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2014 DIGILAW 2169 (RAJ)

Shilpa v. Kuldeep Singh Gehlot

2014-12-18

PRAKASH GUPTA, SUNIL AMBWANI

body2014
JUDGMENT : Hon'ble GUPTA, J.—This appeal is preferred against the judgment and decree dated 12.3.2013 passed by the learned Family Court No.2, Jodhpur (herein after 'the Court') in CO No.63/2012 whereby the learned Court has granted a decree of divorce in favour of the respondent-husband. 2. The brief facts of the case are that the marriage between the parties was solemnized on 08th December 2001 at Jodhpur according to Hindu rituals and rites. The respondent contends that behaviour of the appellant from the beginning towards the respondent and his family members was cruel. She denied to perform her conjugal duties and also refused to consummate the marriage. The respondent went to Ethopia in November 2002 and the appellant went to reside with him in May 2003. The respondent contends that the appellant continued being cruel and abusive towards him. Upon their return to India on 8.7.2004, the appellant did not accompany the respondent to her matrimonial home but went to her parent's house. She at her own free will would visit her matrimonial home occasionally and last she visited on 20.8.2004. On that day a quarrel took place between the two in which the appellant slapped the respondent in the heat of the moment. The appellant left her matrimonial home and went to her parent's house, and did not return back. 3. In the aforementioned circumstances, the respondent alleged cruelty and desertion for a continuous period of two years without reasonable cause on the part of the appellant, from 20.8.2004 to the date of filing of the suit, entitling him to a decree of divorce. 4. In reply, the appellant denied all the allegations of cruelty and desertion leveled against her and contended that the respondent had made demands of dowry. As for desertion, she contended that when she visited her matrimonial home in December 2004, she came to know that the respondent had left to Ethopia in November 2004. She contended that she was never informed by him that he is leaving for Ethopia. She alleged that when the respondent returned to India in March 2006, she visited her matrimonial home against as soon as she learnt about respondent's return. She contended that she never intended to leave her matrimonial home but was driven out of the house by the respondent who had continually harassed her. 5. She alleged that when the respondent returned to India in March 2006, she visited her matrimonial home against as soon as she learnt about respondent's return. She contended that she never intended to leave her matrimonial home but was driven out of the house by the respondent who had continually harassed her. 5. On the basis of pleadings, following issues were framed by the Court: a) Whether the non-applicant subjected the respondent to cruelty after solemnization of the marriage as mentioned in the suit so as to make it an appropriate ground for divorce under Sec. 13 of the Hindu Marriage Act, 1955? b) Whether the non-applicant deserted the applicant without probable and unreasonable cause for continuous period of 2 years from 20.8.2004 to the date of filing of the suit? c) Relief? 6. To prove the aforementioned issues, the respondent got himself examined as AW1 and also examined AW2 Durga Prasad and AW3 Bheek Singh. In rebuttal, the appellant got himself examined as NAW1. The Court decided the issue No.1 in favour of appellant-wife and issue No.2 in favour of respondent-husband and consequently granted a decree of divorce on the ground of desertion in favour of the respondent. Aggrieved, the appellant has preferred this appeal. 7. Learned counsel for the appellant submits that the observation of the Family court that the appellant-wife did nothing to obtain her passport from her mother-in-law, which she alleges to have been kept with her mother-in-law, is absurd. The respondent had concealed the fact of his leaving for Ethopia in November 2004. He deliberately did not disclose his whereabouts in Ethopia, making it impossible for her to travel and to join him. It is also noteworthy that the respondent did not cross-examine the appellant on the point of his driving her out of the matrimonial home and subjecting her to harassment during March 2006 to April 2006. Lastly, learned counsel emphatically contended that there is nothing factual nor legal which may constitute desertion on the part of the appellant, entitling the respondent to a decree of divorce on the said ground. 8. Per contra, the learned counsel for the respondent supported the findings of the Court below and contended that on the facts and circumstances of the case, desertion by the appellant-wife was proved, entitling the respondent to a decree of divorce. 9. 8. Per contra, the learned counsel for the respondent supported the findings of the Court below and contended that on the facts and circumstances of the case, desertion by the appellant-wife was proved, entitling the respondent to a decree of divorce. 9. We have heard learned counsel for both the parties and perused and material on record. 10. Hindu marriage is not a contractual relationship but a sacrament and hence, severance of the marital ties should not be easily allowed. The courts must make sincere effort to reconcile the difference between the spouses and must make all genuine and earnest efforts to make the marriage workable again. It is incumbent upon the courts and is in the larger interest of the society not to allow the institution of marriage to break down unless there are serious and irreconciliable differences in the conjugal relationship. 11. The grounds of divorce enlisted under Sec. 13 of the Hindu Marriage Act (herein after 'the Act') must be strictly proved to the satisfaction of the Court. The approach of the Court must be towards reconciliation and only when it appears to it that the marriage cannot sustain or that a ground of divorce is made out, it should tilt its balance towards granting divorce. 12. Desertion is a ground which strikes at the foundation of the marriage between the parties i.e. fulfilling the conjugal obligations and to cherish companionship. Each spouse is bound by certain duties towards the other. Desertion without reasonable cause is abandonment of such obligation by one spouse towards the other. The essence of desertion lies in either physical or mental separation with the intention to give up on the matrimonial duties permanently, for a continuous period of two years. Such act of separation by the deserting spouse, whether constructive or express, must co-exist with his/her intention to desert. 13. Section 13(1)(ib) of the Act, providing desertion as a ground of divorce, reads that- "13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party ........ (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;" 14. (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;" 14. The elements, which need to be satisfied in order to constitute the offence fo desertion as per the Act can, therefore, be enumerated as : a) factum of a valid marriage b) the intention to desert i.e. animus c) the factum of separation i.e. deserendi d) animus deserendi without just and reasonable cause e) desertion for a continuous period of two years immediately preceding the date of presentation of the petition. 15. The Hon'ble Apex Court, inter alia, brought forth the following ingredients of desertion as a ground of matrimonial relief in the case of Bipinchandra Jaisinghbhai Shah vs. Prabhavati, AIR 1957 SC 176 ( 1956 SCR 838 ): (i) factum of separation by the spouse, (ii) animus deserendi or intention to bring cohabitation permanently to an end, (iii) absence of consent to such separation by the deserted spouse, (iv) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid, (v) the desertion must have continued at least for prescribed statutory period immediately before presentation of the petition, (vi) the deserting spouse may put an end to desertion by coming back to the deserted spouse, before the statutory period is over or even after that period, but before proceeding for divorce have been filed, (vii) if the deserted spouse unreasonably refuses the offer of the deserting spouse, then the latter will be in desertion and not the former, (viii) the offence of desertion commences when the fact of separation and animus deserendi co-exist. It is, however, not necessary that they should commence at the same time, (ix) the offence of desertion has to be proved by the plaintiff who alleges desertion by the respondent, (x) the party leaving the matrimonial home may not necessarily be the one guilty of desertion. Quite often, it is the other party who creates a situation that impels the spouse to leave the house. This is known as constructive desertion. It this situation, it is the party who creates such situation is guilty of the desertion, (xi) to prove the desertion in matrimonial cases, it is not always that one of the spouse should have left the company of the other, as desertion could be proved while living under the same roof also. This is known as constructive desertion. It this situation, it is the party who creates such situation is guilty of the desertion, (xi) to prove the desertion in matrimonial cases, it is not always that one of the spouse should have left the company of the other, as desertion could be proved while living under the same roof also. In other words, desertion may not be withdrawal from a state of things. It may not be unlikely that the parties are living in the same house and yet one might have deserted the other and conversely, they may be living physically apart and yet not in desertion. Desertion cannot be equated with separate living by the parties to the marriage. 16. In Savitri Pandey vs. Prem Chandra Pandey, 2002(2) SCC 73 , the Hon'ble Apex Court held that -- "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage, which in law legalizes the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah vs. Prabhavati ( AIR 1957 SC 176 ) held that if a spouse abandons the other in a sate of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. 17. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah vs. Prabhavati ( AIR 1957 SC 176 ) held that if a spouse abandons the other in a sate of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. 17. Coming to the facts of he case at hand, as an appellate Court we are mainly concerned with the question as to whether desertion on the part of appellant-wife was proved on record so as to uphold the decree of divorce granted in favour of the respondent-husband by the Court below on the said ground. 18. It is settled in law that it is incumbent on the petitioner to prove that the respondent is guilty of desertion. The burden of proof lies on the party who alleges the fact of desertion. In the present case, this burden lies on the respondent-husband. It was his duty to prove that the appellant-wife separated herself from him without just cause and had intention to abandon the conjugal obligations she had towards him. Also, that the desertion continued for statutory period of two years immediately before the respondent filed the petition for divorce. 19. In this context, in the case of Lachman Utamchand Kirpalani vs. Meena alias Mota, AIR 1964 SC 40 , the Hon'ble Apex Court observed as follows: "It is settled law that the burden of proving desertion - the "factum" as well as the "animus deserendi" - is on the petitioner, and he or she has to establish beyond 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. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without cause." 20. In the instant case, the husband alleges that the wife had deserted him continuously from 20.8.2004. On close examination of the evidence on record, we are of the view that the evidence led by parties did not establish the ground of desertion. Further, the evidence on the question of cruelty, which was dependent on the proof of desertion, was also not sufficient. 21. On close examination of the evidence on record, we are of the view that the evidence led by parties did not establish the ground of desertion. Further, the evidence on the question of cruelty, which was dependent on the proof of desertion, was also not sufficient. 21. As far as the circumstances that conjured after 20.8.2004 are concerned, it is proved by the evidence adduced by both the parties that the respondent-husband had left for Ethopia in November 2004. Admittedly, this fact has not been disclosed in the petition of the respondent-husband. There is no explanation to the concealment of the visit of the husband to Ethopia, for the period, in which it is alleged that the appellant had deserted him. 22. AW1, respondent-husband, stated in his evidence that from 18.7.2004 till 20.8.2004, the appellant-wife left her matrimonial home, with an intention to severe conjugal ties. On many occasions, the respondent-husband and his family members attempted to reconcile with the appellant-wife asking her to stay but she was too stubborn to agree. The respondent-husband also stated that he tried to bring the appellant-wife back to her matrimonial abode before 2004 but she declined the request. Further, he alleges that because of reluctance of the appellant-wife, the respondent-husband did not make efforts either by giving notice or otherwise to reconcile the differences with her. 23. In rebuttal, the appellant-wife stated in her evidence specifically that on 23.9.2004 she and the respondent-husband got their joint locker closed and gave the entire jewellery to his mother. There is no explanation in his statement as to why he did so. The appellant then stated that she revisited her matrimonial home on 8.10.2004, only to be driven out. She further alleges that she relentlessly went again in December 2004 but was informed that the respondent had left for Ethopia. She contends that she had no knowledge that he had left and though she could have traveled without any intimation and live with him, her mother-in-law did not give her the passport detained by her, even on demand. Further, she states that she again went to her matrimonial home in April 2006 after she learnt about respondent's return to India in March 2006 after she learnt about respondent's return to India March 2006 but was again driven out of the house by the respondent-husband, himself, only after a week of her visit. 24. Further, she states that she again went to her matrimonial home in April 2006 after she learnt about respondent's return to India in March 2006 after she learnt about respondent's return to India March 2006 but was again driven out of the house by the respondent-husband, himself, only after a week of her visit. 24. She further stated that she went on Diwali in 2006 as also on Holi in 2007 but was not allowed to enter the matrimonial home. She, nevertheless, visited the respondent again on 11.8.2007 in Pali where he was serving but was told by the respondent that he would talk to his mother and give a reply to her thereafter. 25. Even in her cross-examination, she assertably stated that she tried her best to live with the respondent, having no intention to severe marital relationship at any point of time. 26. The respondent-husband did not cross-examine the appellant-wife on any of the facts stated above as regard her visiting the respondent on specific dates and on her allegation that she was driven out or was not allowed to enter the matrimonial home. The respondent also failed to produce her mother to rebut appellant's contention that the mother-in-law did not return appellant's passport on demand nor appellant's allegation that she was not allowed to enter the matrimonial home. 27. The deposition of AW2 does not by any means suggest that the appellant-wife deserted the respondent. It is highly improbable that the appellant-wife went and told about her abusive act towards the respondent on 20.8.2004 to AW2, as stated by AW2. 28. As far as the testimony of AW3 is concerned, the AW3 had merely narrated the incident that took place on 18.7.2004 and 20.8.2004. There is no independent evidence which could have satisfied the Court to infer that the appellant deserted the respondent. 29. On the assessment of evidence led by the parties, we are of the view that it was not possible for the appellant-wife to visit Ethopia to join and live with her husband to restitute her conjugal rights, when he had left for Ethopia in November 2004, without informing her. 29. On the assessment of evidence led by the parties, we are of the view that it was not possible for the appellant-wife to visit Ethopia to join and live with her husband to restitute her conjugal rights, when he had left for Ethopia in November 2004, without informing her. The appellant-wife was unaware of the whereabouts of her spouse on which it was not expected from her to go and reside with him and specially when he did not, in fact, make any effort to either call her or to visit her on his return to India. 30. In light of the above discussion, we are of the view that the evidence of appellant-wife appears to be more cogent and reliable then that of respondent-husband. She lead more reliable and convincing evidence of her efforts to live with the respondent whereas the respondent-husband makes a bald and vague assertion about appellant-wife deserting him. 31. The evidence on record though suggests separation but does not suggest animus i.e. the intention of desertion on the part of he appellant-wife. In order to constitute matrimonial offence of desertion u/Sec. 13(1)(ib) of the Act, animus and deserendi must co-exist. Since animus of wife of lacking in the present case, mere separation does not amount to desertion on her part. 32. The observations of the trial Court that the appellant-wife could have obtained passport from her mother-in-law if she was so willing to reside with the respondent are not supported by the circumstances of the case. It cannot be reasonably expected of the appellant-wife to visit a foreign country even if she had once visited there with her husband without having knowledge of the whereabouts of the respondent and passport, which was withheld by her mother-in-law. Also, the respondent made no attempt to make arrangement for the appellant to visit and stay with him in Ethopia. The Family Court also erred in observing that it was for the appellant-wife to establish that she did have any just and reasonable cause not to live at the matrimonial house. The appellant-wife was not under any obligation to live at the matrimonial home with her mother-in-law in the absence of respondent-husband, especially when she was driven out of the matrimonial home by the respondent. 33. The appellant-wife was not under any obligation to live at the matrimonial home with her mother-in-law in the absence of respondent-husband, especially when she was driven out of the matrimonial home by the respondent. 33. Lastly, the observation of the Court below, that the appellant-wife did not file a petition for restitution of conjugal rights and hence, is guilty of desertion, is wholly misconceived. Section 9 of the Act is not a precursor to any proceedings or defence available to the parties under the Act. It is a right independent of the right to take defence in a proceedings of divorce on the ground of desertion. 34. In view of the above, we find that the trial Court failed to appreciate the evidence in right perspective. The above discussion conclusively establishes that the finding of the trial Court as regard issue No.2 is erroneous since no case of desertion on her part is made out. 35. It is stated by learned counsel for the respondent-husband that subsequent to the decree of divorce granted on 12.3.2013, he has entered into a second marriage on 11.6.2013, with one Smt. Purnima whereas the appellant-wife filed an appeal within the statutory period of limitation of 90 days. The respondent-husband avoided the service of summons and subsequently got married after expiry of said period of limitation. 36. Section 15 of the Act contemplates that no party to the proceedings of divorce shall marry unless the time required for preferring an appeal from the decree of divorce or dismissal of the petition for divorce has expired. A party cannot defeat a substantive right of the other party which may accrue to the latter in case of reversal of a divorce decree in appeal, by contending that summons were not served, if he appeal is filed well within the statutory period. A second marriage solemnized in such circumstances shall be void and will not have sanction of law. In view of legal position, the marriage between the respondent and Smt. Purnima solemnized on 11.6.2013 is found to be void. 37. Consequently, the appeal is hereby allowed and the judgment and decree dated 12.3.2013 passed by the court below is set aside. IA No.949/2014 is also allowed and the second marriage entered into by the respondent is declared to be void.