Judgment - Desertion - Desertion by Wife

Court: Madhya Pradesh High Court

Bench: JUSTICE S.C. Pandey

Smt. Suman Singh Vs. Tulsi Ram Patel Decided on 1 February 1999

Law Point:
Wife Wilfully Left Matrimonial Home After Eight Months of Her Marriage and Did Not Come Back — She was unable to prove that she deserted respondent on account of inhumanly treatment given to her by respondent or his family members.

JUDGEMENT

1. This is an appeal under Section 28 of Hindu Marriage Act, 1955 directed against the judgment and decree dated 25.3.1994 passed by District Judge, Damoh in C.S. No. 18-A of 1990.

2. The respondent Tulsiram Patel filed an application under Section 13 of Hindu Marriage Act, 1955 (hereinafter ‘the Act’) for divorce on the ground of cruelty and desertion. He stated in his application that the appellant Suman Singh was married to him in the month of May, 1987 at Damoh in accordance with the Hindu rites. It was stated that after marriage, the appellant cohabited with him for 5 to 6 days and, thereafter, in April, 1988 she came back to Damoh and remained there for a period of one month. Thereafter, she did not return to Damoh from her village after May, 1988. The result was that the respondent was compelled to file an application under Section 97 of the Code of Criminal Procedure as the appellant was not allowed to go back to her matrimonial home. Despite the fact that a search warrant was issued the appellant did not come back to her matrimonial home. The other allegation in the application was that the appellant misbehaved with the respondent and treated him and the members of his family with cruelty. She did not cooperate with the members of the family of the respondent and she used to treat them with harsh language. She used to say that she was married to paupers. It was further alleged that the appellant did not turn up despite her knowledge that the respondent’s elder brother had expired and alleged to have stated that the entire family be exterminated. It appears that this statement was made by the appellant with a view to show the degree of repulsion felt by the appellant against the respondent and the members of his family.

3. The appellant, however, denied that she had misbehaved with the respondent or members of his family and caused them mental trouble. She denied the allegations of cruelty and made a counter allegation to the effect that the members of the family of the respondent themselves treated her with great cruelty and turned out of her matrimonial home. It was claimed that the respondent was demanding dowry and, therefore, she was compelled to leave the matrimonial home and denied that she deserted the respondent voluntarily.

4. The Trial Court, after recording the evidence, held that the respondent was unable to prove cruelty and, therefore, did not grant the decree to the respondent on that ground. In effect, the suit of the respondent under Section 13(1)(ia) of the Act was dismissed. However, the Trial Court decreed the suit on the ground of desertion covered by Section 13(1)(ib) of the Act. Thus, in effect, the finding is that the appellant had deserted the respondent continuously for not less than two years.

5. In this appeal, filed by the appellant, the conclusion of the Trial Court granting decree of divorce has been challenged by the appellant only on the ground that the Trial Court has misplaced the burden of proof upon the respondent by misreading the statement of D.W. 1 Suman Kumari. The learned Counsel for the appellant argued that the statement of D.W. 1, Suman Kumari does not show that she admit that she was leaving her matrimonial home on her own.

6. Nobody appeared before this Court on behalf of the respondent to support the judgment of the Trial Court.

7. The only question that remains for determination is whether this appeal can be allowed on the points raised by the learned Counsel for the appellant. This appeal is confined to the question whether desertion has been proved in accordance with law.

8. Having heard the learned Counsel for the appellant and having gone through the evidence on record, this Court is of the view that there is sufficient material on record for coming to the conclusion that the appellant wilfully left her matrimonial home and did not go back. She was unable to prove that she deserted the respondent on account of inhumanly treatment given to her by the respondent or members of his family. The evidence of A.W. 1, Haribai and A.W. 4, Tulsiram shows that the appellant had left her matrimonial home at Damoh and she was not living with the respondent for more than four years. Therefore, one of the ingredients of Section 13(1)(ib) of the Act is proved by the evidence on record. It is also proved by the evidence of the appellant herself that she was not living with the respondent for more than two years. However, the respondent states that she had gone to her matrimonial home in the year 1988 and, thereafter, too, but her statement is not supported by the evidence of any other witness. She did not care to examine any other witness in support of her statement and the Trial Court which had seen the witnesses, has believed the witnesses examined by the respondent. Looking to the evidence on record there is preponderance of possibility that the appellant did not come back to the matrimonial home for about more than four years as alleged by the respondent. This Court, therefore, agrees with the finding of the Trial Court to the effect that the appellant did not come back to her matrimonial home after she left the house of her husband after eight months of her marriage.

9. The second question that has to be determined is whether the appellant left the matrimonial home voluntarily or was she compelled to leave the matrimonial home against her will, on account of inhuman treatment meted out to her by the respondents and members of his family. The finding recorded by the Trial Court is against the appellant. Therefore, it is necessary to examine this part of the finding for coming to the just conclusion. There is more than one factor for coming to this conclusion. Firstly there is evidence on record to the effect that the respondent was compelled to file an application under Section 97 of the Code of Criminal Procedure and got a search warrant issued against the appellant for compelling her to come to the matrimonial home. It may be remembered here that the appellant, admit­ tedly, is an educated lady and, therefore, in case she was willing to come back to the house of her husband, there was no reason for getting a search warrant issued. She could have voluntarily come to live with the respondent. The appellant was a teacher in a English School but it is not itself an important circumstance against the fact that she did not return to her matrimonial home for the reason she did not need help from any one for travelling from her village Chunar to that place. Secondly, it appears that the relations between the appellant and the respondent were not good because she did not go to her matrimonial home despite the fact the brother of the respondent died. The counter allegations made by the appellant against the respondent and members of his family are of inhuman treatment, demand of dowry and that she was turned out of her matrimonial home by them. There is evidence on record that the respondent himself went to bring her back after issuance of warrant under Section 97 of the Code of Criminal Procedure. The appellant did not respond and, therefore, the respondent had no option but to return back to his home without the appellant. There is also evidence on record that the respondent had been visiting Chunar where the appellant resided from time-to-time to bring back the appellant but she did not go back to her matrimonial home. The relations between the parties were so estranged that the appellant was not ready to come alongwith the respondent to her matrimonial home under any circumstance. It appears that the Trial Court has rightly observed that an educated lady like the appellant was independent enough to decide whether she would live with the respondent or not and, therefore, she could make a move herself. There is also good reason to hold that the appellant did not think that the respondent or members of her family were equally in status with that of the members of her family and this appears to be prime reason for deserting the respondent. There is hardly any evidence on record to suggest that the appellant was treated inhumanly or cruelly during the period she resided with the respondent at her matrimonial home. The period appears to be too short for any occasion for treating the appellant cruelly.

10. It appears that the appellant avoided to live with the husband as she did not like the atmosphere in the house of the respondent. There is nothing on record to suggest that the appellant was being treated cruelly and there was demand of dowry on the part of the respondent or the members of his family as the appellant has not been able to sustain these charges. Her evidence does not inspire any confidence on this ground, that there is any circumstantial evidence to suggest that she was treated cruelly. The fact that she did not take up any proceeding under the law available to her for ill-treatment on the part of the respondent also shows that she was not harassed by the respondent or the members of his family. Therefore, this Court affirms the finding of the Trial Court to the effect that the appellant left her matrimonial home voluntarily and deserted the respondent without any reasonable cause continuously for more than two years and, therefore, the respondent was entitled to get a decree for divorce.

11. The appellant has not filed any application under Section 25 of the Act for grant of permanent alimony from the respondent. It appears that she was employed as a school teacher and may be for this reason she may nut have filed this application. However, the wordings of Section 25(1) of the Act itself shows that the appellant is entitled to move the Court which had granted the decree of divorce or passed the order even after passing of the decree or order. Therefore, there is no question of constructive res judicata or any bar to the appellant of making an application for permanent alimony from the respondent, before the Trial Court.

12. As a result of aforesaid discussion, I do not find any merits in this appeal. The appeal is accordingly dismissed with the observation made above in paragraph 11 of this judgment with respect to the rights of the appellant under Section 25(1) of the Act. However, there shall be no order as to costs.
Appeal dismissed.

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