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Harpeet Kaur vs Amarjeet Singh on 17 January, 2020

% Date of decision: 17.01.2020

+ MAT.APP.(F.C.) 318/2019 CM APPLs. 52860-52862/2019
HARPEET KAUR ….. Appellant
Through: Mr. Amanpreet Singh, Mr. Pariksha,
Mr. Arun Parashar, Advocates

AMARJEET SINGH ….. Respondent
Through: Nemo.



1. This appeal has been filed by the appellant/wife against the
judgment dated 28.05.2019, passed by the learned Family Court,
(South), Saket, Delhi, allowing the divorce petition filed by the
respondent/husband and dissolving the marriage between the parties.

2. The brief facts as may be relevant for the disposal of the present
appeal are that the marriage between the parties was solemnised on
17.04.2011, as per Hindu rites and ceremonies. According to the
respondent/husband, immediately thereafter, differences arose
between them on account of the conduct and behaviour of the
appellant/wife. The parties were blessed with a son on 05.12.2012.
However, it is apparent that the parties have been living separately
since 24.06.2012.

MAT.APP.(F.C.) 318/2019 Page 1 of 13

3. In November 2012, the respondent/husband filed a petition
under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred
to as „HMA‟) seeking restitution of conjugal rights. Subsequently, on
18.11.2014, he withdrew the said petition. Thereafter, on 15.07.2014,
he filed a petition seeking divorce from the appellant/wife on grounds
of cruelty and desertion under Section 13(1)(i-a) and 13(1)(i-b) of the

4. The following issues were framed on 11.05.2018:

(i) Whether the respondent after the solemnization of
the marriage has treated the petitioner with cruelty
within the meaning of Sec.-13(1)(i-a) of the Hindu
Marriage Act? OPP.

(ii) Whether the respondent has deserted the petitioner
for a continuous period of not less than two years
immediately preceding the presentation of the
petition within the meaning of Sec.13(1)(i-b) of the
Hindu Marriage Act? OPP

(iii) Whether the petitioner is entitled to decree of
divorce, as prayed for? OPP

(iv) Relief.

5. The respondent/husband examined himself as PW-1, whereas
the appellant/wife examined herself as RW-1. On an assessment of
the evidence on record and after considering the submissions made

MAT.APP.(F.C.) 318/2019 Page 2 of 13
before it, the learned Family Court concluded that the
respondent/husband had failed to establish cruelty on the part of the
appellant/wife but found that she had deserted him and was thus not
interested in the matrimonial relationship. Accordingly, the learned
Family Court dissolved the marriage between the parties on the
ground of desertion under Section 13(1)(i-b) of the HMA.

6. This appeal has been filed by the appellant/wife being
aggrieved by the dissolution of the marriage.

7. Mr. Amanpreet Singh, learned counsel for the appellant/wife
has submitted that the learned Family Court had wrongly concluded
that the appellant/wife was not interested or willing to live with the
respondent/husband and argued that the recording of evidence by the
Local Commissioner was in furtherance of a conspiracy to tamper
with the evidence and get the desired result, by wrongly recording as
the statement made by the appellant/wife to the effect that she was not
willing to live with the respondent/husband, as it was false. Thus,
when she had no intention to desert the husband and her physical
absence from the matrimonial home could be directly attributed to the
harassment meted out to her by the husband and his family members,
the learned Family Court erroneously concluded that the factors to
establish desertion were duly proved. Hence it was prayed that the
decree of dissolution of marriage be set aside and the present appeal
be allowed.

8. We find no merit in the submission of learned counsel for the

MAT.APP.(F.C.) 318/2019 Page 3 of 13
appellant/wife that the Local Commissioner had wrongly recorded her
testimony inasmuch as the appellant/wife was cross-examined on
19.03.2019 and the impugned judgment was pronounced on
28.05.2019 and yet, in all this time, no such contention was raised
before the learned Family Court.

9. Ordinary human behaviour is such that a prudent person would
immediately react and respond when his interest is at stake. If the
learned Local Commissioner, being a retired District Session
Judge, had wrongly recorded the deposition of the appellant/wife
during her cross-examination, reason predicates that she would have
immediately filed an application before the learned Family Court to
bring to its notice that a mistake, intentionally or otherwise had
occurred in the recording of her evidence. However, no such steps
were taken by the appellant/wife. Clearly, this plea has been taken at
this belated stage only to overcome the observations made by the
learned Family Court that the appellant/wife herself was not interested
in the matrimonial relationship to allow the petition of the
respondent/husband and dissolve the marriage between the parties.

10. We however note that the learned Family Court has not
dissolved the marriage only on the basis of the statement made by the
appellant/wife during her cross examination. It has exhaustively
discussed the evidence brought on record that reflected the conduct of
the parties to conclude that the conditions to establish desertion,
namely, the factum of separation and the intention i.e. animus
deserendi of the appellant/wife alongwith absence of consent and

MAT.APP.(F.C.) 318/2019 Page 4 of 13
wrongful conduct on the part of the respondent/husband, have been
duly proved. There is no dispute to the fact that the appellant/wife had
left the company of the respondent/husband on 24.06.2012. Before
that, the evidence reveals that on several occasions, the appellant/wife
had left the matrimonial home but she used to return thereafter. The
record discloses that subsequent to 24.06.2012, there was no effort
made by the appellant/wife to return to the matrimonial home.

11. Of course, it is important to assess as to whether the
respondent/husband was in any way responsible for the appellant/wife
being disinclined to return to the matrimonial home. We find no such
blameworthy conduct of the respondent/husband on the record. One
reason offered by the appellant/wife, which she had to prove, was that
she had been ill treated due to non-fulfilment of demand of dowry and
she was expelled from the house. However, neither in the cross-
examination of the respondent/husband, conducted on her behalf, nor
in her affidavit by way of evidence, Ex. RW-1/A, did she succeed in
establishing that she had been harassed for dowry. A mere suggestion
in this regard was given to the respondent/husband when he was
examined as PW-1 and he promptly rejected the suggestion that he or
his family members had ill treated the appellant/wife for dowry. On
the other hand the respondent/husband disclosed “the cause of dispute
between us was the insistence of the respondent not to sleep on beds
of our house, not to live with my family members. The cause of dispute
was she wanted a separate floor to be constructed for her in the same
house.” In her affidavit, Ex. RW-1/A, the appellant/wife claimed that

MAT.APP.(F.C.) 318/2019 Page 5 of 13
she had never quarrelled with the respondent/husband or his family
members and it was he who used to beat and insult her and send her to
her parents‟ house. However, no such case was put up to the
respondent/husband during his cross-examination.

12. The appellant/wife has claimed that she was not allowed to visit
her parents‟ house even on important ceremonies or rites. During her
cross-examination, however, she admitted that on the death of her
uncle (Tau) in May 2012, she was not allowed to attend the cremation
as she was pregnant. She further admitted as correct that she had gone
to the Bhog ceremony. She volunteered the information that at that
time, a lot of quarrel had taken place at her matrimonial home and she
was allowed to go only after she had appended her signatures on a
blank stamp paper. But this was a new fact that she had introduced
during her cross-examination and need not detain us.

13. What is significant is that though in her affidavit, the
appellant/wife claimed that she was not allowed to go for important
functions and rites, the objections raised by her in-laws at the time of
cremation of her uncle (Tau) may have been founded on the fact that
she was pregnant and possibly customarily, women in that condition
do not attend cremations. In any case, it was not as if she had abided
by that objection for, after she raised a quarrel, she had, in fact, gone
for the death ceremonies. This reflects her adamant temperament
which is also important to be noticed in the context of the fact that
after 24.06.2012, she did not return to the matrimonial home which
clearly reflects her intention to stay away. She further claimed that in

MAT.APP.(F.C.) 318/2019 Page 6 of 13
June 2012, when she left the matrimonial home, there was a lot of
“mar pitai”.

14. The respondent/husband had stated that the appellant/wife had
left on account of matrimonial discord and that an oral complaint to
the police had been lodged by him by dialling No.100. This oral
complaint was reduced into writing by the police as DD No.31A. The
appellant/wife in her cross-examination also admitted that the mother
of the respondent/husband had called the police. There is no reason
why on the arrival of the police, she did not put forth her version as
being the correct version. Rather, her case is that she never
complained to the police about any harassment or ill treatment. Thus,
her claim that she had a just and valid cause to live away from the
matrimonial home on account of the harassment meted out to her by
the respondent/husband and his family members, is clearly not borne
out from the record.

15. During her cross-examination, the appellant/wife admitted that
after their marriage, she and the respondent/husband had been given a
separate room on the ground floor, to live peacefully. She also
admitted that after the upper floor was constructed, only she and the
respondent/husband had been living there peacefully. While claiming
that the upper floor including the Kitchen, was not constructed at her
request, she also admitted that after the kitchen was constructed, only
she and the respondent/husband were using the said kitchen, for
cooking independently, while living there peacefully. This fact would
show that mere denial by the appellant/wife that she had not insisted

MAT.APP.(F.C.) 318/2019 Page 7 of 13
on a separate accommodation for herself and the respondent/husband,
is not enough to disbelieve the respondent/husband who asserted that
she had done so. Once the respondent/husband and his family
accommodated her desire and provided an independent living space
for her and the respondent/husband, there was no apparent reason for
the appellant/wife to have left the matrimonial home and start living
with her parents.

16. During his cross-examination, the respondent/husband, had set
forth the sequence of events that had occurred just before the
appellant/wife left the matrimonial home in the following manner:

“From 01.06.2012 to 05.06.2012, the respondent was
living with me on separate floor of my parents’ house.
Then she had gone to her parental house where she
stayed for three days. On 8.06.2012, I brought the
respondent back to my house on my floor of the house as
on the next day me and the respondent were to leave for
Punjab by train. Thus by train we went to Punjab on
09.06.2012. We both stayed in Punjab for four days.
Thereafter we came back to Delhi and stayed on my floor
of the house till 24.06.2012. Thereafter, on account of
matrimonial discord between me and the respondent she
went to her parents’ house with her parents.”

17. The above extract of the testimony of the respondent/husband
during his cross-examination, would also reflect the fact that despite
everything, he was willing to bring her back and continue with the
matrimonial relationship, but did not really succeed. It is surprising
that on behalf of the appellant/wife, the question put was as to how
many times the respondent „visited‟ the house of the
respondent/husband prior to 01.06.2012, as after the marriage, a wife

MAT.APP.(F.C.) 318/2019 Page 8 of 13
does not “visit” the matrimonial home, but “resides” there. Of course,
the respondent/husband responded that the appellant/wife had
“visited” his house on a number of occasions but the crux of the
matter is that the appellant/wife used to “reside” at her parents‟ house
and go to stay with her husband off and on, for short periods of time
and he used to discharge his obligation of bringing her back to the
matrimonial home.

18. Notably, the respondent/husband is the one who had filed the
petition for restitution of conjugal rights. The appellant/wife chose not
to attend that matter. The learned Family Court has observed that
from the order sheets placed and proved on record as Ex.PW-1/5, the
case was first taken up on 05.11.2012 and the first appearance on
behalf of the appellant/wife was recorded on 05.03.2013. She also
filed an application under Section 24 of the Hindu Marriage Act, 1955
seeking maintenance. Almost a year later, on 26.02.2014, when the
parties submitted that there was a chance of amicable settlement, they
were directed to the Mediation Centre. However, on 18.11.2014, the
respondent/husband withdrew that petition under Section 9 of HMA.
The participation of the appellant/wife in those proceedings was
limited to three dates. Her explanation given for non-appearance in
the court to attend the hearings in the petition for restitution of
conjugal rights was that she was suffering from TB and was under
treatment for the same. No medical evidence has been produced in
respect of the treatment for TB and that it had prevented her from
moving around and attending the court proceedings. The explanation

MAT.APP.(F.C.) 318/2019 Page 9 of 13
offered is therefore not acceptable. In fact, the true reason was also
given by the appellant/wife that she did not join the proceedings as
she did not wish to live with the respondent/husband, who was
petitioner in that case.

19. The record discloses that the appellant/wife had also not
disclosed to the respondent/husband that they have been blessed with
a son and the specious explanation offered was that since the
summons of the petition under Section 9 of the HMA was received on
the same day that their son was born, she and her family did not have
any time to inform the respondent/husband about the birth. She also
admitted as correct, that it was only pursuant to the orders of the court
that the respondent/husband was allowed to meet their son. She also
admitted that she had been in consecutive default of orders granting
visitation rights to the respondent/husband. Thus, her conduct clearly
reveals that the appellant/wife had no interest in a family life with the
respondent/husband. Despite sincere efforts made by the
respondent/husband to bring the appellant/wife back to the
matrimonial home, she never agreed to it.

20. In Lachman Utamchand Kirpalani vs. Meena alias Mota, AIR
1964 SC 40, the Supreme Court observed as under:-

“18. The question as to what precisely constitutes
“desertion” came up for consideration before this Court in
an appeal from Bombay where the Court had to consider
the provisions of Section 3(1) of the Bombay Hindu Divorce
Act, 1947 whose language is in pari materia with that of
Section 10(1) of the Act. In the judgment of this Court
in Bipin Chander v. Prabhawati [(1956) SCR 838] there is

MAT.APP.(F.C.) 318/2019 Page 10 of 13
an elaborate consideration of the several English decisions
in which the question of the ingredients of desertion were
considered and the following summary of the law
in Halsbury’s Laws of England (3rd Edn.) Vol. 12 was cited
with approval:

“In its essence desertion means the
intentional permanent forsaking and
abandonment of one spouse by the other without
that other’s consent, and without reasonable
cause. It is a total repudiation of the obligations
of marriage. In view of the large variety of
circumstances and of modes of life involved, the
Court has discouraged attempts at defining
desertion, there being no general principle
applicable to all cases.”

The position was thus further explained by this Court:

“If a spouse abandons the other spouse in a
state of temporary passion, for example, anger or
disgust, without intending permanently to cease
cohabitation, it will not amount to desertion. For
the offence of desertion; so far as the deserting
spouse is concerned, two essential conditions
must be there, (1) the factum of separation, and
(2) the intention to bring cohabitation
permanently to an end (animus desorendi).
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…. Desertion is a matter of
inference to be drawn from the facts and
circumstances of each case. The inference may be
drawn from certain facts which may not in
another case be capable of leading to the same
inference; that is to say, the facts have to be
viewed as to the purpose which is revealed by

MAT.APP.(F.C.) 318/2019 Page 11 of 13
those acts or by conduct and expression of
intention, both anterior and subsequent to the
actual acts of separation. If, in fact, there has
been a separation, the essential question always is
whether that act could be attributable to
an animus deserendi. The offence of desertion
commences when the fact of separation and
the animus deserendi coexist. But it is not
necessary that they should commence at the same
time. The de facto separation may have
commenced without the necessary animus or it
may be that the separation and the animus
deserendi coincide in point of time.”

(Emphasis added)

21. Intention, as revealed by the acts of the appellant/wife both
anterior as well as subsequent to the separation on 24.06.2012,
establishes beyond any doubt that she had no interest in returning to
the matrimonial home or resuming cohabitation with the
respondent/husband. She had no reason not to return as it has been
noticed hereinabove that she was allowed separate accommodation
with her husband and there is no evidence that she was being
subjected to any kind of ill treatment or harassment at the hands of the
respondent/husband or his family members.

22. In this context, the two statements made by the appellant/wife
during her cross-examination, as recorded on 19.03.2019, to the effect
“I did not want to live with the petitioner” (with reference to her
absence from the proceedings under Section 9 of HMA, initiated by
the respondent/husband) and “Even now I do not want to live with the
petitioner”, reveal the animus deserendi and have been rightly relied

MAT.APP.(F.C.) 318/2019 Page 12 of 13
upon by the learned Family Court to conclude that she had deserted
the respondent/husband.

23. Each time, the respondent/husband had made efforts to bring
the appellant/wife back home and even when she had left the
matrimonial home on 24.06.2012, he had filed a petition for
restitution of conjugal rights in November 2012. Therefore, it is
apparent that the appellant/wife had left the matrimonial home
without the consent of the deserted spouse namely, the
respondent/husband and without his giving her any cause to leave the
matrimonial home.

24. In the light of the foregoing discussion, there is no merit in the
present appeal and we do not find any reason to interfere in the
impugned judgment dated 28.05.2019, passed by the learned Family
Court, which is upheld. The appeal filed by the appellant/wife is
dismissed alongwith the pending applications.


JANUARY 17, 2020

MAT.APP.(F.C.) 318/2019 Page 13 of 13

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