AFR

HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 16.04.2018
Pronounced on 19.04.2018

First Appeal (M) No. 58 of 2012
• Ashok Kumar Sambhakar S/o Late Abhayram Sambhakar, R/o
Shihava Road, Dhamtari, At Present Medical Officer, Community
Health Centre, Koyalibeda, Dist. Kanker, C.G.
—- Appellant
Versus
• Smt. Sheeta Singh W/o Ashok Kumar, Occupation – Service,
Working at Central Co-opeative Bank, Main Branch, G.E. Road,
Rajnandgaon C.G.
—- Respondent

———————————————————————————————————-

For Appellant : Smt. Indira Tripathi, Advocate
For Respondent : None

———————————————————————————————————–

Hon’ble Mr. Sharad Kumar Gupta, Judge
C.A.V. JUDGMENT

1) Challenge in this appeal is levied to the judgment and decree

dated 12.01.2012 of the District Judge, Kabirdham (Kawardha)

passed in Civil Suit No.3-A/2010, whereby and whereunder she

dismissed the petition of appellant filed under Section 13 of the

Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act, 1955’).

2) This is admitted by respondent that name, address, other

particulars of both the parties shown in the title of the petition are

true, the marriage of both the parties was solemnized in 1996 in

accordance to customary rights and rituals in Dhamtari, at the time

of marriage, appellant was studying M.S. at Raipur and she was

employed in Central Cooperative Bank, Rajnandgaon, after the

marriage, they resided in Rajnandgaon as husband and wife, in

1999, appellant was appointed as Assistant Surgeon in C.H.C.
2

Bodla, they also resided in Bodla, she used to travel up and down

from Rajnandgaon to Bodla, in 2006 appellant was transferred from

Bodla to village Koyalibeda, district-Kanker.

3) In brief, appellant’s case is that he had told to respondent that

either she resign the service or get her transfer to any branch near

Bodla. From January, 2005 she stopped to come to his house at

Bodla. Thereafter, in March, 2006 he had also told her to live with

him at Koyalibeda, but she was not ready.

4) In nutshell, respondent’s case is that she used to come to the

place of her husband till March, 2010. In March 2010, she had gone

to her husband in village Koyalibeda and found that one woman,

namely, Suko Netam is living with him as wife. He was also coming

to her house at Durg.

5) After completion of trial, the trial Court passed the aforesaid

judgment and decree. Being aggrieved, appellant preferred this

appeal.

6) Smt Indira Tripathi, learned counsel for appellant vehemently

argued that the trial Court has not appreciated the evidence properly

which was available on record. It is not necessary that before filing

of the divorce petition, an application for restitution of the conjugal

rights be filed. The respondent has deserted appellant, thus, there

is no remedy available to appellant except for applying divorce.

7) None appears for respondent, though served.

8) Points for determination :-

There are following points for determination in this case :-
3

(1) Whether respondent has subjected appellant with cruelty ?

(2) Whether respondent has deserted appellant for a continuous

period of not less than two years immediately preceding the

presentation of the petition without reasonable and without the

consent or against the wish of him ?

(3) Whether appellant is entitled to get the decree of divorce on

the ground of cruelty and desertion ?

(4) Relief and costs.

Points for determination No.1 2 – Findings with reasons :-

9) The trial Court has not given the finding with reason on issue

of cruelty saying that this ground has not been raised by appellant

but this approach is not correct because appellant has pleaded in

para 14 of the plaint that respondent refused to lead a conjugal life

which amounts cruelty. Therefore, the trial Court ought to have given

finding with reason on issue of cruelty.

10) Looking to the convenience, points for determination Nos. 1

2 are decided simultaneously.

11) AW1 Ashok Kumar Sambhakar says in para 8 and 9 of his

statement given on oath that from January, 2005 respondent

stopped visiting him, he went so many times to respondent at

Rajnandgaon but respondent refused to live with him. She deprived

him from his conjugal rights. After the transfer in Koyalibeda, in

March, 2006 he had told her to live with him in Koyalibeda but

respondent did not agree.

4

12) AW2 Chaitram says in para 3 of his statement given on oath

that from 2005, respondent stopped to come in appellant’s house at

Bodla.

13) NAW1 Smt. Sheeta Singh says in para 4 and 5 of her

statement given on oath that she had continuously visited appellant

at village Bodla and also in village Koyalibeda. Appellant does not

want to keep her without any reason. Appellant used to come at

Durg and stay in her house.

14) NAW2 Harishankar Singh who is the younger brother of

respondent says in para 3 and 4 of his statement given on oath

during posting at Bodla appellant used to come in respondent’s

house. Respondent had gone to appellant’s house at village

Koyalibeda. Appellant had refused to keep her.

15) Smt. Indira Tripathi, counsel for the appellant placed reliance

on the judgment of Hon’ble Supreme Court in Adhyatma Bhattar

Alwar v Adhyatma Bhattar Sri Devi {2002 (1) SCC 308}, relevant

portion of para 13 is as under:-

“13. Coming to the case at hand, it is revealed from the
evidence on record, as discussed in the judgments of the
Trial Court and the High Court that the respondent had gone
to her parents house for birth of the child, which apparently
cannot be construed as an expression of her desire to
forsake her husband permanently; but after the birth of her
child when attempts were made by the appellant, his parents
and relations, she laid down a condition that the appellant
should live in a separate house from his parents taking the
plea that her father-in-law had attempted to molest her,
which explanation she signally failed to establish. In the
meantime, father of the appellant expired some time in
1988, putting an end to the so-called reason of misbehavior
5

of her father-in-law. There is nothing on record that
thereafter she expressed her desire to join her husband at
the matrimonial home. It is relevant to state here that the
appellant is the only son of his parents and as expected, he
was not willing to establish a separate residence leaving his
parents to live alone in their old age. The cumulative effect
of the circumstances and the conduct of the respondent is
that she had given expression of animus deserendi. Thus,
the two ingredients of the matrimonial offence of desertion
i.e. separation in fact and animus deserendi have been
established by the appellant……”

16) She further relied on the judgment of Hon’ble Supreme Court

in Geeta Jagdish Mangtani v. Jagdish Mangtani {2005 (8) SCC

177} , relevant portion of para 5 is as under:-

“5. ……….there has been no attempt on the part of the wife
to stay with the husband. She is a school teacher and it is
common knowledge that in schools there are long vacations
during summer months, more so, in Government schools
where the wife teaches. At least during those holidays she
could have visited the husband at Ulhasnagar along with her
son and stayed with him. There is nothing on record to show
that any such attempt was ever made by her to visit the
husband during this entire period. She has stated in her
evidence that the husband used to come and stay with her
during her vacations. This has been denied by the husband.
Therefore, the conclusion in inevitable, that there was never
any attempt on the part of the wife to go to husband’s house
i.e., matrimonial home of the parties after she left on 22-6-
1993. From this fact alone animus deserendi on the part of
the wife is clearly established. She has chosen to adopt a
course of conduct which proves desertion on her part. In the
facts and circumstances of the case, it cannot be said that
this desertion on the part of the wife was with a reasonable
cause. Such 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
6

reasonable cause to desert. It also amounts to wilful neglect
of the husband by the wife.”

17) In the case in hand significant feature is that respondent is

also an employee of the Central Cooperative Bank and posted at

Rajnandgaon. It is not expected from a woman employee to resign

her service and join the company of husband.

18) AW1 Ashok Kumar Sambhakar says in para 15 during his

cross examination that on the complaint of respondent a case has

been registered against him under Section 498-A IPC at Durg.

Moreover, AW2 Chaitram says in para 6 during his cross

examination that he does not know whether that appellant and

respondent have the relationship as husband and wife. He does not

know whether that respondent has resided in village Koyalibeda

with appellant.

19) Appellant has not examined any neighbour of village

Koyalibeda, who could say that respondent allegedly never resided

with appellant in village Koyalibeda. Appellant has not proved any

letter wherein it has been mentioned that from 2005 respondent had

refused to lead a conjugal life with him at village Bodla, he had tried

so many times to bring her from Rajnandgaon but she refused to

live with him, he had also told her to live with him at village

Koyalibeda but she was not ready. Appellant has not proved any

report lodged by him in any police station wherein said facts have

been mentioned. Appellant failed to prove any document of their

community wherein said facts have been mentioned. Appellant has

failed to prove any notice given by him to respondent wherein said
7

facts have been mentioned. For not doing so there is no explanation

from him.

20) This is not the appellant’s case that he had allegedly made

attempts to go and stay at respondent’s house during holidays but

she had refused and not permitted him to join her company.

21) Appellant has filed the divorce petition near about 4 years

after March, 2006. He failed to explain such inordinate delay in filing

divorce petition.

22) Looking to the aforesaid circumstances this Court finds that

appellant does not get any help from the judicial precedents laid

down by Hon’ble Supreme Court Adhyatma Bhattar Alwar

(Supra) and Geeta Jagdish Mangtani (Supra).

23) In Gurinder Singh v Bhupinder Caur {Mrr.L.J. 2008 (1) }

Hon’ble Punjab and Haryana High Court has laid down the following

judicial precedent: –

“Desertion means the separation of one spouse from
other with an intention of bringing cohabitation permanently to
an end without reasonable cause an consent of the other
spouse and with an intention not return or resume
cohabitation. Mere severance of relation or separation without
desertion is not sufficient. Desertion is not walking out of a
house but is withdrawn from a home. Desertion consists in
withdrawn not from a place but from the state of thing.”

24) Hon’ble Supreme Court in Adhyatma Bhattar Alwar (Supra)

has laid down the following judicial precedent:-

“For the offence of desertion two essential conditions must be
there; (1) the factum of separation and (2) the intention to
8

bring cohabitation permanently to an end (animus deserendi).
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 house to form the necessary intention.”

25) Looking to the above mentioned facts and circumstances this

Court finds that the aforesaid judicial precedents laid down in

Gurinder Singh Supra) and Adhyatma Bhattar Alwar (Supra)

are applicable against appellant regarding point for determination

No.2.

26) Looking to the facts and circumstances mentioned

herebefore, this Court disbelieves the aforesaid statements of para

8 and 9 of AW1 Ashok Kumar Sambhakar, para 3 of AW2 Chaitram

and believes the aforesaid statements of para 4 and 5 of NAW1

Smt. Sheeta Singh, para 3 and 4 of NAW2 Harishankar Singh.

27) After appreciation of the evidence discussed herebefore this

Court finds that there is no such evidence on record which shows

that respondent has an intention to bring cohabitation permanently

to an end (animus deserandi) without reasonable cause and

consent of appellant, respondent has an intention not to return or

resume cohabitation with appellant.

28) After the appreciation of the evidence discussed herebefore

this Court finds that appellant failed to prove that respondent has

subjected appellant with cruelty and she has deserted him for a

continuous period of not less than two years immediately preceding

the presentation of the petition without reasonable cause and
9

without the consent or against the wish of him. Thus, this Court

decides points for determination No. 1 and 2 accordingly.

Point for determination No.3- Findings with reasons :-

29) This has been earlier decided that respondent has not

subjected appellant with cruelty and she has not deserted him.

Thus, this Court finds that appellant is not entitled to get the decree

of divorce on the ground of cruelty and desertion.

Point for determination No.4 – Findings with reasons :-

30) After complete appreciation of the evidence discussed

hereinbefore, this Court finds that there is no substance in this

appeal. Thus, the impugned judgment and decree of the trial Court

are hereby affirmed as to aforesaid extent. The appeal deserves to

be and is hereby dismissed.

31) Appellant shall bear his own costs as well as costs of

Respondent.

32) Decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
JUDGE

kishore/padma