FAO No.199 M of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.199 M of 2008 Date of decision 3.3.2010. Mohinder Singh ...... Appellant. versus Jaswinder Kaur ...... Respondent. Present : Ms. Jigyasa Tanwar, Advocate for the appellant. Mr. Harish Sharma, Advocate for the respondent. K.C.PURI. J. Mohinder Singh-appellant has directed this appeal against the judgment dated 29.4.2008 vide which petition under Section 13 of the Hindu Marriage Act, 1955 ( in short HM Act) filed by him seeking decree of divorce by way of dissolution of marriage, stood dismissed. The marriage between the parties took place on 19.1.1997 at Ludhiana according to Sikh Rites and ceremonies. The parties cohabited together as husband and wife for some time at Ludhiana. Out of their wedlock, one female child namely Harmanjit Kaur was born, who is presently in the care and custody of the respondent. From the very beginning of marriage, behaviour of respondent towards the petitioner was not upto the mark. The respondent was even taken to Italy by the appellant FAO No.199 M of 2008 2 as he used to work there. In Italy respondent was treated nicely by the appellant. Prior to their marriage, the petitioner had deposited some money in different bank accounts. After marriage, he earned money by putting up hard labour and provided all the necessities of life to the respondent as per his status and income. The appellant in good faith deposited huge amount in joint accounts opened by them in India, but the respondent showed her dishonest intention. In Italy respondent was house wife and always remained at home as she was not gainfully employed. In spite of that, respondent did not perform her matrimonial obligations. She often refused to cook food and to wash clothes, as a result of which petitioner himself used to perform domestic work. In his absence, respondent used to leave his house without permission and information and on objection, the respondent started quarreling with him. The petitioner made efforts to convince the respondent to behave like a good wife but she never bothered for him and she used to abuse and insult him in the presence of relatives and visitors to his house. In the year 2002, respondent again conceived and pregnancy was found to be positive in medical check up, done in the said country. Respondent started pressing for her return to India. As the petitioner did not give his consent, she started quarreling because she intended to withdraw the amount lying deposited in fixed deposit accounts maintained in joint names of the parties in banks in India. Ultimately, she returned to India on 6.3.2002 and made an attempt to withdraw the amount, about which the petitioner got information and he foiled her attempt. Feeling aggrieved, the respondent filed two civil suits against the petitioner seeking permission to withdraw the amount deposited in banks. She also FAO No.199 M of 2008 3 filed an application on 24.8.2002 to the police for registration of a criminal case under Sections 406 and 498-A IPC against the petitioner and others. The police refused to proceed against the petitioner and others after he appeared before the police and explained the conduct of the respondent. However, the dispute was compromised with the intervention of Gram Panchayat. A compromise deed was drafted, duly signed by the respondent also in addition to others in terms of which she received a sum of Rs.1,10,000/- in lump sum as past, present and future maintenance and costs of her Istridhan. She also undertook not to raise claim on amount lying in joint accounts and to apply for the divorce but subsequently, she backed out. The petitioner kept on bearing humiliation under the hope that better sense would prevail with the passage of time. He again requested the respondent to join him and not to do any illegal act, but to no avail. Hence, she has treated the petitioner with cruelty and has withdrawn from the society of the petitioner for a continuous period of three years for the sake of money. Now petitioner apprehends danger to his life and he does not consider safe to live with the respondent. On being put to notice, respondent filed written statement, resisting the petition taking preliminary objections that petitioner is estopped by his own act and conduct from filing the petition. On merits, factum of marriage its date and place and also birth of female child have been admitted but denied that from the very beginning of marriage behaviour of the respondent was not upto the mark. Respondent admitted the fact that she went to Itlay but denied that she was kept and maintained by the petitioner nicely or she was remained a house FAO No.199 M of 2008 4 wife after she reached Italy. On the other hand, respondent was compelled to do job in some private factory and she has been earning there and out of the said income she deposited in joint fixed deposit accounts in India in different banks out of joint income of the parties. She further alleged that even after respondent used to get tired afterwork in factory she continued to perform her duties. She also denied that respondent used to quarrel with the petitioner or she insulted him in the presence of relatives and friends. Respondent denied that she never treated the petitioner with cruelty and withdrew from his society for the last three years. She denied all other averments and prayed for dismissal of the petition. The petitioner-appellant filed replication in which he controverted the averments of the written statement and that of the petition were reiterated. The following issues were framed :- 1. Whether treated the petitioner with cruelty, as per allegations made, in the petition ? OPP 2. Whether the respondent, deserted the petitioner with any rhyme and reason ? OPP. 3. Whether petition is not maintainable ?OPR. 4. Relief. In order to establish his case, petitioner himself stepped into the witness box as (PW-1) and also examined Baljinder Singh (PW-2), Sampuran Singh (PW-3)and his uncle as PW-4, whereas the respondent examined Darshan Singh (RW-1), herself stepped into the witness box as (RW-2), Randhir Singh (RW-3), Sukhwinder Kaur as (RW-4), and Satbir FAO No.199 M of 2008 5 Singh as (RW-5). The learned trial Court after hearing the learned counsel for the parties decided both the issues against the petitioner-appellant while observing that the petitioner-appellant has failed to prove the grounds of cruelty and desertion, therefore, dismissed his petition for divorce. Feeling aggrieved with the aforesaid judgment, the present appeal has been preferred by the appellant. I have heard learned counsel for the parties and have gone through the records of the case with their help. Learned counsel for the appellant has submitted that appellant has sought divorce on the following two grounds :- (1) cruelty on the part of the respondent-wife ; and (2) desertion at the hands of respondent-wife without any sufficient cause. It is submitted that both these grounds stand fully proved from the evidence on the file. It is submitted that respondent has admitted the fact that she was pregnant when the appellant had gone abroad. Respondent has further admitted the fact that the abortion was got conducted in the absence of appellant, while she was residing in the house of her parents. The abortion of a child in the absence of appellant amounts to severe type of cruelty and the learned trial Court has wrongly held that abortion has taken place, while respondent was in the house of his parents. I have carefully considered the said submission but do not find any force in that submission. FAO No.199 M of 2008 6 It is admitted by the petitioner-appellant that pregnancy test was got conducted while both the parties were residing at Italy. It is also admitted case of the parties that the parties have another female child which is now in custody of respondent. No doubt, from the testimony of respondent it has emerged out that the abortion of respondent has taken place after appellant went to Italy but the finding of the trial Court to the effect that abortion has taken place with the consent of appellant and his family members, does not call for any interference. It so seems that second child may be a female child as the pregnancy test itself has been got conducted in Italy. So, at the instance of appellant abortion of respondent got conducted by the family members of appellant. The learned counsel for the appellant has further submitted that it is a case of irretrievably broken marriage. The parties are living separately since 2002 i.e. last about eight years. So, in these circumstances the dead marriage should have been absolved by the trial Court by passing the decree of divorce. To support this contention, learned counsel for the appellant has relied upon authority Parveen Mehta vs. Inderjit Mehta 2002(3) RCR (Civil) page 529. I have carefully considered the said submission but do not find any force. The authority Parveen Mehta's case (supra) does not advance the case of the appellant in any manner. In that case the parties have been living separately for the period of eleven years, wife stayed with husband for only six months and it was only on account of lapse on the part of the wife. They cannot live together. In the present case, the evidence on the FAO No.199 M of 2008 7 file narrates otherwise. The fault lies with the appellant. He in order to deprive the respondent and the minor to go abroad withhold the passport and other papers, which fact is clear from the compromise placed on the file. Moreover, there is no provision under the Hindu Marriage Act to grant decree of divorce on the ground of it being a broken marriage. In authority Savitri Pandey vs. Prem Chander Pandey 2002 (1) RCR (Civil ) 719, the Hon'ble Apex Court has held that no party to the marriage can be allowed to take benefit of its own wrong. There is no provision to grant divorce on the ground that it is a broken marriage. In authority Sita Ram Chauhan @ S.R.Chauhan vs Smt.Ramesh Kumari @ Smt.Sunita 2007(3) Law Herald (P&H) (DB) 1851, the Division Bench of our own Punjab and Haryana High Court has held that party seeking divorce on the ground of desertion has to prove the animus deserendi. Mere separate residence, how so long would not be given a rise to an inference or a presumption that a spouse intends to permanently sever matrimonial ties. The other contention raised by learned counsel for the appellant that respondent has registered a false criminal case against the appellant and his family members that amounts to cruelty. However, that submission also does not cut ice before me. To avail the legal remedy does not amount to cruelty. Learned counsel for the appellant has further contended that respondent agreed in the compromise to get the decree of divorce. So, in these circumstances, there is intention to get divorce and on that account desertion stands proved. FAO No.199 M of 2008 8 I have carefully considered the said submission but do not find any force in that submission. From the perusal of the compromise Ex.PX, it is revealed that respondent was under pressure. All her papers were detained by the appellant including that of the medical. All the papers that is passport, visa etc of the respondent and her daughter were detained by the appellant. So, in these circumstances, the lapse is on the part of the appellant and not on the part of the respondent. The other terms and conditions have not been complied with. During the reconciliation proceedings also, counsel for the respondent has offered to join the company of appellant unconditionally. So, in these circumstances, the appellant has failed to prove any ground of divorce i.e. desertion and cruelty. Consequently, the appeal is without any merit and the same stands dismissed with costs. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE March 3rd, 2010 sv