RAMAN KUMAR Vs. BAKSHO THANDI

JUDGEMENT

(1.) APPELLANT- Raman Kumar had filed a petition under S. 13 of the Hindu marriage Act, 1955 for dissolution of his marriage with Baksho Thandi (respondent)by grant of decree of divorce. The marriage between the appellant and respondent-wife was solemnized on 11-4-2003 at Nawashahr as per Sikh rites. The couple lived together for about 27 days at village Apra, Tehsil phillaur, District Jalandhar. After marriage, respondent-wife went to Canada and sent sponsorship for the appellant-husband for his immigration to Canada. Ultimately, the appellant-husband joined the company of the wife in Canada on 27-4-2004. The appellant alleges that the wife refused to cohabit while she was in India by saying that they would do so on reaching Canada. The appellant claims that wife refused to cohabit with him while in Canada as well. Allegation by the appellant further is that he was-insulted on the ground that he was simply a matriculate and was made to live like a servant and look after the house and house hold works. This, according to the appellant, amounted to his mental torture/cruelty. Averment further is that in the month of July, 2004, he was thrown out of the house and accordingly returned to India on 14-7-2004. Appellant had gone back to canada during April, 2005 but was not allowed access to the house by the wife. When after lot of persuasion, he was able to enter the house, he noticed to his shocked that the respondent-wife was wearing white sari and proclaimed that she had become widow. It is also alleged that the wife had given some false complaints to the police against the appellant-husband. Fearing fake implication, the appellant came back to India. He has, thus, filed this petition, seeking divorce by inter alia alleging that wife never allowed him to consummate the marriage and, thus, intentionally and wilfully treated the appellant with cruelty.

(2.) ON notice being issued, the wife appeared to contest the petition. Factum of marriage is admitted in the written statement filed by the respondent-wife. She claims to have maintained healthy and intimate relationship with her husband during her stay in India and subsequently in canada. According to the wife-respondent, the marriage was consummated. She has further stated that even in Canada, they lived together as husband and wife where they cohabited with each other as husband and wife. She has, thus, denied if the appellant was treated with any mental or physical cruelty. The allegations about making the appellant to cook or to attend to the house hold work are also denied. It is rather disclosed that the appellant had come to india on the pretext of completing paper work for dividing his property and their relationship, as such, remained cordial throughout. As per the wife, she learnt about the divorce petition with a shock. She, as such, has pleaded that she was always ready and willing to live with her husband and perform her all marital duties and accordingly prayed for dismissal of the petition.

(3.) HAVING analysed the rival contention, the District Judge, Jalandhar, has rejected the claim of the appellant. While declining the petition, the Court observed that averment would not show that the wife had refused sexual intercourse. It is noticed that the pleaded case in the petition is that the respondent-wife did not allow the husband to cohabit while they were in India and canada. Going into meaning of "cohabitation," the trial Court found that cohabitation is the act of living together in the house, boarding etc. It is further observed that this term would not necessarily mean sexual intercourse. In this regard, reliance is placed on the case of Harvinder Kaur v. Harmander singh Choudhary, AIR 1984 Delhi 66. Reference is also made to Thomas v. Thomas (1948) 2 KB 294, wherein it is held that cohabitation does not necessarily depend on whether there is sexual intercourse between husband and wife but consists in the husband acting as husband towards wife and wife as wife towards the husband. The trial court has also referred to the case of Mang maung v. Ma Sein Kyi, AIR 1940 Rangoon 181 to observe that cohabitation means a dwelling or living together in conjugal relationship and not secret act of intercourse. Accordingly, it is held that there is not even an averment in the petition regarding denial of sexual relationship by the respondent-wife and hence, the allegation of mental cruelty would not stand. Similarly, the allegation of making the appellant to work as a household servant etc. are not found to have been sufficiently established and the prayer for divorce, as made, is declined.