FAO No. M-93 of 2010 -1- In the High Court of Punjab & Haryana at Chandigarh FAO No. M-93 of 2010 (O&M) Date of decision : 3.6.2011 Parminder Kaur Saini ..... Appellant vs Kushwant Singh Saini ..... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. S. K. Singla, Advocates, for the appellant. None for the respondent despite service. Rajesh Bindal J. Challenge in the present appeal is to the judgment and decree of the learned court below whereby petition filed by the appellant-wife under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act”), for dissolution of marriage, was dismissed. Briefly, the facts of the case are that the marriage of the parties was solemnised as per Sikh rites on 19.2.1995. Out of the wedlock twin daughters were born on 1.11.1995 and one son was born on 26.10.2000. The wife filed divorce petition with the allegations that after the birth of twin daughters on 1.11.1995, the respondent and his parents started quarreling with the appellant on petty matters. They started torturing her. She was beaten up and called Naish. She tolerated all these atrocities and did not tell anything to her parents. In the year 1998, the respondent and his family members started demanding ` 5 lacs from her so that respondent may go to USA. On 26.10.2000, a male child was born. It was submitted that after the birth of male child, the respondent and his parents became happy and started living peacefully. They very intelligently persuaded the appellant for bringing ` 4 lacs so that respondent could go to America. In the month of January 2003, the respondent went to America by saying that FAO No. M-93 of 2010 -2- in next 2-3 months he would make arrangement for taking her and the children to America. The respondent did not do anything. She had written letters and made many phone calls to the respondent but all in vain. He even stopped sending money. When she asked for money from the parents of the respondent, they refused and rather started torturing her mentally and physically. Without any financial support, she could not make arrangement for the livelihood of her children. She informed about this to her parents in the month of November 2003. The parents of the appellant requested many times to the parents of the respondent for providing shelter to their daughter and her children but they did not respond. The appellant also informed the respondent about the atrocities on telephone, but he also refused to give any financial or moral support and stated that he does not want to live with her. With these allegations, the appellant wife filed divorce petition. Notice of the petition was served upon the respondent, however, despite service, he did not appear and was proceeded against ex- parte on 19.5.2009. The appellant-wife in her evidence examined herself as PW1, her mother Narinder Kaur as PW2, paternal uncle Kewal Singh as PW3 and brother Sukhwinder Singh as PW4. The learned court below dismissed the divorce petition filed by the wife on the ground that she failed to prove the allegations made in the petition. Aggrieved by the impugned judgment and decree of the trial court, the wife has filed the present appeal. Despite service the respondent has not appeared even before this court. Learned counsel for the appellant submitted that firstly the husband is not taking care of the wife and children and secondly he is not paying any amount to the family for maintenance. The respondent left India in the year 2003 and till date he has neither come back nor taking the children and the wife with him. It was submitted that even the family of the respondent did not take care of the appellant and the children. Learned counsel for the appellant further submitted that without there being any basis the learned court below had recorded finding that FAO No. M-93 of 2010 -3- there is collusion between the parties to seek divorce. The evidence led by the appellant was totally ignored and the learned court below dismissed the petition wrongly. The respondent has deserted the wife without any reason. The petition filed by the wife be allowed. I have heard the learned counsel for the appellant and have carefully gone through the record. The petition for divorce filed by the wife was dismissed by the learned court below on 3.12.2009 with the observations that she failed to prove the case. Thereafter, she filed appeal in this court. Notice of motion was issued on 3.3.2010. As the notice issued to the respondent was not served, this court vide order dated 31.8.2010, directed service by way of registered post as well as through courier for 9.12.2010. On 9.12.2010, this court passed the following order:- “On the last date of hearing, notice was directed to be issued to the respondent for service through registered AD as well as through Blue Dart courier service. A certificate has been produced on record, as has been down loaded from the net, showing that the letter was delivered to the consignee, namely, Khushwant Singh Saini on 1.10.2010 at 1319 hours. Still, no one has appeared for the respondent. Even before the court below, the respondent was ex parte. Learned counsel for the appellant submitted that since January, 2003, the respondent has not come back from America to take care of his family. His parents are living in India. He may have some property as well in India. Learned counsel seeks time to furnish the address of the parents of the respondent residing in India and also the details of the property owned by the respondent in India, if any. Adjourned to 20.12.2010.” Even though notice issued by this court had been served upon the respondent but he did not appear or engage any advocate to contest the appeal. This court also tried to summon the parents of the respondent, FAO No. M-93 of 2010 -4- however, despite service they also did not appear. On 10.3.2011, this court passed the following order:- “In the present case, service of respondent was earlier effected through courier. However, later on finding that parents of the respondent are living in India, another set of notice was directed to be issued for service through his parents for today. As per office report, service is complete. The case was taken up twice, however, no one has appeared for the respondent. On 9.12.2010, the learned counsel for the appellant sought time to find out as to whether the respondent owned any property in India, as he was not taking care of his family consisting of wife, two daughters and one son ever since he left for USA in January, 2003. Along with the application an affidavit of the appellant was filed stating therein that the respondent is co- sharer in four shops situated at Adda Chalang near village Khokhar, Khokhar Road, District Hoshiarpur, with his brother, Satnam Singh, who is in possession of the shops. Let notice be issued to Satnam Singh son of Harjeet Singh resident of Village Giddar Pindi, P. O. Zahura, Tehsil Dasuya, District Hoshiarpur for 10.05.2011.” Despite service even the brother of the respondent did not appear in court. Since the respondent-husband did not put in appearance despite knowledge of the proceedings pending in the court, the allegations of the wife remained unrebutted even before this court. The finding recorded by the learned court below that there is collusion between the parties to seek divorce is without any basis. No evidence as such has been considered by the learned court below while recording this finding. No purpose for collusion was shown by the learned court below. There is no question of collusion as the parties can always FAO No. M-93 of 2010 -5- apply for divorce by way of mutual consent. Rather the court below on 19.5.2009 while proceeding ex-parte against the respondent, passed the following order:- “Summons sent for the service of the respondent not received back. There is one letter sent by one K Singh Saini that he does not want to contest the petition. The letter originated from the address of the respondent, which shows that respondent has got knowledge about the present proceedings. None has appeared on his behalf. He is proceeded against ex- parte. Now to come up on 23.7.2009 for exparte evidence of the petitioner on filing of DM and list of witnesses within ten days.” The contents of the letter sent by K.Singh Saini, respondent, which is available on record, are extracted as under :- Sh. S. K. Goel, District Judge, Hoshiarpur- Pb. INDIA -146001 Sub Regarding the divorce Petition tiled as Parminder Kaur Saini Vs Kushwant Singh Saini Next Date 19-05-09. Sir, I am settle at New-Jersey (America). I do not want to come India again. So I do not want to contest the case. Sincerely yours, K. Singh Saini Kushwant Singh Saini Dated – 3/4/09 S/o Harjeet Singh R/o H. No. 1314, ELM-AVENUE HADDON TWN. NJ-08107-1834 USA” The wife in her examination-in-chief stated that after the birth of twin daughters on 1.11.1995, the respondent and his parents started quarreling with her on petty matters. They started torturing her. She was beaten up and called Naish. She remained silent and tolerated all these FAO No. M-93 of 2010 -6- atrocities. In the year 1998, the respondent and his family members started demanding ` 5 lacs from her on the pretext that respondent wants to go to America. After the birth of male child on 26.10.2000, the respondent and his parents became happy and started living peacefully. The appellant on their persuasion gave ` 4 lacs so that the respondent could go to America. In January 2003, the respondent went to America by giving assurance that he would take the appellant and the children to America within 2-3 months. But he did not make any arrangement. The wife claimed that she had written so many letters and made phone calls but he did not do anything for taking them to America. He even stopped sending money to the wife. When she asked the parents of the respondent for money, they flatly refused and started torturing her mentally and physically. This made difficult for her to make arrangement for the livelihood of her children. The wife will not leave the matrimonial home, with three children, after about nine years of marriage unless there are compelling circumstances. It is not easy for any girl to live in her parental home after the marriage. In our society, no girl would like to live with the stigma of divorcee. After divorce second marriage is also difficult especially when there are three children from the first marriage. The parties are living separately for the last more than 6 years. The husband or his parents are not caring for the wife and children morally as well as financially. The evidence led by the appellant wife shows that the respondent has never made any efforts to save the matrimonial home or to meet the children. Rather he even stopped sending money to them. It is a case in which the respondent is an educated person. He is writing letter in English. He knew about the proceedings before the court below as well as before this court. He intentionally did not appear before the court below and even before this court. His parents and brother, who were served, also stayed away from the proceedings before this court. In such a situation, considering the allegations made in the petition, the wife cannot be left high and dry. This itself is an aspect of cruelty and will amount to harassment in the facts and circumstances of the case. Desertion is clearly proved. FAO No. M-93 of 2010 -7- Under the circumstances of the case, in my opinion, the allegations made by the appellant deserves to be accepted and a decree of divorce is required to be passed in her favour. For the reasons mentioned above, the present appeal is accepted. Resultantly, the divorce petition filed by the wife for dissolution of marriage is accepted. Decree-sheet be prepared accordingly. Before parting with the judgment, it is directed that the share of property recorded in the ownership of husband shall remain attached for payment of any maintenance or other charges to the appellant wife and could be sold in execution of any decree passed in favour of the appellant wife and against the respondent husband. If any income is being generated or due from the property in the ownership of the husband, the same be paid to the appellant. A copy of the order be sent to the Deputy Commissioner, Hoshiarpur, for giving effect to the order. 3.6.2011 (Rajesh Bindal) vs Judge