Court: Madhya Pradesh High Court
Bench: JUSTICE S.B. Sakrikar
Sudhakar Vs. Smt. Kalavati Decided on 04 May 2001
Law Point:
Wife Left Her Matrimonial House on Her own Accord and Did Not Return to Her Husband In Spite of Efforts Made by Him. Reconciliation Not Possible : Decree of Divorce Granted.
JUDGEMENT
1. The appellant (husband), has directed this appeal against the judgment and the decree dated 23.4.1991 passed by the ADJ, Indore in Case No. 186/1991 thereby dismissing the application filed on behalf of the appellant under Section 13 of the Hindu Marriage Act for grant of decree of divorce against the respondent.
2. Briefly stated the facts of the case are that the parties are Hindu and they were married on 18.11.1981 in accordance with the Hindu religion and custom. Both the parties lived together as husband and wife till September, 1984 and out of the marital relationship between the appellant and the respondent, one daughter and one son were born to respondent Kalavati. Both the children remained in the custody of the respondent since 1984 when the parties have started living separately.
3. In the application filed on behalf of the appellant, it was stated that after their marriage in 1981 they lived together till September, 1984 and from his wedlock, two children were born to the respondent. In September, 1984, respondent left the house of the appellant informing that, she is going to attend her ailing aunt residing at Bhalekaripura and thereafter she did not return to her matrimonial house in spite of the efforts made by the appellant for bringing her back to his house. It is also stated in the application that the respondent made false allegation against the appellant that she was beaten by her husband and his brother and they demanded money and the house belonging to her aunt. The aforesaid behaviour of the respondent caused menial cruelty to the appellant. As such, a petitioner under Section 13 of the Hindu Marriage Act was filed by the appellant before the Trial Court for grant of decree of divorce on the grounds of “desertion” and “cruelty” on the part of the respondent.
4. Respondent opposed the facts stated in the application and specifically denied that she has voluntarily and without any reasonable cause left the Company of the appellant and living separately from her husband. It is stated that in September, 1984 when the respondent was pregnant, the appellant and his mother asked her to get it aborted and on being refused, she was driven out from her husband’s house forcibly and since then she is living with her aunt and the appellant did not make any efforts to take her back to his house. It is also stated that the appellant demanded money on the false pretext that he is suffering from blood cancer and pressurised her to get the house transferred in his favour belonging to her aunt. The respondent prayed for the dismissal of the application filed on behalf of the appellant for grant of decree of divorce on the aforesaid grounds.
5. The learned Trial Court framed issues and on evaluation of the evidence recorded in the case negatived the issues with regard to cruelty and desertion by the respondent and dismissed the petition. Aggrieved, the appellant has filed this appeal against the impugned judgment of the Trial Court.
6. I have heard Mr. S.A. Mev, learned Counsel for the appellant and Mr. S.C. Shrivastava, learned Counsel for the respondent.
7. On considering the rival submissions of the learned Counsel for parties and on perusai of the record, I am satisfied that the Trial Court has rightly decided Issue No. 1 on the point of “cruelty” of the respondent against the appellant and denied the decree of divorce on the said ground. But on perusal of the evidence on the point of desertion of the appellant by the respondent wife, I am of the opinion that from the evidence available on the record, it is established that the respondent wife deserted the appellant. In this respect appellant Sudhakar P.W. 1 has stated that in the month of September 1984, the respondent with her own accord left his house stating that she is going to attend her ailing aunt residing at Bhalekaripura and thereafter she did not return to her matrimonial house despite the repeated efforts made by the appellant to bring her back to his house. P.W. 1 Sudhakar has also stated that respondent Kalavatibai is residing separately in her aunt’s house since September 1984. He has categorically stated that he made repeated efforts and persuasions to bring his wife back. But could not succeed. Statement of appellant Sudhakar on the point of desertion also gets corroborated from the statement of his sister Smt. Kusum Bule P.W. 2. Smt. Kusum Bule in her statement has also stated that she tried to persuade respondent to return and live with the appellant as wife but she refused. There is no reason to disbelieve the statement of appellant Sudhakar P.W. 1 and his sister Kusum Bule on the point of desertion of the appellant by the respondent without any reasonable cause.
8. In this appeal, it is not disputed that the parties are living separately since September, 1984 and no marital relations are existing between the parties since last 16 years. It is also not disputed that both the children born to respondent from the marital wedlock have now attained the age of majority and living their life independently.
9. The law is well settled on the point that for grant of decree of divorce on the ground of desertion as contemplated under Section 13(1)(ib) of the Hindu Marriage Act, two essential conditions must be established from the evidence and the circumstances, (i) the factum of separation, and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). The animus deserendi is absolutely essential to constitute desertion as a ground for obtaining a decree for dissolution of marriage by divorce. There must be a determination to put an end to the marital relationship.
10. In case of Sanat Kumar Agrawal v. Nandini Agarwal, 1990 JLJ 310, the Apex Court has held that “wife deserting her husband for continuous period of three years before the divorce petition and never attempted to join matrimonial relations for one decade, the husband becomes entitled to a decree of divorce under Section 13(i)(i-b) of the Hindu Marriage Act”. The Apex Court also held that ”it is well settled that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose of which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation”.
11. A similar view is also expressed by this Court in case of Gurucharan Chauhan v. Smt. Chandrakanta, 1985 MPWN 239, and held that “husband deserted for long period and no scope for reconciliation, the husband is entitled to a decree for divorce”.
12. In the present case, from the evidence available on the record, it emerged that the respondent, in September, 1984, of her own accord left the Company of the appellant on the pretext that she is going to attend her ailing aunt at Bhalekaripura and thereafter did not return to her husband’s house in spite of the efforts made by the husband. It is not disputed that no marital relationship is existing between the parties for the last 16 years or more and the parties are living separately. During the pendency of this appeal, the efforts were made for reconciliation between the parties but the reconciliation was not possible. As such, there is thus no course open except to pass a decree for divorce in favour of the appellant.
13. Consequently, this appeal is allowed. The impugned judgment and the decree of the Trial Court is set aside and the marriage between the parties is anulled by decree of divorce under Section 13(i)(ia) of the Hindu Marriage Act. The parties are left to bear their own costs of this appeal. Counsel fee is fixed at Rs. 1,000/- for each of the parties on filing the certificate. A decree be drawn up accordingly.
Appeal allowed.
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