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2023 DIGILAW 265 (RAJ)

Pradeep Chotiya S/o Gokul Chotiya v. Mamta Chotiya W/o Pradeep Chotiya

2023-01-24

GANESH RAM MEENA, MANINDRA MOHAN SHRIVASTAVA

body2023
JUDGMENT : 1. This appeal is directed against the impugned judgment and decree dated 06.04.2021 passed by the Family Court, Sikar (hereinafter referred to as ‘the Family Court’) by which the appellant’s/plaintiff’s application for grant of decree of divorce on the ground of desertion, has been dismissed. 2. Appellant/plaintiff filed an application before the Family Court seeking a decree of divorce on the ground of desertion, on pleadings inter-alia that the appellant/plaintiff was married to respondent on 07.07.2014. In the plaint, it has been stated that the appellant’s/plaintiff’s wife has deserted him without any reasonable cause for a period of more than two years even though the appellant/plaintiff had made all efforts to bring his wife back to the matrimonial house and is still prepared, respondent-wife is not willing to reside with him anymore. It has also been pleaded that even after counselling done on 25.05.2018, respondent-wife did not agree to resume marital relationship, nor entered into any agreement, but she denied and stated that she cannot live with the appellant/plaintiff. It was also pleaded that the appellant/plaintiff never subjected the respondent to any physical or mental cruelty even then respondent-wife is not willing and, thus, her conduct would clearly show that she had finally deserted the appellant/plaintiff. 3. In her written statement, respondent-wife denied all the allegations and pleaded that she was subjected to physical and mental cruelty by the appellant/plaintiff in connection with the demand of dowry. She lodged report in the Police Station Laxmangarh, District Sikar on which the FIR No.274/2016 for alleged commission of offences under Section 498A, 406, 323, 313 and 120B of Indian Penal Code, 1860 has been registered on 19.09.2016. It was also pleaded that despite all physical and mental cruelty in connection with demand of dowry, when the parents of the husband came to Laxmangarh, District Sikar on 20.08.2014, they accepted their mistake and on their assurance that physical and mental cruelty will not be repeated, she came back to her matrimonial house and started residing with the husband. She also stated that she became pregnant in the year 2016. Lastly, it was pleaded that after respondent-wife became pregnant in 2016, she was subjected to physical and mental cruelty which resulted into lodging of FIR on 19.09.2016. She has reasonable cause for not residing with the appellant/plaintiff. She also stated that she became pregnant in the year 2016. Lastly, it was pleaded that after respondent-wife became pregnant in 2016, she was subjected to physical and mental cruelty which resulted into lodging of FIR on 19.09.2016. She has reasonable cause for not residing with the appellant/plaintiff. In her further pleadings, she has stated that she resided with the appellant/plaintiff till June, 2016 in his place of work at Hospet, District Bellary (Karnataka). 4. On the basis of pleadings of the parties, learned Family Court framed issue as to whether the appellant/plaintiff is entitled to decree of divorce on the ground of desertion without any reasonable cause. 5. Learned Family Court allowed the parties to lead oral and documentary evidence. Taking into consideration the evidence of the appellant/plaintiff himself that he has failed to prove that the respondent-wife has deserted him for a period not less than two years immediately preceding the date of presentation of divorce petition and that application was filed on 02.07.2018, the same was dismissed. Present appeal arises out of the said judgment and decree. 6. Learned counsel for the appellant/plaintiff argued that the learned Family Court has completely misread the evidence on record. It has been argued that the evidence led by the appellant/plaintiff is required to be examined in its totality and not in isolated manner. He would submit that the appellant/plaintiff clearly pleaded that the respondent-wife deserted him since more than two years. In support of this pleading, the appellant/plaintiff examined himself as the witness. In his evidence, it has been clearly stated that after he returned back from his place of posting at Hospet, District Bellary (Karnataka), respondent-wife left the matrimonial house after sometime and went to her paternal house at Laxmangarh, District Sikar and a criminal case against him was lodged. Despite all efforts made by him, respondent-wife refused to reside with him even then learned Family Court has wrongly recorded the finding that the appellant/plaintiff failed to prove desertion of not less than two years immediately preceding the date of presentation of the divorce petition. 7. Learned counsel for the respondent would submit that the pleading in the application/plaint filed by the appellant/plaintiff, the appellant/plaintiff has nowhere specifically pleaded as to the date on which respondent-wife left the matrimonial house and, thereby, deserted the appellant/plaintiff. 7. Learned counsel for the respondent would submit that the pleading in the application/plaint filed by the appellant/plaintiff, the appellant/plaintiff has nowhere specifically pleaded as to the date on which respondent-wife left the matrimonial house and, thereby, deserted the appellant/plaintiff. He would submit that the pleading of having deserted the appellant/plaintiff for more than two years is completely vague. It is further submitted that in the evidence of the appellant/plaintiff, which was recorded by the learned Family Court on 17.08.2019, no specific evidence with regard to the date on which respondent-wife left the matrimonial house and deserted the appellant/plaintiff, has been deposed. 8. Therefore, if the period of two years is to be counted from the date of recording evidence, the period of alleged desertion is less than two years immediately preceding the date of presentation of the divorce petition, i.e.02.07.2018. Therefore, learned Family Court has not committed any illegality in dismissing the application for grant of divorce. 9. We have considered the arguments of learned counsel for the parties and perused the impugned judgment and decree as also record of the court below and the evidence on record. 10. In the application/plaint seeking decree of divorce on the ground of desertion, the appellant/plaintiff has nowhere specifically pleaded as to on which date the respondent-wife deserted him. In para-3 of the plaint, it has been pleaded that despite all advices given, respondent-wife is not returning to the matrimonial house to reside with the appellant/plaintiff. It has also been pleaded that the respondent-wife has deprived the appellant/plaintiff of matrimonial relationship for more than two years. This pleading, if we may say so, is vague and not specific. Though, the appellant/plaintiff pleads that despite advice, respondent-wife is not prepared to come back to the matrimonial house and has deprived the appellant/plaintiff of the marital relationship, no specific date, month or year has been stated on which the respondent-wife is alleged to have deserted. 11. In para-7 of the plaint, it has been pleaded that without any reasonable cause, respondent-wife has deserted the appellant/plaintiff. Again, no specific pleading with regard to the date, month or year has been pleaded. 12. In paras 8 & 9 of the plaint also, vague pleadings have been made by stating that respondent-wife has deserted the appellant/plaintiff and residing in her paternal house. Again, no specific pleading has been made. 13. Again, no specific pleading with regard to the date, month or year has been pleaded. 12. In paras 8 & 9 of the plaint also, vague pleadings have been made by stating that respondent-wife has deserted the appellant/plaintiff and residing in her paternal house. Again, no specific pleading has been made. 13. In paras 10 & 11 of the plaint, it has been pleaded that the matrimonial relationship between the parties has come to an end since more than two years and respondent-wife last resided with the appellant/plaintiff two years before. Again, no specific date, month or year has been pleaded. The application seeking decree of divorce on the ground of desertion was presented on 02.07.2018. Thus, the pleadings are completely vague. 14. Respondent-wife in her written statement had denied and there is no admission that she has been residing separately from her husband for a period not less than two years immediately preceding the date of presentation of the petition for grant of decree of divorce. 15. Learned counsel for the appellant/plaintiff argued that the pleadings made in para 7 of the written statement amounts to admission on the part of respondent-wife that she has been residing separately since 19.09.2016. 16. We have gone through the said pleading, which only says that on account of lodging of criminal case on 19.09.2016 on the ground that she was subjected to physical and mental cruelty, there existed reasonable cause for residing separately. It is not admission of fact that she has been residing separately since the date of lodging of the FIR. 17. Most importantly, if we look into evidence of the appellant/plaintiff himself, we find that the appellant/plaintiff in his evidence has deposed that after solemnization of marriage on 07.07.2014, respondent-wife resided with his parents at Modak, District Kota for about 6 to 8 months and, thereafter, she went along with him to Hospet, District Bellary (Karnataka) where the husband was posted and working. He has also deposed that parties were not having marital relationship for two years. He has also deposed that he was harassed on telephone by the father of the respondent-wife and threatened also. He then deposes that after sometime, his wife left him and went to his paternal house at Laxmangarh, District Sikar and then lodged criminal case. He has also deposed that parties were not having marital relationship for two years. He has also deposed that he was harassed on telephone by the father of the respondent-wife and threatened also. He then deposes that after sometime, his wife left him and went to his paternal house at Laxmangarh, District Sikar and then lodged criminal case. In his cross-examination, he has deposed that his wife is residing in her paternal house since more than two years. Though, he deposes that he had gone to the house of the respondent-wife for about 3 come back, he was unable to specifically state the dates on which he had gone to the house of the respondent-wife. Curiously enough, he states that it is not within his knowledge that his wife had become pregnant. He admits lodging of criminal case against him. 18. Thus, his evidence does not prove as to with effect from which date, month or year the respondent-wife deserted him, as pleaded by him in his application. 19. It would, thus, be found that neither in the pleadings, nor in the evidence, the appellant/plaintiff has specifically pleaded the date, month or year when respondent-wife, according to him, deserted him. His evidence was recorded on 17.08.2019 and on that day, he has deposed that his wife is residing separately since more than two years. Even this evidence is taken as it is, it is not proved that respondent-wife deserted the appellant/plaintiff for a period not less than two years immediately preceding the date of presentation of the divorce petition. 20. Therefore, the finding of the learned Family Court that the appellant/plaintiff has failed to fulfill the legal requirements as provided in Section 13 (1) (ia) of the Hindu Marriage Act, 1955 does not warrant any interference. 21. In the result, we do not find any merit in this appeal and the same is, accordingly, dismissed.