Dipika Nath Haloi vs Bipul Nath

Sanjay Kumar Medhi, J

The instant appeal has been preferred under Section 19 of the Family Court Act, 1984 against the impugned judgment dated 17.03.2020 passed by the learned Principal Judge, Family Court, Nalbari in F.C. (Civil) Case No. 84/2019 granting a decree of divorce on the ground of desertion as provided under Section 13 (1) (ib) of the Hindu Marriage Act, 1955 (herein after the Act). The said petition was instituted by the respondent herein- the First Party husband. The appellant herein is the second party – wife.

As per the pleadings, the marriage was solemnized between the parties on 20.05.2013 as per the Hindu rites and rituals. The husband-First Party had alleged that the matrimonial house was in a joint family and the second party wife had insisted to stay separately and was behaving rudely to the other family members. She had also attempted to commit suicide by which tremendous mental cruelty was caused to the First Party. It has also been alleged that the brother and uncle of the wife had come to the matrimonial house and had created a ruckus by damaging the television and the glass table on 24.12.2014 and on the said date, the wife had left the matrimonial house and did not return thereafter. At the same time, a proceeding under Section 125 of the Cr.P.C. was instituted pursuant to which the First Party- husband is paying an amount of Rs. 4000/- (Rupees Four Thousand) to the wife -second party and Rs. 2000/-(Rupees Two Thousand) for the maintenance of the minor daughter. It has been alleged in the petition filed for divorce under the ground of desertion that ever since the wife had left the matrimonial home on 24.12.2014 she did not come back and on the other hand, false allegations were made against him.

In the written statement filed by the wife, who is the present appellant, the allegations made against her were denied. On the other hand, she had made counter allegations that the husband was having extra-marital affair with his sister-in-law. It has also been alleged that she was physically tortured and there was a demand of Rs.3,00,000/- (Rupees Three Lakhs) from her maternal house. It has also been stated that on 24.12.2014, she was assaulted physically with a stick and was driven out from the matrimonial house.

Based on the pleadings, the learned Family Court had framed the following issues.

(i) After solemnization of their marriage, whether the respondent had deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition?

(ii) Whether the petitioner is entitled to a decree for divorce as prayed for?

(iii) To what other relief (s), if any, the petitioner is entitled to?

While the First Party-husband had adduced evidence through 4 nos. of witnesses including himself, the second party wife had adduced evidence through 2 nos. of witness. The learned Family Court, Nalbari, vide the impugned judgment had granted the decree of divorce on the ground of desertion. It is the legality and validity of the same which is the subject matter of appeal preferred by the appellant wife in the present appeal.

We have heard Shri G.N. Sahewalla, learned Senior Counsel assisted by Shri K. Sarma, learned counsel for the appellant. We have also heard Shri D. Choudhury, learned counsel for the respondent.

Shri Sahewalla, the learned Senior Counsel for the appellant has submitted that from the conduct of the respondent in not even coming to see the minor daughter even once after 24.12.2014, the learned Family Court was not justified in granting the decree of divorce as it would amount to taking advantage of one’s own fault. It is submitted that to pass an order of divorce on the grounds of desertion, there has to be an intention to desert and in the instant case the appellant was always ready and willing to come back to the matrimonial house. It is submitted that apart from the fact that there is a minor daughter whom the respondent had never come to see, the respondent had created such a circumstance that the appellant was forced to leave the matrimonial house. It is submitted that at no point of time any attempts were made by the respondent to bring her back to the matrimonial home. It is submitted that the ground of desertion was not properly proved before the learned Family Court and therefore, the decree on the said ground could not have been granted.

In support of his submissions, the learned Senior Counsel for the appellant has relied upon the decision of Shyam Sunder Kohli vs. Sushma Kohli reported in (2004) 7 SCC 747. In the said case, the Hon’ble Supreme Court had laid down certain principles to be followed while granting a decree of divorce on the ground of desertion.

Reliance has also been placed on the case of Ravi Kumar vs. Julmidevi reported in (2010) 4 SCC 476 wherein the concept of animus deserendi has been explained.

The learned Senior Counsel for the appellant accordingly submits that the impugned decree is liable to be interfered with and the petition for divorce be dismissed.

Per contra, Sri D. Choudhury, learned Counsel for the respondent has submitted that the conduct of the appellant is such that it would make it apparent that she does not have any intention to come back to the matrimonial home. He has highlighted the aspect that apart from leaving the matrimonial home on her own volition on 24.12.2014, the appellant has also taken with her the Streedhan which shows that there was no intention to come back at all. He has also highlighted the aspect that baseless allegations of extra marital relationship has been made in the written statement which itself would amount to cruelty. He has submitted that though the petition was structured on the ground of “Desertion” under Section 13(1)(ib) of the Act, it was only during the filing of the written statement that allegations of extra marital relationship has been made against him which is atrocious and cruel in nature.

It is submitted that the appellant herself had withdrawn from the company of the respondent - husband. It is also submitted that so far as the evidence is concerned, all the witnesses of the First Party were given the suggestion that the respondent was having certain illicit relationship which would show that the appellant was consistent with her leveling of baseless allegations.

As regards the allegation that the appellant was forcefully driven away on 24. 12.2014 after physical assault, the learned counsel for the respondent has submitted that on the said allegation, an FIR was lodged. On the same date the respondent had also lodged an FIR against the uncle and brother of the appellant as they had damaged properties in the house of the respondent. It is highlighted that the respondent was acquitted in the criminal case lodged by the wife on the allegation of physical assault with stick. It is submitted that the aforesaid fact was taken into account by the learned Family Court and the said fact would prove that the allegations made against the respondent were baseless. Shri Choudhury, the learned counsel has submitted that allegations made in the written statement can also be taken into consideration which would amount to cruelty and cruelty itself being a statutory ground to seek divorce, the impugned decree is not liable to be interfered with.

In support of his submissions, he has relied upon a case of the Hon’ble Delhi High Court reported in AIR 2004 (NOC) 39 (DEL) [Jai Dayal vs. Shakuntala Devi]. In the said case, it has been laid down that the allegations of extra marital affairs amounts to cruelty. He has also relied upon the case of Mayadevi vs. Jagdish Prasad reported in AIR 2007 Supreme Court 1426 in which the Hon’ble Supreme Court has explained the meaning of cruelty in a marital relationship in the context of seeking divorce under the said ground.

The rival submissions have been duly considered and the materials placed before this Court including the records of the Family Court, Nalbari have been carefully perused.

Admittedly, the petition for divorce has been filed under Section 13(1)(ib) of the Hindu Marriage Act, 1955. For ready reference the relevant part is extracted herein below.

“13. Divorce

(1)..

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;

…”

The requirement of the aforesaid provision is desertion by the party for a continuous period of not less than 2 (two) years and such period is to be reckoned from the date of presentation of the petition. The aforesaid statutory requirement has, however been explained by judicial pronouncements that there has to be an animus deserendi i.e., an intention to desert and merely staying separately which may be occasioned by circumstances created by the First Party would not fulfill the requirement.

In the instant case, the marriage was solemnized on 20.05.2013 and admittedly from 24.12.2014, the parties are living separately. The petition for divorce was initially instituted in the year 2017 and was later transferred and re-numbered in the year 2019 and therefore, as a matter of fact, the statutory requirement of a period of 2 years was fulfilled. What is therefore required to be seen is that whether the desertion by the second party wife was on her own volition or was it for circumstances created by the First Party.

In her written statement, the appellant wife has stated that on 24.12.2014 she was driven out by the respondent by assaulting her with a stick and in that connection she had also lodged a police case. It however transpires from the materials on record that the respondent was acquitted in the said criminal case and therefore, the allegation of forcefully driving out the appellant by physically assaulting her turned out to be not proved. Though it is true that the degree of proof in a criminal case is different, the same would no doubt have a bearing in the adjudication of the present case. The learned Family Court, Nalbari has taken into consideration the aforesaid factor which in the opinion of this Court is relevant. We have also noted that admittedly the appellant has taken with her the Streedhan. The aforesaid act of the appellant – wife would be a sufficient indicator of her intention to desert.

Much stress has been laid by the learned Senior Counsel for the appellant that at no point of time the respondent had attempted to bring back the wife to the matrimonial home or even to care for the minor child. However, we are of the considered opinion that the aforesaid fact would not at all be relevant in the adjudication of the present dispute though the same may give rise to an independent cause of action regarding the adequacy of the maintenance or any other cause. This Court has also found force in the contention advanced by Shri Choudhury, the learned Counsel for the respondent that when the allegations made against him were of such atrocious nature for which a police case was also lodged against him, it was wholly impractical upon him to make an attempt to bring back the wife to the matrimonial home. This Court has also noticed that the allegation of extra-marital affairs was consistently made not only in the written statement but also in the cross-examination of the witnesses of the respondent - First Party. Even in the present appeal, the allegations were not withdrawn and rather were persisted upon and therefore the statement that the appellant is ready and willing to come back to the matrimonial home appears to be a mechanical one.

From the discussions made and the materials on record including the aspect that the Streedhan itself were taken away by the wife, we are of the considered opinion that the aspect of animus deserendi appears to have been fulfilled in the present case which would show that the appellant had left the matrimonial home without any intention to come back. In other words, the appellant second party had deserted the respondent First Party and such desertion appears to be on her own volition which was rightly held by the learned Family Court.

In view of the above, we are of the considered opinion that the conclusion arrived at by the learned Family Court, Nalbari is based on the materials on record and does not call for any interference.

The appeal is accordingly dismissed.

Send back the LCR.