Venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades

Venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades - HC

Delhi High Court

Smt.Kamlesh Kumari vs Shri Mehtab Singh on 16 January, 2012

IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 17.03.2011
Judgment delivered on: 16.01.2012
+ FAO 291/1996
Smt.Kamlesh Kumari ......Appellant. Through: Mr.Sanjay Kumar Pathak, Advocate.
Vs.
Shri Mehtab Singh ......Respondent Through: Mrs.Mala Goel with Mr.Yashpal Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this appeal filed under Section 28 of the Hindu Marriage Act, the appellant-wife seeks to challenge the impugned judgment and decree dated 18.07.1996 passed by the learned trial court whereby the divorce petition filed by the husband, respondent herein under Section 13 (1) (ia) and FAO 291/96 Page 1 of 34
(ib) of the Hindu Marriage Act was allowed by the court and the marriage between the parties was dissolved.
2. A conspectus of facts based on which the respondent filed the divorce petition are that the respondent got married to the appellant according to Hindu rites and ceremonies on 30.06.1982 at Delhi. It is stated that after the marriage on 01.07.1982, the parties went to the house of appellant‟s parents at Yusuf Sarai and had lunch there and thereafter the appellant‟s parents did not send the appellant back along with the respondent and the appellant also declined to accompany him without any reason or justification. It is further stated that on 11.07.1982, the respondent again went to the house of the appellant‟s parents to bring her back and requested her parents to send the appellant along with him but they refused to do so without disclosing any reason. It is further averred that after 15 days i.e. in the last week of July, 1982 the respondent again went to the house of appellant‟s parents to bring her back, however, after reaching there it was found that the appellant FAO 291/96 Page 2 of 34
was not present at her parents‟ house at that time and on persistent enquiries by the respondent her parents told him that the appellant had gone to the house of her sister‟s husband(jija) Shri Umed Singh at Village Nilothi, Nangloi, Delhi. Thereafter about a month of the marriage of the parties i.e. on or about 30.7.82/1.8.82/2.8.82 father of the respondent called said Shri Umed Singh to his village Sultanpur Majra where the respondent, his elder brother and two uncles were also present where Shri Umed Singh blamed father of the appellant for telling a lie that the appellant was with him at the time when the respondent visited her parents‟ house to bring her back to matrimonial home. In the evening of 21.08.82, one Shri Kalam Singh and Shri Sri Lal went to the house of Shri Umed Singh at Village Nilothi and found that the appellant was very much there and thus the fact of the appellant living with Shri Umed Singh without the consent or permission of the respondent was confirmed by them. The next day the respondent and his mother also went to the house of Shri Umed Singh at 6 p.m and found the appellant FAO 291/96 Page 3 of 34
present there and when the respondent and his mother tried to reason out from the appellant as to why she was living with Shri Umed Singh, then she replied that it was her sweet will to go anywhere. This fact was also enquired from Shri Umed Singh in the presence of the appellant and he said that the appellant was his sister-in-law and he had every right over her and that she had come to him with her own will. Despite the request of the respondent and his mother, the appellant did not accompany them to return to her matrimonial home and remained there. It is also stated that in the year 1983-84, the appellant filed a report with the Social Welfare Board, which called Shri Umed Singh, Shri Mohinder Singh and the appellant‟s maternal uncle Shri Gian Singh and her brother from the appellant‟s side and from the respondent‟s side the respondent and his parents were called and on enquiry made by the Welfare Board, it was found that the appellant was living with her brother-in-law (jija) Shri Umed Singh and there was no fault of the respondent and as such reconciliation efforts made by the Board could not take place between the FAO 291/96 Page 4 of 34
parties. It is also averred that the appellant taunted the respondent as the educational qualification of the appellant was graduate whereas the respondent is a matriculate, which caused cruelty to him. It is also stated that the appellant left the matrimonial home with the intention not to return again, whereas the respondent had made efforts for reconciliation. The parties are stated to be living separately since 1.7.82 and the appellant has deserted the respondent from the first day of marriage without any reasonable cause. The appellant has even not made any efforts to come back to the matrimonial home as she has been staying with her brother-in-law (jija).
3. The appellant in her written statement however, admitted the factum of her marriage with the respondent on 30.6.82 but denied the allegation of cruelty and desertion. The appellant has leveled allegation that the respondent and his parents used to taunt her on account of bringing insufficient dowry and that the main demand of the respondent was a two-wheeler scooter which was not met by the appellant‟s parents. It is also alleged that the brother of FAO 291/96 Page 5 of 34 the appellant who had come to take the appellant on 5.7.82 was humiliated, taunted and was coerced to part with the two-wheeler scooter on which he had come to take her back and the respondent and his parents warned the brother of the appellant that in case the scooter was not arranged at the earliest the appellant may not be sent to her matrimonial home and the respondent would also not come to take her back. It is also alleged that thereafter i.e 5.7.82 the respondent never came to take her back. It is denied that the appellant was ever living with her brother-in-law (jija) Shri Umed Singh or that the respondent and his mother ever went to the house of said Shri Umed Singh on 22.8.82 or that the appellant was present in the house of Shri Umed Singh on that day. It is stated that the appellant was forced to make report to Anti Dowry Cell of Delhi Police which report of her was referred by the Anti Dowry Cell to the Social Welfare Board. The factum of summoning of persons from both sides is admitted by the appellant, however, it is denied that the Social Welfare Board held in its enquiry that the appellant FAO 291/96 Page 6 of 34
was living with her brother-in-law (jija) Shri Umed Singh or that there was no fault of the respondent. It is asserted that the respondent flatly refused before the said Board to bring the appellant back to the matrimonial home. It is alleged that it was the appellant who had been deprived by the respondent and had caused mental agony and torture to her by not taking her to the matrimonial home for demand of two wheeler scooter and other articles. It is also stated that on an application made by the appellant to the Anti Dowry Cell the case was proceeded against the respondent and the Anti Dowry Cell came to the conclusion that it was a fit case for investigation and accordingly a case was registered against the respondent for demanding dowry and the respondent and his family members were arrested by the police, but subsequently were enlarged on bail. It is also alleged that it is the respondent who had deserted the appellant since 5.7.82 and had not bothered to take her back to the matrimonial home for his greed of dowry and did not allow her to enter the matrimonial home in spite of repeated panchayat meetings FAO 291/96 Page 7 of 34
between the parties, their relatives and respectable persons of the village. It is also stated that the appellant has been forced to live with her parents since 5.7.82 due to greed/demand of dowry by the respondent.
4. Based on the above pleadings of the parties, the learned trial court framed the following issues:-
"(i) Whether after solemnization of marriage, the respondent treated the petitioner with cruelty? OPP (ii) Whether the respondent has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition.
(iii) Whether the petition is not in accordance with rules? If so, its effect?
(iv) Relief."
5. In support of his case, the respondent examined himself as PW-1 besides examining Shri Maya Ram @ Mahe Ram as PW-2 and Shri Ram Swarup as PW-3. The appellant, on the other hand, examined herself as RW-1, besides examining Shri J.B.Gupta as RW-2, Shri Gian Singh (appellant‟s brother) as RW-3 and Shri Mahinder Singh as RW-4.
FAO 291/96 Page 8 of 34
6. On issue Nos.1 and 2, the learned trial court returned a finding against the appellant and in favour of the respondent husband and thus dissolved the marriage of the parties by the decree of divorce dated 18.7.1996, feeling aggrieved by which the appellant has preferred the present appeal.
7. Assailing the impugned judgment and decree, Mr.Sanjay Kumar Pathak, learned counsel for the appellant submitted that sufficient efforts were made by the appellant to join back the company of the respondent at the matrimonial home and it was the respondent who remained reluctant to allow the appellant to join back his company and, therefore, the respondent cannot be allowed to take advantage of his own wrongs. Counsel further submitted that the learned trial court committed a grave illegality in drawing adverse inference of her statement during her cross-examination where she stated that the respondent-petitioner never came to take her from her parents house after 02.07.1982 to mean as if she had stayed at her parents‟ house after 02.07.1982 in contradiction to her claim of staying at the matrimonial home FAO 291/96 Page 9 of 34
till 05.07.1982. The contention of counsel for the appellant was that this date has been mentioned by the appellant in her cross-examination to explain that the respondent in fact had never visited her parents‟ house to bring her back after 02.07.1982. Counsel also submitted that the said deposition of the appellant could not have been read by the learned trial court in isolation as the same was to be read in conjunction with her earlier statement wherein she took a stand that she had taken a lunch at her parental house on 02.07.1982 and she also denied the suggestion in her cross-examination about the alleged visit of the respondent to take her back on 11.07.82 or on that date the parents of the appellant had refused to send her along with the respondent. Counsel for the appellant further submitted that the respondent had duly admitted in his evidence that the marriage between the parties was consummated on the night between 02.07.82 and 03.07.82, but at the same time took a contrary stand by alleging that the appellant never lived with him from 01.07.82. Counsel also submitted that the respondent took a FAO 291/96 Page 10 of 34
contrary stand of his alleged visit on 11.07.82 to the parents house of the appellant, as in the proceedings under Section 125 Cr.P.C. the respondent alleged such visit on 08.07.82 instead of 11.07.82. Counsel further submitted that the respondent had showed his reluctance to bring the appellant back to the matrimonial home before the Social Welfare Board. Counsel further submitted that the respondent had even admitted the visit of Mr.Bharat Singh, Counsellor at that time for the purpose of reconciliation and also the visit of the workers of the Social Welfare Board for the same purpose. Counsel also submitted that the appellant was not cross- examined by the respondent to contradict the deposition in her examination-in-chief wherein she stated that on 02.07.82 the marriage was duly consummated between the parties. Counsel also submitted that even no suggestion was given by the respondent to suggest that the appellant did not stay at her matrimonial home till 05.07.82 or no Panchayat took place at the instance of the appellant or the appellant and her parents did not make any efforts after 05.07.82 for her to go FAO 291/96 Page 11 of 34
back to the matrimonial home. Counsel further argued that the appellant had duly proved on record that she was never found at the residence of her brother-in-law (jija) Mr.Umed Singh at Nilothi. Counsel also argued that the decree of divorce cannot be granted on the ground of irretrievable breakdown of marriage which is not a ground under Section 13 of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the following judgments:-
(i) Subhash Chander Sharma Vs. Anjali Sharma 2010(174) DLT 564 (ii) Suram Pal Singh Vs. Savita 2007(140) DLT 198 (iii) Krishan Kumar Vs. Shankari 2007(142) DLT 177
9. Opposing the present appeal, Ms.Mala Goel, learned counsel appearing for the respondent submitted that no fault can be found with the findings given by the learned trial court in granting the decree of divorce under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act. In support of her arguments, counsel submitted that the appellant had deserted the respondent on 01.07.82 with the intention to break the marriage permanently. Counsel further submitted that the FAO 291/96 Page 12 of 34 respondent had sufficiently proved on record that the appellant was staying with her brother-in-law Shri Umed Singh at his residence at Nilothi. Counsel also argued that the appellant miserably failed to prove on record that any demand of scooter was made by the respondent or his parents. Counsel further submitted that in criminal proceedings, the appellant also alleged that the demand of Rs.30,000/- was made by the respondent along with the scooter which was not the defence set up by her in the proceedings before the matrimonial court and such contradictory stands of the appellant would clearly establish her false claim of setting up defence of demand of scooter made by the respondent or his parents. Counsel further submitted that no attempts were made by the appellant to join back the company of the respondent at the matrimonial home and instead she had approached the Anti-Dowry Cell so as to falsely implicate the respondent and his family members to face the criminal proceedings. In support of her arguments, counsel for the FAO 291/96 Page 13 of 34
respondent placed reliance on the judgment of this Court reported in Vimal Kanta Vs. J.M.Kohli176 (2011) DLT 527.
10. I have heard learned counsel for the parties at considerable length and given my thoughtful consideration to the arguments advanced by them.
11. The marriage which was solemnized between the parties on 30.06.82 turned ruinous within a short period of 24 hours as per the respondent and 5 days as per the appellant. As per the respondent-petitioner, the appellant did not return back with the respondent on 01.07.82 when she was taken by the respondent to her parental house. As per the respondent, no reasons were advanced either by the appellant or her parents for not sending back the appellant with the respondent to the matrimonial home. In para 4 (B) of the petition, the respondent averred as under.
"4(B). That on 1st of July, 1982, the petitioner and the respondent went to the respondent's parents house at Yusuf Sarai and had lunch there. The parents of the respondent did not send the respondent alongwith the petitioner. The respondent too declined to come alongwith her husband- petitioner without any reason and justification. Therefore, FAO 291/96 Page 14 of 34 the petitioner-husband returned back to his residence having been disappointed by the respondent's conduct." As per the respondent despite making efforts to bring back the appellant, the appellant did not return and therefore, the respondent filed a petition for divorce under section 13(1)(ia) and (ib), i.e cruelty and desertion which vide order dated 18.7.1996 was decreed in his favour.
12. To claim a decree on the ground of desertion as envisaged in section 13(1)(ib) of the Hindu Marriage Act the ingredients that need to be proved , so far as the deserting spouse is concerned it is (i) factum of separation, (ii) the intention to bring cohabitation permanently to an end i.e animus deserdendi, and so far deserted spouse is concerned, (i) absence of consent and (ii) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. It is also a settled legal position that desertion commences when the factum of desertion and the animus deserendi co-exist. However, it is not necessary that these two conditions should commence at FAO 291/96 Page 15 of 34
the same time as the de facto separation may commence earlier in point of time without the necessary animus and the necessary animus may arise later in point of time and then coincide with the factum of separation. Desertion has no straitjacket formula and in each case an inference has to be drawn from the facts of the case. It is the intentional and permanent forsaking of one spouse by the other without others consent, and without reasonable cause. This was held by the Apex Court in the case of Bipin Chander Vs. Prabhawati AIR 1957 SC 176. Along with explaining the essential conditions which constitute desertion as a ground for divorce, the Apex Court in the case of Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 while reiterating Bipin Chander(supra) held as under:
" It would be seen that we have here the interaction of two distinct matters which have to co-exist in order that desertion might come to an end. In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to have regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse FAO 291/96 Page 16 of 34 should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where, however, on the facts it is clear that the conduct of the deserted spouse had had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse. It appears to us that the principle that the conduct of the deserted spouse which is proved not to have caused the deserting spouse to continue the desertion does not put an end to the desertion appears to be self-evident and deducible from the legal concepts underlying the law as to desertion." Thus it is clear from above, that the deserting spouse should have deserted the other spouse without his consent and without being there any just and reasonable cause. In a case of desertion by the deserting spouse there should be reasons sufficient enough for such spouse not to reconcile with the deserted spouse. But where the deserting spouse withdraws not only physically from the marriage but also from the society of the deserted spouse without any reasonable cause, the ground of desertion shall be available to the deserted spouse.
13. Now applying the aforesaid principles of law to the facts of the case at hand, the appellant ceased to live with the appellant from 1.7.82 and as per the appellant from 5.7.82. However it is immaterial as to the date of separation as it is FAO 291/96 Page 17 of 34 not in dispute that the parties did not live together thereafter till the presentation of the petition and thus the essential condition that the parties must be living for two years separately before the presentation of the petition stands fulfilled. Thus the first ingredient of the factum of separation stands fulfilled.
14. Coming to the next ingredient which is the animus desrendi, i.e the intention of the appellant to bring the cohabitation permanently to an end. As per the respondent petitioner the appellant did not return back from her parental house on 1.7.82 and the parents of the appellant also refused to send her back without any justifiable cause. As per the respondent, he again on 11.07.82 went to the parents house of the appellant to take her back but again the parents of the appellant refused to send her back with the respondent. After a gap of 15 days i.e. in the last week of July, 1982 another attempt was made by the respondent, but this time the appellant was found not present at her parents house and he was told by the parents of the appellant that she had gone to FAO 291/96 Page 18 of 34
her brother-in-law Mr.Umed Singh at village Nilothi. After having learnt this fact, the father of the respondent had called Mr.Umed Singh on or about 30.07.82 when in the presence of Shri Daryao Singh, Shri Mohinder Singh, Shri Hanumant Singh and Shri Sri Lal, uncles of the respondent besides his family members, Shri Umed Singh blamed his father-in-law and informed them that the appellant was not staying with him and in fact she was with her parents. As per the respondent in the first week of August, 1982, the father of the respondent again informed him that the appellant was living with Mr.Umed Singh and acting on this information, Shri Kalam Singh and Shri Sri Lal visited the residence of Shri Umed Singh at village Nilothi on 21.08.82. As per the respondent, on the next day, he along with his mother went to Shri Umed Singh‟s house, but the appellant refused to accompany the respondent. On being enquired by the respondent and his mother the reason as to why she was at the residence of Mr.Umed Singh, then she replied that it was her sweet will to go anywhere. As per the respondent, even FAO 291/96 Page 19 of 34
Mr.Umed Singh also told them that the appellant is his sister- in-law and he has every right over her and she has come there at her own will. No further efforts were made by the respondent to bring back the appellant and in the year 1983- 84 the appellant filed a report with the Social Welfare Board and despite the intervention of the Members of the said Board no reconciliation could take place between the parties. As per the respondent, the appellant had also taken all ornaments with her on 01.07.82 and in this manner, the appellant deserted him since 01.07.82 and the repeated refusal of the appellant not to return back and the continued stay with her brother-in-law caused mental cruelty to him.
15. The appellant, on the other hand, in her written statement took a defence that she was never taken back to her parents‟ house on 01.07.82. As per the appellant, she was brought to the parents house around 4 p.m on 02.07.82 and she returned back with the respondent after having taken dinner at the parental home at about 9 p.m. It is also the case of the appellant that on 02.07.82 the respondent was FAO 291/96 Page 20 of 34
accompanied by his cousin named Ajit Singh and they travelled back in the same taxi which brought them to the parents house and on their way back, the respondent and his cousin and the taxi driver consumed liquor for about one hour and then ultimately they reached back at the matrimonial house around 11:30 p.m It is also the case of the appellant that the marriage had already been consummated on 01.07.82 and the respondent cohabitated with the appellant upto 04.07.82. It is also the case set up by the appellant that on 05.07.82 in the morning her brother Gian Singh came to take her to the parents house in accordance with the customs. It is also the case of the appellant that her brother was humiliated, taunted and coerced to part with the two-wheeler scooter on which he had come with the appellant on 05.07.82. It is also the case of the appellant that she was not allowed to live peacefully by the parents of the respondent and also the respondent himself during the said short period between 30.06.82 till 04.07.82, during which time all of them kept taunting and cursing the appellant and her parents for not FAO 291/96 Page 21 of 34
bringing sufficient dowry in the marriage. It is also the case of the appellant that on 04.07.82 the respondent and her mother took in possession all the ornaments which were presented to her from both the sides. It is also the case of the appellant that the respondent never came to take her back after she had left the matrimonial home on 05.07.82 along with her brother. The appellant also denied that she was ever living with her brother-in-law Umed Singh at village Nilothi. The appellant also denied that her brother-in-law was ever called by the father of the respondent at Sultanpur Mazra or Shri Sri Lal and Shri Kalam Singh ever paid visit to the house of the appellant or at the house of Shri Umed Singh at Nilothi or the respondent and his mother found the appellant present at the house of Shri Umed Singh on 22.08.82. The appellant also submitted that the divorce petition filed by the respondent was in fact a counter blast to the complaint filed by the appellant with the Anti-Dowry Cell. The appellant also took a stand that a criminal case was registered against the respondent, father, mother, brother, sister and uncle of the FAO 291/96 Page 22 of 34
respondent and they were arrested by the police for committing offences under Section 498-A/406 IPC and later on were enlarged on bail. The appellant in the written statement also took a plea that her parents and Shri Umed Singh received messages through one Shri Bhagwan Singh who was a mediator for arranging the said marriage regarding the demand of a two-wheeler scooter made by the respondent and his parents. In the background of the said facts, the appellant in her written statement submitted that since 05.07.82 she was deserted by the respondent and no efforts were made by the respondent to take her back even despite repeated panchayat meetings and efforts made by the area MLA Shri Bharat Singh.
16. Based on the above pleas of the parties, the learned trial court held that no such conduct of the respondent was proved on record which could have compelled the appellant to leave the matrimonial home. The learned trial court further found that based on the evidence led by the respondent it was sufficiently proved on record that repeated efforts were made FAO 291/96 Page 23 of 34
by the respondent to visit the house of the appellant to bring her back. The learned trial court further found that even the parents of the respondent had gone to the house of Shri Umed Singh and even Shri Umed Singh was called to their Village to be told not to keep the appellant with him and send her back to the respondent being her legally wedded wife. The learned trial court also found that the respondent and his mother went to the house of Shri Umed Singh in Nilothi so as to persuade the appellant to return to the matrimonial home but with no result. The learned trial court further found that the appellant did not examine Smt.Prem and Shri Umed Singh who were very material witnesses to deny the version of the respondent about stay of the appellant at Umed Singh‟s place, therefore, adverse inference was drawn against the appellant. The learned trial court although found that the appellant failed to prove that she had been living apart from the respondent since 05.07.1982, but in any case the learned trial court also found that no effort was made by the appellant or her family members to send her back to the matrimonial home FAO 291/96 Page 24 of 34
even if the date of her returning back to the matrimonial home on 05.07.1982 is taken as correct. The learned trial court observed that as per ordinary course of human behaviour even if the respondent had not come to take her back after few days, then certainly the appellant could have gone back to the matrimonial home herself or her parents should have taken her to the matrimonial home with a view to rehabilitate her in the matrimonial home. With regard to the alleged stand of the appellant that some meetings were held with the members of the Panchayat, the learned trial court found that the allegations in this regard were absolutely vague and the same could not be proved by the appellant.
17. The learned trial court has examined the evidence adduced by both the parties in detail and has given an extensive judgment holding the respondent husband entitled to the decree of divorce. On examining the evidence adduced by both the parties, it is quite manifest that the appellant has miserably failed to disclose any reasons, much less the justifiable reasons for bringing the cohabitation with the FAO 291/96 Page 25 of 34
respondent permanently to end. The learned trial court has not believed the case of the appellant that any demand of two wheeler scooter was made by the respondent or his parents, or the appellant and her brother were told not to send the appellant till the said demand of two wheeler scooter is fulfilled by the appellant and her parents. The learned trial court also referred to the contradictory pleas raised by the appellant in her written statement and in her evidence as well as the stand taken by her in the criminal case wherein the demand of two wheeler scooter, monetary demand of Rs.30,000/- was also alleged to have been made by the father of the respondent at the time of „bidha‟ ceremony. The trial court further found that the allegation leveled by the appellant in the written statement with regard to the alleged demand of dowry are not very clear and specific as very vaguely the appellant in para 4 (b) of the written statement took a stand that during the period i.e. 30.6.82 to 4.7.82 she was not allowed to live peacefully by the respondent and his parents as they kept on taunting and cursing her and her FAO 291/96 Page 26 of 34
parents as they were not satisfied with the dowry given by her parents at the time of marriage. The trial court also found that it was not the case of the appellant either in the written statement or in the evidence that she was forcibly turned out of the matrimonial house thereafter. The trial court also observed that the appellant failed to prove the exact dates, months or years as to when the alleged panchayat‟s meetings took place so as to resolve the conflicts of the parties. The trial court also observed that the appellant has not filed any record to prove any copy of complaint/report of the proceedings of the Anti Dowry Cell or the Social Welfare Board where she had made her first complaint, so as to prove any efforts made by the appellant for reconciliation of the dispute with the respondent.
18. In my considered view, no fault can be found with the said findings of the learned trial court. The appellant has nowhere in her written statement or evidence asserted or claimed that she made efforts to go back to her matrimonial home or her parents tried to send her back. It is surprising FAO 291/96 Page 27 of 34
that the parents of a daughter who has just been married for a day would not want to send her back or at least make any effort to send her back. The appellant has also not been able to prove that the in laws demanded a two wheeler or Rs.30,000 or in any manner taunted her for bringing insufficient dowry. It is surprising that with the marriage on 30.6.82 and the appellant going to the parental house on 1.7.82, where was the opportunity for the in laws to taunt her for getting insufficient dowry or she could be so seriously troubled with their conduct that she decided not to come back forever. The appellant laid much stress on the fact that the respondent refused to take her back when there were reconciliation proceedings before the Social Welfare Board. It is not surprising that the respondent reacted in the irresponsive manner, as the reconciliation proceedings were started after the appellant filed a complaint with the anti- dowry cell accusing her in laws of a criminal offence, and thereafter getting them arrested for offence under section 498-A/406 IPC, which would have naturally antagonized the FAO 291/96 Page 28 of 34
respondent to take her back. It is also the case of the appellant that the marriage of the parties had already been consummated on 1.7.82, while this fact has been disputed by the respondent who has deposed that as per the customs prevailing in their family the marriage is not consummated on the first night. It is immaterial of whether the marriage was consummated or not or as to when it was consummated as the appellant has maintained the stand that she has lived with the respondent till 5.7.82. The relevant question to be examined in the facts of the case as to whether the appellant had left the matrimonial home with an intention to permanently bring cohabitation to an end and secondly whether there was a reasonable cause on the part of the appellant to leave the matrimonial home due to the conduct of the respondent. As already discussed above, the appellant has failed to justify her conduct for not returning back to the matrimonial home, despite repeated efforts made by the respondent. The learned trial court has also not believed the theory of demand of two wheeler scooter put forth by the appellant on account FAO 291/96 Page 29 of 34
of inconsistency raised by the appellant in her pleadings and in her evidence and also because of divergent stand taken by her in the criminal case filed by her under Sections 498A and 406 IPC. It is true that the deserted spouse must establish on record that sufficient efforts were made by him to bring the deserting spouse to the matrimonial home but it is equally true that the deserting spouse cannot be expected to sit back at the parental home for no justifiable grounds and not to return back to the matrimonial home. Neither in the written statement nor in the evidence the appellant has shown making any such efforts to return back to the matrimonial home while on the other hand the respondent has successfully proved on record due efforts made by him to bring back the appellant to the matrimonial home. Taking into consideration the aforesaid, no infirmity or illegality can be found with the findings of the learned trail court as far as the ground of desertion is concerned.
19. The petitioner also claimed divorce on the ground of cruelty as envisaged in section 13(1)(ia), which finding was FAO 291/96 Page 30 of 34
given in favour of the respondent and the decree of divorce vide the impugned passed. The appellant has also averred that in the present appeal the respondent has not argued the ground of cruelty and thus the same is deemed to have been abandoned by the respondent. Making cruelty as a ground for divorce in conjunction with the ground of desertion has become a common practice but it cannot be lost sight of the fact that the two are completely distinct grounds and have different barometers on which they are judged. The respondent has not averred any instance of cruelty strongly or has made a case that the conduct of the appellant was such so as to cause mental agony so that they are not able to live with each other. Hence, the findings of the learned trial court on the ground of cruelty are hereby set aside.
20. Before parting with the judgment, the agonizing facts of the case need to be reiterated. The appellant was of 20 years of age and the respondent 22 when they got married in 1982. The petition for divorce was filed by the respondent husband 5 years after the marriage i.e in 1987, and the FAO 291/96 Page 31 of 34
decree of divorce granted in 1996. The present appeal was filed by the appellant before this court in 1996 itself and has come for the final decision in the year 2012. The fact that the parties who stayed together for a mere 24 hours spent close to 30 years in alleys of courts to get rid of each other, is nothing but appalling to say the least. The institution of marriage, which is considered the holy union of two souls, is made mockery of by such like cases and it is no wonder that the relevance of this pious bond is under scanner by the youth today. Each marriage has its bittersweet moments which are cherished by the couple in the sunset of their lives. The companionship of the years spent together is a comforting pillar of strength in their old age and it is most unfortunate that the parties in the present case were devoid of making any such memories, more so because of their own faults. This poignant adjudication has again drawn the mind to wonder about the litigative voyage in our courts, especially in matrimonial cases, which leaves the parties with no hope, zeal, or time to start their lives afresh. It would also be FAO 291/96 Page 32 of 34
pertinent to mention here that as per the mandate of section 9 of The Family Courts Act, 1984 and section 23(2) of the Hindu Marriage Act, the Matrimonial Courts should make every positive endeavour to bring about reconciliation between the parties so that the matter can be amicably settled on mutually acceptable terms at the very threshold. The courts should make efforts at the initial stage itself so that the burden of the courts is also lessened and the parties are also saved from the arduous litigation. The services of the mediators and counselors especially appointed for this purpose are at the disposal of the Family Courts, and should be utilized to the fullest so that parties are reconciled or agree to part mutually and amicably. Let the object of section 9 of the Family Courts Act and section 23(2) HMA not be defeated by a ritualistic exercise but a concerted, cohesive and conscientious effort on the part of the Matrimonial Courts to bring the parties to a pacific agreement. In-time intervention of the courts dealing with marital disputes with devotion of sufficient hearings at the initial stage itself may save such parties this long ordeal. FAO 291/96 Page 33 of 34 The courts should make sustained and persistent attempts even when the pleadings are complete and evidence led, as it will certainly yield potent results. The present case is nothing but a venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades, and I hope that they realize that it has bereft them of everything that matrimonial life would have instore, leaving them now with nothing but remorse.
21. In the light of the above, the present appeal is dismissed.
22. Let the copy of this judgment be sent to all the Matrimonial Courts functioning in various District Courts at Delhi.
January, 2012 KAILASH GAMBHIR, J Dc/mg
FAO 291/96 Page 34 of 34

http://lobis.nic.in/dhc/KG/judgement/18-01-2012/KG16012012FAO2911996.pdf

http://www.indiankanoon.org/doc/5193301/