Prabhjot Kaur vs Manjit Singh

Sarojnei Saksena, J.—This is wife''s appeal u/s 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act).

Parties were married way back on 11.3.1978 and out of this wedlock, one son was born in July, 1979. Husband filed this divorce petition on 12.2.1986 on the ground that the appellant went to her parental home before the birth of this child and since then she has not resumed cohabitation with him. In May, 1979 the respondent went abroad with a view to settle there, but he came back in April, 1980. During this period, he wrote many letters to his wife, but she replied to few of them. After coming back to India, he went to Haridwar, at her parental home and asked her to join him in her matrimonial home at Rajpura. But she declined on one count or the other. He took Panchayat also but that too proved abortive. She threatened him that either she would commit suicide or would commithis murder or aflame his house and get him involved in some criminal case. He sent several letters and notices also to her but she has totally declined to come back to him. Thereby, she has treated him cruelly and has deserted him since 1979. He prayed for the decree of divorce on the ground of her cruelty and desertion.

The appellant denied the allegations made in the petition and contended that he went abroad without informing her. Only after the birth of the son, when his mother came to see the grandson, she came to know that he has gone abroad. He was only a teacher. He could not have gone abroad for enriching his prospects in future. He always maltreated her as he and his mother were dissatisfied with insufficient dowry. He demanded motor-cycle, T.V. set and Rs. 10,000/- cash. He left her at Haridwar in March, 1979 when she was in the family way on the excuse that he is preparing for M.A. examination, but secretly he went abroad. When he came back to India, she went to her matrimonial home thrice but always she was turned out by the respondent.

In October, 1980 she went with him to Rajpura and lived with him for three months. During this period, he maltreated her. He used to come back late in the night under the influence of liquor and on her protest she was always beaten by him. Ultimately, she was sent alongwith his elder brother to village Nanglan and, thereafter, respondent never came to take her back. After about 45 days, she was taken to Rajpura by her mother but the respondent did not allow her to stay with him. Not only she but her relations and friends also made several efforts to rehabilitate her but the respondent always declined. All her attempts of reconciliation were thwarted by him. She is still ready and willing to join him unconditionally.

The petitioner-respondent filed replication denying allegations made by her in the written reply. The Trial Court framed three issues and recorded parties'' evidence, as all attempts of reconciliation failed. By judgment and decree dated 2.11.1987, the Trial Court has granted decree of divorce in respondent''s favour holding that the appellant has withdrawn from the society of the petitioner- respondent without any reasonable cause for more than two years and her intention is to end the matrimonial relations permanently. The ground of cruelty was held not proved.

Assailing the judgment and decree passed by the Trial Court, the appellant''s learned Counsel vehemently contended that a bare perusal of the Trial Court''s judgment reveals that the Trial Court has not considered the evidence adduced by the respondent, though, the initial burden of proving me ground of desertion was on the respondent. He was required to prove not only the factum of desertion but also the second and more important parameter of animus deserendi. If the Trial Court would have arrived at a finding after discussing petitioner-respondent''s evidence, that he has proved both the above essential ingredients of the offence of desertion and then he would have discussed that the burden had shifted to the wife-appellant to prove justification or reasonable excuse for her withdrawal from the society of the petitioner-respondent, the position would have been different. But the Trial Court has not at all appraised the petitioner-respondent''s evidence. He has only commented on the appellant''s statement and even the evidence of her witnesses is not weighed. Thus, the Trial Court has based his judgment on his own surmises and conjectures and has briefly commented on her statement. He has wrongly recorded that the appellant-wife filed a petition for the custody of the child, though in fact such a petition was filed by the husband-respondent. Hence, he has prayed that the case be remanded to the Trial Court for re-writing the judgment after giving an opportunity of hearing to the parties.

The respondent''s learned Counsel candidly admitted that the Trial Court has not commented upon the evidence adduced by the respondent. He has not even discussed the statement of other witnesses examined by the appellant.

From a bare perusal of the Trial Court''s judgment, it is evident that he has wrongly placed the burden of proof of issue No. 1. No doubt, he has specifically mentioned in para 8 of the judgment that primarily, the onus of proving desertion for a period of more than two years with the intention of ending matrimonial relations lies on the petitioner (respondent). But the onus shifts to the other side when he says that the respondent is residing separately without any reasonable excuse. He has further commented that then it becomes the duty of the respondent (appellant) to explain how her separation was justified. In para 9 of the judgment, it is concluded :

"Apart from the above discussion, I feel convinced that the respondent is proved to be guilty of desertion for a period of more than two years and her intention was to end the matrimonial relations permanently. This issue is decided accordingly in favour of the petitioner."

Before arriving at the above conclusion right from the third part of para 6, he has commented on the sole testimony of the appellant. In a line, he has touched the statement of Surjit Singh Chauhan PW4. In para 7 in its second part, he has simply mentioned that Jaspal Singh RW-3 has not deposed about the alleged maltreatment of the appellant at the hands of the respondent on account of dowry demand. Thus, it is obvious that the Trial Court has neither scanned nor weighed the parties evidence properly. He has based his judgment only on his own surmises and conjectures and on die statement of the appellant. The respondent examined five witnesses. The statements of these witnesses are not at all considered by the Trial Court. He has failed to marshal the evidence on record. On this count alone, the impugned judgment and decree is set aside and the case is remanded to the Trial Court with a direction that after giving an opportunity of hearing to the parties, the Trial Court should re-write the judgment in this case within two months from 20th February, 1995.

The parties are directed to appear before the Trial Court on February 20, 1995.