Classes at Kurukshetra some time in August, 1985. Petition for divorce was filed on 4-11-1987. Petition thus was filed after two years from the dare of desertion as claimed by the wife. This ground was rejected by the trial Court primarily on consideration that the wife came to her husband some time in November 1986 and had also attended marriage of the sister of her husband on 22-6-1986 From the photographs which were taken at the lime of marriage of the sister of the husband an inference was drawn that relationship between the husband and wife were not strained. Trial Court also took into consideration that the cheque dated 28-10-1986, Ex. RW-2/A was drawn by the husband. In my view, the inference drawn by the trial Court from the evidence referred to above was totally uncalled for. It is true that the wife attended the marriage of the sister of her husband in June, 1986 but that by itself was not sufficient to conclude that the parties to the marriage resumed cohabitation. Wife in her statement in Court has explained that at the lime of said marriage, she was cautioned by her husband and his parents not to raise any issue before their relations. Husband in order to show that wife was staying with him during that period ever tried to forge certain documents. In his statement, he stated that during this period she once fell ill and he got her treated from Lady Harding Medical College, Delhi and Sucheta Kriplani Hospital, Delhi. On record he brought documents. Mark F to J regarding her treatment as well as some X-ray which were alleged to have been taken on 13-6-1986 (Mark-K). In cross-examination he had to admit that during that period, his sister was a student in Lady Harding Medical College, Delhi, and the prescription slips bear signatures of his sister. He also admitted that none of the prescription slips bear signatures of his wife. So much so, mark ''I''-prescription slip and Mark T-report of X-ray, pertain to some Shrimati Neerja. To my mind, the husband cannot be believed when be states that his wife stayed with him for some time during June, 1986, and they resumed cohabitation. In November, 1986, wife and her parents made efforts for reconciliation and for that matter, she had stayed with her husband for a day but on the next day, she was again turned out.

I am, thus, satisfied that the husband has wilfully neglected to maintain his wife which was in utter disregard of his matrimonial duties and obligations. Wife is, therefore, entitled to get divorce on the ground of desertion as well.

Consequently, F.A.O. No 19-M of 1991 is allowed with costs. The order dismissing her petition u/s 13 of the Act is set aside. Costs are assessed at Rs. 1,000/-. P.A.O. No, 20-M of 1991 also stands allowed and the petition u/s 27 of the Act is remanded back to the Additional District Judge, Kurukshetra for decision in accordance with law as the same was not decided on merits earlier.

Parties through their counsel are directed to appear before the Additional District Judge, Kurukshetra on 2-12-1992.