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2004 DIGILAW 541 (MP)

Sushila Kurnawat v. Rajesh Kurnawat

2004-07-15

A.K.AWASTHY

body2004
Judgment ( 1. ) THE appellant/petitioner has filed the appeal under Section 28 of the Hindu Marriage Act against the judgment and order dated 17. 11. 2003 passed by learned Additional District Judge, Khachrod, District Ujjain in Hindu Marriage Case No. 14/02 whereby the petition for divorce filed on the ground of desertion was dismissed. ( 2. ) THE admitted facts of the case are that the marriage in-between the appellant and the respondent was solemnized at Nagda, District Ujjain according to the Hindu rites and customs on 26. 5. 1983 and that the spouses have no issue from the wedlock. It is also a common ground that before filing the petition on 9. 5. 2002 the petitioner has sent the notice Ex. P/l to the wife and the wife has sent the reply of the notice which is Ex. D/l. ( 3. ) THE case of the petitioner is that after his marriage in 1983 the wife has lived only for 2 days in the matrimonial house and in spite of his repeated efforts to bring back his wife, the wife has refused to live with him and performed the matrimonial obligation. The petitioner has prayed for the divorce on the ground of desertion. ( 4. ) THE case of the defendant is that she went to live with her husband various times and in the year 1991 she has lived with her husband for about a month. That in the year 1992, the respondent had come to the house of her parents and the petitioner had never made any attempt to keep her in the matrimonial house. ( 5. ) THE learned Trial Court after framing the issues has examined the petitioner and the witnesses and defendant and it has held that on the ground of preponderance of probability it is proved that the respondent is living separately from her husband and as such, the decree of divorce on the ground of desertion under Section 13 (1)l-Kha was passed. ( 6. ( 6. ) IT is contended by the learned Counsel for the appellant that the learned Trial Court has not properly appreciated the evidence and the admissions of the respondent husband and the judgment and decree is against the settled proposition of law laid down in case of Rajesh v. Smt. Rukmani, MPLJ-1 2000 page 598, and in case of Shrikant Ramsajiwan Tripathi v. Saroj Garg, MPLJ-3 2000 page 404. ( 7. ) APPLICANT Rajesh (P. W. 1) has stated that his wife has refused to live with him and he went to bring his wife about 4 or 5 times but every time, the wife has refused to accompany him on one pretext or the other. Rajesh (P. W. 1) has further stated that notice on 19. 4. 2002 was sent to the wife for resuming the relationship and Ex. P/l is the copy of the notice and even after the notice, the wife has not turned back. Rajesh (P. W. 1) has admitted in para 6 of his cross-examination that his wife has given the reply vide Ex. D/l of his notice that she is willing to live with her husband. It is further admitted that he has not approached his wife to bring her back to the matrimonial house. It is further admitted in para 6 that on account of the long separation now he is not willing to keep his wife. ( 8. ) THE learned Counsel for the appellant has submitted that the respondent is not interested in keeping his wife in the matrimonial house and, as such, the desertion by the wife of her husband is not established. The learned Counsel has drawn the attention of the Court towards the re-conciliation proceeding conducted by the High Court wherein the respondent has categorically stated that he is not interested in keeping his wife in the matrimonial home. It is further clear from the order sheet dated 25. 3. 2004 that the appellant wife was willing to go and live together with her husband. ( 9. ) RAJESH (P. W. 1) has admitted in para 5 of his cross-examination that during the re-conciliation proceeding the wife was willing and ready to live with him but he has refused to keep her in the matrimonial house. Consequently, from the reply of the notice Ex. ( 9. ) RAJESH (P. W. 1) has admitted in para 5 of his cross-examination that during the re-conciliation proceeding the wife was willing and ready to live with him but he has refused to keep her in the matrimonial house. Consequently, from the reply of the notice Ex. D/l and from the re-conciliation proceeding it is clear, that the appellant wife is willing to resume the relationship but the respondent husband is reluctant to keep his wife. ( 10. ) THAT the appellant wife has stated on oath that she has lived with her husband for a month in the year 1991 and she was willing to live with her husband but her husband has not made any attempt to take her back to the matrimonial house. The divorce on the ground of desertion is granted when from the act and conduct of the spouse it appears that the desertion is with the intention to forsake the relationship and the animus deserendi i. e. , intention to desert on the part of the defaulting spouse exist. Mere living separately is not enough and if the intention to cohabit exists, then the ground of desertion is not made out. From the act and conduct of the respondent husband just before the filing of the suit and during the trial it is clear, that it is not proved to the satisfaction of the Court that the appellant wife is living separately with animus deserendi and she has decided to forsake the relationship. The law is that in matrimonial cases it should lean in favour of the continuance of marriage. ( 11. ) THE learned Trial Court has erred in properly appreciating the evidence in granting the decree on the ground of desertion. ( 12. ) THE appeal is, therefore, allowed. The judgment and order of the learned Trial Court is, hereby, set aside. The petition for divorce is dismissed. The parties to bear their own costs of the Trial Court.