HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
Judgment
D.B. Civil Miscellaneous Appeal No. 3746 / 2012
Raj Kumar Sharma S/o Shri Ganpatlal Sharma, by caste Brahmin,
age 35 years, R/o.1-A, Bharamkook Ki Bagichi, Behind Santoshi
Mata Mandi, Jai Lal Munshi Ka Rasta, Purani Basti, Jaipur.
—-Appellant/Applicant/Husband
Versus
Smt. Manju W/o Shri Rajkumar Sharma D/o. Late Shri Meetha Lal
Sharma, aged 32 years, R/o. Khatiyon Ka Mohalla, Chomu, District
Jaipur.
—-Respondent/Non-Applicant/Wife
DB Civil Miscellaneous Appeal under
Section 19 of the Family Courts Act
against the judgment and decree
dated 25.08.2012 passed by Judge,
Family Court No.2, Jaipur in
Matrimonial Case No.459/2007.
__
For Appellant(s) : Mr. M.M. Ranjan, Sr. Adv. assisted by
Mr. Daulat Sharma, Adv.
For Respondent(s) : Mr. Tejashwi Sharma, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DINESH CHANDRA SOMANI
Date :: 24/01/2018
Per Dinesh Chandra Somani J.
The instant appeal has been preferred by the appellant-
husband under Section 19 of the Family Courts Act against the
judgment and decree dated 25.08.2012 passed by the Judge,
Family Court No.2, Jaipur (hereinafter referred as “the Family
Court”) in Matrimonial Case No.459/2007, whereby the petition
filed by the appellant-husband under Section 13 of the Hindu
Marriage Act for seeking divorce, was dismissed.
(2 of 16)
[CMA-3746/2012]
The skeletal material facts necessary for disposal of this
appeal are that the appellant-husband has filed a petition under
Section 13 of the Hindu Marriage Act (hereinafter referred to as
“the Act”) for seeking divorce on the ground of cruelty and
desertion with averment that the appellant was married to the
respondent on 28.04.1999 in Chomu District Jaipur according to
Hindu rites and customs. The marriage has not been registered.
Thereafter, the respondent-wife was living with the
appellant/husband at Bhrahmkoop Ki Bagichi, Jaipur City. Out of
the wedlock, the respondent-wife gave birth to a male child
named Roshan, who is presently 7 years 6 months old. This is
pleaded case of the appellant-husband that after marriage, he
came to know that the respondent-wife is suffering from mental
derangement and she behaves like distracted. The appellant-
husband got her treated. She had been fine for a while but after
sometime she started doing her own actions. Respondent-wife’s
brother Kailash took a loan of Rs.80,000/- from the appellant for
his son’s marriage and Pappu @ Hari Mohan took a loan of
Rs.50,000/- from the appellant for marriage of his own. When the
appellant-husband demanded the loan amount, the respondent-
wife started misbehaving with the appellant-husband on
instigation of her brothers. The respondent-wife used to blame
parents of the appellant-husband on false accusations, though
they were living at Kota.
It is also pleaded by the appellant-husband that alongwith
son, all the jewellery and clothes given to respondent-wife from
both sides, she went to her parents’ house to attend marriage of
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[CMA-3746/2012]
her brother Pappu @ Hari Mohan, but thereafter she did not come
back to her matrimonial home and she is staying there under
influence of her mother and brother. Despite request, respondent-
wife did not come to her matrimonial home even when the
appellant’s mother had an accident.
It is further pleaded that the appellant-husband, his parents
and relatives made several efforts for bringing the respondent-
wife back from her parents’ house but she did not come. On
15.01.2006, the appellant-husband himself went to the
respondent-wife for bringing her to matrimonial home but she
refused. Thereafter, the appellant-husband filed a petition for
restitution of conjugal rights. During conciliation, the respondent-
wife refused to live with the appellant-husband, despite payment
of maintenance allowance which was settled in Lok Adalat held on
11.09.2007. It is also stated that without any reasonable cause,
the respondent-wife has deserted the appellant-husband for more
than two years and prayed for dissolution of the marriage and
decree of divorce in his favour.
The respondent-wife filed her written statement. In the
written statement, the respondent-wife admitted the fact of
solemnization of marriage with the appellant, living together in
Jaipur as husband and wife and giving birth to a male child
Roshan, as pleaded in the divorce petition. The respondent-wife
denied all the allegations levelled by the appellant-husband in his
petition for dissolution of marriage with regard to cruelty and
desertion. It has been stated by the respondent-wife in her written
statement that the appellant-husband has filed the petition for
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[CMA-3746/2012]
restitution of conjugal rights for his escape as he had
apprehension of action under Section 498-A, 406 of IPC. But the
respondent-wife did not take action for 498-A, 406 of IPC,
therefore the appellant-husband himself withdrew the petition filed
under Section 9 of the Hindu Marriage Act.
It is also stated that the respondent-wife is physically and
mentally healthy. Brothers of the respondent-wife never took any
loan from the appellant-husband. The appellant-husband is a
person of angry nature, who used to give beatings to the
respondent-wife on petty matters. The appellant-husband was
demanding dowry and gave beatings to the respondent-wife and
drove her out of the house in November, 2003 to solemnize
second marriage and to get more dowry. The appellant-husband
himself has deserted the respondent-wife. It is also pleaded that
neither the appellant/husband came on 15.01.2006 to bring back
the respondent nor his relatives ever came to her and she prayed
to dismiss the husband’s petition for divorce.
On basis of the pleadings of the parties, learned Family Court
framed the following issues :-
1. Whether after solemnization of the marriage, non
petitioner-wife has treated the petitioner with cruelty
as alleged in the petition?
2. Whether the non petitioner-wife has deserted the
petitioner-husband for more than two years without
any reasonable excuse?
3. Relief?
(5 of 16)
[CMA-3746/2012]In support of the petition, the appellant-husband examined
AW-1 Raj Kumar Sharma, AW-2 Radhey Shyam, AW-3 Mahaveer
Prasad and exhibited five documents as Ex.1 to Ex.5. In defence,
the respondent-wife examined DW-1 Manju Sharma, and DW-2
Sugani.
The learned Family Court after evaluating and appreciating
the evidence available on record and after hearing both the
parties, arrived at a conclusion that the appellant-husband has
failed to prove that he was treated by the respondent-wife with
cruelty and that he was deserted by the respondent-wife for more
than two years and dismissed the petition filed by the appellant-
husband vide impugned judgment dated 25.08.2012.
Being aggrieved and dissatisfied with the impugned
judgment dated 25.08.2012, the appellant-husband has preferred
this appeal.
At the beginning of the arguments, Mr. M.M. Ranjan, Sr.
Advocate assisted by Mr. Daulat Sharma, Advocate appearing for
the appellant has fairly conceded that the “cruelty” is not proved
as alleged by the appellant-husband in his petition, and he
constrained his arguments only on second ground pleaded in the
petition for dissolution of marriage i.e. “desertion”. As such the
findings of learned Family Court on issue no.1 with regard to
“cruelty” does not require consideration of this Court and we have
to evaluate the evidence and pleadings of the parties in relation of
“desertion” only.
Learned senior counsel for the appellant-husband submitted
that it is proved from the evidence produced on record that in the
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[CMA-3746/2012]
year 2003, the respondent-wife went to her parents’ house to
attend the marriage of her brother. The appellant-husband also
attended the marriage. Thereafter, the appellant-husband came
back to his home but the respondent-wife did not return. After 15-
20 days, the appellant-husband went to the respondent-wife for
bringing her to matrimonial home but she did not come. The
appellant-husband went to the respondent-wife several times for
bringing her back. The appellant-husband went with his maternal
uncle Radhey Shyam, uncle Mahaveer Prasad and Vidhya Prakash,
brother-in-law Vinod also, who made efforts for bringing the
respondent-wife back from her parents’ house but they also failed
as she refused to come back.
Learned counsel also submitted that thereafter, the
appellant-husband filed a petition for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act in the Family Court,
Jaipur. Even then the respondent-wife did not return to her
matrimonial home, therefore the appellant-husband withdrew the
petition for restitution of conjugal rights and filed the petition for
dissolution of marriage. Learned counsel also submitted that
appellant’s mother had an accident but despite request, she did
not come to the matrimonial home. Conduct of the respondent-
wife is to neglect the appellant-husband willfully without his
consent and that too without any reasonable cause to leave the
matrimonial home. Therefore, the impugned judgment passed by
the learned Family Court requires interference of this Court and
prayed to quash and set aside the impugned judgment, and to
allow the appellant’s petition for dissolution of marriage.
(7 of 16)
[CMA-3746/2012]
Per contra, Mr. Tejashwi Sharma, learned counsel for the
respondent-wife controverted the submissions made by learned
senior counsel for the appellant-husband and supported the
impugned judgment passed by the Family Court.
Learned counsel for the respondent-wife submitted that it is
proved from the evidence that the appellant-husband used to give
beatings to the respondent-wife on petty matters. The appellant-
husband was demanding dowry and gave beatings to the
respondent-wife and drove her out of the house in November,
2003, since then the respondent-wife is living in her parents’
house. Learned counsel also submitted that the respondent/wife is
not living willingly in her parents’ house but in compelling
circumstances. It is also proved that the respondent-wife has not
neglected and deserted the appellant-husband, rather it is proved
that the appellant-husband himself has deserted the respondent-
wife and drove her out of the house after giving beatings, which is
reasonable excuse for the respondent-wife to live in her parents’
house. Learned counsel supported the impugned judgment passed
by the learned Family Court and prayed to dismiss the appeal
being devoid of merits.
We gave our anxious consideration to rival submissions of
learned counsel for the parties and perused the record of the case.
In order to prove his case, the appellant-husband examined
himself as AW-1 and produced two witnesses Radhey Shyam AW-2
and Mahaveer Prasad AW-3.
Appellant-husband Raj Kumar Sharma (AW-1) deposed that
the respondent-wife lived with him for three years. In the year
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2003, the respondent-wife alongwith the appellant-husband, went
to attend marriage of her brother. After 2-3 days, the witness
returned back but the respondent-wife did not come. After 15-20
days, the witness went for bringing the respondent to matrimonial
home. The witness went 15-20 times for bringing the respondent-
wife to matrimonial home. The respondent/wife told the witness to
come with uncle Mahaveer Prasad and Vidhya Prakash, maternal
uncle Ghanshyam. Then the witness went alongwith them but the
respondent-wife did not come. In the year 2005 and 2007, the
witness and his uncle went for bringing the respondent in the
marriage of his cousins but she did not come. Thereafter he filed a
petition for restitution of conjugal rights. Even then she did not
come, therefore he withdrew the case. The witness also stated
that the respondent-wife never came back to him after the year
2003. The witness further deposed that in the year 2007, his
father had a heart attack and the witness went to the respondent
for bringing her but she did not come. In 2008, mother of the
witness had an accident and he went for bringing the respondent
but she did not come. The respondent is living separately for last
7 years and she has willfully neglected him. In cross-examination,
the witness denied that the respondent would have sustained
injury in her right hand on account of beatings given by him.
Radhey Shyam (AW-2) is maternal uncle of the appellant-
husband. The witness deposed that after the marriage, the
respondent lived in her matrimonial home for about 3-4 years.
Thereafter, the respondent alongwith the petitioner went in the
marriage of her brother but she did not return after solemnization
(9 of 16)
[CMA-3746/2012]
of the marriage. After 5-7 days, Raj Kumar (the petitioner) went
for bringing the respondent but she did not come. The witness
also went for bringing the respondent, then mother of the
respondent told him to come with uncle and maternal uncle of the
petitioner. Then, the witness again went alongwith Mahaveer,
Vidhya Prakash and Vinod, even then the respondent did not
come. The witness also deposed that despite request, the
respondent did not come even in the marriage of daughters of
Mahaveer Prasad. The witness further deposed that the
respondent did not come even when father of the petitioner had
an heart attack in 2007 and mother of the petitioner had an
accident in 2008. Raj Kumar (the petitioner) filed a case for
restitution of conjugal rights, even then the respondent did not
come. The witness further deposed that now both of them cannot
live together. In cross-examination, the witness denied that the
petitioner ever gave beatings to the respondent. The witness
himself deposed that none of them ever told to him in this regard.
Mahaveer Prasad (AW-3) is uncle of the petitioner, who also
supported the case of the petitioner. The witness gave almost
similar statement and deposed that the respondent is living in her
parents’ house since 2003. The respondent went to her parents’
house to attend marriage of her brother but she did not return
thereafter. The witness also deposed that alongwith Radhey
Shyam and Vidhya Prakash, he went for bringing the respondent
but she did not come. The witness also deposed that he went for
bringing the respondent in the marriages of his daughters
solemnized in November, 2005 and in 2009 but she did not come.
(10 of 16)
[CMA-3746/2012]
The witness further deposed that he went for bringing the
respondent when father of the petitioner had a heart attack also
but she did not come. The respondent did not come also when
mother of the petitioner had an accident. The respondent is living
separately from 2003.
In rebuttal, Manju Sharma (DW-1), the respondent herself
deposed that the petitioner used to give her beatings on petty
matters. The petitioner is a person of angry nature. Once the
petitioner gave beatings and broke her left hand. The witness also
deposed that the petitioner and his family members used to
pressurize her for divorce to solemnize second marriage. Lastly in
November-2003, the petitioner gave beatings and drove her and
son Roshan out of the house, since then she is living in her
parents’ house. The witness also deposed that she did not file
dowry case against the petitioner. Now she does not want to live
with the petitioner but she does not want divorce. The witness
further deposed that the petitioner himself has deserted her since
November, 2003 without reasonable excuse. In cross-examination,
the witness stated that she is living separately from the petitioner
for last 8 years. The witness denied the suggestion that after
death of her grandmother-in-law, her uncle-in-law Jagdish Prasad,
Mahaveer Prasad and brother of the petitioner Prem would have
come for bringing her to matrimonial home. The witness admitted
that she did not go to console when her grandmother-in-law
expired.
Sugani (DW-2) is mother of the respondent-wife who
supported the case of the respondent and deposed that after some
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time of the marriage, the petitioner and his family members
started to give beatings to the respondent and they also gave
beatings when the respondent was eight months pregnant. Then
they brought the respondent to her parents’ house. The
respondent and her son are living with the witness for last 7-8
years. The witness also deposed that once the petitioner came for
bringing the respondent. In cross-examination, the witness
deposed that they made efforts for sending the respondent to her
matrimonial home but the petitioner threatened to break her hand
or to burn by acid. The witness also deposed that father, maternal
uncle and uncle of the petitioner came for bringing the respondent
but they told that they will give beatings to the respondent,
therefore she did not send the respondent with them.
In AIR 2002 SC 88 Adhyatma Bhattar Alwar vs.
Adhyatma Bhattar Sri Devi, the Apex Court in para 8 of it’s
judgment held as under:-
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
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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 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.
On analysing the evidence, it transpires that the respondent
herself did not depose that she was ever beaten by the petitioner
during her pregnancy. Whereas her mother Sugani (DW-2) gave
an exaggerated statement that the respondent was beaten by the
petitioner during her pregnancy. Therefore the evidence given by
Sugani (DW-2) cannot be relied upon without other corroborative
evidence. Further, she did not saw any alleged incident of beating
and misbehaviour of the appellant and she is a hearsay witness
only.
Case of the appellant-husband is that his father, relatives
and he himself made several efforts for bringing the respondent-
wife back to matrimonial home. In this respect, respondent-wife
Manju Sharma (DW-1) deposed that appellant-husband never
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came for bringing her to matrimonial home. She also stated that
father, uncle, maternal uncle of the appellant-husband never
came. Whereas mother of the respondent-wife, Sugani (DW-2)
deposed that father, maternal uncle and uncle of the appellant-
husband came for bringing the respondent-wife and once the
appellant-husband also came. Sugani (DW-2) in her cross-
examination, deposed that they made several efforts for sending
the respondent to her matrimonial home but the petitioner
(husband) threatened to break her hand or to burn by acid,
whereas respondent-wife Manju Sharma does not speak anything
about said threats. To show the intention to live together, the
respondent-wife stated that she used to contact the petitioner
(husband) through telephone, but no such suggestion was given
to the petitioner (husband) in his cross-examination. Thus, there
are contradictions on material facts in the evidence given by
respondent-wife herself and her mother Sugani (DW-2).
The necessary ingredients to prove the matrimonial offence
of “desertion” under Section 13 (1) (i-b) of the Hindu Marriage
Act, 1955 are as under :-
(i) The factum of separation; and
(ii) The intention to bring cohabitation permanently to an end-
animus deserendi.
From pleadings of the parties and evidence produced by
them, it is revealed that the appellant-husband has filed the
petition for dissolution of marriage on 20.11.2007 stating therein
that the respondent-wife is living separately and has deserted the
appellant-husband for more than two years. The respondent-wife
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has also pleaded that the appellant-husband gave beatings and
drove her out of the house in November, 2003. The appellant-
husband Raj Kumar deposed that the respondent did not return
after 2003. Radhey Shyam (AW-2) and Mahaveer Prasad (AW-3)
corroborated the version of the appellant. The respondent-wife
also stated that in November-2003, the husband drove her out of
the house and since then she is living in parents’ house. Thus
indisputably, from November-2013, the appellant and the
respondent are living separately. Thus, the factum of separation is
established.
It is reveled from the evidence on record that the
respondent-wife had gone to her parents’ house to attend
marriage of her brother solemnized in the year 2003, which
cannot be construed as her expression or her desire to forsake her
husband permanently but after marriage of her brother, the
respondent/wife did not return to the matrimonial home, though
efforts were made by the appellant-husband, his parents and
relatives. In the meantime, father of the appellant-husband had
heart attack and mother of the appellant-husband had an
accident, but the respondent/wife did not come to the matrimonial
home, despite requests and efforts for bringing her.
It is also revealed that in the meantime, grandmother of the
appellant-husband expired but the respondent-wife did not come
to the matrimonial home to console.
Mahaveer Prasad (AW-2) is uncle of the appellant-husband.
It also transpires that in the meantime, marriages of two
daughters of Mahaveer Prasad (AW-2) were solemnized in
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November, 2005 and 2009. Mahaveer Prasad (AW-2) himself went
for bringing the respondent/wife to the matrimonial home but she
did not come. There is nothing on record to suggest that the
respondent-wife ever expressed her desire to join her husband at
the matrimonial home. Moreover the respondent herself deposed
on oath that now she does not want to live with the petitioner.
The allegations of demand of dowry, beating and
misbehaviour of the appellant-husband as alleged by the
respondent-wife, are general in nature with no details. Admittedly,
the respondent-wife did not file any complaint in any Court/police
station with regard to alleged demand of dowry and the incidents
of beatings. The respondent-wife neither examined nor made any
prayer to the Family Court to summon any relative or neighbour of
the matrimonial home nor offered any explanation for not
producing/summoning such evidence to substantiate the
allegations of alleged demand of dowry, incidents of beating and
misbehaviour of the appellant-husband.
The Cumulative effect of the circumstances and conduct of
the respondent-wife is that she had given expression of animus
deserendi. Thus, both the ingredients of “desertion” i.e. (i)
factum of separation and (ii) animus deserendi have been
established by the appellant-husband. The conduct of the
respondent-wife seems to be more indicative of her firm
determination not to return to the matrimonial home and
discharge the obligation of matrimonial life.
Having regard to the facts and circumstance of the case the
learned trial Judge was not right to record the finding that the
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petitioner-husband has not established the case of desertion by
the respondent-wife and dismissed the petition for dissolution of
marriage filed by the appellant-husband. Therefore, the finding of
the learned Family Court qua the issue No.2 is not sustainable and
has to be set aside. The appellant-husband has satisfactorily
proved that the respondent-wife is guilty of having deserted him
for a continuous period of more than two years preceding the
filing of the petition for dissolution of the marriage and he is
entitled for a decree of divorce under Section 13 (1) (i-b) of the
Act, 1955. The appeal preferred by the appellant-husband
deserves acceptance.
Accordingly, the appeal is allowed, the judgment impugned
dated 25.08.2012 of the Family Court No.2, Jaipur is set aside.
Petition filed by the appellant-husband under Section 13 of the
Hindu Marriage Act, 1955 for dissolution of marriage is allowed
and marriage solemnized on 28.04.1999 between the appellant-
husband and the respondent-wife is dissolved from today and a
decree of divorce is granted in favour of the appellant-husband.
No costs.
(DINESH CHANDRA SOMANI),J. (AJAY RASTOGI),J.
Manish/