MEWA SINGH Vs. PREM KAUR

JUDGEMENT

(1.) This appeal is directed against the judgment of the District Judge, Rup Nagar, dated June 1978, whereby the petition under section 13 of the Hindu Marriage Act, 1955 , for dissolution of the marriage by a decree of divorce by the husband appellant was dismissed.

(2.) According to the averments in the petition, the appellant alleged that the marriage with the respondent had been solemnized about 15 years prior to the filing of the petition The appellant's mother having died when lie was only six months' old, he lived with his brother Kaka Singh after the marriage of the latter two years after the death of the mother. The appellant was brought tip by Kaka Singh's wife as a son. However, the respondent wanted the appellant to live separately from his father and brothers and to have the property partitioned. As the appellant did not concede to this unjustifiable demand of the respondent, the latter left his house without any excuse and took away all goad and silver ornaments as well as clothes These allegations were denied by the respondent in her written statement. On the other had, it was alleged that it was the appellant who had turned out the respondent after maltreating her. Consequently, after some years, she filed a petition under section 488 of the Code of Criminal Procedure, (hereinafter called tie Code), for maintenance which was allowed by the trial Magistrate. I he appellant had also made an allegation in the petition that the respondent in her maintenance application had levelled a false charge that the appellant was living adulterous life with the wife of his brother Kaka Singh. In view of the same, the following issues were framed :

(3.) The appellant produced Mohinder Singh, A. W. 1, Dilbara Singh, A. W. 2, Mukhtiar Singh, A. W- 3 and his brother Kaka Singh, A. W. 4 besides himself appearing as a witness The depositions of these witnesses were of usual type to the effect that they had gone with a Panchayat to the house of the parents of the respondent who did not agree to send her back unless the appellant lived separately from his brothers and 1 father. This evidence was held to be not worthy of credence by the trial Court. I have persued their statements closely. Their depositions are of a very general nature and it is not difficult to procure a few witnesses of the village in a matrimonial dispute when the wife belongs to another village Mohinder Singh, A W. 1, is a Harijan, Mukhtiar Singh, A W. 3 is a Carpenter. None of the witnesses except Kaka Singh, A. W. 4. who is the brother of the appellant, belongs to the community of the appellant and does not appear to be a man of any influence. Besides, there are two important factors which cannot be lost sight of. Before the petition for divorce was filed, the respondent submitted an Application under section 488 of the Code for maintenance which was allowed by the Magistrate. The case of the appellant is that the revision petition filed by the appellant against the said order was accepted by the Sessions Judge inasmuch as recommendation was made to the High Court set aside the order of the Magistrate regarding the grant of maintenance and that the revision petition was pending in the High Court. Thus, the fact remains that it was the respondent wife who initiatad the proceedings for the grant of maintenance before the filing of the petition for divorce by the appellant. It is also on record that the respondent filed a suit for injunction for restraining the appellant from contracting a second marriage In that suit, ex parte injunction Order was issued Subsequently, the suit was dismissed by the Subordinate Judge by his order dated July 22, 1977. It is thus quite evident from these to facts that the respondent had not left the house of the appellant with animus deserdendi' so as to terminate the matrimonial ties and obligations for all times to come. It is just passible that the respondent may have left the house of the appellant in a mood of temporary excitement of anger which is not unusual in married life. There is no satisfactory and convincing evidence to warrant the conclusion that the respondent was living separately with the intention to part company with her husband for all times to come so as not to resume cohabitation and perform matrimonial obligations it is a settled principle of law as laid down in Lachhman Uttam Chand Kirpalani v Meena alias Mona, 1964 AIR(SC) 40, that the petitioning spouse must satisfy the essential ingredients of animus deserdendi on the part of the deserting spouse before a decree of divorce can he passed and further that the burden is on the petitioner to discharge the onus in this regard. The evidence in this respect is not only inadequate, but is absolutely lacking. Even if some credence is given to the allegation of the appellant that the cause for the respondent to leave his house was that the appellant did not agree to the unreasonable demand of the respondent to live separately from his father anal brothers. conclusion cannot he reached that the alleged conduct clearly indicated he determination or the intention of the respondent to bring to an end the matrimonial ties for all times to come