Judgment - Desertion - Desertion by Wife - Husband Entitled to Divorce

Court: Rajasthan High Court

Bench: JUSTICE P.P. Naolekar & J.S. Sidhu

Girraj Prasad Sharma Vs. Smt. Tara Mishra Decided on 30 July 1998

Law Point:
Wife deserted husband continuously for two years or more immediately preceding filing of this petition — Husband entitled to divorce on this ground.

JUDGEMENT

1. This will dispose of an appeal (No. 1146/1996) filed by the husband Girraj Prasad Sharma @ Vinod Sharma against the judgment and decree dated 16.10.1996 of the then Judge Family Court, Kota whereby he dismissed his petition under Section 13 of the Hindu Marriage Act, 1955, for dissolution of his marriage with his wife Tara Mishra by a decree of divorce and also dispose of another Appeal No. 438/97 filed by the wife Tara Mishra against the same decision inasmuch as the Judge Family Court has held under issue No. 1 that she had deserted the husband though this desertion did not extend continuously to the statutory period of two years or more immediately preceding the filing of this petition.

2. It was the common case of parties that they were wedded on 26.6.1989 by Hindu rites and thereafter cohabited for a period before the marriage ran into rough weather and there was a parting of the ways between the spouses. The husband filed the petition under Section 13 of the Hindu Marriage Act, 1955 for divorce against the wife on 17.1.1995 on the twin grounds of desertion and cruelty. His case in his petition, in sum and substance, was that the wife a class II employee being a teacher used to consider him beneath her status because he a Lower Division Clerk was a class III employee and taunt him on that score. When her transfer to a place (Suket) in Kota District was ‘managed’ by his father the wife disliked the idea of cohabiting with him at Kota – his place of posting. Matters between them did not improve even when he gave in to her demand and set up a separate house from the rest of his family. Eventually she left the matrimonial home on 28.5.1992 and had deserted him continuously since then. Also she was guilty of mental as well as physical cruelty towards him for during the period of their cohabitation she went to the extent of thrashing him.

3. The wife has contested this petition by refuting each and every accusation levelled against her by her husband in his petition and maintained that her husband and her in-laws were overcome by greed and hankered for her salary which they wanted to put to their own use. She maintained that she was neglected by her husband and her in-laws who did not so much as provide her with medical aid at the times of her indisposition.

4. The replication filed by the husband was no more than a reiteration of his petition.

5. On the pleadings of the parties the Judge Family Court framed three issues — the first of desertion, the second of cruelty, and the third of relief. The husband besides himself stepping into the witness-box as A.W. 1 examined Hiralal A.W. 2, Altaf Hussain A.W. 3, Ramesh Chandra A.W. 4, Bhupendra A.W. 5, Dr. Khemraj Sharma A.W. 6, and Himmat Singh Shaktawat A.W. 7. From the other side the wife in addition to herself as N.A.W. 1 produced Jagdish Chandra Mishra N.A.W. 2, Subhash N.A.W. 3, and Om Prakash N.A.W. 4. After hearing the parties the Judge Family Court vide his verdict now under appeal held under issue No. 1 that the wife had deserted the husband but this desertion did not extend continuously to the statutory period of two years or more immediately preceding the filing of the petition in as much as they had cohabited during the period extending from 28.12.1994 to 1.1.1995, under Issue No. 2 that the husband had been unable to prove that he had been treated with cruelty by the wife after the solemnisation of the marriage and in the result threw out the husband’s petition under Section 13 of the Act. Aggrieved, as noticed both the parties have come in appeals before us.

6. We have heard the learned Counsel for parties and have gone through the record. So far as issue No. 2 of cruelty is concerned, this was not pressed before us at the time of hearing by the learned Counsel f6r the husband. The main if not the sole thrust of the argument advanced by the learned Counsel for the husband before us is that as rightly held by the Court below the wife had deserted the husband but that the Court below was in error in relying upon the testimony of the wife and her witnesses and holding on the basis of their testimony that the parties had lived together during the period from 28.12.1994 to 1.1.1995 and furthermore that even if it was believed that the husband had so approached the wife that could at most be with the sole aim of persuading her to return to the matrimonial home and that as both the essential ingredients of desertion stood proved to the hilt and as this desertion extended continuously for two years or more therefore, the decision of the Court below on issue No. 1 was liable to be reversed and after allowing of his appeal the husband deserves a decree of divorce on the ground of desertion while the wife’s appeal merited dismissal. From the other side the learned Counsel for the wife has countered by arguing that the shoe was on the other foot, that it was the husband who had maltreated the wife and forced her to live separately from him and that she was and is ready and willing to cohabit with him as his wife and was not at all guilty of desertion therefore, the husband’s petition for divorce had been rightly thrown out by the Court below and his appeal deserved to meet a similar fate while the wife’s appeal deserved to be allowed and the finding on issue No. 1 that she was guilty of desertion was liable to be set aside.

7. We have examined the pleadings and the evidence adduced by both the sides in the case in the light of the submission of both the parties. Undoubtedly the marriage between the parties had soured due to discord and disharmony and the wife had on 25.5.1992 got herself transferred to a place in another District Nagaur so that she could live separately from the husband thereby put an end to the cohabitation between them from that date onwards. The evidence of the husband supported by that of his witnesses, which inspires confidence, shows that she thus left the matrimonial home with the intention of bringing cohabitation between them permanently at an end and since then had continued to stay away from the husband The evidence of the wife and her witnesses which on the other hand tries to paint a different picture—that she has been forced to leave the matrimonial home and thereafter had been abandoned by the husband is hard to believe. She would not have herself transferred to a distant place in another District if she had the least intention of continuing to live with the husband either continuously or intermittently. The further evidence adduced from the side of the wife that the parties had cohabited briefly during the period from 28.12.1994 to 1.1.1995 is nothing more than an attempt on her part to somehow or the other defeat the petition for divorce filed by the husband by making out that the desertion did not extend continuously to the statutory period of two years or more immediately preceding the filing of the petition so as to arm him with a ground for divorce. This part is not believable for a moment being not worth the paper it is written on. Upon a weighing and assessing of the evidence adduced and the circumstances on record as a whole it stands shown that the wife has deserted the husband continuously since 28.5.1992 and therefore, this desertion by the wife extends continuously to the statutory period of two years or more immediately preceding the filing of the petition on 17.1.1995 by the husband who is, therefore, entitled to divorce on this ground. The marriage between the parties has failed irretrievably and it would be better not to prolong their agony.

8. In view of what we said above we accept the husband’s appeal (No. 1146/1996), reverse the finding of the Court below on Issue No. 1 by holding that the wife has deserted the husband continuously for two years or more immediately preceding the filing of this petition, set aside the dismissal of the husband’s petition, allow his petition and grant the husband a decree of divorce dissolving his marriage with the wife (Tara Mishra). The wife’s appeal (No. 438/97) is dismissed.

In the peculiar circumstances we leave the parties to bear their own costs of both the Courts.

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