FAO No. M-259 of 2011 v. Mohan Singh

Judgment

1. The present appeal has been filed by the appellant-wife, aggrieved against the judgment and decree of the Addl. District Judge, Kaputhala dated 24.2.2011, dismissing petition filed by her, for grant of divorce on the ground of cruelty and desertion even though the respondent-husband had preferred not to appear.

2. The case pleaded in the petition filed on 14.6.2010 under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) by the appellant was that the marriage was solmnised between the parties on 15.12.2005 at village Lasara, Tehsil Phillaur, District Jalandhar

according to Sikh rites and ceremonies. The parties had lived together as husband and wife and cohabited at Phagwara but no child was born from the wedlock. The parents of the appellant-petitioner had given sufficient dowry articles to her and to the husband at the time of marriage including gold jewellery weighing about 10 tolas, colour T.V., fridge and other house hold articles. More than 100 baratis were accommodated and ` 5 FAO No. M-259 of 2011 -2- lacs were spent on the marriage but the respondent-husband had started harassing the appellant-petitioner on one pretext or the other particularly on the ground that she had got less dowry and quarrelled with her on small and petty matters and insulted her publicly. The respondent-husband had given merciless beatings to the appellant-petitioner on several occasions though the appellant was performing her duties like a dutiful wife. A demand was made to bring ` 2 lacs from her parents because respondent-husband intended to go abroad and when the appellant- petitioner showed her inability to bring such a huge amount she was turned out of her matrimonial home in the month of January, 2006 in three clothes. She returned to her parental house and told her parents regarding the demand. A Panchayat was convened in the first week of February, 2006 but the respondent-husband and his parents refused to rehabilitate the appellant-petitioner unless the demand of ` 2 lacs was not fulfilled. It was later on learnt that the respondent-husband had gone to Germany and he did not bother to contact the appellant-petitioner even by way of telephone or any other mode of communication and he had not returned to India. The appellant-petitioner had learnt that the respondent was living with a woman in Germany and was keeping the said lady as his wife. Thus, the ground for divorce was desertion and cruelty.

3. Registered cover notice was sent to the respondent at his address in Germany and thereafter on an application for substituted service, service was effected by publication in the Times of India. The respondent-husband was thereafter proceeded against exparte. The appellant-petitioner apart from submitting her affidavit in support of her case also filed affidavit of her father Santokh Singh and Sh. Balbir Singh, Member Panchayat, village Lasara. FAO No. M-259 of 2011 -3-

4. The Addl. District Judge, Kapurthala, however, dismissed the petition on the ground that allegations of cruelty were vague and the wife had not named any woman with whom the respondent-husband was living in Germany and has failed to disclose how she came to know about this fact. It was also held that the appellant-petitioner had failed to produce any document that the respondent-husband had gone to Germany. It was further observed that the allegations of beating were not specific as no date and month was given and whether the said beatings were given in the presence of some one. Similarly the amount spent on marriage and dowry articles were not proved. Since the appellant-petitioner had chosen not to file an application under Section 125 of the Code of Criminal Procedure from the year 2006 upto the filing of the petition, the said fact was also held against the appellant-petitioner. Accordingly, finding was recorded that the parties seemed to be in collusion with each other for the reasons best known to them.

5. The appeal has been preferred along with the application for condonation of delay which was allowed vide order dated 18.4.2012 in the presence of the counsel for the respondent-husband.

6. Counsel for the appellant-petitioner has submitted that the Addl. District Judge, Kapurthala was in error in not allowing the petition filed for divorce in the absence of any opposition by the respondent- husband. It has further been submitted that once the appellant-petitioner had produced evidence then the Court on its own could not conjure up a defence on part of the respondent and come to a conclusion that the petition filed was collusive in any manner.

7. After hearing counsel for the parties and perusing of record, this Court is of the opinion that the view taken by the Addl. District Judge, FAO No. M-259 of 2011 -4- Kapurthala cannot be sustained. A perusal of the record goes on to show that the registered cover had been sent to the respondent-husband in Germany and a letter dated 31.8.2010 had also been received from the respondent-husband wherein he had stated that he is unable to appear before the Court on 22.09.2010 and judgment may be passed in his absence. The envelope also shows that the said letter was received from Germany which would be clear from the perusal of the stamps which carry the embossment of “Deutsche Post”. This aspect has totally been ignored by the Addl. District Judge, Kapurthala, who has failed to take into consideration this document. Once the respondent-husband himself was not opposing the divorce petition, it was not appropriate for the Court to come to the conclusion that the petition was filed in collusion with the respondent-husband. The appellant had specifically submitted an affidavit containing the facts of the case and even given the details of desertion, and produced witnesses in support of her case. The petition was filed after the requisite period and there was no such legal impediment for the Court to deny divorce on the ground of desertion though the Court was justified in denying the divorce on the ground of cruelty in the absence of any specific, time and date of cruelty.

9. Once the parties themselves did not want to continue with their matrimonial bond, it is not for the Court to substitute its opinion and bind the parties together on mere suspicion. A Division Bench of this Court in FAO NO.M-73 of 2011-Ewelina Stepkowska Vs. Ravinder Singh decided on 29.11.2011 of which one of us (G.S.Sandhawalia, J.) was a member has held that where the divorce petition is not opposed and neither the witnesses have been cross-examined then in the absence of any such plea the Court could not hold otherwise. Relevant observations FAO No. M-259 of 2011 -5- read as under:- “6. There is considerable merit in the submission of the learned counsel for the petitioner-wife. Admittedly, the petitioner-wife is of Polish background which would be clear from her name and address and photograph placed on record of the marriage along with the certificate of marriage issued by the Deputy Commissioner-cum-Marriage Officer, Hoshiarpur dated 7.7.2005 (Ex. P3). In the said certificate, the name of Dalwinder Singh specifically finds mention along with signature who is alleged to be the uncle of the petitioner-wife. In the pleadings, it is specifically mentioned that she has been deserted since 18.1.2006 and the petition has been filed on

15.9.2008 and the specified period of desertion of two years preceding the presentation of petition under Section 27(1)(b) of the Act has been satisfied. This has been further strengthened by the fact that the petitioner-wife came in to submit her evidence by way of affidavit on 13.10.2009 more than a year after the presentation of the petition which she had filed with an affidavit and the facts go on to show that she has been visiting India on and off continuously prior to the marriage and after her marriage also and has been present before the Court. The Court has also noticed the fact that respondent on being served on the summons has sent a reply that he has no objection, if the petition is allowed. In view of the said background, it is not for the Court to come to an adverse opinion that marriage was entered into for the sole purpose to settle the respondent-husband abroad and that the petition FAO No. M-259 of 2011 -6- had been presented in collusion with the respondent-husband. Once the parties themselves do not want to continue with their matrimonial bond, it is not for the Court to substitute its opinion and bind the parties together as has been done in the present case vide impugned judgment and decree.

7. Once the petitioner-wife had produced evidence in support of her case and which was unrebutted and not controverted by the husband in written statement nor the witnesses have been cross-examined, moreover, neither any such plea had been set up as has been observed by the trial Court, there was no occasion for the Court to come to the unjustified conclusion that it has reached to.”

11. Accordingly, the appeal is allowed and the judgment and decree dated 24.2.2011 passed by the learned Addl. District Judge, Kapurthala is set aside and the petition filed under Section 13 of the Act is allowed on the ground of desertion and the marriage between the parties is dissolved by way of a decree of divorce. Decree sheet be drawn up accordingly. (G.S.SANDHAWALIA) JUDGE (RAJIVE BHALLA) JUDGE

19.10.2012 Pka