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Avtar Singh Vs. Balbir Kaur

Judgement

 

Court: Delhi High Court

Bench: JUSTICE Jagdish Chandra

Avtar Singh Vs. Balbir Kaur On 27 Nov 1986

Law Point:
Hindu Marriage Act, 1955 — Sections 13(1)(ia), 13(1)(ib) — Cruelty and desertion — Appellant filed petition for divorce pleading cruelty and desertion since June, 1981 for a continuous period of three years — Trial court dismissed the petition on the ground that mere leaving by the wife of the matrimonial home did not prove desertion — Appeal against the judgment of trial court — Whether the respondent wife was guilty of desertion and cruelty — Yes.

 

 

JUDGEMENT

 

1. This appeal filed by the appellant Avtar Singh (hereinafter to be referred to as the ‘husband’) is directed against the ex parte judgment dated 19.12.1984 passed by Shri R.C. Jain, Addl. District Judge, Delhi whereby the petition of the husband under S. 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 (as amended up-to-date) (in short the Act) seeking divorce against the respondent Smt. Balbir Kaur (hereinafter to be referred to as the ‘wife’) on the grounds of cruelty and desertion, was dismissed.

2. The appellant was married to the respondent on 11.11.1979 in accordance with Hindu rites.

3. Regarding desertion the allegation of the husband was that the wife had left the matrimonial home in the month of June, 1981 without any lawful excuse and had deserted him for a continuous period of more than three years and did not return to the matrimonial home in spite of repeated requests of his and his family members and that she voluntarily declared that she did not want to have any connection with the petitioner. To support this allegation of desertion the husband came in the witness-box as P.W. 1 and also examined his elder brother Pritpal Singh (PW2) and both of them supported the aforesaid assertion made in the petition. However, the learned trial court was of the view that the mere fact that the wife left the matrimonial home was not by itself suggestive that she had so left with the intention of deserting the petitioner. This finding by the learned trial court is nothing short of perversity. If a married woman leaves the matrimonial home and does not return to the matrimonial home a period of more than 3 years and flatly refuses to rejoin her husband on being requested repeatedly, the intention on her part is very obvious and it need not be stated that the intention is nothing else but that of deliberate desertion of the husband. It may be added that this desertion on the part of the wife took place for the reason that she was not able to succeed in her design of separating the husband from his parents and to have a separate house which made her furious and abusive towards the petitioner in the presence of his family members which conduct on her part is also suggestive of cruelty on her part towards the husband.

4. The learned trial court was also of the view that for non-compliance with the mandatory requirement of the Delhi High Court Rules (Practice & Procedure) the petition was rendered not maintainable inasmuch as no affidavit about the non-condonation of the alleged cruel conduct of the wife as also regarding non-collusion between the parties had been filed by the husband along with the petition. Affidavits of non-collusion and non-condonation are required under Rules 8 and 9 respectively of the Rules framed by this Court in exercise of the powers conferred by Ss. 14 and 21 of the Act. These Rules have framed to regulate the proceedings under the Act. These procedural rules regarding the filing of affidavits cannot be said to be mandatory in nature so as to render a petition under the Act not maintainable as the rights of the parties are to be determined not on mere technicalities or procedural law but on the provisions of the substantive law governing them. Moreover, the Rules of procedure serve as a hand-maid of justice and cannot be allowed to penalise the parties. It may also be pointed out that in the petition for divorce paras 11 and 12 make assertions regarding non-condonation of the respondent’s acts of cruelty and desertion and non-collusion respectively and when this petition stands duly verified, the omission of tiling the affidavits in respect of those assertions fades into insignificance and cannot be allowed to adversely affect the maintainability of the petition. The learned counsel for the husband has invited the attention of the Court to the two Supreme Court authorities M/s. Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 (at p. 488) and S.B. Noronah v. Prem Kumar Khanna, AIR 1980 SC 193. The former authority in its para 10 observed as follows : -—

“……..It had pointed out that the object of rules of procedure is to’ decide the rights of the parties and not to punish them for their mistakes or short coming……..“

5. That was a case dealing with the amendment of the complaint and the question had arisen whether the amendment proposed could be allowed or not after the expiry of the period of limitation and the question of limitation was brushed aside for the reason that what was sought to be brought in by way of amendment was merely a clarification of what was already stated and was not tantamount to introduction of a new case which has been understood to mean “new set of ideas”. The latter authority was dealing with an application for eviction moved under S. 21 of the Delhi Rent Control Act, 1958 and which referred to lease but had failed to state that it was ‘in writing’ though in fact it was in writing. It was held that the application for eviction could not be treated as defective for such an omission. The following observations appearing in para 6 of this authority at page 195 are instructive :

“Pleadings are not statutes and legalism is not verbalism, Common sense should not be kept in cold storage when pleadings are construed. It is too plain for words that the petition for eviction referred to the lease between the parties which undoubtedly was in writing. The application, read as a whole, did imply that and we are clear that law should not be stultified by courts by sanctifying little omissions as fatal flaws. The application for vacant possession suffered from no verbal lacunae and there was no need to amend at all. Parties win or lose on substantial questions, not ‘technical tortures’ and courts cannot be ‘abettors’.”

6. In view of these Supreme Court authorities the omission in respect of filing the aforesaid affidavits by the appellant along with the divorce petition do not appear to be fatal to the petition.

7. In view of the above discussion, : the judgment under appeal looks faulty and erroneous and the appeal succeeds and consequently setting aside and reversing the impugned judgment and the decree, a decree for divorce dissolving the marriage is passed in favour of the appellant husband against the respondent-wife both on the grounds of desertion and cruelty. No order as to costs.

 

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