Priyanka Pandey vs Rajeev Ranjan Pandey

Heard learned counsels for the parties.

Wife is the appellant aggrieved by the decree of divorce granted by the learned Court of Principal Judge, Family Court, Ranchi in Matrimonial Title

Suit No. 73 of 2011 vide judgment dated 19th August, 2015, decree dated 29th August, 2015. The petitioner-husband had approached the Family Court

with prayer for dissolution of marriage both on the grounds of cruelty and desertion in terms of section 13(1) (i-a) (i-b) of the Hindu Marriage Act,

1955.

As per the case of the petitioner-husband, parties entered into marriage as per Hindu rituals and customs on 5th May, 2007 at Ranchi. Â The

respondent-wife/appellant herein came to the matrimonial home on 6.5.2007, stayed there for few days and even during that period was not

cooperating in the conjugal relations. She kept insisting for separate accommodation. It was alleged that she hardly resided in the matrimonial home

and enjoyed living in a joint family. She used to go back to her parental home on one pretext or the other. The couple was, however, blessed with a

female child. Despite several efforts to bring her back to the matrimonial home, she refused to join his society. Petitioner and his family members

underwent immense mental trauma and financial stress, but the efforts continued. In July, 2007, on one occasion, while the petitioner was about to go

off to sleep, she indulged in hue and cry and abusive language against her in-laws, knowing that his mother is a cancer patient. She also attempted

suicide by trying to jump from the top of the floor of the building

in April, 2008 but, her effort was thwarted by the presence of mind of the husband. She had been both rude and brutal at times with the petitioner and

his parents. She left the matrimonial home in February, 2009, without any consent or reason and never returned. He made several sincere attempts to

bring her back. On 13.4.2010, with the efforts of well-wishers, common friends and their guardians, a meeting was convened. Respondent, realizing

her mistake, gave a hand written note with an undertaking that she would fulfil all matrimonial obligations and return to her conjugal life. However, she

did not return. Despite the best efforts of the petitioner and his family members, she never heeded their entreaties to come back to the matrimonial

home. Thus, the petitioner was left with no other alternative than to institute the instant suit for dissolution of marriage, both on the grounds of cruelty

and desertion. Â

Respondent in her written statement admitted the marriage. She also admitted having stayed for few days in the matrimonial home but alleged, ill-

treatment and cruelty at the hands of the petitioner and his family members. She further alleged that it was the petitioner who had himself withdrawn

from the matrimonial obligations. Still, the couple was blessed with a female offspring which shows that she had been duly performing her duties, as a

wife. She denied any ill-treatment towards her mother-in-law or against any person. She also denied having used filthy and abusive language at any

point of time. She expressed her inclination to live with the husband. According to her, the suit had been instituted with ulterior motive, though no

cause of action arose.

Based on the rival pleadings of the parties, the learned family court framed the following issues for adjudication on re-cast: I. Is the suit as

framed maintainable?

II. Has the petitioner got valid cause of action for the suit?

III. Has the respondent treated the petitioner with cruelty and deserted the petitioner?

IV. The petitioner entitled to get marriage dissolved and decree for divorce be passed in his favour?

V. Any other relief or reliefs to which petitioner may be entitled too?

VI. Whether respondent is entitled to permanent alimony?

Petitioner-husband examined four witnesses, who are:

PW-1 Kameshwar Choubey

PW-2 Urmila Verma

PW-3 Hirdyanath Pandey

P.W.-4 Rajeev Ranjan Pandey. (Petitioner)

 Exhibit-1 was adduced by the petitioner being a declaration of the respondent-wife.

 Respondent adduced seven witnesses in support of her case who are:

R.W.-1 Laldhari Singh

R.W.-2 Ramchariter Singh

R.W.-3 Mohamad Hasim

R.W.-4 Ashok Kumar

R.W.-5 Dr. Devender Prasad Singh

R.W.-6 Krishan Kumar Jha and

R.W.-7 Priyanka Pandey; the respondent.

 She also adduced Ext.-A, a photocopy of Handwritten Notice by her.

Learned family court proceeded to examine the Issue Nos. 3 and 4 relating to cruelty and desertion in marriage and whether petitioner is entitled to

divorce on such grounds. This issue was answered in favour of the petitioner and against the respondent-wife, after appraisal of the oral and the two

documentary evidences adduced by the parties.

As per P.W. 1 respondent-wife was cruel and always used to misbehave with the family members of the petitioner. She left the matrimonial home

after few days only, without any reason. She had been insisting to live separately from his family members. She was rude to the petitioner knowing

fully well that his mother is a cancer patient upon whom he had to bear expenses for her treatment. PW-1 asserted that since February, 2009 she had

never returned to her matrimonial home. Petitioner and his family members have made several efforts in vain. This witness also deposed about the

efforts of reconciliation made by well-wishers of both the parties on 13th April, 2010. In his cross-examination, he admitted having long relationship

with the family members of the petitioner since 40 years. He had further deposed that the respondent lived with her husband only for 2 and 1/ 2

months. She had gone back to Barkakhana and never returned. PW-2 was also treated as independent witness who deposed in same fashion about

the misbehavior of the respondent; her reaction on the expenses incurred during medical treatment of the mother of the petitioner, who was a cancer

patient. He also supported the case of the petitioner that the lady had left the matrimonial house in February, 2009 without any knowledge to her

husband. Thereafter, she has never returned. She was also cross-examined.

 P.W.-3, the father of the petitioner deposed about the marriage between the spouses on 5.5.2007 and her consistent illbehaviour while in the

matrimonial home for few days only. She used to manhandle them and refused to live in the joint family. She pressurized her husband to leave his

family members and live separate. She indulged in abusive language on the inmates of her in-laws family. She also reacted to the expenditure done on

the treatment of her mother-in-law, a cancer patient. In the month of February, 2009, according to him, she left the matrimonial house without any

reason and never returned. The petitioner was not allowed to meet his child, even at the maternal home of the respondent. Several attempts were

made for reconciliation. The specific instance of the meeting held on 13.4.2010 is stated in categorical terms when respondent by way of a written

undertaking Ext.1, agreed to live peacefully and return to matrimonial home. She had also accepted her guilt. According to this witness the element of

desertion was fully established. He also deposed that on account of her inflated ego, she threatened to commit suicide and implicate the petitioner and

his family members. She had also attempted suicide in month of April, 2008. This witness was cross-examined also. In his cross-examination, he

further stated that on 06.05.2007, she had come to his house and on 8.5.2007 she left the house and went back to her parental home. He supported the

assertion of the petitioner that she had failed to discharge her obligations as a wife and denied sexual pleasure.

PW-4 is the petitioner who supported the entire case set up in his plaint. He alleged that the respondent-wife refused to cohabit with him and

inflicted mental torture. She stayed for few days only, even when, he could not enjoy sexual life with her. She used to go back to her parental home

after making false pretext. He further deposed that on account of the expenses incurred for treatment of his mother who is a cancer patient, she

reacted violently and abused his mother and father. In the month of April, 2008 she tried to commit suicide but was saved by him. She left the

matrimonial home on February, 2009 never to return. He has also deposed about the execution of a bond Ext.1 on 13.4.2010 by the respondent with an

undertaking to return to her conjugal life and at the same time acceptance of her guilt. This witness was also examined. In his crossexamination, he

accepted that Ext.1 was prepared in the house of the respondent on his hand writing. After preparation of Ext .A, the respondent was not ready to

come to his house so he could not bring her back. Her father threatened to lodge a Sanha in the police station. He further deposed that after birth of

the child, he went to his in-laws’ house on 27th day of birth but she did not come along with him. Â

So far as the material witnesses on behalf of respondent-wife is concerned, 7 witnesses were examined. R.W. 1 was a neighbour of the father of

the respondent who simply deposed that on 17.9.2010, he heard the sound of weeping of her father P.N. Choubey and came out. On being asked he

was told that her father was requesting the petitioner to take his wife back. R.W. 2 also referred to the same incidence of 17.9.2010. Learned trial

court treated him as a tutored witness as there was no documentary proof of such occurrence. In his cross examination, he could not say whether

petitioner had gone to the house of Sri P.N. Choubey at Barkakhana. R.W. 3 deposed that prior to the Holi festival of 2011, the grandmother, uncle

and relatives of respondent had gone to send the respondent to her matrimonial home but the inmates did not allow. R.W. 4 a neighbour of the father

of the respondent from Barkakhana, deposed about the good nature of the lady and that prior to Holi in the year 2011, the grandmother, uncle and

other relatives brought her to the matrimonial home but she was not allowed to enter. There were no documentary evidence to corroborate the said

statement. R.W. 5 a neighbor, deposed about the incidence of 17.09.2010 when the father of the respondent was heard crying pleading with the

petitioner to take his wife back. R.W. 6 is also the neighbor of the father of the respondent. He deposed that the petitioner never tried to bring the

respondent back to his house. He also deposed about an incidence of 17.9.2010. In his statement at para 32 he admitted that respondent  is living at

her maternal home since 17.9.2010. R.W. 7 is the wife who admitted the marriage and the birth of the child, out of the wedlock. According to her,

family members of her husband started misbehaving with her and send her back to her maternal home where she lived for nine months and sometime

10 months continuously. She admitted that she had made a bond on the drafting of her husband. She alleged that the petitioner has left her in the

maternal home. She denied allegations of cruelty and attempt to commit suicide in April, 2008. She admitted that her mother-in-law is a cancer patient.

She stated of filing a complaint in Mahila Police Station but at para 30 she again deposed that no complaint or information was given to the police

station. She has alleged that the petitioner left her at her Naihar. This witness in effect supported the case set up in the written statement. The learned

family court based on these material evidence on record answered these two issues in favour of the petitioner/respondent herein. Rest of the issues

no. 1,2,4 , 5 and 6 were also answered in his favour holding him entitle to a decree of divorce. Issue No. 7 was decided in favour of the respondent.

Learned counsel for the appellant submits that the entire findings rendered by the learned family court is based on oral evidence alone. The act of

cruelty alleged by the husband could not be established merely on oral testimony. No proof of cruelty or attempt to commit suicide has been shown by

any other corroborative documentary evidence. Learned family court has also committed serious error of law and fact in coming to a finding of

desertion against the wife on the basis of the same oral testimony. As per the case of the petitioner’s witness no. 1, she had remained in the

matrimonial house for two and half months only. As such, allegations of cruelty within that period have not been shown by any cogent evidence on the

part of the plaintiff witnesses. The allegations of denial of conjugal happiness also stands negated as a female child was born out of the wedlock in the

year 2008. He submits that the evidence of the witnesses for the respondent/appellant clearly show that petitioner was responsible for leaving the wife

at her maternal home rather than any deliberate act on the part of the appellant-wife to leave the matrimonial home. The petitioner had ill-treated her

and left her in the maternal home. As such the ingredients of desertion as laid down by the judgments rendered by the Apex Court from time to time

have not been made out. He has placed reliance upon the case of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002)2 SCC 73, Para-8 & 9

in support of his submission. According to the appellant, she is still ready to live with the respondent-husband. She has a daughter now aged 10 years

who is being brought up in her custody. The impugned judgment, therefore, suffers from various errors of fact and law and deserves to be set aside.

Learned counsel for the respondent- husband submits that the entire evidence on record even though oral with the significant piece of

documentary evidence taken together go to establish the ingredients of cruelty as well as desertion in marriage on the part of the appellant. All the

witnesses adduced on behalf of the petitioner-husband have consistently deposed about her misbehavior, attempt to commit suicide and refusal to

participate in healthy conjugal life with her husband. These acts constitute both physical as well as mental cruelty. She had withdrawn from the society

of her husband without any reasonable cause or consent on his part. She had defied her undertaking given in the presence of well-wishers and

witnesses ( Ext.-1, executed on 13th April, 2010 and refused to return to her matrimonial home. She had also accepted her guilt and that she was

staying away from her matrimonial home for the last 11 months since then. She also promise not to repeat her wrong doings and would be responsible

for any failure on her part to maintain good conjugal relationship in future also. However, she never returned to matrimonial home and fulfilled her

undertaking. This also gave sufficient cause of action to the petitioner-husband to seek dissolution of marriage on the grounds of desertion. The

learned family court on appreciation of and detailed analysis of the entire material evidence on record in the light of the pleadings of the parties rightly

come to the finding that the appellant is guilty of cruelty in marriage as well as desertion. The learned family court has also kept in mind the status of

the appellant and the minor daughter and directed payment of Rs. 10,00,000/- as Stridhan and permanent alimony within three months from the date of

passing of the judgment. Learned counsel has categorically asserted that this court while granting stay vide order dated 23rd August, 2016 was misled

to believe that the amount of alimony had not been paid on behalf of the husband. In fact, the amount of alimony was deposited through Chalan No.

418 dated 31st August, 2015 and Chalan No. 522 dated 30 September 2015 before the learned court in compliance of the order dated 19th August

2015 passed in the matrimonial suit. These have been annexed as Annexure- C Series to I.A. 6804 of 2016 seeking vacation of the adinterim stay. He

further submits that the respondent-husband waited for expiry of the period of limitation and when no notices or information of filing of the appeal was

given to him he has incurred 2nd marriage in January, 2016. On the other hand, the appellant in spite of filing the appeal on 24th August, 2015, failed to

remove the defects for about nine months and the application was for the first time argued on 23rd August, 2016 on the point of stay when notices

were also issued upon the respondent. He submits that the marriage between the parties had become dead and there is no point in restoring it at this

stage, more so when the respondent has solemnized 2nd marriage after the decree of divorce. He has been willing to settle the matrimonial dispute

even at the appellate stage by agreeing to enhance the permanent alimony to any suitable extent. Therefore, this court on consideration of the totality

of facts and circumstances, should not interfere in the impugned judgment. The appeal deserves to be dismissed.

We have considered the submissions of the parties at length and perused the impugned judgment and also the relevant material evidence relied

upon by the learned counsel for the parties. We have also gone through the judgment cited at the bar on the part of the appellant. 13. The pleadings

and material evidence discussed in the foregoing paragraphs need no repetition. However, from the material evidence of the parties it can be deduced

that though marital relations between the parties may not have been ideal but their conjugal life led to the birth of a female child in the year 2008. The

period of stay of the respondent in the matrimonial home may also not be long for that matter as per the statements of P.W. 1 also who has deposed

that she stayed for 2 to 2 ½ months only but even during her brief stay the incidences of cruelty does not seem to be established on the basis of the

material evidence on record. There are no corroborative evidence to establish the allegations of attempt to suicide on her part in April 2008 apart from

the oral testimony of the petitioner’s witnesses. The allegations by the respondent husband that she did not indulge in sexual intercourse also does

not stand in the light of the birth of a female child out of the wedlock. Allegations of cruelty as such, do not seem to have been established on the

weight of evidence on record. 14. However, on the question of desertion, we find that all the petitioner’s witnesses are consistent on the point and

support the case of the husband that the appellant left her matrimonial home in February 2009. The appellant on her part has not been able to show

any specific instance of torture or ill treatment which could have given her reasonable cause to leave the matrimonial home. Apparently, her departure

from the matrimonial home was without the consent of the petitioner. Testimony of the petitioner’s witnesses on this score show that appellant

had the tendency to leave the matrimonial home time and again without information to the petitioner or his family members on any pretext. In the

background of such oral testimony, the allegations of desertion on the part of the appellant herein are clearly established by the clinching documentary

evidence on record adduced by the petitioner and admitted by the appellant herein Ext.1 dated 13th April, 2010. This document was prepared on a non

judicial stamp paper signed by the appellant on 13th April, 2010 in the presence of the well-wishers and family members of the parties. It

unambiguously shows that she had been living away from her matrimonial home since last 11 months from 13 April, 2010 on account of her own

obstinacy. She expressed her desire to return to her matrimonial home on her own volition and in full consciousness. She also assured that she would

not repeat her mistakes in future and that would make all efforts to lead a happy conjugal life. In case she failed to fulfill her marital obligations, it is

she alone who would be responsible for the same. Her unequivocal declaration and undertaking clearly shows that she had been living away from the

matrimonial home since February, 2009 as is also consistently stated by the witnesses for the petitioner-husband. The petitioner husband had set up the

case of desertion through his plaint on the allegation that since February, 2009 the respondent-wife/appellant herein had without any reasonable cause

or his consent left the matrimonial home. Ext.-1 also establishes that the petitioner had not been responsible for leaving her matrimonial home and it

was she who because of her obstinacy left the matrimonial home for her parental house. Both the ingredients of desertion as laid down by the Apex

Court, therefore, stand fulfilled against the appellant-wife. For the offence of desertion, so far as the deserting spouse is concerned, two essential

conditions must be there, namely, (i) the factum of separation and(ii) the intention to bring cohabitation permanently to an end ( animus deserendi).

Similarly two elements are essential so far as deserted spouse is concerned: (i) the absence of consent and (ii) absence of conduct giving reasonable

cause to the spouse leaving the matrimonial home to form the necessary intention as aforesaid. The offence of desertion commences when the fact of

separation and the animus deserendi coexist. It is not necessary that they should commence at the same time. The de facto separation may

commence without the necessary animus or it may be that the separation and the animus deserendi coincide in the point of time. From the evidence on

record, it can be safely held that the separating spouse i.e. the appellant herein abandoned the marital home with the intention of bringing cohabitation

permanently to a close on account of her own obstinacy and never returned to resume marital life and join the society of her husband despite clear

undertaking on her part. The allegations of desertion necessary to be established in a proceedings for divorce therefore stands proved not only on the

basis of the oral testimony of the petitioner's witnesses but by the corroborative documentary evidence Ext.-1 executed by the appellant herself on

13th April, 2010. The matrimonial suit was instituted in the year 2011 i.e. after the expiry of the period as prescribed under section 13(1) (i-b) of the

Hindu marriage Act, 1955. These material evidences on the point of desertion having been fully established, we do not find any reason to disturb the

final declaration of the learned family court dissolving the marriage between the parties. In this regard the judgment of the Apex Court in the case of

Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73 (supra) para-8 and 9, cited by the learned counsel for the appellant in support

of his submission, are apt to be quoted hereunder:

“8. “Desertionâ€, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse

by the other without that other’s consent and without reasonable cause.

In other words it is a total repudiation of the obligations of marriage.

Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e.

not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration

the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation of race, permitting

lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous

course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various

authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for

example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: (AIR p.p. 183-84,para

10)

 “For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (I)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: (I) 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. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.

Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law

those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the

Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the

omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of

inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case

be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by

conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential

question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation

and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced

without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating

spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has

prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements

must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted

spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after

the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably

refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the

deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well

settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable

doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is

accounted for to the satisfaction of the court.â€​

Following the decision in Bipinchandra case this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena by holding that

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. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (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. For holding desertion as proved the inference may be drawn from certain facts which

may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by

those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.â€​

In the background of what has been held, in the facts and circumstances of the present case, we are, however, of the considered view that  the

respondent husband, who has also shown his willingness to enhance the alimony, should pay further alimony to the appellant. We are inclined to hold

so keeping into mind the fact that the appellant is not alone but has to rear up the minor girl child born out of the wedlock between the parties and bear

her expenses for education and marriage in future as well. We, accordingly, enhance the permanent alimony granted to the respondent-wife/appellant

herein by Rs. 5,00,000/- (Rs. Five Lakhs only). The enhanced amount shall be kept secured for the benefit of the minor child in an appropriate form at

the discretion of the learned family court, Ranchi. The enhanced alimony of Rs. 5,00,000/- should be deposited within a period of three months before

the learned family court, Ranchi. The appeal, therefore, stands partly allowed in the manner indicated above. The permanent alimony is enhanced by 5

lakhs and the decree of divorce is upheld on the point of desertion. Let decree be prepared accordingly. Â