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2013 DIGILAW 1256 (PNJ)

Karamjit Singh Sivia v. Sarah Ann Chandok

2013-09-17

S.P.BANGARH, S.S.SARON

body2013
JUDGMENT Mr. S.P. Bangarh, J.:- The marriage between the parties was solemnized on 08.02.2009 as per Sikh rites at Moga. After marriage, they cohabited together as husband and wife at the place of the appellant at Village Talwandi Bhai, Tehsil and District Ferozepur uptil 22.02.2009. No child was born to the parties from their marriage. The respondent is a permanent resident of Canada. At the time of marriage, it was settled that either the respondent shall live in India after marriage or she shall take the appellant with her to Canada. She had come to India from Canada on 28.01.2009 for the purpose of solemnizing her marriage. The respondent left India on 22.02.2009 for Canada. Since then, she has been living there in Canada and has not returned to India. She even did not try to take the appellant with her to Canada. Parties have been living separately since 22.02.2009 and, thereafter, no cohabitation ever took place between the parties. 2. Appellant phoned the respondent many a time asking her to come to India and live with him as his wife or she should endeavour to take him to Canada, but she did not do so. In this manner the respondent it is alleged has been guilty of desertion of the appellant without any sufficient cause since 22.02.2009. Against this background, the appellant instituted the petition under Section 13 of the Hindu Marriage Act, 1955 (‘Act’ - for short) before the learned Additional District Judge, Ferozepur for dissolution of his marriage with the respondent on the ground of desertion. 3. Notice of the petition was sent to the respondent on her address mentioned in the petition by the learned trial Court below, but she did not appear to contest this petition and, therefore, was ordered to be proceeded against ex-parte. In ex-parte evidence, appellant examined himself as PW-1 and tendered his affidavit adjuring, therein, the averments contained in the petition, that have been reproduced in the earlier parts of this judgment, which need not to be reproduced. 4. Appellant also examined Jaspal Singh as PW-2, who tendered in evidence his affidavit, adjuring therein, the averments contained in the petition and, thereby, corroborated the testimony of the appellant (PW-1) tendered by him by filing his affidavit. 4. Appellant also examined Jaspal Singh as PW-2, who tendered in evidence his affidavit, adjuring therein, the averments contained in the petition and, thereby, corroborated the testimony of the appellant (PW-1) tendered by him by filing his affidavit. Appellant also examined Bhupinder Singh as PW-3, who too, tendered his affidavit adjuring, therein, the averments contained in the petition and thereby, corroborated the testimonies of PW-1 and PW-2 provided through their respective affidavits. 5. After examining three witnesses, the appellant closed his ex-parte evidence. After perusal of the evidence and documents on the record, the learned trial Court vide impugned judgment and decree dated 15.01.2003, dismissed the petition of the appellant. Aggrieved, thereagainst, the appellant who was petitioner before the learned trial Court has come up in this appeal with a prayer for its acceptance, thereof and for dissolution of his marriage with the respondent on the ground of desertion. 6. Respondent was proceeded against ex-parte before the learned trial Court. Although notice of this appeal to the respondent was not required to be given as per requirement of Order 41 Rule 14 Sub-rule (4) of the CPC, yet notice of this appeal was given to the respondent, but she could not be served through registered post, as also, through ordinary process. Since, the respondent could not be served through ordinary manner, she was ordered to be served through publication in the daily Indian Express (Chandigarh Edition). The respondent was duly served through publication in the daily Indian Express (Chandigarh Edition) in its issue dated 26.03.2013. Since no one caused appearance on behalf of respondent, she was ordered to be proceeded against ex-parte. 7. Heard, learned counsel for the appellant and record of the learned trial Court perused with his assistance. 8. The learned trial Court in para 6 of its impugned judgment held that desertion ascribed to the respondent cannot be held to be an intentional one on her part, as the appellant was himself aware of the fact that he was marrying the respondent, who has been a permanent resident of Canada. It was held that if the appellant was not in possession of visa to go abroad and by contracting marriage with the respondent, he was unable to join her company, that cannot be used as a ground for getting the divorce under Section 13 of the Act. 9. It was held that if the appellant was not in possession of visa to go abroad and by contracting marriage with the respondent, he was unable to join her company, that cannot be used as a ground for getting the divorce under Section 13 of the Act. 9. After giving our thoughtful consideration to the matter, we are unable to accept the reasoning formulated by the learned trial Court. It is not a requirement, in case the respondent was abroad, for the appellant before solemnising his marriage to possess a visa so as to go abroad and be with the respondent. Non possession of visa for going abroad and be with the spouse who is abroad can never be a pre-condition for soleminizing a marriage. When the marriage between the parties was valid, the appellant could ask the respondent to join his company. It is in fact and rather is an obligation on the part of wife to live with her husband. When the appellant could not get a visa to join the respondent in Canada, he phoned her to join him, but she did not respond. 10. In this manner, the respondent has indeed deserted the appellant. The averments contained in the affidavits of the appellant (PW-1), Jaspal Singh (PW-2) and Bhupinder Singh (PW-3) remained unchallenged and un-rebutted. It is made out from the said affidavits that a valid marriage was solemnized between the parties, they cohabited together as husband and wife at the place of the appellant at Village Talwandi Bhai, Tehsil and District Ferozepur uptil 22.02.2009 and, thereafter, they have not been able to live together. 11. Notice of the petition under Section 13 of the Act, as also of the instant appeal was given to the respondent. She has not appeared to contest the petition of the appellant and controvert the averments contained in the petition. Her non-appearance in this case must lead to an inevitable conclusion that she conceded the averments contained in the petition to be veritable and therefore, she became guilty of desertion of the appellant since 22.02.2009 manifestly for a period of more than 02 years preceding the institution of the petition before the learned trial Court, that was instituted on 10.05.2012. In this manner, the respondent has been guilty of desertion for a period of 02 years preceding the institution of the petition. In this manner, the respondent has been guilty of desertion for a period of 02 years preceding the institution of the petition. Therefore, a decree of divorce on the ground of desertion, in terms of Section 13 (1) (ib) of the Act was liable to be passed in favour of the appellant and against the respondent. 12. The learned trial Court erred in not holding the respondent guilty of desertion of the appellant for continuous period of more than 02 years immediately preceding the presentation of the petition, that was filed on 10.05.2012. 13. Since the parties last resided together at the place of appellant at Village Talwandi Bhai, Tehsil and District Ferozepur, the learned trial Court at Ferozepur had jurisdiction to entertain the petition of the appellant. 14. We, therefore, hold the respondent guilty of desertion of the appellant for a period of more than 02 years immediately preceding the presentation of the petition, that was presented on 10.05.2012 and we hold that the marriage between the parties must be dissolved on this ground. 15. Resultantly, the appeal succeeds and is, hereby, allowed exparte with no order as to cost; impugned judgment and decree passed by the learned Additional District Judge, Ferozepur are set aside and the petition instituted by the appellant before the learned trial Court, is allowed with no order as to cost and the marriage between the parties solemnized on 08.02.2009 at Moga, as per Sikh rites is, hereby, ordered to be dissolved with effect from today, in terms of Section 13 (1) (ib) of the Act. Decree sheet be prepared.