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2006 Supreme(Cal) 726
High Court Of Calcutta
Before Mr. Justice Kalyan Jyoti Sengupta And Mr. Justice Sanjib Banerjee
RAJ KUMARI JAISWAL - Appellant
Versus
RAMESH KUMAR JAISWAL - Respondent
F. A. 102 Of 2003
Decided On : 11/22/2006
ANINDA LAHIRI, DIPANKAR DANDAPATH, MUKUL LAHARI
The burden of proving desertion lies on the petitioner, but the respondent may rebut the inference of desertion by showing that there was reasonable cause for leaving the matrimonial home.
Headnote:
HUSBAND AND WIFE - Divorce - Desertion - Animus deserendi - Burden of proof - Explanation to Section 13(1)(ib) of the Hindu Marriage Act, 1955 - Reasonable cause for desertion - Cruelty - Irretrievable breakdown of marriage.
Fact of the Case:
The wife deserted her husband in March 1979 and refused to resume cohabitation despite his efforts. The husband filed a suit for restitution of conjugal rights, which was resisted by the wife. The husband then amended his plaint to include a prayer for divorce on the ground of desertion and cruelty. The wife contested the suit and denied the allegations of desertion and cruelty.
Finding of the Court:
The Court held that the husband had proved the ground of desertion as the wife had left the matrimonial home without his consent and without any reasonable cause. The Court also held that the wife's allegations of cruelty were unsubstantiated and that the marriage had irretrievably broken down.
Issues: 1. Whether the husband had proved the ground of desertion? 2. Whether the wife's allegations of cruelty were substantiated? 3. Whether the marriage had irretrievably broken down?
Ratio Decidendi: 1. The explanation to Section 13(1)(ib) of the Hindu Marriage Act, 1955 makes it clear that 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. 2. The burden of proving desertion lies on the petitioner, but the respondent may rebut the inference of desertion by showing that there was reasonable cause for leaving the matrimonial home. 3. In the present case, the husband had proved that the wife had left the matrimonial home without his consent and without any reasonable cause. The wife's allegations of cruelty were unsubstantiated and the marriage had irretrievably broken down.
Final Decision: The appeal was dismissed and the judgment and decree of the Family Court were modified to grant the husband a divorce on the ground of desertion.
Based on the provided legal document, the key points relevant to the case are as follows:
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The burden of proving desertion lies on the petitioner, but the respondent can rebut this by showing reasonable cause for leaving the matrimonial home (!) .
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Desertion under the relevant law involves both factum (the act of leaving) and animus deserendi (the intention to permanently end cohabitation). The absence of either can negate a claim of desertion (!) (!) .
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Evidence must establish that the spouse left without consent, without reasonable cause, and with the intention to permanently end the marriage (animus deserendi). Mere physical separation is insufficient unless coupled with the intent to end the marriage (!) (!) .
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The court considers whether there was a genuine intention to cease cohabitation permanently, rather than temporary separation or inability to live together due to external circumstances (!) .
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The case emphasizes that false allegations, such as accusations of second marriage or illicit conduct, can constitute cruelty and impact the decision regarding divorce (!) (!) .
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The evidence showed that the wife left the matrimonial home without consent and refused to return despite efforts to reconcile, indicating a lack of reasonable cause and the presence of animus deserendi (!) (!) .
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The court assesses whether the marriage has broken down irretrievably, which can justify a divorce in cases where reconciliation seems impossible (!) (!) .
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The legal process involves examining the conduct of both parties, their willingness to resume cohabitation, and whether allegations made are substantiated by credible evidence (!) (!) .
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The court recognizes that amendments to legal pleadings and subsequent events can influence the assessment of grounds such as desertion, but these must be considered in relation to the effective date of the claim (!) (!) .
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Ultimately, the court concludes that the marriage has broken down irretrievably, and the evidence supports a finding of desertion without reasonable cause, leading to the granting of divorce (!) (!) .
These points summarize the legal principles and factual findings relevant to the case, focusing on the elements of desertion, cruelty, and the irretrievable breakdown of marriage, without referencing specific case citations.
( 1 ) I have gone through the draft judgment of my learned brother and I do not think any conclusion different from what my learned brother has arrived at, can be drawn in this appeal. I am in total agreement with His Lordship's decision. But, I feel I should narrate few words of my own. The wife has impugned the decree for divorce which was passed by the learned trial Judge in a suit initially filed for restitution of conjugal right on refusal of the appellant to resume marital life without any lawful and just excuse. When the suit was filed the desertion of the wife was less than two years which is required statutorily for institution of a suit for dissolution of marriage. In view of subsequent event which occurred on filing of written statement by the wife, the respondent husband got his plaint amended incorporating the ground of mental cruelty and also desertion and asked for alternative relief for dissolution of marriage. In the written statement the wife alleged that respondent husband had contracted a second marriage with one Sm. Lopa Kumari Jaiswal. The learned trial Judge upon reading the pleadings of both the parties framed following issues: -
1]. Has the petitioner any cause of action against the respondent? 2]. Is the petitioner entitled to get a decree for restitution of conjugal rights as prayed for? 3]. Is the petitioner entitled to get decree for dissolution of marriage as prayed for? 4]. Is the petitioner remarried? 5]. Is the suit maintainable in its present form and prayer? 6]. Is the petitioner subjected to cruelty by the respondent?
( 2 ) OBVIOUSLY first issue was not pressed for decision, as the respondent/plaintiff did not want the decree for restitution of conjugal rights and he prayed for the decree for divorce. Issue being No. 5 regarding maintainability of the suit was also not pressed by the appellant. Therefore, the trial of the suit was restricted to issue Nos. 3, 4 and 6.
( 3 ) HUSBAND/respondent in order to prove his case of desertion to get the decree for divorce, examined himself and with him also examined five other witnesses. The appellant/wife examined herself and she also brought two other witnesses to resist the suit.
( 4 ) IT appears from the written statement of the wife that she admits the fact of desertion, but she has tried to justify such act of desertion contending that she was
ill-treated at the hands of the relatives of the husband. After marriage she was subjected to mental torture with demand of excessive dowry and gifts not having been given at the time of marriage. That apart her husband contracted second marriage with another woman.
( 5 ) THE learned Counsel for the appellant Mr. Saswata Gopal mukherjee contends that the decree for divorce granted by the learned trial Judge on the ground of desertion is not sustainable in the eye of law. According to him mere proof of continuous physical desertion and/or withdrawal from the conjugal life by a spouse is not sufficient to pass decree. It has to be established by the person deserted that there has been an intention of deserting spouse to desert and to run away from the marital obligation and further intention not to return meaning thereby animus deserendi and animus revertendi. He submits that from the evidence it will be evident that there was no intention on the part of the wife not to resume co-habitation or to end permanently the marital tie. She was and is willing to go back to matrimonial home but for the act of cruelty perpetrated by the husband as well as his relations namely sister-in-law and elder-brother and also for the second marriage.
( 6 ) IN support of his contention he has relied on the Bench decisions of two judgments of this Court reported in 95 CWN 445, Kama/a @ Rita bhattacharjee v. Nitya Gopal Bhattacharjee and 1988 (1) CHN page 33, kamal Kumar Basu v. Kalyani Basu. As regard finding of the learned trial judge of the second marriage is concerned, he submits these allegations h
