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2015 DIGILAW 1459 (PNJ)

AMARJIT SINGH v. GARMEET KAUR

2015-08-13

NAVITA SINGH, RAJIVE BHALLA

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JUDGMENT : Rajive Bhalla, J. The appellant, challenges judgment dated 13.12.2008, passed by the Additional District Judge, Moga, dismissing his petition filed for grant of a decree of divorce on the ground of cruelty and desertion. 2. The appellant and the respondent were married in June, 1996 and were blessed with two children. The appellant, was serving in the Indian Army. The appellant filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') pleading that his wife had insulted him in front of villagers, refused to cook meals for him and his guests, gave a chappal blow on his head, tried to commit suicide and implicate his entire family and eventually deserted the appellant more than two years before the filing of the petition. 3. Notice of the divorce petition was issued to the respondent. The notices were received back with the report that the respondent has left without giving any forwarding address. Eventually, after all other efforts failed, service was ordered to be effected by publication, in a newspaper. The notice was published in the "Punjabi Ajit". The respondent still did not put in appearance, compelling the trial court to order ex-parte proceedings against the respondent-wife. 4. The appellant stepped into the witness box as PW1 and his father Gurlal Singh as PW2. The learned trial court has after considering the pleadings and the evidence, dismissed the petition by holding that the evidence on record neither establishes cruelty nor desertion. 5. Counsel for the appellant submits that the findings that the appellant has not been able to prove his allegation of cruelty or desertion disregards the fact that these allegations remained un-controverted. The pleadings are duly supported by the depositions of the appellant and his father. Counsel for the appellant further submits that the respondent, deserted the appellant, two years before the filing of the application under Section 13 of the Act. The respondent did not put in appearance before the trial court despite being served by substituted service and has not put in appearance before this Court despite publication in newspapers, thereby clearly proving that the respondent is not interested in controverting allegations in the petition and has deserted the appellant. 6. The respondent did not put in appearance before the trial court despite being served by substituted service and has not put in appearance before this Court despite publication in newspapers, thereby clearly proving that the respondent is not interested in controverting allegations in the petition and has deserted the appellant. 6. We have heard counsel for the appellant, perused the impugned judgment, averments in the petition, filed under Section 13 of the Act, the depositions by PW1 and PW2 and reject the argument that the appellant has been able to prove his allegation of cruelty. The general allegations of refusing to prepare meals and hitting the appellant with a "Chappal", are devoid of necessary particulars, and even otherwise, the mere fact that the wife refused to cook meals, in our considered opinion, cannot be a ground to accept a plea of cruelty. 7. As regards the plea of desertion, the appellant has specifically pleaded and deposed as PW1 that the respondent left the matrimonial home without any cause more than two years before the filing of the petition, thereby fulfilling the ingredients of Section 13 (ib) of the Act. As already recorded, the averment remains un-controverted as the respondent was proceeded against ex-parte. This apart, the appellant has in his affidavit repeated these averments, which have remained unchallenged by cross-examination. Thus, where the plea of desertion remains un-controverted by any written statement or cross-examination of witnesses it cannot be rejected merely because the exact date/month of desertion is not pleaded or proved. The respondent despite repeated notices and even publication, in a newspaper did not put in appearance before the trial court or in the appeal. We are, therefore, satisfied that the respondent has deserted the appellant particularly as averments regarding desertion remain un-controverted by any denial in a written statement or cross-examination of the appellant and his witness PW2. The trial court did not pay due attention to the plea of desertion and while concentrating on the plea of cruelty made a passing observation regarding desertion. 8. Consequently, we hold that the respondent has deserted the appellant without just cause and dissolve the marriage between the appellant and the respondent by granting a decree of divorce. 9. No order as to costs.