Smt. Rekha Rani vs Dr. Brajender
2014 Latest Caselaw 6076 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of Decision: November 24, 2014
+     MAT.APP. 101/2009
      SMT REKHA RANI                                        ..... Appellant
                  Through:                Mr. Rakesh Tiku, Senior Advocate
                                          with Mr. Neeraj Malhotra, Mr.
                                          Virat K. Anand & Mr. Vivek Ojha,
                                          Advocates
                            versus

      DR. BRAJENDER                                          ..... Respondent
                            Through:      Mr. P.S.Singh, Advocate with
                                          respondent in person

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR
                            JUDGMENT

% (ORAL)

Impugned judgment of 18th August, 2009, grants divorce to respondent herein on the ground of desertion. It is pertinent to note that respondent had also sought divorce on the ground of cruelty, but respondent had failed to prove it. The factual background of this case already stands noted in the opening paragraphs of the impugned judgment and needs no reiteration.

Suffice it would be to note that parties were married on 30th June, 2001 at Dhanbad and after marriage, appellant had remained at her matrimonial house in Dhanbad but in September, 2001, she had come to Noida and had started living with her brother. Appellant has deposed in her evidence that she had come to Noida for doing diploma course in

MAT App No.101/2009 Page 1 Financial Management from Amity Business School. It is the case of appellant that on 30th June, 2002, she had started living with respondent- husband in the family accommodation allotted to him. It is the case of respondent-husband that behavior of appellant with respondent was very inhuman and she used to insult him and quarrel with him. However, in the written statement, appellant-wife had denied the allegations of cruelty leveled against her and had maintained that she is still ready and willing to live with respondent-husband provided she is not ill-treated.

Appellant-wife had deposed as RW-1 and respondent-husband had deposed as PW-1 before trial court and had got Mr. Avdesh Kumar, his brother-in-law (Jija) examined as PW-2 in support of averments made in his petition for divorce. Trial court vide impugned judgment has rejected respondent-husband's version of being subjected to cruelty by appellant- wife but has granted divorce to respondent-husband on the ground of desertion while holding that appellant-wife is an educated lady and it was difficult to presume or believe that she would not be aware of her rights and she had not made any efforts to re-establish the conjugal ties between the parties. Trial court has found that Avdesh Kumar (PW-2), who had accompanied respondent-husband to Dhanbad for reconciliation, has not been cross-examined regarding appellant-wife and her parents refusing to send appellant-wife with respondent-husband. It is also noted that in the presence of Avdesh Kumar (PW-2), appellant-wife had abused respondent-husband and on this aspect also, there is no cross- examination. Thus, trial court has concluded that appellant-wife had deserted respondent-husband.

MAT App No.101/2009 Page 2 To assail the impugned judgment, learned senior counsel for appellant contends that the deposition of Avdesh Kumar (PW-2) and Dr. Naveen Kumar (PW-3) relied upon by the trial court was beyond the pleadings. It is pointed out that in the petition for divorce, it is categorically stated that Gajender, brother of respondent-husband had accompanied him to Dhanbad for reconciliation but he has not been got examined. The contradiction between the divorce petition and the evidence led by respondent-husband, as pointed out by learned senior counsel for appellant, is that as per divorce petition, respondent-husband had gone to Kumardhubi with younger brother Gajendra but in the evidence, respondent has maintained that in April, 2006, a meeting was called at the residence of appellant-wife's brother at Kolkata where he was threatened. Pertinently, there is no cross-examination of respondent- husband regarding meeting of 9th April, 2006 in Kumardhubi. Learned senior counsel for appellant, had concluded his arguments by submitting on instructions that appellant was earlier also willing to live with respondent-husband and is now also eager to live with respondent- husband wherever he lives.

To support the impugned judgment, learned counsel for respondent has drawn attention of this Court to cross-examination of Avdesh Kumar (PW-2) who had gone to Dhanbad to meet appellant-wife to persuade her to come back. Attention of this Court was also drawn to cross- examination of Dr. Naveen Kumar (PW-3), a friend of respondent- husband, to point out that respondent had requested him to arrange for accommodation and house hold articles required for the newly wedded

MAT App No.101/2009 Page 3 couple. It was also pointed out that deposition of Avdesh Kumar (PW-2) corroborates the version of respondent-husband and so, there is no infirmity in the impugned judgment.

When this Court confronted respondent with the offer of appellant- wife to unconditionally live with respondent-husband wherever they choose to reside, learned counsel for respondent-husband on instructions from respondent-husband had submitted that respondent-husband is not ready to live with appellant-wife.

After having heard both the sides and on perusal of impugned judgment and the evidence on record, I find that the plea of desertion must be specifically raised and cannot be inferred. The two essential conditions which must exist for establishing desertion, as spelt out by Apex Court in Bipinchandra Jaisinghbai Shah Vs. Prabavati AIR 1957 SC 176, are as under:-

"10. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid."

In the instant case, respondent-husband has nowhere stated in his evidence as to when appellant-wife had deserted him. Merely because appellant-wife had stayed at Noida for completing her diploma course in Finance Management, would not show that she had

MAT App No.101/2009 Page 4 deserted respondent-husband.

It is the categoric stand of appellant-wife that she had not ill- treated her husband and infact, the precise stand taken by her is that she was harassed and treated with cruelty and was compelled to return to her parental house. Rather, it has come in evidence of respondent- husband that he had no accommodation and was staying with his relatives and no document has been filed by him to show that he had applied for residential accommodation. Thus, it cannot be said that appellant-wife had no intention to live with her husband.

The evidence led by respondent-husband is clearly beyond pleadings and is discrepant. The evidence of Dr. Naveen Kumar (PW-

3), a friend of respondent-husband, does not show that appellant-wife had deserted respondent-husband. No steps were taken by respondent- husband for rapprochement and so appellant-wife, who was the wronged spouse, cannot be said to have deserted respondent-husband. Unwillingness of respondent-husband to live with appellant-wife without any justifiable cause warrants dismissal of this petition for divorce on the ground of desertion.

In the aforesaid view, impugned judgment is rendered unsustainable and is hereby set aside. Respondent-husband's petition for divorce on the ground of cruelty and desertion stands dismissed.

                                                       (SUNIL GAUR)
                                                         JUDGE
NOVEMBER 24, 2014
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MAT App No.101/2009                                                    Page 5