Balbir Kaur vs Daljit Singh

Court: Punjab-Haryana High Court

Bench: JUSTICE S Saksena

Balbir Kaur vs Daljit Singh on 18 September, 1996

Law Point:

Insisting to live separately from mother and sister of Husband without any valid reason is cruelty towards Husband. Divorce granted to Husband.

JUDGEMENT

1. Appellant-wife has filed this appeal under Section 28 of the Hindu Marriage Act (for short the Act’) against the judgment and decree of the matrimonial Court dated 24.2.1994 whereby petition for dissolution of marriage filed under Section 13 of the Hindu Marriage Act by the respondent is accepted.

2. Uncontroverted facts of the case are that the parties were married according to Sikh rites by way of ‘Anand Karaj’ on 31.1.1979 at Khadoor Sahib, Amritsar. In this wed-lock the appellant-wife has given birth two daughters, namely, Rupinder Kaur and Raswinder Kaur. Parties are living separately since 28.7.1989. Respondent-husband’s case was that the marriage between the parties was solemnised simply. No dowry was given or taken. Right from the inception of the marriage, appellant wife’s conduct was very harsh and cruel towards him. She had no love and affection for the petitioner and his family members. She used to abuse and insult him in the presence of his relations and friends. She used to say that she will not reside with his mother and sister at village Naushera Panuan. She does not want to serve her mother-in-law and sister-in-law. She insisted that he should reside at Amritsar, but the husband could not accede to her wish as his father has died and there was no other member to look after his mother and unmarried sister. According to him, wife was of nagging and petulant type. She used to go to her parental home without obtaining his consent. On 28.7.1989 she left her matrimonial home without any excuse and took away all her valuable clothes and jewellery. She also carried the eldest daughter with her. On 30.7.1989 he went to her parental home to bring her back. Initially, she agreed, came with him upto the Bus Stand, but there she declined and left the eldest daughter with the respondent-husband. At that time also, she abused and insulted him. on 1.8.1991 he went along with Tara Singh, Lambardar, to her parental home, but again he was insulted by her and by her brother and father, who threw his turban and gave him kicks and fist blows. On 4.8.1991 again he convened a panchayat of the respectables, a compromise was effected, but wife again backed out. Thereafter, once he was detained by Sarhali police at the instance of local persons w.e.f. 9.3.1992 to 13.3.1992, again a panchayat was convened and it was settled that on 15.2.1992 a compromise would be effected between the parties, but again wife backed out, husband was threatened through terrorists. Thus, alleging that wife has treated him with cruelty, he prayed for a decree of divorce.

3. Appellant-wife denied all these allegations and pleaded that as in this wed-lock, she could not give birth to a son, husband used to beat her. She was turned out of her matrimonial home on this count alone. Thus, her minor children were deprived of her motherly love and affection. In her marriage sufficient dowry articles were given. Husband used to beat her under the influence of liquor. Tara Singh, Lambardar, is instigating the husband to get rid of appellant wife so that he may perform second marriage and thereby he may be blessed with son. After being maltreated, she was turned out of the matrimonial home in the last week of July, 1991. Thereafter, her father convened a panchayat in November, 1991. Husband agreed to rehabilitate her. She remained with the husband for two months, but again she was severely beaten and was turned out of the nuptial roof. She denied all other allegations of cruelty and desertion in the petition. She also objected that the husband has filed this divorce petition with a view to remarry.

4. The matrimonial court framed issues. Respondent-husband examined Tara Singh PW-1, Mann Singh PW-2, Rupinder Kaur PW-3 and himself as PW-4. Wife examined Sajjan Singh RW-1, Harjinder Singh RW-2, Natha Singh RW-3, Pal Singh RW-4 and herself as RW-5.

5. Lower Court scanned the parties evidence minutely and arrived at the conclusion that wife has treated her husband with cruelty. Thus, a decree of divorce was granted.

6. Appellant’s learned counsel raised a preliminary objection under Section 23(1)(d) of the Act, alleging that the petition ought to have been dismissed by the lower Court on the ground of delay and laches which respondent-husband failed to explain. Admittedly, wife was turned out of the matrimonial home on 28.7.1989 and the divorce petition was filed on 12.6.1992. To buttress this contention, he has filed or Gurnam Singh v. Chand Kaur, 1979 H.L.R. 29, Mohan Singh v. Smt. Shanti Devi, (1985-1)87 P.L.R. 200 and Sham Lal v. Kanta Devi, 1995(3) All Instant Judgments 263.

7. Respondent’s learned counsel refuted the said submissions by valiantly arguing that from the parties evidence on record it is evident that there was no delay or laches in filing this petition. Till August, 1991 respondent-husband was making frantic efforts to bring her back in the matrimonial home and when he failed in his attempts then only in utter despair, he filed the divorce petition on 12.6.1992. PW-4 husband himself has stated that on 1.8.1991. he along with Tara Singh, Lambardar, went to the house of wife’s parents, but her father, mother, and she herself insulted him and gave him first and kick blows. He has also testified that on 4.8.1991 he along with Tara Singh, Lambardar. Ajit Singh, Mann Singh and others- again went to her parental home to bring her back. This panchayat was also attended by respondent’s father, mother and other persons. Firstly, they agreed to send her back, but later on, they backed out.

8. In my considered view, this objection is devoid of any substance as the respondent-husband has proved that till August, 1991 he was making efforts to bring her back and when all efforts proved abortive then on 12.6.1992 he filed the divorce petition. The authorities relied on by the appellant’s counsel are all distinguishable on facts. In Gurnam’s case (supra), the case was remanded to the matrimonial Court as no issue was framed on the point of delay. In Mohan Lal’s case (supra), the divorce petition was filed after 22 years of alleged desertion and 11 years of dismissal of husband’s appeal by the High Court for restitution of conjugal rights. There was no explanation for this delay in filing the petitions therefore, on this count under Section 23(1)(d) of the Act, the petition was dismissed and the dismissal order was affirmed by the High Court. So is the position with Sham Lal’s case (supra). In that case too, divorce petition was filed after 9 years of the alleged desertion.

9. Appellant’s learned counsel contended that evidence adduced by the husband is unbelievable. He further argued that husband has stated on oath that on 1.8.1991 he went to appellant-wife’s parental home in the comply of Lambardar Tara Singh to bring her back but her father, brother and she herself insulted him, gave him fist and kick blows and threw his turban, but Tara Singh PW-1 has not corroborated him on this point. He also pointed out that the lower Court has given much weight to the statement of Rupinder Kaur PW-3, who is the eldest daughter of the parties. No doubt, she is aged about 13 years, but as she is living with the father she is bound to corroborate his testimony.

10. He further submitted that the appellant-wife has categorically stated that as from this wedlock, she gave birth to two daughters, the husband was unhappy as he wanted a son and on that count, he used to beat her mercilessly and on this count alone, she was turned out of her matrimonial home. Her father, brother, and other respectables made many attempts to rehabilitate her, but every time their attempt proved futile. Husband never agreed to rehabilitate her. He pointed out that the trial court has relied on the husband’s evidence that she wanted him to reside at Amritsar as she never wanted to serve his mother and sister, but this evidence is not at all reliable. Even Rupinder Kaur has been tutored to state so, but her evidence is inherently weak and improbable. He also commented that the trial Court has relied on this piece of evidence also that the husband was twice detained by the police at the instance of wife’s relations to effect a compromise between the two. Wife has denied such allegations.

11. He strongly stressed that if she would not have been beaten, mal-treated by the husband and turned out of the matrimonial home, there was no reason for her to leave her family, especially when she has given birth to two daughters, who are living with the husband. He contended that mother would not leave her daughters and deprive them of her motherly love and affection. According to him, this factor by itself proves that she was tortured, beaten and was turned out of the matrimonial home otherwise, she would not have left his roof.

12. Respondent’s learned counsel controverted all the above submissions and assiduously argued that the husband has proved why wife left her matrimonial roof. Her behaviour was very nagging and insulting. Even before relations and others, she used to abuse and insult him. She never wanted to live with his mother and sister. Therefore, she insisted that he should live with her separately at Amritsar. He was unable to accede to this wish as there is no body in his family to look after his mother and unmarried sister. He pointed out that husband has also proved that without taking his consent, she used to go to her parental home and she left his roof on 28.7.1989 after taking her all the jewellery and valuable clothes. Thereafter, he made many attempts to bring her back, but she never came back. When he made an attempt to bring her back, he was insulted not only by her but by her father and brother as well. Not only oral insults were hurled on him, but he was manhandled and his turban was thrown away as well. Twice he was detained by the police and was forced to enter into a compromise with her. The terms of compromise were dictated by the police that he should pay Rs. 800/- per month as maintenance and should transfer 1/2 killa of land in her favour. He agreed even to these terms, but wife did not turn up for effecting a compromise and therefore, attempt failed. Thus, according to him, husband was treated with cruelty by wife.

13. In my considered view, the matrimonial Court has not fallen into any error in passing the impugned decree. Cruelty is not defined in the Act. There is no straight-jacket formula to define/assess cruelty. It depends upon education, standard of living, status of parties in society and their mental make up. Respondent-husband is a driver by profession. Admittedly, since July, 1989 barring two months when she came back to live with him, she is living in her parental home; she left her minor children in the custody of her husband, who is a driver by profession and has to be out on duty and some time, he has to be on duty day and night. By her this conduct, she has treated him with mental as well as physical cruelty. He was forced to look after his daughters in the absence of his wife.

14. Husband has stated on oath that on 1.8.1991, he went in the company of Tara Singh, Lambardar, to bring her back. At that time, he was abused and insulted by his wife, her father and brother and they gave him fist and kick blows and threw his turban. Appellant’s learned counsel’s above argument is against the record that Tara Singh PW-1 has not corroborated the respondent-husband on this point. No doubt, in the statement of this witness the date of this meeting is wrongly typed as 8.1.1991, it should have been 1.8.1991, but Tara Singh PW-1 has categorically stated that he went along with husband-respondent to the house of appellant-wife and requested her to come back to the matrimonial home and at that time, husband was insulted and beaten by wife, her father and brother and his turban was also removed.

15. Husband has also proved that twice he was detained at Police Stations Sirhali and Goindwal at the instance of appellant’s relations and he was detained for few days at police stations. He is duly corroborated by Tara Singh PW-1 and Mann Singh PW-2 on this count.

16. Husband-respondent has stated that she used to insult and abuse him in the present of relations and others. She used to quarrel with him on the point that she will not live with his mother and sister and wanted him to reside at Amritsar. On his point also, he is corroborated by Rupinder Kaur PW-3. Appellant has given one reason. Why she was beaten and was turned out from the matrimonial home, that is, she has not given birth to a son. Husband has denied these allegations. Rupinder Kaur PW-3 has candidly stated that no doubt, she, her grand mother, father and her sister have a desire that respondent should have a son, but there was no quarrel in her house on this point. She was married to respondent on 31.1.1979. She gave birth two children, who were aged 11 and 10 years at the time when the petition was filed. She left She matrimonial home on 28.7.1989. Had it been true that husband wanted a son and therefore, he mal-treated her, he would have turned her out after the birth of first daughter or immediately after the birth of second daughter and would not have waited for such a long time to turn her out. Hence, this plea does not stand to reason. There is no reliable evidence on record to prove that as he wanted to marry again so that he may have a son, he has turned her out.

17. So far as her mal-treatment and beatings are concerned, her own brother RW-1 Sajjan Singh, has stated in cross-examination that the petitioner (husband) has not mal-treated the respondent (wife) prior to Sawan (July), 1991 while admittedly, she is in her parental home since July, 1989. Thus, it is obvious that there was no occasion for the husband to mal-treat the wife. Wife has tried to explain that she and her father convened many panchayats and tried to persuade the husband to rehabilitate her, but twice he declined and on one occasion she was allowed to live with him for two months, but again after two months, she was beaten and turned out. She was examined on 22.1.1994. She has stated on oath that about 2-2-1/2 years ago in the month of Sawan (July), petitioner-husband turned her out of the house after giving her beating. They show that she was turned out of the matrimonial home in the middle of 1991, though in the divorce petition, husband has pleaded that she left the matrimonial home on 28.7.1989. Hence, the lower Court has rightly not relied on evidence adduced by her.

18. The above facts of cruelty, proved by the husband, support his case. No husband of Indian society, would tolerate such a behaviour of the wife that she would always insult and abuse him, would insist him to live separately from his mother and sister, to leave the minor daughters under the care and custody of the husband knowing fully well that he has to be out on duty some times during night hours also, to call him to the police station, get him detained there and thereby force him to agree to the terms dictated by her and by her relations. Wife is required to be dutiful, obedient, and tolerant, should have love and affection not only for the husband, but also for his relations and her own children. Admittedly, till this date, wife has not applied for the custody of the children. Till this date, both the daughters are living with the father. This is an additional mental and physical cruelty to him. Such like small and insignificant acts (as they appear at that time) of cruelty, when piled up cause such a heavy burden, that when it becomes intolerable for any spouse he/she in utter disgust and desperation rushes to the court seeking the relief/sigh of divorce. Divorce is not the normal insignificant episode in one’s life. It shakes the whole personality, the entire life of the petitioner. Divorce is imbued with liabilities, responsibilities, inconveniences, mental unrest, physical discomfort and utter disquiteness in the house. Before knocking the Court’s door for divorce spouse hundred times ponders over the pros and cons of divorced life, the social ostracism/stigma inherent therein. The husband has proved how the cruel acts of the wife forced him finally to file the divorce petition. The husband-petitioner was required to think many a times before seeking divorce as he is father of two daughters, who are likely to be affected by divorce decree, which he may obtain from the Court. In this case, the matrimonial Court has scanned the evidence adduced by the parties very minutely and has arrived at correct conclusions.

19. Resultantly, in my considered view, the matrimonial Court has properly and rightly weighed the evidence on record and has rightly granted the decree of divorce in favour of the husband.

20. Even otherwise, the marriage is emotionally factually, and irretrievably broken. On all these counts, husband is entitled to a decree of divorce.

21. Resultantly, finding no merits in the appeal, it is hereby dismissed.

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