Shailendra Tripathi vs Asha

Vipin Sanghi, CJ

The present Appeal, under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, is directed against the

judgment and decree dated 20.12.2019 passed by the Principal Judge, Family Court, Haldwani in Case No. 334 of 2014.

By the impugned judgment, the Family Court has dismissed the divorce petition preferred by the appellant-husband, under Section 13(1)(ia),(ib) of

the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion.

The parties were married on 04.05.2012. According to the appellant-husband, the respondent left the matrimonial home on 05.07.2012 i.e. just after

two months of the marriage. According to the appellant-husband, the respondent-wife did not return to her matrimonial home, and, consequently, he

filed the divorce petition, as aforesaid, on 12.12.2014. It was the case of the appellant-husband that the respondent-wife never returned to her

matrimonial home, and her conduct evidenced her intention to desert the appellant-husband.

The said allegation of desertion was controverted by the respondent-wife, wherein she claimed that she was harassed for dowry demands, and

made to suffer physical and mental stress by the appellant-husband. She claimed that the appellant-husband himself used to leave her at her parental

home, and her brother used to leave her back at her matrimonial home. She claimed that her brother kept dropping her back at her matrimonial home

till 2014. The Family Court, in the impugned judgment, inter alia, observed as follows :-

“It is version of the Respondent that in 2012 (near about Raksha Bhandhan) the Respondents brother took the Respondent to her

matrimonial home. Now the dates are relevant. If the Petitioner version is believed the relevant date is 05-07-2012 when the Respondent is

said to have left him and the present Civil Suit was filed on 12-12-2014.

It bears to reason here that in the meantime the relations of the parties deteriorated. The Petitioners (sisters daughter wedding) fell on 24

April 2014 and the wedding card to show the above fact is filed by the Petitioner. The Respondent admitted in her cross examination that

she did not go to the wedding, though she submitted that the wedding happened in year 2014 after she was returned by her husbands to her

paternal home. It is petinent again that the Respondents elder brother marriage fell in December 2014 and Respondent younger brother

marriage fell in April 2016 and Respondent admitted in cross examination that her Husbands family was never invited.â€​

The Family Court, however, rejected the ground of desertion for grant of divorce to the appellant, by placing reliance on the testimony of DW-3

Nityanand Bhatt, uncle of the respondent. In relation to his testimony, the Family Court observed as follows :-

“The testimony of DW-3 Nityanand Bhatt who is uncle of Respondent becomes very important. On the day he came in Court he said he

was aged about 81 years. During the course of the arguments also the Ld Counsel for the Petitioner and Respondent addressed him in

respectfull terms telling the Court that he is held by society in very high esteem. Hence he is not expected to depose as an interested witness.

He deposed that somwhere in 2012 near Raksha Bandhan he along with Dinesh Bhatt and Pitamber Bhatt went to Petitioners home to make

efforts for conciliation. He specifically deposed that:

।

Hence the above witness is deposing that the Petitioner parents admitted their mistake. It becomes apparent that if the Petitioners parents

admitted their mistake than it is clear that if the Respondent is residing separate, it is due to fault of the Petitioner. DW-3 again said that:

When questioned about Petitioners father he said that । ।

। । ।

।

He specifically said in cross examination that:

। The testimony of above witness brings the behavior of the

Petitioner only at fault.â€​

The Family Court, on the basis of the aforesaid testimony, came to the conclusion that, even though the respondent is residing in her parental home,

it is due to the fault of the petitioner, i.e. the husband. The Family Court concluded that the petitioner had harassed the respondent, both physically and

mentally. The respondent was repeatedly left by the petitioner at her parental home. The petitioner never turned back to take her back. The

respondent’s family initiated efforts for her return, but with no result. The petitioner made no efforts post 2012 to take his wife back.

In response to our query, whether the respondent-wife even initiated any proceedings for restitution of conjugal rights, under Section 9 of the Hindu

Marriage Act, 1955, the answer of the counsel for the respondent-wife is in the negative. The respondent-wife, in her testimony, did not lead any

evidence to show that she went to her matrimonial home to reside with the appellant-husband, and that she was turned back. There is no independent

corroborative evidence in this regard brought on record. The justification offered by the respondent-wife, for leaving the matrimonial home, was that

the appellant would harass her while making dowry demands. The allegation was that the appellant-husband would physically beat her up. However,

in support of these allegations, no evidence was produced by the respondent-wife. No case for demand of dowry was registered by the respondent-

wife against the appellant-husband. There was no medical evidence produced before the Family Court by the respondent-wife in support of her plea

that she is being subjected to violence by her husband.

So far as the testimony of DW-3 Nityanand Bhatt is concerned, he, being the uncle of the respondent, cannot be considered as an independent

witness. The Family Court lays much emphasis on the fact that he was 81 years of age. That does not give a reason to the Court to believe his

testimony as the gospel truth. There is no rule of evidence brought to our notice, that a witness that old shall be presumed/ assumed to tell the truth

only. His own version, with regard to the appellant’s or his parents’ conduct and statements, cannot be accepted as the gospel truth. A perusal

of the cross-examination of the DW-3 shows that, to all questions put to him in relation to his knowledge about the relationship of the litigating parties,

and the parties themselves, his answer was in the negative. In these circumstances, it is not explained as to how he got introduced into the process of

conciliation between the parties. The appellant-husband, during the cross-examination of DW-3, also suggested that he was deposing falsely.

The factum of the parties remaining separated for ten years; the factum that the respondent-wife went to her parental home on the occasion of

Raksha Bandhan in 2012 with her brother and has not returned to the appellant-husband thereafter; the factum that the respondent-wife has not

initiated any proceedings, under Section 9 of the Hindu Marriage Act, 1955, to seek restitution of conjugal rights; the factum that the respondent-wife

could not justify her not returning to her matrimonial home on the ground of dowry demands, or physical torture and injury at the hands of the

appellant-husband; the factum that the respondent did not attend the marriage ceremonies of the appellant’s sister’s daughter’s wedding;

the factum that the appellant was not invited to attend the wedding of the respondent’s two brothers in 2014 and 2016 all clearly show the intent of

the respondent-wife to desert the appellant-husband, with a view to not lead a married life with him. The respondent did not wish to have anything to

do with the appellant. If she was interested in preserving the matrimonial bond and inculcating the same to resume cohabitation with the appellant, she

would have taken some positive steps of her own. However, she did nothing at all, which would demonstrate her intention to preserve the matrimonial

bond. It is a no brainer to say that the relations between the parties were not good when they parted in July, 2012. The issue is, how the parties

conducted themselves. In every marriage, there are differences â€" even serious ones. If the parties try, they can get resolved. But for that, there has

to be the intent to bury the hatchet. There is nothing to show, the respondent took any steps in that direction. Thus, her intention to walk away from

her marriage is very clearly evident from her conduct.

It has been ten years since the parties got married. They lived together hardly for a couple of months. No issue was born out of the wedlock. It is

absolutely clear to us that there is no warmth in the relationship between the parties, and continuation of the marriage between the parties is only

leading to misery for both of them, and waste of their respective lifetimes. The marriage is dead for all practical purposes. The endeavor made by this

Court, to bring about a settlement between the parties, also did not prove to be fruitful, as is evident from the order-sheets in the present Appeal. The

Court had interacted with the parties on 30.09.2020, and recorded that settlement is not possible between them. Once again, on 10.12.2020, the

endeavor of the Court, to bring about a settlement, failed.

The parties had remained physically separated for a period of over two years, when the petition was preferred by the appellant-husband. The

separation between the parties was not merely a physical separation, but also a mental separation, inasmuch as there was nothing between the two of

them to draw them to each other. The respondent-wife has not been able to substantiate â€" by leading any independent or corroborative evidence,

either her own testimony, or the testimony of her other witnesses, that she made any effort to return to reside with the appellant-husband at her

matrimonial home.

We, therefore, find that the Family Court erred in returning the finding that it was the appellant-husband, who was responsible for the respondent

leaving her matrimonial home. There is not a shred of evidence brought on record by the respondent-wife to show that the appellant-husband

subjected her to physical or mental harassment or violence. There is nothing at all to show that it was the appellant-husband, who left the respondent-

wife at her matrimonial home repeatedly, or that the respondent-wife and her family made efforts for the respondent to return to her matrimonial

home.

We, therefore, set aside the impugned judgment and decree, insofar as it relates to the ground of desertion under Section 13(1)(ib) of the Hindu

Marriage Act, 1955. We are of the view that the appellant-husband has been able to make out a case of desertion against the respondent-wife. We,

accordingly, allow the divorce petition on the grounds contained in Section 13(1)(ib) of the Hindu Marriage Act, 1955, and dissolve the marriage by a

decree of divorce on the said ground.

The Appeal stands disposed of in the aforesaid terms.

In sequel thereto, pending application, if any, also stands disposed of.