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Smt. Shalini Singh vs Alok Kumar Singh on 17 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R

Reserved on: 16.10.2019

Delivered on: 17.1.2020

Court No. – 34

Case :- FIRST APPEAL No. – 385 of 2016

Appellant :- Smt. Shalini Singh

Respondent :- Alok Kumar Singh

Counsel for Appellant :- Rahul Sahai

Counsel for Respondent :- Sanjay Singh, Adarsh Bhushan,Amrendra Nath Rai

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

(Delivered by Hon’ble Rajeev Misra,J.)

1. This is defendant’s appeal under Section 19 of Family Courts Act 1984 (hereinafter referred to as ‘Act, 1984’), arising out of judgment and decree dated 5.9.2016, passed by Principal Judge, Family Court, Azamgarh in Case No. 50 of 2014 (Alok Kumar Singh Vs. Smt. Shalini Singh), whereby aforesaid case filed by plaintiff-respondent for divorce on ground of desertion has been decreed.

2. We have heard Mr. Aditya Singh Parihar, Advocate holding brief of Mr. Rahul Sahai, learned counsel for defendant-appellant (hereinafter referred to as ‘appellant’) and Mr. Amrendra Nath Rai, learned counsel representing plaintiff-respondent (hereinafter referred to as ‘respondent’).

3. It transpires from record that marriage of appellant (wife) was solemnized with respondent (husband) on 12.12.2006 in accordance with Hindu Rites and Customs. It is alleged by respondent (husband) that appellant (wife) deserted respondent about one month prior to date of institution of divorce case. For better appreciation, it is useful to reproduce paragraphs 6 and 10 of plaint of Case No. 50 of 2014 (Alok Kumar Singh Vs. Smt. Shalini Singh) :

^^6 ;g fd vlkZ djhc ,d ekg iwoZ foi{[email protected] ds cM+s HkkbZ ge oknh ds ?kj vk;s rFkk firkth ls dgs fd [kkunku es gh yM+dh dh ‘kknh gS] ‘kkfyuh dks fonk dj nhft;sA yM+dh dh ‘kknh esa f’kjdr djus gsrq ge oknh ds ekrkfirk c[kq’kh o jtkeanh foi{kh dks [kq’kh[kq’kh e; diM+s tsojkr o udnh ds lkFk fonk dj fn;sA

10 ;g fd okn dkj.k fnukad 1512014 dks iSnk gqvk tc fd foi{kh ge oknh ds ?kj jgus o mijksDr vof/k vlkZ djhc 34 o”kZ iwoZ ls dksgSfoV djus o ‘kkjhfjd lEca/k LFkkfir djus ls bUdkj djus o la;qDr ifjokj ds yksxks ds lkFk nqO;Zogkj o xkyhxykSt o rksM+QksM+ djus o nkEiR; thou ls xqjst djus ds dkj.k Jheku ds U;k;ky; ds {kskf/kdkj ds rgr iSnk gqvk vkSj U;k;ky; dks okn dh lquokbZ dk iw.kZ {kskf/kdkj gSA**

“6. That around one month ago elder brother of the lady respondent/defendant came to our house and requested father to give a send-off to Shalini because a marriage was to be solemnised in their family. We, the parents of the petitioner, gave a sent-off on a happy note and with all pleasure to the respondent alongwith clothes, jewellery and cash for her participation in girl’s marriage.

10. That a cause of action arose on 15.1.2014 under the jurisdiction of your goodself’s court when respondent refused to reside in the petitioner’s house, to cohabit and establish physical relation with the petitioner for the aforesaid period i.e. about 3-4 years, thus refrained from marital life, and also misbehaved with members of our joint family; and this Court has proper jurisdiction to hear the case.”

(English Translation by Court)

4. Suit filed by respondent was contested by appellant. Accordingly, appellant filed a written statement whereby, most of the allegations made in plaint were denied and additional pleas were also raised. Admitting the factum of marriage respondent and appellant, it was pleaded by appellant that from the aforesaid wedlock, two daughters namely, Vijeta and Pihu were born. The averments made in paragraphs 6 and 10 of plaint, were categorically denied. It was stated that desertion as a ground of divorce has been set up by plaintiff on incorrect facts. There is no factual basis for pleading desertion. It was also stated that respondent and his family members have continuously demanded additional dowry from appellant. In pursuit of their aforesaid demand, appellant has continuously been harassed and treated with cruelty by respondent and his family members. Respondent wants to have a second marriage and therefore, suit for divorce on the ground of desertion has been filed which is liable to be dismissed. Appellant categorically pleaded her readiness and willingness to reside with respondent.

5. On the pleadings of parties as noted above, Court below framed following three issues:

(i) Whether defendant-appellant is residing separately from plaintiff-respondent at her maternal home without any valid reason. If yes, its effect.

(ii) Whether defendant-appellant has deserted plaintiff-respondent without any valid reason, if yes, its effect.

(iii) To what relief is plaintiff-respondent entitled for.

6. After issues were framed, parties went to trial. Respondent in order to prove his case, adduced himself as P.W. 1 and Lok Nath Singh as P.W.2. Further respondent filed two documents in evidence vide list of documents- Paper No. 7 Ga-1 namely, (photocopy of identity card-8 Ga-1) and Paper No. 39 Ga-1 (pay slip for the month of May and June, 2016 Paper No. 40 Ga-1).

7. Appellant in order to establish her defence adduced herself as D.W.1 and one Bhupendra Kumar Singh as D.W.2. In documentary evidence, appellant filed medical certificate dated 21.5.2016 i.e. Paper No. 30 Ga-2.

8. Court below proceeded to decide above mentioned divorce suit by considering pleadings of parties and oral as well as documentary evidence adduced by parties. In respect of Issue No.1, Court below concluded that appellant is residing separately from respondent since last three to four years. Regarding Issue No.2, Court below held that failure on the part of appellant in not residing with respondent, without any sufficient reason, amounts to commission of ‘mental cruelty’. Further, respondent has succeeded in proving desertion on the part of defendant-appellant. In view of findings recorded in respect of issue nos. 1 and 2, Court below concluded that respondent is entitled to decree of divorce on the ground of desertion by appellant (wife) without any valid reason. Consequently, Court below by means of judgement and decree dated 5.9.2016, decreed suit of plaintiff-respondent on the ground of ‘desertion’. Feeling aggrieved by aforesaid judgement and decree appellant (wife) has approached this Court by means of present First Appeal filed under Section 19 of Act 1984.

9. Mr. Aditya Singh Parihar, learned counsel appearing for appellant submits that impugned judgement and decree passed by Court below is unsustainable in law and fact, Consequently, same are liable to be set aside by this Court. According to learned Counsel, suit for divorce was filed by respondent on the ground of ‘desertion’ and not on the ground of ‘cruelty’. Consequently, Court below, did not frame any issue with regard to commission of ‘cruelty’ by appellant upon respondent. Since suit was filed on the ground of ‘desertion’, pre-condition necessary for a decree of divorce on ground of desertion must have been satisfied on the date of filing of suit. The period of desertion subsequent to filing of divorce suit cannot be looked into for calculating mandatory period of two years, which is a pre condition for filing a suit for divorce on the ground of ‘desertion’. In the case in hand, suit was filed before expiry of a period of two years of desertion on the part of appellant. As such, essential pre-condition for seeking a decree of divorce on the ground of ‘desertion’ was not satisfied on the date of institution of suit. Court below by adopting a strange procedure has concluded that mental ‘cruelty’ was committed by defendant-appellant upon plaintiff-respondent in the years subsequent to filing of suit and therefore, it proved desertion also. Hence, impugned judgement and decree passed by Court below are liable to be set aside by this Court.

10. Mr. Amrendra Nath Rai, learned counsel for respondent has supported impugned judgement and decree on the reasonings recorded by Court below in impugned judgement. He has further relied upon various observations made by Court below and on cumulative basis, he submits that impugned judgement and decree passed by Court below are not liable to be interfered with.

11. Having heard learned counsel for parties at length and in detail we find that only issue which arises for consideration in this appeal is:- “Whether suit for divorce filed by respondent on the ground of ‘desertion’ was not maintainable, as statutory period of two years desertion by other party had not expired on the date of institution of suit”.

12. Before proceeding to consider the issue involved in the present appeal, it would be prudent to reproduce Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as’ Act, 1955′) which provides for grounds of divorce:

” 13 Divorce. –(1) Any marriage solemnized, 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 other party–

[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.–In this clause,–

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has, been suffering from a virulent and incurable form of leprosy; or

(v) has, been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

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 accordingly.

(1-A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground–

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or [bestiality; or]

[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

Explanation. –This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]

13. There is a State of U.P. Amendment also but it is not relevant for the present purpose, hence we are not referring it.

14. The term ‘desertion’ has not been defined in Act, 1955. Section 13 (1) (1b) of Act, 1955 only provides for pre-condition necessary for seeking divorce on ground of desertion. In this regard, reference be made to Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, 2002 (1) SCC 308, wherein Court has dealt with concept of ‘desertion’ and observed as follows in paragraphs 7, 8, 9, 10, 11 and 12:

“7. “Desertion” in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:

1. the factum of separation;

2. the intention to bring cohabitation permanently to an end — animus deserendi;

3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;

The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include “wilful neglect” of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). 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. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.

8. This Court in the case of Bipin Chander Jaisinghbhai Shah v.Prabhawati [1956 SCR 838 : AIR 1957 SC 176] observed: (AIR pp. 183-84 190-91, paras 10 21)

“Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. 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, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). 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. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case.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 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; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.

But it is not necessary that at the time the wife left her husband’s home she should have at the same time the animus deserendi. Let us therefore examine the question whether the defendant in this case, even if she had no such intention at the time she left Bombay, subsequently decided to put an end to the matrimonial tie. This is in consonance with the latest pronouncement of the Judicial Committee of the Privy Council in the case of Lang v. Lang [1955 AC 402 : (1954) 3 All ER 571 : (1954) 3 WLR 762 (PC)] AC at p. 417(F) in an appeal from the decision of the High Court of Australia, to the following effect:

”Both in England and in Australia, to establish desertion two things must be proved: first, certain outward and visible conduct — the ”factum’ of desertion; secondly, the ”animus deserendi’ — the intention underlying this conduct to bring the matrimonial union to an end.

In ordinary desertion the factum is simple; it is the act of the absconding party in leaving the matrimonial home. The contest in such a case will be almost entirely as to the ”animus’. Was the intention of the party leaving the home to break it up for good, or something short of, or different from that?’ ”

(emphasis supplied)

9. In the case of Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40 : (1964) 4 SCR 331] a Constitution Bench of this Court, considering the case of judicial separation on the ground of desertion without just cause, held on facts that the respondent (wife) left the appellant’s matrimonial home on 26-2-1954 with the intention of permanently breaking it up, and that such desertion continued during the requisite period of two years and that the appellant’s letter of 1-4-1955, did not constitute an interruption of the respondent’s desertion by its being a just cause for her to remain away from the matrimonial home; and that, in consequence, the appellant was entitled to a decree for judicial separation under Section 10(1)(a) of the Hindu Marriage Act, 1955. It was observed that: (AIR p. 52, para 28)

“An offer to return to the matrimonial home after some time, though desertion had started, if genuine and sincere and represented his or her true feelings and intention, would bring to an end the desertion because thereafter the animus deserendiwould be lacking, though the factum of separation might continue; but on the other hand, if the offer was not sincere and there was in reality no intention to return, the mere fact that letters were written expressing such an intention would not interrupt the desertion from continuing.”

In this connection, reference was also made to the decision in the case of Bipin Chander Jaisinghbhai Shah v. Prabhawati [1956 SCR 838 : AIR 1957 SC 176] .

10. This Court in the case of Rohini Kumari v. Narendra Singh[(1972) 1 SCC 1 : 1972 SCC (Cri) 1] while considering the case of judicial separation on the ground of desertion under Section 10(1)(a) of the Act read with the Explanation, held: (SCC pp. 3-4, paras 4-5)

“The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of ”constructive desertion’ is discussed at p. 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.

In Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40 : (1964) 4 SCR 331] this Court had occasion to consider the true meaning and ambit of Section 10(1)(a) of the Act read with the Explanation. Reference was made in the majority judgment to the earlier decision in Bipin Chander Jaisinghbhai Shah v.Prabhawati [1956 SCR 838 : AIR 1957 SC 176] in which all the English decisions as also the statement contained in authoritative textbooks were considered. After referring to the two essential conditions, namely, the factum of physical separation and the animus deserendi which meant the intention to bring the cohabitation permanently to an end as also the two elements so far as the deserted spouse was concerned i.e. (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid, it was observed while examining how desertion might come to an end:

”In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to have regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where, however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse.’ ”

(emphasis supplied)

11. This Court in the case of Sanat Kumar Agarwal v. Nandini Agarwal [(1990) 1 SCC 475] considering a case under Section 13(1)(ib) of the Act, held that it is well settled that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation.

This extract is taken from Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308 at page 317

12. In a recent case in Chetan Dass v. Kamla Devi [(2001) 4 SCC 250] this Court considered the question whether the offer made by the husband in this Court to keep his wife, was held to be not sincere and did not deserve to be seriously considered. In that connection, this Court held: (SCC p. 258, para 12)

“12. During the course of the arguments, learned counsel for the appellant, so as to show the allegations made against the appellant about having illegitimate relationship with Sosamma Thomas (sic), submitted that the appellant is still prepared to keep the respondent Kamla Devi with him. According to him, the appellant never refused to live with her. In reply, learned counsel for the respondent submitted that the respondent was also prepared to live with the appellant provided that he discontinued his relationship with Sosamma Thomas. The hollowness of the submission that the appellant was still prepared to keep the respondent with him is quite apparent. It is on record that it was on the same undertaking that the respondent was taken to Ganganagar by the appellant to live with him but there she was subjected to humiliating treatment meted out to her by the appellant himself having his food only in the room of Sosamma Thomas and staying there during the night leaving his wife and sister alone on the ground floor. With this kind of attitude, the offer as made on behalf of the appellant is too shallow to deserve any serious thought. At the same time, the condition on which the respondent is prepared to live with him seems to be quite justified, that is to say, she is still prepared to live with him provided he behaves and snaps his relationship with the other woman. It is apparent that it is the own conduct of the appellant which led the respondent to live separate from the appellant. None else, but the appellant alone, is to be blamed for such an unhappy and unfortunate situation. The findings of facts, as recorded by the two courts below, do not deserve to be disturbed in any manner nor have they been seriously assailed before us.”

(Emphasis added)

15. This Court now has to examine the claim of respondent as per mandate of section 13 (1)(ib) of Act 1955 and meaning assigned to the term ‘desertion’ as noted above. Section 13 (1) (ib) of Act 1955, clearly provides for grant of decree of divorce on the ground of ‘desertion’. However, in order to seek decree of divorce on the ground of ‘desertion’, plaintiff must prove that he/she has been deserted for a continuous period of not less than two years immediately, preceding the presentation of the petition. Therefore, what implies from plain reading of aforesaid section is that defendant must have deserted petitioner for a continuous period of two years prior to the date of institution of suit. The aforesaid requirement can be termed as a necessary pre- condition for seeking a decree of divorce on ground of desertion. Therefore, it is imperative on the part of plaintiff to plead and prove that defendant has deserted plaintiff and has continued doing so uninterruptedly for a period of two years, prior to the institution of suit.

16. Consequently, now this Court has to examine whether the pre requisite condition for grant of a decree of divorce on the ground of desertion is satisfied in the present case or not. When we examine the averments made in paragraphs 6 and 10 of plaint, as quoted above, we find that respondent has miserably failed to plead that appellant has deserted respondent continuously for a period of two years prior to the date of institution of suit. What has been considered by Court below is the period subsequent to institution of suit i.e., there has been continuous desertion on part of appellant for a period of three to four years. View taken by court below cannot be sustained as according to scheme of Act, it is the period of two years of continuous desertion prior to institution of suit, which has to be pleaded and proved by plaintiff in order to succeed in a suit for divorce on ground of desertion. Since respondent failed to plead and prove that appellant had deserted him continuously for a period of two years, prior to date of presentation of plaint, suit for divorce on the ground of ‘desertion’ could not have been decreed. Apart from above, we also find that in order to justify ‘desertion’ on part of defendant-appellant, court below has taken into consideration the subsequent events which took place after institution of suit. View taken by Court below is manifestly illegal as subsequent events could not have been taken into consideration in a suit for divorce as per scheme of Act itself.

17. We, accordingly, confronted learned counsel for respondent on the aforesaid aspect of matter, but he could not create any dent. Except for reiterating the findings recorded by court below and observations made in the impugned judgement, nothing new could be added to dissuade us from the view taken by us with regard to import of section 13 (1) (ib) of Act 1955.

18. In view of discussions made herein-above, present appeal succeeds and is liable to be allowed. It is accordingly allowed. Impugned judgement and decree dated 5.9.2016, passed by Principal Judge, Family Court, Azamgarh in Case No. 50 of 2014 (Alok Kumar Singh Vs. Smt. Shalini Singh), are hereby set aside. Appellant shall be entitled to cost, which we quantify at Rs. 1,00,000/-. Cost shall be deposited by respondent with the Court below by means of a Bank Draft payable in favour of appellant within a period of one month from today.

Order Date :- 17.1.2020

Arshad

 

 

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