Smt.Vandana Saini vs Shri Rahul Saini
2011 Latest Caselaw 1472 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


                        Judgment delivered on: 14.03.2011


                      MAT APP No. 123/2009

Smt. Vandana Saini                          ......Appellant

                   Through:   Ms. Amrit Kaur Oberoi with
                              Ms. Kanika Sabharwal, Advs.

                              Vs.

Shri Rahul Saini                          ......Respondent
                        Through: Nemo.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
     be allowed to see the judgment?                     No
2. To be referred to Reporter or not?                    No
3. Whether the judgment should be reported
     in the Digest?                                      No


KAILASH GAMBHIR, J.

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

Marriage Act, 1955, the appellant seeks to set aside the

judgment and decree dated 14.10.09 passed the learned trial

court whereby the petition for divorce filed by the appellant

was dismissed.

2. Brief facts of the case relevant for deciding the

present appeal are that the marriage between the parties was

solemnized on 9.2.2000 at Delhi according to Hindu rites and

ceremonies and out of the said wedlock a female child named

Priyasha was born on 22.11.2000. It is the case of the

appellant that on 15.3.2005 the respondent left her alone at

Roorkee with their child and went with his bag and baggage

and never returned. Consequently the appellant filed the

petition for divorce on the ground of desertion which was

proceeded ex parte against the respondent and vide

judgment and decree dated 14.1.09 was dismissed. Feeling

aggrieved with the same, the appellant has preferred the

present appeal.

3. Assailing the impugned judgment and decree, Ms.

Amrit Kaur Oberoi, learned counsel for the appellant submits

that the respondent has deserted the appellant w.e.f. 15 th

March, 2005 and thereafter he never returned so as to

discharge his matrimonial obligations. The contention of

counsel for the appellant is that the respondent was under

heavy debts as he had taken various loans from certain

persons, which he failed to repay. Counsel also submits that

even the appellant had to sell all her jewellery which was

given to her in dowry so as to settle the loan amount taken by

her husband. Counsel also submits that on 15th March, 2005

the respondent left Roorkee with bag and baggage leaving

behind the appellant at Roorkee to take care of the small

child, who was appearing in her final exams. Counsel further

submits that despite best efforts made by the appellant the

respondent did not return back so as to take care of his wife

and small child and had the respondent returned back the

situation would have improved. Counsel also submits that the

respondent also did not pursue his petition filed by him under

Section 9 of the Hindu Marriage Act, which fact again would

show that the respondent was never interested to seek

restitution of the conjugal rights. Counsel further submits

that even the respondent was not appearing in the

proceedings separately initiated by the appellant under

Section 26 of the Hindu Marriage Act. Counsel also submits

that the respondent did not contest the divorce petition and

chose to get himself proceeded ex.-parte. Counsel also

submits that even before this Court, the respondent has not

appeared. The contention of counsel for the appellant is that

this conduct of the respondent in not causing appearance

before the learned trial court and before this Court is ample

evidence that the respondent has no intention to bring the

appellant back to join the matrimonial home so as to

discharge his matrimonial obligations. Counsel thus states

that this conduct of the respondent is good enough to show

that there is a permanent end to cohabitation between the

parties. Counsel thus submits that the appellant is entitled to

grant of decree on the ground of desertion, if she is not found

entitled to the decree on the ground of cruelty. In support of

her arguments counsel for the appellant has placed reliance

on the judgment of this Court in Smt. Vimal Kanta vs Shri

J.M. Kohli passed in FAO No. 46/1995 dated 13.1.2011.

4. I have heard learned counsel for the appellant at

considerable length.

5. The appellant filed a petition for divorce on the

ground of cruelty and desertion as envisaged under section

13(1)(ia) and (ib) of the Hindu Marriage Act. The case of the

appellant is that the respondent husband had played fraud

upon the appellant regarding his age and educational

qualifications. The appellant also alleged that in May, 2000

the respondent disappeared for almost a week as he had

taken loans and was not in a position to pay the creditors. In

February 2001 three musclemen invaded the house of the

appellant and assaulted her to recover the amount and which

the appellant had to pay by selling off her jewellery which

she had received at the time of marriage. The appellant

further alleged that the respondent did not let her meet her

parents and relatives and in October, 2001 had left her at the

house of her parents and did not bother to bring her back.

That on 15.3.2005, the respondent left the house at Roorkee

leaving behind the appellant and their child alone at the

mercy of the strangers and never returned back to fulfil his

marital obligations.

6. The learned trial court dismissed the petition of

the appellant on the ground that the petition was devoid of

any particulars and that the appellant was not able to prove

her case to establish any cruelty on the part of the

respondent. As far as the observations of the trial court

without regard to cruelty are concerned, this court does not

find any illegality or perversity in it and the same is upheld to

that extent.

7. So far the observations with regard to the ground

of desertion are concerned, the learned trial court has held

that the appellant was not able to prove the necessary

ingredients for proving desertion as envisaged under section

13(1)(ia) of the Hindu Marriage Act, 1955 and hence was not

entitled for the decree of divorce on the said ground. It is a

settled legal position that for proving desertion, the

petitioner has to prove the two necessary ingredients of

(1) factum of separation and (2) animus deserendi; which

means the intention to bring cohabitation permanently to an

end. The desertion of the petitioner has to be without

reasonable cause and without the consent of the petitioner

and it also includes the willful neglect of the petitioning

spouse by the respondent. The two essential ingredients with

regard to the deserted spouse is; (1) absence of consent and

(2) the absence of conduct giving reasonable cause to the

spouse leaving the matrimonial home to form the necessary

intention aforesaid.

8. In the facts of the present case, the appellant

alleged that the respondent had deserted her without

reasonable cause with effect from 15.3.2005 and since then

he has never returned back. The statutory requirement that

the parties should be living separately for a period of two

years before filing the petition for divorce is fulfilled in the

present case. But coming to the ingredients to prove the

ground of desertion, the burden was on the appellant to

prove the same. The appellant has established the first

essential of factum of separation with regard to desertion

which is from 15.3.2005. So far the second ingredient with

regard to animus deserendi is concerned, this court is of the

considered view that it can be gathered from the conduct of

the respondent. Here it would be useful to refer to the

observations of the Apex Court in the case of Bipin Chander

Jaisinghbhai Shah vs. Prabhawati AIR 1957 SC 176

where it was held that:

"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."

9. In the present case, the respondent deserted the

spouse on 15.3.2005 and never returned back. He filed a

petition under section 9 of the Hindu Marriage Act for

restitution of conjugal rights which he got dismissed for non

prosecution. The appellant filed a petition for divorce and

even after notice of the same, he chose not to appear and was

proceeded ex-parte before the learned trail court. In the

appeal filed before this court as well, the respondent has

chose not to appear and contest the said divorce petition.

This conduct of the respondent goes on to ascertain the

necessary animus required for proving the ground of

desertion. It is a settled legal position that the factum of

separation and animus need not co exist. In the present case

also when there was a de facto separation on 15.3.05, the

respondent did not return back to fulfil any of his

matrimonial obligations and left behind his wife and daughter

to fend for themselves. Had there been any intention of the

respondent to resume cohabitation with the appellant, then

at least he would have come forward to contest the divorce

petition filed by the appellant or even the appeal filed before

this court. The conduct of the respondent gives sufficient

ground to construe the necessary intention on his part to

bring cohabitation permanently to an end. Thus in the facts

and circumstances of the case the necessary ingredients to

prove desertion exist and therefore the judgment and decree

dated 14.10.09 on the ground of desertion is accordingly set

aside.

10. In the light of the above, this court is of the

considered view that the desideratum of the delicate

structure of proof should not be an impediment in the

dispensation of justice. The respondent has acted most

unreasonably in just disappearing, turning his back on the

conjugal responsibilities leaving the wife and child and

further added insult to injury by not appearing before the

court to explain his stand where the wife is carrying the load

of an ominous marriage.

11. In the light of the foregoing, the court sets aside

the judgment and decree passed by the learned trial court

dated 14.10.09 so far as the ground of desertion is

concerned. The present appeal is accordingly allowed and the

decree of divorce granted to the appellant.

March 14, 2011                      KAILASH GAMBHIR, J