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Judgments of Supreme Court of India and High Courts

Smt. Shashi Prabha vs Ashok Dhawan on 29 October, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on : 26.10.2018
Date of decision: 29.10.2018

FAO 113/2002
SMT. SHASHI PRABHA ….. Petitioner
Through Mr. Prem Bhushan Dewan, Ms.
Gurjeet Kaur, Advocates.
Versus
ASHOK DHAWAN ….. Respondent
Through: Mr. P.P. Khurana, Sr. Adv. with
Mr. Anil Kumar Gupta,
Advocate.
CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT

ANU MALHOTRA, J.

1. The present appeal under Section 28 of the Hindu Marriage Act,
1955 (as amended) has been filed by Ms. Shashi Prabha against the
impugned judgment dated 31.01.2002 in HMA No.481/01 of the then
learned Additional District Judge, Delhi vide which in a petition under
Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act,
1955 (as amended) filed by Mr. Ashok Dhawan i.e. the respondent to
the present appeal as petitioner thereof, on the ground of alleged
cruelty and desertion, though the petition seeking the grant of a decree
of divorce on the ground of cruelty under Section 13(1)(ia) of the
Hindu Marriage Act, 1955 (as amended) was declined, nevertheless

FAO 113/2002 Page 1 of 19
the petition filed by the husband i.e. the respondent herein against the
appellant herein his wife on the ground of desertion under Section
13(1)(ib) of the Hindu Marriage Act, 1955 (as amended) was allowed.

2. As the parties to the present appeal were married on 30.08.1982
in accordance with Hindu Rites and Ceremonies and lived together till
14.03.1995 as contended by the respondent and till 15.03.1995 as
contended by the appellant herein, the parties to the present appeal
have admittedly not lived together from 16.03.1995 in any event till
date. There is no child born out of the wedlock between the parties.
Though, it was contended through averments made in the petition
HMA No.481/2001 by the respondent that a newly born male child
was taken in adoption in the month of February, 1994 on the instance
of the appellant herein, the said child was allegedly not cared for by
the appellant who persisted in her cruelties both with the respondent-
husband as well as on the minor child and ultimately left the
matrimonial home deserting the respondent spouse on 14.03.1995
when she took away all her articles of jewellery and clothes with her.

3. The alleged factum of adoption of the minor child and cruelty
to the minor child has not been accepted by the learned Trial Court
with it having been held that in the absence of the name of the
putative parents of the minor child, taking into account the factum that
there was no adoption deed executed and also the factum that there
was no voluntary consent of the wife i.e. the appellant herein, the
adoption of the minor child as contended by the husband i.e. the
respondent to the present appeal and the petitioner of the HMA
petition seeking divorce was not valid. The impugned verdict also

FAO 113/2002 Page 2 of 19
observed to the effect that the respondent herein i.e. the petitioner of
the HMA petition thereof seeking grant of divorce had not been able
to prove that his wife has treated him with cruelty. No cross appeal
was filed by the respondent to the present appeal i.e. the petitioner of
the HMA petition no.481/01 which had been initially instituted on
14.01.2000 and thus as observed hereinabove, the allegations of
cruelty meted out by the appellant to the respondent have not been
established.

4. Taking into account the factum that the allegations of cruelty
against the appellant have not been held to have been proved and there
being no cross appeal filed by the respondent herein against the
impugned judgment, it is only the allegations under Section 13(1)(ib)
of the Hindu Marriage Act, 1955 (as amended) levelled through the
petition and adjudicated upon by the learned Trial Court that are now
being considered.

5. The averments made in the petition in relation to the aspect of
alleged desertion are to the effect:-

“10. That on March 14, 1995, the respondent left the
company of the petitioner on the pretext that she has to join
same family get-together at her parents house. She also
took all her jewellery and valuable clothes with her. When
the respondent did not come back, the petitioner contacted
the respondent at her parents’ house and also at her office
and requested her to come back and join the company of
the petitioner. To the utter surprise of the petitioner, the
respondent not only completely ignored the reasonable
request of the petitioner, but also used abusive language.
The parents and relations of the petitioner also made efforts
and requested the respondent to join the company of the
petitioner. Despite all best efforts of the petitioner, his

FAO 113/2002 Page 3 of 19
parents and relatives, they could not succeed in getting her
back to the matrimonial house. Thus, the respondent has
left her matrimonial house without any rhyme and reason
and, as such deserted the petitioner and the minor child and
since then petitioner and his mother are bringing up the
minor child.

11. That the petitioner was shocked because of the
unwarranted attitude, conduct and behaviour of the
respondent and was expecting that a day will come when
good sense will prevail upon the respondent, when she will
realize her mistake and will tender her unconditional
apology for her misconduct and will join the petitioner’s
company. The respondent, however, did not pay any heed
towards the petitioner.

12. That the petitioner, as such, had left with no other
alternative remedy except to get the respondent served with
a legal notice dated September 11, 1998. The petitioner was
further shocked to see the reply to the said notice got sent
by the respondent through her Advocate, Sh. Prem
Bhushan Diwan, vide reply dated October 3rd, 1998 wherein
the respondent, inter-alia claimed that respondent has no
knowledge of the minor child. It is strange that the
respondent has gone to the extent of disowning her own
minor adopted son even. The said act of the respondent
clearly reveals that she has treated the petitioner with
cruelty and deserted his company willfully. The respondent
is living separately since 14th March 1995 from the
petitioner and since then she is residing with her parents
and she deserted and left the company of the petitioner with
her own wishes and thereby caused utmost cruelty upon the
petitioner and she withdrawn herself from the society of the
petitioner with her own wishes, without any lawful excuse
or reason.

13. That the respondent always threatened the petitioner
and his family members that she will implicate the
petitioner and his family members in false dowry as well as

FAO 113/2002 Page 4 of 19
criminal cases, if the petitioner would insist her to come
back.”

6. The respondent to the HMA petition i.e. the appellant herein
responded to these averments to the effect:-

“10. That para no.10 of the petition is wrong and denied. It
is denied that on 14th March, 1995, the respondent left the
company of the petitioner on the pretext that she had to join
some family get-together at her parents house or that she
took all her jewellery and valuable clothes with her. It is in
the knowledge of the petitioner that all items of istridhan
including the jewellery are in custody of the petitioner and
his family members. It is also in his knowledge that on or
about 15 March, 1995, petitioner picked up a quarrel with
respondent and started beating her mercilessly so much so
that the blood started oozing from the mouth and nose of
the respondent. Petitioner made it clear that he would not
allow respondent to live in her matrimonial house and in
furtherance of his above mentioned intention, he forced
respondent to sit with him in his car and brought
respondent in the house of her parents and threatened her
of dire consequence if the respondent ever dared to come to
her matrimonial house. The petitioner made it clear to the
respondent that in case respondent came to matrimonial
home he would do away with the life of the respondent. The
respondent apprehends danger to her life and limb from the
petitioner who is a police officer. It is denied that when the
respondent did not come back the petitioner contacted the
respondent at her parents house and also at her office and
requested her to come back or that she ignored the request
of the petitioner and used abusive language. It is denied
that the parents and relations of the petitioner also made
efforts but the respondent remained adamant and they
could not succeed. It is denied that the respondent left her

FAO 113/2002 Page 5 of 19
matrimonial house without any rhyme and reasons or that
she deserted the petitioner and the child. The allegations
are wrong and denied.

11. That para no.11 of the petition is wrong and denied. All
the allegations are wrong and the same are vehemently
denied. It is the petitioner who has treated the respondent
with contempt and cruelty and as such tendering the
apology from the respondent never arose.

12. That with regard to para no.12, it is stated that nowhere
in the notice dt. 11.9.1998 sent by the petitioner through his
counsel the petitioner has mentioned and stated about the
alleged adopted child. The petitioner in the said notice has
mentioned only (minor child) without giving any specific
details such as name of the child and other requisite
particulars and as such as the respondent has rightly stated
that she has no knowledge of the minor child. Thus the
petitioner can not take advantage of his own wrongs. As
mentioned above the said child was never adopted the
question of disowning the child does not arise. The
respondent has been forced to live with her parents and as
such the question of withdrawing from the company of the
petitioner does not arise. Moreover in her reply to the
notice the respondent made it clear that she was/is always
ready and willing to live with the petitioner provided the
petitioner does not ill treat.

13. That para no.13 is wrong and denied. It is denied that
the respondent always threatened the petitioner and his
family members that she will implicate the petitioner and
his family members in false dowry as well as criminal cases
if the petitioner would insist her to come back.”

7. During the arguments addressed on behalf of the appellant,

FAO 113/2002 Page 6 of 19
reliance was placed on the legal notice dated 11.09.1998 issued on
behalf of the respondent/ husband to the appellant herein with specific
averments made in Para 8 thereof of the said notice which reads to the
effect:-

“8. That ultimately you left the company of my client in March
1995 and deserted my client and the minor child without any
cause and reasons and took along with you all the valuable
articles and jewellery. That you willingly deserted and
withdrawn from the company of my client without my cause
and reason.”

8. It was further submitted on behalf of the appellant by the
learned counsel for the appellant that paragraph 12 of the said legal
notice which reads to the effect:-

“12. That you have totally failed to perform your marital
obligations. Therefore, I hereby call upon you on behalf of
my client to give the reply to this notice, within seven days
failing which my client shall be constrained to initiate
divorce proceedings against you in the competent court of
law at your costs, risk and consequence.”

itself it is an indication that the respondent herein did not seek the
return of his spouse back.

9. It is further contended on behalf of the appellant that the
impugned judgment is conspicuously silent in relation to the
contentions raised by the appellant herein through her written
statement in which she whilst denying that she left the company of her
husband i.e. the respondent herein on the pretext that she had joined
some family get together and had gone to her parental home taking all

FAO 113/2002 Page 7 of 19
her articles of jewellery and clothes with her, which articles of
jewellery and valuable clothes were claimed by the appellant herein as
respondent to the said petition HMA 481/2001 filed by the husband on
the grounds of cruelty and desertion that all articles of Istridhan
including the jewellery were in the custody of her husband and his
family members. She further contended that on or about 15.03.1995
her husband had picked up a quarrel with her and started beating her
mercilessly so much so that blood started oozing from her mouth and
nose and that the respondent herein i.e. the petitioner of the divorce
petition had made it clear that he would not allow his wife to live in
her matrimonial home and in furtherance of the same he had forced
her to sit with him in his car and had brought her to the house of his
parents and threatened her with dire consequences if she further dared
to come to her matrimonial home and that he made it clear to her that
in case she came back to her matrimonial home he would do away
with her life and that she apprehended danger to her life and limb from
her husband who was a police officer.

10. The appellant herein through her written statement had also
denied that her husband i.e. the respondent to the present appeal had
contacted her at her parental home or at her office and had requested
her to come back which had been ignored by her and that she had used
abusive language and also denied that the parents and relations of her
husband had made any efforts for her to return.

11. It was also contended on behalf of the appellant herein that
significantly the petitioner of the divorce petition i.e. the respondent to
the present appeal had not cross examined her in relation to this aspect

FAO 113/2002 Page 8 of 19
when her testimony was recorded and thus her testimony to the
effect:-

“On 15.03.1995 the petitioner started quarreling with me in
the morning hour and he had beaten me and as a result of
injuries I started bleeding from my nose. He took me to my
parental house and forcibly left me outside the house. He
threatened that in case I would join him at my matrimonial
home again, then he will kill me.”,

….had remained unchallenged and established that it was not she
who deserted the matrimonial home.

12. The testimony of the appellant as RW-1 is also categorical to
the effect:-

“It is wrong that I left my parental home on 14.03.1995 on the
pretext that I have to join a function there with all my jewellery
and costly clothes etc.
It is wrong that when petitioner confronted me that he was not
invited for the function, then I started abusing him.”

13. Undoubtedly in his testimony as PW-1, the husband i.e. the
petitioner of the divorce petition arrayed as respondent to the present
appeal had stated :-

“It is wrong that the respondent resided at her matrimonial
home till 15.03.1995 or that she had dealt me and my family
members nicely. It is also wrong that she had taken care of the
child well. It is wrong that on 15.03.1995 I quarreled with the
respondent and had beaten her, or that I made it clear to her
that I will not allow her to stay in her matrimonial home.
It is wrong that I made her to sit in my vehicle and drove her to
her parents home. It is also wrong that I had left her at her
parental home and directed her not to return to her matrimonial

FAO 113/2002 Page 9 of 19
home.”

14. However, as rightly contended on behalf of the appellant that
the testimony of the appellant herself as RW-1 in relation to the aspect
that she was virtually turned out from the matrimonial home and left
by her husband i.e. the respondent to the present appeal at her
matrimonial home after she had been assaulted mercilessly and that
the respondent left her outside her parental home and had threatened
her that he would kill her if she returned, has been conspicuously
overlooked in the impugned judgment.

15. The response dated 03.10.1998 vide Ex.PW1/B of the appellant
herein to the legal notice vide Ex.PW1/A dated 11.09.1998 issued on
behalf of the husband vide Para 10 which is categorical to the effect:-

“10. That para no.10 of the notice is absolutely wrong and
denied. Your client has no right to beat my client as a
commodity. You client is under legal obligation to give her due
respect and regard and has got no right to beat her. You client
has turned out my client from her matrimonial house and as
such he has got no right to take advantage of his own wrongs.
My client was/ is always ready and willing to live with him in
her matrimonial house provided he does not ill-treat her by
giving her mental and physical cruelty through regular
beatings. My client has got no idea about the child.”

16. The appellant thus therein had stated that she was ready and
willing to live with her spouse in the matrimonial home provided he
did not ill-treat her by giving her any beatings. Vide the impugned
judgment in relation to the allegations of cruelty levelled against the
appellant, it was observed to the effect that there were categorical

FAO 113/2002 Page 10 of 19
improvements that had been made by the respondent/ petitioner
spouse against his wife in relation to which it was submitted on behalf
of the appellant that the improvements in relation to allegations
against the wife i.e. the appellant herein of her having deserted the
husband have not been dealt with nor adjudicated upon vide the
impugned judgment which is apparently borne out to be correct on a
perusal of the impugned judgment.

17. Reliance was placed on behalf of the appellant on the verdict of
the Hon’le Supreme Court in “Savitri Pandey Vs. Prem Chandra
Pandey” I (2002) DMC 177 to contend that the legal notice
Ex.PW1/A dated 11.09.1998 itself put forth by the husband and the
averments in the petition HMA No. 54/2000 re-numbered as HMA
NO.481/2001, is conspicuously silent in relation to the aspect that
during all the period there has been a desertion, the deserted spouse
must affirm the marriage and be ready and willing to resume married
life with such conditions as may be reasonable, which it is submitted it
is not so in the instant case and significantly, the testimony of the
respondent/ husband as PW-1 dated 24.10.2000 in the last sentence
reads to the effect:-

“I am not ready to accept the respondent in case she joined
her matrimonial home today.”

18. The observations thus in “Bipin Chander Jaisinghbhai Shah
vs. Prabhawati as laid down by the Hon’ble Supreme Court in AIR
1957 SC 176, which reads to the effect:-

FAO 113/2002 Page 11 of 19

7. “Desertion”, for the purpose of seeking divorce under the
Act, means the intentional permanent forsaking and
abandonment of one spouse by the other without that other’s
consent and without reasonable cause. In other words it is a
total repudiation of the obligations of marriage. Desertion is
not the withdrawal from a place but from a state of things.
Desertion, therefore, means withdrawing from the
matrimonial obligations, i.e., not permitting or allowing and
facilitating the cohabitation between the parties. The proof
of desertion has to be considered by taking into
consideration the concept of marriage which in law legalises
the sexual relationship between man and woman in the
society for the perpetuation of race, permitting lawful
indulgence in passion to prevent licentiousness and for
procreation of children. Desertion is not a single act
complete in itself, it is a continuous course of conduct to be
determined under the facts and circumstances of each case.
After referring to host of authorities and the views of various
authors, this Court in Bipinchandra Jaisinghbhai Shah v.
Prabhavati [AIR 1957 SC 176] held that if a spouse
abandons the other in a state of temporary passions, for
example, anger or disgust without intending permanently to
cease cohabitation, it will not amount to desertion. It further
held:

“For the office 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
different 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

FAO 113/2002 Page 12 of 19
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 co-exist. But it is not necessary that they should
commence at the same time. The de facto separation may have
commenced without the necessary animus ort 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 decide 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

FAO 113/2002 Page 13 of 19
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.”

“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 bonafide offer of resuming the
matrimonial some 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 the 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 any 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.”

Emphasis supplied,

apply wholly in the facts and circumstances of the instant case in view
of the response dated 03.10.1998 that was submitted by the appellant
to the legal notice issued by the respondent to the present appeal. The
response dated 03.10.1998 expressed vide Para 10 thereof that she was
always ready and willing to live with her husband in her matrimonial
home provided he did not ill-treat her by giving her mental and

FAO 113/2002 Page 14 of 19
physical cruelty through regular beatings.

19. In the circumstances, it cannot be held that the appellant had
deserted the respondent in terms of Section 13(1)(ib) of the Hindu
Marriage Act, 1955 (as amended) with an animus deserandi to end co-
habitation for all time to come.

20. An observation was however made vide para 29 of the
impugned judgment to the effect that the marriage between the parties
had broken down irretrievably. As rightly contended on behalf of the
appellant and not refuted on behalf of the respondent, as laid down in
“Mini Appa Kanda Swami @ Mani Vs. M. Indra” vide a verdict
dated 21.09.2016 of the Hon’ble Division Bench of this Court in
MAT.APP.45/2011 in view of the verdict of the Hon’ble Supreme
Court in “Vishnu Dutt Sharma Vs. Manju Sharma” (2009) 6 SCC
379 and as laid down by the Hon’ble Supreme Court in “Anil Kumar
Jain Vs. Maya Jain” 2009 (12) Scale 115 as observed vide Para 17
thereof to the effect that:-

“17. This doctrine of irretrievable break-down of marriage
is not available even to the High Courts which do not have
powers similar to those exercised by the Supreme Court
under Article 142 of the Constitution.”

and the ratio of the verdict in “Mini Appa Kanda Swami” (supra)
vide para 23 of the said verdict to the effect:-

“23. This Court thus lacks jurisdiction to dissolve a
marriage on the doctrine of “irretrievable breakdown.”,

the High Court lacks jurisdiction to dissolve the marriage on the
doctorine of irretrievable break down and likewise the learned Trial

FAO 113/2002 Page 15 of 19
Court of the ADJ concerned too did not have the requisite jurisdiction
to dissolve the marriage between the parties to the petition on the
grounds of cruelty and desertion on the grounds of irretrievable break
down of marriage.

21. Reliance was however placed on behalf of the respondent by the
learned Senior counsel for the respondent through the course of the
arguments addressed on the verdict of the Hon’ble Supreme Court in
“Rishikesh Sharma Vs. Saroj Sharma” (2007) 2 SCC 263 to
contend that though the husband was ready and willing to pay a lump
sum amount by way of permanent alimony to his wife and the wife
was not willing to accept the lump sum amount and expressed her
willingness to live with her husband which it was held by the Hon’ble
Supreme Court was not a genuine desire to live with her husband in
view of the distance of time and the appeal in that case was allowed
with a decree of dissolution of marriage having been granted in favour
of the husband in which case it had been observed that the marriage
had irretrievably broken down with no possibility of the parties living
together again with no useful purpose.

22. Reliance was also placed on behalf of the respondent during the
course of the arguments addressed on the verdict of the Hon’ble
Supreme Court in “Naveen Kohli Vs. Neelu Kohli” 128 (2006) DLT
360 (SC) to contend that it would not be justified for this Court to set
aside the order of the learned Trial Court that parties had been living
apart from 1995 i.e. virtually from 23 years now with the matrimonial
bond between the parties having broken beyond repair and not
granting the decree of divorce would be disastrous for the parties.

FAO 113/2002 Page 16 of 19

Reliance was however, also placed on behalf of the respondent on the
verdict of the Hon’ble Division Bench of this Court in “Sandhya
Kumari Vs. Manish Kumar” 234 (2016) DLT 381 to contend that
where the marriage was a total wreck and in that case where the
parties were living apart from 2011 and various efforts made for
conciliation have failed and there was a irretrievable break down of
the marriage, though irretrievable break down of marriage is not a
ground for divorce, it was observed that the concept of cruelty in the
judgments in “Madhvi Ramesh Dudani Vs. Ramesh K. Dudani
2007 (4) KHC 807, Shrikumar V. Unnithan V. Manju K. Nair,
1993 (SLT Soft) 358, V. Bhagat Vs. D. Bhagat 128 (2006) DLT
360, Navin Kohli Vs. Neelu Kohli”, the concept of cruelty had been
blended by the Courts that the irretrievable break down of marriage
and the ratio of law which emerged from the said decisions was that
whether there is evidence that the husband and wife were indulged in
mutual bickering leading to remonstration and therefrom to the stage
where they target each other mentally, insistence by one to retain the
matrimonial bond would be a relevant factor to decide on the issue of
cruelty for the reason the obvious intention of the said spouse would
be to continue with the marriage not to enjoy the bliss thereof but to
torment and traumatize each other.

23. Reliance was also placed on behalf of the respondent by the
learned Senior counsel on the observations of this Court in “Smt.
Vimal Kanta vs. J.M. Kohli” in FAO 46/1995 decided on
13.01.2011, wherein it was observed to the effect that in that case
where the appellant was of the age of 80 years and had challenged the

FAO 113/2002 Page 17 of 19
decree of divorce passed by the learned Trial Court dated 30.09.1994
on the ground of desertion under Section 13(1)(ib) of the Hindu
Marriage Act, 1955 (as amended), in which case the respondent had
successfully proved the ground of desertion, it had been observed that
the learned Court had inquired as to why the appellant wanted to be
the legally wedded wife till her last breath and whether it was for the
pride of the red vermillion adorning her or was it because she had her
eyes on the enrichments that would ensue if she still has the status of
the wife of the respondent or was it because there was nothing but
pure vengeance to settle the score with the respondent that propelled
the appellant to fight this arduous legal battle when practically her
marital life turned catastrophic long back and it was thus held in the
circumstances of that case that this Court did not find any illegality or
perversity in the findings arrived at by the learned Trial Court
dissolving the marriage between the parties thereto on the ground of
desertion.

24. It was submitted on behalf of the appellant by the learned
counsel for the appellant that the verdicts relied upon on behalf of the
respondent related to reasonable satisfactory lump sum amount being
offered to the wife which had been declined by her with persistence to
continue to live with her husband, whereas in the instant case there
was no reasonable quantification of any amount being paid by the
respondent to the appellant.

25. During the course of arguments in the appeal on 26.10.2018 in
response to specific court queries put by this Court to both the
appellant and the respondent herein it was apparent that they both

FAO 113/2002 Page 18 of 19
expressed difficulty in now resuming their relations which had
virtually ceased in mid March, 1995. Be that as it may, as already
observed hereinabove irretrievable break down of marriage is not a
ground for divorce under Section 13(1)(ia) of the Hindu Marriage Act,
1955 (as amended). Attempts at mediation in the instant case at least
twice as per record available have not resulted into any settlement and
the attempt at settlement made during the course of arguments
addressed before this Court also on 26.10.2018 have not yielded any
result.

26. Taking the totality of the circumstances of the case into account,
with it having been observed hereinabove and held to the effect that
the available record before the learned Trial Court did not establish the
animus deserendi of the appellant herein to desert the respondent by
non resumption of cohabitation, in the facts and circumstances of the
instant case, the impugned decree of divorce against the appellant
herein and in favour of the respondent on the ground of desertion
under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (as
amended) in HMA 481/01 is thus set aside.

27. The present appeal FAO 113/2002 is accordingly allowed.

ANU MALHOTRA, J

OCTOBER 29, 2018
NC

FAO 113/2002 Page 19 of 19

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