FAO No. 75-M of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 75-M of 2009 Date of Decision: 26.11.2009 Sandeep Kumar ....Appellant Vs. Sangeeta ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.R.A.Sheoran, Advocates, for the appellant. Mr.Vikram Sheoran, Advocate, for the respondent. --- Vinod K.Sharma,J. (Oral) This appeal by the husband is directed against the judgment and decree dated 12.12.2008 passed by the learned Additional District Judge, Bhiwani vide which petition filed by the appellant under section 13 of the Hindu Marriage Act (for short the Act) was ordered to be dismissed. The parties to the litigation were married on 27.5.2003 according to Hindu rites and ceremonies at village Loharu, District FAO No. 75-M of 2009 2 Bhiwani. The case set up by the appellant was that immediately after one day of the marriage the respondent left the matrimonial home and went to her parental home. This was as per the custom, and the appellant was not allowed to meet her, therefore, marriage could not be consummated at that time. The marriage was consummated next day on return, but no child was born out of the wedlock. It is the case of the appellant that the respondent did not want to live in the joint family, and wanted to live separately from the family members. On his refusal to accept this request of the respondent, she started quarrelling with the appellant and abused him in front of others, with a threat to leave the matrimonial home for ever. It is also the case of the appellant that while staying with the respondent in her parental home attempt was made to hypnotize him to achieve this ulterior motive. It is further the case of the appellant, that the respondent against his wishes was not interested in having any child. She used to consume contraceptive pills against his wishes. This act of the respondent caused mental cruelty to the appellant, as he was interested to have a child. It is pleaded case of the appellant that in the month of October 2004 the respondent left the matrimonial home without any reasonable cause, so as to bring to an end the matrimonial alliance between the parties. On notice petition was contested, wherein it was submitted that the appellant had earlier also filed a divorce petition in the Court of learned District Judge, Faridabad in the year 2005 but he subsequently withdrew the petition with liberty to file fresh one in courts at Bhiwani. The petition was FAO No. 75-M of 2009 3 allowed to be withdrawn subject to payment of maintenance pendente lite and litigation expenses allowed by the learned court under section 24 of the Act. It is the case of the respondent that in spite of the order, the appellant has not paid the amount, therefore, the petition was liable to be dismissed. Other preliminary objections are also taken. A plea was also raised that the respondent was harassed by the appellant and his family members for want of dowry. The respondent claimed to have been turned out of the house by the appellant in May, 2004 and that she had not deserted him. On the pleadings of the parties the learned matrimonial court famed the following issues:- 1. Whether the petitioner is entitled for decree of divorce on the ground of cruelty? OPP 2. Whether the petitioner is entitled for decree of divorce on the ground of desertion? OPP 3. Whether the petition is not maintainable in the present form? OPR 4. Whether the petitioner is estopped by his act and conduct to file the petition? OPR 5. Whether the petitioner has no locus standi to file the petition? OPR 6. Whether the petitioner has not come to the court with FAO No. 75-M of 2009 4 clean hands and has concealed true facts from the court? OPR 7. Relief. On appreciation of evidence learned matrimonial court came to the conclusion that the appellant had failed to prove the plea of cruelty. Learned matrimonial court held that allegations of cruelty were general in nature and not supported by any document. The learned matrimonial court held, that nothing was proved to show, that any attempt made by the appellant to rehabilitate the respondent in matrimonial home. The learned matrimonial court did not believe the assertion that the respondent had deserted the appellant, for the reason that he had not moved any application under section 9 of the Hindu Marriage Act for restitution of conjugal rights. The learned matrimonial court held that the appellant had failed to prove cruelty. The learned matrimonial court also held that the appellant also failed to prove desertion. The learned matrimonial court also found that filing of criminal complaint by the respondent did not constitute cruelty as she was trying to get her grievances redressed. Notice of the appeal was issued and the case was referred to Mediator for reconciliation. The respondent/wife has accepted a sum of Rs.3 lacs (Rupees three lacs) towards permanent alimony and litigation expenses and settled all her claims. Learned counsel for the appellant has challenged the impugned judgment and decree passed by the learned matrimonial court, primarily on the ground, that the learned court below ignored the pleadings and FAO No. 75-M of 2009 5 evidence, showing that the respondent/wife was not willing to conceive and was taking contraceptive pills, against the wishes of the appellant/husband. The act of wife, in not willing to conceive, against the wishes of the husband is an act, which certainly causes mental cruelty as it is proved that the appellant was interested in having a child. The matter did not end here. The threats given by her to involve the appellant in criminal cases was acted upon. A criminal complaint was filed, which she has agreed to withdraw on receipt of money meaning thereby that the allegations were levelled with a motive to harass the appellant and his family members and was not to redress her grievances. There is force in the contention raised by the learned counsel for the appellant. Once it was proved by way of positive evidence, that the wife was not willing to conceive, and was taking contraceptive pills against the wishes of the husband, the allegations of mental cruelty stood proved. Otherwise also, in this case it stands proved that the respondent had left the matrimonial home in May, 2004 with an intention to permanently bring an end the matrimonial relation between the parties. The allegations made by her that she was turned out of the house on account of demand of dowry were not proved. This leaves no manner of doubt that the respondent had deserted the appellant with an intention to bring matrimonial relations to an end permanently. The evidence led by the appellant further shows that the wife had left the FAO No. 75-M of 2009 6 matrimonial home, with an intention to bring matrimonial relations, to an end without any reasonable cause. Merely because the appellant did not file a petition under section 9 of the Act for restitution of conjugal rights could not be a ground to reject the positive evidence showing that the respondent had deserted the appellant without any reasonable cause, with an intention to bring matrimonial alliance to an end. The plea of desertion, therefore, stood proved. For the reasons stated, the findings of the learned matrimonial court on issues No.1 and 2 are reversed and decided in favour of the appellant/husband. Issues No.3, 4, 5 and 6 are decided against the wife, as the finding thereon are not pressed. Consequently, this appeal is allowed. The judgment and decree passed by the learned matrimonial court is set aside, and the marriage between the parties is ordered to be dissolved by a decree of divorce by accepting the petition filed by the appellant under section 13 of the Act. No costs. 26.11.2009 (Vinod K.Sharma) rp Judge