Surender Kumar vs Laxmi Devi

Sarojnei Saksena, J.—Disgruntled husband has preferred this Letters Patent Appeal against the judgment of the learned Single Judge, whereby wife's appeal filed against the divorce decree granted u/s 13(1)(iv) of the Hindu Marriage Act, 1955 (in short "Act") was allowed.

Uncontroverted facts are that the marriage between the parties was solemnised on 8.3.1976. They lived together upto 15.1.1983. There is no child in this wedlock.

Husband filed divorce petition u/s 13 of the Act on 30.5.1986 on the ground of desertion. He pleaded that the wife is of quarrelsome nature; she indulges in quarrels on trifle matters with him as well as with his parents, fails to discharge her matrimonial as well as domestic duties. Even on festivals her behaviour is quarrelsome. Even complaints made to her parents with regard to her behaviour proved abortive. Wife threatened him that in case of any pressure, she would commit suicide. On 14.1.1983 her brother came to take her back, on that night also, she quarreled with the members of his family. On 15.1.1983 she left the matrimonial roof. Since then she has declined to come back to the matrimonial home despite his efforts made twice to bring her back. Even her parents refused to send her back. Their behaviour too was not good towards him.

Wife denied the allegations made in the divorce petition. She pleaded inter alia that her parents gave dowry as per their status, but the husband and his parents were not satisfied. They wanted more money. She was maltreated. Even bare necessities of life were denied to her. Once she was forced to bring Rs. 10,000/- from her parental home on the birth of her nephew. His parents further demanded Rs. 20,000/- which she brought on two different occasions under a false hope and thereby their greed will be satiated and she will be treated well in the matrimonial home, but her hopes dwindled into thin air. On 15.1.1983 she was mercilessly beaten and was turned out of the house in bare three clothes. Thereafter her father convened a Panchayat. Even in the Panchayat, husband demanded Rs. 10,000/-. She also pleaded that she is still ready and wiling to go to the matrimonial home. She denied that her husband ever came to her parental home to bring her back.

On these pleadings, three issues were raised. Parties adduced their evidence. On weighing the evidence, the Matrimonial Court decided issue No. 1 in petitioner's favour holding that he has proved the ground of desertion and as the wife could not prove that the husband is taking advantage of his own wrong u/s 23(1)(a) of the Act, divorce decree was passed.

Wife challenged the decree in First Appeal. After hearing rival contentions the learned Single Judge allowed the appeal holding that the husband has failed to prove the ground of desertion.

During arguments, appellant's learned Counsel submitted that it is a case of broken marriage. The parties were married in March, 1976. They are living separately since 15.1.1983. Despite the appellant's attempts wife never came back to the matrimonial home. He also submitted that wife has taken a wrong plea of demand of dowry. Her conduct was quarrelsome and was intolerable to the husband. Despite that they lived together for seven years, but since January, 1983 wife has not returned to her husband. Hence, the learned Single Judge was wrongly held that the ground of desertion is not proved.

We are not impressed by the submissions advanced by the appellant's learned Counsel. So far as wife's conduct is concerned, from the impugned judgment, it is evident that even father of the appellant admitted that the fault lies with his son and his wife. Thus, it is apparent that false allegations are levelled against the wife that she is of quarrelsome nature.

Admittedly, respondent-wife is living in her parental home since January, 1983, but the learned Single Judge has observed that husband has failed to prove that he ever tried to bring her back. Even his father admitted that no such effort was made by them; conversely wife has proved that a Panchayat was convened by her father, but the husband-appellant declined to take her back. The learned Single Judge has also observed that in the Trial Court as well as in the High Court, wife expressed her readiness and willingness to join her husband, but the husband declined. To prove the ground of desertion, husband is required to prove not only factum of desertion but also animus deserendi. These two ingredients of desertion may or may not co-exist. The factum of living separately since 1983 is an admitted fact, but the husband has utterly failed to prove the element of animus deserendi.

The learned Single Judge has also held that the husband is required to prove that wife is living separately without any just cause. He has commented on the statement of the husband whereby he stated that on the nuptial night he had quarrel with his wife on the count that she is having six fingers in her right foot which was not disclosed before marriage. Despite that he lived with her for seven long years. After such a lapse of time on this ground the husband cannot raise any grouse and seek divorce. That shows that husband, has no liking for the wife and therefore, by hook or crook, he wants to get rid of her. He could not satisfy the Court as to what was the cause why the wife has not rejoined him. But wife could adduce some evidence to show why she is not going back to her matrimonial house.

Though the learned Single Judge was not satisfied with the explanation offered by her, but still as the husband has failed to prove that she has deserted him without just cause, learned Single Judge held that he has failed to prove the ground of desertion. From the statement of Puran Mal-PW 4 as well as of the appellant, as reproduced in the impugned judgment, it is evident that husband and his mother were treating the wife with cruelty. Wife has alleged that they were demanding money in dowry and twice she paid money. She has also averred that she was mercilessly beaten and was turned out of the matrimonial home. She clearly expressed her readiness and willingness to join him, but the husband declined to take her back.

Thus, from these facts and circumstances, it is evident that husband is trying to take advantage of his own wrong which legally he is not entitled to under Section, 23(1)(a) of the Act.

Appellant's learned Counsel could not point out any infirmity much less a legal one in the impugned judgment. In our considered view, the learned Single Judge has rightly allowed the wife's appeal and has dismissed the appellant's divorce petition. Accordingly, this Letters Patent Appeal, being meritless, is dismissed.