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A vs M on 3 July, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 3rd July, 2019
+ FAO 506/2002 CM No.18768/2009 (u/O VII R-7 CPC)
A ….. Appellant
Through: Mr. Sunil Mittal, Sr. Adv. with Ms.
Ekta Sikri, Ms. K. Gayatri, Ms.
Aishwarya Anand Mr. Arun
Sanwal, Advs.
versus
M ….. Respondent

Through: Mr. Rohit Kumar, Adv.

AND
+ MAT.APP. 87/2008 CMs No.12602/2008 (u/O XLI R-27
CPC) 18763/2009 (u/O VII R-7 CPC)
M ….. Appellant
Through: Mr. Rohit Kumar, Adv.

versus
A ….. Respondent
Through: Mr. Sunil Mittal, Sr. Adv. with Ms.
Ekta Sikri, Ms. K. Gayatri, Ms.
Aishwarya Anand Mr. Arun
Sanwal, Advs.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. FAO No.506/2002 has been preferred by the appellant husband
against the judgment (dated 2nd August, 2002 in HMA No.1103/01/96 of
the Court of the Additional District Judge, Delhi) of dismissal of his
petition for dissolution of marriage by a decree of divorce under Section
13(1)(ia) of the Hindu Marriage Act, 1955. The appellant husband had
also filed an application before the learned Additional District Judge
pointing out that certain judgments cited at the bar at the time of
addressing arguments did not find mention in the judgment. The

FAO 506/2002 MAT.APP. 87/2008 Page 1 of 33
application was disposed of vide order dated 23 rd August, 2002 of the
Additional District Judge. The order dated 23rd August, 2002 is also
impugned in the appeal.

2. The said appeal came up before this Court first on 24th September,
2002 when notice thereof was ordered to be issued. Vide order dated 14 th
January, 2004 the appeal was admitted for hearing. The appeal was listed
for hearing from time to time but for some reason or the other remained to
be heard.

3. MAT Appeal No.87/2008 has been preferred by the appellant wife
against the judgment and decree (dated 30th May, 2008 in HMA
No.233/2008 of the Court of Additional District Judge, Delhi) allowing
the petition of the husband for dissolution of marriage by a decree of
divorce under Section 13(1)(ib) of the Hindu Marriage Act and resultantly
dissolving the marriage of the parties. The said appeal came up first
before this Court on 3rd September, 2008. Vide order dated 8th September,
2008, notice of the appeal was ordered to be issued and it was ordered
that the husband shall not remarry till the next date of hearing. Vide order
dated 30th January, 2009, the appeal was admitted for hearing and the
interim order confirmed till the disposal of the appeal.

4. Trial Court records of both the appeals were requisitioned and have
been received. Efforts made from time to time for amicable settlement did
not succeed. Since 8th December, 2011, the appeals are being taken up
together for hearing.

5. The appeals came up before me on 12th September, 2018 when
hearing of the appeal of the wife against the judgment and decree granting

FAO 506/2002 MAT.APP. 87/2008 Page 2 of 33
divorce on the ground of desertion was commenced and the counsel for
the wife argued (i) that the husband alleges desertion w.e.f. 14th January,
1995; (ii) that the husband , on 12th October, 1996 instituted the petition
for dissolution of marriage by a decree of divorce on the ground of
cruelty; (iii) that it is only thereafter on 8th September, 2000 that the
petition for dissolution of marriage by a decree of divorce on the ground
of desertion was filed; (iv) that to be able to sue for dissolution of
marriage on the ground of desertion, desertion for a period of two years is
necessary; and, (v) that the husband, prior to the expiry of the said period
of two years, applied for divorce on the ground of cruelty and whereafter
it was not possible for the wife to join cohabitation with the husband; the
filing of the divorce petition on the ground of cruelty was a message to the
wife that the husband does not want to live with the wife.

6. On enquiry it was informed that before 14th January, 1995, the wife
was employed with the Central Government Health Scheme (CGHS) at
Jaipur, was at Jaipur and the husband who was employed with the
Revenue Services, was posted at Agra, but the parties together availed of
Leave Travel Concession (LTC) in December, 1994/January, 1995.

7. Though the counsel for the wife, on 12th September, 2018 relied on
Shakuntala Kumari Vs. Om Parkash Ghai AIR 1981 Del 53 on the
proposition that on filing a petition for dissolution of marriage on some
other ground during the statutory period of two years of desertion, no case
for desertion can be made out but the judgment was not found to be laying
down any such absolute proposition of law and was found to be on its
own facts. The counsel for the wife on that date also cited Madan Mohan

FAO 506/2002 MAT.APP. 87/2008 Page 3 of 33
Manna Vs. Chitra Manna AIR 1993 Calcutta 33 (DB) in this regard, but
it was found that in that case the petition for divorce on the ground of
desertion was filed before completion of two years and in the said context
it was held that time spent after filing of petition could not be counted for
computing period of desertion.

8. On further enquiry on 12th September, 2018, it was informed that
the husband was present in Court and was then posted at Mumbai and the
wife continued to be posted at Jaipur but was not present in the Court. It
was the contention of the senior counsel for the husband that the parties
lasted together for only eight years and there were no issues of the
marriage.

9. In the aforesaid circumstances, on 12th September, 2018, it was yet
further enquired from the counsel for the wife, whether the wife was
willing to make any efforts for joining cohabitation with the husband at
Mumbai.

10. The counsel for the wife stated that he will have to take instructions
but also contended that the appeals have to be decided on the material on
record.

11. Being of the opinion that the intention of a spouse can be known
from the conduct of the spouse and if the wife is not anxious to save her
marriage by appearing in the Court and/or joining cohabitation, that will
be a factor to be considered, the hearing was adjourned to 13th September,
2018 for the wife of appear in the Court.

12. The wife appeared on 13th September, 2018 and stated that she will
join the husband at Mumbai on 15th September, 2018.

FAO 506/2002 MAT.APP. 87/2008 Page 4 of 33

13. The husband was made to furnish his residential address at Mumbai
to the wife and the hearing adjourned to 5th October, 2018 recording that
in the event of the parties not continuing to live together, what had
transpired will not affect the rights of the parties in the appeal.

14. On 5th October, 2018 the counsel for the wife on enquiry informed
that the wife did not go to Bombay “as she panicked on the apprehension
that the husband is staying with his second wife”.

15. In the circumstances, the counsels were heard further on 5 th
October, 2018 and 10th October, 2018 and orders reserved. The senior
counsel for the husband handed over a note of submission and the counsel
for the wife was also given similar liberty.

16. I have perused the records and considered the submissions.

17. The judgment of dismissal of the petition for divorce on the ground
of the wife having treated the husband with cruelty records:-

(i) that the parties were married according to Hindu rites and
ceremonies on 20th October, 1988 at Delhi;

(ii) though the marriage was consummated but no child was born
of the wedlock;

(iii) that it was the case of the husband that:-

(a) at the time of finalization of marriage it was
represented to him that the wife was born on 3rd
September, 1962 and was not working anywhere and
had taken admission in Master of Science (M.S.) in
S.M.S. Medical College, Jaipur;

FAO 506/2002 MAT.APP. 87/2008 Page 5 of 33

(b) the wife from the beginning used to keep herself
elusive and aloof from the husband and used to quarrel
over trivial matters;

(c) the wife did not pay any respect to the elders of the
house and never wished or touched their feet;

(d) the wife was aloof and quarrelsome during the
honeymoon period in Kathmandu also and was in the
habit of concealing things from the husband;

(e) the husband, after marriage had to leave for Madras for
his training and though wanted the wife to accompany
him but she initially refused and agreed after much
persuasion;

(f) on reaching Madras, the wife complained about the
accommodation and threatened to leave for her parents
house in Jaipur;

(g) on 27th November, 1988, a letter was received from the
father of the wife asking the wife, to reach Jaipur or
she would lose her job;

(h) the husband on that day came to know that the wife
was working on ad hoc basis as a doctor in CGHS and
which fact was never disclosed;

(i) on receiving the letter, the wife insisted on leaving for
Jaipur;

FAO 506/2002 MAT.APP. 87/2008 Page 6 of 33

(j) though the parents of the husband received the wife at
the Delhi Airport and offered to drop her to Jaipur in
their car but the wife said that she did not want to live
at their mercy and said that they should leave for their
graves in that car;

(k) though the husband tried to contact the wife but the
wife did not respond to any of his letters;

(l) in November, 1988 when the wife went to her parental
home at Jaipur, she was pregnant and when the
husband reached Jaipur in February, 1989, he was told
that the wife had got the pregnancy terminated;

(m) the husband was posted to Allahabad in April, 1989
but the wife refused to join him and asked the husband
to get himself posted at Jaipur;

(n) the husband applied for transfer and got himself
transferred to Jaipur but the wife did not sleep with the
husband saying that the husband was not worthy of
that and was a nincompoop;

(o) the wife refused to stay in the official accommodation
allotted to the husband at Jaipur and did not even visit
the husband in June, 1989 when the husband was ill;

(p) the husband met with an accident on 29 th April, 1990
while coming from Delhi to Jaipur and suffered
multiple fractures and injuries;

FAO 506/2002 MAT.APP. 87/2008 Page 7 of 33

(q) though the wife was informed of the same but still did
not visit the husband;

(r) the husband returned to Jaipur in June, 1990 and again
asked the wife to join him in the official

accommodation and after much persuasion, the wife
agreed in July, 1990;

(s) the husband and wife visited Delhi on 10th August,
1990 to celebrate the birthday of the husband with the
parents of the husband;

(t) the behavior of the wife towards the parents of the
husband was abusive and she used to vanish from the
house of the parents of the husband for hours at time
without disclosing her whereabouts;

(u) when the husband enquired about her whereabouts
from the wife, she in a fit of rage sat on the fractured
arm of the husband, causing another fracture;

(v) the wife also threatened to lodge a false criminal case
against the husband and his family members and called
the Police; however, no case was registered against
him and the wife left for her parental home.

(w) in August, 1990, the husband was at Kanpur; in
September, 1991 the wife reached Kanpur with her
parents; on the asking of the parents of the wife, the
wife agreed to live at Kanpur with the husband;

FAO 506/2002 MAT.APP. 87/2008 Page 8 of 33

(x) however there was no change in the behavior of the
wife; on 25th October, 1991 when the husband was at
his office, the wife called him and threatened to
commit suicide and accused the husband of having a
loose character and picked up her baggage and left for
Jaipur;

(y) the husband, in October, 1992 was posted at Agra and
again went to Jaipur in December, 1992 and asked to
wife to get herself transferred to Agra; after much
persuasion the wife joined the husband at Agra but
refused to join the husband for official dinners and
used to create a scene by insulting the husband in the
presence of his friends and once in a fit of rage also
tore up the marriage album;

(z) however, the wife refused to get herself transferred to
Agra though visited the husband twice thereafter at
Agra in March 1993 but did not allow the husband to
have any physical relations with her;

(aa) the wife, even during her visits to Agra quarreled with
the visitors as well as the mother of the husband and
used to leave for Jaipur whenever she wanted;

(ab) though the wife visited the husband at Agra on Diwali
in the year 1994 but refused to meet any guests and
again suddenly left for Jaipur;

FAO 506/2002 MAT.APP. 87/2008 Page 9 of 33

(ac) the husband, in an effort for reconciliation asked the
wife to avail of LTC to Madras, Bangalore and
Trivandrum; though the wife agreed but throughout
quarreled and did not allow any physical relations and
immediately on return to Agra left for Jaipur from the
Railway Station itself;

(ad) the husband, between January and May, 1995 made
several telephone calls to the wife at Jaipur but the
wife refused to talk;

(ae) on 10th May, 1995, the wife visited the husband at
Agra and said that she wanted a settlement and again
left for Jaipur in the middle of the night; and,

(af) all the said acts of the wife have caused mental cruelty
to the husband and his family members.

18. The judgment records that the wife contested the petition for
divorce on the ground of cruelty inter alia pleading that:-

(i) as per the averments in the petition for divorce itself, the
husband from time to time had condoned the alleged acts of
cruelty;

(ii) was improper delay of over eight years in instituting the
petition;

(iii) in November, 1988 when the husband went to Bombay for
training, as per joint understanding the wife joined CGHS at
Jaipur;

FAO 506/2002 MAT.APP. 87/2008 Page 10 of 33

(iv) the husband‟s parents did not want the marriage to continue
and when the wife came to Delhi on learning of the accident
of the husband and the husband‟s parents did not allow her to
stay there;

(v) when the husband was transferred to Kanpur, the wife pleaded
with him not to leave her alone at Jaipur but the husband said
that he will first have to seek permission of his parents;

(vi) the wife was always humiliated by the parents of the
husband;

(vii) the husband did not want the wife to give up her profession
and wanted the wife to continue to work so as to supplement
their income;

(viii) when the husband was posted at Delhi, the wife also applied
for transfer to Delhi but the husband did not help her in the
same by sponsoring her;

(ix) though the wife got herself medically examined because no
child of the marriage was being born and was found to be
normal and healthy and fit for child bearing but the husband
refused to have himself medically examined;

(x) the wife‟s parents had informed the husband‟s family at the
time of finalization of marriage that the wife had joined
CGHS on ad hoc basis and had left her postgraduation;

(xi) though no dowry demand was made but the expectations of
the husband‟s family were very high;

FAO 506/2002 MAT.APP. 87/2008 Page 11 of 33

(xii) the husband himself is inhuman, short tempered, ill natured
and untruthful in his behavior and used to humiliate and
insult the wife;

(xiii) the wife never conceived and thus the occasion for
termination of pregnancy did not arise;

(ix) the husband, even at the time of marriage was suffering from
tuberculosis but the said fact was hidden from the wife and
her family;

(x) the LTC tour was also as per the convenience of the husband
who did not care for the convenience of the wife;

(xi) it was the husband who wanted the wife to agree to mutual
divorce and even offered expenses of marriage borne by the
family of the wife; and,

(xii) the petition for dissolution of marriage had been filed only
after failing to persuade the wife to agree for divorce by
mutual consent;

19. The learned Additional District Judge, on the basis of pleadings and
the evidence led before him, dismissed the petition for dissolution of
marriage by a decree of divorce on the ground of cruelty reasoning that (i)
the husband failed to prove that he was not aware of the employment of
the wife at CGHS, Jaipur; (ii) on the contrary the husband, in his cross-

examination had admitted that from 10th October, 1988 to 1st November,
1988 the wife was on earned leave for marriage and honeymoon purpose
and from 19th December, 1988 to 23rd December, 1988 the wife had taken

FAO 506/2002 MAT.APP. 87/2008 Page 12 of 33
casual leave and this admission showed that the husband was aware of the
employment of the wife at Jaipur at the time of his marriage inasmuch as
without employment there would have been no question of „earned leave‟
or „casual leave‟; (iii) the wife would not have benefited from concealing
her employment and rather it was a matter to be proud of; (iv) the husband
had not pleaded or deposed of having asked the wife to quit her job at any
time or that he had any objection to the employment of the wife; (v) rather
the husband at one time, on the ground of his wife working at Jaipur, had
sought a transfer to Jaipur; (vi) in one of the letters of the husband to his
employer, he also mentioned that his wife had been recommended to
UPSC for permanent selection in CGHS; (vii) the husband had also failed
to prove that the wife was pregnant at any time during the marriage or
had got her pregnancy terminated; (viii) it was unbelievable that a
newlywed, who according to the husband was eager to know about her
pregnancy soon after the marriage, would, without any rhyme or reason
undergo abortion; (ix) no dates had been given when the wife allowed the
husband to have sexual intercourse and when she refused; (x) had the wife
undergone an abortion, the husband would have led evidence of clinic
where the abortion was got done; (xi) the husband had also failed to give
any reason as to why the wife did not conceive thereafter; (xii) no
particulars had been given by the husband of the hospital in which he was
admitted after his accident, for how much duration he remained there and
when was the wife informed of the same; (xiii) the wife was not going to
be benefitted by not taking care of the husband at the time of his accident;

(xiv) the wife is not expected to travel a long distance just to spend 10-11
minutes with the husband; (xv) the fact that the wife left the matrimonial

FAO 506/2002 MAT.APP. 87/2008 Page 13 of 33
home so soon after her arrival showed that she was not accorded proper
treatment at the matrimonial home; (xvi) the husband had not proved that
the wife made any false allegations or accusations against him; (xvii) the
husband had failed to prove the other acts of cruelty; (xviii) the wife,
being an educated lady cannot be expected to have behaved in the manner
alleged by the husband; (xix) the wife cannot be expected to have sat on
the arm of the husband or to have misbehaved with her mother-in-law or
sister-in-law; (xx) the mother and sister of the husband had not been
examined; (xxi) though the husband had examined his colleague but his
testimony has to be perused with caution, being an interested witness;
(xxii) the wife, being a working lady was having her own compulsions
and could not be expected to reside with the husband, especially when it
was not the case of the husband that he had asked the wife to quit her
job;(xxiii) the job of the husband was also a transferable job and it was
humanly impossible for the wife to get herself transferred to each of the
places where the husband was posted; (xxiv) thus non-residence of the
wife with the husband was for the reason of her employment ;(xxv) the
wife could not be expected to not have a natural instinct to become a
mother; (xxvi) rather it had emerged that the wife had joined the company
of the husband from time to time after availing leave from her department;
(xxvii) had the wife not wanted to reside with the husband, she would not
have taken leave from time to time to reside with the husband; (xxviii) the
husband had failed to prove that wrong date of birth of the wife was
represented at the time of marriage; (xxix) no specific instance of cruelty
after the LTC tour had been proved and the alleged instances of cruelty of
prior thereto stood condoned by the parties undertaking a joint LTC tour

FAO 506/2002 MAT.APP. 87/2008 Page 14 of 33
and visiting various places; (xxx) irretrievable break down of marriage is
not a ground for divorce under the SectionHindu Marriage Act; and, (xxxi) even
though the marriage between the parties seemed to have irretrievably
broken down, no relief could be granted to the husband.

20. The judgment allowing the petition for divorce on the ground of
desertion records:-

(i) the case of the husband, in addition to what was pleaded in
the petition for divorce on the ground of cruelty, to be:

(a) that the wife on returning from the LTC tour on 14th
January, 1995, left for Jaipur from Agra Railway
Station itself;

(b) the husband made several telephone calls to Jaipur
between January and May, 1995 and spoke to the
parents of the wife;

(c) the wife refused to talk to the husband;

(d) the husband even rang up at the office of the wife and

tried to reason with the wife but she was abusive and
hung up the phone;

(e) the wife visited the husband on 10th May, 1995 and
said that she wanted a settlement;

(f) the husband tried to reason with the wife but the wife
flew into rage and returned to Jaipur stating that she
was not interested in the husband and the husband
should not even try to talk to her;

FAO 506/2002 MAT.APP. 87/2008 Page 15 of 33

(g) the wife had thus deserted the husband on 14th January,
1995 and had brought the marital relationship to an
end; and,

(h) the attempts of the husband to make the marriage
survive had proved futile;

(ii) that the wife had contested the petition for dissolution of
marriage by a decree of divorce on the ground of desertion,
besides on what was pleaded in the written statement in the
petition for divorce on the ground of cruelty, pleading:-

(a) that after 14th January, 1995,the wife had visited and
cohabited with the husband at Agra in March, 1995 to
celebrate Holi and thereafter both had visited Mathura
and Vrindavan;

(b) the wife had again visited the husband in May, 1995 at
Agra when the husband informed the wife that he was
likely to get transferred from Agra and both of them
had planned to get posted to a place where could both
live together;

(c) the husband got transferred to Delhi and the wife
visited Delhi and lived in the parental house of the
husband;

(d) the husband had visited the wife in October, 1995 at
Jaipur where it was decided that the wife would get
transferred to Delhi;

FAO 506/2002 MAT.APP. 87/2008 Page 16 of 33

(e) though the parties had also decided that the wife would
visit the husband for Diwali but the husband did not
confirm;

(f) in December, 1995 the wife sent her transfer
application to the husband at Delhi but he did not co-
operate and sponsor her for the same;

(g) in January/February, 1996 the wife repeatedly tried to
contact the husband on telephone but the husband
avoided;

(h) in May, 1996 the husband informed the wife over
telephone that he was going abroad and wanted to
settle and asked for divorce;

(i) in July, August and September, 1996 the wife, her
parents and other relatives visited Delhi for settlement
but no settlement agreed by the husband; and,

(j) the husband cannot be permitted to take advantage of
his own wrong.

21. The learned Additional District Judge has dissolved the marriage of
the parties on the ground of desertion by the wife, reasoning that (i) there
was no cross-examination of the husband on his deposition that he was
not aware before marriage that the wife was working; (ii) there was no
cross-examination of the husband qua his deposition that he learnt of the
same only on the receipt of letter at Madras from the father of the wife;

(iii) though the wife in her cross-examination has denied receipt of any

FAO 506/2002 MAT.APP. 87/2008 Page 17 of 33
such letter but in her cross-examination in the proceeding for divorce on
the ground of cruelty had admitted to the same; (iv) the wife was thus
indulging in falsehood with respect to receipt of the letter; (v) in the
absence of any cross-examination of the husband, his claim that he was
not aware prior to marriage of the employment of the wife with CGHS at
Jaipur has to be believed; (vi) the husband had also proved that in the
matrimonial advertisement got issued by the family of the wife it was
represented that the wife was doing her postgraduation and was not
employed; (vii) the husband had also proved that though he got himself
posted to Jaipur but the wife did not join him in the official
accommodation allotted to him at Jaipur; (viii) the wife in her cross-
examination admitted that the husband lived at Jaipur from 12th April,
1989 till September, 1990; (ix) the statements of the wife about residing
with the husband in the house allotted to him at Jaipur were contradictory;
she could not even give the address of the house allotted to the husband
and admitted that she was throughout that period drawing House Rent
Allowance (HRA) from her department and in her official records her
residence during the period was the residence of her parents and that she
had not informed her office of the change of her address to that of the
address of her husband; (x) the wife could not even remember the names
of the neighbours also of the official accommodation of the husband at
Jaipur; (xi) it thus stood proved that the wife had refused to join the
husband even when the husband was living in Jaipur; (xii) though the wife
claimed to have visited the husband and lived with the husband at Agra
but again could not prove the same and made contradictory statements;
she could not tell anything about the official accommodation allotted to

FAO 506/2002 MAT.APP. 87/2008 Page 18 of 33
the husband at Agra as she would have known had she been visiting every
month as claimed by her; the husband has succeeded in proving that from
the very beginning of the marriage he was not informed that the wife was
employed at Jaipur;(xiii) that the wife had not made any genuine efforts to
make herself transferred on the place of posting of the husband which was
either at Kanpur or Agra; (xiv) that the version of the wife that she had
given a transfer application to the husband could not be believed as the
application has to be made to her own department and not to the
department of the spouse; the husband could not have moved the
application in his department; (xv) it thus could not be said that the
husband did not take interest in getting the wife transferred to the place of
his posting; (xvi) it was not disputed by the wife that she, from the
beginning knew that the husband is from Indian Revenue Service which
was an all India transferable job; (xvii) it was not the case of the wife that
there was any understanding at the time of marriage that she will continue
to work at the same place and not at the place of posting of the husband;
(xviii) the husband had also successfully proved that despite him getting
himself transferred to Jaipur, the wife did not live with him in Jaipur;
(xix) thereafter also the wife had visited the husband for short periods
only; (xx) the wife had not stayed for a single day with the husband after
returning from the LTC tour; (xxi) therefore it stood proved that the wife
was interested in continuing with her job and living with her parents
except for brief periods when she lived with the husband; (xxii) keeping
in view the nature of the job of the husband, the husband could not be
expected to permanently live with the wife at Jaipur; (xxiii) in the
circumstances it was for the wife to make all efforts to join conjugal

FAO 506/2002 MAT.APP. 87/2008 Page 19 of 33
society of the husband; the husband had shown his intention by getting
himself transferred to Jaipur; (xxiv) on the contrary, the wife had failed to
show any animus to live with the husband; the burden to prove that the
wife had reasonable cause to stay away from the husband was on the wife
and the wife had failed to discharge the same; (xxv) though the wife had
alleged that she and her parents were harassed but no evidence in this
regard was led and no cross-examination of the husband also on the said
aspect was done; (xxvi) the claim of the wife of having visited the
husband in June, 1996 was contradictory to her statements in the earlier
proceedings; and, (xxvii) the husband had thus established that the wife
had deserted him for two years immediately prior to the filing of the
petition.

22. With respect to MAT Appeal No.87/2008, the counsel for the wife
argued that (i) the husband has nowhere said that he provided house with
material comforts and made requisite efforts for the wife to reside with
him; (ii) desertion is claimed by the husband on 14 th January, 1995; (iii)
however the petition on the ground of desertion was filed only on 8th
September, 2000; (iv) prior thereto on 12th October, 1996 the husband
filed the petition for divorce on the ground of cruelty; (v) that it is the case
of the wife that the parties have cohabited after 14th January, 1995 also;

(vi) the husband admits the wife to have visited and resided with the
husband on 10th May, 1995; (vii) that the wife had joined CGHS on ad
hoc basis in April, 1988 i.e. shortly prior to her marriage on 20 th October,
1998; (viii) that the wife gained permanent employment with CGHS in the
year 1992, w.e.f. September, 1991; (ix) that the husband was not
interested in the wife residing with him; (x) the wife not staying at

FAO 506/2002 MAT.APP. 87/2008 Page 20 of 33
husband‟s place may not be cruelty but is desertion; (xi) however once the
husband files a petition for divorce on the ground of cruelty, the wife
could not be expected to join the husband; (xii) the husband, by filing the
petition for divorce, made it known to the wife that he was not interested
in living with the wife and the wife in such circumstance cannot be said to
have deserted the husband; reliance is placed on Pal Rampal Vs. Santosh
Rampal 28 (1985) DLT 102, where also the husband filed petition for
divorce first on the ground of cruelty and thereafter on the ground of
desertion ;it was observed that on the husband‟s allegation that it was
dangerous to live with his wife because of her acts of cruelty, it can be
definitely said that he was not willing to keep the wife in the matrimonial
home; for proving the ground of desertion it must be established by the
husband that he was willing to live with the wife but the wife was
avoiding cohabitation by deserting the husband; when the husband filed
for divorce on the ground of desertion he was availing the same period
during which he alleged that the wife was practicing cruelty – it would
thus result into two inconsistent positions in law; the husband is not
willing to keep the wife but at the same time, for the purposes of
desertion, he is ready to keep her but she is avoiding his company; (xiii)
that the husband, in the petition first filed on the ground of cruelty did not
say that he wanted to live with the wife; (xiv) reliance is placed on
Bipinchandra Jaishinghbai Shah Vs. Prabhavati AIR 1957 SC 176,
stated to be the first judgment on dissolution of marriage on the ground of
desertion and it was argued that the same has been followed ever since;

(xv) on the filing of the petition on the ground of cruelty, desertion came
to an end and owing thereto burden never shifted on the wife to prove

FAO 506/2002 MAT.APP. 87/2008 Page 21 of 33
reason for her not cohabiting with the husband; (xvi) that the husband
since the year 1996 is having a relationship with another lady; that the
wife filed CM No.18763/2009 in this regard in MAT Appeal No.87/2008,
in reply whereto the husband admitted to the presence of the said woman
in his house though gave an explanation therefor.

23. Per contra, the senior counsel for the husband, qua MAT Appeal
No.87/2008 contended (i) that the impugned judgment rightly records that
the counsel for the wife had not cross-examined the husband on material
aspects; attention in this regard was drawn to the evidence led; (ii) that the
wife nowhere in the written statement pleaded that she was unable to join
cohabitation of the husband because of the husband having filed the
petition for divorce on the ground of cruelty; (iii) that the wife nowhere
during the pendency of the petition for divorce alleged that the husband
was residing with another woman or the wife was unable to join him for
the said reason; (iv) merely a visit pleaded of 10th May, 1995 does not
amount to cohabitation; and, (v) it is not even the evidence of the wife that
she cohabited with the husband on 10th May, 1995.

24. The counsel for the wife, in rejoinder argued (i) that the wife learnt
of the husband residing with another woman only in the year 2009 and
thus had no occasion to bring it up during the pendency of the petition for
divorce; and (ii) referred to Shakuntala Kumari supra holding that by
filing a petition for annulment of marriage on the ground of impotency of
the deserting spouse, the husband made it clear that he was neither ready
nor willing nor anxious to take the deserting spouse back and he wanted
the marriage to be treated as if non-existent and the deserting spouse even

FAO 506/2002 MAT.APP. 87/2008 Page 22 of 33
if had a unilateral change of heart thereafter and wanted to return to the
matrimonial home, she could no longer do so; (iii) referred to Darshan
Gupta Vs. Radhika Gupta (2013) 9 SCC 1 holding that the grounds of
divorce provided under Section 13(1) of the Hindu Marriage Act are
based on the „fault‟ of the party against whom dissolution of marriage is
sought; in matrimonial jurisprudence, such provisions are founded on the
„matrimonial offence theory‟ or the „fault theory‟; under this
jurisprudential principle, it is only on the ground of an opponent‟s fault,
that a party may approach a Court for seeking annulment of his/her
matrimonial alliance; in other words, if either party is guilty of
committing a matrimonial offence, the aggrieved party alone is entitled to
divorce; the party seeking divorce under the “matrimonial offence theory”
must be innocent; if a husband‟s act of cruelty compels a wife to leave her
matrimonial home, whereupon she remains away from the husband for the
stipulated duration, it would not be open to a husband to seek dissolution
of marriage, on the ground of desertion; (iv) referred to Madan Mohan
Manna Vs. Chitra Manna AIR 1993 Calcutta 33 holding that a petition
for desertion before completion of two years of marriage is premature and
time spent after filing of petition could not be considered for computing
the period of desertion; (v) referred to Lachman Utamchand Kirpalani
Vs. Meena AIR 1964 SC 40 laying down the ingredients of the ground of
desertion; and, (v) referred to Bipinchandra Jaishinghbai Shah supra
also explaining what constitutes desertion.

25. The senior counsel for the husband has in the context of long
distance marriages referred to Geeta Jagdish Mangtani Vs. Jagdish
Mangtani (2005) 8 SCC 177 where, finding that (i) the marriage survived

FAO 506/2002 MAT.APP. 87/2008 Page 23 of 33
only for a brief period of about seven months; (ii) there had been no
attempt on the part of the wife to stay with the husband; and, (iii) the wife
was a school teacher enjoying long summer vacations but even during the
summer vacations had not stayed with the husband, desertion on the part
of the wife was concluded observing that a course of conduct over a long
period indicates total abandonment of marriage and cannot be justified on
ground of monetary consideration alone as a reasonable cause to desert.

26. The senior counsel for the husband, challenging the judgment
impugned in FAO No.506/2002 argued (i) that during the subsistence of
the marriage from 20th October, 1988 to 14th January, 1995 i.e. for six
years three months, the wife lived with the husband for 111 days i.e. less
than four months only; (ii) that the parties have been litigating for the last
22 years; (iii) the learned Additional District Judge, though held the
marriage to have irretrievably broken down, dismissed the petition
holding cruelty to have not been proved; (iv) that the husband was not
looking for a „long distance‟ or „week end‟ marriage; (v)
misrepresentation by the wife and her family at the time of finalization of
marriage and the insistence of the wife to continue to work at CGHS has
resulted in a long distance marriage of the parties; (vi) the learned
Additional District Judge has erred in not believing misrepresentation on
the part of the wife; (vii) had the factum of employment been disclosed to
the husband, the wife would have known the date till when the wife had
leave and there would have been no occasion for the father of the wife to
have sent an SOS letter to Madras, receipt whereof has been admitted by
the wife; (viii) though the wife took a stand that she lived with the
husband from time to time and which was denied by the husband but did

FAO 506/2002 MAT.APP. 87/2008 Page 24 of 33
not prove the same by producing her leave record which was the best
evidence; (ix) the learned Additional District Judge has believed the
unproven version of the wife instead of drawing adverse inference; (x) the
learned Additional District Judge, from the factum of the wife continuing
to draw HRA, should have believed the version of the husband that inspite
of the husband taking a posting at Jaipur, the wife refused to reside with
the husband in the house at Jaipur; had the wife so lived in the official
accommodation of the husband at Jaipur, she could not have drawn HRA
from CGHS; (xi) the reasoning of the learned Additional District Judge is
based on surmises and conjectures; (xii) the learned Additional District
Judge has refused to believe proven version of the husband, reasoning that
the wife had nothing to benefit from her unreasonable conduct proved by
the husband; (xiii) the husband has also proved the act of the wife spitting
on his face and the learned Additional District Judge has again disbelieved
the same on the conjecture that the wife being an educated lady could not
be imagined to indulge in such conduct; (xix) the learned Additional
District Judge has wrongly held that the husband had condoned the acts of
cruelty; merely because the husband has made repeated attempts to save
his marriage does not amount to condonation; (xx) though the wife
claimed to have visited the house of the husband at Agra but could not
answer any questions with respect thereto; (xxi) though the wife in her
written statement pleaded that she was victimized for dowry but did not
even bother to lead any evidence to prove the same and such conduct of
the wife of a false allegation of dowry demand also amounts to cruelty;
(xxii) the learned Additional District judge has applied wrong principles
of law of evidence to reject the proven case of the husband of cruelty;

FAO 506/2002 MAT.APP. 87/2008 Page 25 of 33

(xxiii) the learned Additional District Judge has refused to believe what
even the wife had admitted; and, (xxiv) the judgment of the learned
Additional District Judge is perverse, contrary to evidence and based on
surmises and conjectures; reliance is placed on Samar Ghosh Vs. Jaya
Ghosh (2007) 4 SCC 511 and A. Jayachandra Vs. Aneel Kaur
MANU/SC/1023/2004.

27. Per contra, the counsel for the wife, supporting the judgment of the
Additional District Judge of dismissal of petition for divorce on the
ground of cruelty, has argued that (i) the judgment of the learned
Additional District Judge is well reasoned and in accordance with the law
laid down in para 34 of Dr. N.G. Dastane Vs. S. Dastane AIR 1975 SC
1534, paras 1215 of A. Jayachandra Vs. Aneel Kaur (2005) 2 SCC 22
and para 12 of Gurbux Singh Vs. Harminder Kaur AIR 2011 SC 114 (ii)
that the husband has nowhere pleaded or deposed that he ever asked the
wife to leave her job and live with him; (iii) had the wife been denying
sex to the husband, there would have been no occasion for the wife to
become pregnant as also claimed by the husband; (iv) it is apparent from
the timing of filing of the petition for divorce on the ground of cruelty and
the subsequent petition on the ground of desertion that the husband had
sought to break the marriage under all circumstances; (v) the conduct of
the husband does not entitle him in terms of Section 23 of the Hindu
Marriage Act to have the marriage dissolved; (vi) subsequent events can
be taken note of at the appellate stage keeping in view the provisions of
Section 23(1)(a) of the Hindu Marriage Act the Court has to be satisfied
that the spouse seeking divorce is not in any way taking advantage of own
wrong or disability; (vii) in Sunita Devi Vs. Om Prakash 174 (2010) DLT

FAO 506/2002 MAT.APP. 87/2008 Page 26 of 33
471 it was held that the subsequent development can be taken into
consideration as the appeal is a continuation of the original petition; (viii)
in Ashok Kumar Jain Vs. Sumati Jain AIR 2013 SC 2916 also it has
been held that subsequent conduct can be taken note of by the Court; and,

(ix) reference is made to para 7 of Umesh Kumar Aggarwal Vs. Shashi
Kumari AIR 1987 Delhi 235 and on Laxman Rao Vs. Vidya Chouhan
MANU/MP/0328/1996 holding that just because a wife chooses to
continue with her job, does not mean that she has any intention of
bringing cohabitation permanently to an end.

28. Having gone though the pleadings and the evidence recorded in
both petitions, I am unable to agree with the conclusions drawn in the
judgment impugned in FAO No.506/2002 and find the judgment
impugned in MAT Appeal No.87/2008 to be drawing correct inferences
and conclusions from the evidence led. The evidence, in the petition for
divorce on the ground of desertion, having been led after the recording of
evidence in the petition for divorce on the ground of cruelty, it is quite
evident that the stand of the wife is inconsistent. I also tend to agree with
the senior counsel for the husband that the judgment impugned in FAO
No.506/2002 is indeed based on surmises and conjectures and on what in
the opinion of the learned Additional District Judge could be expected of
the wife who is a qualified medical practitioner and holding a high post in
the CGHS at Jaipur and not on the basis of what had been proved in the
evidence recorded. The learned Additional District Judge is indeed found
to have got around findings of fact proved in evidence merely by
observing that it was not something which could be expected of the wife
as senior medical practitioner in CGHS and/or that there was no reason

FAO 506/2002 MAT.APP. 87/2008 Page 27 of 33
for the wife to behave in such fashion. On the contrary, the learned
Additional District Judge pronouncing in the petition for divorce on the
ground of desertion is indeed found to have drawn the correct conclusions
from the evidence before him including qua inconsistencies in the
statements of the wife in the two proceedings.

29. Having concluded so, I have weighed the option of writing a long-
drawn judgment as is the norm in such cases but which would be with
respect to the same evidence as referred to in the two impugned
judgments and only drawing my inferences thereform.

30. In my view the same is not indeed necessary in the present case and
would merely further delay the disposal of the appeals, adding to the
agony of the parties. It is unfortunate that the parties married as far back
as in the year 1988 i.e. 31 years back and living separately since the year
1995 i.e. for the last 24 years have had to litigate about something as
personal as these disputes for the last 24 years, and with uncertainty as to
their marital status. One of the root causes for such delays is the nature of
detailed pleadings and detailed evidence which have become the norm in
such disputes and which in turn result in longer trials and a long time in
writing judgments in such matters. I am of the view that at least as an
Appellate Court, once on perusal of the material on record, a conclusion
agreeing with the impugned judgment has been reached, expressing so
would suffice.

31. I may only add that qua the plea of the husband of
misrepresentation practiced by the wife and her family at the time of
finalization of marriage, the learned Additional District Judge in the

FAO 506/2002 MAT.APP. 87/2008 Page 28 of 33
judgment impugned in FAO No.506/2002 has erred in ignoring the clear
finding of fact on the basis of evidence led in this respect merely by
observing that there was no reason for the wife and her family to hide the
said fact. From the matrimonial advertisement it is clear that the wife was
represented to be studying and not in employment. On the contrary, it is
not in dispute that the husband at the time of finalization of marriage had
already been selected to the Indian Revenue Service and which was an all
India transferable job. The evidence on the part of the wife also is that
though she was earlier pursuing postgraduation but since four months
prior to the marriage got an opportunity to join CGHS on ad hoc basis,
joined the same. The wife was admittedly employed with CGHS till the
time of her marriage on ad hoc basis. In the circumstances, the version of
the husband that there was no agreement or understanding of the parties of
having a long-distance marriage with the husband residing wherever he is
posted and the wife residing wherever she is posted, with the two to meet
only on holidays. The wife admittedly was absorbed into CGHS much
after nearly four years of the marriage in the year 1992. From the said
undisputed facts, the insistence of the wife to continue with CGHS on ad
hoc basis and to also seek permanent employment, is consistent with the
stand of the husband of the refusal of the wife to cohabit with the husband
on day to day basis as most married couples do, amounting to desertion as
well as cruelty.

32. Resultantly FAO No.506/2002 is allowed and the judgment and
decree of dismissal of the petition for divorce filed by the husband under
Section 13(1)(ia) of the Hindu Marriage Act is set-aside. The petition filed
by the husband under Section 13(1)(ia) of the Hindu Marriage Act is

FAO 506/2002 MAT.APP. 87/2008 Page 29 of 33
allowed and a decree of divorce of dissolution of marriage between the
parties is passed under Section 13(1)(ia) of the Hindu Marriage Act.

33. As far as the contention of the counsel for the wife, of the petition
for divorce on the ground of desertion being not maintainable owing to
the husband, during the statutory period of two years having filed for
divorce on the ground of cruelty is concerned, the same, on facts of the
present case, is not attracted. It is not the general rule of law that filing of
a petition for divorce during the statutory period of desertion is a bar to
the subsequent filing of the petition for divorce on the ground of
desertion. The different grounds of divorce prescribed constitute separate
causes of action and filing of a petition for divorce on one ground is no
bar to subsequent filing of petition for divorce on another ground. The
question, whether the petition for divorce on the ground of desertion is
barred for the reason of previous filing of a petition for divorce on another
ground, is a question of fact. If it is pleaded and proved that the spouse
accused of desertion was prevented from joining the company of or co-
habiting with the accusing spouse on account of earlier filing of a petition
for divorce on any other ground, then certainly the subsequent petition for
divorce on the ground of desertion would be barred. The desertion averred
by the husband in the present case is of 14 th January, 1995. The petition
on the said ground could not have been filed prior to expiry of two years
from 14th January, 1995. The husband on 14th October, 1996 i.e. prior to
the expiry of two years, filed the petition for divorce on the ground of
cruelty. The wife, in her written statement to the said petition, while
denying the acts of cruelty pleaded by the husband, also pleaded “this
clearly shows the immense cruelty against the respondent inspite of her

FAO 506/2002 MAT.APP. 87/2008 Page 30 of 33
tremendous sacrifice to make the marriage happy and successful”,
accusing the husband of cruelty. From the wife so pleading, the only
inference is that even if the husband was not willing to live with the wife,
the wife was also not so willing. Moreover, the husband in the petition for
divorce on the ground of cruelty also pleaded that he, even after 14th
January, 1995 “made several telephonic calls to Jaipur between January
and May, 1995 and spoke to the parents of the respondent. The respondent
refused to talk to the petitioner. The petitioner even talked to the
respondent at her office on telephone and tried to reason with her to
decide the future, once for all, but the respondent was abusive and she
banged the phone, saying that she did not want to have anything to do
with the petitioner”, clearly indicating that he, even after 14th January,
1995 and inspite of cruelty inflicted on him by the wife, was willing to
live with the wife and wanting the wife to live with him. The wife in her
written statement thereto denied that the husband made any such attempts
and rather pleaded that ” the petitioner and the respondent had normal
relation between January, 95 to May, 95″ and “after getting his posting at
Delhi the petitioner called the respondent to Delhi in July, 95. She went to
his parental home in Janakpuri. Both of them tried for suitable
accommodation at Delhi. Meanwhile the parents of the petitioner again
misguided the petitioner and he stopped contacting the respondent. Then
in Oct. 95 petitioner visited Jaipur and suggested for the transfer of the
respondent to Delhi…….”. The wife was however unable to prove any co-
habitation after 14th January, 1995. The wife, in her written statement to
the petition for divorce on the ground of desertion did not plead that
though she was desirous after 14th October, 1996 i.e. when the petition for

FAO 506/2002 MAT.APP. 87/2008 Page 31 of 33
divorce on the ground of cruelty was filed, but felt that she could not, on
account of filing of the said petition. No evidence also has been led on the
said ground. It is thus clear that in the present case, filing of the petition
for divorce during the statutory period of two years was not an
impediment to the wife though desirous of co-habiting with the husband,
so co-habiting. It was open to the wife to plead that she was prevented
from co-habiting during the statutory period of two years, though
desirous, owing to the filing of the petition for divorce on the ground of
cruelty. Without the same, there can be no bar to the maintainability of the
petition for divorce on the ground of desertion. The judgment impugned
in MAT. Appeal No.87/2008 finds the wife guilty of animus desertendi
and the wife has neither pleaded nor proved animus revertendi. Rather the
wife in her written statement to the petition for divorce on the ground of
desertion has pleaded that it is the husband who is “guilty of constructive
desertion and he is trying to take advantage of his own wrongs” and which
the wife has failed to prove. The wife, during arguments on the petition
for divorce on the ground of desertion also did not urge the said ground
and the said ground has been taken for the first time in this appeal. The
grounds of divorce are a state of mind and a mind with legal acumen
cannot be a substitute for the mind of the concerned spouse.

34. I otherwise agree with the reasons given in the judgment of
dissolution of marriage by a decree of divorce impugned in MAT Appeal
No.87/2008, which are found to be apposite on the basis of pleadings and
evidence therein. It cannot be lost sight of that though the husband
became entitled to file a petition for divorce on the ground of desertion on
expiry of two years from 14th January, 1995 i.e. on 14th January, 1997 but

FAO 506/2002 MAT.APP. 87/2008 Page 32 of 33
waited till 8th September, 2000 to file the said petition. On the basis of
evidence led, animus desertendi of the wife is clearly established.

35. Thus MAT Appeal No.87/2008 is dismissed confirming the decree
of divorce by dissolution of marriage of the parties on the ground of
desertion under Section 13(1)(ib) of the Hindu Marriage Act.

However no costs.

Decree sheets be drawn up.

RAJIV SAHAI ENDLAW, J.

JULY 03, 2019
„pp‟..

PS – On request, the names of the parties have been concealed and the names are
mentioned on a separate header of the judgment, which is ordered to be kept in a
sealed cover with the file.

FAO 506/2002 MAT.APP. 87/2008 Page 33 of 33

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