Back
High Court Of Delhi
DHARAM DEV MALIK - Appellant
Versus
SMT.RAJ RANI - Respondent
First Appeal Order 317 of 1982
Decided On : 04/25/1984
It is well settled that in its essence desertion means the intentional permanent forsaking and abondonment of one spouse by the other without that others consent and without reasonable cause. It is a total repudiation of the obligation of marriage.
"For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (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."
Hindu Marriage Act: Section 13(1)(ib): Burden of proving desertion : factum as well as animus deserendi is on the petitioner.
It is equally well settled that the burden of proving desertion the factum as well as the animus deserendi is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the Court the desertion throughout: the entire period of two years, before the petition as well as that such desertion was without just cause. In other words, even if the wife where she is the deserting spouse, does not prove just cause for her leaving apart, the petitioner husband has still to satisfy the court that the desertion was without cause.
Hindu Marriage Act: Section 23 : Meaning of the word "Satisfied" : Preponderance of Probabilities.
The word "satisfied" in Section 23 must mean "satisfied on a preponderance of probabilities". Hence, the inference of desertion has to be made on a balance of probabilities.
"If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time............
Hindu Marriage Act : Section 3(d): Abnormal delay in filing the petition for divorce : no Explanationn does it prove fatal? No, but it certainly is a factor to reckon with while exercising discretion in favor of a party.
Last but not the least, there is abnormal delay on the part of the appellant in filling this petition for divorce. He has rendered no Explanationn for the same except saying that he had not moved the petition earlier in the hope that the respondent would agree to reconciliation, 1 have already noticed the kind of efforts he made at reconciliation. On his own showing after his first visit to Sonepat in 1966 which was two or three months after the departure of the respondent from her matrimonial home he went to Sonepat in the year 1972. No Explanationn is forthcoming as to why this long interval of six years was allowed if he was really sincere and honest about bringing her back to his fold. As was observed by Hodson.
So even though long unexplained delay on the part of the appellant may not per se be fatal to the petition for divorce, it certainly is a factor to reckon with while exercising discretion in favor of a party. Section 23(1)(d) of the Act lays down that, "in any proceeding under the Act, whether defended or not, if the court is satisfied that there has not been any unnecessary or improper delay in instituting the proceeding, the court shall decree such relief." Hence, the court has to take into consideration long and improper delay which remains un explained while deciding whether a decree for divorce may be passed or not. Such a conduct on the part of the appellant certainly be comes relevant when considering want of sincerity of purpose. In a way his acquiescence in prolonged separate living of the respondent without demur renders him a consenting party to the same. He can not, thereforee, turn round now and take advantage of his own wrong. His contention that the instant is a clear case of irretrievable break down of marriage and thereforee, delay alone should not be stand in the way of divorce cannot be accepted.
( 1 ) THIS appeal springs from judgment dated 30th September 1982 of an Additional District Judge whereby he dismissed the petition of the appellant/husband for divorce on the grounds of desertion and cruelty as being without merit.
( 2 ) THE carriage between the parties was solemnised on 7th October 1964 at Sonepat, to which place the parents of the respondent/wife belonged, in accordance with Hindu rites and ceremonies. Thereafter, they lived together as husband and wife at 123/2, Rouse Avenue, New Delhi, uptil January 1966. The said house had been allotted to the father of the appellant as a railway employee and as such the parties were living with him as members of his family. A son was born to the respondent in December 1965. However, the appellant does not own his paternity ). Since January 1966 onwards the respondent has been living at Sonepat with her parents. The contention of the appellant is that she left her matrimonial home on 19th January 1966 for Sonepat without his consent and against his wishes and she has not returned to her matrimonial home despite repeated efforts having been made by him i. e. the appellant, from time to time to bring her back to her matrimonial home. Hence, he seeks divorce on the ground of desertion by the respondent without any just cause.
( 3 ) IT may be pertinent to give here the past history of litigation which had been going on between the parties prior to filing of this petition on 28th November 1981. The appellant had earlier moved a petition being H. M. A. No. 246/73 for judicial separation sometime in 1973. The grounds for judicial separation were desertion, cruelty and adultery. It was, inter alia, averred by the appellant that he had gone to Chandausi for training on or about 18th March 1965 and while he was still there, he learnt that the respondent was pregnant. On coming to know of it he was completely dazed and shocked because the respondent had not conceived the child from him. So he rushed back to Sonepat and enquired from the respondent as to how the conception had taken place but the respondent refused to give any answer. So, smelling some foul play he kept a strict watch over her movements. One day in August 1965 he came back home at about 3 P. M. and instead of knocking at the door he pushed open the window of the room and to his great astonishment and annoyance he found that the respondent was in a compromising position with his youngest brother and they were having sexual inter course. However, the youngest brother of the appellant ran away through the rear door of the house and the respondent bolted the room from inside. She refused to open the door. Meanwhile the mother of the appellant too came there. He then brought all these facts to the notice of his parents but they pacified the appellant saying that they would themselves look into the matter. However, on one night towards the end of year 1965 the father of the appellant saw the youngest brother of the appellant sneaking into the bedroom of the respondent at an odd hour, viz. , at about 2. 30 A. M. (night) and he was accosted by his father. Thereafter the respondent left the appellant in or about the end of the year 1965 or beginning of 1966 for Sonepat without any rhyme or reason. (See Ex. P 1, copy of the previous petition ).
( 4 ) THE said petition was resisted by the respondent tooth and nail who vehemently refuted all the allegations levelled against her especially the allegation about her having promiscuous relationship with the youngest brother of the appellant. She asserted that in fact a son by the name of Arun Kumar was born to her in December 1965 and thereafter the appellant and his parents started making wrong, baseless, malicious and reckless allegations against her character and she was virtually turned out of the house after maltreatment and beating. Therefore, she had to knock at the door of her parents house alongwith her son in great distress and she was forced to live there
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
