UMESH KUMAR AGGARWAL v. SHASHI KUMARI — 1986 DIGILAW 334 (DEL)

( 1 ) THE first appeal under S. 28, Hindu Marriage Act, 1955 is directed against the judgment and decree dated April 2, 1985 passed by the learned Additional District Judge, Delhi, dismissing husband s petition under S. l3 (l) (ia) and (ib) of the said Act. ( 2 ) THE parties were married according to Hindu rites and ceremonies on January 31, 1977 at Dehradun. After solemnization of the marriage, the parties resided at D 16/409, Lodhi Road, New Delhi and cohabited as husband and wife. No child was born from this lawful wedlock. The appellant had earlier filed a petition on September 6, 1980 under S. 13 (ia) and (ib), Hindu Marriage Act, 1955 (for short called the Act ) on the allegations that the respondent left the matrimonial home on or about September 1, 1977 and did not join the appellant thus deserting him without reasonable cause and that the respondent has treated the appellant with cruelty. That petition was contested by the respondent. It was dismissed on both grounds by Shri K. S. Gupta, Additional District Judge, Delhi vide judgment and decree dated May 6, 1981. A second petition under S. 13 (ia) and (ib) of the Act, out of which the present appeal has arisen, was filed on March 22, 1983. The ground of desertion which is only pressed in this appeal has been set out in the petition in these words, " (a) The respondent has deserted the petitioner for a continuous period of 5 years and 6 months as she left the house of the petitioner on or about 1st September, 1977 without any reasonable cause. The parties have been living separately for the last 5 years and 6 months. The respondent is guilty of bringing cohabitation permanently to an end. In spite of the best efforts of the petitioners the respondent has never returned to live with the petitioner as his wife. (b) The respondent treated the petitioner with utmost cruelty as the petitioner felt mentally upset due to desertion and cruel behaviour of the respondent as she refused to adjust and live with the petitioner and his family. The respondent as a matter of fact wanted to support her mother at the cost of the petitioners as the mother has no son to support her. The respondent as a matter of fact wanted to support her mother at the cost of the petitioners as the mother has no son to support her. The respondent and her family members knew about the income, status and family background of the petitioner and in spite of that she refused to adjust with the petitioner". ( 3 ) THE learned Additional District Judge appraised the evidence of the parties and expressed that the following facts emerge : "i) That respondent was employed since before the marriage and this fact was known to the petitioner earlier. It is not the case of the petitioner that it was a pre condition of marriage that the respondent would leave the job. ii) The petitioner admitted that his income was Rs. 375. 00 plus Rs. 50. 00 in March, 1981. iii) The job of the respondent is transferrable but only in Uttar Pradesh. Though the parties were married on 31-1-77, but it appears that both of them lived only for few months together. iv) In the previous petition, certified copy of which is on the file, there is a finding : further from the said evidence it is evident that even after the marriage the petitioner had been visiting the respondent at a place of her posting and staying with her and he lastly stayed with the respondent on 31-3-79. Thus, it cannot be said that there was any intention on the part of the respondent to bring cohabitation permanently to an end. v) The petitioner does not claim to have visited the respondent after dismissal of the first petition. vi) The respondent and her mother visited the house of the petitioner with an intention to avoid litigation and to keep the marriage intact and to cohabit with the petitioner but the petitioner and his father had not allowed ( 4 ) IN view of the above facts, it was expressed that it is not possible to hold the respondent guilty of having any animus deserendi i. e. , an intention to leave the petitioner permanently, despite the fact that they have not lived together for quite sometime. Justification is expressed for the respondent continuing with her services and living separately at Dehradun as the appellant was working only as a daily wager and the respondent was having more income. Justification is expressed for the respondent continuing with her services and living separately at Dehradun as the appellant was working only as a daily wager and the respondent was having more income. Reliance was placed on the decision by a Division Bench of this Court in Swaraj Garg v. K. M. Garg, 1978 Rajdhani LR 525 : (AIR 1978 Delhi 296) wherein it was held that there is no warrant in Hindu Law to regard the Hindu wife as having no say in chosing the place of matrimonial home. It was also observed that seeing the financial stringencies in which the appellant was placed and the way the parties have met with each other at the place where the respondent was working would indicate that the respondent has a justification to continue with the job and has every justification not to come to Delhi permanently. The ground of desertion was held as not made out. ( 5 ) SHRI Anil Chawla, the learned counsel for the appellant urges that there is no clear and positive finding by the trial court on important ingredients of animus deserendi thus rendering the judgment liable to correction. The contention further is that the trial court has ignored the pleadings of the respondent, the written statement filed by the respondent in the earlier petition the evidence of the respondent and her mother in the earlier proceedings while appreciating the evidence of the respondent and her mother recorded in this ease. He, therefore, took me through the pleadings in the earlier petition, the statement of the respondent and her mother in the earlier case as also the evidence of the parties recorded by the trial court in this case. Great emphasis is laid on paras 14, 15 and 16 of the earlier written statement, Ext. P-l, to contend that it contains the real reasons of her desertion. The submission is that the inference should have been drawn that the respondent has been and is living apart from the appellant intentionally of her own choice and free will on the alleged ground of the appellant s poverty or insufficient means and that separation was with the intention of bringing cohabitation permanently to an end. There is no merit in these submissions. ( 6 ) EXT. P-l is the certified copy of the written statement in the earlier case. There is no merit in these submissions. ( 6 ) EXT. P-l is the certified copy of the written statement in the earlier case. In para 14 it is alleged that the respondent is an earning lady and is employed as a teacher in District of Dehradun and that whereas the appellant is not doing any business or profession or vocation and as such he always tried to squeeze money from the respondent. In para 15 the respondent pleaded that after a few months of the solemnization of the marriage between the parties, the appellant came to the house of the respondent at Dehradun and resided with him. Some specific dates during which the appellant resided at Dehradun with the respondent are then given. In para 16 it is pleaded that on 13-3-79 the appellant demanded for his habits of drinking and gambling huge money from the respondent, which the respondent could not give and consequently the appellant resorted to rebukes and misbehaved with the respondent. In para 17 it is stated that on December 13, 1978, the appellant gave a wrong notice to the respondent which was duly replied and thereafter the appellant became amicable and came to Dehradun to the house of the respondent and felt sorry. In para 18 it is stated that the appellant and the respondent resided at Dehradun for the period from February 12, 1979 to March 13, 1979. The parties went to trial and led evidence in the earlier petition. A finding is recorded by Shri K. S. Gupta, the learned Additional District Judge, Delhi that the allegations made in para 17 of the written statement that after serving notice on December 13, 1978 the appellant went to the respondent s house at Dehradun and stayed with her there and felt sorry for giving the notice finds corroboration from the admissions made by the appellant himself. The appellant admitted as Public Witness 1 in that case that after giving notice he went to take the respondent and stayed with her for one day and that he went to Dehradun on March 13, 1979. Allegations made in para 15 found support to some extent from the admissions made by Public Witness 3 Shri P. C. Aggarwal that he sent the appellant three four times to bring the respondent. Allegations made in para 15 found support to some extent from the admissions made by Public Witness 3 Shri P. C. Aggarwal that he sent the appellant three four times to bring the respondent. On the consideration of the evidence it is expressed that it is evident that even after the marriage the appellant has been visiting the respondent at the place of her posting and staying with her. Inference was drawn that it cannotbe said that there was any intention on the part of the respondent to bring cohabitation permanently to an end. That judgment and decree have become final. ( 7 ) THE respondent is an earning woman and was employed before the marriage and is even now employed as a teacher. There is ample evidence to support it. The respondent as RW 1 in this case deposed that she was in service prior to her marriage and she continues in service. In cross-examination she says that before her marriage she was working as a Tailoring Instructor in Rescue Home, Fatehpur of District Saharanpur, that she was getting Rs. 300. 00 per month approximately at that time and that she still continued to be in service. The appellant in his cross-examination admits that the respondent was working as a Teacher in Rescue Home in Dehradun prior to their marriage. He deposes that the respondent deserted him on September 1, 1977. He, however, stated that he does not know that she had gone to join her duty in Dehradun, because she had gone away without informing him. It is the admitted case that till September 1, 1977 the respondent had been coming to Delhi and used to cohabit with her husband from time to time and that she left on September 1,1977. The inference is irresistible that she had gone to resume her duty in Chhutumalpur, District Saharanpur. The appellant does not give his income at the time of his marriage or on September 1,1977. He, however, admits that in March 1981 he was getting Rs. 375. 00 plus Rs. 50. 00 as washing allowance. Thus, the findings (i), (ii) and (iii) recorded by the trial court are affirmed. The appellant was thus financially not sound to support a family with his income. It is highly probable that he would have consented to the respondent whose income was more to continue with her job even after the marriage. 50. 00 as washing allowance. Thus, the findings (i), (ii) and (iii) recorded by the trial court are affirmed. The appellant was thus financially not sound to support a family with his income. It is highly probable that he would have consented to the respondent whose income was more to continue with her job even after the marriage. The conduct of the parties from the date of marriage till September 1, 1977 in visiting each other during this period is significant to show that the appellant raised no objection to the respondent continuing with her service. It is not the case of the appellant that it was a condition of the marriage that the respondent would leave her job after the marriage. If that was so then she would have been compelled to leave the job immediately after her marriage. In Smt. Swaraj Garg (AIR 1978 Delhi 296) (supra) a Division Bench of this Court in similar facts held that the wife had a reasonable excuse for not resigning her job and for not coming to live with the husband at Delhi. It cannot be said that the earning wife has no say in choosing the matrimonial home. The reasonable inference which can be drawn from the facts established is that the respondent left Delhi on September I, 1977 with a view to continue with her job and not with any intention of bringing cohabitation permanently to an end. The appellant admits in this case also that he went to bring her back in March 1979. There is a finding in the previous case that the parties cohabited lastly till March 12, 1979. There could thus be no desertion on September 1, 1977. ( 8 ) THERE are some variations in the pleadings of the respondent in two cases but they cannot be termed as contradictions. In the earlier written statement she did make allegations against the appellant of his demands for his habits of drinking and gambling huge money from the respondent as a justification for her not coming back in March 1979, when the parties last cohabited together. But in court during the pendency of previous proceeding she expressed her desire to resume cohabitation with the appellant who spurned that offer. ( 9 ) THERE was no determination on her part either September 1, 1977 or thereafter to put an end to marital relations. But in court during the pendency of previous proceeding she expressed her desire to resume cohabitation with the appellant who spurned that offer. ( 9 ) THERE was no determination on her part either September 1, 1977 or thereafter to put an end to marital relations. No one can desert who does not actually and wilfully bring to an end permanently an existing state of cohabitation. The appellant does not claim to have visited the respondent or made any efforts to bring the respondent back after the dismissal of the first petition. On the other hand the respondent s mother did state that the respondent and her mother visited the house of the appellant with an intention to avoid litigation and to keep the marriage intact and to cohabit with the petitioner. I am not expressing that it was or was not a fact but it gives an expression of the state of mind of the respondent that at no subsequent time even there was any animus deserendi. She had a just cause of leaving the matrimonial home on September 1, 1977 as she was employed outside Delhi. She offered to come back to her husband in the earlier proceedings. During the pendency of subsequent proceeding, the intention to cohabit was again expressed in the trial court. It cannot be held to be a desertion on the part of the respondent. ( 10 ) THE counsel for the appellant lastly submits that it is most unnatural for the wife to stay away from the husband for a long time without reasonable cause and yet suggest that there was no intention to bring cohabitation permanently to an end. The matrimonial home has ceased to exist for the last seven years because of the respondent and so the respondent cannot escape the charge of desertion. Reliance is placed on the decision in F. A. O. No. 32 of 1977, Smt. Nirmala v. Vasdev Pardasani, decided by Sachar J. , on August 9,1977. In that case the parties after marriage could not set up a happy home and it resulted in separate living for seven years. They lived together for sometime again, but the wife withdraw from the society of the husband. That case was decided on its own facts. Here the desertion alleged by the appellant is of September 1, 1977 which he has miserably failed to establish. They lived together for sometime again, but the wife withdraw from the society of the husband. That case was decided on its own facts. Here the desertion alleged by the appellant is of September 1, 1977 which he has miserably failed to establish. There is no proof that the respondent at any subsequent period expressed or exhibited by conduct or action or otherwise of animus deserendi. ( 11 ) FOR the above reasons the appeal fails and is dismissed with no order as to costs.