Court: Punjab And Haryana High Court
Bench: JUSTICE S.P. Goyal
P.S. Kher Vs Kamal Nainjit Kaur On 3 June 1981
Law Point:
Decree of restitution of conjugal rights in favour of the husband. Interim maintenance should not be endorsed.
JUDGEMENT
1. The parties were married at Jullundur in December 1973 and a male child named Davinder was born out of this wedlock. When the appellant was posted at Lucknow they lived together there from February 12 to April 5, 1974. During this period, the wife suspected that the husband was having some illicit relations with a widow and because of this he was neglecting her. This led to the rupture in their relationship which was never mended thereafter. Though the wife stayed at Gurdaspur with the father-in-law when her husband was posted at Pathankot but it appears that they never reconciled with each other and she stayed there at the asking of her father-in-law. Thereafter, the appellant was transferred to Jorhat and he came to Gurdaspur to take her there. When they were proceeding to Jorhat in their own car, they stayed at Delhi where both of them had married sisters. Some trouble ensued between the husband and the wife there also as a result of which the brother of the wife was summoned on telephone and she went back with him to Chandigarh. This happened in the month of October 1976 and thereafter they never lived together.
2. This petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage was filed by the husband on November 25, 1978 on the ground of mental cruelty and desertion by the wife. The petition was opposed by the wife who denied the allegations made against her and instead pleaded that she was maltreated by the husband for not bringing adequate dowry and made to live with her parents as he never wanted to keep her with him. She also pleaded that the respondent was neglecting her when she stayed at Lucknow as he spent most of his time moving about with a rich widow of about 40 years of age who was in no way related to him. In support of his claim, the husband appeared as his own witness and examined his sister, Mrs. Har Kishan Singh, P.W. 2, he also produced a letter, Exhibit P-1, written by the brother of the wife to him, and certain other documents. Similarly, the respondent appeared as her own witness and examined her brother Ripudaman Singh as R.W. 2. She also relied upon three letters written to her by the father of the husband, Exhibits R-2 to R-4. After taking into consideration all the evidence, the learned Additional District Judge negatived the pleas of the husband and dismissed the petition vide judgment dated February 13, 1980. Aggrieved thereby, he has come up in this appeal.
3. The main stay by the learned counsel in support of his appeal was on the plea of cruelty and the finding of the trial Court on the issue of desertion was not at all challenged which is accordingly confirmed. To substantiate the plea of mental cruelty, the husband narrated several incidents, but the main reliance by his counsel was on the accusation made against his character by the wife during her stay at Lucknow. Whatever was stated in the written statement in this respect has already been reproduced above. In her statement in the witness box she again asserted that her husband had started drinking heavily, used to come late in the night and also did not take his meals at the house. She further averred that there was a lady with whom he used to move about often. In the cross-examination, she stated that the lady about whom she had stated was a widow of about 40 years of age and that she did not know if she was closely related to the appellant from his mother’s side. All these accusations were ignored by the learned Additional District Judge on the ground that the same did not travel beyond suspicion and there being no positive accusation against the character of the husband no case of mental cruelty was made out. It is rather difficult to agree with this view of the trial Court. The averment in the written statement that the appellant was neglecting her and spent most of his time moving about with a rich widow of about 40 years of age who was in no way related to him was infact an allegation against his character clearly suggesting Illicit relations between them. The rich widow referred to above was none else but the real sister of the mother of the appellant having eldest child of the age of 38 years. It cannot be easily accepted that the wife would not know the relationship of this widow with the husband. However, the wife not only showed ignorance about their relationship but asserted that the widow was in no way related to her husband. In these circumstances the words used are nothing but an accusation that the husband was having shady relations with his aunt. As it was not disputed that such an accusation would amount to mental cruelty, the finding of the trial Court on this issues is reversed and it is held that the wife was guilty of such conduct which amounted to mental cruelty to the appellant. The learned counsel for the respondent, however, urged that even if there was any accusation made by the respondent during her stay at Lucknow, the same stood condoned as parties had lived and cohabited at Gurdaspur when the husband was posted at Pathankot. I am unable to agree with this contention because it appears from the evidence on the record that the respondent went to live at Gurdaspur at the behest of the father of the appellant and both of them never reconciled with each other. If it had been otherwise there was no reason why the respondent would not have stayed with the appellant at Pathankot where he had rented a house. Thereafter when the appellant was posted at Jorhat, the wife had accompanied him from Gurdaspur for going to Jorhat but again some unhappy incident took place at Delhi and she came back to Chandigarh with her brother. Even if there was any condonation of the previous conduct on the part of the husband, it stood revived because of her misbehavior again at Delhi.
4. As regards the incident at Delhi, both the parties have put up different versions. According to the appellant he and his wife were invited for a dinner at some friends house in the evening. The wife not only refused to accompany him but created scene and declared that she was not interested to proceed to Jorhat with him. The wife, on the other hand, deposed that the appellant told her at Delhi to return to Chandigarh as he did not want to take her to Jorhat. So her brother was called to Delhi on telephonic message and exchange of some hot words took place between them when her brother enquired as to why the appellant was not taking the respondent to Jorhat. The version set up by the wife does not appear to be believable. Soonafter his return from Delhi, her brother wrote letter, Exhibit P-1, wherein he stated that whatever had transpired at Delhi was really shocking but have to forget all this to improve the things. Kamal (the respondent) was feeling greatly upset over the episode at Delhi but with the passage of time everything will be O.K. The tone of this letter, therefore, shows that the husband was not at fault and whatever took place in Delhi was because of the respondent. The episode was described to be shocking which means that the behaviour of the respondent must have been quite reprehensible and violent as alleged by the appellant. This fresh act of cruelty on her part would revive her earlier conduct even if condoned previously as held in Kafton v. Kafton, (1948) I All.ER 435 and Dastane v. Dastane, I (1981) DMC 293 (SC).
5. In view of the above findings this appeal is allowed, the impugned judgment set aside and a decree is passed in favour of the appellant dissolving his marriage with the respondent. No costs.
Appeal allowed.
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