HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 1664 / 2009
Hemant Sunariya S/o Shri Damodar Sunariya B/c Koli aged about
31 years R/o 13, Ganesh Colony, Jorawar Singh Gate, Modhovilas
Ke Pas, Jaipur.
—-Appellant
Versus
Smt Shanti wife of Shri Hemant Sunariya by caste Koli aged about
28 years R/o Chaukadi Topkhana Hazuri, Nala Bada Bhomiyo,
behind Madan Clinic, Ghat Gate, Jaipur.
—-Respondent
__
For Appellant(s) : Mr. Rahul Ghiya, Adv.
For Respondent(s) : Mr. Govind Gupta, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI

Judgment
29/11/2017

This civil misc. appeal is directed against the judgment dated

27.11.2008 whereby Ld. Family Judge No.1 Jaipur has rejected

the application filed under Section 13 of the Hindu Marriage Act of

1955 (Act of 1955) by the appellant/petitioner Hemant Sunariya

seeking divorce against the non-petitioner/respondent Smt.

Shanti.

The petitioner filed the said application on the ground of

desertion mentioning therein that the marriage between the

parties took place on 08.06.1998 as per hindu rites and rituals at

Jaipur. No issue was born out of the wedlock. Since beginning non-

petitioner behaved with the petitioner and his family members in

disgraceful manner and always insisted to go to her maternal

home. She left the matrimonial home just after five days of

marriage and stayed in her maternal home for five months.

Whenever petitioner went to take her back, she avoided to do so

on one or the other pretext. Ultimately on holding a caste
(2 of 8)
[CMA-1664/2009]

panchayat for mediation she returned to matrimonial home but

again left after staying only for seven days. On persuasion, she

again came back after one year but stayed only for 15 days and

left the matrimonial home on 10.8.2000 in absence of the

petitioner. When efforts were made by the petitioner and his

family members to bring her back she bluntly refused to come

back stating that she has left the matrimonial home forever. She

never showed any interest to fulfill her matrimonial obligation.

During the period of five years, she remained in the matrimonial

home only for 3-4 months.

In reply to the petition, non-petitioner refuted all the

allegations made by the petitioner. On the contrary, she alleged

that petitioner and his family members always meted cruelty to

her and treated her like domestic servant. She had not left

matrimonial home on her own but was forced to go away as the

petitioner wanted to remarry. On the death of her grand mother-

in-law, when she went to her matrimonial home in October, 2003

she was not allowed to stay there. She has also alleged that the

reason behind the crual attitude of her in-laws was demand of

dowry and other domestic articles like refrigrator, fan, etc. In fact,

petitioner himself has deprived her from the matrimonial pleasure

and she had been forced to take shelter in her matrimonial home.

In the reply filed by the petitioner, the allegations levelled by

the non-petitioner/wife of cruelty on account of dowry and forcing

her to stay away from her matrimonial home were completely

denied.

On the basis of the pleadings of both the sides, three issues
(3 of 8)
[CMA-1664/2009]

were framed by learned family Court as under:-

(1). Whether the non-petitioner has
deserted the petitioner without any
reasonable cause since 10.08.2000?

(2). Whether the non-petitioner was
treated with cruelty by the petitioner?

(3). Relief?

After recording evidence and affording opportunity of hearing

to both the sides, learned family judge dismissed the petition filed

under Section 13 of the Act of 1955 vide judgment impugned

dated 27.11.2008.

Learned counsel for the appellant/petitioner submits that

learned family judge has not appriciated the evidence in correct

perspective and has given his finding on the basis of the facts not

available on record. The petitioner has specifically proved the

averments made in the petition but his evidence has been

disbelieved without any reasonable and proper ground. It has

been proved by the petitioner husband that the non-petitioner

wife has deserted him for a period of more than 2 years but

learned family judge has drawn a perverse and wrong conclusion.

He submits that the appeal deserves to be allowed and the

judgment impugned is liable to be quashed and set aside.

Per contra, learned counsel appearing for non-petitioner has

supported the judgment impugned contending that the evidence

available on record has been properly appriciated by learned

family judge. There is no pervesity in the judgment impugned and

the appeal deserves to be rejected.
(4 of 8)
[CMA-1664/2009]

We have scanned the evidence available on record in light of

the arguments advanced by the rival sides.

The divorce petition has been filed by the

appellant/petitioner on the sole ground of desertion. Relevant part

of Section 13 of the Hindu Marriage Act (‘Act of 1955’) is as

under:-

“13. Divorce:- (1) Any marriage solemnised, whether
before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the
other party.
(i)—————————————————–
(ia)—————————————————-
(ib) has deserted the petitioner for a continuous
period of not less than two years immediately preceding
the presentation of the petition; or
—————————————————————-

—————————————————————-

—————————————————————-

—————————————————————-

[Explanation:- In this sub-Section, the expression
“desertion” means the desertion of the petitioner by the
other party to the marriage without reasonable cause and
without the consent or against the wish of such party,
and includes the wilful neglect of the petitioner by the
other party to the marriage, and its grammatical
variations and cognate expressions shall be construed
accordingly.]”

A bare look to the relevant provision explicitly lays down that

if any of the parties to the marriage has deserted the other side

for a continuous period of not less than 2 years immediately

preceding the presentation of the petition, decree of divorce can

be granted. The explanation attached to Section 13 mentions that

the expression “desertion” means the desertion of the petitioner

by the other party to the marriage without reasonable cause and

without the consent or against the wish of such party.

The petition under Section 13 of the Act of 1955 was filed by

petitioner/appellant on 21.07.2003. Learned trial Court has

arriaved at the conclusion that the parties have been residing
(5 of 8)
[CMA-1664/2009]

separately only since November, 2001 and thus statutory period of

two years required for granting the decree of divorce was not

completed on the date of filing of the petition. It was also the

finding of the learned Court that the non-petitioner has not

deserted the petitioner husband without any reasonable cause as

the wife was treated with cruelty by the husband and his family

members.

On careful examination of the evidence available we find that

no illegality has been committed by learned family Court. The

petitioner has mentioned in the petition under Section 13 of the

Act of 1955 that the non-petitioner wife left the matrimonial home

on 10.08.2000 and did not return back thereafter, but in his

examination-in-chief as PW-1, recorded on 30.04.2005, he has

stated that on the request of non-petitioner wife, four years ago

he himself took her to her maternal home and left there.

Indisputedly, this statement clarifies that in the year 2001 the wife

did not leave the matrimonial home on her own but was taken by

the petitioner husband himself. He has also admitted in the cross-

examination that he did not go to take his wife back from her

maternal home.

Elder brother of petitioner, Sita Ram (PW-3) has also stated

that the non-petitioner stayed with the petitioner till the year

2001. He has stated in his cross-examination that they could not

take the non-petitioner back to the matrimonial home despite her

wish, on account of the apprehension that she may involve them

in some criminal case after committing suicide. It shows that no

effort was made by the husband to take the non-petitioner back to
(6 of 8)
[CMA-1664/2009]

her matrimonial home.

PW-1 Sunil Kumar who happens to be neighbour and friend

of petitioner has also stated that the non-petitioner stayed in her

matrimonial home until the Diwali festival in the year 2001 and

then went to her maternal home and did not come back

thereafter. His statement also clearly shows that the non-

petitioner wife was staying till Diwali festival of the year 2001.

Learned trial Court, while referring to the calender, has observed

that in the year 2001 Diwali Festival was in third week of

November and thus concluded that till filing of the petition on

21.07.2003, statutory period of two years was not completed.

It is also pertinent to mention here that the wife non-

petitioner has been examined as DW-1 on 14.12.2005 who has

categorically stated that she wants to reside with the petitioner. In

view of this, it cannot be inferred that she has deserted her

husband. She has further stated that the petitioner took her to her

maternal home about two years ago and left her there and never

took her back nor any of his family members came to take her

back. The petitioner himself has deserted her for no reason and

has deprived her of the matrimonial pleasures. Taking the above

quoted statements of these witnesses into consideration, we find

no error in the conclusion drawn by learned trial Court. The

findings of Ld. Family Judge are well founded in view of the

statements referred above and do not call for any interference.

Besides this, learned family Court has also drawn the

conclusion in respect of issue No. 2 that the wife non-petitioner

was treated with cruelty by the husband and his family members
(7 of 8)
[CMA-1664/2009]

on account of demand of dowry. DW-1 Shanti, her uncle DW-2

Heeralal and neighbour DW-3 Ramesh Chandra has stated that

non-petitioner was being harassed by her in-laws for demand of

dowry and other domestic articles.

Shanti on being examined on 17.09.2008, has further stated

that the petitioner has married another lady namely Prem

daughter of Bhorilal and out of that wedlock, one girl child was

also born whose birth certificate (Ex.A1) has also been produced.

A look at Ex.A1 shows that a girl child was born on 14.11.2006 in

Pawan Nursing Home, the name of whose father and mother has

been mentioned as Hemant Kumar and Prem Devi, respectively.

DW1 Shanti has stated in her cross-examination that she has seen

Prem Devi alongwith Hemant in the Mahadev Temple at Joravar

Singh Gate on the day of Shivratri. She has also admitted that

some heated discussions took place between her and Prem Devi

on that day. She has further stated that she has seen Prem Devi

and petitioner living together and has denied the suggestion that

Prem Devi is the not wife of the petitioner but is his tenant. It is

pertinent to note that no evidence has been produced on behalf of

the petitioner in rebutal of the facts aforesaid.

It has been brought to the notice of this Court that in

background of these facts a criminal case for the offences under

Section 494 498-A IPC is pending trial against petitioner Hemant

Kumar. We therefore do not consider in proper to record any

finding in regard to these allegation of second marriage and the

demand of dowry. However, we are of the considered view that in

the background aforesaid, conduct of the non-petitioner wife does
(8 of 8)
[CMA-1664/2009]

not tantamount to desertion as defined under Section 13(1)(ib) of

the Act of 1955 and the explanation attached thereto.

We find no error in the judgment impugned dated

27.11.2008 of Ld. Family Judge, Jaipur rejecting the petition filed

under Section 13 of the Hindu Marriage Act by the

appellant/petitioner.

Accordingly, the appeal deserves to be and is hereby

dismissed.

(DEEPAK MAHESHWARI),J. (AJAY RASTOGI),J.

Arun/42