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2003 DIGILAW 7 (PNJ)

Darshan Kaur v. Kashmir Singh

2003-01-07

J.S.NARANG

body2003
Judgment J.S.Narang, J. 1. The appellant filed a petition under Section 13(1)(i)(b) of the Hindu Marriage Act, 1955, for seeking decree of divorce by dissolution of her marriage solemnised on August 25, 1996, according to Hindu religious rites at Phagwara. It is the admitted case that the marriage was duly consummated and two sons and a daughter were, born from this marriage. It is alleged that the respondent (husband) went abroad about nine years prior to the filing of the petition which was filed on 15.11.1997. It is further alleged that he had been sending money to the petitioner-appellant for maintenance for the entire family including herself. However, six years prior to the filing of the petition the respondent stopped sending any money nor any effort was made by him to find out the whereabouts of the children and also the petitioner- appellant. Since nothing was heard of the respondent, a case has been made out that he had deserted her for a period of more than two years as provided statutorily. On these premises, the petition, under the aforesaid provision has been filed before the trial Court. 2. Notice of the petition was given to the respondent who was dully served and the acknowledgement so received has been placed on the Court file. Despite service, the respondent did not appear, resultantly, was proceed against ex parte. The petitioner-appellant stepped into witness box as her own witness and also produced her sister Gurbax Kaur as PW2 and closed the ex parte evidence. The pleadings contained in the petition have been supported by way of oral evidence. The allegation of desertion has not been proved in so many words. It is the admitted case that the respondent did not leave the matrimonial home without any reasonable excuse, in fact he had gone abroad with her consent as is evident from the fact that he had been sending her money till about six years prior to the filing of the petition. It is the admitted case that the respondent did not leave the matrimonial home without any reasonable excuse, in fact he had gone abroad with her consent as is evident from the fact that he had been sending her money till about six years prior to the filing of the petition. The petitioner-appellant has not been able to bring her case within the ambit of the word "desertion" as has been interpreted in the explanation given in Sub-section (1) of Section 13 of the Act, which reads as under :- Explanation:- In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. 3 It has not been proved that the husband had without any reasonable excuse or cause deserted the petitioner for a continuous period of more than two years before the filing of the petition. The petitioner-appellant has claimed that in fact she wants that the decree of divorce be granted so that the matrimonial alliance with the respondent comes to an end as he has failed to maintain her as no money has been sent since five years prior to the filing of the petition. However, for proving desertion two essential conditions must be established i.e. (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end and similarly two elements are necessary so far as the deserted spouse is concerned i.e. (1) absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Thus, leaving the company of a spouse would not necessarily establish desertion but in the other case where both the spouses are living under the same roof yet withdrawal from each other by one and bringing cohabitation permanently to an end would come within the mischief of desertion. 4. Learned counsel for the appellant has placed reliance upon a judgment of the apex Court rendered in re: Savitri Pandey v. Prem Chandra Pandey, A.I.R. 2002 S.C. 591. 4. Learned counsel for the appellant has placed reliance upon a judgment of the apex Court rendered in re: Savitri Pandey v. Prem Chandra Pandey, A.I.R. 2002 S.C. 591. Further reliance has been placed upon a judgment of this Court in re: Major Singh v. Gurdev Kaur, II(1994) D.M.C. 40S (D.B. Judgment). The perusal of both the judgments shows that the same are not applicable to the facts of the case in hand. 5. It is the admitted case that the petitioner appellant has not made out any case that the husband deserted her without any reasonable cause or excuse. The facts stated are that he had gone abroad nine years prior to the filing of the petition and had been sending the money for maintaining the family but after about three years he stopped sending the money. Apart from this, there is no evidence which was been brought on record which could establish desertion on the part of the respondent. There is no evidence to establish that he has permanently brought to an end the cohabitation. The factum of separation as alleged by the appellant also does not spell out "desertion" on the part of the respondent. The criteria for establishing desertion is conspicuously absent from the pleadings and so also from the evidence brought on record. So far as the aforesaid judgments are concerned none of them are applicable to the facts of the present case. Since the pleadings do not make out or establish the case of desertion nor the same has been supported by any evidence brought on record the trial Court, has, therefore, correctly, dismissed the petition. 6. In view of the above, I find no reason to interfere in the impugned judgment dated 5.6.1998, vide which the petition had been dismissed. No merit- Dismissed.