SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Raj Kumar Sharma vs Smt Manju on 24 January, 2018

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
(3 of 16)
[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
(4 of 16)
[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
(6 of 16)
[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
(8 of 16)
[CMA-3746/2012]

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
(11 of 16)
[CMA-3746/2012]

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
(12 of 16)
[CMA-3746/2012]

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
(13 of 16)
[CMA-3746/2012]

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
(14 of 16)
[CMA-3746/2012]

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
(15 of 16)
[CMA-3746/2012]

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
(16 of 16)
[CMA-3746/2012]

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/

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Group Rules, If You agree then JOIN HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh