Judgment · High Court · 2012

On the basis of the pleadings of the parties, the following issu (cid:28)I. II. Is there any cause of action? Whether the opposite party deserted the petitioner? III. Whether the opposite party treated the petitioner with cruelty? IV. Whether the petitioner is entitled to get any relief? (cid:29) [5] The appellant/husband in support of his case examined 2(two) wit nesses, namely the appellant himself as PW-1 and a neighbour as PW-2. The respo ndent/wife also examined herself as the lone DW in support of her case. No docu mentary evidence has, however, been adduced by any of the parties. The learned Trial Judge upon appreciation of the evidences on record and also the requiremen t of law to constitute the (cid:28)desertion (cid:29) and (cid:28)cruelty (cid:29) has dismissed the suit file d by the appellant by holding that the appellant/husband could not proof that th e respondent/wife voluntarily went out of the house of the appellant/husband wit h the intention to stay permanently with her parents. It has further been held that the respondent/wife had to leave the matrimonial house because of the tortu re meted out to her by her husband and his other family members. Hence the pres ent appeal. [6] band and Mr. N. Hoque, learned counsel appearing for the respondent/wife. [7] It has been contended by the learned counsel for the appellant/h usband that since admittedly the respondent/wife is not staying with the appella I have heard Mr. G. Ahmed, learned counsel for the appellant/hus nt/husband from 3rd June, 1995, i.e. for about 17 (seventeen) years, as on date and more than 6(six) years on the date of institution of the suit, without any r easonable cause for leaving the matrimonial house, it amounts to desertion by th e respondent/ wife and hence the Trial Court ought to have decreed the suit of t he appellant/husband dissolving the marriage between him and the respondent/wife . It has also been submitted that the evidence adduced by the appellant proves t hat the respondent despite the attempt made refused to come back to the matrimon ial house and thereby refused to resume the conjugal life with the appellant, wh ich results in cruelty and as such, the learned Trial Judge ought not to have di smissed the suit of the appellant. On the other hand, Mr. Hoque, learned counsel appearing for the [8] respondent supporting the judgment passed by the learned Trial Judge and referri ng to the depositions of the witnesses examined by both the parties has submitte d that the respondent had to leave the matrimonial house because of the torture meted to her by the appellant and his other family members and as such leaving o f the matrimonial house would not amount to desertion within the meaning of Sect ion 13(1) of the Hindu Marriage Act, 1955 (in short, (cid:28)the Act (cid:29)), so as to get th e dissolution of the marriage by the appellant/husband, as he cannot be allowed to take the advantage on his own wrong. It has also been submitted that it is a lso evident from the deposition of witnesses that even the appellant refused to maintain the respondent, for which the order of maintenance had to be passed by the learned Magistrate in a proceeding instituted by the respondent under Sectio n 125 Cr.P.C. The learned counsel further submits that no attempt was made by t he appellant to bring back the respondent to the matrimonial house and hence, th ere is no cruelty on the part of the respondent. [9] I have considered the submissions of the learned counsel for the appearing parties and also perused the judgment and order under challenge, apar t from the pleadings of the parties in the D.T.S. and the evidences adduced by t he parties. The case as projected by the appellant before the learned Court [10] below is that the respondent/wife on 3rd June, 1995 without any reasonable cause has left the matrimonial house and started leaving in her parental house and al so refused to come back despite the attempt made, thereby refusing to resume the cohabitation, which amounts to desertion and cruelty within the meaning of Sect ion 13(1) of the said Act. PW-1, i.e. the appellant/husband, in his deposition has stated about the death of the 2(two) issues born out of the wedlock with the respondent/wife and leaving the matrimonial house in the month of June, 1995 wi thout any reasonable cause. This witness has also stated that though he made se veral endeavour to bring her back, the wife refused to come back, she being a ve ry arrogant lady. This witness has admitted passing of an order by the learned Magistrate in a proceeding instituted by the respondent/wife under Section 125 C r.P.C. for the failure on his part to pay maintenance to the respondent/wife. D uring cross-examination this witness had denied the suggestion put to him that t he respondent/wife left the matrimonial house because of the torture, both physi cal and mental, meted to her after the death of the issues. PW-2, who is the ne ighbour, in his deposition, has admitted that there was quarrel between the appe llant and the respondent, reason of which, however, was not known to him. This witness during cross-examination has also stated that once the village headman e ven requested the appellant/husband and pleaded with him to keep the respondent/ wife, which the appellant/husband did not do. This witness further stated that he does not know why the respondent/wife has left the house of the appellant/hu sband. The respondent/wife in her deposition has stated that she was compelled t o leave the matrimonial house because of the torture meted to her by the husband as well as the other family members after the death of the child. She has furt her stated that even she was refused the day to day meal, for which she had to t ake shelter in her parental house. She has also stated relating to the proceedi ng instituted under Section 125 Cr.P.C. and also grant of maintenance allowance by the learned Magistrate. This part of the deposition of the respondent/wife h as not been challenged by the appellant/ husband except putting a suggestion whi ch have been denied by the respondent/wife. The version of the respondent/wife gets support in the deposition of the PW-2, who has stated about the quarrel bet ween the husband and the wife and also the request made by the village headman r equesting the husband to keep the wife with him. The version of the respondent/ wife is, therefore, more probable and hence rightly believed by the learned Tria l Judge by applying the standard of proof of preponderance of probabilities. [11] Section 23 of the Act provides that no relief in any proceeding under the Act, whether defended or not, can be granted on any of the grounds, if the petitioner is in any way taking advantage of his or her own wrong or disabi lity for the purpose of such relief. As held above, the respondent/wife was com pelled to leave the matrimonial house because of the torture meted to her by the appellant/husband, apart from other family members and hence, he cannot be allo wed to take advantage of his own wrong. For this reason, the respondent had a r easonable cause for leaving the matrimonial house and staying away therefrom, wh ich, therefore, would not constitute desertion within the meaning of Section 13( 1) of the aforesaid Act. The cruelty, as alleged, also could not be proved by t he appellant by adducing any evidence. The appellant though in the deposition h as stated that he made an attempt, he, however, could not say when he went to th e in-laws house for bringing the respondent. [12] Having regard to the aforesaid discussion, I am of the view that the learned District Judge has rightly dismissed the suit instituted by the app ellant/husband, which requires no interference in appeal. [13] [14] The appeal is, therefore, dismissed. No costs. The Registry is directed to send down the records forthwith.