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2005 DIGILAW 499 (RAJ)

Sunita alias Devkanya v. Rajesh Kumar

2005-02-15

N.P.GUPTA

body2005
Judgment N.P. Gupta, J.-This appeal has been filed by the wife, against the Judgment and decree of the learned District Judge Bhilwara, dated 6.2002, passing the decree, and thereby dissolving the marriage of the parties. The appeal was filed on 20.7.2002, which was reported by the registry to be time barred, however, vide order dated 8.2004 the delay in filing the appeal was condoned, at the same time the record was requisitioned, and the matter was ordered to be listed for final disposal immediately after receipt of the record. Of course, earlier notice of the application under Section 5 of the Limitation Act was ordered to be issued but nobody had appeared, and no fresh notice of the appeal was ordered to be issued to the respondent. However, the matter went on being adjourned for one reason, or the other, and in that process, when it was listed on 18.1.2005. Mr. Rajpurohit appeared on behalf of the respondent, and the learned Counsel submitted to be appearing for the respondent, and was ready to argue the matter for final disposal at this stage itself . However, for reasons mentioned in the order dated 18.1.2005, it was adjourned for today, and that is how the matter comes up today for final disposal. 2. I have heard learned Counsel for the parties, and have perused the record. .3. The respondent had filed a petition for dissolution of marriage on 19.4.1997, alleging inter alia, that the parties were married on 111.1994 according to Hindu Rites, thereafter the wife remained in matrimonial home for around 15 days, thereafter left for parental house with her father, and since then has never returned, despite the petitioner, and his father having gone to fetch her for about 11 times, but then they were misbehaved with. Thereafter on 12.1996 a written communication was sent, which too to no good. Then on 21.1997 and 13.1997 registered notice were also sent, which were returned with the remark of refusal. Not only this, even on the occasion of death of the husbands grand father, the wife did not come despite the fact having been notified to them. With these allegations, it was pleaded, that the wife has deserted the .matrimonial home without any reasonable cause, and such desertion is working mental cruelty on the husband. With these averments the marriage was sought to be dissolved. 4. With these allegations, it was pleaded, that the wife has deserted the .matrimonial home without any reasonable cause, and such desertion is working mental cruelty on the husband. With these averments the marriage was sought to be dissolved. 4. The wife contested the petition, admitting the marriage to have been solemnized on 111.1994, but denied the allegation of her having not lived in the matrimonial home, so also about the petitioners father having come to fetch her. It was pleaded, that as a matter of fact after the petitioner came to fetch her, she lived in the matrimonial home till as late as 110.1996, then on 110.1996 the wifes brother Umesh Nandan came to fetch her for a couple of days, whereupon the husband and his father expressed anguish, and physically misbehaved with them, rather at about 8 PM the wife was turned out of the matrimonial home, for which incident, the First Report was lodged in the Police Station Subhash Nagar by the wifes brother. Looking to their behaviour, the wife got frightened, and apprehending danger to life, she went to her fathers sister at Azad Nagar, and there she lived upto 110.1996, thereafter she went to Chittorgarh, with her father. It was pleaded, that it is the husband who has declined to keep her in the matrimonial home, rather on the death of husbands grand father; she along with his father had gone to Banera, and her father wanted to leave her at matrimonial home, but her in-laws declined to keep her. It was also pleaded that the husbands elder brother Yuvraj had written a letter to the father of wife on 29.1.1995, admitting the cruel treatment being meted to her in the in-laws house. 5. The learned trial Court, on the pleadings of the parties, framed three issues. First being; as to whether the wife is guilty of desertion without any justifiable cause for a period of two years, second being, about cruelty being meted to wife by the husband, and third issue related to relief . 6. During trial, the petitioner examined three witnesses including himself , while the wife examined four witnesses including herself . Both the parties tendered in evidence certain documents. 6. During trial, the petitioner examined three witnesses including himself , while the wife examined four witnesses including herself . Both the parties tendered in evidence certain documents. Learned trial Court while deciding issue No. 1, catalogued the evidence of both the parties in about 5 pages, and then, after noticing the contentions of the respective parties, in para-20 proceeded on the basis, that since both the parties had led evidence on the issue, the burden of proof becomes secondary, and the issue is to be decided on the basis of the evidence. With this it was considered, that AW. 2 has though admitted, that the wife had gone to Police Station on 110.1996, but has also deposed that she did not go from his house, and that the theory of the wife having lived in the matrimonial home upto 110.1996 appears to be incorrect. Then, it has been found, that according to the wifes father, the wife in the first instance lived in the matrimonial home for 15 days, and then two months at her parental house, and thereafter for three months at matrimonial home. This, if calculated, comes to 28.4.1996, while this story stands contradicted by the letters Ex. 5 and Ex. 7, which are of 10.8.1995 and 8.1995, written at the time when the wife was at her parental house. Thus, from these letters, it appears that from August 1995 the wife was not at her matrimonial home, therefore, it does not appear to be correct that she lived in the matrimonial home from December 1994 to 111.1996. It was also noticed, that the wifes grand father Chandmal has clearly deposed, that the wife is living at Chittor for the last 8 years, and it was also noticed that the documents relating to police proceedings have not been produced, nor the document said to have been given to the wife have been produced. By making these observations, it has been concluded, that the learned trial Court feels that the wife is not living in the matrimonial home for the last more than two years since before filing of the divorce petition. By making these observations, it has been concluded, that the learned trial Court feels that the wife is not living in the matrimonial home for the last more than two years since before filing of the divorce petition. Then in the next para, learned trial Court has noticed the offers and counter offers given by the parties as conditions precedent for living in the matrimonial home, and noticed that reconciliation between the parties could not be arrived at, which shows that the marriage between the parties has irretrievably broken down, and it does not appear to be possible for the parties to live together. Then, the learned Judge has again reiterated, that the wife has deserted the matrimonial home without any justifiable cause for the last more than two years. Deciding issue No. 2, it has been held that no evidence has been led by the husband, and the issue was decided against the husband. In the result, the petition for dissolution of marriage has been accepted. 7. Assailing the impugned Judgment and decree, it is contended, that the learned trial Court has predominately decreed the petition on the ground of irretrievable break down of marriage, which, under law, is not a ground for dissolution of marriage, and for this purpose learned Counsel has relied upon the Judgment of Honble Supreme Court, in Chetan Dass vs.Kamla Devi, reported in AIR 2001 SC 1709 . In the alternative it was contended, that even otherwise there is no evidence on record to show, that the marriage was irretrievably broken down. Various other contradictions in the evidence, led on behalf of the petitioner husband were pointed out, and it was contended, that it is admitted position, that the wife had gone to Police Station Subhash Nagar, Bhilwara on 110.1996, and there the husbands father had also gone, though there is a controversy on the aspect, as to whether father of the husband was called by the police, or he had gone of his own, but then, this much is admitted that the father had gone to Police Station, where the wife, and wifes brother were there. According to the learned Counsel this million dollar circumstance shows that it is not established that the wife has deserted the matrimonial home for the requisite period of time, and therefore, the ground of desertion, for granting decree of dissolution of marriage is not made out. 8. According to the learned Counsel this million dollar circumstance shows that it is not established that the wife has deserted the matrimonial home for the requisite period of time, and therefore, the ground of desertion, for granting decree of dissolution of marriage is not made out. 8. On the other hand, leaned Counsel for the respondent supported the impugned Judgment , and submitted, that from the evidence produced by the petitioner, it is established that the wife had left the matrimonial home just after practically a fortnight, and thereafter never returned, and all sincere efforts made on the side of the husband to rehabilitate the home failed. Thus, the ground of desertion is clearly made out, and decree for dissolution of marriage has rightly been passed. 9. I have considered the submissions, and have gone through the entire evidence, oral as well as documentary, and the pleadings of the parties. 10. On the face of the Judgment of Honble Supreme Court, in Chetan Dasss case, it is no more in dispute, that mere ground of irretrievable break down of marriage is not a ground for dissolution of marriage. From perusal of the impugned Judgment , it transpires, that though in para-21 the learned trial Court has held, that the relation between the parties had irretrievably broken down, and it does not appear possible for the parties to live together, but then, a combined reading of para-20 and 21 together makes it clear, that the learned trial Court has not granted decree of dissolution of marriage on the ground of irretrievable break down of marriage, rather the learned Judge has recorded positive finding at the end of para-20 and 21, that the Court is satisfied, that the wife has deserted the matrimonial home for a period of more than two years without any justifiable cause. In view of these findings the argument made by the learned Counsel for the appellant that decree for dissolution of marriage could not be granted on the ground of irretrievable break down of marriage need not detain me any more. .11. That being the position I am required to consider as to whether the ground of desertion has been established, or not? .11. That being the position I am required to consider as to whether the ground of desertion has been established, or not? According to Section 13(1)(i) the marriage solemnized between the husband and wife can be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition of divorce, and thus, the sine qua non in the present case is, that it should be established that the wife has deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the divorce petition, which in the present has been filed, as noticed above, on 19.4.1997. It would also be significant to note here, that the desertion contemplated by Sec. 13 does not merely mean the other spouse living separate from the petitioning spouse, but it has two ingredients being; (i) factum of separation, and (ii) the intention to bring cohabitation permanently to an end "animus deserendi". It is also established law, that for making out matrimonial offence, both the elements are required to be proved by evidence. Now, I proceed to consider the evidence of the parties in this regard. AW. 1 Rajesh, the husband, in this regard has only deposed that the wife lived with him for 10-15 days since marriage, and thereafter she went to her parental house, and never returned. He has also deposed that the he went to fetch her about 10-11 times, sent certain letters, his father also went, 2-3 persons had also gone, and the notice was also sent but she refused to receive the notice. He has deposed that she did not come even on the occasion of death of his grand-father. From these facts, the husband wants this Court to believe, that when she went from the matrimonial home for the first time, she went with the intention never to return, and did never return. Then, in cross-examination he was positively suggested, that the wife lived in the matrimonial home upto 110.1996, which suggestion was denied. The other suggestion about the wifes brother having come on 110.1996 to fetch, the wife was also denied. Then, in cross-examination he was positively suggested, that the wife lived in the matrimonial home upto 110.1996, which suggestion was denied. The other suggestion about the wifes brother having come on 110.1996 to fetch, the wife was also denied. The suggestion about the husband and husbands father having quarreled with the wifes brother was also denied, and the suggestion about the wife being turned out of the matrimonial home was also denied. The suggestion about his wife having gone to Subhash Nagar Police Station, and the husband also having been called there was also denied. The husband deposed ignorance about wife having lived with her Bhua at Azad Nagar. Various other suggestions made on the side of the wife were all denied. However, the husband deposed that if the wife wants to rehabilitate the matrimonial home, he is prepared to keep her. Then in the form of question answer, it is noticed, that the wife wanted certain security as condition for going with the husband, and the answer given was, that what security was required, she would always remain safe. In this sequence, according to the father of the husband, being AW. 2 Laxmilal, the marriage was solemnized on 111.1994, thereafter wifes brother came in November 1994 and took away the wife, who was never sent back despite their having gone to fetch her about 11 times, but every-time it was availed that she would be sent later. It was also deposal that on 1.1997 on the occasion of death of his father she did not come, registered notice also did not yield any result, with this he has also deposed that on 9.2000 and on 30.9.2000 he went to fetch her but she was not sent. These dates obviously are the dates falling after filing of the present petition. Then in the cross-examination he has admitted, that after marriage the wife came to matrimonial home on the two occasions; on the first occasion she lived for 5-7 days, then when they went to fetch her she came and lived for 2-4 days, and then went on the pretext of educational examinations, and thereafter never returned. He has denied the suggestion about her living there upto 110.1996, so also about her brother having come there to fetch her on 110.1996 or that he and his son having quarreled with the wife and her brother. He has denied the suggestion about her living there upto 110.1996, so also about her brother having come there to fetch her on 110.1996 or that he and his son having quarreled with the wife and her brother. Then, significantly, he has admitted, that on that day, wife and her brother had gone to .Subhash Nagar Police Station, where he had also gone, though he was not called by the police people. According to him the Thanedar asked, that the girl wants to go to her parental house to which he responded that wherever she wants to go she may be sent. He has also deposed that the police man had come to his house to call him but he was not there in the house, he then voluntarily went to Police Station. 12. In my view, this admission of AW.2, about the wife and her brother having gone to Police Station Subhash Nagar, Bhilwara (a place of matrimonial home), and there his having been called, and the Thandar asking him that she wants to go to her parental house, and his agreeing to that, does show, that at that time the wife was living in the matrimonial home. It is not clear as to since how much time she was living in the matrimonial home at that time, as the petitioners side had not come with any story, as to when, and how, did she happen to be in the matrimonial home on 110.1996, or what was the occasion for the wifes brother to go at the matrimonial home, or to go to the Police Station, where the husbands father was called, and was asked, that she wants to go to the parental house, and he agreed to that. Absence of this explanation, does lend support to this part of the story of the wife, that she was living in the matrimonial home at that time, though she has also not clarified, as to since what time she was at matrimonial home, but it does lend support to this part of her statement, that at that time she was living in the matrimonial home, and on 110.1996 she was physically manhandled and turned out of the matrimonial home. It is a different story, that it appears, that both the parties are not coming to the Court with correct facts, and bona fide stories, rather, may be for some misunderstanding in the matrimonial home, the things turned sore, and both the parties are pointing up (sic) the things out of proportions belonging to a situation of passing of decree for dissolution of marriage, but then, the hard fact does remain, that the circumstance emerging in the cases clearly establish, that as least upto 110.1996 the wife was living in the matrimonial home. It is a disputed question, as to whether thereafter she voluntarily left the matrimonial home with the requisite animus, or she was turned out of the matrimonial home, but in any case, if the period of two years is computed from 110.1996, as on 19.4.1997, when the divorce petition was filed, the period of two years was not complete. .13. In view of the above, I am unable to concur with the findings recorded by the learned trial Court on issue No.1 The learned trial Court has not properly considered the statement of AW .2 , about his admission made regarding his going to the Police Station, and in the circumstances wherein he had gone. Likewise, the learned trial Court has incorrectly calculated the period of the wifes living in the matrimonial home. True it is, that letters Ex. 6 and Ex. Likewise, the learned trial Court has incorrectly calculated the period of the wifes living in the matrimonial home. True it is, that letters Ex. 6 and Ex. 7 are of August, 1995, and as I have observed above, that both the parties are not coming to the Court with correct story, and therefore, may be, during the period of December, 1994 to 1996 the wife may have been in the parental house, and may be that it is not true, that she lived in the matrimonial home from December, 1994 to 111.1996, but at the same time, it cannot be denied or even disputed that on 110.1996 she was in the matrimonial home, and it is not shown that she was there on that day only, or she was there only casually, rather the totality of circumstances land assurance to the fact, that at that time she was living in the matrimonial home at least for sometime past, and when her brother Umesh Nandan NAW 1, came to fetch her, he and the wife was misbehaved, and were turned out of the matrimonial home, whereupon they had to go to the Police Station, where the husbands father was called. In the ordinary course of human conduct, it does not stand to reason, that when the wife is living in the matrimonial home, and her brother comes, both of them would go to the police station for ventilating grievance against the in-lawn, and the father-in-law would be called and would be simply asked that the wife wants to go to her parental house, to which father-in-law would agree unless something wrong had occurred in the matrimonial home at the hands of the in-laws family. .14. Thus, the findings recorded by the learned trial Court in paras-20 and 21 can simply not be sustained. 10.15. The net result is that the appeal succeeds. The same is allowed, and the impugned Judgment and decree is set aside, and the petition for dissolution of marriage is dismissed.