BENCH AT JAIPUR v. Nirmaljeet Singh

Heard counsel for both the parties and perused the material on record.

2. Appellant-wife is before us to challenge the decree of divorce dated 30.01.2006, passed in favour of respondent-husband on the ground of desertion in petition No. 24/2004 by Additional District Judge No.2, Bharatpur (hereinafter referred as “trial Court”).

3. Factual matrix between the parties is not in dispute that their marriage was solemnized on 29.04.1997 and out of their wedlock, one baby boy was born to appellant on 29.04.1999; since

25.07.2001, appellant left matrimonial company of her husband and started to live at her parental home at Mathura. Husband filed divorce petition on 17.03.2004 on the ground of cruelty and [2026:RJ-JP:2154-DB] (2 of 10) [CMA-1272/2006] desertion. In the divorce petition, after framing issues and recording evidence of the parties, learned trial Court has granted decree of divorce in favour of respondent-husband on the ground of desertion, though denied on the ground of cruelty and the judgment and decree of divorce dated 30.01.2006 has been challenged before us, by wife.

4. In the pleadings of divorce petition and in the statements of husband as also statements of his two witnesses, it has come on record that wife was having a job in Mathura and she was not willing to reside with her husband at Bharatpur, rather insisted her husband to shift Mathura and live at her parental home in Mathura. It has also come on record that after marriage, time and again, she voluntarily and without any just cause, was in habit of leaving Bharatpur, for going Mathura, nevertheless, when husband and his relatives requested her to come back, she visited Bharatpur unwillingly and stayed for a short period and later on went Mathura, where she gave birth to a boy on 29.04.1999. It has further come on record that thereafter again she was brought by appellant to Bharatpur but she did not stay at Bharatpur for a long time and left her matrimonial home from Bharatpur on

25.07.2001 and went Mathura along with her minor boy as also carried her belongings, entire stridhan and other articles. Thereafter, husband and his relatives tried several times for restitution of conjugal rights and went to Mathura to take appellant back to Bharatpur but she never turned up. It has come on record that appellant-husband filed a petition under Section 9 of the Hindu Marriage Act, wherein wife appeared and denied for restitution of conjugal rights, hence, husband got [2026:RJ-JP:2154-DB] (3 of 10) [CMA-1272/2006] dismissed such petition in default and then filed the instant petition of divorce.

5. From the record, it is apparent that wife in her statements, recorded as NAW-1 and in her cross-examination, candidly admits that she voluntarily left matrimonial company of her husband and her matrimonial home from Bharatpur and shifted to Mathura along with her son when his son was one and half years old and since then, has been continuously staying at Mathura. In her statements, she assigned reason to leave Bharatpur that her husband harassed her for dowry and she had an apprehension of threat to her life and liberty. Further, in her evidence, wife has admitted the fact that her husband time and again came Mathura to take her back to her matrimonial home at Bharatpur but she did not agree and when she denied to live and lead a married life with husband, petition under Section 9 of the Hindu Marriage Act filed by husband was also got dismissed by him.

6. In support of evidence of wife (NAW-1), her brother has also stepped in witness-box and deposed that his sister was harassed by her husband and in-laws for demand of dowry and was compelled to leave matrimonial home from Bharatpur.

7. It appears that after appreciation of evidence of both the parties, trial Court arrived at a conclusion that wife has voluntarily left matrimonial company and her matrimonial home for no just and reasonable cause and never opted to resume her marital relationship with husband, rather was continuously staying at her parental home at Mathura. Learned trial Court, after noticing the act of obstinacy of wife and no justification for her to leave her matrimonial home and to stay at parental home, passed the [2026:RJ-JP:2154-DB] (4 of 10) [CMA-1272/2006] decree of divorce against wife and in favour of husband on the ground of desertion.

8. In order to establish the ground of desertion as envisaged under Section 13(1)(i-b) of Hindu Marriage Act coupled with explanation appended thereto, it is required to establish that the deserting spouse has segregated his/her marital relationship with deserted spouse, without any just and reasonable cause as much as is staying separately for continuous period of not less than 2 years, immediately preceding the presentation of divorce petition. Thus, as per law, it is required to be established by the deserted spouse that (i) deserting spouse is living separately continuously for more than a period of two years and (ii) the intention of deserting spouse has been to bring the marital relationship/cohabitation, to an end permanently i.e. animus deserendi.

9. In support of such legal requirement, judgment of Hon’ble Supreme Court delivered in case of Dr. (Mrs.) Malathi Ravi Vs. Dr. B.V. Ravi reported in [(2014) 7 SCC 640] & Debananda Tamuli Vs. Smti Kakumoni Kataky reported in [(2022) 5 SCC 459] may be referred. In the case of Dr. (Mrs.) Malathi Ravi (supra) following was observed: “18. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the Family Court and that of the High Court. The plea that was raised for grant of divorce was under Section 13(1)(i-b) of the Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. The aforesaid provision stipulates that a [2026:RJ-JP:2154-DB] (5 of 10) [CMA-1272/2006] husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted in Section 13 by Act 68 of 1976. Prior to the amendment it was only a ground for judicial separation. 19.Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem Chandra Pandey [(2002) 2 SCC 73] has ruled thus: “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 Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] 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. 20. In the said Savitri Pandey case (supra), reference was also made to Lachman Utamchand Kirpalani case [AIR 1964 SC 40] wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the [2026:RJ-JP:2154-DB] (6 of 10) [CMA-1272/2006] 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.” In the case of Debananda Tamuli (supra) following was observed:

7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in [Lachman Lachman Utamchand Kirpalani Utamchand Kirpalani v. Meena, (1964) 4 SCR 331 : AIR 1964 SC 40] which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus: “13. Divorce.—(1)*** [2026:RJ-JP:2154-DB] (7 of 10) [CMA-1272/2006] Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. 8. The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.”

10. Having gone through the evidence of parties and the fact findings recorded by the trial Court and in the light of enunciation of law expounded in afore-referred judgments, we are of the considered opinion that husband has established from his evidence that wife has left her matrimonial company without any just and reasonable cause and staying away from him, for more than two years, having no intention to come back and live together, whereas, wife has not been able to establish any just and reasonable cause to leave the matrimonial company and matrimonial home at Bharatpur and to shift at Mathura. Undisputably, wife admits to leave matrimonial home voluntarily on or near about 25.07.2001 and continuously staying thereafter, separate from her husband and without having any cohabitation. The instant petition of divorce was presented on 17.03.2004. Thus a continuous period of more than 2 years of separation stands proved.

11. Another element of animus deserendi also stands established in light of evidence of wife, where she clearly denied to come and live with her husband and declined for restitution of her conjugal [2026:RJ-JP:2154-DB] (8 of 10) [CMA-1272/2006] rights with her husband. Wife also admits that her husband and relatives came to Mathura to bring her back but she did not agree and was not willing at all to live with her husband in Bharatpur.

12. We find that prior to filing divorce petition, husband had filed one petition under Section 9 of the Hindu Marriage Act but since wife categorically denied to live with him, same was got dismissed in default. No petition under Section 9 of the Hindu Marriage Act was ever filed by and on behalf of the wife nor any efforts were ever made showing her intention and willingness to restitute/resume her marital relationship with husband. The reason assigned by wife and her brother that she was subjected to cruelty for demand of dowry has not been substantiated by any cogent and convincing evidence. The trial Court too has disbelieved on such reason and no perversity or jurisdictional error in such finding of trial Court has been pointed out, hence same do not warrant any interference by this Court.

13. In addition to above, while affirming the decree of divorce on the ground of desertion, we are of the opinion that depriving husband from cohabitation by wife, that too without any just and reasonable cause and continuously for years together, itself constitutes a ground of cruelty, to pass a decree of divorce in favour of husband.

14. We find support from the judgment of Hon’ble Supreme Court, in case of Rakesh Raman v. Kavita [(2023) 17, SCC 433] wherein it was held and observed in Para Nos. 23 & 27 as under:- “23. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the facade of this broken marriage alive would be doing injustice to [2026:RJ-JP:2154-DB] (9 of 10) [CMA-1272/2006] both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13(1) (i-a) of the Act. 27. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child from the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (i-a) of the 1955 Act.”

15. But, the factors of cruelty, as has been narrated by husband in the divorce petition, are of different nature and the trial Court has not passed a decree of divorce on the ground of cruelty nor husband has filed any cross-objections against denial of decree of divorce on this ground, hence, we are not inclined to interfere with the findings of Issue No.2.

16. Counsel for both the parties, during course of arguments do not dispute and admits that since 25.07.2001 onwards, wife has been staying in Mathura and living separately from husband and there has been no cohabitation between them since then during this long period of near about more than 24 years.

17. For the discussions and reasons made hereinabove and considering the totality of facts and circumstances as also the period of separation between the parties since long and non-willingness of appellant-wife for restitution, we hereby affirm the decree of divorce, passed by the trial Court on the ground of desertion.

18. Accordingly, the instant appeal is hereby dismissed and decree of divorce dated 30.01.2006, is hereby affirmed. [2026:RJ-JP:2154-DB] (10 of 10) [CMA-1272/2006]

19. Pending application(s), if any, also stands disposed of.

20. Record be sent back to the trial Court. (SANDEEP TANEJA),J AVINASH GULERIA /1 (SUDESH BANSAL),J