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2020 DIGILAW 1102 (JHR)

Anupam Das v. Priyanka Tiwary

2020-11-25

ANUBHA RAWAT CHOUDHARY, APARESH KUMAR SINGH

body2020
ORDER : Heard learned counsel for the appellant Mr. Deepak Kumar Dubey. 2. The appellant is aggrieved by the judgment dated 31st March, 2017, decree dated 10.04.2017, passed in Original Suit No. 118 of 2016, by the learned Addl. Principal Judge, Add. Family Court, Dhanbad, whereunder his prayer for dissolution of marriage with the respondent on the grounds of desertion has been refused. The defendant wife did not appear before the learned Family Court in spite of sufficient service of notice and the case was heard ex-parte. 3. In the present appeal, several attempts have been made to ensure her appearance. On the first occasion, notice was issued on 23rd April, 2018 under both process. However, as per the status report and endorsement on the undelivered registered cover that the addressee does not reside at the given address, fresh steps were taken on her present and correct address in pursuance of the order dated 9th July, 2018 under both process once again. This also returned unserved as per the service report with an endorsement on the undelivered registered cover that the addressee is not residing at the given address/incomplete address. Then by order dated 27th March, 2019, notices were directed to be served through the head of the Bag Mugalia Police Station, District Bhopal, Madhya Pradesh on the fresh address given by the appellant and copy of the order was also sent to the Superintendent of Police, District-Bhopal (Madhya Pradesh) through FAX and by registered post. Service report shows that notice could not be served since respondent was out of station for attending marriage ceremony of her relative. Then, by order dated 26.06.2019, appellant was directed to effect service of notice through courier and also to get it published in Hindi and English Newspapers having wide publication in Bhopal. Appellant filed supplementary affidavit in proof of service of notice through paper publication and courier also. Despite such service of notice, respondent had not entered appearance. Accordingly, after condonation of delay of 4 days, the appeal was admitted for hearing by order dated 11th November, 2019 and lower court records were called for. In these circumstances, the present appeal has been heard after receipt of the L.C.R. ex-parte against the respondent wife. 4. Family Court framed the only issue of desertion to be decided in the matrimonial suit on the basis of the pleadings on record. In these circumstances, the present appeal has been heard after receipt of the L.C.R. ex-parte against the respondent wife. 4. Family Court framed the only issue of desertion to be decided in the matrimonial suit on the basis of the pleadings on record. Learned counsel for the appellant has placed the case of the appellant and the evidence adduced by him before the learned Family Court in support of the grounds to assail the impugned judgment by which the plea of desertion was disbelieved. Learned counsel for the appellant submits that the marriage was solemnized on 24th January, 2008 as per Hindu Rights and Rituals. The parties lived together at Haldia and thereafter at Nirsa, Dhanbad. However, gradually, the behaviour of the wife towards him and his family members started changing. She used to taunt and abuse them showing scant respect towards her family members. She used to find every reason to go to her parental place now and then. Finally she left her matrimonial home on 12th February, 2011 and never returned thereafter. Appellant undertook several efforts to restore the matrimonial life, but there was no reciprocal act on the part of the wife. The respondent left without any reasonable cause. She has never complained of any ill treatment or torture against the husband and his family members nor instituted any criminal case alleging cruelty in marriage for demand of dowry under Section 498-A of the Indian Penal Code or the Dowry Prohibition Act. This shows that she is indifferent towards the marriage and the appellant and does not want to resume conjugal life. Learned Family Court, after framing issue upon consideration of the pleadings and the evidence of the petitioner husband, erroneously arrived at the opinion that since the testimony of the petitioner was not cross examined by the wife, not much weight can be attached to record a finding of desertion. As per the learned Additional Family Court, physical separation alone is not sufficient to establish the ingredient of desertion as per Section 13(1) (i-b) of the Hindu Marriage Act, 1955. The petitioner had failed to show any animus on her part to record a finding of desertion against her. However, it is argued that the conduct of the respondent wife shows indifference and neglect to her matrimonial duties for 9 years by now without any contact with the husband. The petitioner had failed to show any animus on her part to record a finding of desertion against her. However, it is argued that the conduct of the respondent wife shows indifference and neglect to her matrimonial duties for 9 years by now without any contact with the husband. This is enough to show an animus to permanently forsake the marriage with the appellant. It appears that there is no emotional bond left in her or love and affection towards him. There are no children borne out of the wedlock. The suit was instituted after five years of her desertion in 2015. She chose not to contest the suit despite service of notice. Any effort for resumption of conjugal life could only be made if the other spouse shows willingness to engage in a conciliation or mediation process. No effort for mediation could be made during the trial stage and before this Appellate Court also in terms of Section 23 of the Hindu Marriage Act, 1955. In such circumstances, if the respondent is unwilling to continue with the marriage, appellant should not be denied relief to the advantage of the disinterested wife. 5. Learned counsel for the appellant has placed reliance upon a decision of this court rendered in Appeal from Original Decree No. 6/2013 in the case of Shaktipada Mahto vs. Smt. Chandana Mahto judgment dated 11th July, 2018. He has also placed reliance upon the decision of Bombay High Court rendered in Family Court Appeal No. 215/2018 in the case of Shri Shailendra Madhukar Bhalerao vs. Sou. Suruchi Shailendra Bhalerao judgment dated 26th November, 2018. Learned counsel by placing reliance upon the decision of the Bombay High Court submits that in similar circumstances, when the separation had been for sufficiently long period, in that case 20 years with no effort on the part of the wife to resume cohabitation, it was held that even though the animus may not be present at the initial separation, but the presence of such animus deserendi afterwards is definitely evident and made out. Similar are the facts of the present case. Similar are the facts of the present case. Learned counsel further submits that in the case of Shakti Pado Mahto (supra) the decisions rendered in i.e. Savitri Pandey vs. Prem Chandra Pandey (2002) 2 SCC 73 , paragraph 8 and 9, and that of Bipin Chandra Jaisingh Bhai Sah vs. Prabhawati, AIR 1957 S.C. 176 and another decision in the case of Samar Ghosh vs. Jaya Ghosh reported in (2007) (4) SCC 511, para 99 to 101 was also relied upon. This court based upon the aforesaid decisions and comprehensive appraisal of the entire matrimonial life of the parties arrived at an opinion that a wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. Sustained unjustifiable conduct and behaviour of one spouse actually affecting the physical and mental health of the other spouse and long period of continuous separation without any reasonable cause may fairly lead to the conclusion that matrimonial bond is beyond repair. It was found that the marriage has become a fiction though supported by legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary it shows scant regard to the feelings and emotions of the parties. Learned counsel for the appellant submits that the appellant has been made to suffer lack of any emotional support and fruits of the marriage by deliberate and conscious acts/omission of the respondent wife by living in separation for more than 9 years by now. In those circumstances, when the marriage has irretrievably broken down, it would cause grave injustice to the appellant if it is not dissolved. 6. We have considered the submission of learned counsel for the appellant, gone through the impugned judgment and lower court records. Since the respondent has chosen not to contest the matrimonial suit and appear to contest the present appeal, this court is required to arrive at an opinion based upon the pleadings and evidence adduced by the petitioner/appellant. The factum of marriage on 24th January, 2008 and the date of separation 12th February, 2011 when the respondent went to her paternal home remains unchallenged. Appellant has prayed for a decree of dissolution of marriage only on the ground of desertion. The factum of marriage on 24th January, 2008 and the date of separation 12th February, 2011 when the respondent went to her paternal home remains unchallenged. Appellant has prayed for a decree of dissolution of marriage only on the ground of desertion. There are no criminal cases instituted by the respondent wife any time during the subsistence of the marriage and even after leaving the matrimonial home which may give a reason to believe that she was compelled to leave the matrimonial home on account of cruel treatment on the part of the husband and his family members. There are no allegations of any demand of dowry either against the husband. There are two ingredients of desertion required to be established as per the decision rendered by the Apex Court in the case of Bipinchandra Jainsinghbhai Shah (supra) followed in the case of Savitri Pandey vs. Premchand Pandey reported in (2002) 2 SCC 73 which we profitably quote hereunder. 8. “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 legalises 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 a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: (AIR pp. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: (AIR pp. 183-84, para 10) “For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.” 9. Following the decision in Bipinchandra case this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation”. It follows from the ratio of the aforesaid decision that on the part of the deserting spouse two essential conditions must be fulfilled namely (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end (Animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intent aforesaid. The deserted spouse bears the burden of proving those two elements in two spouses respectively. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; i.e. to say the facts has to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been separation, the essential question always is whether that act could be attributable to animus deserendi. The offence of desertion commences when the facts of separation and animus deserendi co-exists. But it is also not necessary that they should commence at the same time. Under the Hindu Marriage Act, desertion for a continuous period of two years constitutes a ground for seeking divorce. In the present case, the respondent has left the matrimonial home on 12th February, 2011 and thereafter never returned. But it is also not necessary that they should commence at the same time. Under the Hindu Marriage Act, desertion for a continuous period of two years constitutes a ground for seeking divorce. In the present case, the respondent has left the matrimonial home on 12th February, 2011 and thereafter never returned. Appellant in his examination in chief has stated that after all efforts to bring her back failed, he was compelled to institute the suit for divorce after 5 years of desertion. Respondent has not instituted any criminal case against the husband alleging cruelty in marriage or demand of dowry or for any other allegation which could go to show that the deserted spouse i.e. the appellant has given reasonable cause for her to leave the matrimonial home. In those circumstances, it can be safely assumed that appellant did not provide any reasonable cause to the respondent to leave the matrimonial home. On the other hand, respondent even though she might have left the matrimonial home on 12th February, 2011, without the necessary animus at that stage she never showed up any intent thereafter to resume conjugal right for all these years till date. Her indifference to the marriage and the elements of animus can also be deciphered from the fact that she chose not to appear and contest the proceedings before the learned Family Court despite valid service of notice. In the present appeal also, despite service of notice upon her, she has failed to appear and contest the appeal. In this background it is useful to refer to the statutory provision under Section 23 of the Hindu Marriage Act, 1955. Section 23 reads as under : “23. Decree in proceedings. In the present appeal also, despite service of notice upon her, she has failed to appear and contest the appeal. In this background it is useful to refer to the statutory provision under Section 23 of the Hindu Marriage Act, 1955. Section 23 reads as under : “23. Decree in proceedings. (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and] (c) [the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties : [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.] [(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.] [(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.] As per Section 23(2) of the Hindu Marriage Act, it is obligatory upon the court in the first instance, in every case, where it is possible so to do consistently with the nature and circumstances of the case to make every endeavour to bring about a reconciliation between the parties before granting any relief. Further under sub section (1) (d) & (e) it has to be seen whether there has been any unnecessary or improper delay in instituting the proceeding and that there is no other legal ground why relief should not be granted. In the present case, since the respondent has chosen not to appear and contest the proceeding, no effort for any reconciliation through mediation could be undertaken in the spirit of the Act of 1955 and also the Family Courts Act, 1984. 7. In the present case, since the respondent has chosen not to appear and contest the proceeding, no effort for any reconciliation through mediation could be undertaken in the spirit of the Act of 1955 and also the Family Courts Act, 1984. 7. On a comprehensive appraisal of the entire case of the parties over a period of 12 years of the marriage, it is evident that respondent wife has shown indifference and disinterest in sustaining matrimonial relationship with the appellant for over 9 years since 2011 when she left the matrimonial home. Both the parties live separately for the last nine years without any cohabitation or any exchange of love and affection or emotional feelings between them. It also goes to show that the marriage has irretrievably broken down. Though irretrievable breakdown of marriage is not a recognized ground for divorce under the Act of 1955 but it can be treated as an additional factor along with any other established grounds for divorce under Section 13 thereof if so proved. This marriage therefore appears to be a fiction supported by legal tie. By refusing to sever the tie the law may not serve the sanctity of the marriage. As such, taking an overall view of the matter, we are inclined to allow this appeal for the reasons, indicated hereinabove. The impugned judgment and decree are set aside. Marriage between the parties stands dissolved. The appeal is allowed. Decree accordingly. Appeal allowed.