NARINDER KUMAR Vs. SURESH KUMARI

JUDGEMENT

(1.) This matrimonial appeal is an unfortunate sequel to cultural gap between the husband and wife, terminal incompatibility of nature and attitude on life. The factual substratum of this unhappy marriage is that since 1979 the husband and wife are not living together. The husband's petition for divorce on the ground of cruelty and desertion was dismissed by the Addl, District and Sessions Judge, Delhi, and he has, therefore, preferred the present appeal. The marriage between the parties took place on 27-6-1966. This is almost a child marriage as the wife was only 15 years old and the husband was 19 years old. The husband had passed his Higher Secondary and the wife had passed only III standard, in school. The husband was interested in higher studies. He did his graduation and got an employment of a clerk in a Government office. He pursued his studies, passed his LLB. and then LL.M. The husband's family comes from village Chhatarpur, Delhi, and speaks for their affluence as they own five or six houses there. The wife comes from the village Badshahpur in Gurgaon District where her uncle was running a small dairy. According to the husband's allegations the wife wanted the husband to settle in village Badshahpur and start a milk dairy with the help of her uncle. She was not interested in his studies and put number of obstacles in his way. Since 1980 the wife is staying in one of the houses of the husband's family at Chhatarpur but not with the husband. There is evidence on record to show that she has kept some buffaloes and earning her livelihood. She claims that she is paying there with her uncle and one younger sister. The husband accuses her of leading an immoral life in his own village and while staying in one of the houses of the husband. It appears that particularly from 1979 onwards the relations between the two families have become quite bitter. She has filed number of criminal complaints firstly against the husband and his brother and later on implicating even the father and mother of the husband. The criminal complaints continued to be filed even when these matrimonial proceedings are pending in the courts. The wife claims that as she is living alone, she is being harassed by the family of the husband. While the husband contends that with the help of some busy body in the village-belonging to the opposite group all members of his family are being harassed by filing police complaints. He further claims that in none of the police complaints the police have found any substance and the complaints are, therefore, filed. The wife counters this contention and states that the family of the husband is an influential family and, therefore, the police are siding with them.

(2.) It is clear that the marriage is completely broken beyond retrieve. The factual requirement of desertion is very plain, since the wife is not living with the husband since 1979. During the reconciliation attempts made in the chamber the wife made the usual plea that she was ready to stay with the husband, but her conduct of filing criminal cases right from 1979 and even during the pendency of these proceedings goes counter to her pleas. 1 may not agree with the husband's accusations that the wife is leading an immoral life. Indeed there cannot be any direct evidence for such an accusation and none has been produced. But two facts are quite glaring in this case. The wife who is almost illiterate is staying all by her own in the villlage far away from her own. Considering the reality of the modern life it will be impossible for a single lady to stay without a strong support of some male. This support is also evidenced from the criminal complaints and the police action regarding the breach of peace involving the group of the husband's family and opponents supporting the wife. In the face of these facts, can it be said with any seriousness that wife has any intention to return to husband's house? It is not more consistent with animus deserendi. There is another aspect of the matter. The estrangement between husband and wife has not taken place on the spur of the moment or due to temporary misunderstanding. There is a cultrual and educational gap between the husband and wife. It is unfortunate that such a marriage took place; probably it is explained by the fact that both were so young and the marriage on the normal pattern is an arranged marriage. The other history of matrimonial litigation and the failure of attempts of reconciliation cannot also be ignored. In 1978 the wife filed a petition for restitution of conjugal rights in Gurgaon courts in which the husband filed the counter petition for divorce. The wife withdrew her petition and it is claimed by husband that it was done so in his absence. Thus ended the counter petition of the husband. In December, 1979 the husband filed a separate petition for divorce but that was withdrawn, as through the intermediary of some common friends some understanding was reached between the families, But things did not go on well and the husband filed the petition tor divorce again on 22-9-1980 because she filed an FIR against the husband on 16-8-1980 alleging personal threat and harassment. It appears that some attempts for reconciliation were again made. This time the father of the husband made a generous gesture of giving one of the houses to the wife for her stay in the village so as to buy peace and on the condition that she would not make any other claim against the husband. The history of this litigation shows that the attempts for reconciliation were made at several stages but they failed. The wife, although she was provided for the accommodation and stay by the husband's father persisted on filing criminal complaints against the family and even implicating the father and mother of the husband. On the basis of the admitted fact by both the parties that since 1979 the parties were not living together, i.e. much before the present divorce petition was filed and continue to live separate for the last eight years is sufficient for the purposes of decision on the question of desertion in law. It is, therefore, not necessary to go into the mutual allegations for the period between 1966 and 1975 as to how long the wife stayed with the husband and why she left the house. I, therefore, hold that the husband has established desertion by his wife, as required by S. 13(l)(b) of the Hindu Marriage Act.

(3.) The criminal complaints initiated by the wife against the husband, which as a matter of fact have not resulted into any action against the husband or his family can be treated as cruelty practised by wife on the background of the matrimonial peace and happiness. She filed her first F.I.R. in August, 1980. Thereafter the father of the husband gave her a separate house to stay. Even if this is to be treated as implied condonation of wife's cruelty by husband the same got revived because even after the present petition was filed in September, 1980 the criminal complaints continued. They were filed even after 22-9-1984, that is, the date of the impugned judgment of the Additional District and Sessions Judge. The wife not only filed the complaints with the police but sent similar complaints of harassment to the employer of the husband. I, therefore, hold that the husband has succeeded in establishing the ground of cruelty against the wife.