Nirmal Jeet vs Harbans Singh

D.V. Sehgal, J.—This appeal is directed against the judgment and the decree dated 5.5.1986 passed by the learned Additional District Judge, Ferozepore allowing the petition of Harbans Singh Respondent for dissolution of marriage by granting a decree of divorce in his favour and against the Appellant u/s 13 of the Hindu Marriage Act (for short ''the Act'').

The marriage between the parties was solemnized on 5.10.1981 at Ferozepore City in accordance with Hindu rites. They cohabited together at the residence of the Respondent but no issue was born out of the wedlock. The Respondent alleged that the Appellant had withdrawn from his society since 1.1.1982 without sufficient cause. He sought a decree of divorce on the ground that the Appellant had deserted him for a continuous period of not less than two years immediately preceding the petition. The Appellant opposed the petition and alleged that the Respondent had not come to the Court with clean hands. He has suppressed the material facts. A petition u/s 9 of the Act was earlier filed by the Appellant. The Respondent stated during the course of the proceedings ensuing therefrom that he would wait for one year after the decree for restitution of conjugal rights is obtained by the Appellant and then use the same against her for seeking divorce. She admitted that the parties lived together and cohabited for about 25 days after marriage but stated that thereafter the Respondent had neglected her and had withdrawn from her society without any reason. Both the parties pleaded the fact that an application u/s 125 of the Code of Criminal Procedure for maintenance was filed by the Appellant and the Judicial Magistrate 1st Class who tried the same, had granted maintenance to her at the rate of Rs. 200/- per month. She stated that she was still ready to live with the Respondent if he makes genuine offer full of love and affection. A replication was filed on behalf of the Respondent controvert the assertions made by the Appellant. On the pleadings of the parties, learned Additional District Judge, framed the following issues:-

Whether the Respondent has withdrawn from the society of the Petitioner since 1.1.1982 without any reasonable excuse ?

Whether the Petitioner is entitled to a decree of divorce as alleged ?

Relief.

After receiving evidence the learned trial Judge returned a finding on issues Nos. 1 and 2 in favour of the Respondent and against the Appellant and consequently granted a decree of divorce u/s 13 of the Act in his favour.

1 have heard the learned Counsel for the parties I find no ground to disagree with the conclusion reached at by the learned trial Court. The Appellant has not been able to show that she had any reasonable cause to withdraw from the society of the Respondent. During the course of evidence, no doubt, she deposed that the Appellant who is employed in Jail Department had gone on training course to Phillaur and that during his absence, her father-in-law gave her beatings and turned out of the house. On her behalf cross-examination was addressed to the Respondent to the effect that he had been giving beating to the Appellant. She also adduced evidence to the effect that her parents took panchayat twice or four times to persuade the Respondent to rehabilitate her. All this evidence is of no avail because none of these facts is pleaded by her in her written statement and the learned trial Court has rightly rejected the same.

Learned Counsel for the Appellant relied on Mrs, Sudesh Soni v. Surinder Lal Soni 1980 M. L. J. 187, and Pushpa Devi v. Vinod Kumar 1982 M.L.J. 529, and contended that the mere fact that the Appellant had withdrawn from the society of the Respondent without any reasonable cause or excuse was not sufficient to constitute desertion He submitted that it is only the factum of separation accompanied by animus desired on the part of the defaulting spouse which can constitute desertion. There is no dispute with this proposition of law. I, however, find that there is sufficient material on the record to prove the factum of separation and further animus deserendi on the part of the Appellant. She has herself admitted that she filed a petition for restitution of conjugal rights against the Respondent u/s 9 of the Act but had withdrawn the same. In her written statement she stated that she was willing to live with the Respondent if he makes a genuine offer full of love and affection. The learned trial Judge has rightly concluded that this stand of the Appellant is unintelligible The Respondent in his written statement as P. W. 1 slated that she should come back to the matrimonial home in the same way in which she had gone and that he hid taken the same stand in the proceedings initiated by the Appellant u/s 9 of the Act. In spite of this the Appellant withdrew from those proceedings. The parties are living apart for more than five years by now. It is clear from the conduct of the Appellant that she has no intention to resume the matrimonial relations with the Respondent. All these facts constitute animus deserendi on her part.

Learned Counsel for the Appellant then relied on Sukhjit Singh Walia v. Olga Usha Walia 1980 M.L.J. 52, and contended that the evidence of the Respondent makes it clear that he made no efforts to bring back the Appellant to the matrimonial home. I do not find force in the submission. The Appellant made allegations against the Respondent that he had been giving beating to her and that even her father-in-law gave her beating and turned her out of the house which allegation was obviously baseless. In view of these circumstances, any effort on the part of the Respondent to persuade the Appellant to come back to the matrimonial home would have been of no avail though he has led evidence to the effect that he took a panchayat to persuade her and her parent so that she would come back to she matrimonial i home.

I, therefore, confirm the finding recorded by the learned Additional District Judge and finding no force in this appeal dismiss the same. The parties are, however, left to bear their own costs.