Smt Nandani Singh vs Ranvijay Singh on 30 August, 2017

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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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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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

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