IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.195 of 2001 in FAO No.44-M of 2000 Date of decision: 18.2.2009 Dr. Nirmal Singh Panesar. -----Appellant Vs. Mrs. Paramjit Kaur. -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present:- Mr. Rakesh Gupta, Advocate for the appellant. Mr. Raman Mahajan, Advocate for respondent. ----- Adarsh Kumar Goel,J.: 1. This appeal has been preferred by the husband, aggrieved by the order of learned Single Judge declining divorce. 2. Facts on record are that the appellant husband filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act”). The marriage of the parties took place on 10.3.1963 and two daughters Harpreet Kaur and Rupdaman Kaur and a son Kanwaljit Singh Panesar were born out of the marriage. LPA No.195 of 2001 Eldest daughter Harpreet Kaur was married in the year 1984 and the younger daughter was married in the year 1986. The son Capt.Kanwaljit Singh Panesar was also married. The husband is a dentist and was employed in Armed forces. The parties lived together for 21 years and in the year 1984, the husband was transferred to Madras. The wife continued to live with parents of the husband and was also looking after the children. She took up a job of a teacher. The husband filed a divorce petition, first in May, 1986, which was withdrawn on May 26, 1986. Grievance of the husband in the divorce petition was that the wife had refused to join him at Madras. After withdrawing the petition, it appears that the parties could not resume cohabitation. He filed second petition under Section 9 of the Act for restitution of conjugal rights. When the said case was at evidence stage, the said petition was also withdrawn. Thereafter, the divorce petition giving rise to this appeal was filed on 12.3.1996. The wife contested the divorce petition. The husband appeared as a witness in support of his case and also examined his brother-in-law (husband of sister) Maha Singh PW2. The claim of the husband was that the wife treated him with cruelty and deserted him by not getting herself transferred to Madras and thereafter by not attending to his ailing father who died on 1.1.1990 and his ailing mother and also by not attending to him 2 LPA No.195 of 2001 when he was unwell. The wife did not attend cremation of his father. The wife appeared as her witness and also examined her daughter RW-2 Rupdaman Kaur. Case of the wife was that she looked after the three children single-handed and also served the parents of the husband. She had to take up a job as the husband did not provide any maintenance. The parents of the husband did not treat her well and asked her to vacate the house. The husband did not care to look after the wife and the children and on account of situation created by the husband, she could not look after him and his parents. She was, thus, not guilty of desertion nor of cruelty. The husband did not attend marriage of younger daughter on 28.11.1986 nor contributed to the marriage expenses. The husband advertised for a governess and also falsely declared the wife to be dead with a view to claim pension. 3. The main issue before the trial Court was whether the wife had treated the husband with cruelty or she deserted the husband without any reasonable cause, as alleged. The trial Court decided both the issues in favour of the husband. Findings of the trial Court are as under:- “21. It may be stated even at the cost of repetition that this petition has been filed on the twin grounds of cruelty and desertion. So far as the desertion is concerned, from the analysis presented above, one finds that matrimonial 3 LPA No.195 of 2001 trouble between the parties started simmering in January, 1984, when the petitioner was transferred from Amritsar to Madras, and he requested his wife to apply for transfer to Madras, but she declined and instead got herself transferred to Chandigarh ostensibly without his consent, and with her unmarried children took residence at Chandigarh. This was an act of desertion on her part. Her subsequent conduct to which I shall presently advert would show that the desertion was with animus deserendi. Admittedly from the year 1985 till today, there has been no resumption of cohabitation. So the petition is bound succeed on the plea of desertion. 22. The evidence relating to the cruelty practiced by the respondent on the petitioner is more glaring. In the first place, the petitioner is a heart patient since the year 1972 A.D. and he has got a long history of heart trouble both physically and figuratively. In or around the month of January, 1984, he asked his wife to apply for transfer from Amritsar to Madras, and to join him at the station of his posting, but she declined. Even in October, 1984 and subsequently, he asked her to get herself transferred to Madras, but she did not agree. These were the acts of cruelty on her part. Then presumably at her instance, the son had written a curt and crude letter to his father. Though in a small measure, yet it was an act of cruelty on her part. From the evidence on record, and the circumstances of the case, one finds that the petitioner is not a hard hearted father, or husband as the respondent points him to be. Soon after, he had compromised and 4 LPA No.195 of 2001 withdrawn the petition under Section 13 of the Hindu Marriage Act from the District Court, Amritsar, he got the bank locker made operatable by both the parties. This was surely a token of love and affection and reconciliation on his part. But even then, she did not join company with him. In January, 1987, he had severe heart attack and was admitted to Command Hospital, Chandigarh in the Intensive Care Unit. He also again remained admitted to the Command Hospital with heart problem. It is admitted by the respondent that as and when a Defence Officer is admitted to the Army Hospital, his family is informed. Despite this, the petitioner did not care even to call on him when he was admitted to the Command Hospital with heart problem, though as wife, she was expected to tend on him, and look after him. Surely these are the acts of cruelty on her part. 23. Then his father died on 1.9.1990. PW2 Maha Singh has stated that they informed the petitioner about his funeral, and last rites which was performed at Chandigarh and the respondent was also residing at Chandigarh. But she did not attend these functions which invited uncharitable comments of the relatives and friends against the petitioner and his family. These were also the acts of cruelty by the respondent to the petitioner. 24. It is not seriously disputed that the petitioner is the only son of his parents. His mother is about 90 years old. She has once been operated upon for cancer. She 5 LPA No.195 of 2001 has got osteoarthritis and interstitial lung trouble, and she is completely bed ridden. In families at such crucial times, sons and daughter-in-law are expected to serve their old parents. But the respondent has not even cared to go casually, and enquire about her health, not to speak of joining company with her husband and serving the ailing mother-in-law. These are also the acts of cruelty by the respondent to the petitioner. All these consistent acts and conduct of the respondent unerringly point to the animus deserendi on her part. 25. It may be stated with emphasis that the parties have been living separately for about 15 years. Best efforts were made for reconciliation between the parties. These were not successful. Even the previous litigations between the parties suggest that there are no chances of reconciliation between the parties. She has been guilty of cruelty, and desertion with animus deserendi and her husband. For all intents and purposes, the marriage between the parties has been dead for a period of about 15 years, and it has irretrievably broken down and is an insoluable mess. Therefore, following the ratio of 1992 (2) Marriage Law Journal 52 Pawan Kumar Vs. Smt. Chanchal Kumari, Ms. Jordan Diengdeh Vs. S.C. Chopra (1986 Marriage Law Journal 473 – AIR 1985 SC 935); Chanderkala Trivedi Vs. Dr. S.P. Trivedi (1993 Marriage Law Journal 505) 1993(4) SCC 232, V.Bhagat Vs. Dr. Bhagat (1994 Marriage Law Journal-I), AIR 1994 SC 710; Romesh Chander Vs. Savitri (1994) Marriage Law Journal 417, AIR 1995 SC 851; and Ashok Hurra Vs. 6 LPA No.195 of 2001 Rupa Bipin Zaveri 1997 Marriage Law Journal 334, it would be advisable to grant a decree of divorce as prayed for by the husband. Therefore, these issues are decided for the petitioner and against the respondent.” 4. The wife preferred an appeal, which was heard by the learned Single Judge. The learned Single Judge reversed the findings of the trial Court. It was held that conduct of the husband was not above board and wife could not be held guilty of cruelty and desertion, inter-alia, as she looked after the children. The findings of the learned Single Judge are as under:- “In the year 1984, appellant was posted in Central School, Amritsar and was looking after the entire family, i.e. her-in-laws and two children. Her elder daughter had already been married. Respondent (Husband) at that time sold the house in which the appellant and other members of family were staying. Appellant alongwith minor children out of compulsion came to Chandigarh and from that date till date she is staying in Chandigarh. While going through the file, I have come across letters Exhibits P-16, P-17 and P-20. Letters show that that respondent was not taking care of his children. As on today, respondent is about 65 years old and the appellant is about 58 years old. Respondent retired from service on April 30, 1990. Learned trial court has not taken into consideration that children are grown up and 7 LPA No.195 of 2001 all are married and the stigma of divorce will have to be carried by them also. The conduct of the respondent is not above board where he was repeatedly filing petitions and withdrawing them and at the time before he got divorce, he was wanting a governess so that he could stay with another lady. This shows that the intention of the respondent was not bonafide vis-à-vis the appellant. It is clear that respondent has run away from his responsibility which he had to shoulder as a father and left the burden of bringing up the children and to marry them on his wife, the present appellant. In support of his contention, the learned counsel for the appellant has placed reliance on a decision in the case of R. Balasubramaniam Vs. Smt. Vijaya Lakshmi Balasubramanian, J.T. 1999 (5) sc 624, wherein the Apex Court has laid down the law that if not attempt is made to bring the wife back home coupled with other circumstances, it amounts to cruelty. This authority is fully applicable to the facts of the present case.” 5. We have heard learned counsel for the parties. 6. Learned counsel for the appellant submitted that desertion and cruelty by the wife stand established on record and the trial Court has rightly accepted the said plea, which has been reversed by the learned Single Judge without any valid justification. The appellant is now 75 years of age and he does not wish to be 8 LPA No.195 of 2001 married. He wants to have satisfaction that he had no relationship with the wife who did not treat him well. The wife had also initiated litigation against the husband for property. The parties are living separately for the last 25 years and the marriage is, thus, irretrievably broken down and continuing the marriage is merely flogging a dead horse. The appellant wants to die in peace without any relationship with his wife. Learned counsel also points out that appellant’s mother was bedridden for 12 years from 1990 to 2002 and was exclusively looked after by the appellant. It is further submitted that the appellant himself remained in hospital several times and the wife never served him inspite of being informed by the Army authorities and ticket being sent. Even after filing of the divorce petition, the husband has been hospitalised several times but the wife never served him. Even father of the appellant had never been attended to and the wife did not come at the time of death of parents of the appellant. Reliance has been placed on judgments of this Court in Dharam Pal v. Smt. Pushpa Devi AIR 2006 P&H 59 and Gurnam Singh v. Smt. Satwant Kaur AIR 2007 P&H 79 and judgments of the Hon’ble Supreme Court in A. Jayachandra v. Aneel Kaur AIR 2005 SC 534 and Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675. 9 LPA No.195 of 2001 7. Learned counsel for the wife says that the wife had never deserted the husband, nor treated him with cruelty and continued to live in the matrimonial home, which was at Amritsar and transfer by the husband to Madras was of his own volition. The wife continued to look after the three children, which she is continuing even today and she is also willing to look after him even now, if he adopts right attitude towards her and the children. 8. The question to be considered is whether the learned Single Judge was justified in reversing the findings of desertion and cruelty by the wife. 9. Before we proceed to consider the question,it may be appropriate to refer to some settled legal principles. 10. Scope of interference in Letters Patent Appeal, though not circumscribed by Section 100 of the Code of Civil Procedure, a finding of fact arrived at by the learned Single Judge is not normally to be interfered with. Reference may be made to judgment of the Hon’ble Supreme Court in Umabai v. Nilkanth Dhondiba Chavan,(2005) 6 SCC 243. 11. Concept of desertion in the context of Hindu Marriage Act, 1956 implies separation with intention to bring cohabitation permanently to an end without reasonable cause and without the consent of the other spouse. Desertion is a matter of inference 10 LPA No.195 of 2001 drawn from facts and circumstances of each case. To determine whether there is animus deserendi, conduct of the parties prior and subsequent to act of separation has to be examined. 12. In Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, it was observed:- “10. What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarised the case-law on the subject in these terms:- "Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party". The legal position has been admirably summarised in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:- "In its essence desertion means the intentional permanent forsaking and abondonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. 11 LPA No.195 of 2001 Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. Xx xx xxx xxx xxx xxx Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similiarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Xx xxx xxx xxx xxx 12 LPA No.195 of 2001 Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi.The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close….” 13. Concept of cruelty under the Act implies causing of apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the other party. 14. In Dr. N.G.Dastane v. Mrs. S.Dastane, AIR 1975 SC 1534, following passage from Amrican Jurisprudence, 2nd Edition, Volume 24, p.206, was quoted with approval:- 13 LPA No.195 of 2001 "The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.” Further, it was observed:- “The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins, (1963) 2 All ER 966 : "In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start 14 LPA No.195 of 2001 with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people. xx xx xxx xxx 50….However, learned counsel for the respondent is right in stressing the warning given by Denning, L. J., in Kaslefsky v. Kaslefsky (1950) 2 All ER 398 at p. 403 that "if the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of, marriage itself is imperiled. ……..Passion and petulance have perhaps to be suffered in silence as the price of what turns out to be an injudicious selection of a partner….” 15. Institution of marriage occupies important place in the society. Concept of divorce was unknown under the Hindu law and has been introduced only by a statute. Policy of law is not to dissolve a marriage unless a case is made out. Responsibility to continue the marriage is not only of the wife but also of the 15 LPA No.195 of 2001 husband. In Chetan Dass v. Kamla Devi, AIR 2001 SC 1709, it was observed:- “14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.” 16. Coming now to the facts of the present case, it is undisputed that the wife continued to live with the husband without any grievance for 21 years and gave birth to three children. She looked after the children. One daughter was married in the year 1984 before separation. The grievance put-forward by the husband 16 LPA No.195 of 2001 for the first time was that the wife did not join him when he was transferred to Madras. The parties were settled at Amritsar and lived there for 21 years where children and parents of the appellant were also living. Case of the wife is that the husband got himself transferred of his own volition. At this stage of life when there were three grown up children and the wife had been living with the husband for 21 years, if unilateral decision was taken by the husband and the wife expressed her opposition, could it be held that the wife deserted the husband or treated him with cruelty. We have already referred to the settled principles on the subject. If the wife did not agree to have herself transferred to Madras, in the given situation, it could not be held that the wife wanted to bring cohabitation permanently to an end without reasonable cause. This did not show any animus deserendi nor it could be held that the wife was cruel to the husband. Taking an overall view of the matter, it cannot be held that the view taken by the learned Single Judge is not a possible