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Sujoy Ghosh Dastidar vs Dayita Ghosh Dastidar on 18 December, 2017

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First Appeal No. 161 of 2011
——

[An application under Section 28(1) of Hindu Marriage Act, 1955
read with Section 19(1) of the Family Courts Act, 1984]

Sujoy Ghosh Dastidar …. …. …. Appellant
Versus
Dayita Ghosh Dastidar …. …. …. Respondent

For the Appellant : Mr. Rajivnandan Sahay, Sr. Advocate
Mr. Yashvardhan, Advocate
Mr. S.P. Mehta, Advocate
Mr. Binod Kumar, Advocate
For the Respondent :

PRESENT
HON’BLE MR. JUSTICE APARESH KUMAR SINGH
HON’BLE MR. JUSTICE B.B. MANGALMURTI

By Court Heard learned counsel for the appellant.

2. The respondent has not appeared despite service of notice on three
occasions. It is pertinent to mention here that the Matrimonial Suit No.406 of
2010 instituted by the husband/appellant herein was decided ex-parte as despite
service of notice including through paper publication, the respondent did not
appear to contest the suit as per the order dated 18th July, 2011 passed by the
court of learned Principal Judge, Family Court, Jamshedpur.

3. The appellant herein is aggrieved by the dismissal of the Matrimonial Suit
vide impugned judgment dated 19th September, 2011 and decree dated 23rd
September, 2011 passed by the Principal Judge, Family Court, Jamshedpur in
Matrimonial Suit No.406 of 2010. The appellant had approached the learned
Family Court for dissolution of marriage under Section 13 (1) (a) of the Hindu
Marriage Act while also taking a ground of desertion as per the averments made
in the plaint. The case of the appellant in nut-shell is inter alia as follows:-

The marriage between the parties was solemnized on 5th December, 2000
as per Hindu Rites and Custom whereafter both of them were living together as
husband and wife at Jamshedpur. No child was born out of the wedlock. It was
detected sometime in May, 2003 that the respondent-wife was suffering from a
disease when she was advised to undergo treatment at Tata Memorial Hospital at
Mumbai for suspected case of Cancer. The husband undertook the expenses for
the treatment but there were no signs of improvement. The respondent’s family
took her back from her matrimonial home on 18 th May, 2005 and thereafter she
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has been residing there. On 29th October, 2008 she alongwith her mother Smt.
Rama Guha took all her articles and belongings to her parental house. The family
of the respondent knew that she was suffering from Tumor in her ovary which is
a incurable disease with no chance of recovery. The respondent deserted the
petitioner-husband without any fault on his side for which he has been suffering
since 2005. Neither he has condoned the act of desertion or cruelty nor has he
connived with the respondent. The cause of action for institution of the suit arose
lastly on 18th May, 2005 when both the parties had resided together at their
conjugal home in Jamshedpur. The husband prayed for a decree of divorce on the
ground of desertion (inadvertently typed as dissolution), cruelty and incurable
disease together with cost. During the course of the trial which proceeded
ex-parte, the petitioner/husband adduced three witnesses. P.W.1-petitioner
himself, P.W.2-Rajesh Narayan, a close friend of the petitioner and P.W.3-Ajay
Kumar. No one turned up on behalf of the respondent to cross-examine these
witnesses. The following list of documents were filed on behalf of the petitioner
namely (i) photocopy of letter dated 13th August 2003 of Dr. M. Roy, A.G.M.
Medical Services to the Director, Tata Memorial Hospital, Mumbai (ii)
photocopy of advance payment voucher dated 13 th August, 2003 (iii) photocopy
of credit card number 5455 dated 19th August, 2003 issued by Tata Memorial
Hospital (iv) photocopy of letter dated 26th November, 2004 issued by Dr. M.
Roy, A.G.M., Medical Services, Tata Motors. The appellant examined himself
and supported the case set up through his plaint. He further stated that since 18 th
May, 2003 respondent was suffering from different diseases and when the local
doctors suspected her suffering from Cancer she was referred to Tata Memorial
Hospital, Mumbai and treated there. He further deposed that the respondent’s
family took her back to her matrimonial home and from that period she was
residing there and till now she is living at her parental home. Other witnesses
have also reportedly deposed in favour of the petitioner’s case. The learned trial
court disbelieved the case of the petitioner for dissolution of the marriage on the
ground that she was suffering from incurable disease as there is no such ground
permissible under Section 13 of the Hindu Marriage Act, 1955. From the
evidence adduced on behalf of the petitioner, it did not appear to the learned
Family Court that the respondent-wife ever treated him with cruelty rather she
was suffering from different diseases. The learned trial court also discussed the
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plea of the petitioner on the point of desertion and came to a finding that there is
no evidence on record to show that the respondent-wife ever withdrew from the
matrimonial obligations. Therefore, it held that the petitioner had failed to
establish the aforesaid grounds for dissolution of marriage.

4. Learned Senior Counsel for the appellant has fervently submitted that
leaving of matrimonial home from December, 2005 on the part of the respondent
without any cause till date is sufficient to establish the plea of desertion.
Desertion in such a manner would also amount to mental cruelty. The intention of
the respondent not to continue with the matrimonial relationship can easily be
inferred in the undisputed facts of the case and the material evidence on record.
The conduct of the respondent-wife shows that she has shown no interest even in
appearing before the learned trial court or this court to contest the claim of the
petitioner/appellant for divorce on these grounds. The respondent-wife does not
seems to be interested in maintaining any conjugal life with the
appellant/husband. In these circumstances, the marriage has irretrievably broken
down also which can be a ground for dissolution of the marriage. Learned Senior
Counsel for the appellant has relied upon the judgment rendered by the Apex
Court reported in (2002) 2 SCC 73 in the case of Savitri Pandey vs. Prem
Chandra Pandey. Reliance has also been placed on the judgments of the Apex
Court in the case of Geeta Jagdish Mangtani vs. Jagdish Mangtani reported in
(2005) 8 SCC 177, Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511
and in the case of Malathi Ravi, M.D. vs. B.V. Ravi, M.D. reported in (2014) 7
SCC 640 in support of his submission that intentional permanent forsaking and
abandonment of one spouse by the other without others consent and without
reasonable cause clearly fulfills the ingredients of desertion and entitles the
appellant to seek a decree of divorce. Sustained and studied neglect, indifference
or total departure from the normal standard of conjugal kindness over a period of
time would in itself amount to cruelty and lack of sensitivity leading to mental
cruelty upon the husband/appellant which also stand established in the facts and
circumstances of the case. Therefore, this Court could be justified in decreeing
the suit by dissolution of the marriage.

5. We have considered the submission of the learned counsel for the appellant
and the relevant material pleadings and evidence as born out from the lower court
records. Indeed, this Court is faced with the peculiar situation where the
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respondent-wife has for inexplicable reasons not only failed to contest the suit
despite sufficient notice but has also failed to appear in the present appeal despite
service of notice on three occasions consecutively.

On the basis of the pleadings and the material evidence on record, the
appellant has been able to show that after undertaking her treatment at Tata
Memorial Hospital, Mumbai for suspected case of Cancer, the respondent-wife
left the matrimonial home on 18th May, 2005 and never came back except to take
her articles and belongings on 29th October, 2008. For the ingredients of
desertion to be established so far as the deserting spouse is concerned two
essential conditions must be there (i) the factum of separation, and (ii) the
intention to bring co-habitation permanently to an end. (animus deserendi).
Similarly two elements are there so far as the deserted spouse is concerned: (i) the
absence of consent, and (ii) absence of conduct giving reasonable cause to the
spouse leaving the matrimonial home to form the necessary intention aforesaid.
Whether desertion has been established in a case depends upon the facts and
circumstances of that case. In the present case, we find that the factum of
separation on the part of the deserting spouse i.e., the respondent is established
since May, 2005. In the background facts where the appellant had herself
undertaken the expenses for her treatment for Cancer at Tata Memorial Hospital,
Mumbai, the departure of the respondent from her matrimonial house in 2005
continued thereafter till date also shows a clear intention to bring co-habitation
permanently to an end. Whereas on the part of the appellant/husband, the material
pleading show that he was never willing or agreeable to the respondent-wife
leaving the matrimonial house in such fashion. It can be safely presumed that
there was absence of consent of the appellant. We may further infer on the basis
of the material evidence and pleadings that when the appellant had himself got
her treated by incurring substantial expenses for Cancer at Tata Memorial
Hospital, Mumbai, it can be said that the appellant did not provide any reasonable
cause to the wife to leave the matrimonial home to form the necessary intention.
The manner in which even after treatment in the year 2005, she has completely
left her husband and also chosen not to contest his claim for dissolution of
marriage before the trial court and this Court till date is another factor to derive
inference that she is not interested in maintaining conjugal relationship with the
appellant/husband.

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6. In the case of Savitri Pandey (supra) the Apex Court made the following
observation in relation to the plea of desertion:-

8.”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 a host of
authorities and the views of various authors, this Court in
Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a
spouse abandons the other in a state of temporary passion, for
example, anger or disgust without intending permanently to
cease cohabitation, it will not amount to desertion. It further
held: (AIR pp. 183-84, para 10)
“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,
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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
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 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.”

As the present case reveals desertion was not a single act of 2005 on the
part of the wife but a continuous course of conduct till date when she has in full
consciousness abandoned her interest in keeping alive the matrimonial
relationship. Continuous desertion on the part of the respondent is reflective of
her indifference or total departure from the normal standard of conjugal
relationship. In such state of fact, it may also amount to mental cruelty upon the
other spouse. The appellant/husband is compelled to live with a marriage in
which the others spouse is no longer interested. The conduct of the respondent by
withdrawing from the matrimonial obligations i.e., by not permitting or allowing
and facilitating co-habitation between the parties without any reasonable cause
would also be equivalent to mental cruelty. Learned Senior Counsel for the
appellant has rightly relied upon the case of Geeta Jagdish Mangtani (supra)
where the appellant-wife had by her course of conduct over a period of time
given sufficient reason to hold that it was a case of desertion on her part which
entitled the husband to a decree of divorce. Reliance has also been placed upon a
judgment rendered by the Patna High Court in the case of Smt. Babita Kumari
vs. Ramesh Kumar reported in 2016 (4) PLJR 575 by the learned Senior Counsel
for the appellant. We find that the learned Court has also copiously relied upon
ratio rendered by the Apex Court in the case of Malathi Ravi, M.D. and Samar
Ghosh and other cases (supra) decided by the Apex Court on the issue of mental
cruelty and desertion.

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7. Section 23 of the Hindu Marriage Act, 1955 read as under:-

“23. Decree in proceedings-(1) In any proceeding under this Act,
whether defended or not, if the Court is satisfied that-

(a) any of the grounds for granting relief exists and the petitioner
[except in cases where the relief is sought by him on the ground
specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii)
of Section 5] is not in anyway taking advantage of his or her own wrong
or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (i)
of sub-Section (1) of section 13, the petitioner has not in any manner
been accessory to or connived at or condoned the act or acts
complained of, or where the ground of the petition is cruelty the
petitioner has not in any manner condoned the cruelty, and
[(bb) when a divorce is sought on the ground of mutual consent, such
consent has not been obtained by force, fraud or undue influence, and]

(c) [the petition (not being a petition presented under section 11)] is not
presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting
the proceeding, and

(e) there is no other legal ground why relief should not be granted, then,
and in such a case, but not otherwise, the Court shall decree such relief
accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the
duty of the Court in the first instance, in every case where it is possible
so to do consistently with the nature and circumstances of the case, to
make every endeavour to bring about a reconciliation between the
parties:

[Provided that nothing contained in this sub-section shall apply to any
proceeding wherein relief is sought on any of the grounds specified in
clause (ii), clause (iii), clause (iv), clause(v), clause (vi) or clause (vii)
of sub-section (1) of Section 13.]
[(3) For the purpose of aiding the Court in bringing about such
reconciliation, the Court may, if the parties so desire or if the Court
thinks it just and proper so to do, adjourn the proceedings for a
reasonable period not exceeding fifteen days and refer the matter to any
person named by the parties in this behalf or to any person nominated
by the Court if the parties fail to name any person, with directions to
report to the Court, as to whether reconciliation can be and has been,
effected and the Court shall in disposing of the proceeding have due
regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce,
the Court passing the decree shall give a copy thereof free of cost to
each of the parties.]”

In terms of Section 23 (1) (b) read with sub-clause (d) (e), in any
proceeding under the Act, whether defended or not, if the Court is satisfied that
where the ground of the petition is the ground specified in clause (i) of sub

-section (1) of Section 13, the petitioner has not in any manner been accessory to
or connived at or condoned the act or acts complained of, or where the ground of
the petition is cruelty the petitioner has not in any manner condoned the cruelty,
and there has been no unnecessary or improper delay in instituting the
proceedings and that there is no other legal ground why relief should not be
granted, the Court shall decree such relief accordingly. Section 23 (2) also
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provides that before proceeding to grant any relief under this Act, it shall be the
duty of the Court in the first instance, in every case where it is possible so to do
consistently with the nature and circumstances of the case, to make every
endeavour to bring about a reconciliation between the parties.

In the present case, we find that despite repeated attempts made by the
learned trial court for appearance of the respondent-wife and inspite of service of
notice on three occasions in the present appeal lastly in 2014, the respondent has
failed to appear and defend herself. In such state of facts the learned trial court
could not have been burdened with an endeavour to bring about a reconciliation
between the parties. We are also seriously constrained in resorting to any
reconciliation efforts through conciliation or mediation between the parties
because of the approach of the respondent-wife in not participating in the present
lis. In the facts and circumstances of the case, we also do not find any
unnecessary or improper delay in instituting the proceedings on the part of the
appellant-husband as it is only in the year 2008 that the respondent-wife took
away all her belongings and articles from the matrimonial home and never came
back. We can, therefore, safely presume that the respondent-wife is no longer
interested in maintaining conjugal relationship with the appellant-husband. In
such a situation, it would be indeed harsh and unjust upon the appellant to
continue this marriage with the respondent-wife. We are, therefore, of the
considered view that the appellant has been able to successfully make out a case
for decree of dissolution of marriage.

8. The appellant is working as Junior Engineer since 1995 in the Tata Motors
Company and is reported to be earning a gross salary of about Rs.49,000/- per
month. There are no children to be maintained out of the wedlock with the
respondent-wife. However the appellant has an ailing father to attend as stated by
the learned Senior Counsel for the appellant. Therefore, we are of the view that
interest of justice should be served if the appellant is directed to pay permanent
alimony of Rs.3,00,000/- to the respondent-wife. The appellant would deposit the
amount of permanent alimony in three equal installments of Rs.1,00,000/- each
before the Principal Judge, Family Court, Jamshedpur first by 15 th January, 2018,
second by 15th March, 2018 and third by 15th May, 2018. The respondent shall be
at liberty to withdraw the amount of permanent alimony by making proper
application before the learned Family Court, Jamshedpur. On such application
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being made the learned Family Court, Jamshedpur should release the amount
after being duly satisfied with the identity of the respondent-wife. The impugned
judgment dated 19th September, 2011 and decree dated 23 rd September, 2011
passed by the learned Principal Judge, Family Court, Jamshedpur is accordingly
set aside.

9. The appeal stands allowed. The marriage between the parties stands
dissolved. Decree accordingly.

(Aparesh Kumar Singh, J.)

(B.B. Mangalmurti, J.)
In the High Court of Jharkhand at Ranchi
Dated 18th December, 2017
Anit/R.P.

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