Court: Gauhati High Court
Bench: JUSTICE I.A. Ansari & Dr. Indira Shah
Bulbuli Biswas Vs. Khagen Biswas On 17 June 2013
Law Point:
Hindu Marriage Act, 1955 — Section 13(1)(ib) — Desertion — Animus as well as factum of separation without any just cause proved by husband — Parties are living separately since 1985, almost more than 20 years, desertion is permanent in nature—Trial Court rightly decreed suit dissolving marriage of petitioner with respondent and impugned decree upheld.
JUDGEMENT
This is an appeal against the judgment and decree dated 10.3.2008, passed by the learned District Judge, Sonitpur, Tezpur, in T.S. (Divorce) Case No. 18 of 2004. The suit filed by the respondent-husband for dissolution of marriage with appellant was decreed in his favour.
2. We have heard Mr. P. Sundi, learned Counsel for the appellant and Mr. S.C. Biswas, learned Counsel for the respondent.
3. The marriage of the appellant with respondent was not in dispute. It was also admitted that a male child was born out of the wedlock on 6.9.1985. It was the case of the respondent, who filed suit for divorce that the wife was taken to her parental house before the birth of their child in the month of July, 1985. Since then, the wife did not return to her matrimonial home. The petitioner-respondent requested the wife on several occasions to come back for conjugal life but the wife refused to resume the conjugal life. The respondent-husband was paying Rs. 800 per month as maintenance allowance to the appellant and her son in compliance of the order passed by the learned Judicial Magistrate under Section 125, Cr.P.C. It was the further case of the respondent that the appellant joined in Army School and the son has attained the age of majority. He prayed for decree of divorce on the ground of desertion.
4. The appellant herein contested the proceeding by filing written statement alleging inter alia that it was the respondent-husband, who drove her out with her minor child from her matrimonial house, stating that he would solemnise second marriage. She denied that she has been employed anywhere. According to her, she has no source of income. She alleged that the respondent-husband used to pick up quarrel without any rhyme and reason and that she was subjected to serious physical assault by her husband. In the year 1989, the respondent kicked her out with her minor child and stated that he did not need her any more. Left with no other alternative, she took shelter in the house of her brother and old aged mother. She denied that the petitioner ever approached her or requested her to come back. On the contrary, she, on several occasions, requested her husband to cohabit with her but he did not allow her entering into his house. The further case of the appellant was that it was the husband, who in the month of January, 2001, solemnized second marriage with another woman and he has been residing with his second wife.
5. On the basis of the pleadings, the learned Trial Court framed the following issues:
“(1) Whether the suit is maintainable and tenable?
(2) Whether there is any cause of action for the suit?
(3) Whether the petitioner is deserted by the respondent?
(4) Whether the respondent was driven out by the petitioner?
(5) Whether the petitioner is entitled for the relief claimed by him?”
6. Two witnesses including the respondent were examined by the petitioner and the wife (appellant) also adduced her own evidence. On conclusion of the trial, learned Trial Court held that the suit filed by the husband was maintainable and there was cause of action for filing the suit.
7. During the trial, the respondent-husband, in his evidence, deposed that his wife was taken away by her brother in the month of July, 1985 while she was carrying pregnancy, she delivered a male child on her parental house. She did not return to her matrimonial home since then. He further deposed that he went to her parental home several times and persuaded her to come back and resume conjugal life but every time she refused to came back with him. He, however, deposed that his wife has been serving as Grade-IV employee in a Army School and she has been earning more than Rs. 2,000 per month. That apart, he has been paying Rs. 800 per month as maintenance allowance as per the direction of the Court in the proceeding under Sections 125, Cr.P.C. He alleged that his wife filed another criminal case under Sections 448/323/506, IPC against him. However, he was acquitted in that criminal case. His son already attained the age of majority and he (husband) has been deserted by his wife for 20 years without any rhyme and reason.
8. Corroborating the evidence of the respondent-husband, PW.2, Md. Mustaque Ahmed, stated that after the marriage, the couple lived together as husband and wife for about 2 years. The wife left the matrimonial house prior to the birth of their child and since then, she has been living at her parental house along with her son. Lending support to the evidence of PW.1, he further deposed that after the birth of their child, one day, he was taken by the husband to the house of his wife to bring the wife and their child but the wife refused to come with the husband. He also deposed that the wife (appellant) has been serving in an Army School since last 6 years.
9. The appellant as DW.1 deposed that in the year 1987, a male child was born out of their wedlock. She alleged that after her marriage, her husband with an intension to marry another woman and started assaulting her. Thereafter, he married another woman and drove her out. She stated that she did not leave her husband on her own volition. According to her, she, on several occasions, went to the house of her husband but every time he drove her away after assaulting her. As he failed to maintain her, she filed an application under Section 125, Cr.P.C. She further stated that she has no source of income of her own. She, however, admitted that she had filed the criminal case against her husband, which was registered under Sections 448/323/506, IPC, and the case ended in acquittal of her husband.
10. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. Desertion is “a withdrawal not from a place, but from a state of things”. The essential ingredients of this offence in order that it may furnish a ground for relief are: (a) the factum of separation; (b) the intention to bring cohabitation permanently to an end-animus deserandi; (c) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. The desertion to amount to be a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. 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.
11. Regarding onus and standard of proof on desertion, the law is that the petitioner is to prove the desertion without reasonable cause and that it subsisted during the statutory period. The legal burden throughout the case is on the petitioner to prove that the wife deserted him without cause. It may always be established by the spouse that he or she has just cause. It is well established principle of matrimonial law that decrees of dissolution of marriage are to be made only upon strict proof, the Court must be satisfied that the ground for relief is established beyond reasonable doubt.
12. The appellant, herein, in her evidence although stated that she was expelled from her matrimonial house in the year 1989 along with her minor child, in her written statement, she contended that in the month of January, 2001, her husband solemnized second marriage with another woman. Thus, the contention of the appellant that her husband solemnized second marriage and she was expelled from her matrimonial home is factually not correct. She admitted that prior to birth of their child, she came to her parental house where she delivered a child. Admittedly, both parties are living separately since the birth of their child. She also admitted that she lodged a criminal case against her husband but he was acquitted. The fact that husband went to bring his wife to his society has been corroborated by the evidence of PW.2. The allegation of the wife that the husband solemnized second marriage has not been proved by any cogent evidence. The wife has to prove that she has been residing separately from her husband for a reasonable ground.
13. Since the parties are living separately since 1985, almost more than 20 years, the desertion is permanent in nature. It is without any just cause and as the husband is able to prove animus as well as factum of without any just cause, the learned Trial Court rightly decreed the suit dissolving the marriage of the petitioner with the respondent. The decree, therefore, passed by the learned Trial Court is, therefore, upheld.
14. The appeal is dismissed. Return the case records to the learned Court below forthwith along with a copy of the judgment and order.
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