NIRMAL Vs. BRIJ MOHAN

JUDGEMENT

(1.) The petition under section 13 of the Hindu Marriage Act by Brij Mohan against his wife Smt. Nirmal was allowed by the Additional District Judge, Amritsar, and a decree of divorce was passed in his favour on the grounds of cruelty and desertion. The F.A.O. filed by Smt. Nirmal was dismissed by the learned Single Judge and the decree of divorce was upheld solely on the ground of cruelty. Now, Smt. Nirmal has filed the present letters patent appeal.

(2.) With respect to the ground of cruelty, it was urged before us that Brij Mohan failed to prove the acts of cruelty levelled by him against Smt. Nirmal. As such, the plea of Smt. Nirmal in her written statement that while she was living in the house of her husband, his elder brother to molest her, set up by way of defence, cannot per se be a ground of divorce. Reliance was placed by her learned counsel Mr. J.K. Sharma on decision dated 24th September, 1981, of my Lords S. S. Sandhawalia, C. J. and S.P. Goyal, J in Paras Ram v. Kamlesh, F.A.O. No. 70-M of 1981 wherein it was held :-

(3.) Admittedly, the marriage of the parties took place in 1964. A year thereafter, daughter was born. It appears that from the very beginning, the parties did not pull on well. Way back in September 1967, Smt. Nirmal left the matrimonial home in Hoshiarpur and went to her parents in Amritsar. At the time, she wrote note Exhibit A. I addressed to her husband Brij Mohan that she was leaving with her daughter on her own volition and free will. Thereafter, some attempts were made to bring about reconciliation but in vain. The attitude of Nirmal, which has been adversely commented upon by the trial Court, did not at all indicate willingness to reconcile. Suffice it to mention here that since June 1973, the parties have been completely separate. Finally, as deposed by her brother Kewal Krishan (R.W.5), she in consultation with him and their mother, applied for judicial separation on 27th February, 1975. The said application was resisted by Brij Mohan. As a counterblast, he filed application under section 9 of the Hindu Marriage Act for restitution of conjugal rights. It is pertinent to point out that Nirmal succeeded in getting those proceedings stayed on the ground that the matter of judicial separation launched by her was sub judice. It seems that under compelling circumstances, Brij Mohan agreed to the passing of the decree prayed for by Smt. Nirmal.