Gurmel Singh vs Smt. Ajit Kaur

Gurnam Singh, J.—The appeal is directed against the order of the learned Additional District Judge, Hoshiarpur vide which petition for dissolution of marriage u/s 13(1) (ib) of the Hindu Marriage Act, filed by Gurmail Singh appellant against his wife Smt. Ajit Kaur respondent, has been dismissed with costs.

The parties were married on 3rd April, 1959 at village Singriwala, District Hoshiarpur They lived together and cohabited as husband and wife at village Nangal Farid. Out of the wedlock two children were born and out of them one male child is alive while the second female issue has died. According to the petitioner, the respondent deserted him on 31st May, 1968 and started living separately from him and did not return to him inspire of his best efforts. He, therefore, cairns a decree for divorce on the basis of desertion.

The wife contested the petition and pleaded that she had been turned out of the house by the petitioner-appellant in three clothes after giving a beating in the month of August, 1976, that he had levelled false allegations of immorality against her and that infect he wanted to marry her younger sister. It was further pleaded by her that her younger sister was married in 1976 and it was thereafter that he started torturing her and levelled false allegation against her and turned her out. The respondent further pleaded that her father made efforts to persuade the appellant to rehabilitate her but with no results. The following issues were framed in the case:

Whether the petition is not verified according to law, and if so what is its effect ?

Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, and if so its effect ?

Relief.

u/s 13(1) (ib) of the Hindu Marriage Act, a decree for divorce can be granted on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. In its essence "desertion" means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent, and with out reasonable cause. It is a total repudiation of the obligations of marriage. If a spouse abandons the other spouse in state of temporary passion, for example, anger or disgust. Without intending permanently to cease cohabitation, it will not amount to desertion. For desertion, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi) The deserted spouse he also to prove the absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form necessary intention of desertion. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. If infect there has been a separation, the essential question always is whether that act could be attributed to animus deserendi. The offence of desertion commence when the fact of separation and the animus deserendi co-exist although it is not necessary that they should, commence at the same time.

In the instant case according to the appellant, the respondent had been living separately from him since 31st May, 1968. On the other hand the plea of the appellant in the month of August, 1976. From the oral as well as documentary evidence placed on the file, it is apparent that the relations of the parties became strained near about in the year 1976. The petitioner-appellant has admitted letters Exhibits P.W. 7/1 to P.W. 7/8 to have been written by Hari Singh, a relation of the respondent. Hari Singh is now dead from the perusal of these letters it is apparent that the relations of the parties started deteriorating in the year 1956. So much so the petitioner-appellant in his statement admitted that when he had received letters from Hari Singh, the respondent was not living with him. Thus it is a case where the parties are living separately for she last many years. The only point to be seen is as to whether the respondent had deserted the petitioner-appellant. The reply to this question is in the negative because the respondent while examined as R.W. 1 categorically stated that she was prepared to live with the petitioner-appellant without any preconditions. Even her father, while examined as R.W. 5, stated that he wanted that his daughter should live with the petitioner and they have no preconditions During the trial of She case, the parties were given an opportunity to have a talk for reconciliation and on 20th November, 1976, the trial Court made the following note :

The petitioner and the respondent were asked to reconcile their dispute. The petitioner has stated that in no circumstances is he prepared to accept the respondent and allow her to live with him, while the respondent has expressed her willingness to live with the petitioner. She has gone to the extent of stating that she has no condition whatsoever to resume co-habitation with the petitioner. But, notwithstanding this unconditional approach of the respondent the petitioner is not prepared to agree to the respondent''s return.

While examined as P.W. 7, Gurmail Singh petitioner-appellant stated as under :

I am not prepared to take the respondent with me at any cost because she insulted me in my friends.

From the aforesaid facts it is evident that the respondent had no intention to bring cohabitation with the petitioner appellant permanently to an end, rather the petitioner-appellant does not want to rehabilitate her at his house. The petitioner-appellant cannot be allowed to take advantage of his own wrong.

The petition filed by the appellant also suffers from another defect i.e. that the same had been filed after unnecessary and improper delay. The learned counsel for the appellant had contended that the ground of desertion for a decree for divorce has been allowed by the amended Hindu Marriage Act and, therefore, the petitioner tiled this petition after the amendment of the Act, Even before the amendment of the Hindu Marriage Act, desertion was a ground for a decree for judicial separation. If in fact, the respondent had deserted the petitioner-appellant, the latter could have applied for a decree for judicial separation and prove desertion on her part. It was also argued that the respondent could also approach the Court, say for a decree for the restitution of conjugal rights or for maintenance. This contention of the counsel for the appellant is not acceptable because the respondent is in service and needed no maintenance from the appellant.

Keeping in view the circumstances of the case, the trial Court rightly dismissed the petition of the appellant and this petition has no force and is hereby dismissed. As it is a dispute between the husband and wife, the parties are left to bear their own costs throughout.