Harish Kumar Sahni vs Jyoti
2001 Latest Caselaw 1755 Del

JUDGMENT

R.C. Jain, J.

1. This appeal is directed against the judgment of the learned Additional District Judge, Delhi dated 27-9-1999 by which a petition under Section 13(1)(ia) and (i)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') filed by the wife seeking dissolution of marriage on the grounds of cruelty and desertion has ben allowed and the counter claim of the husband made on the similar grounds has been dismissed and the marriage of the parties has been dissolved by a decree of divorce.

2. The wife has filed the petition for divorce with the averments and allegations that the parties were married on 11-3-1992 and lived together for a short duration i.e. till 24-6-1993 an also for one day on 6-7-1993 and even during her short stay at the matrimonial home she was treated like a maid-servant; was made to do all household chores like cooking, washing for the entire family and she was called by names, abused in filthy language and even not properly fed. Certain demands for articles like colour TV and gold watch etc., were also ut forwarded by the husband. The appellant husband not only controverter the allegations mae by the wife but also made a counter claim for divorce on the ground of cruelty and desertion on the part of the wife.

3. On the pleading of the parties learned trial court framed following:-

1. Whether the respondent has treated the petitioner with cruelty after the solemnization of the marriage?

2. Whether the petitioner has treated the respondent with cruelty after the solemnization of the marriage?

3. Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of this petition?

4. Whether the petition deserted the respondent for a continuous period of not less than two years immediately preceding the presentation of this petition?

5. Which of the parties, if any, is entitled to a decree of divorce?

6. Relief.

4. The parties substantiated their case by entering the witness box themselves beside relying upon certain documents i.e. petition and other proceedings filed by the wife for maintenance under Section 125 Cr.P.C. The learned trial court on a consideration of the entire material brought on record answered all the issues in favor of the wife and against the husband and consequently dissolved the marriage of the parties.

5. I have heard the appellant/husband in person and Shri J.C. Batra, Sr. Advocate on behalf of the respondent wife and have given my thoughtful consideration to their respective submissions. AT the out set the appellant has invited the attention of this Court to writing (September 9, 1999) appearing on the first page of the judgment just below the title of the petition and the date 27-9-1999 appearing at the bottom of page 22 of the judgment in question with a view to show that the learned trial court had prepared the judgment even before the arguments were heard on 13-9-1999. No doubt that the first page of the impugned judgment bars the date as September 9, 1999 which can at best show that the learned trial court had commenced the dictation of the judgment on the date but the fact remains that the judgment was completed and announced only on 27-9-1999. However, nothing turns on this inasmuch as the appellant in order to succeed in this appeal has to show that the findings recorded by the learned trial court are untenable on the face of the evidence and material brought on record.

6. The appellant has next urged that the learned trial court was not justified in relying and acting upon the sole testimony of the respondent/wife and holding that the appellant and his family members had treated her with cruelty and the appellant was guiltily of desertion also particularly when the veracity and credibility of the respondent wife was thoroughly shaken when she was confronted with the averments and allegations made by her in the proceedings under Section 125 Cr.P.C. The appellant on the basis of a certofocate/statement from the All India Institute of Medical Sciences has tried to show that the respondent wife is a wholly unreliable witness inasmuch as she had made a false claim for maintenance alleging that she had no income while she was gainfully employed in AIIMS she having obtained the job on the basis of certain false information submitted by her with regard to her academic qualifications etc. The learned trial court has taken into consideration the cross-examination wherein the respondent wife was confronted with the statement made by her before the family counselling centre, namely Pavitra Parivar when the said centre was seized of the matter for the purpose of reconciliation and it is pointed out that the wife herself was guilty of withdrawing from the company of the husband without just excuse. Similarly she has pointed out various portions of the cross-examination of the wife as PW1 wherein she was confronted with the said documents/deposition. While it cannot be denied that the version of the respondent wife in the two proceedings i.e. one under Section 125 Cr.P.C. and that given by her in the court during the matrimonial proceedings was somewhat discrepant in certain minor details and has been taken due note by the learned trial court while assessing the evidence. These discrepancies were however not on material facts. The fact remains that the respondent wife could substantiate her case about the various instances of cruelty perpetrated on her by the appellant and his family members. Despite lengthy cross-examination her testimony remained unshaken in that behalf. The learned trial court was, therefore, fully justified in relying and acting upon the testimony of the respondent/wife.

7. An attempt has also been made to assail the judgment of the learned trial court on the ground that there is a discrepancy about the date on which the respondent wife left the matrimonial home as according to him somewhere she states that it was on 24-6-1993 when she left the matrimonial home and at other places she had stated that she left the matrimonial home on 25-6-1993 or 7-7-1993. To my mind this discrepancy is not of much consequence and in any case the same has been duly explained on record.

8. Lastly the appellant submitted that he is entitled to a decree of divorce on the ground of desertion because it was the respondent/wife who had deserted him by withdrawing from the company of the appellant husband and her 'animus des-rendi' which is apparent from several statements made by herein the letters sent by her to the conciliation centre Parvitra Parivar thereby denoting her intention not to return to the matrimonial home. In this regard suffice it would be to mention that it is not only the subsequent intention which matters but the intention and the circumstances which were prevalent at the time when the parties lived together and which led to their separate living are more relevant. The treatment with which the respondent wife was meeted out at her matrimonial home, there was perhaps no other option for her except to leave the matrimonial home and that was sufficient reason for her not returning to the matrimonial home even when some efforts for reconciliation were made. Therefore, this contention of the appellant husband also does not hold any water. No other point was pressed. Before parting with the case it would not be out of place to state that the marriage of the parties could not work as it is apparent from the fact that the husband even made a counter claim for dissolution of marriage of course on his own grounds.

9. Having considered the matter in its entirety this Court is of the view that the judgment of the learned trial court is based on correct and proper appreciation of the evidence and the material placed on record and is not liable to be set aside on the ground put forth by the appellant.

10. In the result, this appeal being devoid of any merits is dismissed leaving the parties to bear their own costs.