HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
D.B. Civil Miscellaneous Appeal No. 1664 / 2009
Hemant Sunariya S/o Shri Damodar Sunariya B/c Koli aged about
31 years R/o 13, Ganesh Colony, Jorawar Singh Gate, Modhovilas
Ke Pas, Jaipur.
Smt Shanti wife of Shri Hemant Sunariya by caste Koli aged about
28 years R/o Chaukadi Topkhana Hazuri, Nala Bada Bhomiyo,
behind Madan Clinic, Ghat Gate, Jaipur.
For Appellant(s) : Mr. Rahul Ghiya, Adv.
For Respondent(s) : Mr. Govind Gupta, Adv.
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
This civil misc. appeal is directed against the judgment dated
27.11.2008 whereby Ld. Family Judge No.1 Jaipur has rejected
the application filed under Section 13 of the Hindu Marriage Act of
1955 (Act of 1955) by the appellant/petitioner Hemant Sunariya
seeking divorce against the non-petitioner/respondent Smt.
The petitioner filed the said application on the ground of
desertion mentioning therein that the marriage between the
parties took place on 08.06.1998 as per hindu rites and rituals at
Jaipur. No issue was born out of the wedlock. Since beginning non-
petitioner behaved with the petitioner and his family members in
disgraceful manner and always insisted to go to her maternal
home. She left the matrimonial home just after five days of
marriage and stayed in her maternal home for five months.
Whenever petitioner went to take her back, she avoided to do so
on one or the other pretext. Ultimately on holding a caste
(2 of 8)
panchayat for mediation she returned to matrimonial home but
again left after staying only for seven days. On persuasion, she
again came back after one year but stayed only for 15 days and
left the matrimonial home on 10.8.2000 in absence of the
petitioner. When efforts were made by the petitioner and his
family members to bring her back she bluntly refused to come
back stating that she has left the matrimonial home forever. She
never showed any interest to fulfill her matrimonial obligation.
During the period of five years, she remained in the matrimonial
home only for 3-4 months.
In reply to the petition, non-petitioner refuted all the
allegations made by the petitioner. On the contrary, she alleged
that petitioner and his family members always meted cruelty to
her and treated her like domestic servant. She had not left
matrimonial home on her own but was forced to go away as the
petitioner wanted to remarry. On the death of her grand mother-
in-law, when she went to her matrimonial home in October, 2003
she was not allowed to stay there. She has also alleged that the
reason behind the crual attitude of her in-laws was demand of
dowry and other domestic articles like refrigrator, fan, etc. In fact,
petitioner himself has deprived her from the matrimonial pleasure
and she had been forced to take shelter in her matrimonial home.
In the reply filed by the petitioner, the allegations levelled by
the non-petitioner/wife of cruelty on account of dowry and forcing
her to stay away from her matrimonial home were completely
On the basis of the pleadings of both the sides, three issues
(3 of 8)
were framed by learned family Court as under:-
(1). Whether the non-petitioner has
deserted the petitioner without any
reasonable cause since 10.08.2000?
(2). Whether the non-petitioner was
treated with cruelty by the petitioner?
After recording evidence and affording opportunity of hearing
to both the sides, learned family judge dismissed the petition filed
under Section 13 of the Act of 1955 vide judgment impugned
Learned counsel for the appellant/petitioner submits that
learned family judge has not appriciated the evidence in correct
perspective and has given his finding on the basis of the facts not
available on record. The petitioner has specifically proved the
averments made in the petition but his evidence has been
disbelieved without any reasonable and proper ground. It has
been proved by the petitioner husband that the non-petitioner
wife has deserted him for a period of more than 2 years but
learned family judge has drawn a perverse and wrong conclusion.
He submits that the appeal deserves to be allowed and the
judgment impugned is liable to be quashed and set aside.
Per contra, learned counsel appearing for non-petitioner has
supported the judgment impugned contending that the evidence
available on record has been properly appriciated by learned
family judge. There is no pervesity in the judgment impugned and
the appeal deserves to be rejected.
(4 of 8)
We have scanned the evidence available on record in light of
the arguments advanced by the rival sides.
The divorce petition has been filed by the
appellant/petitioner on the sole ground of desertion. Relevant part
of Section 13 of the Hindu Marriage Act (‘Act of 1955’) is as
“13. Divorce:- (1) Any marriage solemnised, whether
before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the
(ib) has deserted the petitioner for a continuous
period of not less than two years immediately preceding
the presentation of the petition; or
[Explanation:- In this sub-Section, the expression
“desertion” means the desertion of the petitioner by the
other party to the marriage without reasonable cause and
without the consent or against the wish of such party,
and includes the wilful neglect of the petitioner by the
other party to the marriage, and its grammatical
variations and cognate expressions shall be construed
A bare look to the relevant provision explicitly lays down that
if any of the parties to the marriage has deserted the other side
for a continuous period of not less than 2 years immediately
preceding the presentation of the petition, decree of divorce can
be granted. The explanation attached to Section 13 mentions that
the expression “desertion” means the desertion of the petitioner
by the other party to the marriage without reasonable cause and
without the consent or against the wish of such party.
The petition under Section 13 of the Act of 1955 was filed by
petitioner/appellant on 21.07.2003. Learned trial Court has
arriaved at the conclusion that the parties have been residing
(5 of 8)
separately only since November, 2001 and thus statutory period of
two years required for granting the decree of divorce was not
completed on the date of filing of the petition. It was also the
finding of the learned Court that the non-petitioner has not
deserted the petitioner husband without any reasonable cause as
the wife was treated with cruelty by the husband and his family
On careful examination of the evidence available we find that
no illegality has been committed by learned family Court. The
petitioner has mentioned in the petition under Section 13 of the
Act of 1955 that the non-petitioner wife left the matrimonial home
on 10.08.2000 and did not return back thereafter, but in his
examination-in-chief as PW-1, recorded on 30.04.2005, he has
stated that on the request of non-petitioner wife, four years ago
he himself took her to her maternal home and left there.
Indisputedly, this statement clarifies that in the year 2001 the wife
did not leave the matrimonial home on her own but was taken by
the petitioner husband himself. He has also admitted in the cross-
examination that he did not go to take his wife back from her
Elder brother of petitioner, Sita Ram (PW-3) has also stated
that the non-petitioner stayed with the petitioner till the year
2001. He has stated in his cross-examination that they could not
take the non-petitioner back to the matrimonial home despite her
wish, on account of the apprehension that she may involve them
in some criminal case after committing suicide. It shows that no
effort was made by the husband to take the non-petitioner back to
(6 of 8)
her matrimonial home.
PW-1 Sunil Kumar who happens to be neighbour and friend
of petitioner has also stated that the non-petitioner stayed in her
matrimonial home until the Diwali festival in the year 2001 and
then went to her maternal home and did not come back
thereafter. His statement also clearly shows that the non-
petitioner wife was staying till Diwali festival of the year 2001.
Learned trial Court, while referring to the calender, has observed
that in the year 2001 Diwali Festival was in third week of
November and thus concluded that till filing of the petition on
21.07.2003, statutory period of two years was not completed.
It is also pertinent to mention here that the wife non-
petitioner has been examined as DW-1 on 14.12.2005 who has
categorically stated that she wants to reside with the petitioner. In
view of this, it cannot be inferred that she has deserted her
husband. She has further stated that the petitioner took her to her
maternal home about two years ago and left her there and never
took her back nor any of his family members came to take her
back. The petitioner himself has deserted her for no reason and
has deprived her of the matrimonial pleasures. Taking the above
quoted statements of these witnesses into consideration, we find
no error in the conclusion drawn by learned trial Court. The
findings of Ld. Family Judge are well founded in view of the
statements referred above and do not call for any interference.
Besides this, learned family Court has also drawn the
conclusion in respect of issue No. 2 that the wife non-petitioner
was treated with cruelty by the husband and his family members
(7 of 8)
on account of demand of dowry. DW-1 Shanti, her uncle DW-2
Heeralal and neighbour DW-3 Ramesh Chandra has stated that
non-petitioner was being harassed by her in-laws for demand of
dowry and other domestic articles.
Shanti on being examined on 17.09.2008, has further stated
that the petitioner has married another lady namely Prem
daughter of Bhorilal and out of that wedlock, one girl child was
also born whose birth certificate (Ex.A1) has also been produced.
A look at Ex.A1 shows that a girl child was born on 14.11.2006 in
Pawan Nursing Home, the name of whose father and mother has
been mentioned as Hemant Kumar and Prem Devi, respectively.
DW1 Shanti has stated in her cross-examination that she has seen
Prem Devi alongwith Hemant in the Mahadev Temple at Joravar
Singh Gate on the day of Shivratri. She has also admitted that
some heated discussions took place between her and Prem Devi
on that day. She has further stated that she has seen Prem Devi
and petitioner living together and has denied the suggestion that
Prem Devi is the not wife of the petitioner but is his tenant. It is
pertinent to note that no evidence has been produced on behalf of
the petitioner in rebutal of the facts aforesaid.
It has been brought to the notice of this Court that in
background of these facts a criminal case for the offences under
Section 494 498-A IPC is pending trial against petitioner Hemant
Kumar. We therefore do not consider in proper to record any
finding in regard to these allegation of second marriage and the
demand of dowry. However, we are of the considered view that in
the background aforesaid, conduct of the non-petitioner wife does
(8 of 8)
not tantamount to desertion as defined under Section 13(1)(ib) of
the Act of 1955 and the explanation attached thereto.
We find no error in the judgment impugned dated
27.11.2008 of Ld. Family Judge, Jaipur rejecting the petition filed
under Section 13 of the Hindu Marriage Act by the
Accordingly, the appeal deserves to be and is hereby
(DEEPAK MAHESHWARI),J. (AJAY RASTOGI),J.