Reena Devi, Rani Devi vs Ravi Prakash Singh

Heard learned counsel for the appellant. Despite the fact that respondent has appeared on notice, no one appears today on his behalf.Â

Appellant is the wife aggrieved by the decree of divorce granted on grounds of desertion by learned Principal Judge, Family Court, East Singhbhum

at Jamshedpur vide judgment and decree dated 22nd September, 2016 passed in Matrimonial Title Suit no. 423 of 2014, instituted by the husband.Â

Petitioner- husband pleaded before the Family Court that after their marriage was solemnized on 26.5.2009 at Koilwar Mandir, District Bhojpur in

Bihar as per Hindu rituals they lived together at Adityapur within the district of Seraikela-Kharsawan and thereafter shifted to a rented house at

Sonari on 1.7.2009, leaving his old parents with a hope that peace would come in the family as respondent was uncomfortable living in a joint family.

However, respondent called her brother on 4.7.2009 and left for her paternal home with her clothes, jewellery and other essential things against his

wishes. Efforts to bring her back failed. In March, 2010 his father went to the paternal home of the respondent to bring her back, but she quarreled

with him and conveyed that she did not wish to reside with him as he is a low grade labourer. Petitioner went to her house in the year 2011,

but her father clearly declined the request of the husband and refused to allow her to go back. In the year 2012 he sent his brother-in-law and

one Satyendra Kumar Singh but their efforts also went in vain. He alleged willful desertion against his wishes without any reasonable cause since

2007 till 4.9.2009 for seeking divorce.   Â

Respondent through her written statement denied all the allegations. She admitted the marriage and stay in her house at Adityapur. However,

other allegations were denied as false. She alleged cruelty within fifteen days of marriage on demand of dowry. She also alleged that petitionerÂ

snatched away jewellery, clothes and other things from her on 4.7.2009 and ousted her from matrimonial home. She somehow reached her parental

home. Petitioner never tried to take her back to matrimonial home. She also alleged that petitioner even assaulted her in her parental home. She

prayed for dismissal of the suit.   Â

Four witnesses have been examined on behalf of applicant namely Ravi Prakash Singh, the applicant, Suryadeo Singh, his brother, R.V.Singh and

Sudharshan Prasad. Petitioner supported his case in his examination-in-chief. He further asserted other statements made in the plaint of their stay in a

rented accommodation at Sonari and that respondent left him on 4.7.2009 with her brother where after they have been living separately. He also

supported his statement that in spite of efforts she refused to come back to her matrimonial home. After filing of the written statement, respondent did

not turn up. Neither she cross-examined any of the witnesses nor adduced any evidence in her support. Upon answer to the court query,

petitioner stated that she left him on 4.7.2009 and never returned. There were no issue born out of the wedlock. Petitioner’s father supported

the case made out in the plaint and also the charge of desertion from 4.7.2009 within one and half month of the marriage. He further stated about

the efforts made by him, one Harendra Singh and other persons to bring her back but in vain. Third witness R.V.Singh also supported the case of

the petitioner in his examination-in-chief on affidavit. He also deposed that there were family quarrel which compelled the petitioner to shift to a rented

accommodation with her at Sonari and from there she moved away to her parental home on 4.7.2009. All efforts to bring her back, failed. Sudarshan

Prasad also a friend of the petitioner supported these facts. On answer to court question he stated that he is a friend of the father of the

petitioner.         Â

Learned family court analyzed the evidence on record and took note of the conspicuous fact that respondent after filing of written statement

stopped taking any interest in the matter and neither adduced any evidence nor cross-examined the witnesses of the petitioner. Since the cause of

action arose at Sonari Jamshedpur, the suit was held to be maintainable. The fact that the parties were living separately was also not in dispute.

Evidence of all these four witnesses corroborated the assertion of the petitioner that all efforts by petitioner, his family members and friends to bring

her back to the matrimonial house did not end up in success. Learned family court also found that there is no specific denial of para-4 of the plaint

which compelled it to come to a conclusion that couple had lastly lived at Sonari, Jamshedpur. She had disclosed her address as resident of at

Bhowra No.-19, P.S. Jorapokhar, Dist. Dhanbad at present Jamshedpur, District- Singhbhum East. Respondent in her affidavit stated to be a resident

of Jamshedpur within the jurisdiction of Singhbhum East which fell under the territorial jurisdiction of the learned family court. The evidence on record

uncontested led the family court to come to an opinion that since 4.7.2009 till the suit was instituted on 18th September, 2014 for a period of five years

and more, the parties were living separately. The respondent had not rebutted the evidence of the petitioner that all efforts to bring her back failed on

account of refusal of the respondent and her father. All the four witnesses stated that she declined to join the company of her husband and

thus deprived the petitioner of conjugal life from 4.7.2009. Respondent apart from making plain assertion in written statement of cruelty or torture did

make no overt act either of institution of any complaint in any police station or before any court of law about such torture or cruelty in marriage

against the petitioner for a period of five years till the written statement was filed after institution of the suit. She also did not disclose any steps taken

to return to the matrimonial home for restitution of her conjugal rights. In this state of material pleadings and evidence on record, the factum of

desertion was found to be proved against her in terms of Section 13 (1) (i-b) of the Hindu Marriage Act,1955. 7. For the charge of desertion to be

established, the following ingredients are as held by the Apex Court in the case of Savitri Pandey Vs. Prem Chandra Pandey, reported in (2002) 2

SCC 73 at paragraph Nos. 9 and 10 which are quoted hereunder:

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€​

To prove desertion in matrimonial matter it is not always necessary that one of the spouses should have left the company of the other as desertion

could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also

be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of

inference to be drawn from the facts and circumstances of each case.â€​ Â

In the facts of the instant case, the respondent has completely failed to show that she left the matrimonial home either with the consent of the

petitioner or that he has given any reasonable cause to her to live separately. Her conduct therefore indicated an intention on her part to

permanently forsake the matrimonial relationship. Both the ingredients of desertion therefore stood established. The findings of the learned family

court on that count do not suffer from any error of law or misappreciation of evidence. However, learned family court has while dealing with the issue

of cruelty rightly held that the petitioner apart from making allegations of cruelty against the respondent of not behaving properly with his family

members and that he shifted to Sonari in a rented accommodation, could not adduce any other corroborative evidence to substantiate the charge. As

such, the allegations of cruelty were not established. The suit was decreed on the ground of desertion alone.

Learned counsel for the appellant has questioned the findings of the learned family court based on the pleadings on record and the evidence of the

petitioner only. However he is not in a position to over come the lacunae left by the respondent leaving the case uncontested both at the stage of

cross-examination of the petitioner witnesses and non-production of any witness or documentary evidence on her part. No incidence of torture or

cruelty has been substantiated by any evidence worth its name. There were no cases either instituted on the allegation of cruelty or demand of dowry

for the period of five years till she filed the written statement after institution of the suit. Wife/ appellant, therefore completely failed to dislodge the

case set up by the petitioner-husband. Learned counsel for the appellant however, submits that the family court has while passing the decree of

dissolution of marriage failed to grant any permanent alimony to the wife. Reliance has been placed upon a judgment of Division Bench of this

Court passed in the case of Ajay Choubey Vs. Rekha Devi reported in (2017) 1 JBCJ 529.

We have taken note of the plea, raised by learned counsel for the appellant for grant of permanent alimony. However we do not find any sufficient

material pleadings or evidence on record to render a finding thereupon. Therefore, we deem it proper to leave it to the appellant to approach the

learned family court for seeking permanent alimony which would be considered on its own merit on the basis of the pleadings and evidence on

record.Â

As a result of the discussions made herein above and for the reasons recorded, we do not find any substance in this appeal.

Appeal stands dismissed. Decree accordingly. Â