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2007 DIGILAW 764 (MP)

Kiran v. Mohan Singh

2007-07-19

A.K.MISHRA, K.S.CHAUHAN

body2007
JUDGMENT Chauhan, J. -- 1. This appeal under section 28 of the Hindu Marriage Act, 1955 has been preferred by the appellant being aggrieved by the judgment and decree dated 13th January, 2003 passed by Presiding Officer, Family Court, Bhopal in RCS No. 200A/02 whereby the divorce petition filed by the respondent has been allowed and the marriage solemnized on 2nd May, 1995 in between the appellant and respondent has been dissolved. 2. The facts of the case in short are' that the marriage between the appellant and respondent was solemnized on 2nd May, 1995 in Samuhik Vivah Sammelan, Bhopal according to Hindu Rites and Customs. They discharged the conjugal obligations for sometime but on 24th June, 1997 the appellant went to her parental house and did not return. Thereafter, the respondent along with his relatives went several times to bring her father did not send her and also misbehaved with them. The appellant has deprived him from conjugal obligations without any reason, therefore, the petition was filed to dissolve the marriage solemnized on 2nd May, 1995. 3. The appellant appeared in the Court but later remained absent and. therefore, the matter was proceeded ex parte on 11th November, 2002. The respondent Mohan Singh filed his own affidavit and also the affidavit of his father" Ramgopal Thakur. On this basis, the Court found that the averments made in the affidavits are reliable and it was found proved that the appellant has deserted the respondent from last five years without any sufficient reason hence allowed the petition directing the dissolution of marriage solemnized on 2nd May, 1995 in between the parties. 4. Being dissatisfied with the judgment and decree passed by the trial Court the instant appeal has been preferred under section 28 of the Hindu Marriage Act. 1955 for setting aside the same on the grounds mentioned in the memo of appeal. 5. The learned counsel for the appellant has submitted that there is no evidence to prove that the appellant has deserted the respondent without any sufficient cause. There is no evidence that the respondent tried to bring her back from her parental house. The appellant is even ready today to live with the respondent. It was further submitted that appellant could not appear on 11th November, 2002 because she was posted as Shiksha Karmi, Grade III at Chandiya which is 500 kilometres away from Bhopal. There is no evidence that the respondent tried to bring her back from her parental house. The appellant is even ready today to live with the respondent. It was further submitted that appellant could not appear on 11th November, 2002 because she was posted as Shiksha Karmi, Grade III at Chandiya which is 500 kilometres away from Bhopal. The reason is sufficient of her non-appearance, therefore, the ex parte decree passed against her be set aside. 6. On the other hand. the learned counsel for the respondent supported the judgment and decree and submitted that the respondent has proved his case by evidence, therefore, the trial Court has rightly decreed the suit. It was further submitted that the appellant remained absent deliberately, therefore, the Court has rightly proceeded ex parte against the appellant hence it does not call for any interference. 7. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in decreeing the suit of the respondent for divorce of marriage solemnized in between the parties on 2nd May, 1995? 8. We have perused the record and evidence adduced in the case. 9. Desertion is one of the ground of divorce mentioned in section 13 (1) (i-b) of the Hindu Marriage Act, 1955 wherein the petitioner is required to prove that any marriage solemnized near before and after the commencement of this Act may on a petition presented by either the husband or wife be dissolved by decreeing of divorce petition on the ground that other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 10. In this case the respondent Mohan Singh has stated in his affidavit that his marriage was performed with appellant on 2.5.1995 according to Hindu Rites and Customs in Adarsh Samuhik Vivah Sammelan, Bhopal. Thereafter she remained with him in Bhopal and Itarsi and discharged conjugal obligations. She remained with him from 2.5.1995 to 8.5.1995, 1.6.1995 to 8.6.1995, 10.10.1995 to 28.11.1995, 2.6.1997 to 24.6.1997. But on 24.6.1997 she went with her father in the parental house and since then not returned. She also wrote a letter Ex. P-1 wherein it was mentioned that she does not feel good here. She remained with him from 2.5.1995 to 8.5.1995, 1.6.1995 to 8.6.1995, 10.10.1995 to 28.11.1995, 2.6.1997 to 24.6.1997. But on 24.6.1997 she went with her father in the parental house and since then not returned. She also wrote a letter Ex. P-1 wherein it was mentioned that she does not feel good here. After that he himself along with his relatives went there to bring her back in the matrimonial house but she did not return back. Letters Ex. P-2 to Ex. P-7 were also written. Thus she has deserted the respondent from 24.6.1997 without any sufficient reason and residing in her parental house and the respondent has been deprived of the conjugal obligations and thus treated him with mental cruelty. 11. He has further deposed that before filing the petition his father went to bring her back but her parents stated to his father that his son will clean the slipper of their daugther thereafter he also filed an application before Pari war Paramarsh Kendra, Shahjahanabad, Bhopal. She did not turn up there and did not file any reply of the notice. 12. Ramgopal Thakur the father of the respondent Mohan Singh has also deposed in the same manner that several attempts were made to bring her back to matrimonial house but she did not turn up. He has also deposed that her parents have also misbehaved with him. 13. Since no cross-examination is done on these affidavits on behalf of the appellant, therefore, the facts stated in the affidavits are not rebutted. There is no any evidence controverting the evidence adduced by the respondent. The averments of the affidavits are further supported by the documents Ex. P-1 to Ex. P-8 filed by the respondent. Thus, there is ample evidence adduced by the respondent that the appellant has deserted him from five years back and she has not turned up in spite of the attempts made by the respondent, his parents and relatives. Therefore, she does not want to live with respondent who is not doing any service. 14. The averments made by the respondent in the petition has fully been supported by the evidence adduced therein, therefore, the contention of the learned counsel for the appellant that the respondent has not been able to prove the case is not tenable. 15. Therefore, she does not want to live with respondent who is not doing any service. 14. The averments made by the respondent in the petition has fully been supported by the evidence adduced therein, therefore, the contention of the learned counsel for the appellant that the respondent has not been able to prove the case is not tenable. 15. It is apparently clear that the appellant has deserted the respondent without any sufficient reason from last five years back, therefore, the grounds of desertion is proved. 16. In Rohini Kumari v. Narendra Singh [ AIR 1972 SC 459 ] it has been held by the Court that: "desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is total repudiation of the obligation of the marriage." 17. Tolstoy in his commentary on the Law and Practice of Divorce, 6th Edition, has observed on page 38 that desertion is the cessation of a cohabitation brought about by the fault or act of deserting spouse. This requires two elements on the part of the deserting spouse, namely the fact of separation and the intention to desert and there will be no desertion unless both elements are present. 18. In Nirmala v. Vasdev Pardsam [ 1978 RLR 97 ] it has been held that: "If wife leaves matrimonial home for her parents' house and does not return and join her husband for more than two years, without any reasonable excuse, then she is guilty of desertion. Earlier desertion if condoned by resumption of cohabitation gets only obscured and is not obliterated altogether and may be considered towards wife's previous conduct." 19. The trial Court has also dealt with this aspect in great detail and rightly came to the conclusion that the appellant has deserted the respondent without any sufficient cause for last five years. 20. So far as the ex parte proceeding against the appellant is concerned, it is borne out from the record that firstly she was represented by her counsel Shri Khidwadkar. She also appeared personally on some dates but remained ex parte on 2.8.2002, therefore, the Court proceeded ex parte. Then on 28.8.2002 the ex parte proceeding was set aside. 20. So far as the ex parte proceeding against the appellant is concerned, it is borne out from the record that firstly she was represented by her counsel Shri Khidwadkar. She also appeared personally on some dates but remained ex parte on 2.8.2002, therefore, the Court proceeded ex parte. Then on 28.8.2002 the ex parte proceeding was set aside. The Court passed the order on the application under section 24 of the Hindu Marriage Act on 7.10.2002 but again on 11.11.2002 no one appeared on her behalf, therefore, the Court proceeded ex parte. On 10.1.2003 again an application under Order 9 Rule 7, Civil Procedure Code was moved which was rejected on 13.1.2003. Thus, it appears that she has deliberately remained absent and no one appeared on her behalf. The trial Court has rightly proceeded ex parte against her and has not committed any error in rejecting the application under Order 9, Rule 7, Civil Procedure Code. 21. We find no merit in this appeal hence deserves to be dismissed. 22. Consequently the appeal fails and is dismissed accordingly. Parties to bear their own costs. The counsel's fee quantified as per scheduled. The decree be drawn up accordingly.