Indrajeet Singh vs Smt. Sushila Singh
2022 Latest Caselaw 5864 Chatt

                                                               Page 1 of 9

                                                                   NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                         FAM No. 217 of 2017


1.   Indrajeet Singh S/o Late Tej Pratap Singh, R/o Village Harrapara,
     Baikunthpur Thana And Tahsil Baikunthpur, District Koriya (C.G.).

                                                            ---- Appellant
                                Versus

1.   Smt. Sushila Singh W/o Indrajeet Singh, D/o Late Narendra Singh,
     R/o C/o Shri Shivraj Singh Bais, R/o B.S.N.L. Tower No. 19, Kela
     Road, Janjgir, Post Tahsil And District Janjgir-Champa (C.G.).

                                                         --- Respondent

For Appellant : Mr. Akhtar Hussain, Advocate. For Respondent : Mr. Anshul Tiwari, Advocate.

Hon'ble Shri Justice Goutam Bhaduri Hon'ble Shri Justice Radhakishan Agrawal

Judgment on Board Per Goutam Bhaduri J.

19/09/2022

1)    Heard.

2) The present appeal is against the judgment and decree dated

24/11/2017 passed by the Family Court, Baikunthpur, District Koriya

(C.G.) in Civil Suit No. 64A/2016. The petition filed by the husband

seeking divorce under Section 13(1)(i-a) and (i-b) of the Hindu

Marriage Act, 1955 (in short "the Act, 1955"), was dismissed.

Therefore, the instant appeal is by the husband.

3) The admitted facts, in brief, are that marriage between the appellant

and the respondent was solemnized on 07/06/2005 and thereafter

the wife joined the company of the husband at Baikunthpur.

According to the husband, the wife used to harass and treat him

with cruelty and she frequently pressurized the husband to stay

away from his mother. It is further pleaded that without any sufficient

cause she often used to leave the matrimonial home and insisted

for staying at her parental home. Eventually, the wife left the

company of the husband in December 2009 and subsequently on

false ground, an application was filed under Section 125 of Cr.P.C.

wherein maintenance amounting to Rs. 4,500/- was granted on

03/09/2014. It was further stated that after she left in the year 2009

she again joined the company of husband for some time but lastly

in the month of August 2010 she left the company of the husband

without any valid reasons. It was stated that the application for

restitution of conjugal rights U/s 9 of the Act, 1955 was filed by

husband wherein initially she did not appear despite notice,

therefore, ex-parte proceedings were drawn. Thereafter, husband

served the notice through Advocate to join his company but she did

not join, therefore, it was clear that she left the company of the

husband without any sufficient cause. The decree of divorce was

claimed on the ground of cruelty as also on the ground of desertion.

4) The wife filed the reply and would state that because of the

excessive drinking of liquor habit she was subjected to torture and

assault by husband. She further stated that she was thrown out of

the house several times which had led to filing report and counter

report and eventually with the intervention of the Counseling

Centre, she joined the company of the husband but could not

continue because of the behaviour of the husband. It was stated in

order to save herself from brutal act, she went back alongwith

brother-in-law. It was further stated that because of the behaviour

and cruelty meted out by the husband, she left the matrimonial

home and went away to her parental house, therefore she has not

left the husband without any lawful cause. She further, claimed that

petition was not tenable.

5) Learned Counsel for the appellant submits that evidence on record

would show that despite notice to the wife to join back the company

of the husband, no fruitful efforts were made to comply the order of

restitution of conjugal rights proceeding and shown betrayal and

eventually she did not join the company of the appellant. He would

further submit that the grounds are also existing that the wife

pressurized the husband to stay separately from his family i.e.

parents which amounts to cruelty. He further submits that the

learned Trial Court has observed that there is clear admission on

the part of the wife that she did not join back the company of the

husband, therefore, the husband is entitled to get a decree of

divorce. Learned Counsel for the appellant submits that evidence of

wife would not show that at any point of time, she was complained

about the conduct of the husband and in fact it was a bald

allegation.

6) Per Contra, learned Counsel for the respondent/wife would submit

that ex-parte proceeding was drawn in a proceeding of restitution

of conjugal rights and order was passed on 30/06/2016 which was

subsequently set aside. The Counsel would submit that according

to her she was subjected to torture by the husband after

consuming liquor and as such, in order to save her life, she stayed

away from the husband and was compelled to leave his company.

Under these circumstances, the order of the leaned Court below is

well merited which do not call for any interference.

7) We have heard learned Counsels for the parties and have also

perused the records and evidence.

8) Primary perusal of the petition of the husband would show that it

was on the ground of desertion and further coupled with the

allegation of cruelty. The husband was examined as PW-01. The

husband stated that after the marriage in 2005, she joined the

company. It was stated wife used to abuse the husband and family

member and used to call them as uncultured. PW-01 further states

she often used to go to her parental home without any intimation

and it was in the month of June or August 2009 without informing

him, the wife left the husband and used to stay in the house of her

brother-in-law. He further stated that she insisted to lodge a report

against husband at Baikunthpur but the report was not registered.

Thereafter, she filed an application for maintenance, while she was

at Janjgir. He further stated that after the wife left the company of

husband, he filed application for restitution of conjugal rights under

Section 9 of the Act, 1955 and after the decree in his favour he

sent a notice to wife through his Advocate to join the company, but

wife did not turned up.

9) Statement of the wife would show that she made allegation that

she was harassed by subjecting her to abuses, torture by husband

and used to assault after consuming liquor and in order to save

herself, she went away from his company. The wife though has

deposed that she was subjected to torture and assault by the

husband many times, but not a single report has been placed on

record. She further stated that after counseling when she rejoined

the company of the husband, she was treated well for a week but

again he used to consume liquor and harass her. Thereafter, with

the intervention of counseling though she joined company of the

husband but he again started torture. Statement of the wife would

show after 2010 she again left the company of the husband,

however, not a single report has been placed on record to show

that she was subjected to assault and torture.

10) Perusal of the order, further would show that restitution of conjugal

rights petition was filed by the husband and Ex. P-1 dated

30/06/2016 was passed by the Family Court, Koriya.

11) It is not disputed by the parties that in the said civil suit ex-parte

judgment and decree were set aside by an order dated 22/08/2017

thereafter application under Section 9 was not pressed by the

husband. The fact still remains that after 2010 the wife is living

apart. The husband at para 4 of the statement deposed that after

decree of restitution of conjugal rights, a notice was served

through advocate to the wife to join his company. He further stated

in the notice that if she does not join back his company, the

husband would constrain to file petition for divorce but even after

such intimation wife did not join back the husband.

12) In the matter of Bipinchandra Jaisinghbai Shah v Prabhavati

reported in AIR 1957 Supreme Court 176, the Supreme Court

observed and discussed about "What is desertion?". Para 10 of the

said dictum is quoted below for ready reference :

(10) What is desertion? "Rayden on Divorce" which is

a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:-

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".

The legal position has been admirably summarised in paras 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.) Vol. 12, in the following words:-

"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.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a crosscharge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".

Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandon 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, namely, (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. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce; under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. 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. 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; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial some with

all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson(1) may be referred to:- "

These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution...............

13) The circumstances of the case would show that wife herself stayed

away and despite the notice, to rejoin the company of husband she

did not rejoined. The ex-parte judgment and decree for restitution

of conjugal rights in favour of husband though was set aside but

thereafter too she has not shown any interest to go back and join

company of the husband. The aforesaid acts shows the intention of

the wife coupled with the fact emerged from her statement wherein

it was stated that after 2010 when she left the company of

husband, she had not visited her in-laws place. Under the

circumstances, the separation and the animus deserendi coincide

in point of time as the separating spouse the wife abandons the

matrimonial home with the intention, express or implied, of bringing

cohabitation permanently to a close. Though the husband and wife

both made allegations against each other about cruelty but the

same are not supported by any single instance that it can be said

to be a cruelty. Under the circumstances, it shows that the wife had

abandoned the husband without any valid and justified cause and

showed her intention to close the matrimonial ties for future

inasmuch as the parties are living apart for the last 12 years.

Consequently, we are of the opinion that the husband is entitled to

get a decree of divorce.

14) Now coming to grant of permanent alimony, affidavits of both the

appellant and respondent are placed on record showing the details

of assets held by them etc. The salary slip of May 2022 placed by

husband shows that he was drawing a gross salary Rs. 1,08,977/-

and after certain deduction, he was getting a monthly income of

Rs. 71,669/-. Considering the status of the parties, an amount of

Rs. 25,000/- per month is granted to the wife as permanent

alimony which would be deducted at source from the salary of the

husband and would be payable to the wife. Subsequent variation

in maintenance would be enhanced which would be reciprocal to

the increase of percentage to the salary in future.

15) In the result, the appeal is allowed to the extent indicated above,

leaving the parties to bear their own cost(s).

16)     A decree be drawn accordingly.




                    -Sd/-                               -Sd/-
              (Goutam Bhaduri)                  (Radhakishan Agrawal)
                   Judge                               Judge



Chandrakant