Romika v. Ashok Kumar alias Nika

Order

01.08.2012 Romika ...Appellant Versus Ashok Kumar alias Nika ..Respondent

CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE REKHA MITTAL Present: Mr. Amit Singla, Advocate for the appellant Mr. Tribhawan Singla, Advocate RAJIVE BHALLA, J (Oral) The appellant-wife, has filed this appeal, challenging order dated 12.05.2009, passed by the Additional District Judge, Sangrur, (for short the 'trial court') dismissing her petition for divorce. The appellant-wife, filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'), for dissolution of marriage on the grounds of cruelty and desertion. Notice of the petition was issued to the respondent. Despite notice, the respondent did not put in appearance and was proceeded against ex-parte. The appellant-wife examined herself as PW1 and produced PW2-Dharam Pal, PW3-Raj Kumar and PW4-Dharam Pal son of Pyara Lal, as witnesses. After consideration of the pleadings and the evidence, the learned trial court dismissed the petition by F.A.O.No.M-278 of 2009 -2- holding that the appellant has failed to establish her plea of cruelty and as there is no evidence that the husband has willfully deserted the appellant, the ground of divorce, based upon the plea of desertion cannot be accepted. Counsel for the appellant submits that as the respondent has not put in appearance whether before the trial court or before this Court to contest the petition, the trial court has erred in drawing an inference that the appellant has failed to prove willful desertion. It is contended that the fact that the respondent has not controverted averments in the petition clearly establishes that desertion is willful. Mr. Tribhawan Singla, Advocate, has put in appearance on behalf of mother of the respondent and states that she has no objection, if the divorce is granted. We have heard counsel for the parties, perused the impugned judgment and decree, the pleadings and the evidence on record. As is apparent from the narrative of facts, the appellant filed a petition for divorce primarily on the ground of desertion. The appellant pleaded that her husband deserted her on 10.11.2005, as after the said date, the respondent has not come forward to resume matrimonial ties and there is no contact between the parties. The respondent was proceeded against ex-parte. The averments in the petition were, therefore, not denied. In our considered opinion, the mere fact that a missing person's report was registered and/or the husband is stated to be missing, did not entitle the court below to reject the prayer for divorce on the ground of desertion. A husband, F.A.O.No.M-278 of 2009 -3- who does not bother to get in touch with his wife for more than two years, would necessarily be deemed to have willfully deserted his wife. The finding recorded by the trial court on the basis of clause- (vii) of sub-section (1) of Section 13 of the Act, is incorrect as the said provision is not applicable to the facts and circumstances of the present case. In this view of the matter, the appeal is allowed, the petition for divorce is accepted and marriage between the parties is dissolved by way of grant of decree of divorce. Decree sheet be drawn up accordingly. (RAJIVE BHALLA) JUDGE August 01, 2012 (REKHA MITTAL) JUDGE