IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (HMA) No. 266 of 2004 Reserved on : 8th September, 2008 Date of Decision:10th November, 2008 Raj Kumar Rana Appellant Versus Smt. Rita Rathore Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Bhupender Gupta, Sr. Advocate, with Ms. Charu Gupta, Advocate. For the respondent: Mr.M.L.Chauhan, Advocate. Sanjay Karol, J. The appellant-husband has filed the present appeal assailing the judgment and decree dated 2.1.2003 passed by the District Judge, Solan, H.P. in HM Petition No. 14-S/3 of 2000 titled as Raj Kumar Rana vs. Smt. Rita Rathore, dismissing the husband’s petition filed under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion. The appellant is the petitioner- husband and the wife is the respondent and are referred to as such hereinafter. Marriage between the parties was solemnized on 10.5.1997 at Village Kawala, P.O. Dubloo, Tehsil and District Shimla, as per the Hindu rites and customs. From the wedlock a child was born in June, 1998 at Whether the reporters of Local Papers are allowed to see the Judgment? 2 Rampur, H.P. It is the husband’s case that after the solemnization of the marriage in the year 1997, through his efforts he got his wife transferred to the place of his posting at Solan, but, however, instead of joining there she managed her posting at Rampur and continued to stay at her parental house. Even subsequent efforts of getting her to work and stay at Solan were scuttled by her. She, however, used to visit Solan, where they lastly resided as husband and wife till February, 1998. All his efforts to bring her back to the place of his posting and permanently reside with him were scuttled by her. Finally, having realized that the marriage was not workable, he suggested divorce by mutual consent for which she demanded Rs. 10 lacs. That she had deserted him which was evident from the fact that she had taken her entire jewellery and failed to perform her matrimonial obligations, and as such a decree of divorce was sought. The wife hotly contested the petition in effect pleading constructive desertion. According to her, her husband had failed to fulfill his matrimonial and parental obligations. He had compelled her to visit her parental house for the delivery of the child on the pretext that his younger brother was to get married and the family was to be busy in the said affairs. Even though, the relations between the parties were not strained yet he did not come to even attend the ceremonies after the birth of the child, nor did he provide for any maintenance. Inspite of the fact that the child was born in June, 1998 he came to Rampur only in July/August, 1998 and left both of them there. She had no intention to leave his company nor did she ever take her jewellery as alleged in the petition. The petition was mala fide. Her husband had been pressurizing her to take divorce which was not acceptable to her. He had been avoiding her company on one pretext or the 3 other and in fact never made any efforts to bring her back to Solan. He had been compelling her to leave the job, which was not acceptable to her. Efforts made through her friends and relatives to make him understand his obligations and duties towards her and their child were of no consequence. Based on the pleadings of the parties, the Court below framed the following issues:- 1. Whether the respondent-wife has deserted the husband- petitioner for a period more than 2 years consistently on the grounds as alleged? OPP. 2. Relief. Even though it was not pleaded, but, however, during trial the husband set up a case that his wife had written certain letters using derogatory and defamatory language, which further caused mental cruelty. The Court below, after appreciating the material on record dismissed the petition holding that the petitioner himself had been negligent in maintaining his wife and from his conduct it could safely be inferred that it was he who himself had compelled his wife to live separately. Mr. Bhupender Gupta, learned Senior counsel for the appellant has made the following submissions:- (1). Efforts made by the petitioner to get his wife transferred to his place of posting were indicative of the husband’s desire of both the parties living together and maintaining a healthy matrimonial relationship. However, wife’s conduct in getting the said transfer orders cancelled/ changed with the intention of living at a distant place is only indicative of the wife’s intention of not joining the matrimonial home and deserting her husband without sufficient cause; (2) imposing a condition of payment of 4 Rs.10 lacs for agreeing to give divorce by mutual consent is also indicative of the same; and (3) the contents of the letters Ext.PW-4/A and Ext.PW-1/C being extremely derogatory and defamatory having caused pain, agony and mental cruelty to the husband, a decree of divorce on both counts ought to have been granted by the Court below. Per contra, Mr. Sharma, learned counsel for the respondent- wife has supported the judgment for the reasons set out therein. He emphasized that even today the respondent wife was ready and willing to live with the petitioner. While admitting the contents of the letters, it was argued that the attending circumstances under which the same were written have to be considered while determining as to whether its contents are defamatory and have caused any cruelty or not. I have heard the learned counsel for the parties and perused the record. The Constitution Bench of the Apex Court in Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40 has held:- In the essence desertion means the intentional permanent forsaking and abandonment 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. 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 muse be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so 5 far as the deserted spouse is concerned: (1) the absence of consent, and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of 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. It is settled Law that the burden of proving desertion – the ‘factum’ as well as the ‘animus deserendi’ – is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. The question whether a deserting spouse has a reasonable cause for not trying to bring the desertion to an end and the corresponding question whether desertion without cause has existed for the necessary period must always be a question of fact. The question for consideration 6 in such cases is “Is the conduct of the deserted spouse such as to excuse the deserting spouse from making any attempt to put an end to the desertion or from attempting any reconciliation?”. “Heavy burden lies upon a petitioner who seeks relief on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent; and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. In short the proof required in a matrimonial case is to be equated to that in a criminal case.” “The inclusive definition of desertion in the Explanation to S.10(1) is only intended to incorporate therein the doctrine of “constructive desertion” known to English law and the language is designedly made wide to cover the peculiar circumstances of our society. The ingredients of desertion as well as constructive desertion are the same, namely, animus and factum, though in one case there is actual abandonment and in the other there is expulsive conduct. Under certain circumstances the deserted spouse may even stay under the same roof or even in the same bed-room. In our society, it is well known that in many a home the husband would be guilty of expulsive conduct towards his wife by completely neglecting her to the extent of denying her all marital rights, but still the wife, because of social and economic conditions, may continue to live under the same roof. The words ‘wilful neglect’ in the Explanation were designed to cover constructive desertion in the English law. If so, it follows that wilful conduct must satisfy the ingredients of desertion as indicated above.” 7 “To sum up the legal position the legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no bonafide attempt on the respondent’s part to return to the matrimonial home and that the petitioner did not prevent the other spouse by his or her action by words or conduct from cohabitation. The expression ‘wilful neglect’ included in the section does not introduce a new concept in Indian law unknown to the English law, but is only an affirmation of the doctrine of constructive desertion. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. No inspiration could be derived from S. 9 of the Act in order to construe the scope of the expression ‘without reasonable cause’ and whether there is a reasonable cause or not is a question of fact to be decided on the facts of each case.” The Court took into account its earlier decision delivered in Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176, to the effect that in proceedings of divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt and the Court insisted upon the corroborative evidence unless its absence is accounted for to the satisfaction of the Court. In (1975) 2 SCC 326, the Apex Court while dealing with the provisions of Hindu Marriage Act, 1955 has held as under:- “The belief regarding the existence of a fact must be founded on a balance of probabilities. As a prudent man, so the Court 8 applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note. But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved.” In Chetan Dass vs. Kamla Devi, (2001) 4 SCC 250, again dealing with the provisions of Hindu Marriage Act, 1955 has held that “Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, live 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. The 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 straitjacket formula for grant of relief of divorce. This aspect has to be 9 considered in the background of the other facts and circumstances of the case”. In Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, the Court reiterated the principles laid down in Lachman Utamchand Kirpalani (supra), and has further held that desertion cannot be equated with separate living by the parties to the marriage and the constructive desertion can be inferred from the attending circumstances as desertion is a matter of inference to be drawn from the facts and circumstances of each case and the approach of the Court to preserve the marriage and reluctant to dissolve the marriage merely on the asking of one of the parties. The marriage cannot be dissolved merely on the averments made by one of the parties that as the marriage has broken down no useful purpose would be served to keep it alive. The Court further held as under:- “Cruelty has not been defined under Section 13(1)(ia) of the Hindu Marriage Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, lib or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of the other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable 10 apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.” Keeping in view the aforesaid principles of law the evidence led by the parties needs to be examined to ascertain as to whether the wife had disserted and caused mental cruelty to her husband. Petitioner husband examined himself (PW-2) and deposed that in December, 1997 he was transferred to Solan, where he purchased a house in Village Damrog and to ensure that after the marriage his wife lived with him got her transferred. However, for the reasons best known to her she got herself adjusted at Rampur and did not join him except for that she would occasionally visit him at Solan, where the parties lastly resided as husband and wife till February, 1998. Even though in November, 1998 he got her transferred from Rampur to Solan, but, she got herself adjusted at IGMC Hospital, Shimla, which was only reflective of her intention of not joining him at Solan and lead a normal married life. Even at Solan, she used to loiter around in the Bazar till late in the night and her behaviour towards him was neither good nor proper. All expenses incurred at the time of the delivery of the child were borne by him. He made efforts of getting his wife to live with him. He even took his friend Rakesh to Shimla to persuade her to come to Solan, but, however, she misbehaved with both of them and demanded Rs. 10 lacs for giving divorce. She wrote letters using 11 defamatory and derogatory words which caused him cruelty and, therefore, wanted divorce. His cross-examination, however, is reflective of a totally different picture. He admitted that he visited Rampur only once to see his child and after July, 1998 he made no efforts of either meeting the child or his wife. Even his mother never visited Rampur to see the child. He admitted that even during her pregnancy his wife used to stay with her parents and it was only six months after the birth of the child that his wife joined her services at Rampur. He did not give any notice requesting her to join him and fulfill her marital obligations. He did not request his relatives or other respectable persons to intervene and press upon his wife to join him at Solan. He had discussed the issue of divorce with his in-laws. His deposition that his wife used to loiter around with her friend in the bazaar is beyond pleadings. With regard to the alleged defamatory letter, he clarified that he never responded to the same in writing. The deposition of PW-3 is only to the extent that he alongwith PW-2 had visited the respondent at her place of work at Shimla when the petitioner had requested her to join the matrimonial house but she demanded Rs.10 lacs for giving divorce to him. In cross-examination he admitted that petitioner is his close friend. As per the version of PW-4 when the respondent, who used to treat him as her brother, visited his shop he tried to reconcile the matter but she flatly refused to join the petitioner for the reason that she had no liking for him as his face and living standard were not to her liking. He proved the letter Ext.PW-4/A written by the respondent containing the alleged defamatory and derogatory words. Importantly, in his cross- 12 examination he admitted that the respondent never discussed the issue of divorce. Nek Ram (PW-5) has deposed only to the effect that the petitioner was living under depression for the reason that his wife was not living with him and she had a cruel behaviour towards her husband. In rebuttal, the respondent-wife as RW-1 categorically deposed that after May/June, 1998 her husband visited Rampur only once to meet the child. His parents never came to see the child. No one came to attend the Namkaran ceremony of the child. After her delivery she remained ill yet her husband did not bother to come and see her. Her husband never bothered to take care of the child and provide any assistance, therefore, she had to leave the child with her parents. She admitted that she was transferred twice to Solan, but, however she could not be relieved as the relieving hand could not join and, consequently, her transfer orders had to be cancelled. The discord essentially was for the reason that her husband did not trust her and doubted her character. Being a nurse she had to perform duties in an emergency and her husband even objected to her talking to third persons. His behaviour had always been negative. Petitioner would always insist on divorce and in fact had broached the subject with her parents and her friend Reeta. He was hell-bent on taking divorce and had wanted her to sign blank papers and even offered a sum of Rs.1.5 lacs for the same. While admitting that she had written the letter, she clarified that the same was written in anger. She even requested Jagat Ram (PW-4) to intervene and reconcile the matter yet she had been subjected to mental cruelty due to his cruel behaviour. She had always been and was still ready and willing to join her husband. 13 In cross-examination she clarified that during her leave she had been visiting her husband and lastly visited him in August, 1997 when she stayed at the matrimonial house for one week. She also visited Solan in October/ November, 1998 and met her husband in the Hospital and persuaded him to improve his behaviour and attitude so that the difference could be reconciled. She denied that the transfer orders were got cancelled by her. She admitted having written letter Ext.PW-1/C to the petitioner. Hira Nand (RW-2) father of the respondent deposed that he made all efforts to patch up the matter, but, however, the petitioner insisted for divorce. He corroborated the respondent’s version that except for a single visit the petitioner never visited Rampur to see the child. Ms. Rita Chouhan (RW-3), essentially corroborated the version of RW-2. She deposed that she made efforts to reconcile the matter and had even accompanied the respondent, but, however, petitioner was adamant that he wanted a divorce and was not willing to keep his wife. This is the entire evidence on record. It is an admitted case of the parties that after February/ August, 1998 the parties had been living separately and not performing their matrimonial obligations. It is evident that the petitioner never visited Rampur for getting the matter reconciled. He never sought intervention of any person to bring his wife back to the matrimonial house. On the contrary it has come in evidence that it was the respondent who visited Solan some time in October/ November, 1998 and met her husband with an endeavour to patch up the matter. She alone had always been ready and willing to have the differences reconciled. He never even bothered to inquire about the welfare of his wife and the child. Even emotional support 14 was not lent what to talk of financial assistance. The petitioner has admitted that except for defraying the expenses incurred at the time of delivery of child, thereafter, he never took any care of the child and neither paid nor provided for maintenance of the child or his wife. The respondent categorically deposed that the petitioner doubted her character and objected to her free movement with her friends. In the letter Ext.PW-1/C, the wife has expressed her anguish for the little concern which her husband had shown towards her and the child. She addressed her husband as “Mr.”. No doubt, in the said letter she laid a condition of payment of Rs.10 lacs, for giving divorce, but however, the same cannot be read out of context. In the opening paragraph she narrated about her visit to Solan, when her husband had asked her to sign some blank papers ostensibly for taking divorce, which