Sahebrao Kashinath Muneswar vs Smt Sanbodhi & Supreiya
2014 Latest Caselaw 7124 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision: December 23, 2014

+     MAT.APP. 27/2012
      SAHEBRAO KASHINATH MUNESWAR             ..... Appellant
                  Through: Mr. Sudhir Batra, Advocate

                         versus

      SMT SANBODHI & SUPREIYA                ..... Respondent
                   Through: Ms. Anu Narula, Amicus Curiae
                            Counsel & Mr. Kunal Arora,
                            Advocate

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

% (ORAL)

Impugned judgment of 16th February, 2012 declines divorce to appellant on the ground of desertion. The facts of this case are already noted in the opening paragraph of the impugned judgment and needs no reproduction. Suffice it would be to note that the parties were married on 22nd May, 2008 and as per appellant-husband, respondent-wife had deserted him on 17th July, 2008 and appellant had filed petition under Section 9 of the Hindu Marriage Act seeking restitution of the conjugal rights and an ex parte decree in favour of the appellant was passed on 28th October, 2009.

Appellant in the petition seeking divorce had submitted that despite his best efforts to bring back the respondent to the matrimonial house, he

MAT.APP.No.27/2012 Page 1 had not succeeded. Respondent was ex parte before the trial court. Appellant had led ex parte evidence by way of affidavit. Trial court in the impugned judgment had chosen not to rely upon the ex parte evidence because the averments made in paragraph No. 7 of the divorce petition as well as paragraph No. 6 of the ex parte evidence by way of affidavit does not stand substantiated.

At the hearing of this appeal, learned counsel for appellant had relied upon decisions in Laxmibari Laxmichand Shah Vs. Laxmichand Ravaji Shah AIR 1968 Bombay 332; Dharmendra Kumar Vs. Usha Kumar AIR 1977 SC 2218 & Ganja Devi Vs. Purshotam Giri 1978 HLR 116 to submit that as per Section 13 (1A) of The Hindu Marriage Act, the only requirement is that there is no resumption or co-habitation between the parties for a period of one year onwards and in the instant case, respondent had deserted appellant within two months of their marriage and so, the impugned judgment deserves to be set aside and appellant's petition for divorce be accepted.

Learned Amicus Curiae counsel for respondent relied upon decisions in Anil Jayantilal Vyas Vs. Sudhaben AIR 1987 Gujrat 74 & Hirachand Srinivas Managaonkar Vs. Sunanda (2001) 4 SCC 12 to submit that before divorce is granted, every effort should be made to save the marital relationship between the parties. It is submitted that in the instant case, appellant had made no efforts to call back respondent and so, appellant is not entitled to divorce on the ground of desertion. It was pointed out that decisions relied upon by the appellant are of no avail because a party cannot take benefit of his own wrong and the conduct of appellant has not been bona fide, as he had made no efforts to resume co-

MAT.APP.No.27/2012                                                  Page 2
 habitation.

Upon hearing and on perusal of the impugned judgment, material on record and the decisions cited, I find that mere recital of the ingredients of Section 13 (1A) of the Hindu Marriage Act by itself is not enough and the appellant has to show that he had made any genuine efforts to resume cohabitation with respondent. It is not the case of appellant that he had written any letter or e-mail to the respondent and had asked her to join his company. Trial court in the impugned judgment has rightly held that it is an empty claim of appellant that he had made efforts to bring back respondent after obtaining ex parte decree of restitution of conjugal rights. The decisions relied upon by appellant are of no avail to the case of appellant because the appellant has made no genuine effort to resume cohabitation with respondent. By simply obtaining decree for restitution of conjugal rights and thereafter by filing petition for divorce on the ground of desertion, as appellant has failed to show that any bona fide efforts were made to resume the matrimonial relations with respondent.

This Court is of the considered view that the ex parte evidence on record is not sufficient for the appellant to obtain decree for divorce on the ground of desertion.

Consequentially, finding no merit, this appeal is dismissed.

                                                        (SUNIL GAUR)
                                                          JUDGE

DECEMBER 23, 2014
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MAT.APP.No.27/2012                                                   Page 3