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1986 DIGILAW 175 (DEL)

VINAY KUMAR v. NIRMALA CHAUHAN

1986-04-07

MAHINDER NARAIN

body1986
MAHINDER NARAIN, J. (Oral ). ( 1 ) THIS is an appeal by the husband against the judgment of Shri R. C. Jain, Additional District Judge, Delhi, dated 9-7-1985, passed in H. M. A. No. 485 of 1984, whereby the husband s petition for dissolution of marriage on the grounds of desertion by the respondent wife without his consent, and against his wishes was dismissed. ( 2 ) THE facts, as they emerge from the record of the case are, that the parties were married on 10-5-1980 at village Pure Chauhan, District Partapgarh, U. P. They lived together at village Gahrenda, District Unnao (U. P.) for a short while, till June, 1980. Thereafter they lived together as husband and wife at Delhi at B-69, Gulmohar Park from July, 1980 to August, 1980. ( 3 ) IN August. 1980, the respondent wife left her matrimonial home at Gulmohar Park and did not return soon thereafter. It was on intervention of a third party, that she returned to the petitioner/appellant only in December, 1980. Thereafter she lived in Gulmohar Park till March 1981, when she left the appellant again. The respondent came back to the appellant in December 1981 and again left the respondent on 27th March, 1982. This time she left the appellant for good. ( 4 ) THE appellant relying upon the respondent s conduct of leaving him finally on 27th March, 1982, filed a petition under Section 13 (1) (ib) of the Hindu Marriage Act, alleging that the respondent had left the appellant on 27th March, 1982 without his consent and against his wishes, that she had thus deserted the petitioner husband. As she had left the appellant two years prior to the filing of the petition, he prayed for a decree of divorce from the wife. ( 5 ) SERVICE on the respondent was effected in the court below but the respondent did not choose to appear before the court, nor did she file any written statement. This service was effected by publication. ( 6 ) BEFORE me in an application for condonation of delay in filling the appeal was filed. In that too the service was effected by way of publication in nav Bharat Times dated 2-3-1986. No body appeared before me on that date. This service was effected by publication. ( 6 ) BEFORE me in an application for condonation of delay in filling the appeal was filed. In that too the service was effected by way of publication in nav Bharat Times dated 2-3-1986. No body appeared before me on that date. I admitted the appeal, and in view of Section 21-B of the Hindu Marriage Act, as the proceedings were to be ex parte, directed the listing of this appeal before me today. ( 7 ) NO body has appeared even today. I have heard the submission of the counsel for the appellant and have perused the impugned judgment and also the statement of the appellant given in the court. There is unrebutted statement of the appellant/ husband that the respondent left him and the matrimonial home on 27-3-1982, that she left without his consent, and against his wishes. From the statement of the husband it is clear that the wife did not get along either with the husband or his parents, that she used to use abusive language, throw things about, deny sex to the husband during the time she lived with him, and even threatened to put the matrimonial home to fire. All this was stated in the petition. I am satisfied that the facts deposed to establish that the wife intended to bring matrimonial cohabitation to a close. ( 8 ) THE learned Additional District Judge is in error in thinking that the husband has condoned the desertion by taking the wife back. The wife had returned on occasions earlier than 27-3-1982. Condonation is not for all times. The concept of "condonation" of matromonial offence has to be taken together with the concept of "revival" of matrimonial offence, i. e. conduct of leaving the matrimonial home without consent and against the wishes of husband. Each act of leaving without consent and against the wishes of husband will revive the past matrimonial offence, and wipe out condonation, if any. In my view there is no question of condonation in this case as the respondent has been in continuous desertion from 27-3-1982 till the date of filing of the petition i. e. 27-9-1974. More than two years of desertion had existed on the date of filing of the petition. The petition having been filed more than two years after the wife left the matrimonial home, desertion by the wife stands estalished. More than two years of desertion had existed on the date of filing of the petition. The petition having been filed more than two years after the wife left the matrimonial home, desertion by the wife stands estalished. There is no condonation in fact as the wife did not come back. ( 9 ) IN this view of the matter the petitioner/appellant is entitled to a decree of divorce under Section 13 (1) (ib) of the Hindu Marriage Act, as the respondent has been in continuous desertion for more than two years of the date of filing of the petition for divorce. ( 10 ) THE judgment of the court below is set aside. The appeal is allowed, and the appellant is granted a decree of divorce.