HIMACHAL PRADESH HIGH COURT
JUSTICE Vivek Singh Thakur
Shashi kala Vs. Pravesh Chandra Angra On 12 January 2018
Law Point:
Legal notice received to join company of respondent, not replied by appellant wife — Appellant breathing hot and cold in one breathe
JUDGEMENT
The appellant was married to respondent herein on 7.12.1994 according to Hindu Rites and out of their wedlock, a female child Sujata was born on 31.12.1995. At the time of marriage appellant was serving as Angan Wadi Worker in her parental village Mahadev, Tehsil Sundernagar. The respondent was earning his livelihood at that time as daily wager at Anandpur Sahib at Ropar. In the year 1998 respondent got a job in Government Senior Secondary School, Saloh. In the year 2001, respondent was appointed as a lecturer on contract basis in Government Senior Secondary School, Sari Malog in District Kangra. During this period appellant was continuing as Angan Wadi worker in VPO Mahadev.
2. In the year 2007, respondent-husband filed a petition under Section 13 of the Hindu Marriage Act, 1953 for dissolution of marriage by a decree for divorce before the learned District Judge, Una stating therein that appellant herein after marriage stayed with him for a week in her matrimonial house and thereafter, left for Mahadev (parental house) for continuing her service as Angan Wadi worker and thereafter appellant visited her in-laws house twice or thrice but for a very short period of 2/3 days and she avoided the company of petitioner on one pretext or other and never intended to accompany the petitioner in her matrimonial house or his place of posting by making excuse of her employment as Angan Wadi worker in her parental village.
3. It is further stated in petition that in the year 1998 after joining in Government Senior Secondary School, Saloh as lecturer on contract basis, he, as desired by appellant, shifted his residence from his native village Panjawar to Una town in the house of maternal grandfather of appellant by shifting the dowry articles like furniture, utensils, dresses and gift items, etc. and since then all articles were lying there in the custody of appellant and on his request to the appellant to accompany him, appellant did not join him but she and her mother wanted to keep him as Ghar Jawai, whereas, he was not in a position to accede to their desire as he had to lookafter his widowed mother at native place Panjawar. It is also averred that after getting job on contract basis in Government Senior Secondary School, Sari Malog in District Kangra in the month of September, 2001, appellant was again requested to join the company of respondent, but she was unwilling to perform matrimonial relations with the respondent and after last week of January, 2002, she never joined respondent and since then they are living separately.
4. Further that in the month of July 2002, appellant filed an application under Section 125, Cr.P.C., in the Court of learned Additional Chief Judicial Magistrate, Sundernagar, Mandi wherein interim maintenance was ordered. On the basis of aforesaid circumstances, decree for divorce has been prayed for on the grounds of cruelty, non-performance of marital relations, deprivation of matrimonial life resulting into spoiling of valuable and golden period of marital life of the petitioner.
5. Petition was contested by the appellant and it was stated in reply that respondent and his relatives had insisted her to continue the job of Angan Wadi worker and they themselves had asked appellant to live at Mahadev for continuing her job and appellant right from the beginning was intending and willing to lead a peaceful and happy married life with her husband and made every possible effort for the same by discharging matrimonial obligations towards him and his family. However, despite that soon after the marriage, respondent had started taunting and demanding amount of salary earned by her and torturing to pressurise her, her mother never intended to settle her husband as Ghar Jawai and it was her husband who left her in parental house after marriage in order to keep her job continue and house of maternal uncle was transferred in the name of her mother who, on the request of respondent, transferred the same in the name of appellant and also got the same vacated to hand over to the respondent. Whereafter, respondent time and again pressurised her to transfer the said house in his name and when she did not succumb his pressure, she was turned out from the house along with her child. Whereafter, she was not supported by her husband and when she was facing scarcity of multiple household things like clothes, ration, etc. the respondent did not accede to her request to maintain her, whereupon she was constrained to file petition for maintenance under Section 125, Cr.P.C. Lastly, it is stated that she wanted to leave her job and always expressed her willingness to live in the company of respondent and fulfilled her matrimonial obligations to respondent but on account of his unwarranted careless and selfish nature made her and child’s life miserable.
6. In rejoinder to the reply, allegations of the appellant were refuted and that of the petition were asserted.
7. Before framing the issues, case was listed for conciliation, but on failure issues were framed and thereafter, again on request of learned Counsel for parties, matter was listed for conciliation, which again failed. Thereafter, parties led their respective evidence and on the basis of evidence on record, learned District Judge has passed the decree of divorce.
8. I have heard learned Counsel for parties and have also gone through evidence placed on record.
9. During pendency of petition before learned District Judge, conciliation between the parties was tried more than once, but the efforts were not materialised. During pendency of the appeal in this Court also, parties were called for re-conciliation on 7.9.2016, but said attempt had also failed. Thereafter, on 14.6.2017 learned Counsel for the parties were again directed to explore the possibility of amicable settlement. In response thereto, respondent had offered payment of Rs. 2,50,000 in lump sum for amicable settlement between the parties, but the said offer, by giving reference of earlier offer of Rs. 8 lacs, was not accepted, whereupon, it was explained on behalf of respondent that the said offer was at the initial stage, whereafter payment of more than Rs. 10 lacs has been paid as maintenance to appellant in proceedings under Section 125, Cr.P.C. Thereafter, on joint submissions made on behalf of parties, matter was referred for amicable settlement through mediation by directing presence of parties before the learned Mediator. Appellant did not appear before learned Mediator and conciliation could not be materialized.
10. Respondent-husband, besides himself, has examined two witnesses PW1 Jagjeet Singh and PW2 Raghubir Chand, who in their evidence, filed by way of affidavit(s), have supported his case. In his statement, respondent, in addition to asserting the averments made in petition, also mentioned the instance of hearing taken place before the H.P. State Women Commission, Shimla wherein appellant had refused to live in the company of respondent, but had expressed desire to have divorce. It is also averred that a legal notice, sent to appellant, was received by her but not responded. In cross-examinations of PW1 and PW2, it was stated that it was respondent-husband who was not willing to keep appellant with him, whereas no such suggestion has been put to respondent-husband in his cross examination.
11. Appellant had examined herself as a witness and closed her evidence thereafter. In evidence filed by way of affidavit, she supported her version submitted in reply to petition. In her cross-examination, she admitted that since 2002, both of them were residing separately and she was residing in her maternal home, whereas her husband was residing at Una. She admitted that respondent was serving on contract basis in District Kangra, where she visited 3-4 times and her last visit was on 25/26th January, 2001 or 2002. Her statement was recorded on 6.11.2009. Though in her affidavit filed in evidence, she claimed that her husband was not paying maintenance to her and their daughter, but in cross-examination, she admitted the receipts Ext.P3, Ext.P4, Ext.P8, Ext.P9 and Ext.P10 indicating the payment of maintenance by her husband. She also admitted that in petition filed under Section 125, Cr.P.C., she had received a sum of Rs. 20,000. Firstly, she stated that she did not remember that before filing the case, her husband had served notice upon her. But she admitted the acknowledgement Ext.P2 was bearing her signatures and she also admitted that she did not reply to notice Ext.P1. She admitted the hearing taken place before the Women Commission, Shimla, but she denied that she had made the statement that she did not want to live with her husband and wanted divorce. She admitted that dowry articles including furniture were lying in her maternal father’s house and same were in her lock and keys. She further stated that respondent refused to own her daughter as his child. Finally, she stated that even at the time of making statement she was not ready to live with respondent and expressed that she was facing harassment from the respondent.
12. It is an admitted fact that parties are residing separately since 26.1.2002. Petition has been filed for decree of divorce in 2007. Petition was opposed by the appellant, but in her cross-examination she has expressly refused to join the company of respondent. Appellant has filed petition under Section 125, Cr.P.C. for maintenance wherein interim maintenance has also been awarded but she is not ready to join the company of her husband. She had admitted receiving legal notice wherein she was asked to join the company of respondent, but she did not bother to reply the same.
13. From the above facts, circumstances and discussion, it is evident that appellant is breathing hot and cold in one breathe. She is complaining against the respondent for not keeping her with him but at the same time, she is expressly stated that she is not willing to live with respondent. She is ready for decree of divorce for Rs. 8 lacs, but not coming forward for conciliation or amicable settlement either before the Court or before the Mediator.
14. It is an admitted fact that since 26.1.2002, there is no co-habitation between the appellant and respondent, rather there is no communication between them except through Court or their respective Counsel. In these circumstances, learned District Judge has rightly held that respondent-husband is entitled to decree for divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. The conclusion arrived at by learned District Judge is based on evidence on record, after appreciating it completely and correctly. There is no irregularity, illegality or perversity pointed out in judgment and hence no interference is warranted. Hence present appeal being devoid of any merit is dismissed. No order as to costs. Record be sent back forthwith.
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