Om Parkash vs Rajni
2007 Latest Caselaw 1156 Del

JUDGMENT

S. Muralidhar, J.

1. This appeal by the husband is directed against the judgment dated 1.4.1997 passed by the Addition District Judge (ADJ) Delhi dismissing the appellant's petition HMA No. 219 of 1990 for divorce from respondent on the ground of cruelty and desertion.

2. The present appeal was filed in 1997 but when the case was listed for final hearing on 20th March 2007 it was found that the records could not be traced. Thereafter with the help of the lawyers on both sides, the file was reconstructed and the matter was finally heard.

3. By the order dated 20.3.2007 the lawyers on both sides were asked to explore the possibility of a settlement. However, at the next hearing, it was reported that no settlement was possible. The appeal was therefore heard finally on merits and orders reserved

4. The facts leading to the filing of the present appeal are that parties were married on 22.1.1980 and a male child was born on 23.12.1980. The parties have been living separately since 15.2.1981.

5. Earlier the appellant filed a petition, HMA No. 200 of 1981, against the respondent seeking divorce on the ground of cruelty. That petition was dismissed by the learned ADJ. The appeal filed against the said judgment was also dismissed by this Court by its judgment dated 20.9.1986. The concurrent findings in both judgments was that the appellant was guilty of treating the respondent with cruelty and that he was also guilty of constructive desertion.

6. The present round of litigation commenced thereafter when according to the appellant his efforts at seeking reconciliation with the respondent failed. The narration of the facts in the present round begins with 23.12.1986 when according to the appellant he approached the respondent accompanied by his brother-in-law and sister. That was the birthday of his son and he had taken gifts for the child. However the respondent was not willing to rejoin the matrimonial home. She set down certain conditions including the one whereby the appellant was to deposit a sum of Rs. 50,000 jointly in the name of the respondent and the minor child. The second condition was that the mother of the appellant should not live with them. These conditions were not acceptable to the appellant. He states that during the meeting he was not allowed to meet the child and was not even offered a cup of tea or a glass of water. He and his relatives had to leave the house of the respondent after about 45 minutes.

7. The appellant says he next made an effort when the marriage of one Poonam Grover, a close relation of the appellant, was fixed for 21.4.1987. He along with Shri Y.R. Grover, his cousin brother, went to the house of the respondent's parents for inviting them. However, neither the respondent nor her parents attended the marriage and thwarted all moves at reconciliation.

8. The third attempt according to the appellant was made on the eve of Diwali of 1987. The appellant states that he went with his brother-in-law Jugal Kishore and took some gifts along. The respondent however rejected this move by insisting that she would not return to the matrimonial home as long as the appellant's mother lived with them. The fourth incident was of 13th March 1988 when the appellant spotted the respondent and the child in the Shanker Road Market. He attempted talking to them but the respondent raised an alarm compelling the appellant to leave the place. The fifth and final attempt was made on 26.11.1989 when a joint meeting was organized with the efforts of Shri Gulati and Shri Oberoi at the latter's house. This meeting was attended by the appellant with Shri Y.R. Grover, Smt. Prem Lata, Shri Jugal Kishore and the sister of the appellant. The respondent, her parents and some other relations had also come. The meeting failed because the respondent refused to live with the appellant as long his mother continued to stay with him.

9. The case of the appellant was that despite all of the above efforts the respondent refused to come back to the matrimonial home and was therefore guilty of desertion. On the ground that more than two years elapsed since the respondent deserted him he filed the present petition for divorce. His further ground was that the desertion without justification by the respondent had caused him mental agony and he also was denied the companionship of the minor child.

10. The respondent resisted the petition by referring to the earlier round of litigation which according to her conclusively established that it was the appellant who had treated her with cruelty and was guilty of constructive desertion. She accordingly pleaded that the present petition was barred by the principles of res judicata. She also narrated incidents of cruelty during 1980 and 1981, soon after marriage. She stated that she had attempted reconciliation, but those efforts were thwarted by the appellant. She pointed to the failed attempt at reconciliation made by her through one Shri Mahajan, a colleague in her office. She finally stated that she always was ready to live with the appellant.

11. The factual aspects were examined by the trial court with reference to the evidence led by the parties in relation to each of the attempts made at reconciliation. After examining the evidence, the trial court came to the conclusion that the appellant had not established the ground of desertion by the respondent. Thereafter, the trial court also decided against the appellant on the ground of cruelty as well as irretrievable breakdown of marriage.

12. The main criticism of Mr. Arun Khosala learned Counsel for the appellant is that the trial court has proceeded essentially on the findings rendered in the earlier round of litigation and has allowed those findings to influence its judgment in the present case. He submitted that the evidence in relation to incidents after September 1986 had to be examined in order to determine whether the ground of desertion after the earlier round of litigation was made out or not. On the other hand Mr. Rajesh Benati, the learned Counsel for the respondent supported the judgment of the trial court by referring to evidence to show that the attempts made by respondent through Shri Mahajan were proved and despite that effort the appellant made no move to take back the respondent.

13. This court finds that the approach of the trial court in the instant case is erroneous. Counsel for the appellant appears to be justified in his criticism of the judgment of the trial court that the earlier round of litigation appears to have influenced the outcome in the present case. This is evident from para 18 of the trial Court judgment where it is observed as under:

The judgment of Sh. M.A.Khan, Addl. District Judge, Delhi which has been placed on record and has been proved by the respondent as Exh. RW.1/1, even though does not bear the filing of the present petition on the principles of res judicata in view of the finding given by the Ld. Predecessor of this Court in respect of Issue No. 3, but is certainly relevant to show the circumstances in which the respondent left the matrimonial home and also to establish as to whether she had the necessary animus deserendi to desert the petitioner. In Paragraph 23 and 24 of the aforesaid judgment Sh. Khan has observed as under:

The aforesaid judgments clearly establishes that while the respondent had been ready and willing to join the company of the petitioner, it was the petitioner who had been neglecting the respondent and was not ready to bring her back. The appeal was decided on 26th September, 1986. The judgments are binding on both the parties. In view of the judgment I cannot be held that the respondent was guilty of animus deserendi in leaving the matrimonial home at least up to the date of the aforesaid judgments.

14. This Court takes up for examination the evidence in relation to the five incidents referred to by the appellant. The evidence brought on record in regard to the meeting on 23.12.1986 is consistent with the pleadings. The trial court has referred to the evidence of the appellant in the following manner:

The petitioner further deposed:

However after some time, respondent, her mother and maternal grand-mother told us that they were ready for reconciliation if a sum of Rs. 50,000/- was kept by me in F.D. in the name of respondent and the child and receipt there-of be handed over to respondent's parents; that I should live separate from my mother; that the child shall remain with her parents and that her parents and other relations would visit us, in case of our living together, to check that we were living happily or not because it were her parents, who would watch her future. Even though the statement of the petitioner is in line with the averments made in the petition but the maternal grandmother having made the suggestions as referred to above is beyond the pleadings. The petitioner also deposed that in the aforesaid meeting he stayed for 45 minutes in the house of the respondent. During this period he was neither offered a cup of tea nor a glass of water. He further deposed about the efforts made in April, 87 when he along with Sh. Y.R. Grover had gone to invite the respondent and his parents for attending marriage of Poonam which was fixed on 21.04.1987. He stated that the parents of the respondent kept the card but did not attend the marriage. Thereafter he also telephoned respondent of her house many a times but she avoided talk the respondent.

15. However, the trial court rejected the above evidence only on the ground that the appellant had not produced Shri Y.R. Grover who was also present at the meeting. This court does not find this to be a very convincing explanation for rejecting the evidence of the appellant. What the trial court was required to do was to examine the evidence to see if the appellant has been shaken in the cross-examination as regards this incident. To this Court the rejection by the trial court of the evidence appears to be based on surmises and conjectures.

16. As regards the meeting on 26.11.1989, this Court finds that the analysis and conclusion of the trial court are erroneous. The following passages bear this out:

As far as the last meeting is concerned according to the petitioner this had been attended on his behalf by his mother and his sister and her husband, his aunt and Mr. Y.R. Grover. The petitioner has not produced Sh. Y.R. Grover, his sister, his mother and Mr. Oberoi for reasons best known to him. The witnesses produced by him namely Sh. Hira Nand Gulati and Smt. Prem Lata instead of supporting him have contradicted him. Smt. Prem Lata who appeared as PW.2 stated. I know the parties to the petition. In November 1989 in the last week I along with mother of the petitioner and petitioner himself and Jeeja and Bhahan i.e. Sister went to the house of the respondent for settlement. The meeting took place at the house of the respondent (objected to beyond pleadings). The respondent stated that a sum of Rs. 50,000/- be deposited in the name of the child then she will go to the home of the petitioner. The respondent also said that until the mother of the petitioner is in the house she would not go to the house of petitioner. We advised her. Then we came back (Beyond pleadings).

23. According to this witness this meeting took place at the house of the respondent whereas according to the petitioner this meeting had taken place at the house of Mr. Grover PW.3 Sh. Hira Nand Gulati who appeared as P.W.3 has stated as under:

I know the petitioner. In Nov. 1989 I had attended a meeting at the resident of the sabharwal at Rajinder Nagar. I do not know the full name of Mr. Sabharwal. The meeting was attended by the petitioner, sister of the petitioner whose name I do not know and her husband whose name I also do not know and her husband whose name I also do not know and Mr. Sabharwal at whose house it was held, the respondent, her parents and another lady was present whom I do not know. The petitioner stated that he was willing to take the respondent. The respondent state that so long as the mother of the petitioner was there she will not go to the matrimonial home. At this the meeting dispersed without any positive result; (objected to beyond pleadings).

17. This court is unable to agree with the trial court that the above evidence contradicts what the appellant has been stating. Both these witnesses are obviously independent witnesses unrelated to the appellant. Both witnesses seem to indicate that such a meeting in fact took place and the appellant had stated during the meeting that he was willing to take back the respondent. The fact that the respondent refused to go back to the matrimonial home because of the presence of the appellant's mother is also completely established in the evidence extracted by the trial court itself.

18. The law on the issue of desertion is fairly well settled. The ingredients that have to be established have been explained by the Hon'ble Supreme Court in Bipin Chander Jaisinghbhai Shah v. Prabhawati as under:

If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.

This has been later reiterated in Lachman Utamchand Kirpalani v. Meena and Smt. Rohini Kumari v. Narendra Singh .

19. What the trial court was required therefore to examine was whether in fact the appellant had made an effort at taking back the respondent and whether the respondent had expressed her intention not to go back to the matrimonial home. This court finds that both these elements are present and have been conclusively established in the evidence of both the above witnesses. In that view of the matter the only possible conclusion that the trial court could have arrived at was to hold that not only the factum of desertion but the intention to desert stood proved. Although the trial court did notice the applicable law in this regard, it erred in applying it to the facts of the case.

20. In that view of the matter this Court does not find it necessary to examine the tenability of the other grounds, i.e., cruelty and irretrievable breakdown of marriage.

21. The impugned judgment of the trial court is set aside. The marriage between the appellant and the respondent is dissolved on the ground of desertion under Section 13(1) (i-b) of the Act. The appeal is allowed without any orders as to costs.