Smt. Darshna Devi vs Krishan Lal Bansal

Gurnam Singh, J.—This appeal is directed against the order of the learned Sub-Judge 1st Class, Chandigarh, vide which a decree u/s 10 (1)(a and b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) has been passed in favour of krishan Lal Bansal, petitioner-respondent and against Darshna Devi, respondent-appellant leaving the parties to bear their own costs. It arises out of the following facts :

The marriage between on the parties took place on 16th February 1971, at Thanesar, District Kurukshetra, Krishan Lal Bansal, petitioner'' respondent, was posted at Chandigarh at the time of his marriage. The parties lived together at Chandigarh after their marriage. Darshna Devi was a teachress at Meera Jee Ka Thaska. Krishan Lal Bansal urged her to resign the said job. It is alleged that the respondent-appellant left Chandigarh for going to Thanesar to resign her temporary job but did not return back. The petitioner-respondent went to Thanesar to bring her back. She came to him in the last week of July, 1971, and stayed at Chandigarh upto 1st August, 1971 but again left the place on the pretext of joining some marriage and thereafter did not come back.

The petitioner respondent was called to Ambala on 31st October, 1973 by the local Panchayat for negotiations with the members of the respondent appellant''s family. He along with his father Parma Nand, brother Ram Gopal, Madan Lal and Piare Lal reached Ambala but there they were arrested by the police u/s 107/151, Criminal Procedure Code, at the instance of Darshna Devi, appellant and her relatives. The petitioner-respondent, therefore, filed this petition for a decree for judicial separation on the grounds of desertion and cruelty.

The respondent appellant contested the petition and averred in her written reply that the Civil Court at Chandigarh had no jurisdiction to entertain and try the petitioner and that in fact the petitioner-respondent had deserted her by driving her out of his house. She further pleaded that she was willing to live with the petitioner-respondent as his wedded wife and also filed a petition u/s (sic) of the Hindu Marriage Act for the said purpose and that this petition was filed as counter-blast. The following issues were framed by the trial Court : -

Whether the respondent has deserted the petitioner for continuous period of more than two years immediately proceeding the present petition ?

Whether the respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful and injurious for the petitioner to live with the respondent ?

Whether this Court has jurisdiction to try this application ?

Relief

The marriage of the patties took place on 16th February, 1971. According to the petitioner respondent, the appellant had left his house on 1st August, 1971. The petitioner-respondent filed petition for a decree of judicial separation on 15th November, 1973. The petitioner-respondent examined Darshan Kumar, A.W. 1, to prove that the parties had lived together at Chandigarh after their marriage. The petitioner-respondent also stated so and as such the trial Court had rightly held that the Civil Court at Chandigarh had the jurisdiction to try the case.

The next point which requires consideration is as to whether the respondent appellant had deserted the petitioner-respondent. To prove this, the petitioner-respondent made hit own statement and also examined Darshan Kumar, Darshan Kumar stated that the respondent-appellant had left the petitioner respondent saying that she had participate in a marriage and would rejoin him after resigning her post but she never returned. The petitioner-respondent stated that in July, 1971, they lived together at Chandigarh for 7/8 days, that the respondent-appellant left Chandigarh on 1st August, 1971 to participate in the marriage of one of her relations but never returned after that.

The respondent-appellant in rebuttal examined Shri Sardari Lal and Sh. Bahadur Chand witnesses and also made her own statement. Sardari Lal, R.W. 1 stated that be had accompanied the father of the respondent-appellant in a Panchayat on two occasions but the petitioner-respondent refused to keep her with him. He further stated that on the third occasion, on the persuasion of the respectables, some relatives of Krishan Lal Bansal took the respondent-appellant with them on their responsibility but after about half an hour, the petitioner-respondent gave her beating and refused to keep her at his house. Bahadur Chand, R.W. 2, stated that on 31st October, 1973 in gathering, they had delivered the hand of the respondent-appellant to piare Lal and Parma Nand, the uncle and father of the petitioner-respondent, respectively, but the petitioner-respondent gave her beating and turned her out of the house and that the father of the respondent-appellant reported the matter to the police. Darshna Devi also stated that she was willing to stay with the petitioner without any condition, that her father had pleaded with the petitioner-respondent six times for keeping her with him and that she had filed a petition u/s 9 of the Act, which was still pending.

Krishan Lal Bansal, petitioner-respondent, also admitted that be had not gone to bring the respondent-appellant to him in the vacation. He further deposed that he did not we want to keep her with him because of his arrest at her instance and because of the implication of his brother in a criminal case at Karnal. He also admitted that the respondent appellant had filed an application u/s 9 of the Act against him at Karnal.

A decree for judicial separation can be claimed on the ground that the other party had deserted the petitioner or has treated him her with such cruelty as to cause a reasonable apprehension in his/her mind that it was harmful and injurious for him/her to live with the other party In order to constitute desertion, it is to be proved that it was without reasonable cause and without consent and against the party deserted Desertion is the act of for asking of abandoning or the act of a quitting without leave and with an intention not to return. There must be an intention on the part of the deserting spouse never to return to the matrimonial home and such desertion must be without the consent on the part of the person deserted. There must also exist an intention to abandon and withdraw from cohabitation. A mere severance of the relation is not sufficient, since there may be separation without desertion and desertion without separation. In the present case, the respondent-appellant in her written statement pleaded that she was willing to live with the petitioner as his wedded wife. She also filed a petition u/s 9 of the Act for a decree for restitution of conjugal rights which was pending at the time this petition was filed. In the Court also she made an offer to live with the respondent. The petitioner-respondent refused to accept her on the ground that be, his brother and his father were got arrested in a case u/s 107, Criminal Procedure Code, from the material on the file it is apparent that the Panchayat had sent the respondent-appellant with the petitioner-respondent but he mal-treated and tuned her out of his house and that her father reported the matter to the police and it was under these circumstances that they were taken into custody. There is nothing on the file to suggest that the respondent-appellant made any complaint against the petitioner-respondent to the police. The petitioner respondent has not produced any satisfactory evidence to show that the respondent-appellant had deserted him with the intention not to resume cohabitation. Even according to the petitioner, the respondent-appellant had gone to Thanesar saying that she would resign her job and come back. This is also not a case where the respondent-appellant had insisted for remaining in service against the wishes of her husband. Thus the respondent appellant is not guilty of any misconduct. It is also not a case where it can be said that she has deserted the petitioner respondent. She is also not guilty of cruelty. On the other band it appears that the petitioner-respondent has no intention to keep her as his wife and that too on very flimsy grounds. The result is that this appeal is accepted and the decree passed by the learned Sub-Judge is set aside. The parties are left to bear their own casts.