Shri Shyamsunder Amarlal ... vs Smt. Arti @ Sunita Shyamsunder ...
2004 Latest Caselaw 319 Bom

JUDGMENT

F.I. REBELLO, J.

1. The Appellant had filed the petition for decree of divorce under Section 13(1)(ib) of Hindu Marriage Act, 1955. It was the case of the Petitioner that marriage between the Petitioner and Respondent was solemnized on 11-3-1993. In the petition as presented the Petitioner further averred that he was divorcee when he got married to the Respondent. The marriage was solemnized as per Hindu Rites as both Petitioner and Respondent are Hindu. The Petitioner residence is at A/205, Suryakiran Apartment, Dharampur Cross Road, Valsad (West) in Gujarat State. After the marriage the Petitioner and Respondent went to reside at his house. They stay their as husband and wife together for about a month. At about end of first month of their marriage, according to the Petitioner the Respondent informed him that uncle and aunt who were aged were not keeping good health and as such she would like to go to their house at Dahisar, Mumbai. He therefore brought Respondent at Dahisar on 12-4-1993. After they had reached the house of uncle of Respondent, the Respondent suggested that she would like to stay with them for a few days. He thus left the Respondent at the house of uncle of the Respondent. He then went to uncle's house after a week to collect the Respondent. The Petitioner was informed by Respondent at that time that she was not interested in coming with him to the house at Valsad. The Petitioner persuaded her but she was not interested and did not give any proper reason. She also told her uncle and aunt that she was not interested in going to Valsad as she was not interested in staying with the Petitioner as his wife at Valsad. As he could not persuade the Respondent to return with him he proceeded back to his house, alone.

2. After about 2/3 weeks, after telephone talk with the Respondent he once again proceeded to Dahisar to bring Respondent back to matrimonial home. Persuasion failed and once again Respondent told Petitioner that she was not interested in staying with Petitioner as his wife. No specific reasons were assigned by Respondent for refusal to come to stay with Petitioner as wife at Valsad. At that time Petitioner discovered that Respondent had brought back all her gold ornaments as set out in para 6 of the petition. The Petitioner took the assistance of his sister and brother-in-law as also relatives to persuade the Respondent to come back but all attempts were in vain.

It is then the case of the Petitioner that he received a communication on 31-5-1993 from the office of Legal Aid and Advice Committee, Greater Mumbai, in pursuance to the application made by Respondent on 25-5-1993 for free legal aid. Pursuant to the said letter the Petitioner along with his sister and brother-in-law met the officer in charge of Legal Aid and Advice Committee, Greater Mumbai. Respondent was also present. The case of the Petitioner is that he informed that he was willing to take back the Respondent as his wife and she could come to stay at Valsad. Respondent, however showed her reluctance to join the Petitioner as his wife at Valsad.

It is the case of the Petitioner therefore that Respondent has deserted the Petitioner from 15-4-1993. The Petition itself was filed in the month of July 1998 i.e. more than 5 years. According to the Petitioner after the Respondent has deserted the Petitioner for continuous period of not less than two years immediately preceding he presentation of the petition.

3. Summons were directed to be served on the Respondent. The order of trial Court shows that the Respondent's address was shown as C/o Shri Shevaldas Manwani 46 Jaya Nagar, MIS Civil Lines, Devas (M.P.). The roznama of the proceedings on 11-6-1999 as recorded shows that exparte order was passed against Respondent. The order of the trial Court discloses that the Bailiff of Court at Devas has reported that though Respondent was present, she refused to accept Summons.

The Court treated that as valid service and therefore directed that matter be proceeded exparte against Respondent. The Petitioner examined himself, there was no cross examination.

4. By impugned judgment and order dated 17-7-1999 the trial Court in para 10 observed as under:-

"The Petitioner stated that the respondent refused to come to Valsad whenever he tried to persuade her. He also stated that she did not give any reason for her refusal to join him at Valsad. According to him, she is interested only in monetary benefits. Generally a wife has a cherished desire to live with her husband. She was spinster before she married the Petitioner. Therefore, I feel that she could not think of living separate from her husband. Petitioner could not give any satisfactory explanation as to why she is living at her parent's house. Hence, I find that the Petitioner could not satisfy the court that the desertion was without just cause.

For the reasons given the Court held that the Petitioner has failed to prove that the respondent deserted him within the meaning of Section 13(1)(ib) of the Act and accordingly dismissed the Petitioner. A reference was also made to the observations of the Apex Court in the case of Lachman v. Meena , which reads thus:

"It is settled law that the burden of proving desertion the "factum" as well as the "animum 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"

5. At the hearing of the appeal on behalf of the Petitioner, the learned Advocate for Petitioner contended that averments of the petition clearly discloses a cause of action under Section 13(1)(ib) of Hindu Marriage Act. He further contended that the Petitioner himself stepped into the witness box and led his evidence and that evidence has remained rebutted. He therefore contended that the trial Court ignoring the pleadings and evidence had misdirected himself in law in not allowing the petition. He further contended that observations of the Family Court that wife could not think of living separate from her husband is neither supported by evidence or any material and on this ground also the judgment is liable to be set aside.

6. After hearing learned Counsel for the Petitioner what we find is that the Petitioner had averred in the petition, considering Section 13(1)(ib), that Respondent had deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition. What the law requires is desertion for continues period of not less than 2 years. In the instant case it is the case of the Petitioner both in the pleadings and examination-in-chief that after the Petitioner took the Respondent at her request to the residence of her uncle and aunt at Dahisar on 12-4-1993 she stayed behind and when he tried to bring her back, she refused to come back. All attempts thereafter made to bring back the Petitioner also did not fructify on account of the Respondent's stand that she did not want to stay with the Petitioner. In the evidence he has stated about the various attempts he had made to bring her back. He has also deposed to the letter from Legal Aid and Advice Committee which was received on 31-5-1993 and his statement to take back the Respondent to the matrimonial home but that she refused. It therefore transpires that the Petitioner has satisfied all the ingredients of Section 13(1)(ib) of Hindu Marriage Act 1955. The evidence on record as its stands has not been rebutted, would show that it is the Respondent who after she came to Dahisar to see her uncle and aunt refused to return back to the house of Petitioner in Valsad. The evidence of Petitioner show that all attempts to bring back to the Respondent also did not succeed for no fault of the Petitioner. The pleadings along with the evidence recorded shows that the Petitioner has discharged the burden cast upon him. In other words the Petitioner has made out the case within the meaning of Section 13(1)(ib) of Hindu Marriage Act, 1955.

The learned Family Court proceed on assumption that wife has a cherished desire to live with her husband and would like to go back to the Respondent. This conclusion arrived at by the Family Court is not supported by any evidence and material on record. The sole basis on which the leaned Judge proceeded is that appellant has been unable to discharge his burden. This is contrary in the evidence on record. The order of the learned Family Court therefore is liable to be set aside and is accordingly set aside.

7. The judgment and order dated 17-7-1999 is quashed and set aside. The Petition is allowed in terms of prayer clause. Marriage between the Petitioner and Respondent stand dissolved by decree of divorce under Section 13(1)(ib) of Hindu Marriage Act, 1955.

8. This Court at the time of directing notice to the Respondent on 11-12-2000 had directed the Appellant to deposit an amount of Rs. 10,000/-. The Petitioner has so done. The Appellant is working abroad and with the consent of the learned Advocate the said sum of Rs. 10,000/- deposited by the Appellant is to be transferred to Legal Aid Committee - P.L.A. No. 01000/016361.

Appeal stands disposed of accordingly. There shall be no order as to costs.