Krishan Kumar Sharma vs Sarlesh Kumari
1990 Latest Caselaw 102 Del

JUDGMENT

N.N. Goswamy, J.

(1) This appeal by the husband is directed against the judgment dated 26-11-1983 passed by the learned Additional District Judge, Delhi, whereby his petition under Section 13(1)(ia) and(ib)of the Hindu Marriage Act was dismissed.

(2) The appellant had filed a petition for divorce on the grounds of cruelty and desertion. As regards the findings recorded by the learned Additional District Judge on cruelty the learned counsel has not challenged the same and has confined his arguments in this appeal only to the question of desertion. Various allegations regarding desertion have been levelled in the petition. However, in this appeal the learned counsel confined bids arguments to three particular periods when the respondent left the matrimonial home. The first period commenced on 2-12-1969 and ended on .11-4-1970, The second period is from 28-6-1970 to 21-8-1973 and the third period is from May 1974 till January 1978. It is alleged in the petition that the parties were married on 25- 11-1969 at Delhi and the respondent left the matrimonial home without the consent and permission of the appellant on 2-12-1969. The entire petition is based on the acts of cruelty commencing right from the first night of the marriage. The learned counsel was unable to make good any allegation levelled against the respondent and as such rightly he confined his arguments to the question of desertion. The respondent returned to the matrimonial home on 21-4-1970 and after staying for about two months again left on 28-6-1970 and returned on 21-8-1973. Admittedly from 21-8-1973 to May 1974 she stayed in the matrimonial home. Further averments in the petition are that the parties were staying happily for about two months and thereafter the bickering again started and the respondent left in Mayl974. The question which would call for consideration is as to whether the respondent left the matrimonial home voluntarily and with the intention of bringing the marriage to an end.

(3) I have been taken through the entire evidence on record. The evidence of the appellant and his witnesses in fact are so useless that even the learned counsel could not place any strong reliance on the evidence. It would be worth-while to mention that the mother of the appellant has appeared as Public Witness 3 She deposed that right from the first day the respondent was not satisfied with the articles given by them in "Wari" and as such she gave a sum of Rs, 6.000.00 on the asking of the respondent so that she could buy sarees etc., of her own choice. The statement of Public Witness 3 who had allegedly given the amount has been improved by the all other witnesses. All other witnesses who are again near relations of the appellant deposed that the respondent had demanded a sum of Rs. 4000.00 towards expenses incurred by her father on entertaining the marriage party and Rs. 2000.00 for buying sarees and this amount was paid by the mother of the appellant. Further Pw 3 made an allegation that the mother and sister of the respondent along with the respondent had given beating to her and she had become unconscious The other witnesses have tried to improve this version by staying that Public Witness 3 had told them that after beating her she snatched the keys from her and took away cash and certain papers from the aimrah. The allegation was not made by Public Witness 3 in her statement. Further the appellant himself has, made reckless allegations about the character of the respondent and has even put suggestions regarding the same to the witness of the respondent. According to the suggestions and the allegations the respondent was having illicit relations with her own 'brother-in-law and another respondent's witness namely, Sbri Kewal were not even attempted to be substantiated in appeal. This show the extent to which the appellant and his witnesses have gone. Since I find enough documentary evidence on record I have preferred to ignore the oral evidence.

(4) As regards the first period, that is, from 2-12-1969 to 21-4-1970 the letters of the appellant himself Ext. D-1 and D-2 written to the respondent amply proved that the respondent had gone to her parent's house with the consent and approval of the appellant.. The letters are full of love and affection and it is no where mentioned in the letters that the appellant wanted her to come back Thus, the story put up by the appellant that she had left without permission due to bickering is absolutely false and untenable.

(5) As regards the second period, that is, from 28-6-1970 to 21-8-1973 the case of the appellant as set out in the petition is that on 27-6-1970 a marriage in the family had to be celebrated in village for which the appellant's parents had gone to the village and had left their daughter, that is. sister of the appellant to look after the respondent since the appellant himself was busy with his work in a new job at Faridabad, It is further stated that immediately after the parents of the appellant left the father of the respondent came to the appellant's house and asked his daughter to get ready turn leaving for Ahmedabad. Again on 28-6-1970, the respondent's sister's husband, came to the appellant's house and took the respondent with them. It is further alleged that the respondent took Along with her the. ornaments and valuable clothes and she left the house inspite of the protest by the appellant and the respondent's father went to the extent of giving slap to the appellant on his refusal to allow the respondent to leave the house. The allegations have been denied in the written statement filed by the respondent. She pleaded that the allegations are malicious. She admitted that her father bad come and according to her since she was pregnant and as is customary she had to spent the first 'Sharvana' at her father's place. The appellant bad permitted her to go. She has further alleged that prior to that she was being harassed and treated in a cruel manner and in fact no food had been given to her by her in-laws for three days. She has further alleged that the sister of the appellant was left behind to see that she does not get any food or proper treatment. She has specifically denied the allegation of slap having been given by her father to the appellant and has stated that the appellant should feel ashamed of having deliberately written such false facts. It is not disputed that she was pregnant at that point of time and that she gave birth to the child after few months There is nothing to show that any of the relations had even made an attempt to go and meet the child including the appellant himself inspite of the fact that admittedly they were informed of the pregnancy as also of the birth of the child In any case I am not concerned with this period of alleged desertion also because admittedly thereafter that is, from August 1973 to May 1974 the parties lived together in the matrimonial house In fact the relevant period would be from May 1974 till January 1978, that is, immediately before the present petition was filed. The allegations in the petition are that in the end of May 1974 the respondent and her mother and sister took up quarrel with the mother of the appellant and beat the appellant's mother who is a very simple, old and infirm lady. At that time the appellant was not at home and when he returned he found that his mother was lying unconscious as a result of severe beating by the respondent. According to the allegations thereafter the respondent left the appellant's house with her daughter and brother Along with her clothes etc. The appellant later came to know that the respondent bad taken out her ornaments and clothes from the appellant's house and while leaving she had taken away cash amount which was lying in the appellant's wardrobe without the consent and permission of the appellant, it is this act of the respondent which has been described as desertion. It is further alleged that the appellant asked the respondent to come and live with him and to discharge her matrimonial obligation but the respondent and her. father have demanded a sum of Rs. 10.000.00 from the appellant as a condition precedent to the respondent's coming and living with the appellant. These allegations have been denied in the written statement. It is pleaded in the written statement that about the end of June 1974 the respondent was asked by the appellant to go to Ahmedabad on the ground that the quarter which they. were occupying at Thompson Road was about to be vacated by them and till they get the accommodation she should stay at Ahmedabad. All other allegations including the demand of Rs. 10,000.00 have categorically been denied in the written statement. She has pleaded that she had to go Ahmedabad much against her wishes and she later realised that the whole purpose of the appellant and his mother was to get rid of the respondent. In the written statement as also at the conciliation stage she expressed her willingness to live with the appellant while the appellant was not prepared to keep her.

(6) There is no dispute that the respondent stayed with her parents from May or June 1974 onwards. The learned counsel for the appellant had to admit that neither the appellant nor any of his relations ever went to Ahmedabad to bring back the respondent. The only attempt which is alleged in the statement though not in the pleadings is that the brother-in-law of the appellant was sent on the next day when she left to the house of her brother in-law but she refused to come back. Admittedly not even a letter was written by the appellant or his relations to the respondent. On the other hand there are as many as six letters on record written by the respondent to the appellant. The said letters are Ext. Rw 1/3, Rw 1/7, Rw 1/8, Rw 1/9, Rw 1/12. and Rw 1/15. , These letters were cither sent under certificate of posting and at least four of them were sent under registered cover. None of them were received by the appellant though they were addressed C/o his bank and atleast two were addressed at his bank in Mukerian'where he was posted. One of the letters the remarks is 'refused' While on the oilier the remarks is 'he had left without address' or 'undelivered'. The letters were filed in the sealed covers. The first four letters were written in 1974. that is, soon after she had gone to Ahmedabad and the last two letters were written in 1977 when admittedly the appellant wag posted at Mukerian. The letters speak for themselves. She has 'complained in the letters that she is not informed of the correct address of the house or the office. It is further stated in the letters that she would have preferred to be with the appellant inspite of her getting beating and scolding. The letters are fall of love and affection and she has expressed craving to be with the appellant. Each of the letters run into many pages and her feeling are fully expressed in the said letters. On reading of the letters the learned counsel for the appellant bad to 'concede that the letters are absolutely natural and are not manipulated" A bare reading of these letters proves beyond doubt that the respondent bad no intention to stay away from him what to say of bringing the marriage to an end. Thus, the animus deserendi is completely missing.

(7) The entire evidence on record indicates that the appellant and his parents were not happy with the respondent for reasons best known to them and all along they were complaining to their relations regarding the attitude of the respondent From the entire material I do not find anything for which I can possibly blame the respondent. It is unfortunate that the marriage has gone to the rocks because of the in-laws of the respondents. It appears that tbe appellant and the respondent were quite happy with each other in the beginning which is clear from the letters Ext D-l and D-2 written by the appellant though the appellant has not placed on record the letters to the respondent sent to him which are mentioned in his letters From the correspondence it cannot be doubted that the appellant and the respondent were greatly in love with each other and would have lived happily but for the intervention of the mother of the appellant and the sister of the appellant. It is probably because of this reason that the appellant played in the hands of bids mot'her and sister and persuaded the respondent to stay away from them. The desertion, if any, is on the part of the appellant and not the respondent. As I have already indicated no attempt whatsoever was made by the appellant to get back the respondent from May 1974 to January 1978 whereas she had been writing letters which were not accepted by the appellant. Even on the earlier occasions, that is. from January 1970 to 1973 no attempt was made by the appellant to get back the respondent and it was her father who admittedly left the respondent in the matrimonial house.

(8) I had called the respondent and her daughter in chamber to see if the matter could be sorted out. She expressed her keen desire to live with the appellant and Stated that she was always .willing to stay with the appellant and would like to die as appellant's wife and was not prepared for any divorce on any ground. As against that the appellant flatly refused to take back the respondent and stated that after living separately for so many years he was not prepared to accept her. Same was the attitude of the appellant at the time of conciliation before the learned Additional District Judge, that is, in 1978 itself. In these circumstances I do not find any infirmity with the lodgment of the learned Additional District Judge and bold that the desertion, if any, is on the part of the appellant and the respondent cannot be blamed for the seme.

(9) For the reasons recorded above the appeal is dismissed with costs. Connscl's fee Rs. 500.00 .