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PRAFULLA KUMAR TONGYA Vs. SMT. SARLA

Judgements favoring men

 
Court: MADHYA PRADESH HIGH COURT

Bench: JUSTICE J.G. Chitre

PRAFULLA KUMAR TONGYA Vs. SMT. SARLA On 18 November 1997

Law Point:
Wife taken away marriage gifts. Proved by husband that respondent deserted him for continuous period of more than two years. Decree of divorce granted.

 

 

JUDGEMENT

 

The appellant Prafulla Kumar is hereby assailing correctness, propriety and legality of the judgment and decree which has been passed by the Additional Judge to the Court of District Judge, Indore in the matter of Hindu Marriage Case No. 1 /91 by which the teamed Judge dismissed to the matrimonial petition filed by the appellant for claiming divorce from his wife Sarla.

2. Few facts need to be stated for the purpose of unfolding the matter. The parties to this appeal married with each other on 4.6.1985 at Indore and lived together till 20.4.1987 when they separated from each other. Since 20.4.1987 both of them are residing separately. On 20.4.1987 the wife, Smt. Sarla, visited the house of the appellant alongwith her mother and took away all her belongings and the articles termed as “Stridhan” including marriage gifts. Receipts PI and P2 were executed in that context.

3. They have a son born out of said wedlock who is now about 10 years’ old as informed by both the Counsels appearing for the parties.

4. Before presenting matrimonial petition the wife had filed a petition for restitution of conjugal rights in view of provisions of Section 9 of Hindu Marriage Act, 1955 (hereinafter referred to as Hindu Marriage Act for convenience). The said matrimonial petition filed by the respondent Sarla came to be dismissed on 5.10.1988 on default. No application was preferred by Sarla in the Court for its restoration. The said order of dismissal for default was also not challenged by resorting to other provisions of law. After that petition, Sarla did not file any matrimonial petition for restitution of conjugal rights.

5. The appellant examined himself, however, the wife Sarla examined Ghanshyamdas Agrawal, Hiralal Jain, herself in support of her case. Learned Trial Judge after assessing the evidence in the light of evidence adduced held that the appellant did not prove that the wife Sarla had deserted him for more than two years. In view of that, he dismissed the matrimonial petition filed by the present appellant claiming for the decree of divorce in his favour and against the respondent, Sarla.

6. Learned Counsel appearing for both the parties, made a reference to the evidence on record as well as documents filed.

7. It has been an admitted fact that on 20th April, 1987 the respondent Sarla and her mother had gone to the house of father of the appellant Prafulla Kumar and had taken away all the articles which were given to respondent Sarla in the marriage by her parents or by others as marriage gifts and in that context documents Ex. PI and P2 were executed. There is no dispute that from 20th April, 1987 there has not been any re-union between appellant and respondent. It is also undisputed that both the appellant and respondent have a child begotten out of this wedlock whose name at present is “Samkeet” and whose age is about 10 years. It is also undisputed that said Samkeet is residing with respondent Sarla.

8. The appellant had filed the matrimonial petition for getting decree of divorce against the respondent for dissolving their marriage in view of provisions of Section 13(1)(ib) alleging that respondent Sarla had deserted appellant Prafulla Kumar for a continuous period not less than two years immediately preceding the presentation of die petition. The respondent had contended in her written statement that at the relevant time the appellant was serving at Indore and he wanted to stay at Indore separately and, therefore, he had sent respondent and her mother to Ujjain to his parents house for the purpose of bringing those articles which respondent and her mother took away from the parents of appellant as indicated by Exs. P1 and P2. The respondent had contended that she was willing to cohabitate with the appellant, however the appellant did not want her to cohabitate with him and, therefore, he refused the association. An attempt has been made to contend that on 23th April, 1987, respondent Sarla had gone to Ujjain for residing with the appellant but she was turned out by the parents of the appellant. The respondent had contended that for the purpose of restitution of conjugal rights she has preferred a petition in the District Court, Indore in view of Section 9 of Hind u Marriage Act and that showed and shows her bona fides and her willingness to cohabitate with the appellant as husband and wife. Not only that, but during the pendency of the petition which is the subject matter of this appeal, the respondent Sarla had stated in her evidence that she was and she happens to be willing to cohabitate with the appellant Prafulla Kumar.

9. Mr. A.K. Sethi, Counsel appearing for the appellant made reference to a number of letters which are on record, and submitted that the respondent happens to be a lady of ill-temper and, therefore, she abruptly decided to sever her relations of wife with the appellant and in pursuance of that, took away all the articles from the house of parents of appellant on 20th April, 1987. Mr. Sethi pointed out in this context that the said work of preparing the list continued even upto 1.30 a.m. in night. By pointing out this Mr. Sethi argued that the respondent who was even unmanageable to the members of her parents’ family, herself decided to abandon the appellant and, therefore, deserted him permanently with the intention of deserting him since 20th April, 1987 and she did not make any attempt for their re-union for period of nearly about 10 years. He further submitted that the statement made by respondent Sarla in her evidence that she was and happens to be willing to cohabitate is in a false pretext, for seeing that the petition of the appellant stands dismissed.

10. Countering this, Miss Achala Joshi, Counsel appearing for respondent, submitted that the respondent Sarla wanted to cohabitate with appellant Prafulla Kumar. Therefore, she had gone to Ujjain on 23.4.1987 but she was turned out and, thereafter, she filed a matrimonial petition for the purpose of restitution of conjugal rights in view of Section 9 of Hindu Marriage Act. She further argued that during this period of no union between the appellant and respondent, appellant did not do anything for the purpose of asking respondent to come to the matrimonial home for cohabitating with him as his wife. She submitted that this conduct of the appellant shows that he was responsible for this separation and he is taking advantage of that for the purpose of getting a decree of dissolution of marriage. She supported the judgment of the Trial Court as correct, proper and legal.

11. In Sections 2 and 3 of Hindu Marriage Act, definitions have been given but word ‘desertion’ has not been defined. Meaning of word ‘desert’ has been given in Webster’s New World Dictionary, Second Indian Reprint 1976 as—to forsake (someone or something that one ought not to leave), abandon, to leave (one’s post etc.) without permission and with no intent to return. Prem’s Judicial Dictionary, Vol. 1, published by Bharat Law Publication, Jaipur-1992 has given meaning of ’desertion’ as ‘desertion is a withdrawal, not from a place, but from a state of things quoting (1942) All.ER 553, 555, (1943) 2 All ER175, 180, Halsbury, Vol. 10 (654). Aiyar’s Judicial Dictionary, 11th Edition, published by The Law Book Company (P) Ltd. has given the definition of word ‘desertion’ as abandonment of someone who has a claim upon a person, e.g. desertion of children, wife, etc. The Law Lexicon, The Encyclopaedic Law Dictionary with legal maxims by P. Ramanatha Aiyar, reprint Edition 1992 has given the definition of ‘desertion’ as the act by which a person abandons and forsakes, without justification, a station or condition of public or social life, renouncing its responsibilities and evading its duties. Webster’s New International Dictionary, Second Edition has given a meaning of word ‘desert’ as forsake, to abandon without any warning, permission or right, to leave in the lurch, to desert a friend, one’s family etc. Section 3 of Indian Divorce Act, 1869 has given definition of word ‘desertion’ as “a desertion implies an abandonment against wish of the person charging it”. Appropriate help can be obtained from provisions of Section 9 of Hindu Marriage Act which deals with restitution of conjugal rights. It writes that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition etc. etc. The total sum of this is that the act of desertion conveys following things :

(i) Withdrawal of the society of a spouse from other,

(ii) Without the consent, wish of spouse so aggrieved,

(iii) Without an intimation to such spouse,

(iv) With the intention of not returning.

12. Thus, for the purpose of understanding the correct impact of term ’desertion’ which has been used in Section 13(1)(ib) of Hindu Marriage Act, the evidence will have to be carefully assessed. There may be direct evidence on the point of desertion’ and if such evidence is not available to the Court for the purpose of passing an appropriate decree in the matrimonial petition, the truth has to be assessed from the surrounding circumstances.

13. In the present case, the spouses have separated since 20th April, 1987 and thereafter till today there has been no reunion between them. Both of them are blaming each other for such separation. The husband is alleging that it was the wife who abruptly decided to desert him since 20th April, 1987, when she went to the house of the parents alongwi th her mother and took away all the articles which were given to her by her parents in the marriage and by others as marriage gifts. The wife is alleging that she had gone to the house of parents of husband for taking those articles at the behest of her husband himself because the husband wanted to . abandon his parents for staying separately from them at Indore. One witness who has been examined on behalf of the wife has stated that at the relevant time the appellant husband was serving at Indore. At this juncture it is important to note that it has come in the evidence of respondent Sarla that after 20th April, 1987, on 23rd April, 1987 she had gone to Ujjain for cohabitating with the appellant Prafulla Kumar and it was so because on the next day, may be on 21st or 22nd April, 1987, Prafulla Kumar left Indore and went to Ujjain on a pretext, as per say of Sarla. If Prafulla Kumar had asked Sarla and her mother to go to his parents house to Ujjain for the purpose of taking away those articles which have been taken away by them by executing documents PI and P2 and it was for the purpose of residing separately from the parents at Indore, there appears to be no reason for Prafulla Kumar to leave Indore and to go to Ujjain abandoning Sarla at Indore. Had there been truth in this context in the evidence of Sarla that she had gone to Ujjain with her mother for taking those articles, at the behest of Prafulla Kumar as Prafulla Kumar wanted to stay at Indore separately from his parents there was nothing for Prafulla Kumar to abandon Sarla and leave Indore to go to Ujjain, in that case both Prafulla Kumar and Sarla would have stayed happily at Indore separately from the parents of Prafulla Kumar atleast for some days. Therefore, the statement of Sarla that she had gone to Ujjain alongwith her mother for the purpose of taking away those articles at the behest of Prafulla Kumar is nothing but falsehood. In this context it is to be noted that both Sarla and her mother stayed at the house of parents of Prafulla Kumar for the purpose of taking those articles for late night and said work continued even upto 1.30 a.m. in the night between 20th and 21st April, 1987. The persons were required to execute two documents i.e. Exs. P1 and P2.

14. This aspect has to be considered together with the letters which are on record. Some letters are written to Sarla by her younger sister and some letters have been written by her mother to Sarla. Those letters are Exs. P9, P10 and P11. In some letters younger sister of Sarla advised her to abandon her short-temperedness and the tendency of dictating terms which she was exhibiting even at her parents’ house. In one letter she has stated that if at all she was angree, she was at liberty to go to Ujjain and vent out all her anger on her. She entreated her not to be so rough with her husband. She also advised her to listen to her parents-in-law’s advice and the advice of her own husband. The tone of said letters will have to be given due consideration. One letter written by her mother was indicating that her mother was asking her to abandon her short temperedness and to be reasonable with the advice of her husband and parents-in-law. It is pertinent to note that in that letter she has used the language which was very emotional one by which she requested her to maintain her dignity. For the purpose of requesting Sarla to be sober, she reminded her of relations with Sarla and herself that of a mother and a daughter; she reminded her of her ‘suckling days’. The tone of letters written by her mother to Sarla were indicating that she was loving her more than her other children. The letters written by both the younger sister and mother of Sarla show that Sarla was behaving in an eccentric way in her parents’ house.

15. This takes me to another aspect of the matter and that is connected with act of Sarla and her mother visiting the house of her parents in-law in the night between 20th and 21st April, 1987. Even if asked by the husband, the wife and the mother of wife would not normally visit the house of the parents of the husband, in odd hours of night and would not compel them to hand over the marriage gifts. In this case both Sarla and her mother have done the same. The act of taking away those articles continued till late night upto 1.30 a.m. It also shows the accentric behaviour of Sarla. Her mother would have accompanied her as she was her loving daughter as indicated by the letters written by the mother of Sarla as well as her younger sister. These two things have a co-relation.

16. It has been argued by Miss Joshi, Counsel appearing for Sarla, the respondent, that Sarla wanted to have reunion and, therefore, she filed a petition for the purpose of restitution of conjugal rights; but she was unable to explain as to why no application for restoration of that matrimonial petition was filed by Sarla in the same Court or as to why that order of dismissal of matrimonial petition was not challenged in High Court. The right of making a prayer for decree of restitution of conjugal rights, is a continuous right. A spouse who has been deserted by other spouse has such a right intermittently. Therefore, Sarla could have filed matrimonial petition thereafter also for the purpose of making a prayer for decree of restitution of conjugal rights but that has not been done.

17. Miss Joshi argued that during this long period of separation, the husband, the appellant Prafulla Kumar did not send any notice to Sarla inviting her for co-habitation in matrimonial house. At the same time Sarla did not send any notice to her husband Prafulla Kumar asking him to take her to matrimonial home. Even she did not insist for her entry in the matrimonial life of Prafulla Kumar after the said matrimonial petition was dismissed and thereafter also, intermittently. Sarla does not have any explanation for that.

18. Truth seldom appears directly face-to-face. It exhibits its presence in a concealed way. It is to be gathered from surrounding circumstances. That is why the process of sifting the grains from the chauff is to be adopted. Truth never exhibits its presence entirely. It surfaces partially and in concealed way. Exactly it is the same case in this case. Truth has to be gathered from the circumstances depicted by this case and from the record. It has to be assembled by parts for the purpose of finding out as to who was blameable for this separation.

19. Withdrawal of one spouse from the association of other has to be continued and that with animus desirendi and that has to be assessed in the present case by the circumstances of the case and its record.

20. The act of Sarla visiting her parents-in-law’s house alongwith her mother, staying there till late night hours and taking away marriage gifts is consistent with the tone of the letters written by her mother and her younger sister which discloses her eccentric attitude. Therefore, it is possible that as she was not able to modulate her attitude and behaviour after the marriage, she might have decided to abandon her husband forever and, therefore, she might have deserted him from 20.4.1987 and the said association was never reunited thereafter. It is true that Sarla has stated in her evidence that she was willing to go to her husband’s house. It is also true that there was a letter written by her father to the present appellant making a grievance that he did not come even for the purpose of seeing his son Samkeet. But after all this is a belated thing. Such situation is not unknown to the battle of litigation. The spouses love each other when their matrimonial tie is harmonious and glorified with love, but the same spouses start pecking each other by following any possible way when the relations starts straining and gets strained. Therefore, no importance can be given to these things.

21. Learned Trial Judge has not considered the evidence in this matter carefully with a probing approach. His approach towards the assessment of the evidence is slipshod and leading towards casualness. In matrimonial cases more particularly in the cases which are based on plea of ‘desertion’ and for a decree of divorce, the Courts are bound to be cautious in assessment of the evidence. That process has to be followed because the matrimonial ties are likely to be dissolved.

22. Thus, I come to the conclusion that learned Trial Judge has committed the error on appreciation of evidence which led him to erroneous conclusion against the present appellant holding that he did not prove that respondent deserted him for a continuous period of more than two years. Learned Trial Judge should have held that it has been proved by the appellant that respondent had deserted him for a continuous period of more than two years and in the result he should have been granted a decree of divorce in view of provisions of Section 13(1)(ib) of Hindu Marriage Act.

23. Thus, I hereby set aside the decree which has been passed by the learned Trial Judge dismissing the matrimonial petition filed by the respondent. He deserves to get decree of divorce against respondent Sarla dissolving their marriage.

24. It is hereby made clear that Samkeet, the child of Prafulla Kumar and Sarla, is entitled to have the alimony which has been provided by law to him and his mother is entitled to avail legal process for that till he is minor. It is also made clear by this judgment that Sarla is entitled to avail a legal remedy for making a claim for alimony. For that purpose the topic of allegations of torture has not been touched.

25. The appeal stands allowed. Keeping in view the matrimonial relations between the parties, decree be drawn accordingly.

Appeal allowed.

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