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2006 DIGILAW 431 (CHH)

RAMESH KUMAR DUBEY v. RITA DUBEY

2006-09-06

DHIRENDRA MISHRA

body2006
JUDGMENT As per Hon'ble Shri Dhirendra Mishra, J. :_ 1. That appellant has preferred this appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 11/3/98 passed by District Judge, Durg in Civil Suit No. 46-A/97, by which a decree of judicial separation has been passed. Respondent/wife has also preferred cross objection under Order 41 Rule 22 of the Civil Procedure Code praying for setting aside the decree of judicial separation passed by the Court below. 2. It is not disputed that the parties to the proceedings were married as per the Hindu rites and out of the said wedlock a child namely Ankush was born who at present is in the custody of the respondent/wife. The appellant and the respondent lived together as husband and wife for a period of one year and since thereafter they are living separately. The appellant served a registered notice to the respondent calling upon her to resume cohabitation which was replied by the respondent. The appellant filed an application for divorce on the ground that respondent resided with him till November-l 994 and thereafter she is residing in the house of her brother-in-law at Bhilai without his permission and without there being any reasonable cause. He further stated in his application that when efforts to bring the respondent back failed, legal notice was sent to her. However, the respondent did not return and thereby deserted him continuously for a period of two year since the date of filing of application and now all the possibilities of reconciliation have ended. 3. In reply to the application filed by appellant the respondent/wife has averred that on 2/1/1995 her brothers and brother in law went to the house of the appellant and took her from the matrimonial house with the permission of the appellant and his family members. It is also alleged that the appellant did not keep her bonafidely as wife during her stay in his house and he used to loose temper on trivial matters. After receiving the notice from the appellant the respondent had proposed that if the appellant improves his habits and is prepared to take her and the child bonafidely, only then she could return. She stated that no efforts were made by the appellant to take her back nor did he make any provisions for their maintenance. It was denied that she deserted her husband. She stated that no efforts were made by the appellant to take her back nor did he make any provisions for their maintenance. It was denied that she deserted her husband. On the contrary she was ready to live with the appellant as his wife provided he takes the responsibility of her safety. 4. After framing the issues statements of the witnesses were recorded on behalf of the parties and decree for judicial separation was passed recording a finding that the respondent deserted the appellant without any reasonable cause for more than two years and her brother in law and mother have played a major role in her desertion and in the aforesaid circumstances instead of passing the decree of dissolution of marriage in haste, decree of judicial separation can be passed. 5. Learned counsel for the appellant submits that the Court below even after recording a finding that respondent has deprived the appellant of his conjugal rights for a period of more than two years without any reasonable cause has committed an illegality by not passing the decree of divorce. 6. It is submitted that several attempts were made by the appellant for reconciliation and he tried to bring her back to the matrimonial house as is evident from the statement of AW2, AW3 and AW4 but even then the respondent did not come back to her matrimonial house and in the above background no useful purpose is served by granting the decree of judicial separation. It is argued that the appellant and respondent are living separately for more than 12 years and marriage between the parties is broken-down irretrievably and in the aforesaid circumstances it would be just and proper to allow the appeal and annul the marriage by a decree of divorce. 7. Reliance is placed on the judgments of Supreme Court in the matter of Adhyatma Bhattar Alwar, Adhvatma Bhattar Sri Devil, in the matter of Naveen Kohli Vs. Neelu Kohli, in the matter of Praveen Mehta Vs. Inderjit Mehta and the judgment of High Court of Madhya Pradesh in the mater of Satyapal Govindram Purswani Vs. Radhasatyapal Purswani. 8. On the other hand learned counsel for the respondent placing reliance upon a Constitution Bench judgment of the Supreme Court in the matter of Lachman Uttamchand Kirplani Vs. Neelu Kohli, in the matter of Praveen Mehta Vs. Inderjit Mehta and the judgment of High Court of Madhya Pradesh in the mater of Satyapal Govindram Purswani Vs. Radhasatyapal Purswani. 8. On the other hand learned counsel for the respondent placing reliance upon a Constitution Bench judgment of the Supreme Court in the matter of Lachman Uttamchand Kirplani Vs. Meena @ Mota submits that it is settled law that burden of proving desertion - the "factum" as well as the "animus deserendi" - is on the petitioner, and he or she has to establish beyond the reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. 9. It is argued that suit for judicial separation can be decreed on the ground of desertion only on proving the four essential conditions i.e. (i) factum of separation, (ii) animus deserendi, (iii) absence of his or her consent and (iv) the absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. 10. However, the Court has passed the impugned decree of judicial separation by wrongly shifting the burden of prove on the respondent. The conclusion of the Court below is based on improper appreciation of the evidence disregarding the averments made in the reply and the evidence led by the respondent. It is contended that where one spouse abandons the other temporarily under passion without intending to permanently end cohabitation, it does not amount to desertion. Though the appellant has pleaded that the respondent deserted him in the month of November-24, 1993, on the basis of evidence, the Court below has rightly held that respondent left her matrimonial house on 2/1/1995 and therefore absence of consent for leaving matrimonial home has not been proved. Heavy reliance has been placed on the oral evidence led by the appellant regarding the efforts made by him for bringing the respondent back, ignoring the fact that all the efforts lacked bona fides. Placing reliance in the matter of Chetandaas Vs. Kamla Devi it is argued that irretrievable break down of marriage can not be used as a formula to gain relief of divorce automatically. Reliance is placed on the judgment of the M.P. High Court in the matter of Rameshchandra Babulal Vs. Placing reliance in the matter of Chetandaas Vs. Kamla Devi it is argued that irretrievable break down of marriage can not be used as a formula to gain relief of divorce automatically. Reliance is placed on the judgment of the M.P. High Court in the matter of Rameshchandra Babulal Vs. Premlata Bai and in the matter of Smt. Laxmi Kushwah Vs. Mohan Kushwah and it is argued that admittedly the temporary withdrawal does not disentitle wife to decree for restitution under section of the Hindu Marriage Act and the burden is on the husband to show reasonable excuse for withdrawing permanently from society of wife and not only the factum of desertion for a period of two years has to be proved but animus deserendi should also be proved. 11. I have heard learned counsel for the parties and gone through the pleadings and evidence available on record. 12. So far as the legal position for granting the relief of decree of judicial separation/decree of divorce on the ground of desertion is concerned, the basic law has been propounded by the Supreme Court in the matter of Lachman Uttamchand Kirplani (supra). In paragraph 18 of the above judgment it has been held that for the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there: (I) factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi) and so far as the deserted spouse is concerned, (I) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving matrimonial home to form the necessary intention as aforesaid. The desertion is a matter of inference to be drawn from the facts and circumstances of each case. In the present case it is not in dispute that both the spouses are living separately from November 1994/ 2nd January 2005 and since then there was no cohabitation between them. The appellant sent a legal notice of Ex. P-3 to his wife on 17.1.1997 calling upon her to join the company of the appellant within a month there from failing which the petition for divorce was threatened to be filed. 13. In reply to the said notice allegation of ill-treatment and insult were made and for this reason the respondent was compelled to leave her matrimonial house. The allegation that she deserted her husband. 13. In reply to the said notice allegation of ill-treatment and insult were made and for this reason the respondent was compelled to leave her matrimonial house. The allegation that she deserted her husband. from November, 1994 has not been specifically denied, however, it has been stated that unless the appellant improves his habit and expresses his desire to bring the respondent back as also the child bonafidely, she is not prepared to go and live with the appellant. In the application of divorce also the appellant has alleged that from November, 1994 the respondent is residing in the house of her brother in law at Bhilai separately without any reasonable cause and without his consent and all the efforts to bring her back failed. Whenever he went to Bhilai for that purposes, she used to convey her feelings through her brother in law that she did not want to meet him. Thereafter, when he sent his father for that purpose, the respondent did not meet him and all the efforts to contact her on telephone failed. His further efforts to contact the respondent through his friends for reconciliation also failed as the respondent did not respond thereto. In reply the respondent has pleaded that she left the matrimonial house with the consent of appellant on 2/1/1995 She was residing in her brother in law's house in connection with operation of her kidney. The allegation against the brother in law has been denied and it has been stated that the appellant never made any bonafide efforts to bring back his wife and child. 14. During trial conciliation proceedings before the trial Court also failed as the respondent had put a condition that if the appellant accepts that he would keep her properly, only then she can go to reside with him which was not acceptable to the appellant as the appellant was ready to keep her if she was willing to live with him with full commitment. The appellant in his statement on oath has stated that respondent lived happily in her matrimonial house for a month or two and thereafter her attitude changed and she started visiting her brother in law at Bhilai without his permission. Initially they lived together with the family but subsequently they took a separate house and one year thereafter she started residing at Bhilai from the last week November, 1994. Initially they lived together with the family but subsequently they took a separate house and one year thereafter she started residing at Bhilai from the last week November, 1994. The appellant had gone to Bhilai to bring her back but his brother in law Rajendra Tiwari did not allow to meet the respondent. He had a telephonic conversation with the respondent when she was residing at Sambalpur on six-seven occasions and during that conversation she categorically told him that she did not want to live with him. He has further stated that he visited Bhilai 5-6 times but he was not allowed to meet her. He also sent his friend Anand Sharma for that purpose. Thereafter, he again sent his father to bring respondent back. However, on the advice of brother in law of the respondent he went to Sambalpnr with other relatives. However: father of the respondent told them that since Rajendra Tiwari adopted the respondent, he can only decide about sending her to the matrimonial home and under these circumstances he was compelled to send legal notice. In the cross examination he has admitted that in June 1994 he lived in the house of Rajendra Tiwari for a month in connection with her operation for appendicitis. Respondent gave birth to a child at Sambalpur. He has further stated that on 1/1/1995 he had gone to bring the respondent back but she declined to come. AW.2 Anand Sharma has also stated that somewhere in February or March, 1995 he along with the appellant had gone to Bhilai to bring the respondent back, however, her brother in law categorically told that the respondent is not interested in staying with the appellant. Their request to meet the respondent was also not acceded. AW.4 Babulal Sharma, the father of the appellant, has stated that in the year 1996 just before Holi festival he had gone to Rajendra Tiwari's house and on his advice he went to Sambalpnr for two days after Holi alongwith his brother in law and son in law and stayed in a hotel and from there he made a telephonic call to Rita's house and informed that they were coming to meet her but the mother of the respondent replied that they need not come and they themselves were coming to the hotel. Thereafter, mother, girl and son Ankush went to the hotel and asked them to go to Bhilai for talking to Rajendra Tiwari in this regard. They returned and again contacted Rajendra Tiwari at Bhilai who categorically told them that neither Rita wanted to go nor did she want to talk to them. In the cross examination the Sambalpur visit of this witness has not been denied. On the contrary it has been suggested that on that occasion mother of the respondent had expressed that if the boy personally comes to take the respondent back bonafidly he is free to do so. Respondent in her statement on oath reiterated is mentioned in the reply. She stated that when she was living with the ant he used to make the demand for money and vehicle etc. and was physically abusing her and turned her put of his house on 6/12/1994. further stated the appellant never came to Sambalpur to take her. However, has admitted that he had a talk with her mother and brother on telephone not with herself at any point of time. 15. In paragraph No. 14 the respondent admitted that she never telephoned her husband, she never insisted him either on telephone or through letters to take her with him. She did not, make any efforts to go to her husband's house as she was not mentally and physically happy in his house, ,She also : admitted in paragraph 18 of her deposition that even after the case was filed in the Court she did not make any efforts to go to her husband's house. 16. Respondent has examined Rakesh Dubey as NAW2 who stated that he has visited the house of the appellant on two-four occasions where he .heard that the appellant and the respondent were talking loudly and on enquiry he discovered that there was difference of opinion between the appellant and respondent, as a result of which the appellant was abusing the respondent. Rajendra Prasad Tiwari (NAW.3), the brother in law of respondent, has stated that he had left respondent Rita for delivery in Sambhalpur and from there brother of the appellant along with his friend went to Samtbhalpur and brought her back on 21/11/1994. Rajendra Prasad Tiwari (NAW.3), the brother in law of respondent, has stated that he had left respondent Rita for delivery in Sambhalpur and from there brother of the appellant along with his friend went to Samtbhalpur and brought her back on 21/11/1994. In paragraph, No. 5 he, has admitted that Ramesh continued visiting his house, however, he refused to go to Sambalpur to bring the respondent and in stead requested him to call Rita to him. 17. From the perusal of the application, reply and other documents filed by the respective parties and after close scrutiny of the statements of the appellant, respondent and their witnesses, the picture that emerges is that the respondent left the company of the appellant in the month of November 1994 according to the appellant and on 2/1 /95 according to .the admission of the respondent. It also emerges that after the respondent parted with the company of the appellant she did not make any efforts to return back to her matrimonial house. She resided for a long period at Bhilai in her brother in law's house but she has admitted that after separation she made no efforts to communicate with her husband or to return back to her matrimonial house. She, however, admitted that the appellant telephoned her while she was residing at Sambalpur but he talked to her mother and brother and she did not talk to him. She, however, has also not categorically denied the assertion of the appellant that he tried to patch up the dispute ,and bring her back either personally or through his friends. 18. Thus from the evidence adduced by the parties the fact separation of the deserting spouses is established from the conduct respondent in not making any efforts to contact her husband either person or through relatives and not responding to the overtures of the appellant this regard leads to irretrievable inference, that she has left her matrimonial house with an intention to bring cohabitation permanently to an end. 19. 19. So far as the allegation of the respondent that she was compelled to leave matrimonial house because of the conduct of the appellant as he ill-treated her is concerned, it is found from the record that marriage was solemnized on 24/1/93 and they Jive together only for a period of one year and during this period she gave birth to a child at Sambalpur and at that time the appellant was by her bed side. It is also found that the appellant also resided in the house of Rajendra Tiwari for almost a month in connection with treatment of his wife in June 1994 and during that period also relationship between the appellant and Rajendra Tiwari was cordial and therefore the allegation of ill-treatment by the respondent which cropped up for the first time in reply to the notice given by the appellant appears to be improbable and an afterthought and therefore plea of the respondent that she left the matrimonial house with the Consent of the appellant and that she had a reasonable cause for leaving the matrimonial house, cannot be accepted. 20. On the basis of aforesaid analyses I am of the considered opinion that the Court below has not committed any illegality by arriving at the conclusion that the respondent deserted the appellant without any reasonable cause for a period of two years and to that extend no interference is called for in the finding of the trial court. 21. In the light of the aforesaid discussion the cross objection preferred by the respondent is liable to be dismissed. 22. Now the second question to be decided is whether the Court below was justified in passing the decree of judicial separation even after holding that respondent deserted her husband for a period of two years without any reasonable cause? 23. It is not in dispute that parties to the proceedings are living separately since November 1994 i.e. for a period of almost 11 years and no efforts for reconciliation were made by the respondent during this period. In the matter of Chetandaas Vs. Kamla Devi (supra) it has been held that irretrievable break down of marriage can not be used as a formula to gain relief of divorce automatically. 24. In the matter of Chetandaas Vs. Kamla Devi (supra) it has been held that irretrievable break down of marriage can not be used as a formula to gain relief of divorce automatically. 24. In that case it has been held that where the parties seeking divorce and in the course of judicial proceedings to have committed the matrimonial offence and has been unable to establish any allegation against the spouse, a decree of divorce on the ground of irretrievable break down of marriage cannot be granted and the erring party cannot be permitted to break the marital bond by taking advantage of his own wrong. 25. However, in the instant case no matrimonial offence has been established against the appellant and therefore, case cited by the respondent is not applicable in the present case. 26. In the matter of Rameshchandra Babula" (supra) and Smt. Laxmi Kushwah (supra), it has been held that temporary withdrawal does not disentitle wife to decree for restitution under Section 9 and to seek a decree of divorce the party praying for it on the ground of desertion has to establish the animus deserendi. 27. It has already been held in the foregoing paragraphs that the respondent had deserted her husband for a period of two years with an intention to bring the cohabitation permanently to an end and therefore the above two judgments cited by the respondent are of no help. 28. In the light of the aforesaid discussion the judgment cited by the appellant in the matter of Adhyatma Bhattar (Supra) is very much applicable in the present set of facts since the parties are living separately just one year after the marriage for a continuous period of 12 years and there is no chance of reconciliation as there is irretrievable breakdown of marriage, this Court being strengthened by the judgments of the Supreme Court in the matter of Durga Prasanna Thripathi Vs. Arundhati Thripathi and in the matter Naveen Kohli (Supra), is opinion that decree for divorce on the ground of desertion can be granted. 29. In the result the appeal is allowed and instead of decree of judicial separation passed by the trial Court, decree of divorce is granted in favour of the appellant. Appeal Allowed.