HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 3123 / 2010
Smt. Nandani Singh W/o Shri Ranvijay Singh D/o Magendra Singh
Chauhan, by Caste Rajput, R/o B-20, Ganesh Nagar, Vijay Path,
Moti Dungari, Jaipur
—-Appellant
Versus
Ran Vijay Singh S/o Bahadur Singh, by Caste Rajput, Aged About
45 Years, R/o D-39, Sawai Madho Singh Road, Bani Park, Jaipur
—-Respondent
Connected With
D.B. Civil Miscellaneous Appeal No. 940 / 2010
Smt. Nandani Singh W/o Shri Ranvijay Singh D/o Magendra Singh
Chauhan, by Caste Rajput, R/o B-20, Ganesh Nagar, Vijay Path,
Moti Dungari, Jaipur
—-Appellant
Versus
Ran Vijay Singh S/o Bahadur Singh, by Caste Rajput, Aged About
45 Years, R/o D-39, Sawai Madho Singh Road, Bani Park, Jaipur
—-Respondent
__
For Appellant(s) : Mr.Hari Barath, Adv.
For Respondent(s) : Mr.Giriraj Bardhar, Adv. with Mr.Kapil
Bardhar, Adv. Mr.Umesh Dubey, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment reserved on : 24th August, 2017.
Date of Judgment : 30th August, 2017.
By the Court (Per Hon’ble Mr.Justice Ajay Rastogi):
D.B.Civil Misc. Appeal No.940/2010 is filed by the appellant-
wife against judgment and decree dt.26.02.2010 passed by the
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ld.Family Court No.1, Jaipur granting decree of divorce to the
respondent-husband and dissolving their marriage solemnized on
15.04.1990.
Another D.B.Civil Misc. Appeal No.3123/2010 is preferred by
the appellant-wife assailing the order passed by the ld.Family
Court No.1, Jaipur rejecting her application for maintenance filed
u/Sec.125 Cr.P.C. vide order dt.08.09.2010.
The brief facts of the case are that marriage of the appellant
respondent was solemnized on 15.04.1990 at Jaipur according
to Hindu rites customs but there is no issue from this wedlock.
Application has been filed by the respondent-husband seeking
decree of divorce u/Sec.13 of the Hindu Marriage Act, 1955 on
22.03.2006 and it was averred by him that at the time of marriage
he was working in tea gardens in the State of Assam but due to
insistence of the appellant-wife, he left his job and came to Jaipur
in April, 1991 and parents of both the parties are residing in the
city of Jaipur. According to him, most of the time, the appellant-
wife used to stay at her parents’ house and did not take care to
prepare meals etc. for the respondent-husband and she finally left
her matrimonial home on 27.01.1997 and went to her parents’
house. In the month of May, 1998, she came to the house of the
respondent-husband and took her personal belongings like cloths,
ornaments etc., which she needed on the occasion of marriage of
her brother and thereafter she did not return back despite various
efforts being made and she certainly has a proud of her higher
education in comparison to the respondent-husband.
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When the respondent-husband finally failed in the efforts to
restore back their matrimonial ties, he filed application u/Sec.9 of
the Hindu Marriage Act, 1955 for restitution of conjugal rights in
the year 2002, on the basis of the pleadings on record application
was decreed by the ld.Family Court No.1, Jaipur vide judgment
decree dt.10.03.2005, which came to be challenged by the
appellant-wife before this court in D.B.Civil Misc. Appeal
No.1063/2005 and that came to be dismissed on 08.05.2007 and
she further filed D.B.Civil Review Petition No.53/2007 which too
was dismissed on 26.02.2008.
It was further averred by the respondent-husband in his
matrimonial application that despite the judgment decree of the
ld.Family Court for restitution of conjugal rights dt.10.03.2005 he
has tried his best to restore his matrimonial ties but since he
failed and no cohabitation has taken place at least permanently
after the appellant-wife left the matrimonial home on 27.01.1997,
he is entitled for decree of divorce.
In the written statement filed by the appellant-wife, the only
defence which she took was that against the judgment decree of
restitution of conjugal rights in favour of the respondent-husband
dt.10.03.2005 she has preferred D.B.Civil Misc. Appeal
No.1063/2005 in the High Court and such plea is not available to
be raised by the respondent-husband. In the same breath, further
averred that she is still willing to restore their matrimonial
relations.
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The ld.Family Court on the basis of the pleadings of the
parties, in all framed three issues for determination, which read ad
infra:-
“1- D;k nkEiR; vf/kdkjksa ds iquZLFkkiuk dh fMØh fnukad
10032005 ds i’pkr i{kdkjksa ds e/; nkEiR; laca/kksa dh
izR;kLFkkiuk ugha gqbZ
2- D;k izkFkhZ fookg foPNsn izkIr djus dk vf/kdkjh gS
3- vuqrks”k “
In support of his case, the respondent-husband recorded his
own statement as PW-1 and of his father as PW-2 and the
appellant-wife in support of her defence recorded her own
statement as DW-1.
On the basis of the pleadings of the parties, the ld.Judge,
Family Court No.1, Jaipur finally arrived to the conclusion that
there is sufficient material on record to establish that the
appellant-wife has deserted the respondent-husband and she left
her matrimonial home on 27.01.1997 and their marriage has
never been cohabited thereafter and this is a broken marriage and
re-union is not possible and accordingly granted the decree of
divorce in favour of the respondent-husband vide judgment
decree dt.26.02.2010.
There is another application pending for maintenance being
claimed by the appellant-wife u/Sec.125 Cr.P.C. which she filed on
08.07.2008 claiming Rs.20,000/- towards her monthly
maintenance from the respondent-husband but on the pleadings
of the parties and taking note of the material on record, her
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application seeking maintenance was rejected by the ld.Family
Court No.1, Jaipur vide judgment dt.08.09.2010.
Counsel for the appellant submits that the respondent-
husband was not entitled to seek decree of divorce only on the
basis of earlier decree passed for restitution of conjugal rights
even if that stands confirmed on her appeal being dismissed but
that in itself cannot be made a basis that the respondent-husband
can claim for the decree of divorce on the grounds which are
enumerated u/Sec.13 of the Act, 1955 and decree of restitution of
conjugal rights may be a piece of evidence but that could not be
considered to be a sole basis for grant of decree of divorce and
such finding recorded by the ld.Family Court being perverse
requires interference of this court.
Counsel submits that after obtaining decree for restitution of
conjugal rights, the respondent-husband has done nothing and
has never took measures for execution, as envisages u/Sec.28A of
the Act, 1955 and his further submission is that Sec.23(1) of the
Act, 1955 has been completely ignored by the ld.Family Court
while granting decree of divorce vide judgment decree
impugned and that requires interference of this court.
Counsel for the respondent-husband has supported the
judgment of the ld.Family Court and submits that their marriage
was solemnized on 15.04.1990 and from the material which has
come on record, it is established that the appellant-wife left her
matrimonial home on 27.01.1997 without any cause or
justification and once she came to her matrimonial home in the
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[ CMA-3123/2010]
month of May, 1998 only to take her personal belongings like
cloths, ornaments etc., which she needed on the occasion of
marriage of her brother and thereafter she never looked back to
restore her matrimonial ties and despite the decree of restitution
of conjugal rights being awarded by the ld.Family Court, still she
never came forward for restitution, on the contrary filed appeal
against the judgment and decree dt.10.03.2005 in the High Court
and that too was dismissed on 08.05.2007 and the review
application, filed at her instance, was also dismissed on
26.02.2008.
According to the counsel, the factum of separation as well as
animus deserendi which are the essential elements of desertion
are established from the material on record and in the given point
of time more than 20 years have rolled by now from the date she
left the matrimonial home no cohabitation has taken place
thereafter and their marriage is completely broken down and more
so when her application for maintenance u/Sec.125 Cr.P.C. has
been dismissed by the ld.Family Court, in the given facts
circumstances, the finding which has been recorded by the
ld.Family Court needs no further indulgence of this court.
We have heard counsel for the parties and also perused the
evidence adduced by them and so also the judgment decree
passed by the ld.Family Court.
It is indeed true that marriage is a sacred relationship
between the husband and the wife. In the case in hand, the
spouse are members of Rajput family which is a traditional family
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and in the society like ours, the marriage not only brings a wife to
the home but also brings a daughter-in-law in the family.
For grant of decree of divorce on the ground of desertion, it
has to be established that the other party to the marriage has
deserted the party seeking divorce for a continuous period of not
less than two years immediately preceding the presentation of the
petition. The concept ‘desertion’ has been examined by the Apex
Court in Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri
Devi reported in (2002) 1 SCC 308 wherein it was held ad
infra:-
“7. ‘Desertion’ in the context of matrimonial law represents a
legal conception. It is difficult to give a comprehensive
definition of the term. The essential ingredients of this
offence in order that it may furnish a ground for relief are :
1. The factum of separation;
2. The intention to bring cohabitation permanently to an end
animus deserndi;
3. The element of permanence which is a prime condition
requires that both these essential ingredients should
continue during the entire statutory period;
The clause lays down the rule that desertion to amount to a
matrimonial offence must be for a continuous period of not
less than two years immediately preceding the presentation
of the petition. This clause has to be read with the
Explanation. The Explanation has widened the definition of
desertion to include willful neglect of the petitioning spouse
by the respondent. It states that to amount to a matrimonial
offence desertion must be without reasonable cause and
without the consent or against the wish of the petitioner.
From the Explanation it is abundantly clear that the
legislature intended to give to the expression a wide import
which includes willful neglect of the petitioner by the other
party to the marriage. Therefore, for the offence of
desertion, so far as the deserting spouse is concerned, two
essential conditions must be there, namely, (1) the factum of
separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly, two
elements are essential so far as the deserted spouse is
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[ CMA-3123/2010]concerned: (1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid.
The petitioner for divorce bears the burden of proving those
elements in the two spouses respectively and their
continuance throughout the statutory period.”
It is indeed true that desertion must have two essential
ingredients of (i) the factum of separation; and (ii) the intention to
bring cohabitation permanently to an end (animus deserendi) and
both the essential ingredients should continue during the entire
statutory period. At the same time, similarly, two other essential
elements, so far as the deserted spouse is concerned, are (i) the
absence of consent; and (ii) absence of conduct giving reasonable
cause to the spouse leaving the matrimonial home to form the
necessary intention, as indicated aforesaid. In other words, it is a
total repudiation of obligations of marriage. Desertion, therefore,
means withdrawing from the matrimonial obligations i.e. not
permitting or allowing and facilitating the cohabitation between
the parties. It is true that desertion cannot be equated with
separate living by the parties to marriage. It may also be
constructive and can be inferred from the attending
circumstances. Question of desertion is a matter of inference to be
drawn from the facts of each case.
In the instant case, the respondent-husband in his
application has specifically pleaded that the appellant-wife left her
matrimonial home on 27.01.1997 and despite efforts being made
by the intervention of family members, still she failed to
voluntarily restore to the conjugal rights and his application filed
u/Sec.9 of the Act, 1955 for restitution of conjugal rights was
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seriously opposed by the appellant-wife and all her defence
assigned which enable her not to restore to the conjugal rights
were found to be lame excuses and decree of restitution of
conjugal rights was granted to the respondent-husband by the
ld.Family Court vide judgment decree dt.10.03.2005, which was
the subject matter of challenge in D.B.Civil Misc. Appeal
No.1063/2005 filed at the instance of the appellant-wife and after
the appeal being heard, this court confirmed the finding recorded
by the ld.Family Court and dismissed the appeal vide order
dt.08.05.2007 and the defence of the appellant-wife of atrocities
being committed on her and other defences which enable her to
restore the conjugal rights were found to be mere lame excuses
and this fact has been further fortified on the basis of finding of
fact which came on record that after leaving the matrimonial
home on 27.01.1997 she once came once back to the matrimonial
home in the month of May, 1998 just to collect her personal
belongings like cloths, ornaments etc., which she needed on the
occasion of marriage of her brother but she has no intention to
restore to her matrimonial ties and after the finding being
confirmed by this court in appeal, preferred at the instance of the
appellant-wife, vide judgment dt.08.05.2007 further the review
petition No.53/2007 preferred at her instance too came to be
dismissed on 26.02.2008 and that apart in her written statement
her defence was that since she has preferred appeal against the
judgment decree granted to the respondent-husband for
restitution of conjugal rights dt.10.03.2005 is pending in the High
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Court such plea is not available to him and even during the course
of recording of her statement, it was deposed in her cross
examination that she has preferred appeal against the judgment
decree granting restitution of conjugal rights to the respondent-
husband dt.10.03.2005 there appears no reason for her to
comply and restore the matrimonial ties and in the same breath it
was deposed by her that she is not interested to give him divorce
and wants to stay with him.
From the material which has come on record, the two
essential conditions which have to be fulfilled regarding deserting
spouse is concerned are (1) the factum of separation; and (2) the
intention to bring cohabitation permanently to an end (animus
deserendi). At the same time, two elements are essential so far as
the deserted spouse is concerned viz., (1) the absence of consent;
and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention.
From the material available on record, it is established that the
appellant-wife has deserted the respondent-husband for a
continuous period of not less than two years immediately
preceding the presentation of the divorce petition but the fact is
that she left the matrimonial home on 27.01.1997 and never tried
to return back and has no intention to restore the matrimonial ties
and that is supported by her own deposition in cross examination
as DW-1 that it was not possible for her to restore the conjugal
rights as she has preferred appeal against the judgment decree
of the ld.Family Court granting decree of restitution of conjugal
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rights to the respondent-husband and is not interested to give
divorce to him.
Thus, the factum of separation and her intention to bring
cohabitation permanently to an end (animus deserendi) stands
established. At the same time, she has failed to justify the
absence of consent and no justification has been offered giving
reasonable cause to her leaving the matrimonial home and this
what has been considered by the ld.Family Court in finally arriving
to the conclusion that the respondent-husband is able to make out
a case that the appellant-wife has deserted him without
reasonable cause or justification and we are satisfied that the
evidence of respondent-husband appears to be reliable whereas
the testimony of the appellant-wife is against her averments on
record which certainly not only belies her testimony but also
renders her unworthy of trust. The finding of fact which has been
recorded by the ld.Family Court of the appellant-wife has deserted
the respondent-husband without any reasonable cause or
justification is well established from the material on record and, in
our considered view, the finding is liable to be sustained and does
not call for interference.
The submission made by counsel for the appellant is wholly
without substance for the reason that u/Sec.23 of the Act, 1955, if
any proceedings are initiated under the Act of 1955, the court has
to record its satisfaction and make every endeavour to bring about
a reconciliation between the parties which in the instant case has
been completely abided by the ld.Family Court earlier at the stage
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when Sec.9 proceedings were initiated and so also when the
application came to be filed by the respondent-husband u/Sec.13
of the Act, 1955 seeking decree of divorce on the ground of
desertion and the pleadings on record established the finding that
the appellant-wife has deserted the respondent-husband and both
the conditions i.e. factum of separation and the intention to bring
cohabitation permanently to an end (animus deserendi) have been
established from the material on record.
So far as the submission made in respect of execution of
decree u/Sec.28A of the Act, 1955 is concerned, O.21 R.33 CPC
lays down the procedure for execution of decree for restitution of
conjugal rights which defence has not been taken by the
appellant-wife while filing written statement to the application filed
by the respondent-husband seeking decree of divorce u/Sec.13 of
the Act, 1955 and her only defence with which she came before
the court was that since her appeal against the judgment decree
for restitution of conjugal rights is pending before the High Court
she has a justification not to restore the matrimonial ties or
restore the conjugal relations and this cannot be considered at all
to be a defence and it is further established that efforts have been
made by the respondent-husband as possible for restitution of
conjugal rights but ultimately he failed and this fact cannot be
ruled out that marriage was solemnized on 15.04.1990 and there
is no issue from this wedlock and the appellant-wife left her
matrimonial home on 27.01.1997 and despite the decree of
restitution of conjugal rights being granted by the ld.Family Court
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still she has not complied with the same and even in the present
application she has not come with any justification and what has
been tendered by her is that she is not under any obligation to
comply with the restitution of conjugal rights because of the
appeal being preferred against the judgment decree and that is
nothing but a lame excuse but after the appeal and review being
dismissed, certainly no defence was available with the appellant-
wife which could support her defence and that apart in the given
facts circumstances, it cannot be ruled out that re-union is
impossible. They are living separately for almost 20 years by now
and it is also true that a good part of the lives of both the parties
has been consumed in this litigation and the end is not in sight
and it is a case of broken marriage and no workable solution is
possible and at this stage reconciling themselves and live together,
as prayed by the appellant-wife forgetting their past, is a bad
dream and no possibility can be ruled out.
So far as the appeal which has been preferred by the
appellant-wife against the order rejecting her application
u/Sec.125 Cr.P.C.is concerned, although no separate submissions
have been made by counsel for the parties but still we have gone
through the order impugned and find that substantial reasons
have been assigned by the ld.Family Court while rejecting her
application seeking maintenance u/Sec.125 Cr.P.C. which does not
call for interference by this Court.
In view of the foregoing discussion, the finding recorded by
the ld.Family Court being based on proper legal appreciation of
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the evidence on record, deserves to be upheld and the decree of
divorce granted by the ld.Family Court impugned dt. 26.02.2010
deserves to be sustained and does not call for any interference by
this Court in the instant proceedings.
Consequently, both the misc. appeals being devoid of merit
and substance are hereby dismissed. No order as to costs.
(ASHOK KUMAR GAUR)J. (AJAY RASTOGI)J.
Solanki DS, PS