Renu Bala vs Jagdeep Chiller
2010 Latest Caselaw 3839 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: 06.07.2010
                              Judgment delivered on: 18.8.2010


                           FAO 443/2000


       RENU BALA                            ......Appellant
                          Through: Mr.Sanjeev Sindhwani, Adv.


                              Vs.


       JAGDEEP CHILLER               ......Respondent
                    Through: Mr.Rajesh Kalra and Mr.Anuj
                             Soni, Adv.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may        Yes
     be allowed to see the judgment?
2. To be referred to Reporter or not?               Yes
3. Whether the judgment should be reported          Yes
     in the Digest?
KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 28 of the Hindu

Marriage Act, 1955 the appellant seeks to challenge the

impugned judgment and decree dated 24.10.2000, whereby

the learned trial court has passed a decree of divorce on the

ground of cruelty and desertion under Section 13 (1) (ia) and

13 (1) (ib) of the Hindu Marriage Act, 1955. The main

grounds to assail the findings of the learned trial court taken

in the present appeal inter alia are that the appellant was

turned out of her matrimonial home in three wearings after

she was mercilessly beaten by the respondent husband and

this aspect was completely ignored by the learned trial court;

the learned trial court also misread the evidence and assumed

certain evidence which in fact does not exist; the allegations

leveled by the petitioner husband in the divorce petition are

contrary to the stand taken by him in his petition filed under

Section 9 of the Hindu Marriage Act; the respondent husband

had started creating evidence in his favour after a complaint

was filed by the father of the appellant against him with the

concerned police station; the learned trial court wrongly

placed reliance on the FIR and the MLC, which documents

could not be proved by the respondent in accordance with law;

no specific allegations of cruelty were leveled by the

respondent against the appellant till the date she remained in

the matrimonial home; the plea of the respondent that he

was given assurance by the appellant that she would come

and join the matrimonial home is palpably false as the

appellant had appeared before the concerned court to contest

the petition filed by the respondent under Section 9 of the

Hindu Marriage Act while the respondent chose not to appear

on two dates which ultimately led to the dismissal of the said

petition; the appellant never refused to join the company of

the respondent and therefore the respondent miserably failed

to prove one of the essential ingredients, „animus deserendi‟ to

prove the ground of desertion; the appellant on the other

hand successfully proved that she left the matrimonial home

due to merciless beatings given by the respondent husband,

therefore by granting a decree of divorce in favour of the

respondent, the learned trial court has given advantage to

the respondent husband to take benefit of his own wrongs.

Broadly on the abovementioned grounds the appellant seeks to

impugn the said judgment and decree.

2. Mr. Sanjeev Sindhwani, counsel for the appellant

submitted that the respondent has failed to prove either the

ground of cruelty or desertion on the part of the appellant. So

far the ground of desertion is concerned, the counsel

contended that the respondent failed to establish or prove on

record that the appellant intended to permanently bring to

an end the cohabitation between the parties and hence the

respondent has failed to prove the essential ingredient of

animus deserendi. Counsel also submitted that it is the

respondent who forced the appellant to leave the matrimonial

home on 15.09.1991 after being severely beaten by him.

Counsel further urged that by filing a petition under Section 9

of the Hindu Marriage Act seeking restoration of Conjugal

Rights, the respondent has not only condoned the alleged acts

of cruelty on the part of the appellant but in fact has also

condoned the alleged act of desertion on her part. In support

of his argument, counsel for the appellant placed reliance on

the judgment of the Division Bench of the Himachal Pradesh

High Court in the case of Nirmala Devi Vs. Ved Prakash

AIR 1993 HP 1 with special emphasis on paras 5, 8, 10, 11 &

13. Counsel also invited attention of this Court to Section 23

sub section (1) of the Hindu Marriage Act to support his

argument that under sub section (b) of Section 23 (1) wherein

reference has been made to clause (1) of Section 13, the same

does not merely refer to 13 (1) (ia) but also to (ib) of Section

13(1) and therefore the condonation aspect is to be

considered not only vis-à-vis ground of cruelty but for

desertion as well.

3. Mr. Sindhwani further submitted that merely

registration of an FIR against the brother and father of the

appellant cannot be taken as an admission of the alleged

acts attributed to them so far the appellant is concerned.

Counsel also submitted that the findings of the criminal court

would not bind the civil court. Counsel also submitted that

nowhere either in the pleadings or in the evidence it was

proved that the alleged beatings by the brother and family

members of the appellant were at the behest of the appellant

and in para 59 & 60 of the impugned judgment the trial court

has wrongly observed that the said traumatic events were

suffered by the husband at the hands of the wife and her

family members who had acted at the behest of the appellant.

The contention of the counsel was that these cruel acts, so far

as the appellant is concerned, are not attributable to her but

against the brother of the appellant and his friends who have

been alleged to have kidnapped and beaten the respondent.

Counsel further argued that merely because in the cross-

examination of the PW 1 the amount of dowry as demanded

was not correctly suggested, that by itself could not belie

raising of the demand by the respondent. The contention of

the counsel was that the appellant in her examination-in-chief

clearly deposed that a demand of Rs.50,000/- was raised by

the respondent and she was told that she would be permitted

to live in the matrimonial home only if her father paid the said

amount to him. The said deposition of the appellant was

strictly as per the case set up by her in her pleadings and

therefore even if in the cross-examination of the respondent,

due to some inadvertence, wrong figure of Rs.1,00,000/- was

suggested to him, the same cannot be construed to mean that

no demand was raised by the respondent. Finding another

illegality in the impugned judgment, the counsel submitted

that the Ld. Trial Court gave undue weightage to the different

date given by the RW2, father of the appellant in his evidence

of her leaving the matrimonial house, although the appellant

herself was consistent in disclosing only one date i.e.

15.09.1991 of leaving the matrimonial home.

4. Assailing the findings of the trial court on cruelty,

Mr. Sindhwani submitted that the allegations of cruelty

leveled by the respondent husband are vague and general in

nature and the same are not in conformity with the rules

framed by the High Court under the Hindu Marriage Act.

5. Counsel also submitted that in para 37 of the

impugned judgment, the learned trial court has wrongly

attributed certain statement coming from the deposition of

PW-1 while in fact no such statement was made by PW-1 in

his entire deposition. He referred to para 15 of the

impugned judgment to submit that nowhere in the evidence it

was proved on record that the new residence was set up by

the respondent husband to pacify the appellant wife. The

contention of the counsel for the appellant was that there is

an uncorroborated statement of the respondent husband on

one hand and of the appellant on the other hand, but without

disclosing any valid reason, the learned trial court has

believed the version of the respondent husband and not that

of the appellant wife. Counsel also submitted that no case of

abduction was made out on record and therefore the learned

trial court has made wrong observation in para 51 of the

judgment that abduction of master Rajat from the custody of

the husband caused mental agony to him. The contention of

the counsel was that master Rajat was about 11 months old

on the date of the alleged abduction i.e. 01.11.1991, and

admittedly, the appellant wife was not living with the

respondent husband, therefore, clearly as per the respondent

husband 11 months old child was alone at the house which is

highly improbable. Counsel further submitted that the

respondent husband stated that he was informed by a

neighbour about the said fact of abduction of the child but

no such neighbour was produced in the witness box. Counsel

thus submitted that this theory of abduction has been coined

by the respondent to attribute cruelty on the part of the

appellant wife. Counsel also submitted that even otherwise it

was a hearsay version and the same cannot be admissible in

evidence.

6. Mr. Sindhwani further submitted that the trial

court wrongly observed in para 52 of the impugned

judgment, that the FIR and MLC were proved on record. The

contention of the counsel was that neither the FIR nor the

MLC were proved by the respondent as neither any witness

from the police was produced to prove the FIR nor the

concerned Doctor was produced to prove the MLC. Counsel

further submitted that the court below gave further incorrect

finding that these documents were not disputed by the

appellant. Referring to para 52 of the judgment, counsel

submitted that again the court made certain observations

without the backing of the evidence on record as the

appellant was never confronted with any such suggestions

referred to in the said para.

7. Mr. Sindhwani referred to para 55 of the judgment

and submitted that simply because the father of the appellant

did not corroborate the version of the appellant with regard to

the acts of cruelty committed by the respondent husband,

the same cannot lead to an inference that no such act of

cruelty was committed by the respondent qua the wife.

Counsel also submitted that simply because no complaint was

lodged by the wife with the dowry cell also would not lead to

infer that no acts of cruelty were committed by the

respondent upon her. Counsel also submitted that trial court

again wrongly held against the appellant because she did not

produce the letters written by her to her father informing him

about the physical assault by the husband or because the

father did not depose about such physical assault in his own

deposition.

In support of his arguments, counsel placed reliance on

the following judgments:-

1. Shivakumar v. Premavathi AIR 2004 Karnataka 146

2. Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73

8. Refuting the arguments of Mr. Sindhwani, Mr.

Rajesh Kalra, counsel for the respondent husband submitted

that the learned trial court has gone into each and every

aspect of the case set up by the parties and no illegality or

perversity can be found in the same. Supporting the

impugned judgment, counsel contended that the respondent

husband has placed on record the facts in detail in his petition

clearly disclosing various acts of cruelty committed by the

appellant wife as envisaged under Section 13(1) (ia) of the

Hindu Marriage Act and also sufficient grounds to attract the

ground of desertion under Section 13(1)(ib) of the said Act.

On desertion, counsel for the respondent contended that

without there being any lawful excuse or reasons or for no

fault on the part of the respondent, the appellant deserted the

respondent on 10.9.91 in his absence and on the said very

date the appellant intended to bring the matrimonial relation

to an end. Counsel further contended that the appellant failed

to join the respondent despite various attempts made by him

and the respondent did not succeed even despite filing of

the petition under Section 9 of the Hindu Marriage Act

seeking restoration of conjugal rights. Countering the

arguments of Mr. Sindhwani, counsel for the respondent

contended that the appearance of the appellant in Section 9

proceedings without offering to join the company of the

respondent itself would demonstrate the intentions of the

appellant wife who did not offer to join the matrimony and

instead preferred to move an application under Section 24 of

the Hindu Marriage Act. Counsel thus argued that the

respondent successfully proved the fact of separation by

the appellant on 10.9.91 and then by clear refusal on the part

of the appellant to join the company of the respondent despite

filing of the said petition under Section 9. Counsel thus urged

that the said reluctance of the appellant clearly proves

animus deserendi on her part and without there being any

lawful excuse the appellant wife brought to an end the

marital relationship.

9. Counsel further argued that Section 23 of the

Hindu Marriage Act cannot be interpreted in the manner as

sought to be interpreted by the counsel for the appellant as

under Section 23 (1) (b) of the Hindu Marriage Act, it is only

where the ground for divorce of the petitioner is cruelty, the

court must be satisfied that the petitioner has not in any

manner condoned the acts of cruelty complained of. Counsel

thus submitted that for seeking a decree of divorce on the

ground of desertion, the respondent was not required to

prove non-condonation of the act of desertion committed by

the appellant wife. Counsel, therefore, urged that so far the

respondent husband is concerned, he was able to

successfully prove that the appellant wife had deserted him

and such desertion on her part was with a view to

permanently bring to an end the cohabitation between the

parties. Counsel thus submitted that both these factors were

fully proved on record by the respondent and therefore, based

on the pleadings and evidence, the learned trial court has

rightly passed the decree of divorce.

10. So far the ground of cruelty is concerned, counsel

for the respondent submitted that leaving the matrimonial

house by the appellant wife without there being any lawful

excuse on 10.9.91 itself constitutes an act of cruelty and

besides that the respondent successfully proved that his elder

child was abducted by the brother of the appellant on

01.11.91, and also the abduction of the respondent himself by

the brother of the appellant with the help of three goondas at

gun point when he was severely beaten with hockey sticks

and fist blows. These acts of physical violence constitute

sufficient material to prove cruelty on the part of the

appellant wife, counsel argued. Counsel also submitted that

the respondent has proved on record copy of the FIR as well

as the MLC and there has been no denial to the registration

of the criminal case either by the appellant or by her father

RW-2. Counsel further submitted that the testimony of the

respondent husband remained unrebutted and unimpeached

as the appellant not only failed to refute the testimony of the

respondent but also failed to cross-examine the respondent in

terms of her defence put up in the written statement. RW-

2, father of the appellant, also did not support her defence

and failed to prove any kind of alleged ill treatment of his

daughter at the hands of her husband, the counsel contended.

On the abduction of the child, counsel clarified that the

abduction of the child took place from the parental house of

the husband and the matter was also reported to the police

by the mother of the respondent, although, the respondent

learnt about the abduction from a neighbour. Counsel thus

submitted that these acts of abduction and kidnapping were

committed by the brother of the appellant only at her instance

and by no stretch of imagination the appellant being wife of

the respondent can separate herself from the said incidents.

Counsel thus submitted that the said acts caused immense

pain and agony to the respondent both physical and mental

and based on the said grounds the learned trial court has

validly passed the decree of divorce. Counsel also placed

reliance on the same very judgments as relied upon by the

counsel for the appellant and submitted that the ratio of all

these judgments support the case of the respondent.

11. I have heard learned counsel for the parties at

considerable length and have given my thoughtful

consideration to the facts of the case and the arguments

advanced by the parties.

12. Before adverting to the facts of the present case, it

would be useful to refer to the observations of the Apex Court

in the celebrated pronouncement, Dr.N.G.Dastane Vs. Mrs.

S.Dastane (1975) 2 SCC 326, which are reproduced as

under:

"But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt ? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order 10 judge whether the burden has been discharged?

24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth [1966] 1 A.E.R. 534. But whether the issue is one

of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.

25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.

26. Neither Section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is "satisfied" on matters mentioned in Clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word "satisfied" must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt". Section 23 does not alter the standard of proof in civil cases.

27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a "matrimonial offence". Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie ' is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the

clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases. -

28. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blytht [1966] A.E.R. 524 , the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, "the case, like any civil case, may be proved by a preponderance of probability". The High Court of Australia in Wright v. Wright 1948, 77 C.L.R. 191, has also taken the view that "the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery". The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty "beyond reasonable doubt". The High Court adds that "This must be in accordance with the law of evidence", but we are not clear as to the implications of this observation.

From the aforesaid observations, it would be quite

evident that to claim the decree of divorce on the ground of

cruelty or desertion, facts are not to be proved beyond

reasonable doubt and like in civil proceedings it would be

sufficient if such facts are proved by preponderance of

probabilities. The courts in matrimonial cases and civil

proceedings have to infer certain situations looking into the

normal human conduct and the prevailing fact-situation, even

though the same may not be specifically pleaded or proved by

the parties.

13. The main allegations on which the respondent

based his petition, so far the ground of cruelty is concerned,

are that during the stay of the respondent with the appellant

her main demand was that the respondent should abandon his

parents despite the fact that the respondent is the only son of

his parents and accordingly the respondent had to arrange a

separate residence i.e. at 43, Ashoka Park Extension, New

Delhi for himself and the appellant wife. The other ground of

cruelty is that the appellant left the matrimonial home without

information and knowledge of the respondent. One of the

other allegations is that the elder son of the couple, Master

Rajat, was abducted in the absence of the respondent by the

brother of the appellant and a report to this effect was lodged

with the police station Paschim Vihar. One of the grievous acts

of cruelty as per the respondent is that on 27.11.1996 at 9.45

a.m. the respondent was abducted by the brother of the

appellant, Manoj Kumar, along with three goondas and he was

beaten with hockey sticks and fist blows and was also given

threat of dire consequences of death. An FIR bearing No. 1057

dated 17.12.96 was duly registered under Sections

365/342/323/506/34 IPC to this effect. The respondent in his

petition clearly stated that the said act of abduction was

committed by the brother of the appellant at the instance of

the appellant.

14. So far the ground of desertion is concerned, the

case of the respondent as set up by him in the petition is that

the appellant deserted him for a continuous period of not less

than five years immediately preceding the presentation of the

said petition i.e. from 10.9.91 to 3.2.97. The respondent

further claims that various attempts were made by him to

bring back the appellant to join the matrimonial home, but she

bluntly refused to do so. The respondent has further stated

that the petition under Section 9 of the Hindu Marriage Act

for restitution of conjugal rights was filed by him, but the

same was got dismissed in default on the assurance given by

the appellant that she would join the respondent, but she did

not honour her commitment.

15. The appellant on the other hand, in her written

statement, denied each and every allegation leveled by the

respondent in his said petition. On merits, the appellant took

a stand that at the matrimonial home the respondent and his

family members caused harassment and physical torture to

her so as to compel her to bring more dowry from her parents

as the respondent and his family members were not satisfied

with the dowry articles given in marriage. The appellant was

also not provided proper food, clothing and was being treated

as a maid servant by the respondent and his family members

while the appellant fulfilled all her matrimonial obligations

being a devoted wife. The appellant has further claimed that

she remained in the matrimonial house upto 15.4.1991, when

she was turned out of house after giving her merciless

beatings by the respondent and his family members, which

ultimately compelled the appellant to lodge a police report

with PS Paschim Vihar. It is further claimed that the

respondent himself agreed to arrange for a separate rented

accommodation so as to live separately from his parents

besides having undertaken to maintain the appellant properly.

The appellant further averred that thereafter the respondent

did not mend his behavior as she was not provided with

proper meals and was not being paid even a single penny for

household expenses and all these facts were informed by the

appellant through letters sent by her to her father. The

appellant has further averred that she was again turned out of

the house at Ashoka Park Extension on 15.9.1991 in three

wearings at the advance stage of pregnancy. She further

stated that she gave birth to a child on 1.10.91, but the

respondent visited the hospital only once and there also he

demanded a sum of Rs. 50,000/- to be paid by her father from

his retiral benefits and only on the payment of the same he

would take the appellant back to the matrimonial house. It is

further stated that the respondent did not bother to take the

appellant back to the matrimonial house despite numerous

attempts by her. It is further claimed that the respondent

deliberately filed a petition under Section 9 of the Hindu

Marriage Act with mala fide intentions and later on got the

same dismissed in default without even taking any steps to

seek restoration of the same.

16. The expression "cruelty" has not been defined in the

Hindu Marriage Act and rightly so as the legislature probably

refrained itself to define the said expression, which cannot be

encompassed with precise and definite connotations. As

interpreted by the Courts, the cruelty may be physical or

mental, intentional or unintentional. Physical cruelty would

involve physical violence and bodily injury and so far mental

cruelty is concerned, the same would involve conduct of one

party which inflicts such mental pain and suffering as would

make it impossible for the other party to live with him/her.

Explaining the concept of cruelty the Apex Court in

A. Jayachandra vs Aneel Kaur AIR 2005 SC 534 held as

under:-

"10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

11. The expression 'cruelty' has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and

obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobha Rani v. Madhukar Reddi, : [1988]1SCR1010 ).

12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education,physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty

within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party."

17. It is a matter of common knowledge that the

relationship of husband and wife is such that many acts of

decency-indecency, love-hatred, taunts and tantrums take

place to which both of them alone remain privy. There may

be many other acts which are committed by either of the

parties in the presence of the family members or in the

presence of their respective in-laws. Some of the acts also at

times, directly involve the family members of either of the

parties and sometimes even friends, other relatives and even

neighbours can be witness to the behavior of husband and

wife. The Apex Court in the case of Praveen Mehta V.

Inderjit Mehta AIR 2002 SC 2582 observed that unlike

physical cruelty, mental cruelty is difficult to establish by

direct evidence and therefore it is necessarily a matter of

inference to be drawn from the facts and circumstances of

each case. It would be useful to refer to the following para of

the said judgment here:-

"Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.

18. Dealing with the concept of cruelty, the Apex Court

in Vinita Saxena Vs. Pankaj Pandit AIR 2006 SC 1662

observed as under:-

19. It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued

living together of spouses harmful or injurious having regard to the circumstances of the case. The word 'cruelty' has not been defined and it has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

20. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony. This view was taken by the Kerala High Court in the case reported in MANU/KE/0001/1991.

21. In 1993 (2) Hin L.R. 637, the Court had gone to the further extent of observing as follows:

"Sometime even a gesture, the angry look, a sugar coated joke, an ironic overlook may be more cruel than actual beating. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.

22. The legal concept of cruelty which is not defined by statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all question of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.

23. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.

24. The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:-

The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status.

This Court in Dastane v. Dastane : [1975]3SCR967 observed as under:-

"The Court has to deal not with an ideal husband and an ideal wife, (assuming any such exist) but with the particular man and women before it. The ideal couple or a mere ideal one will probably have no occasion to go to a matrimonial court or, even if they may not be able to drawn their differences, their ideal attitudes may help them overlook or gloss over mutual fault and failures." ........

Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore,

should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged".

19. Now adverting to the facts of the present case, so

far the ground of cruelty is concerned, I do not find any

illegality, irrationality or perversity in the reasoning given by

the Ld. Trial Court except some skirmishes which are totally

inconsequential. The marriage between the parties was

solemnized on 12.12.1987 and two children were born out of

the said wedlock in the year 1990-1991 and both of them are

now major. Both the parties have been living separately since

10.9.91, i.e. for almost over a period of 19 years. It is an

admitted fact between the parties that the respondent had

taken a separate residence to live with the appellant i.e. at 43,

Ashoka Park Extension, New Delhi and undoubtedly separate

residence to live apart from his parents was taken so that the

husband and wife could live independently without any sort of

interference in their matrimonial relationship. Usually, no son

would take such a step to part company of his aging parents

unless compelled by his wife or some other compelling

circumstances. The respondent in his deposition clearly

stated that the appellant did not want to stay in the joint

family and she was not respecting his parents. The

respondent further deposed that he was the only son of his

parents and his father is an aged person but still in order to

please the appellant he started living separately in a rented

accommodation. The said statement of the respondent went

unrebutted as no contrary suggestion was put to the

respondent by the appellant. Again the statement of the

respondent testifying that on 01.11.1991 the brother of the

appellant, Manoj Kumar, came to the house along with his two

companions and abducted his son Master Rajat and a police

complaint regarding this incident was lodged by the mother of

the respondent at P.S. Paschim Vihar, also remained

unchallenged and unrebutted as no contrary suggestion was

put to him by the appellant. Counsel for the appellant

strenuously argued that the respondent could not have left his

son alone at the matrimonial home as the child being just 11

months old and also no neighbour was produced by the

respondent to prove the said allegation of abduction. This

argument of the counsel could be of some substance had the

respondent pleaded abduction from his newly acquired rented

house, but in his deposition he clearly stated that his mother

had lodged a report with regard to the incident and this

clearly demonstrates that the child was at the parental house

of the respondent. Counsel for the appellant did not offer any

explanation as to why the said deposition of the respondent

was not rebutted by the appellant. There is thus nothing

wrong if the ld. Trial court gave due weightage to the said

unrebutted deposition of PW 1.

20. Further, besides the mental cruelties, there is a

case of physical cruelty inflicted on the respondent/husband.

The respondent in his petition as well as in his deposition

clearly deposed that the brother of the appellant, Manoj

Kumar, along with other three goondas came on 26.11.1996 to

his residence and after threatening him with revolver

abducted him in a Maruti Jeep. The respondent also deposed

that on the way his hands were tied and his face was covered

and he was given beatings by fist blows, legs and hockey

sticks and thereafter he was taken to the house of the in-laws

at Bajit Pur village where he was locked by the brother of the

appellant and was threatened that he would be killed. He

further deposed that on 28.11.1996 he went to the police

station and lodged a complaint regarding this incident. He

also stated that he was medically examined by the police at

DDU Hospital and an FIR under Section 365/342/506/34 IPC

was lodged against the brother of the appellant and his other

companions. Again, except seeking certain clarifications from

the respondent, no contrary suggestion was put to him by the

appellant to deny the occurrence of such an incident with him,

and hence this part of the testimony of the respondent also

remained unrebutted and unimpeached. Mr. Sindhwani,

counsel for the appellant, laid much emphasis on the fact that

mere registration of an FIR would not by itself prove that the

said criminal acts were committed by the brother of the

appellant and his companions. Counsel also argued that the

FIR and the MLC were not proved by the respondent in

accordance with law. I do not find any force in the arguments

of the counsel for the appellant. An FIR is a public document

and although by exhibiting the FIR it would not lead to proving

the correctness of the contents of the FIR but certainly it will

prove the reporting of the commission of a crime by the

assailants. The deposition of the respondent narrating the

sequence of incidents remained unrebutted and this evidence

of respondent coupled with the fact of registration of an FIR

clearly shows that such an incident did take place. Another

limb of argument of the counsel for the appellant was that

nowhere has the respondent proved that the said beatings by

the brother and family members were at the behest of the

appellant and the trial court in para 59 and 60 of the

impugned judgment wrongly observed that these acts were

committed at the behest of the appellant. At the first blush, I

found this argument quite convincing but the perusal of the

petition clearly shows that the respondent attributed

commission of the said incident at the instance of the

appellant alone. Although in the deposition, the respondent

did not state that the said acts were committed by the brother

and father of the appellant at her instance but keeping in

view the totality of the circumstances, the said act could only

be committed at the instance of the appellant, more

particularly, when the appellant failed to explain any kind of

animosity or rivalry between the respondent and the family

members of the appellant otherwise than the matrimonial

dispute. The MLC proved on record also exemplifies that the

respondent had received injuries in the said incident.

21. Mr. Sindhwani sought to place reliance on the

judgment of the Karnataka High Court in the case of

Shivakumar vs. Premvathi, (supra) to support his

argument that the respondent husband has not produced any

independent evidence in corroboration of his case. This

judgment of the Karnataka High Court will be of no help to the

appellant as in the said case adultery was one of the grounds

for divorce and the petitioner therein disclosed that the people

in the locality had said that the respondent had illicit relations

with some named person. The Court in the background of

these facts took a position that no independent evidence was

adduced by the petitioner to support the allegation of adultery

committed by the respondent by living in the house of the

named person. The facts of the present case in hand cannot be

equated with the facts of that case as here the respondent

husband has leveled serious allegations of physical violence

committed by the brother of the appellant along with his

accomplice for which the evidence of the respondent himself

coupled with documentary evidence proved on record i.e. FIR

and MLC is sufficient enough to establish cruelty on the part

of the appellant. There is thus sufficient evidence adduced by

the respondent to prove various acts of cruelties committed

by the appellant and I do not find any illegality in the findings

arrived at by the Ld. Trial Court even if the statement of the

respondent remained uncorroborated. Unrebutted statement

of a witness even if uncorroborated carries much weightage. I

also do not find that the allegations leveled by the respondent

husband are vague, uncertain and unspecific after looking at

the petition and the replication in entirety. I also do not find

any merit in the other pleas raised by the counsel for the

appellant assailing the judgment of the Ld. Trial Court on the

ground of cruelty. The judgment and decree passed by the Ld.

Trial Court is accordingly upheld so far as the ground of

cruelty is concerned.

22. Now dealing with the ground of desertion as

envisaged under Section 13 (1) (ib) of the Hindu Marriage Act,

1955, the essentials of desertion as a matrimonial wrong were

stated by the Hon‟ble Supreme Court in the matter of Bipin

Chander Jaisinghbhai Shah Vs. Prabhawati AIR 1957 SC

176 and it was held that:-

"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, (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 ....... 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."

While discussing the said concept, the Apex Court also

referred to various English decisions where the concept of

desertion was discussed. Referring to Halsbury‟s Laws of

England (3rd Edn.) Vol. 12 it was observed:-

"In its essence desertion means the international 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."

23. The Constitution Bench of the Apex Court further in

the case of Lachman Utamchand Kirpalani Vs. Meena,

AIR 1964 SC 40 explained the concept of desertion as

follows:-

"Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. It is settled law that the burden of proving desertion - the "factum" as well as the "animus 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 with out 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.

27. As Denning, L.J., observed : (Dunn v. Dunn) [1948] 2 All. E.R. 822 :

"The burden he (Counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional burden raised by the state of the evidence ...... The legal burden throughout this case is on the husband, as petitioner, to prove that his wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which

the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves that fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself : Is the legal burden discharged ? Has the husband proved that she deserted him without cause ? Take this case. The wife was very deaf, and for that reason could not explain to the court her reasons for refusal. The judge thereupon considered reasons for her refusal which appeared from the facts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of the case : Has that burden been discharged ?"

28. This, in our opinion, is as well the law in this country under the Act"

24. Taking into consideration the aforesaid well settled

legal principles, let me examine the case in hand. In the

petition, the respondent husband has stated that the appellant

had deserted him on 10.09.1991 in his absence and at the time

of desertion the parties were residing together at 43, Ashoka

Park Extension, New Delhi. The respondent has further stated

that he made various attempts to bring back the appellant to

the matrimonial home but she bluntly refused to join him. It

has been further stated that the respondent had filed a

petition under Section 9 of the Hindu Marriage Act but the

same was got dismissed in default by him on the assurance of

the appellant that she would join back the respondent.

25. As per the settled legal position, it is not the factum

of separation alone but the other essential ingredient of

„animus deserendi‟ that should also be proved for claiming a

decree of divorce on the ground of desertion. There is a

consistent judicial view that the petitioner has not merely to

prove the factum of desertion but also animus deserendi.

Again, the petitioner has to establish that it is not on account

of any circumstances created by the petitioner himself which

led the other spouse to leave his/her company as the petitioner

cannot be allowed to take advantage of his/her own wrongs.

Yet again, it would not be enough for the petitioner to merely

plead and prove that the respondent had left his/her company

but also to prove that she did not return back even after

genuine efforts are made by the petitioner. In a case where

the husband seeks divorce on the ground of desertion, the

court is required to see as to whether any concerted efforts

were made by him to bring back his wife and whether on his

making such efforts, the wife has expressed her reluctance to

go back to the matrimonial house without any just cause or

lawful excuse.

26. In the facts of the present case, the respondent has

merely pleaded that the appellant had left the matrimonial

home on 15.09.1991, the appellant wife, on the other hand,

pleaded that she was turned out of the matrimonial home on

10.09.1991 just in three clothes that too after she was given

merciless beatings. It is hardly of any consequence whether

the wife left the company of the husband on 10.09.1991 or

15.09.1991 as the same would only prove the factum of

separation between the parties. There is not an iota of

evidence placed on record by the respondent/husband that he

made any effort to bring back the appellant/wife to the

matrimonial home. No letters, no telephonic request, no

intervention of relatives, nothing of this sort was pleaded or

proved on record by the respondent/husband. The mere fact

that the respondent had filed a petition under Section 9 of the

Hindu Marriage Act to seek restoration of conjugal rights

would not by itself prove any genuine effort or sincerity on

the part of the husband to bring back his wife, more

particularly when he did not pursue the said remedy and

allowed the said petition to go unrepresented while the

appellant/wife remained present in court on the two dates of

hearing. The respondent has failed to prove on record that

any assurance was given by the appellant wife that she would

join back the company of the husband on getting the said

petition dismissed in default. The respondent has thus

miserably failed to prove the „animus deserendi‟ on the part of

the appellant wife.

27. The counsel placed reliance on the judgment of the

Apex Court in Savitri Pandey Vs. Prem Chandra Pandey

(2002) 2 SCC 73, but the same supports the plea of the

appellant so far the ground of desertion is concerned, but does

not support her so far the ground of cruelty is concerned.

28. Another argument of the counsel for the appellant

was that under Section 23 (1) (b) of the Hindu Marriage Act

the ground of cruelty as well as desertion would not be

available to the petitioner where the same stands condoned by

him. Before I examine this contention it would be useful to

reproduce Section 23 of the Hindu Marriage Act, as under:-

23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (f) of sub-section (1) of section 10, or in clause (i) of sub- section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

(c) the petition is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in

instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted,

then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties.

29. The plain language of Section 23 (1) (b) clearly

shows the reference to clause (i) of sub-section (1) of Section

13 i.e. adultery and also to the ground of cruelty. The

legislature in its wisdom has explicitly mentioned cruelty in

Section 23(1) (b) and if it was to be impliedly considered as

part of section 13(1) (i) then „cruelty‟ would not have been

expressly mentioned. Section 23(1) (b) therefore does not

include the ground of desertion and hence cannot be read into

the same by virtue of it being a part of sub section (i) of

Section 13(1). Also in the Hindu Marriage Act Rules of this

court, Rule 9 states as:

R. 9 Affidavit of non-condonation- Where the ground of the petition is the ground specified in clause (i) of sub section (1) of section 13 or where the ground for the petition is cruelty, the petition shall be accompanied by an affidavit to the effect that the petitioner has not condoned the act complained of or not in any manner condoned the cruelty.

Hence it would be manifest from the abovesaid rule as well

that if the ground of desertion would have to be included, then

either it would have been explicitly done so or if sub clause (i)

has to be read inclusive of both sub clauses (ia) and (ib) then it

would have not separately mentioned the ground of cruelty in

Section 23(1) (b). Therefore, to pass a decree of divorce on the

ground of adultery and cruelty only, the court must be

satisfied that the petitioner has not in any manner condoned

the acts complained of before filing the divorce petition as

envisaged under section 23(1)(b). Hence condonation as a bar

to matrimonial relief applies only to the ground of adultery

and cruelty.

30. Condonation however has not been defined by the

statute. But it has come to mean the conditional forgiveness,

the implied condition being that no further matrimonial

offence shall be committed. To constitute condonation, two

elements are necessary, namely, forgiveness of each other‟s

acts and restoration of cohabitation. The elements of

condonotion being that there must be blotting out of the

previous matrimonial offence and also must be followed by

reinstatement, i.e restoration of the guilty spouse to his or her

original place and status. Certainly in given situations, filing of

the petition under Section 9 by the petitioner would imply that

the petitioner has forgiven the offending or cruel acts of his

spouse and seeks resumption of his marital ties. In the facts of

the present case also the respondent had filed a petition under

Section 9 of the Hindu Marriage Act, which he got dismissed

in default. The respondent husband in his petition has stated

that the said petition was got dismissed in default by him as

the appellant had given him the assurance that she would join

back the matrimonial home. The appellant on the other hand

has taken a position that the respondent husband deliberately

did not appear in the said matter and got the petition

dismissed in default although she had appeared and had also

sought to move an application under Section 24 of the Hindu

Marriage Act. Even if the filing of the petition under Section 9

by the respondent for restitution of conjugal rights, is

considered as an act of forgiveness, fulfilling one of the

essentials of the act of condonation, but still there was no

resumption of marital ties and obligations and the parties did

not cohabit together thereafter. On the contrary, the petition

was dismissed in default due to the non appearance of the

respondent. Hence, the concept of condonation in the present

facts cannot be a defence of the appellant for the grant of

matrimonial relief.

31. Reliance was placed by Mr. Sindhwani on the

Division Bench judgment of the Himachal Pradesh High Court

in the case of Nirmala Devi (supra) where the Court was

dealing with a petition filed by the husband on the ground of

cruelty. In this case also prior to filing of the divorce petition

the husband had filed a petition under Section 9 of the Hindu

Marriage Act seeking a decree for restitution of conjugal

rights, which fact was not disclosed by him in his divorce

petition. The Court in this case also was confronted with a

question whether the filing of a petition by the husband under

Section 9 of the Hindu Marriage Act would amount to

condoning the alleged acts of cruelty on the part of the wife.

Answering the said question in the affirmative the Hon‟ble

Division Bench followed the mandate of section 23(1) (b) as

the ground involved was cruelty and not desertion. The said

Division Bench judgment of the Himachal Pradesh High Court,

therefore, will be of no help to the appellant in the facts of the

present case. Even otherwise in the said case, the husband

had suppressed the fact of filing of the petition by him under

Section 9 of the Hindu Marriage Act and in that case there

was resumption of the marital ties in the interregnum period.

32. However, the ground of desertion would not be

available to the petitioner if the deserter has terminated the

desertion. In the present case as well, had the alleged deserter

wife terminated the desertion, the ground would not have

been available to the respondent husband. Desertion can be

terminated at any time before the filing of the petition for

divorce. It can come to an end by resumption of cohabitation;

resumption of marital intercourse; offer of reconciliation;

supervening agreement to separate; supervening insanity; and

supervening marital misconduct. But in the present case there

was no termination of desertion as none of the modes

mentioned above were resorted to.

33. But, as already discussed above, the

respondent/husband failed to prove animus deserendi on the

part of the appellant wife as nowhere he has pleaded or

proved that any sincere or actual efforts were put by him to

bring back the appellant to the matrimonial home. Therefore

he has miserably failed to prove desertion on the part of the

appellant wife. Hence, the findings of the Ld. Trial Court so far

the ground of desertion is concerned are set aside. The

appellant succeeds in her appeal so far the ground of

desertion is concerned.

34. In the ultimate analysis, the judgment and decree of the

Ld. Trial Court is upheld on the ground of cruelty and the

same is set aside so far the ground of desertion is concerned.

KAILASH GAMBHIR, J August 18, 2010