HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 118 of 2004
Reserved on : 17.01.2019
Delivered on : 31.01.2019
Laxman Singh Dhurve, aged about 30 (29) years, S/o Shri Bhagela Singh,
Occupation- Teacher, R/o Village- Titri, Police Station- Rengakhar, Tahsil
District- Kawardha, Presently District- Kabeerdham (C.G.)
Smt. Sunita Bai, aged about 26 (25) years, W/o Shri Laxman Singh Dhurve,
D/o Laamu Singh Markam, R/o Baihatola Kursipar, P.O. Birsa, P.S.
Malajkhand, Tahsil- Behar, District- Balaghat (M.P.) (Wrongly mentioned as
For Appellant : Mr. P.K.C. Tiwari, Senior Advocate with
Mr. Ashutosh Trivedi, Advocate.
For Respondent : None.
Hon’ble Shri Justice Ram Prasanna Sharma
1. This first appeal is preferred under Section 28(I) of the Hindu Marriage
Act, 1955 against judgment/decree dated 09.02.2004 passed by
Additional District Judge (FTC), Kawardha (C.G.) in Civil Suit No. 1-
A/2003, wherein the said court dismissed the petition filed by the
appellant (Husband) under Section 9/13 of the Hindu Marriage Act,
1955 for decree of restitution and in alternate decree of divorce
against the respondent (Wife).
2. As per version of the appellant, he and the respondent were married
on 15.05.2000 as per customary rites at parental house of the
respondent. The appellant and his father were prosecuted on FIR
lodged by the respondent on 16.07.2000 at police station- Malajkhand
for the offence punishable under Section 498A, 494/34 of IPC, 1860 in
which, they have been acquitted vide judgment dated 07.08.2001. The
respondent has deserted the appellant since 16.07.2000 and in spite
of repeated efforts made by the appellant, she did not return to her
matrimonial home that is why the appellant filed petition before the
trial court, but the trial court has not evaluated the evidence in its true
perspective and came to wrong conclusion on most hyper technical
grounds, which are not available under the law, therefore, the finding
arrived at the by the trial court is liable to be reversed and a decree be
passed against the respondent.
3. From evidence of Laxman Singh (AW-1) and Fagu Singh (AW-2), it is
established that marriage between the parties solemnized on
15.05.2000 and after one year of marriage, she (respondent) deserted
the appellant. The appellant made frequent efforts to bring the
respondent from her parental home, but the same proved to be futile
exercise that is why the appellant filed the petition before the trial
court on 30.01.2003.
4. Learned counsel for the appellant submits that 16 years have been
passed, but the respondent voluntarily deserted husband against his
wishes and without his consent and never returned matrimonial home
for lost 16 years even after repeated efforts made by the appellant,
which shows that the respondent has permanently forsaken the
husband and has deserted husband without reasonable cause.
Therefore, looking to the intentional permanently abandonment, a
decree of divorce should be passed.
5. This appeal is continuation of the petition filed by the appellant. This
Court has issued notice to the respondent, but she refused to take the
notice, therefore, there is nothing on record to rebut the evidence
adduced by the appellant. From the evidence, it is clear that the
respondent is living separately in her parental home and she had no
intention to resume matrimonial relation. For desertion, two essential
conditions be there:-
(i) Factum of separation
(ii) Intention to bring cohabitation permanently to an end (animus
6. Similarly, two elements are essential for deserting the spouse:-
(i) absence of consent and
(ii) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home
7. There is nothing on record to show that there was any repulsive
conduct of the appellant for frustration of consummation of marriage. It
is also not on record that atmosphere prevalent in husband house
made it any harass her to stay there. From the evidence, it is
established that the appellant is always willing for company of the
respondent, but she refused to stay with the appellant. Again, she did
not participate in proceeding before the trial court and before this
Court which shows her intention to bring cohabitation permanently to
8. Looking to the entire evidence, it appears that the respondent is
reluctant to return to her matrimonial home and she is willing to get rid
of the appellant. She did not leave the house with the consent of the
appellant and there is nothing to show that conduct of the appellant
reasonably caused the respondent to leave the matrimonial home.
Looking to her desertion of 16 years and further looking to the fact that
she is not willing to participate in any legal proceeding, the only
course open for the parties to close the chapter when they cannot live
9. Looking to the factual and legal aspect of the matter, finding arrived at
by the trial court is not sustainable and the same is hereby set aside.
It is a case where decree of divorce should be passed in favour of the
appellant and against the respondent. The respondent did not appear
before the trial court, therefore, there is nothing on record that wife
has no independent income, therefore, alimony or maintenance is not
granted at this juncture, but she is at liberty for claiming alimony or
maintenance as per provisions of Hindu Marriage Act, 1955, Hindu
Adoption and Maintenance Act, 1956 or some other general laws. In
view of this Court, finding of the trial court is not sustainable and the
same is hereby reversed.
10. Accordingly, the decree is passed in favour of the appellant and
against the respondent on the following terms and conditions:-
(i) The appeal is allowed. The marriage between the appellant and
the respondent solemnized on 15.05.2000 is dissolved from the
date of decree.
(iii) Parties to bear their own costs.
(iv) Pleaders’ fee, if certified be calculated as per certificate or as
per schedule whichever is less.
(v) A decree be drawn accordingly.
(Ram Prasanna Sharma)