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2023 DIGILAW 519 (CHH)

Garima Dhamecha, W/o. Manish Kumar Dhamecha, D/o. Mohanlal Lalwani v. Manish Kumar Dhamecha, S/o. Gurudayal Dhamecha

2023-10-04

GOUTAM BHADURI, SANJAY S.AGRAWAL

body2023
JUDGMENT : (Sanjay S. Agrawal, J.) : 1. This appeal has been preferred by the non-applicant/wife under Section 19(1) of the Family Courts Act, 1984, questioning the legality and propriety of the judgment and decree dated 18.11.2021 passed by the learned Judge, Family Court, Dhamtari in Civil Suit No.67-A/2018, whereby the learned Court below has allowed the applicant/husband’s application in part, entitling him for decree of dissolution of marriage on the ground of desertion under Section 13(1)(i-b) of the Hindu Marriage Act, 1955. 2.1 Briefly stated the facts of the case are that the marriage of the applicant/husband was solemnized with the non-applicant/wife on 01.12.2014 in accordance with their customary rites and rituals at Dhamtari and, out of their wedlock, a son namely Rohan was born on 10.11.2015. According to the applicant, parents of his wife came to his house after 20 days of the solemnization of his marriage and his father-in-law told him that his daughter is not happy here as she was forced to do household work alone which was denied by him that a maidservant is already there in the family who alone execute all the household activities. It is pleaded further that after sometime, his father-in-law came again and took his daughter in order to attend the marriage of his friend’s daughter and after returning from the said marriage, the behaviour of his wife has changed and used to force him to take her to Raipur, Delhi and Bombay for wandering and often used to say that she doesn’t want to live in a small city like Dhamtari and started pressurizing him for shifting to Raipur. It is pleaded further that the non-applicant/wife often used to talk with his parents in a rude manner and always used to disrespect them and also used to taunt his mother that the whole family is of lower grade and cannot have even the maidservant in the house. It is pleaded further that his wife has even levelled false allegations against him of having extra-marital affairs with someone else and she also alleged that he is alcoholic and not a man of good character. 2.2. It is pleaded further that his wife has even levelled false allegations against him of having extra-marital affairs with someone else and she also alleged that he is alcoholic and not a man of good character. 2.2. Further contention of the applicant/husband is that on 02.04.2015, his brother-in-law came to his house and took his wife in his absence and his father without any intimation along with all her belongings and valuables and since then, she is living separately at her parental house without any reasons being assigned and when he came to know, he along with his family members went to her house, wherein her father has refused to send her back and she also refused to come along with him, owing to which, he moved an application before the Pujya Panchayat Sindhi Samaj, Dhamtari on 22.05.2015 in order to save his marital life, wherein she was directed to live with him in the house for a period of three months under their responsibilities, but, her father has disobeyed the same while writing a letter to the Pujya Panchayat Sindhi Samaj, Dhamtari on 07.07.2015 and has, thus, refused to settle the matter at panchayat level. It is alleged further that even upon birth of his son, he was not informed either by his wife or by his parents or invited by them and he came to know about the birth of his son from some other person after 15 days. It is pleaded further that when he visited his in-laws house in order to see his child, he was denied by them, therefore, he has been compelled to file the petition in the instant nature seeking dissolution of marriage on the ground of cruelty and desertion. 3. While denying the aforesaid claim, it was pleaded by the non-applicant/ wife that she never misbehaved her in-laws nor disrespect them nor has ever insisted her husband for their shifting to Raipur, as alleged by him. It is contended further that she never levelled any allegation regarding his extra-marital affairs with anyone else nor has ever said that he is not a man of good character and all these allegations are false and fabricated one and have been made in order to get the decree for dissolution of marriage. It is contended further that she never levelled any allegation regarding his extra-marital affairs with anyone else nor has ever said that he is not a man of good character and all these allegations are false and fabricated one and have been made in order to get the decree for dissolution of marriage. 3.1 It is contended further that on 02.04.2015, she went to her parental house along with her brother with permission of her husband and father-in-law and it was denied specifically that she left the matrimonial home without their consent, as alleged by him. It is contended further that at the relevant point of time, she was pregnant and this fact was well within their knowledge and since a day before that date, she was not well and despite of her request, she was not taken to the doctor by her husband nor any medical facility was provided, owing to which, her condition was deteriorated and irrespective of that, her mother-in-law pressurizing her for doing the household work, though she was even unable to get up from her bed and, therefore, she informed her health condition to the father, who send her brother to take her back after obtaining permission from her in-laws. It is contended further that her husband had never tried for restitution of their conjugal rights and instead, her father had, in fact, tried for it and for the said purpose, had written a letter on 14.06.2015 before the Pujya Panchayat Sindhi Samaj, Dhamtari where they have consented to live together, but, her father-in-law had taken time and thereafter, they refused. 4. Based upon the aforesaid pleading of the parties, the trial Court has framed following issues:- (i) Whether the non-applicant/wife has committed cruelty with her husband/applicant, after solemnization of the marriage? (ii) Whether the applicant/husband has committed cruelty with his wife/non-applicant after solemnization of the marriage? (iii) Whether non-applicant/wife has deserted her husband/applicant two years prior to institution of the claim petition? (iv) Whether the applicant is entitled to get a decree for dissolution of marriage on the ground of cruelty and desertion? (v) To what relief and costs? 5. In support, the applicant has examined himself as PW-1, his father-Guru Dayal Dhamecha (PW-2) and father’s friend-Ramesh Lal Kotwani (PW-3), while the non-applicant/wife examined herself as DW-1 and father-Mohan Lal Lalwani (DW-2) in rebuttal. 6. (v) To what relief and costs? 5. In support, the applicant has examined himself as PW-1, his father-Guru Dayal Dhamecha (PW-2) and father’s friend-Ramesh Lal Kotwani (PW-3), while the non-applicant/wife examined herself as DW-1 and father-Mohan Lal Lalwani (DW-2) in rebuttal. 6. After considering the evidence led by the parties, the trial Court has arrived at a conclusion that the applicant has failed to establish the fact that the non-applicant/wife has committed cruelty with him and, in so far as the ground of desertion is concerned, it was held that the non-applicant/wife has deserted her husband without any reasons being assigned on 02.04.2015 and, in consequence, while allowing the claim in part, entitling the applicant/husband a decree for dissolution of marriage on the ground of desertion. 7. Being aggrieved, the non-applicant/wife has preferred this appeal, while no cross-appeal has been preferred by the applicant/husband against the refusal of his claim for decree of divorce on the ground of cruelty. The question would, therefore, arises for consideration in this appeal :- “Whether the finding of the Court below holding that the non-applicant/ wife has deserted her husband on 02.04.2015 without any reasons being assigned and thereby granting a decree for dissolution of marriage on the ground of desertion under Section 13(1)(i-b) of the Hindu Marriage Act, 1955, is sustainable? 8. Learned counsel appearing for the appellant/wife submits that the finding of the Court below granting a decree for dissolution of marriage on the ground of desertion is apparently contrary to law. It is contended further that since the non-applicant/wife was pregnant and despite of that, no medical facility was provided to her and her health condition was deteriorated and was forced by her mother-in-law for doing the household activities, therefore, she was forced to go to her parental house on 02.04.2015 after obtaining consent from her husband and in-laws. Having failed to consider the said fact in its proper manner, the trial Court has committed a serious illegality in holding that she left her matrimonial home without any reasons being assigned and without obtaining prior consent from her husband and in-laws and thereby erred in granting a decree for dissolution of marriage on the ground enumerated under Section 13(1)(i-b) of the Hindu Marriage Act, 1955. 9. On the other hand, learned counsel appearing for the applicant/husband has supported the impugned judgment and decree as passed by the learned Court below. 10. 9. On the other hand, learned counsel appearing for the applicant/husband has supported the impugned judgment and decree as passed by the learned Court below. 10. We have heard learned counsel appearing for the parties and perused the entire record. 11. Admittedly, the marriage between the parties was solemnized on 01.12.2014 in accordance with their customary rites and rituals and out of their wedlock, a son namely Rohan was born on 10.11.2015. According to the applicant/husband, the wife/appellant herein has gone to her parental house along with her brother on 02.04.2015 in absence of him and his father and despite resistance being made by his mother at that particular time, she left the house and, as such, she left the matrimonial home without any sufficient reasons being assigned and therefore, he is entitled for a decree of dissolution of marriage on the ground of desertion. The said plea of the applicant/husband was denied vehemently by the non-applicant/wife on the ground that since she was pregnant at the relevant point of time and was also not well and despite of her request, the applicant/husband has neither taken her to the doctor for treatment nor medical facility was provided by her in-laws and instead, she was compelled to do the household activities, therefore, she has informed to her father and after obtaining permission from her husband and father-in-law, she had gone to her parental house on 02.04.2015. 12. In order to substantiate the fact that the non-applicant/wife has left her matrimonial home without any sufficient reasons being assigned, it was stated by the applicant/husband (PW-1) in his examination-in-chief that in absence of him and his father, his wife’s brother came on 02.04.2015 and took her to parental house despite resistance being made by his mother, who told him that he may take her back after their arrival. It was, however, deposed by him in his cross-examination at para-41 that she has gone on that day without intimating to anyone else, but, no plea as such was there in his claim petition. His father (PW-2) has, however, not stated that his daughter-in-law has gone without intimating to anyone else. It was, however, deposed by him in his cross-examination at para-41 that she has gone on that day without intimating to anyone else, but, no plea as such was there in his claim petition. His father (PW-2) has, however, not stated that his daughter-in-law has gone without intimating to anyone else. His mother, in whose presence, she has gone on the said date, has, however, not entered into the witness box in order to demonstrate the said particular fact that she left her matrimonial home without intimating to anyone else or without the consent of theirs. Adverse inference is, therefore, to be drawn against the applicant/husband under Section 114 of the Indian Evidence Act that if she would have been examined, the actual fact would have come on the floor. In absence of her examination, it is, therefore, difficult to hold that she left the matrimonial home without obtaining any permission from her in-laws and without any reasons being assigned, though, the legal burden to establish the said fact was throughout upon the applicant/husband. He, thus, failed to establish the initial burden lies upon him in order to get a decree for dissolution of marriage on the ground of desertion. 13. At this stage, the principles laid down by the Supreme Court in the matter of Lachman Uttamchand Kirpalani vs. Meena alias Mota, reported in AIR 1964 SC 40 is to be seen, wherein the similar allegation, as made in the instant matter by the applicant, was made by the husband that his wife had left his home with the main item of her jewellery and clothes without the knowledge and consent of himself and his parents and which was denied by his wife and in the said factual scenario, it has been held that the onus lies upon the petitioner to establish the fact that the desertion of other party was without any cause. The relevant observation made at para-18, reads as under:- 18. “The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal from Bombay where the Court had to consider the provisions of S.3(1) of the Bombay Hindu Divorce Act, 1947, whose language is in pari materia with that of S.10(1) of the Act. The relevant observation made at para-18, reads as under:- 18. “The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal from Bombay where the Court had to consider the provisions of S.3(1) of the Bombay Hindu Divorce Act, 1947, whose language is in pari materia with that of S.10(1) of the Act. In the judgment of this Court in Bipin Chandra vs. Prabhavati, 1956 SCR 838 :(S) AIR 1957 SC 176 ) there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury's Laws of England (3rd Edn.), Vol. 12, was cited with approval : "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. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.” The position was thus further explained by this Court: "If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. 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........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. 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 co-exist. 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." Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. 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 just cause. As Denning, L.J., observed : (Dunn v. Dunn)(1948)2 All ER 822 at p.823) : "The burden he (Counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional burden raised by the state of the evidence............The legal burden throughout this case is on the husband, as petitioner, to prove that this wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself: Is the legal burden discharged? Has the husband proved that she deserted him without cause? Take this case. The wife was very deaf, and for that reason could not explain to the court her reasons for refusal. The judge thereupon considered reasons for her refusal which appeared from the facts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of the case: Has that burden been discharged?" 14. In view of the aforesaid principles, it is, thus, evident that in order to get a decree for dissolution of marriage on the ground of desertion, the burden is heavily lies upon the applicant/husband to establish the fact that his wife has deserted him without any reasons being assigned. However, a bald allegation to this effect alone has been made without producing any cogent and reliable evidence to establish the said fact. However, a bald allegation to this effect alone has been made without producing any cogent and reliable evidence to establish the said fact. That apart, it appears from the perusal of the record that the non-applicant/wife was pregnant at the relevant point of time and a son was born on 10.11.2015 at Raipur, which is hardly 70-80 Kilometers away from her matrimonial home, therefore, it cannot be said that the applicant/husband is not aware regarding her pregnancy, as alleged by him, as no prudent man could even think that he was not aware regarding the pregnancy of his wife, particularly when she was living a few kilometers away from her matrimonial home. 15. Be that as it may, it appears from the unrebutted statement of the non-applicant/wife, as reflected from para-8 of her testimony, that she was pregnant and was not well before going to her parental house on 02.04.2015 and irrespective of that, she was forced to do the household activities which, therefore, compelled her to go to her parental house at that particular time. In view thereof, it cannot be said that she left her matrimonial home voluntarily or without any sufficient reasons. Moreover, it appears that after her returning from the matrimonial home, a letter (EX.D-30) was written by her father while addressing to the Pujya Panchayat Sindhi Samaj, Dhamtari on 14.06.2015, wherein it has been prayed for an appropriate decision on the dispute involved between his daughter and son-in-law. In the said meeting, held on the basis of the said application, a direction was issued that, if non-applicant/ wife is resided with her in-laws for a period of three months and if any problem occurs during the said period, then, the same would be presented before it, instead of her parents. The said proposal was, however, not acceptable to her family as reflected from her father’s letter dated 07.07.2015 (Ex.D-31) as in their presence, it was not permissible for them that the said Samaj will act like her parents instead of them. The said proposal was, however, not acceptable to her family as reflected from her father’s letter dated 07.07.2015 (Ex.D-31) as in their presence, it was not permissible for them that the said Samaj will act like her parents instead of them. Although, the said offer initiated by the parents of the non-applicant/wife was failed, but, it cannot be said that the said effort was made by the applicant/husband as alleged by him based upon an application, dated 22.05.2015 (EX.P-11), as a bare perusal of the contents made therein would, however, show that it was made only for intimating the fact that his in-laws do not want to maintain the relations. It, thus, appears to be a false plea that was taken by him in this regard. The applicant has, thus, failed completely to establish the fact that his wife has deliberately left the matrimonial home on 02.04.2015 without any reasons being assigned so as to obtain a decree for dissolution of marriage on the ground of desertion. 16. Besides, it appears from a bare perusal of the report (Ex.D-16 C), submitted by Dr. Rajesh Ruprela that her son-Rohan was suffering from “Ureteric Reflux on both sides” and despite of that, the applicant has never made any effort to bring her back to his house and his wife was, thus, compelled to live in her parental house along with her minor child. It is to be seen further that if there would have been any intention of his wife to live separately, a complaint would have been lodged by her against him, instead of moving the aforesaid application (Ex.D-30) before the Pujya Panchayat Sindhi Samaj, Dhamtari. Thus, from the stretch of any imagination, it cannot be said that the non-applicant/wife has deserted her husband on 02.04.2015, without any reasons being assigned, as alleged by the applicant. The trial Court has, thus, committed a serious illegality in granting a decree for dissolution of marriage even in absence of any cogent and reliable evidence led by the applicant/husband on the ground of desertion under Section 13(1) (i-b) of the Hindu Marriage Act, 1955. 17. Consequently, the appeal is allowed and the impugned judgment and decree dated 18.11.2021 passed by the learned Judge, Family Court, Dhamtari in Civil Suit No.67-A/2018 is hereby set aside. No order as to costs.