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2001 DIGILAW 276 (ORI)

Laxmi Mallik v. Mayadhar Mallik

2001-06-28

A.S.NAIDU, P.RAY

body2001
JUDGMENT A. S. NAIDU, J. — The appellant-wife has filed this Civil Appeal under Sec. 19 of the Family Courts Act challenging the judgment dated 30th September, 1999 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 149 of 1994. 2. Bereft of all the unnecessary details, the short facts as would be evident from the inter se pleadings are as follows : Mayadhar Mallik married to Smt. Laxmi Mallik as long back as on 8th May, 1969. Admittedly, both the parties are Hindus and the marriage was solemnised according to the customs prevalent. After marriage, the parties led a blissful conjugal rights and out of the wedlock, 7 issues were born i.e. 3 sons and 4 daughters. Admittedly, the respondent-husband is working as a Primary School Teacher and thus is a Govt. Servant and resides at his place of posting. 3. In the year 1994 the husband-respondent filed a peti¬tion under Sec. 13 (1) of the Hindu Marriage Act, 1955 read with Sec. 7 of the Family Courts Act before the learned Judge, Family Court, Cuttack praying for dissolution of his marriage with the appellant-wife. The said petition was registered as Civil Pro¬ceeding No. 149 of 1994. The respondent petitioner alleged that the wife is wilfully not staying with him and is insisting to stay at her father’s house and persuading him to become a domesticated son-in-law. It is further stated that in spite of best efforts, the appellant-wife refused to stay with him and not only misbehaved with him, but also becoming very cruel to his old parents. All the efforts made by the husband-respondent having yielded no result, the petitioner was compelled to file the aforesaid peti¬tion for dissolution of marriage by passing a decree of divorce. 4. The appellant-wife (respondent in the Court below) filed her written statement repudiating all the allegations and emphatically submitted that the assertions have no substance. It is averred that the respondent-husband has developed illicit relationship with a lady named Benguli during the subsistence of their marriage and out of their illicit relationship, two chil¬dren have been born. It is further emphatically averred that to escape from the liability of providing maintenance to the appel¬lant-wife and 7 children, and rigorous of criminal prosecution, the respondent-husband has filed the aforesaid petition making false and frivolous allegations. 5. It is further emphatically averred that to escape from the liability of providing maintenance to the appel¬lant-wife and 7 children, and rigorous of criminal prosecution, the respondent-husband has filed the aforesaid petition making false and frivolous allegations. 5. To substantiate the inter se pleadings, the respondent-husband examined two witnesses and the appellant-wife examined two witnesses. 6. The learned trial Court arrived at a conclusion that there is no chance of reunion between the parties since the relationship has become strained and bad to worse and held that it is a fit case where the decree of divorce should be passed by dissolving the marriage between the parties. The said order is challenged by the appellant-wife in the present Civil Appeal : 7. We have heard the learned counsel for the parties and perused the lower Court records. 8. Any marriage solemnised whether before or after the commencement of the Hindu Marriage Act, 1955 can only be dis¬solved on a petition presented by either spouse on the ground more fully specified under Sec. 13 (1) of the said Act. The grounds being (i) that there has been no resumption of cohabitation as be¬tween the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 9. Reading of the pleadings reveal that the respondent-hus¬band has sought for passing a decree for divorce solely on the ground that the wife has deserted him for a continuous period of not less than 2 years. 10. The expression “desertion” in the context of matrimoni¬al law represents a legal conception and is very difficult to define the essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without consent or against the wish of the other. One of the essential ingredients of this offence, in order that it may furnish ground for the relief of granting divorce, is a factum of separation and the intention to bring cohabitation permanently to an end animus deserendi. One of the essential ingredients of this offence, in order that it may furnish ground for the relief of granting divorce, is a factum of separation and the intention to bring cohabitation permanently to an end animus deserendi. Thus, desertion with all its grammatical variation and cognate expression means permanent forsaking and abandoment of the matrimonialities. 11. Learned trial Court however have completely lost sight of the basic ingredients of desertion in the present case inas¬much as the evidence of the father of the respondent-husband who has been examined as witness No. 2 for the opposite party clearly reveals that the substratum of the respondent-husband’s case is based on false and frivolous averments. For the sake of brevity and better appreciation, some of the evidence is quoted hereinbe¬low : “The petitioner during subsistence of his marriage with the respondent has kept a lady namely Benga and had kept sexual rela¬tionship with her. Benga is the sister-in-law (sali) of my son. My middle son has married the elder sister of Benga. Two sons have been born out of them. Their names are Tukuna and Papuni. Mayadhar (petitioner) is serving as a teacher and was getting a salary of more than Rs. 1,000/-. It is false to allege that the respondent behaved in a cruel manner towards the peti¬tioner.” 12. The aforesaid evidence coupled with the evidence of the appellant-wife, unerringly reveal that in fact the respondent-husband with an avowed oblique motive to get rid of his legally married wife-appellant, has filed the petition for divorce. It is further apparent on the face of the record that the plea taken by the husband that without any justifiable reason, the wife-appellant has deserted him is not sustainable. Opposite party No. 2 being the father of the respondent-husband, the evidence ad¬duced by him in the Court below is to be accepted to be correct. 13. We, therefore, do not agree with the abrupt conclusion arrived at by the learned trial Court and have no hesitation to set aside the judgment and decree passed by the Judge, Family Court, Cuttack. Accordingly, we allow this appeal by setting aside the order dated 30.9.1999 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 149 of 1994. P. RAY, J. I agree. Appeal allowed.