The Tripura High Court recently comprising of a bench of Justice Mr. Akil Kureshi & Justice S.G. Chattopadhyay observed that it is the duty of the Court and those involved, as long as possible and wherever possible, to uphold marital status. (Sri Nirmal Paul v. Smt. Namita Paul)
Facts of the case
The facts of the cases are that a month after marriage, his wife started misbehaving with him. At that time the appellant lived in a common mess with his old parents, three brothers and their families which was not liked by his respondent. She demanded a separate mess and told her husband that it was not possible on her part to prepare food for every member of the extended. Thereafter, the appellant filed the said petition under section 13(1)(ib) of the Hindu Marriage Act, 1955 in the Family Court at Agartala for divorce on the ground of desertion.
The trial court examined the matter in detail in the background of evidence available on record and dismissed the petition filed by the appellant-husband for divorce. It was held by the trial court that the appellant-husband could not establish the ground of desertion. Rather, the respondent-wife was found always willing to live with her husband. The Family Court finding the possibility of their reunion, dismissed the petition for divorce.
The present appeal is filed by the appellant-husband being aggrieved and dissatisfied with the judgment passed by the Family Court.
Contention of the Parties
The learned counsel for the appellant has argued that the parties are living separately for more than 15 years. During this period the wife has never met her appellant-husband at her place which indicates that their relationship has broken down irretrievably and there is no chance of restoration of such relationship. It is contended by the learned counsel of the appellant that in a similar situation divorce was granted in favour of the husband by this Court in the case of Bidyut Kumar Saha Vs. Tapa Saha reported in MANU/TR/0138/2020. Learned counsel, therefore, urges the court to put the marriage to an end by granting divorce in favour of the appellant.
The Learned counsel appearing for the respondent-wife on the other hand submits that she is not agreeable to divorce because she is always prepared to live with her appellant-husband. According to learned counsel, it is only the appellant who is always keeping himself away from her company. Further submission of learned counsel is that even after she was ousted from his house, she returned to her matrimonial home to live with her husband but she was not accepted by him. According to learned counsel, the appellant has failed to establish the ground of desertion against the respondent-wife and therefore decree of divorce cannot be granted to him.
Courts observation & Judgment
The Court at the very outset observed, “Section 13(1)(ib) of the Hindu Marriage Act thus, denotes that desertion by the offending spouse for a continuous period of not less than 2 (two) years should preceed the presentation of the petition for divorce by the other spouse. In this case, the appellant-husband has alleged that his wife deserted him on 04.08.2005 and 4 years thereafter he filed the petition for divorce at Family Court at Agartala on 23.12.2009. Therefore, technically such a petition was entertainable but it needs to be looked into as to whether in the context of matrimonial offence the appellant-husband has been able to prove desertion against his respondent wife.”
The court relied on the judgment of Savitri Pandey (Supra) wherein the Apex Court reiterated in Malathi Ravi, M.D. Vs. B.V. Ravi, M.D. reported in (2014) 7 SCC 640 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.
The bench noted that in the instant case, looking into the conduct of the parties subsequent to the filing of the divorce petition no inference can be drawn that the respondent-wife ever intended permanent abandonment of the company of her husband. In A. Jayachandra Vs. Aneel Kaur reported in (2005) 2 SCC 22, the Apex Court observed that acts of the spouses subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct.
The bench dismissing the appeal remarked, “For what has been discussed by us, the marital bond between the parties cannot be said to have gone beyond repair and as such the ground of irretrievable break down of marriage as expounded by learned counsel of the appellant is not acceptable to us.
Since the appellant has failed to prove the ground of desertion against his respondent-wife, the impugned judgment of the Family Court, Agartala does not call for any interference. Resultantly, the appeal stands dismissed.”
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