Jharkhand High Court
Meera Devi Wife Of Rajendra Prasad Pal vs Rajendra Prasad Pal Son Of Sri Lallu ... on 29 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 104 of 2012
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Meera Devi wife of Rajendra Prasad Pal, daughter of Late Ram
Balak Ram, Resident of village-Khergaon, P.O.-Hazaribagh, P.S.
Sadar, District-Hazaribagh (Jharkhand)
... ... Appellant
Versus
1.Rajendra Prasad Pal son of Sri Lallu Mahato, Resident of Pardih,
P.O. & P.S. Mango town, Jamshedpur, District-Singhbhum East
(Jharkhand) ... ... respondent/petitioner
2.Birendra Pal son of not known, resident of village Khergaon,
P.O. Hazaribah, P.S. Sadar, District - Hazaribagh (Jharkhand)
... ... Respondent/2nd Opp. Party
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Nehru Mahto, Advocate
For the Res. No. 1 : Mr. Umesh Kumar Choubey, Advocate
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Order No. 10 : Dated 29th April, 2025
Prayer:
1. The instant appeal has been filed challenging the
legality and propriety of impugned judgment passed on
15.03.2012 by the learned Principal Judge, Family Court,
Jamshedpur whereby and whereunder the Matrimonial Suit
No. 227 of 2007, filed by the respondent-husband under
Section 13(1)(ib) of the Hindu Marriage Act, 1955 for a decree
of divorce, has been allowed.
Factual Aspect:
2. The facts, briefly narrated in the plaint, is that the
marriage of the petitioner-husband(respondent no.1 herein) was
solemnized on 19.02.1988 with the opposite party 1- wife,
appellant herein, according to Hindu rites and custom. After the
marriage they lived together as husband and wife. It is further
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case of the petitioner-husband that Opp. Party-wife left the house
of the petitioner-husband along with her ornaments and other
articles on 26.02.1988 in absence of the petitioner-husband, when
the petitioner-husband had gone to the official duty. Thereafter,
the petitioner-husband searched his wife hither and thither but he
did not find her.
3. However, the petitioner-husband learnt from several persons
that his wife has illicit relationship with Opp. Party No. 2, the
respondent no. 2 herein, and they are living as husband and wife
at Hazaribagh. It is further alleged that the his wife, Meera Devi is
leading an adulterous intimacy with the opposite party no. 2,
namely, Birendra Pd. brother in law (Bahnoi) since before
marriage and after marriage of the petitioner also. However, it is
alleged later on the opposite party-wife on 26.02.1988 left the
house of the petitioner and since then she is residing at
Hazaribagh with her mother and brother. It is further alleged that
the opposite party-wife, namely, Meera Devi has taken medicine
regularly for abortion before marriage and after marriage. The
petitioner and his family members though tried their best and
persuaded the opposite party-wife to give up the bad habit and
leading an adulterous life but there was no effect on her.
4. It is further averred in the plaint, as taken note in the
impugned order that the cause for this petition arose on
26.02.1988 when the opposite party-wife first voluntarily deserted
the petitioner and on 01.04.1988 when the petitioner saw the first
opposite party and the second opposite party committing
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adulterous act. Under such circumstances, the petitioner filed suit
seeking divorce after dissolution of marriage of the petitioner-
husband with the opposite party No.1-wife.
5. The opposite party/wife appeared before the family court
and filed the written statement alleging inter alia that according to
Hindu rites and custom the marriage was solemnized in presence
of the both the parties. The opposite party-wife, denying the
statement made by the husband, has alleged that it is not a fact
that the opposite party-wife has left the house of the petitioner-
husband but she was badly beaten by the petitioner-husband and
thrown out from his house. The opposite party-wife has further
stated that the petitioner-husband is making a false and
concocted allegation upon the opposite party 1 and 2 in the suit.
She has also denied that she is leading an adulterous life, she is
chaste lady, rather she has stated the petitioner is imposing a
false allegation and left the opposite party no.1-wife because the
petitioner has kept a second wife and the petitioner has several
children from his second wife and the petitioner had been living
with her. Therefore, it is prayed that the suit of divorce as filed by
the petitioner may be dismissed with cost.
6. The learned Principal Judge, after hearing learned
counsel for the parties, allowed the suit, against which, the
instant appeal has been filed.
Submission by the appellant-wife:
7. The learned counsel appearing for the appellant-wife
has submitted that the learned family court without taking
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into consideration the availability of the ground of desertion
has allowed the suit on the ground of proved desertion since
the appellant and the respondent are living separately for the
last 20 years.
8. It has been submitted that the desertion is required to
be established and as per the interpretation of the word
„desertion‟, the Court has to come to the conclusive finding
that the wife on her own wish has left the matrimonial house
and parted away with the husband but if the impugned
judgment will be taken into consideration, it would be evident
that there is no consideration to that effect and no material
has come as per the evidence as was put forth by the
husband in course of trial.
9. Learned counsel has further submitted that even no
permanent alimony has been given, though the respondent
no.1-husband has contracted second marriage, hence the
very survival of the appellant-wife is at stake as to how she
will survive.
10. Learned counsel has submitted that endeavor although
has been taken by this Court for settlement of the matter by
granting permanent alimony so as to put the lis an end, as
would be evident from order dated 25th April, 2025, but the
respondent no.1-husband, who is duty bound to take care of
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her wife, did not agree to pay the permanent alimony, as
such the matter has been heard on merit.
Submission on behalf of respondent no. 1-husband:
11. While on the other hand, learned counsel appearing for
the respondent no.1-husband, defending the impugned order,
has submitted that there is no error in the impugned
judgment. It has been contended that the appellant-wife is
now living separately for the last more than 30 years and the
same has been taken to be a sufficient ground to come to the
conclusion of desertion and taking these facts into
consideration, the learned family court has decided the suit
in favour of husband by dissolution of marriage.
Analysis:
12. We have heard learned counsel for the appellant-wife
and learned counsel for the respondent-husband, perused
the material available on record and the finding recorded in
the impugned order as also the Trial Court Record, which
was called for by this Court vide order dated 22.08.2024.
13. On the basis of pleadings available on record as also
argument advanced on behalf of parties, the sole question
which fell for consideration before this Court is as to -
Whether the judgment and decree of divorce passed on the
ground of desertion under Section 13(1)(ib) of the Hindu
Marriage Act, 1955 requires interference?
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14. This Court in order to answer the aforesaid issue needs
to refer herein the admitted factual aspect of the matter.
15. The suit decree of divorce was filed by the husband on
the ground of desertion taking the ground that the wife is
living separately for the last 20 years.
16. The learned family court called upon the opp. party no.
1-wife and opp. party no. 2-brother-in-law of opp. party no.1-
wife, who had filed written statement denying the allegation
of desertion. It appears from the impugned judgment that
against opp. party no. 2, the allegation of adultery was made,
but that issue was not raised by the parties in course of
argument, as such the same was not dealt with by the trial
court and there is no finding to that effect, although the
husband taking the ground of adultery has made statement
that her wife left the matrimonial house.
17. Therefore, the core issue i.e., Issue No. 4 fell for
consideration before the family court as to Whether the
appellant (Opposite Party No. 1) deserted the petitioner-
husband for a continuous period of not less than two years
immediately preceding the presentation of the petition.
18. The parties have led evidence on that issue. For ready
reference, the testimony of the witnesses on this issue, as
taken note of by the learned family judge is quoted as under:
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19. P.W.1 - Kanahiya Lal Pathak has fully supported the
entire case of the petitioner as mentioned in the plaint. He
deposed that the marriage of the petitioner was solemnized
on 19.2.1988 with the opposite party no.1 at Hazaribagh and
after the marriage she accompanied with her husband. The
Opposite Party No.1 came to her husband house on
20.02.1988. He has further stated that when he went to the
petitioner's house on 21.02.1988 then on enquiry, he came to
know that the marriage has not been consummated between
the husband and wife. In para 6 of his examination-in-chief
he has deposed that on 26.02.1988 the petitioner came to his
house and informed him that his wife has fled away from his
house. Lastly in para 10 he has deposed that he learnt from
several persons that the wife of the petitioner Meera Devi has
illicit relationship with one Birindera pal [O.P. No. 2-the
respondent no. 2 herein].
20. In his cross examination, he has admitted this fact that
he has no knowledge about the case filed by the petitioner. In
para 12 he has stated the petitioner never filed any case at
the police station about the absconding of the opposite party
no.1 from the house. In para 13 of his cross-examination he
has admitted that the respondent no.2 lives in Khirgaon at
Hazaribagh but neither he nor the petitioner went to
Khirgaon.
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21. P.W.2 -Jay Karan has also fully supported the entire
case of the petitioner as mentioned in the plaint. In para 6 of
his evidence he has deposed that on 26.02.1988 the
petitioner came to his house and informed about the
absconding of his wife. He has further stated that on
27.02.1988 he saw the opposite party no.1 Meera Devi in the
bus of Hazaribagh and thereafter he and his friend Md.
Fazaal informed the petitioner that the opposite party no. 1
went to Hazaribagh with Birendra Pal. He has further stated
that thereafter the petitioner went to Hazaribagh to look after
the respondent no.1/wife, but the respondent no.1 Meera
Devi never returned to her matrimonial house. In para 17 of
his cross-examination he has admitted that he has no
knowledge whether the petitioner was searching to her wife
after returning him from the house of the petitioner. In para
18 he has stated that it is not a fact that the respondent no.1
was not fled away from the house of the petitioner.
22. P.W.3 Md. Afzal has also fully supported the case of the
petitioner-husband as mentioned in the plaint. He deposed
that the marriage of the petitioner was solemnized with the
respondent no.1 on 19.02.1988 and after marriage the
respondent no.1 came to the house of the petitioner on the
next date i.e. on 20.02.1988. In para 10 of his evidence he
has stated that on 26.02.1988 the petitioner reached his
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house and informed that his wife has fled away from his
house and requested for search of his wife. In para 12 he has
deposed that when he reached at the Sakchi Bus stand on
27.02.1988 then he saw that the Opp. party no. 1-Meera Devi
and Birendra pal, respondent no. 2, seated in the bus of
Ranchi. In para 13 he has further stated that on 28.02.1988
when he returned back to Tata then informed the petitioner
and his parents about absconding of the Opp. party no.1-
Meera Devi and Birendra pal to Hazaribagh. In para 14 he
has stated that after receiving the information the petitioner
went to Hazaribag take her back, but the Opp. party no.
1/his wife never came back and from that period Meera Devi
is living there. In para 23 of his cross-examination he has
further deposed that he has no any knowledge that the Opp.
party no.1 has filed any case against the petitioner for her
maintenance at Hazaribagh. Lastly in para 24 of his cross
examination he has deposed that it is not fact that the
petitioner drove the respondent no.1 from his house after
beating her.
23. P.W.4 - Ram Kumar Pal, was known to both parties. He
has also fully supported the entire case of the petitioner as
mentioned in the plaint. He also admitted the fact of marriage
of the parties solemnized on 19.02.1988 at Hazaribagh. In
para 8 he has stated that he has got information that the wife
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of the petitioner is not satisfied from her marriage and
therefore he has returned back to her house. In para 9 he has
deposed that thereafter he has got information about the
absconding of the wife of the petitioner on 26.02.1988. In
para 11 he has further stated that he has also got
information that the Opp. party no.1 Meera Devi fled away
with her Bahnoi, Birendra Pal to Hazaribagh. In para 12 he
has further deposed that thereafter after getting information
the petitioner went to Hazaribagh for taking back to his wife,
but his wife did not return to his house. In the same para, he
has further stated that he has also got information from the
society that Meera Devi has illicit relationship with her
Bahnoi, Birendra Pal from very beginning. None turned up on
behalf of the respondents to cross examine this witness even
after repeated calls, hence he was discharged.
24. P.W.5 Ramjee Pal has also fully supported the case of
the petitioner and corroborated the entire facts mentioned in
the plaint by the petitioner. He also admitted the fact of
marriage solemnized on 19.02.1988. He has further deposed
in para 10 of his examination-in-chief that he has got
information that Meera Devi, the wife of petitioner has fled
away from the house of the petitioner and later on he has
also got information that Meera Devi fled away with her
Bahnoi, namely, Birendra Pal to Hazaribagh. He has further
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stated that when the petitioner-Rajendra Pd.Pal went to
Hazaribagh to bring back the respondent No.1-wife to his
house she totally refused to come back and now she is
leading life with said Birendra pal, the respondent no. 2. In
para 15 of his cross-examination he has admitted that in the
house of the petitioner, his mother, the wife Neha three
nephews and two children of Neha are living. The said
witness has also admitted in para 19 of his cross examination
that he has got information about the absconding of the
opposite party no.1, but he did not know the person who has
given the said information to him. Lastly in para 22 of his
cross examination he has stated that he has given his
statement at the instance of the petitioner.
25. P.W.6 Rajendra Prasad Pal, the petitioner himself, has
fully supported the case as made out in the plaint by him. He
admitted the fact that his marriage was solemnized on
19.2.1988 with the opposite party no.1 Meera Devi. In para
10 of his testimony this witness has stated that he returned
back to Jamshedpur with Meara Devi on 20.02.1988 at night,
but till the date i.e., on 25.02.1988 his marriage did not
consummate with Meera Devi, his wife. In para 12 of his
examination-in-chief this witness has deposed that his wife
the opposite party no.1 had taken the medicine and on
enquiry from the doctor about the medicine this witness has
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got knowledge that the medicine was for abortion and
therefore on 24.02.1988 the pregnancy aborted. In para 13 of
his evidence he has deposed that on 26.02.1988 at 4.00 P.M.
his wife Meera in his absence fled away from his house along
with her ornaments. In para 15 of his evidence he has further
stated that on 28.02.1988 he has also got information that
his wife Meera Devi has absconded with her Bahnoi, Birendra
Pal. This witness has further stated that when on 01.04.1988
he went to Hazaribagh to bring back his wife to his house, his
wife Meera Devi has totally refused to come back and said
that she is not interested to live with him.
26. In Para 26 of his cross examination, he has admitted
that he knows the brother and brother in-law of Meera Devi
but they did not enquire him that from whose person the
respondent no.1 Meera Devi has illicit connection. He has
further stated that Birendra Pal is living with her at home as
Ghar Jamai. In para 29 of his cross-examination he has
deposed that on 01.04.1988 he along with Ramjee Pal went to
his Sasural to bring back the his wife Meera but she has
totally refused to come back with him saying that she will not
live with an old man. In cross-examination he has stated that
in the year 1997 he has seen from his own eyes that Meera
Devi was sleeping with Birendra Pal in his room. Lastly in the
same para he has stated that it is not a fact that he has
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solemnized his second marriage and from the said marriage
there are children.
27. P.W. 7- Rajendra Prasad is an advocate of the applicant
at Hazaribagh, and in para 6 of his cross-examination he has
stated that he got the document under the R.T.I. but he has
no knowledge that when and what has been written in the
said document and further he has also admitted in the same
para that he himself not checked the school register and the
entire letter, which has been exhibited in this case, and the
same has not been prepared in his presence. In para 7 of his
cross examination he has deposed that since the year 2009
the applicant Rajendra Pd. Pal is his client and Misc. case No.
1/2009 has been filed at Hazaribagh for maintenance, in
which he is advocate of the applicant.
28. The opposite party-wife has examined three witnesses.
D.W.1-Rajesh Kumar has stated in his examination in chief
at para 5 that his sister (Meera Devi) was living peacefully
about 3/4 months in her matrimonial house but later on the
petitioner started to misbehave with her on very small matter.
In para 6 of his evidence he has further deposed that in the
year 1989 one son was born and Opp. Party No.1 lived only
one year and thereafter the husband and his family members
drove her and along with Child out from her matrimonial
home and since then he and his brothers are maintaining her
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and her son (Bhagina). In para 9 of his evidence he has
further stated that the petitioner has solemnized second
marriage and to save his skin he has filed this false case. In
para 10 of his evidence he has further stated the applicant-
husband, is a government servant whereas the respondent
no.1 (his sister) has no source of income to maintain herself.
In para 15 of his cross examination he has stated that he
does not know about the second marriage of the applicant
and also for his children, but he has got knowledge about the
second of marriage of the applicant from his sister.
29. D.W. No. 2, Niranjan Pal, has fully supported the case
of the wife. He is brother of the opposite party no.1. He has
stated that a son was born out of the wedlock of the opposite
party no. 1 and petitioner-husband, but after one year on a
very small matter, the petitioner-husband and his family
members drove the respondent no.1 from his house and since
that date his sister (Opposite party no. 1) are living with him
and he and his brother are maintaining her and her son. In
para 9 he has deposed that the petitioner has solemnized
second marriage and from the said marriage children are
born and due to said fact he has filed this false case to save
his skin. In para 13 of his cross-examination he has stated
for her maintenance his sister has filed the maintenance case
at Hazaribagh.
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30. D.W.3 - Meera Devi is the opposite party no.1-wife
herself. In her evidence, she has narrated what has been
mentioned in her written statement. In para 3 of her evidence
she has stated that the petitioner and his family members,
after solemnization of the marriage, were have good relation
with her, but after one year of the said marriage they started
to assault her and lastly after beating her the petitioner and
his family members drove the opposite party no.1 from her
matrimonial house. In para 5 of her evidence she has stated
that the petitioner and his family members never came to
bring back her to their house. In para 7 and 8 this witness
has stated that the petitioner has solemnized his second
marriage and only to save his skin, he has filed the present
case. She has further stated that she has no illegal
connection with other person, whereas it is true that the
petitioner-husband had illegal connection with another
woman, from whose the petitioner has solemnized marriage
and begotten the children from her wedlock, and now the
petitioner is living with his second wife. In para 11 she has
lastly stated that having even knowing the truth of second
marriage of the petitioner, she wants to live with her
husband.
31. The learned family judge, taking into consideration the
testimonies available on record, has allowed the suit filed by
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the respondent-husband under Section 13(1)(ib) of the Hindu
Marriage Act, 1955 for a decree of divorce, by coming to the
conclusion that the ground of desertion has conclusively been
proved by the respondent-husband, since it has come on
record that both the parties are living separately for the last
20 years, which is the subject matter of present appeal.
32. Learned counsel appearing for the appellant-wife has
taken the ground that the learned family judge while passing
the impugned judgment has though passed the order of
decree of divorce on the ground of long desertion of 20 years
but did not take into consideration the fact that desertion
was not because the appellant-wife deserted her husband
rather it was the husband who forced her to leave the
matrimonial house.
33. This Court, in order to appreciate the aforesaid
argument needs to refer herein the word „desertion‟. The word
„desertion‟ has been given in Explanation to Section 13 (1) of
the Act, 1955 wherein it has been stated that "the expression
desertion means the desertion of the petitioner by the other
party to the marriage without reasonable cause and without
the consent or against the wish of such party, and includes the
wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expressions shall be construed accordingly."
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34. It is pertinent to note that the word „desertion‟, as has
been defined in Explanation part of Section 13 of the Act,
1955, means the desertion of the petitioner by the other party
to the marriage without reasonable cause and without the
consent or against the wish of such party, and includes the
wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate
expressions shall be construed accordingly.
35. Rayden on Divorce, which is a standard work on the
subject at p. 128 (6th Edn.), has summarised the case-law on
the subject in these terms:
"Desertion is the separation of one spouse from the other,
with an intention on the part of the deserting spouse of
bringing cohabitation permanently to an end without
reasonable cause and without the consent of the other
spouse; but the physical act of departure by one spouse does
not necessarily make that spouse the deserting party."
36. The legal position has been admirably summarised in
paras-453 and 454 at pp. 241 to 243 of Halsbury's Laws of
England (3rd Edn.), Vol. 12, in the following words:
"In its essence desertion means the intentional 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.
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37. Desertion is not the withdrawal from a place but from a
state of things, for what the law seeks to enforce is the
recognition and discharge of the common obligations of the
married state; the state of things may usually be termed, for
short, „the home‟. There can be desertion without previous
cohabitation by the parties, or without the marriage having
been consummated. The person who actually withdraws from
cohabitation is not necessarily the deserting party.
38. Desertion as a ground of divorce differs from the
statutory grounds of adultery and cruelty in that the offence
founding the cause of action of desertion is not complete, but
is inchoate, until the suit is constituted, desertion is a
continuing offence.
39. It is, thus, evident from the aforesaid reference of
meaning of desertion that the quality of permanence is one of
the essential elements which differentiate desertion from
wilful separation. If a spouse abandons 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, namely, (1) the factum of
separation, and (2) the intention to bring cohabitation
permanently to an end.
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40. 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 from the necessary intention
aforesaid.
41. The law consistently has been laid down by this Court
that desertion means the intentional abandonment of one
spouse by the other without the consent of the other and
without a reasonable cause. The deserted spouse must prove
that there is a factum of separation and there is an intention
on the part of deserting spouse to bring the cohabitation to a
permanent end. In other words, there should be animus
deserendi on the part of the deserting spouse. There must be
an absence of consent on the part of the deserted spouse and
the conduct of the deserted spouse should not give a
reasonable cause to the deserting spouse to leave the
matrimonial home.
42. The Hon‟ble Apex Court in the case of Ravi Kumar vs
Julmidevi reported in (2010) 4 SCC 476 has observed that
the party alleging desertion must not only prove that the
other spouse was living separately but also must prove that
there is an animus deserendi on the part of the wife and the
husband must prove that he has not conducted himself in a
way which furnishes reasonable cause for the wife to stay
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away from the matrimonial home. For ready reference, the
relevant part of the judgment is quoted as under:
"13. It may be noted only after the amendment of the said
Act by the amending Act 68 of 1976, desertion per se
became a ground for divorce. On the question of desertion,
the High Court held that in order to prove a case of
desertion, the party alleging desertion must not only
prove that the other spouse was living separately but
also must prove that there is an animus deserendi on
the part of the wife and the husband must prove that
he has not conducted himself in a way which
furnishes reasonable cause for the wife to stay away
from the matrimonial home."
43. From the aforesaid law laid down by Hon‟ble Apex
Court, it is evident that each and every separation cannot be
said to be „desertion‟ rather if the wife or husband are living
separately on their own wish then only the ground of
„desertion‟ for getting the decree of divorce would be available
to the party concerned.
44. It is further evident living away on one‟s wish is to be
substantiated by the parties that if either of them, husband
or wife, is forced to live the house then the said separation
would come under the purview of desertion. The party
alleging desertion must not only prove that the other spouse
was living separately but also must prove that there is an
animus deserendi on the part of the wife and the husband
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must prove that he has not conducted himself in a way which
furnishes reasonable cause for the wife to stay away from the
matrimonial home.
45. This Court, on the basis of aforesaid judgment has
again gone through the impugned judgment passed by the
learned family court in order to see as to whether any
evidence has been led in order to substantiate the ground of
desertion by taking the ground that the wife, the appellant
herein, has on her own has left the matrimonial house or it is
the appellant who forced her to leave the matrimonial house.
46. In order to answer this, this Court has again go to the
relevant part of testimony of the witnesses.
47. It is evident from the testimony available of P.W. 1,
Kanahiya Lal Pathak that he has supported the case of the
petitioner-husband and deposed that the marriage of the
petitioner-husband was solemnized on 19.02.1988 and after
the marriage the appellant-wife accompanied with her
husband and came to her husband house on 20.02.1988. He
has further stated that when he went to the petitioner's
house on 21.02.1988 then he enquired that the marriage has
not been consummated between the husband and wife. In
para 6 of his examination he has deposed that on 26.02.1988
the petitioner came to his house and informed him that his
wife has fled away from his house. He has thoroughly been
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cross-examined. In his cross examination, he has admitted
this fact that he has no knowledge about the case filed by the
petitioner. He has further deposed that the petitioner never
filed any case at the police station about the absconding of
the opposite party-wife.
48. P.W.2 -Jay Karan has also supported the entire case of
the petitioner and deposed that on 27.02.1988 he saw the
opposite party-wife in the bus of Hazaribagh which he and
his friend Md. Fazaal informed the petitioner that the
opposite party no. 1 went to Hazaribagh with Birendra Pal
[Opp. Party No. 2]. He has further stated that thereafter the
petitioner went to Hazaribagh to look after the respondent
no.1/wife, but her wife never returned to her matrimonial
house.
49. P.W.3 Md. Afzal has also supported the case of the
petitioner. He has further stated that the petitioner-husband
reached his house and informed that his wife the Opp. party
no. 1-wife has fled away from his house and requested for
search of his wife. In para 12 he has deposed that when he
reached at the Sakchi Bus stand on 27.02.1988 then he saw
that the Opp. party no. 1 Meera Devi and Birendra pal, Opp.
party no. 2, has seated in the bus of Ranchi. However, he has
deposed that he has no knowledge that the Opp. party no.1
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has filed any case against the petitioner for her maintenance
at Hazaribagh.
50. P.W.4 - Ram Kumar Pal, was known to both parties. He
has deposed that he has got information that the wife of the
petitioner is not satisfied from her marriage and therefore he
has returned to her house. In para 9 he has deposed that
thereafter he got information about the absconding of the wife
of the petitioner on 26.02.1988. In para 11 he has further
stated that he has also got information that the Opp. party
no.1 Meera Devi fled away with her Bahnoi, Birendra Pal to
Hazaribagh. In para 12 he has further deposed that
thereafter the petitioner went to Hazaribagh for taking back
to his wife, but his wife did not return to his house.
51. P.W.5 Ramjee Pal has also supported the petitioner‟s
version. He has further deposed in para 10 of his
examination in chief that he has got information that Meera
Devi, the wife of petitioner has fled away from the house of
the petitioner and later on he has also got information that
Meera Devi fled away with her Bahnoi, namely, Birendra Pal
to Hazaribagh. He has further stated that when the
petitioner-Rajendra Pd.Pal went to Hazaribagh to bring back
the respondent No.1-wife to his house she totally refused to
come back. In para 15 of his cross examination he has
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admitted that in the house of the petitioner, his mother, the
wife Neha three nephews and two children of Neha are living.
52. P.W.6 Rajendra Prasad Pal is the petitioner himself. In
para 13 of his evidence he has deposed that on 26.02.1988 at
4.00 P.M. his wife Meera in his absence fled away from his
house along with her ornament. In para 15 of his evidence he
has further stated that on 28.02.1988 he has also got
information that his wife Meera Devi has absconded with her
Bahnoi, Birendra Pal. This witness has further stated that
when on 01.04.1988 he went to Hazaribagh to bring back his
wife to his house, his wife Meera Devi has totally refused to
come back and said that she is not interested to live with
him.
53. Whereas the defense witness, D.W.1-Rajesh Kumar has
stated in his examination in chief at para 5 that his sister
(Meera Devi) was living peacefully about 3/4 months but later
on the petitioner started to misbehaved with her on very
small matter. In para 6 of his evidence he has further
deposed that in the year 1989 one son was born out of the
wedlock and Opp. Party No.1 lived only one year and
thereafter the husband and his family members drove her
and along with Child out from her matrimonial home and
since that date he and his brothers are maintaining her and
her son (Bhagina).
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54. D.W. No. 2, Niranjan Pal, and D.W. 3 - Smt. Meera
Devi, the wife, has also stated the same version. In para 5 of
testimony of wife, she has stated that the petitioner and his
family members never came to bring back her to their house.
In para 7 and 8 this witness has stated that the petitioner
has solemnized his second marriage and in order to save his
skin, he has filed the present case. She has further stated
that she has no illegal connection with other person. In para
11 she has stated that having even knowing the truth of
second marriage of the petitioner, she wants to live with her
husband.
55. Thus, it is evident that on the one hand, the witnesses
which has been examined on behalf of husband has deposed
that the plea of fleeing away of the wife from the matrimonial
house while on the other, the evidence has been adduced on
behalf of wife that she and her son was forced to vacate the
matrimonial house to run from pillar to post even for their
bare minimum maintenance. Further, there is no evidence on
record to indicate the fact that the petitioner-husband has
filed any case to save his marriage. Though, he has made
allegation of adultery against his wife but that was not
argued, as such there is no finding to that effect.
56. This Court, on consideration of the aforesaid testimony
and on consideration of the judgment impugned has found
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that the learned family court has only taken into
consideration the issue of living separately but did not go to
the root of the issue that why appellant-wife is living
separately and further there is no consideration said to be
based upon the statement made on behalf of witnesses
produced by the appellant-wife.
57. This Court has found from the impugned judgment that
there is no in depth consideration with respect to the
aforesaid issue of driven away of the appellant wife from the
matrimonial house by the husband. However, it appears from
paragraph 19 of the impugned judgment wherein the
deposition of appellant wife has been referred particularly the
paragraph 3 of her testimony that she was driven from her
matrimonial house by her husband, after assaulting her after
one year of her marriage i.e. on 19.02.1988. Again, statement
made at paragraph 17 is required to refer wherein statement
has been made that after one year of marriage there was no
any relation or contact with her husband/petitioner.
58. The learned family court has taken the aforesaid fact for
the purpose of proving the element of desertion but the
learned family court has not gone into the issue that what
was the reason of living separately, which is the primary
requirement to come to the conclusion of element of
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desertion, as has been settled by Hon‟ble Apex Court in the
case of Ravi Kumar vs Julmi devi (supra).
59. This Court, for the discussion made hereinabove, is of
the view that it is apparent that appellant-wife was forced by
the conduct of the respondent no.1-husband to leave the
matrimonial home and thus, it is the respondent no. 1-
husband, who is guilty of constructive desertion and had
made the appellant-wife and her son to run from pillar to
post even for their bare minimum maintenance and the
behavior of the appellant-husband caused a reasonable
apprehension in their mind that it was not safe for them to
continue the matrimonial house with the respondent no. 1-
husband. Therefore, merely because husband and wife are
staying separately since a long time, an inference regarding
desertion cannot be drawn.
60. This Court, for the reasons aforesaid, is of the view that
the impugned judgment cannot be said to stand in the
parameter of consideration of the word „desertion‟, which is
the ground taken for separation.
61. In view of discussions made hereinabove, the impugned
judgment dated 15.03.2012 passed by learned Principal
Judge, Family Court, Jamshedpur in Matrimonial Suit No.
227 of 2007 is hereby quashed and set aside.
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62. Pending Interlocutory Application(s), if any, stands
disposed of.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
Alankar/
A.F.R.
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