Rajani vs Ramswaroop

This is an appeal under Section 19 of the Family Courts Act, by wife against dissolution of her marriage by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act).

Both husband and wife belong to Jhansi. They were married on 1511979 and a male child was born to them on 1531980. When the child was six months'' old, wife left the house of her husband with the child on 2491980 and did not return back to her husband. A petition for mutual divorce was filed on 331983. However, before final order was passed on this application wife stated to the Family Court that she is not willing for divorce. Therefore, the petition for divorce out which this appeal is filed, was filed by husband on 911984.

Case in support of divorce in short is that after sometime of marriage wife showed indifference towards husband and his parents. She was not doing any household work and was reading novels all day long. On objection by husband, she stated that she would not live with the husband till he resided with his parents asked him to take a house in Sadar Bazar near parents'' house where they would reside together. Since husband was only son and issue of his parents in advance age he could not have left them to reside separate from them. Hoping that wife would change her mind, he permitted her to house of her parents when she was insisting for the same on one reason or other. On 2491980, wife sent with her father with the child and the box containing her clothes and ornaments to parents house on the pretext some function at that place. When wife did not return, husband went to house of parents of his wife to bring her back but she refused. Waiting till 14101982, husband sent a notice to his wife through his Advocate alleging that she was deserting him for the period. On 25101982, wife sent a reply to her husband direct. There was intervention of common friends which resulted in an agreement on 2721983, it was settled that marriage would be dissolved by mutual consent and she would not claim any alimony but the child shall remain with the mother and an amount of Rs. 10,000 shall be deposited in bank in name of the son for the ten years. Husband deposited the amount on 2821983 and returned articles of the wife to her on 2821983. Petition under Section 13B of the Act was filed on 231983. After six months a petition signed by both parties was filed to record the divorce by mutual consent. On 131983 wife filed an application for amendment of the petition relating to custody of the child and on 331983 a petition signed by both parties was filed to pass a decree of divorce dissolving the marriage. When the proceeding was pending, she made a statement to the learned Family Judge that she is not willing for a divorce and had signed the petition for mutual divorce to take back her belongings. On that when the case was posted to 1011984 for orders, petition for divorce was filed by the husband on 911984 on the ground of desertion and negligence.

Case of wife contesting the application is that she has not deserted her husband and has not neglected him. Petition for divorce has been filed being influenced by parents and specially by his mother, Demand of dowry of Rs. 50,000 after marriage and illbehaviour meted out to her were alleged. Absence of providing nutritious food during her pregnancy. No medical assistance was also provided for. She was made to do the house holdwork like cooking washing cloth and sweeping the house etc. even during her illness. When her father who visited her saw the position, he took her with him in December, 1979 and rendered her the required treatment and she could get rest. She gave birth to the child on 1531980 in Christian Hospital, Jhansi. Her motherinlaw alone came to the hospital to see the child. Ceremony which was performed in her father''s house was attended by parents'' inlaw after great persuasion. Visit of her husband on 11101980 to request her as alleged was denied.

Husband examined himself and another witness who was one of the persons taking part in the settlement. Documents like copy of letter of lawyer, reply by wife copy of the deposit as per agreement, agreement and receipt of articles by wife were filed. Wife examined herself and her father. One witness was examined as court witness. Certificate granted by the hospital was filed.

On the aforesaid materials, learned Judge of Family Court held that desertion by wife is well proved and dissolved the marriage by a decree for divorce which assailed by wife in this appeal. During pendency of the appeal, Court directed both husband and wife to stay together. In compliance with the same both of them stayed in a hotel at Allahabad and proceeded together to his house at Jhansi. From there, wife again went back to her parents'' house and they are separately residing now. Son is residing with his mother and is aged about 15 years.

On the admitted position that husband and Wife are living separately, application under Section 13B of the Act for mutual divorce was filed, it is to be examined whether disertion by wife has been proved.

Term ''desertion'' has been explained in Section 13(1) Explanation of the Act. It reads as follows:

"Explanation. In this subsection, 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 variation and cogent expressions shall be considered accordingly."

In order to come to conclusion that wife has deserted her husband, it has to be found that (i) wife has deserted without reasonable cause and without consent of the husband or against his wish. Wilful neglect of the husband is also included in the meaning of desertion.

Husband has stated in the application for divorce that wife left his with his consent on 2491980. He, however, claimed that consent was given by him as he was told that there was a ceremony in the house. This has been affirmed by him on oath in his evidence. But there is no corroborative evidence in this regard. It is natural for the son who has given the consent for his wife to go with his father specially with the young child, to intimate his parent about it. No explanation has been given why one of them has been examined corroborate the son. Thus, misrepresentation which is to be proved like any criminal charge beyond reasonable doubt, having not been proved, the same cannot be accepted and on the own statement of husband it is safe to conclude that wife left the house of her husband with his consent.

Departure of the wife as claimed by her is on account of her illness. This deportation is expected to be for a temporary period. After recovery she was expected to come back. When both though separated were in the same town, it is nothing but natural that husband would visit the wife periodically specially when the young male child aged about six months was with his mother. Parents of the husband would also visit the house of parents of wife to see the young child of their only son even if they would not have been attached and attracted towards their daughterinlaw. There is no material in support of their visit. This apathy would normally cause mental consternation of the wife who had a feeling that she was not behaved well by parents of her husband even without any basis.

Husband stated that he went to bring his wife on 11101980 but she refused to come back. If husband would have behaved normally, refusal of wife to come back with him without any justification after staring with her parents for a fortnight might have been lead to an inference that she had no intention to join her husband to feel a marital life with him which form subsequent conduct to be proved may lead to inference of desertion. In this case, however, husband contributed to the circumstances for the wife to remain separate for some time. There is no evidence that husband made any attempt, thereafter, to bring her back for two years. It is not unnatural for a wife with this conduct of husband and his parents to remain silent to be further sentimental. To add fuel to the fire, husband sent a letter to her through a lawyer on 14101982 alleging that he went on 11101982 to bring her back when she refused to come which is desertion. In spite of it wife did not take any legal assistance but replied direct to her husband narrating the circumstances under which she left the matrimonial home. In the last paragraph she clearly stated:

"My stay at my parents house is not pleasurable affair to one but I have been forced to stay here and this stay cannot be treated as desertion. I pray that wise counsels prevail upon you to mend yourself and lead a happy married life."

This reply indicates that wife was never intending to end the marital relationship with her husband and wanted to lead a happy married life with him.

With this reply, husband remained silent for one year more when some gentlemen negotiated for divorce. An agreement was entered into on 2721983 to this effect. On 2821983 wife received her belongings. On 231983, petition for mutual divorce was filed. Receiving articles back or filing an application for mutual divorce are not circumstances to draw an inference that wife deserted her husband without reasonable cause and without consent of the husband and no inference of neglect to the wife can be drawn specially when wife did not initiate the negotiation. Before six months expired, an application was filed on behalf of the wife in the proceeding on 191983 that at the time of preparing a petition for mutual divorce an application was also got signed by her purporting to be an application to make a motion for recording divorce. Hence on the said petition in absence of his lawyer, divorce ought not to be recorded. A bare look at the application filed on 391983 would show that date put was 231982 and figure ''2'' was corrected to ''3''. This petition leads to an inference that husband was trying to get a divorce and such petition and all other action of wife were not voluntary in nature. Learned Trial Judge rightly recorded statement of the wife who did not agree for a mutual divorce. Finding no way out, husband filed the petition for divorced imputing the separate living of wife as desertion.

Divorce is normally not favoured by courts when there is satisfaction that the relationship has so much broken down that is not possible to be repaired. But mere break down is not sufficient. Grounds for divorce are to be clearly established. As has been discussed earlier wife left the husband with his consent, husband did not normally behave during the period of separation which became a cause for remaining separate for further period and conduct of wife was not such from which inference of breaking the marital tie permanently can be drawn. Rather, in the letter dated 25101983 she cherished a happy marital tie with her husband. When the question of statutory breaking tie came, she was not willing for the same. Even in this appeal, Court directed both to stay together, she remained in the same hotel where her husband stayed and both proceeded to husband''s house together. We are satisfied that husband has not proved desertion by wife in this case.

In result, appeal is allowed, judgment of Family Court is reversed and application for divorce under Section 13 of the Act is dismissed. Appellant is entitled to costs in this appeal. Hearing fee is assessed at Rs. 1,500.