Sunil Kumar vs Smt. Shashi Bala

Sarojeni Saksena, J.—This is husband''s appeal u/s 28 of the Hindu Marriage Act (in short the ''Act'').

The appellant-petitioner filed a petition u/s 13 of the Act for a decree of divorce on the grounds of cruelty and desertion. He pleaded that he was married with the respondent on 1.5.1990 at Bathinda according to Hindu rites, She lived with him for one month. There is no issue out of this wedlock. She has deserted him for more than 2 years prior to the filing of this petition. Thus she has deprived him of the pleasures of married life. Her behaviour was not good towards him. She used to neglect him and always insulted him which caused physical and mental torture to him. She used to threaten him to a flame herself. She used to abuse him in filthy language. He has not condoned the above acts of cruelty. Thrice, he tried to bring her back but she declined. She filed false petitions with the police and got him and his relations detained by them. Hence on these counts, he prayed for a decree of divorce.

The respondent remained absent and the case proceeded ex-parte against her. The petitioner adduced his evidence . The trial court came to the conclusion that he has failed to prove both the grounds of desertion, hence vide his judgment dated 3.12.1992 he dismissed his petition.

The appellant''s learned counsel contended that the respondent did not file any written statement to controvert the appellant''s allegations. Further, the evidence adduced by the appellant is unrebutted but still the trial Court has not believed his evidence and has dismissed his petition. He took me through the evidence and pointed out that the husband has clearly stated that he cannot say anything about her behaviour but she was not respecting his relations. She was not doing any work when asked to do. She lived with him only for about 1-1/4 months. Thereafter, she left the matrimonial home without his consent. Thrice he made attempts to bring her back but she refused to come back. His statement is duly corroborated by Jhanda Singh, AW2, Sanjay Chhiber, AYV3 and Harnam Singh, AW4. There are minor discrepancies in their statements but from the tenor of their statements, it is evident that they are cogent and reliable witnesses. Thus the petitioners/appellant has proved that she has deserted him without any reasonable cause or excuse and has failed to come back to the matrimonial home despite attempt made by him. This proves not only the fact of desertion but also animus deserendi.

Even in this appeal, she has not come to the Court despite service of notice. The appellant''s learned counsel strongly stressed that by not contesting the case in the trial Court as well as in the High Court, she has shown by her behaviour that she is not interested in coming back to the matrimonial home. To strengthen this argument, he has relied on (R.P. Gupta v. Mrs. Sureshta Gupta (1983) 6 MLJ 375).

Despite service, respondent has not come to this Court as well. The petitioner-appellant has not only pleased but has proved the ground of desertion. He is categoric that he was married with her on 1.5.1990 at Bathinda. She lived with him only for 1-1/4 months. Thereafter, she left for her parental home and since then has not come back to him though thrice he tried to bring her back. Thus she has deprived him of the pleasures of sexual life. After her conduct he has pleaded that her behaviour was insulting and she always neglected him, abused him, threatened him to commit suicide, thus caused physical and mental cruelty to him. He has proved by his sworn testimony that after marriage, she lived with him only for 1-1/4 months. When she was living with him, her behaviour was not proper. She was not respecting his relations. He went thrice to bring her back but she declined to come back. So far as giving of an application to police is concerned, as no documentary evidence is adduced to that effect, that act of cruelty cannot be considered. The petitioner''s statement is duly corroborated by Jhanda Sigh AW2, Sanjay Chhiber AW3 and Harnam Singh AW4. Their unrebutted testimony cannot be discarded simply on the ground that on few immaterial points, there is discrepancy. The trial Court has not minutely scanned their evidence.

I find that the appellant-petitioner has proved that the respondent has deprived him of the pleasures of married life and has failed to resume co-habitation, though he made three attempts to bring her back. Thus he has not only proved the ground of desertion but has also proved the ground of cruelty, as by withdrawing herself from his society, she has caused him mental cruelty also. Hence setting aside the impugned judgment and decree and accepting this appeal the appellant''s petition is hereby allowed. Decree of divorce is passed in his favour.