Smt.Kamlesh Kumari vs Shri Mehtab Singh
2012 Latest Caselaw 276 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         Judgment reserved on: 17.03.2011
                         Judgment delivered on: 16.01.2012


+              FAO 291/1996


Smt.Kamlesh Kumari                              ......Appellant.

               Through: Mr.Sanjay Kumar Pathak, Advocate.


                         Vs.

Shri Mehtab Singh                             ......Respondent

            Through: Mrs.Mala Goel with Mr.Yashpal Singh,
                         Advocates.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

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

Marriage Act, the appellant-wife seeks to challenge the

impugned judgment and decree dated 18.07.1996 passed by

the learned trial court whereby the divorce petition filed by

the husband, respondent herein under Section 13 (1) (ia) and

(ib) of the Hindu Marriage Act was allowed by the court and

the marriage between the parties was dissolved.

2. A conspectus of facts based on which the

respondent filed the divorce petition are that the respondent

got married to the appellant according to Hindu rites and

ceremonies on 30.06.1982 at Delhi. It is stated that after the

marriage on 01.07.1982, the parties went to the house of

appellant‟s parents at Yusuf Sarai and had lunch there and

thereafter the appellant‟s parents did not send the appellant

back along with the respondent and the appellant also

declined to accompany him without any reason or

justification. It is further stated that on 11.07.1982, the

respondent again went to the house of the appellant‟s parents

to bring her back and requested her parents to send the

appellant along with him but they refused to do so without

disclosing any reason. It is further averred that after 15 days

i.e. in the last week of July, 1982 the respondent again went

to the house of appellant‟s parents to bring her back,

however, after reaching there it was found that the appellant

was not present at her parents‟ house at that time and on

persistent enquiries by the respondent her parents told him

that the appellant had gone to the house of her sister‟s

husband(jija) Shri Umed Singh at Village Nilothi, Nangloi,

Delhi. Thereafter about a month of the marriage of the parties

i.e. on or about 30.7.82/1.8.82/2.8.82 father of the respondent

called said Shri Umed Singh to his village Sultanpur Majra

where the respondent, his elder brother and two uncles were

also present where Shri Umed Singh blamed father of the

appellant for telling a lie that the appellant was with him at

the time when the respondent visited her parents‟ house to

bring her back to matrimonial home. In the evening of

21.08.82, one Shri Kalam Singh and Shri Sri Lal went to the

house of Shri Umed Singh at Village Nilothi and found that

the appellant was very much there and thus the fact of the

appellant living with Shri Umed Singh without the consent or

permission of the respondent was confirmed by them. The

next day the respondent and his mother also went to the

house of Shri Umed Singh at 6 p.m and found the appellant

present there and when the respondent and his mother tried

to reason out from the appellant as to why she was living with

Shri Umed Singh, then she replied that it was her sweet will

to go anywhere. This fact was also enquired from Shri Umed

Singh in the presence of the appellant and he said that the

appellant was his sister-in-law and he had every right over her

and that she had come to him with her own will. Despite the

request of the respondent and his mother, the appellant did

not accompany them to return to her matrimonial home and

remained there. It is also stated that in the year 1983-84, the

appellant filed a report with the Social Welfare Board, which

called Shri Umed Singh, Shri Mohinder Singh and the

appellant‟s maternal uncle Shri Gian Singh and her brother

from the appellant‟s side and from the respondent‟s side the

respondent and his parents were called and on enquiry made

by the Welfare Board, it was found that the appellant was

living with her brother-in-law (jija) Shri Umed Singh and there

was no fault of the respondent and as such reconciliation

efforts made by the Board could not take place between the

parties. It is also averred that the appellant taunted the

respondent as the educational qualification of the appellant

was graduate whereas the respondent is a matriculate, which

caused cruelty to him. It is also stated that the appellant left

the matrimonial home with the intention not to return again,

whereas the respondent had made efforts for reconciliation.

The parties are stated to be living separately since 1.7.82 and

the appellant has deserted the respondent from the first day

of marriage without any reasonable cause. The appellant has

even not made any efforts to come back to the matrimonial

home as she has been staying with her brother-in-law (jija).

3. The appellant in her written statement however,

admitted the factum of her marriage with the respondent on

30.6.82 but denied the allegation of cruelty and desertion.

The appellant has leveled allegation that the respondent and

his parents used to taunt her on account of bringing

insufficient dowry and that the main demand of the

respondent was a two-wheeler scooter which was not met by

the appellant‟s parents. It is also alleged that the brother of

the appellant who had come to take the appellant on 5.7.82

was humiliated, taunted and was coerced to part with the

two-wheeler scooter on which he had come to take her back

and the respondent and his parents warned the brother of the

appellant that in case the scooter was not arranged at the

earliest the appellant may not be sent to her matrimonial

home and the respondent would also not come to take her

back. It is also alleged that thereafter i.e 5.7.82 the

respondent never came to take her back. It is denied that the

appellant was ever living with her brother-in-law (jija) Shri

Umed Singh or that the respondent and his mother ever went

to the house of said Shri Umed Singh on 22.8.82 or that the

appellant was present in the house of Shri Umed Singh on

that day. It is stated that the appellant was forced to make

report to Anti Dowry Cell of Delhi Police which report of her

was referred by the Anti Dowry Cell to the Social Welfare

Board. The factum of summoning of persons from both sides

is admitted by the appellant, however, it is denied that the

Social Welfare Board held in its enquiry that the appellant

was living with her brother-in-law (jija) Shri Umed Singh or

that there was no fault of the respondent. It is asserted that

the respondent flatly refused before the said Board to bring

the appellant back to the matrimonial home. It is alleged that

it was the appellant who had been deprived by the respondent

and had caused mental agony and torture to her by not taking

her to the matrimonial home for demand of two wheeler

scooter and other articles. It is also stated that on an

application made by the appellant to the Anti Dowry Cell the

case was proceeded against the respondent and the Anti

Dowry Cell came to the conclusion that it was a fit case for

investigation and accordingly a case was registered against

the respondent for demanding dowry and the respondent and

his family members were arrested by the police, but

subsequently were enlarged on bail. It is also alleged that it is

the respondent who had deserted the appellant since 5.7.82

and had not bothered to take her back to the matrimonial

home for his greed of dowry and did not allow her to enter the

matrimonial home in spite of repeated panchayat meetings

between the parties, their relatives and respectable persons

of the village. It is also stated that the appellant has been

forced to live with her parents since 5.7.82 due to

greed/demand of dowry by the respondent.

4. Based on the above pleadings of the parties, the learned

trial court framed the following issues:-

"(i) Whether after solemnization of marriage, the respondent treated the petitioner with cruelty? OPP

(ii) Whether the respondent has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition.

(iii) Whether the petition is not in accordance with rules?

If so, its effect?

(iv) Relief."

5. In support of his case, the respondent examined himself

as PW-1 besides examining Shri Maya Ram @ Mahe Ram as

PW-2 and Shri Ram Swarup as PW-3. The appellant, on the

other hand, examined herself as RW-1, besides examining

Shri J.B.Gupta as RW-2, Shri Gian Singh (appellant‟s brother)

as RW-3 and Shri Mahinder Singh as RW-4.

6. On issue Nos.1 and 2, the learned trial court returned a

finding against the appellant and in favour of the respondent

husband and thus dissolved the marriage of the parties by the

decree of divorce dated 18.7.1996, feeling aggrieved by which

the appellant has preferred the present appeal.

7. Assailing the impugned judgment and decree,

Mr.Sanjay Kumar Pathak, learned counsel for the appellant

submitted that sufficient efforts were made by the appellant

to join back the company of the respondent at the matrimonial

home and it was the respondent who remained reluctant to

allow the appellant to join back his company and, therefore,

the respondent cannot be allowed to take advantage of his

own wrongs. Counsel further submitted that the learned trial

court committed a grave illegality in drawing adverse

inference of her statement during her cross-examination

where she stated that the respondent-petitioner never came

to take her from her parents house after 02.07.1982 to mean

as if she had stayed at her parents‟ house after 02.07.1982 in

contradiction to her claim of staying at the matrimonial home

till 05.07.1982. The contention of counsel for the appellant

was that this date has been mentioned by the appellant in her

cross-examination to explain that the respondent in fact had

never visited her parents‟ house to bring her back after

02.07.1982. Counsel also submitted that the said deposition of

the appellant could not have been read by the learned trial

court in isolation as the same was to be read in conjunction

with her earlier statement wherein she took a stand that she

had taken a lunch at her parental house on 02.07.1982 and

she also denied the suggestion in her cross-examination about

the alleged visit of the respondent to take her back on

11.07.82 or on that date the parents of the appellant had

refused to send her along with the respondent. Counsel for

the appellant further submitted that the respondent had duly

admitted in his evidence that the marriage between the

parties was consummated on the night between 02.07.82 and

03.07.82, but at the same time took a contrary stand by

alleging that the appellant never lived with him from

01.07.82. Counsel also submitted that the respondent took a

contrary stand of his alleged visit on 11.07.82 to the parents

house of the appellant, as in the proceedings under Section

125 Cr.P.C. the respondent alleged such visit on 08.07.82

instead of 11.07.82. Counsel further submitted that the

respondent had showed his reluctance to bring the appellant

back to the matrimonial home before the Social Welfare

Board. Counsel further submitted that the respondent had

even admitted the visit of Mr.Bharat Singh, Counsellor at that

time for the purpose of reconciliation and also the visit of the

workers of the Social Welfare Board for the same purpose.

Counsel also submitted that the appellant was not cross-

examined by the respondent to contradict the deposition in

her examination-in-chief wherein she stated that on 02.07.82

the marriage was duly consummated between the parties.

Counsel also submitted that even no suggestion was given by

the respondent to suggest that the appellant did not stay at

her matrimonial home till 05.07.82 or no Panchayat took

place at the instance of the appellant or the appellant and her

parents did not make any efforts after 05.07.82 for her to go

back to the matrimonial home. Counsel further argued that

the appellant had duly proved on record that she was never

found at the residence of her brother-in-law (jija) Mr.Umed

Singh at Nilothi. Counsel also argued that the decree of

divorce cannot be granted on the ground of irretrievable

breakdown of marriage which is not a ground under Section

13 of the Hindu Marriage Act. In support of his arguments,

counsel for the appellant placed reliance on the following

judgments:-

(i) Subhash Chander Sharma Vs. Anjali Sharma 2010(174) DLT 564

(ii) Suram Pal Singh Vs. Savita 2007(140) DLT 198

(iii) Krishan Kumar Vs. Shankari 2007(142) DLT 177

9. Opposing the present appeal, Ms.Mala Goel,

learned counsel appearing for the respondent submitted that

no fault can be found with the findings given by the learned

trial court in granting the decree of divorce under Section 13

(1) (ia) and (ib) of the Hindu Marriage Act. In support of her

arguments, counsel submitted that the appellant had deserted

the respondent on 01.07.82 with the intention to break the

marriage permanently. Counsel further submitted that the

respondent had sufficiently proved on record that the

appellant was staying with her brother-in-law Shri Umed

Singh at his residence at Nilothi. Counsel also argued that the

appellant miserably failed to prove on record that any demand

of scooter was made by the respondent or his parents.

Counsel further submitted that in criminal proceedings, the

appellant also alleged that the demand of Rs.30,000/- was

made by the respondent along with the scooter which was not

the defence set up by her in the proceedings before the

matrimonial court and such contradictory stands of the

appellant would clearly establish her false claim of setting up

defence of demand of scooter made by the respondent or his

parents. Counsel further submitted that no attempts were

made by the appellant to join back the company of the

respondent at the matrimonial home and instead she had

approached the Anti-Dowry Cell so as to falsely implicate the

respondent and his family members to face the criminal

proceedings. In support of her arguments, counsel for the

respondent placed reliance on the judgment of this Court

reported in Vimal Kanta Vs. J.M.Kohli176 (2011) DLT 527.

10. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration to

the arguments advanced by them.

11. The marriage which was solemnized between the

parties on 30.06.82 turned ruinous within a short period of 24

hours as per the respondent and 5 days as per the appellant.

As per the respondent-petitioner, the appellant did not return

back with the respondent on 01.07.82 when she was taken by

the respondent to her parental house. As per the respondent,

no reasons were advanced either by the appellant or her

parents for not sending back the appellant with the

respondent to the matrimonial home. In para 4 (B) of the

petition, the respondent averred as under.

"4(B). That on 1st of July, 1982, the petitioner and the respondent went to the respondent's parents house at Yusuf Sarai and had lunch there. The parents of the respondent did not send the respondent alongwith the petitioner. The respondent too declined to come alongwith her husband- petitioner without any reason and justification. Therefore,

the petitioner-husband returned back to his residence having been disappointed by the respondent's conduct."

As per the respondent despite making efforts to bring back

the appellant, the appellant did not return and therefore, the

respondent filed a petition for divorce under section 13(1)(ia)

and (ib), i.e cruelty and desertion which vide order dated

18.7.1996 was decreed in his favour.

12. To claim a decree on the ground of desertion as

envisaged in section 13(1)(ib) of the Hindu Marriage Act the

ingredients that need to be proved , so far as the deserting

spouse is concerned it is (i) factum of separation, (ii) the

intention to bring cohabitation permanently to an end i.e

animus deserdendi, and so far deserted spouse is concerned,

(i) absence of consent and (ii) the absence of conduct giving

reasonable cause to the spouse leaving the matrimonial home

to form the necessary intention aforesaid. It is also a settled

legal position that desertion commences when the factum of

desertion and the animus deserendi co-exist. However, it is

not necessary that these two conditions should commence at

the same time as the de facto separation may commence

earlier in point of time without the necessary animus and the

necessary animus may arise later in point of time and then

coincide with the factum of separation. Desertion has no

straitjacket formula and in each case an inference has to be

drawn from the facts of the case. It is the intentional and

permanent forsaking of one spouse by the other without

others consent, and without reasonable cause. This was held

by the Apex Court in the case of Bipin Chander Vs.

Prabhawati AIR 1957 SC 176. Along with explaining the

essential conditions which constitute desertion as a ground

for divorce, the Apex Court in the case of Lachman

UtamChand Kirpalani vs. Meena Alias Mota (1964) 4

SCR 331 while reiterating Bipin Chander(supra) held as

under:

" It would be seen that we have here the interaction of two distinct matters which have to co-exist in order that desertion might come to an end. In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to have regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse

should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where, however, on the facts it is clear that the conduct of the deserted spouse had had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse. It appears to us that the principle that the conduct of the deserted spouse which is proved not to have caused the deserting spouse to continue the desertion does not put an end to the desertion appears to be self-evident and deducible from the legal concepts underlying the law as to desertion."

Thus it is clear from above, that the deserting spouse should

have deserted the other spouse without his consent and

without being there any just and reasonable cause. In a case

of desertion by the deserting spouse there should be reasons

sufficient enough for such spouse not to reconcile with the

deserted spouse. But where the deserting spouse withdraws

not only physically from the marriage but also from the

society of the deserted spouse without any reasonable cause,

the ground of desertion shall be available to the deserted

spouse.

13. Now applying the aforesaid principles of law to the

facts of the case at hand, the appellant ceased to live with the

appellant from 1.7.82 and as per the appellant from 5.7.82.

However it is immaterial as to the date of separation as it is

not in dispute that the parties did not live together thereafter

till the presentation of the petition and thus the essential

condition that the parties must be living for two years

separately before the presentation of the petition stands

fulfilled. Thus the first ingredient of the factum of separation

stands fulfilled.

14. Coming to the next ingredient which is the animus

desrendi, i.e the intention of the appellant to bring the

cohabitation permanently to an end. As per the respondent

petitioner the appellant did not return back from her parental

house on 1.7.82 and the parents of the appellant also refused

to send her back without any justifiable cause. As per the

respondent, he again on 11.07.82 went to the parents house

of the appellant to take her back but again the parents of the

appellant refused to send her back with the respondent. After

a gap of 15 days i.e. in the last week of July, 1982 another

attempt was made by the respondent, but this time the

appellant was found not present at her parents house and he

was told by the parents of the appellant that she had gone to

her brother-in-law Mr.Umed Singh at village Nilothi. After

having learnt this fact, the father of the respondent had called

Mr.Umed Singh on or about 30.07.82 when in the presence of

Shri Daryao Singh, Shri Mohinder Singh, Shri Hanumant

Singh and Shri Sri Lal, uncles of the respondent besides his

family members, Shri Umed Singh blamed his father-in-law

and informed them that the appellant was not staying with

him and in fact she was with her parents. As per the

respondent in the first week of August, 1982, the father of the

respondent again informed him that the appellant was living

with Mr.Umed Singh and acting on this information, Shri

Kalam Singh and Shri Sri Lal visited the residence of Shri

Umed Singh at village Nilothi on 21.08.82. As per the

respondent, on the next day, he along with his mother went to

Shri Umed Singh‟s house, but the appellant refused to

accompany the respondent. On being enquired by the

respondent and his mother the reason as to why she was at

the residence of Mr.Umed Singh, then she replied that it was

her sweet will to go anywhere. As per the respondent, even

Mr.Umed Singh also told them that the appellant is his sister-

in-law and he has every right over her and she has come there

at her own will. No further efforts were made by the

respondent to bring back the appellant and in the year 1983-

84 the appellant filed a report with the Social Welfare Board

and despite the intervention of the Members of the said Board

no reconciliation could take place between the parties. As per

the respondent, the appellant had also taken all ornaments

with her on 01.07.82 and in this manner, the appellant

deserted him since 01.07.82 and the repeated refusal of the

appellant not to return back and the continued stay with her

brother-in-law caused mental cruelty to him.

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

statement took a defence that she was never taken back to

her parents‟ house on 01.07.82. As per the appellant, she was

brought to the parents house around 4 p.m on 02.07.82 and

she returned back with the respondent after having taken

dinner at the parental home at about 9 p.m. It is also the case

of the appellant that on 02.07.82 the respondent was

accompanied by his cousin named Ajit Singh and they

travelled back in the same taxi which brought them to the

parents house and on their way back, the respondent and his

cousin and the taxi driver consumed liquor for about one hour

and then ultimately they reached back at the matrimonial

house around 11:30 p.m It is also the case of the appellant

that the marriage had already been consummated on 01.07.82

and the respondent cohabitated with the appellant upto

04.07.82. It is also the case set up by the appellant that on

05.07.82 in the morning her brother Gian Singh came to take

her to the parents house in accordance with the customs. It is

also the case of the appellant that her brother was humiliated,

taunted and coerced to part with the two-wheeler scooter on

which he had come with the appellant on 05.07.82. It is also

the case of the appellant that she was not allowed to live

peacefully by the parents of the respondent and also the

respondent himself during the said short period between

30.06.82 till 04.07.82, during which time all of them kept

taunting and cursing the appellant and her parents for not

bringing sufficient dowry in the marriage. It is also the case of

the appellant that on 04.07.82 the respondent and her mother

took in possession all the ornaments which were presented to

her from both the sides. It is also the case of the appellant

that the respondent never came to take her back after she

had left the matrimonial home on 05.07.82 along with her

brother. The appellant also denied that she was ever living

with her brother-in-law Umed Singh at village Nilothi. The

appellant also denied that her brother-in-law was ever called

by the father of the respondent at Sultanpur Mazra or Shri Sri

Lal and Shri Kalam Singh ever paid visit to the house of the

appellant or at the house of Shri Umed Singh at Nilothi or the

respondent and his mother found the appellant present at the

house of Shri Umed Singh on 22.08.82. The appellant also

submitted that the divorce petition filed by the respondent

was in fact a counter blast to the complaint filed by the

appellant with the Anti-Dowry Cell. The appellant also took a

stand that a criminal case was registered against the

respondent, father, mother, brother, sister and uncle of the

respondent and they were arrested by the police for

committing offences under Section 498-A/406 IPC and later

on were enlarged on bail. The appellant in the written

statement also took a plea that her parents and Shri Umed

Singh received messages through one Shri Bhagwan Singh

who was a mediator for arranging the said marriage

regarding the demand of a two-wheeler scooter made by the

respondent and his parents. In the background of the said

facts, the appellant in her written statement submitted that

since 05.07.82 she was deserted by the respondent and no

efforts were made by the respondent to take her back even

despite repeated panchayat meetings and efforts made by the

area MLA Shri Bharat Singh.

16. Based on the above pleas of the parties, the learned trial

court held that no such conduct of the respondent was proved

on record which could have compelled the appellant to leave

the matrimonial home. The learned trial court further found

that based on the evidence led by the respondent it was

sufficiently proved on record that repeated efforts were made

by the respondent to visit the house of the appellant to bring

her back. The learned trial court further found that even the

parents of the respondent had gone to the house of Shri Umed

Singh and even Shri Umed Singh was called to their Village to

be told not to keep the appellant with him and send her back

to the respondent being her legally wedded wife. The learned

trial court also found that the respondent and his mother

went to the house of Shri Umed Singh in Nilothi so as to

persuade the appellant to return to the matrimonial home but

with no result. The learned trial court further found that the

appellant did not examine Smt.Prem and Shri Umed Singh

who were very material witnesses to deny the version of the

respondent about stay of the appellant at Umed Singh‟s place,

therefore, adverse inference was drawn against the appellant.

The learned trial court although found that the appellant

failed to prove that she had been living apart from the

respondent since 05.07.1982, but in any case the learned trial

court also found that no effort was made by the appellant or

her family members to send her back to the matrimonial home

even if the date of her returning back to the matrimonial

home on 05.07.1982 is taken as correct. The learned trial

court observed that as per ordinary course of human

behaviour even if the respondent had not come to take her

back after few days, then certainly the appellant could have

gone back to the matrimonial home herself or her parents

should have taken her to the matrimonial home with a view to

rehabilitate her in the matrimonial home. With regard to the

alleged stand of the appellant that some meetings were held

with the members of the Panchayat, the learned trial court

found that the allegations in this regard were absolutely

vague and the same could not be proved by the appellant.

17. The learned trial court has examined the evidence

adduced by both the parties in detail and has given an

extensive judgment holding the respondent husband entitled

to the decree of divorce. On examining the evidence adduced

by both the parties, it is quite manifest that the appellant has

miserably failed to disclose any reasons, much less the

justifiable reasons for bringing the cohabitation with the

respondent permanently to end. The learned trial court has

not believed the case of the appellant that any demand of two

wheeler scooter was made by the respondent or his parents,

or the appellant and her brother were told not to send the

appellant till the said demand of two wheeler scooter is

fulfilled by the appellant and her parents. The learned trial

court also referred to the contradictory pleas raised by the

appellant in her written statement and in her evidence as

well as the stand taken by her in the criminal case wherein

the demand of two wheeler scooter, monetary demand of

Rs.30,000/- was also alleged to have been made by the father

of the respondent at the time of „bidha‟ ceremony. The trial

court further found that the allegation leveled by the

appellant in the written statement with regard to the alleged

demand of dowry are not very clear and specific as very

vaguely the appellant in para 4 (b) of the written statement

took a stand that during the period i.e. 30.6.82 to 4.7.82 she

was not allowed to live peacefully by the respondent and his

parents as they kept on taunting and cursing her and her

parents as they were not satisfied with the dowry given by

her parents at the time of marriage. The trial court also

found that it was not the case of the appellant either in the

written statement or in the evidence that she was forcibly

turned out of the matrimonial house thereafter. The trial

court also observed that the appellant failed to prove the

exact dates, months or years as to when the alleged

panchayat‟s meetings took place so as to resolve the

conflicts of the parties. The trial court also observed that the

appellant has not filed any record to prove any copy of

complaint/report of the proceedings of the Anti Dowry Cell or

the Social Welfare Board where she had made her first

complaint, so as to prove any efforts made by the appellant

for reconciliation of the dispute with the respondent.

18. In my considered view, no fault can be found with

the said findings of the learned trial court. The appellant has

nowhere in her written statement or evidence asserted or

claimed that she made efforts to go back to her matrimonial

home or her parents tried to send her back. It is surprising

that the parents of a daughter who has just been married for

a day would not want to send her back or at least make any

effort to send her back. The appellant has also not been able

to prove that the in laws demanded a two wheeler or

Rs.30,000 or in any manner taunted her for bringing

insufficient dowry. It is surprising that with the marriage on

30.6.82 and the appellant going to the parental house on

1.7.82, where was the opportunity for the in laws to taunt her

for getting insufficient dowry or she could be so seriously

troubled with their conduct that she decided not to come back

forever. The appellant laid much stress on the fact that the

respondent refused to take her back when there were

reconciliation proceedings before the Social Welfare Board. It

is not surprising that the respondent reacted in the

irresponsive manner, as the reconciliation proceedings were

started after the appellant filed a complaint with the anti-

dowry cell accusing her in laws of a criminal offence, and

thereafter getting them arrested for offence under section

498-A/406 IPC, which would have naturally antagonized the

respondent to take her back. It is also the case of the

appellant that the marriage of the parties had already been

consummated on 1.7.82, while this fact has been disputed by

the respondent who has deposed that as per the customs

prevailing in their family the marriage is not consummated on

the first night. It is immaterial of whether the marriage was

consummated or not or as to when it was consummated as the

appellant has maintained the stand that she has lived with the

respondent till 5.7.82. The relevant question to be examined

in the facts of the case as to whether the appellant had left

the matrimonial home with an intention to permanently bring

cohabitation to an end and secondly whether there was a

reasonable cause on the part of the appellant to leave the

matrimonial home due to the conduct of the respondent. As

already discussed above, the appellant has failed to justify

her conduct for not returning back to the matrimonial home,

despite repeated efforts made by the respondent. The

learned trial court has also not believed the theory of demand

of two wheeler scooter put forth by the appellant on account

of inconsistency raised by the appellant in her pleadings and

in her evidence and also because of divergent stand taken by

her in the criminal case filed by her under Sections 498A and

406 IPC. It is true that the deserted spouse must establish on

record that sufficient efforts were made by him to bring the

deserting spouse to the matrimonial home but it is equally

true that the deserting spouse cannot be expected to sit back

at the parental home for no justifiable grounds and not to

return back to the matrimonial home. Neither in the written

statement nor in the evidence the appellant has shown

making any such efforts to return back to the matrimonial

home while on the other hand the respondent has successfully

proved on record due efforts made by him to bring back the

appellant to the matrimonial home. Taking into consideration

the aforesaid, no infirmity or illegality can be found with the

findings of the learned trail court as far as the ground of

desertion is concerned.

19. The petitioner also claimed divorce on the ground

of cruelty as envisaged in section 13(1)(ia), which finding was

given in favour of the respondent and the decree of divorce

vide the impugned passed. The appellant has also averred

that in the present appeal the respondent has not argued the

ground of cruelty and thus the same is deemed to have been

abandoned by the respondent. Making cruelty as a ground for

divorce in conjunction with the ground of desertion has

become a common practice but it cannot be lost sight of the

fact that the two are completely distinct grounds and have

different barometers on which they are judged. The

respondent has not averred any instance of cruelty strongly or

has made a case that the conduct of the appellant was such so

as to cause mental agony so that they are not able to live with

each other. Hence, the findings of the learned trial court on

the ground of cruelty are hereby set aside.

20. Before parting with the judgment, the agonizing

facts of the case need to be reiterated. The appellant was of

20 years of age and the respondent 22 when they got married

in 1982. The petition for divorce was filed by the respondent

husband 5 years after the marriage i.e in 1987, and the

decree of divorce granted in 1996. The present appeal was

filed by the appellant before this court in 1996 itself and has

come for the final decision in the year 2012. The fact that the

parties who stayed together for a mere 24 hours spent close

to 30 years in alleys of courts to get rid of each other, is

nothing but appalling to say the least. The institution of

marriage, which is considered the holy union of two souls, is

made mockery of by such like cases and it is no wonder that

the relevance of this pious bond is under scanner by the youth

today. Each marriage has its bittersweet moments which are

cherished by the couple in the sunset of their lives. The

companionship of the years spent together is a comforting

pillar of strength in their old age and it is most unfortunate

that the parties in the present case were devoid of making

any such memories, more so because of their own faults. This

poignant adjudication has again drawn the mind to wonder

about the litigative voyage in our courts, especially in

matrimonial cases, which leaves the parties with no hope,

zeal, or time to start their lives afresh. It would also be

pertinent to mention here that as per the mandate of section 9

of The Family Courts Act, 1984 and section 23(2) of the Hindu

Marriage Act, the Matrimonial Courts should make every

positive endeavour to bring about reconciliation between the

parties so that the matter can be amicably settled on mutually

acceptable terms at the very threshold. The courts should

make efforts at the initial stage itself so that the burden of the

courts is also lessened and the parties are also saved from the

arduous litigation. The services of the mediators and

counselors especially appointed for this purpose are at the

disposal of the Family Courts, and should be utilized to the

fullest so that parties are reconciled or agree to part mutually

and amicably. Let the object of section 9 of the Family Courts

Act and section 23(2) HMA not be defeated by a ritualistic

exercise but a concerted, cohesive and conscientious effort on

the part of the Matrimonial Courts to bring the parties to a

pacific agreement. In-time intervention of the courts dealing

with marital disputes with devotion of sufficient hearings at

the initial stage itself may save such parties this long ordeal.

The courts should make sustained and persistent attempts

even when the pleadings are complete and evidence led, as it

will certainly yield potent results. The present case is nothing

but a venomous irony that the vengeance which was caused in

one day between the parties was nurtured by them for three

decades, and I hope that they realize that it has bereft them of

everything that matrimonial life would have instore, leaving

them now with nothing but remorse.

21. In the light of the above, the present appeal is

dismissed.

22. Let the copy of this judgment be sent to all the

Matrimonial Courts functioning in various District Courts at

Delhi.

January,     2012                   KAILASH GAMBHIR, J
Dc/mg