First Appeal No. 06 of 2013. Case: Mohan Singh Mawri Vs Haripriya. Uttarakhand High Court
| Case Number | First Appeal No. 06 of 2013 |
| Counsel | For Appellant: Pooran Singh Rawati, Advocate and For Respondents: Pushpa Joshi, Senior Advocate assisted by Saurav Adhikari, Advocate |
| Judges | Rajiv Sharma and Sudhanshu Dhulia, JJ. |
| Issue | Bombay Hindu Divorce Act, 1947 - Section 3(1); Hindu Marriage Act, 1955 - Sections 10(1)(a), 10(1), 13(1)(ia), 13(1a)(1b) |
| Judgement Date | January 07, 2017 |
| Court | Uttarakhand High Court |
Judgment:
Rajiv Sharma, J.
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This first appeal is instituted against the judgment dated 18.12.2012 rendered by the learned Judge, Family Court, Nainital, in Civil Suit No. 94 of 2011.
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Key facts, necessary for adjudication of this appeal, are that the marriage between the parties was solemnized on 15.01.1990. A son was born out of the wedlock on 27.10.1990. The appellant filed a petition under Section 13(1a)(1b) of the Hindu Marriage Act against the respondent. The appellant has made a specific averment in the petition that the respondent has deserted him. She has caused her physical as well as mental cruelty. She used to misbehave with the appellant. He along with his brother made attempts to bring the respondent back, however, the respondent has refused to come to his house.
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The petition was contested by the wife (respondent). Respondent has specifically denied the allegations contained in the petition. She has never used abusive language against the appellant. She has always tried to maintain cordial relations with the appellant. However, appellant's behaviour towards her was cruel. He used to administered beatings to her. She was forced to leave the house due to the physical and mental cruelty. The family members of the appellant had never come to take her back. Learned Judge, Family Court dismissed the Suit on 18.12.2012. Thus, this first appeal.
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Heard learned Advocates and have gone through the judgment carefully.
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Appellant has appeared as P.W. 1 before the court below. He has led his evidence by filing an affidavit. According to him, the marriage was solemnized with the respondent on 15.01.1990. A son was born out of the wedlock on 27.10.1990. The son is residing with his mother. Respondent always wanted that the appellant should stay with her parents. She used to threaten the appellant to implicate him in false cases. She left the matrimonial home on 17.04.1991. He made efforts to bring her back.
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PW2 Bhuwan Chandra Joshi stated that he alongwith his wife went to the house of the respondent on 17.07.2007 to settle the matter.
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The respondent has appeared as D.W. 1. She deposed that the appellant used to abuse her. His acts caused physical and mental cruelty to her. She has never forced the appellant to live with her parents. No efforts were made to bring her back.
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The marriage was solemnized on 15.01.1990. The petition has been filed by the appellant only on 09.11.2011. The appellant cannot be permitted to take advantage of his own wrongs. The respondent was forced to leave the matrimonial home due to the behaviour of appellant. He has not made any efforts to bring her back. A son was born out of the wedlock and he is living with his mother. According to the respondent (wife), no efforts were ever made by the appellant to look after the family. According to the appellant he has taken his brother Nathu Singh to settle the matter. However, Nathu Singh has not appeared as witness. He has also admitted that he has not made any sincere efforts to bring his wife and son. The appellant has only placed on record the photocopy of the letter dated 25.10.1991. Though, according to the pleadings, he has sent a letter to the respondent on 01.08.1991.
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The petition, as noticed hereinabove, was filed after 18 years of marriage. The appellant has failed to prove that the respondent has deserted him without any reasonable cause. Rather, it is the appellant who has deserted his wife. It was for the appellant to prove that the respondent has caused him physical or mental cruelty. The appellant has miserably failed to prove that the respondent has caused any physical or mental cruelty to him.
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In this regard, the Hon'ble Apex Court in the case of Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957 SC 176 has observed that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of inference to be drawn from the facts and circumstances of each case. Their Lordships have held as under:
"What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject in these terms:-
"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".
The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:-
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer...
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