Back
1978 Supreme(Del) 110
High Court Of Delhi
OM PARKASH MANGAL - Appellant
Versus
URMIL MANGAL - Respondent
First Appeal Order 23 of 1975
Decided On : 08/09/1978
M.L.RAVAL, S.P.Kochar
The petitioner has to succeed on the case pleaded in the petition and variations in the plea and evidence in the defense which are not material to the factum of desertion or the animus deserendi do not matter.
Headnote:
HUSBAND AND WIFE - DIVORCE - DESERTION - FACTUM OF SEPARATION AND ANIMUS DESERENDI - BURDEN OF PROOF - EVIDENCE - DOCUMENTARY EVIDENCE - ADMISSIBILITY - CERTIFICATE OF DELETION OF NAMES FROM RATION CARD - ORIGINAL RECORDS NOT PRODUCED - NO EVIDENTIARY VALUE - ADMISSION OF CHILD IN SCHOOL - EXERCISE BOOK OF CHILD WITH SIGNATURE OF FATHER - EVIDENCE OF STAYING TOGETHER - LEAVE RECORD - NON-COMMUNICATION OF CHANGE OF ADDRESS - NO INFERENCE OF NOT CHANGING RESIDENCE - PETITION FOR DIVORCE - SCHEDULE OF ARTICLES IN POSSESSION OF RESPONDENT - ADMISSION OF REMOVAL OF ARTICLES - INFERENCE OF SHIFTING COMMON RESIDENCE - TESTIMONY OF WITNESSES - RELIABILITY - CAUSE OF QUARREL - NOT PLEADED IN DIVORCE PETITION - VARIATIONS IN PLEA AND EVIDENCE IN DEFENCE - IMMATERIAL - APPEAL DISMISSED.
Fact of the Case:
Husband filed a petition for divorce on the grounds of cruelty and desertion. The wife contested the petition, claiming that the husband had deserted her. The trial court dismissed the petition, finding that the husband had not proven the factum of separation and animus deserendi constituting the offense of desertion.
Finding of the Court:
The High Court affirmed the finding of the trial court, holding that the husband had failed to prove the factum of separation for more than two years immediately before the presentation of the petition and the animus deserendi constituting the offense of desertion.
Issues: 1. Whether the husband had proven the factum of separation and animus deserendi constituting the offense of desertion. 2. Whether the documentary evidence relied upon by the husband was admissible and sufficient to prove his case.
Ratio Decidendi: 1. The burden of proof is on the petitioner to prove the factum of separation and animus deserendi constituting the offense of desertion. 2. The certificate of deletion of names from the ration card was not admissible in evidence as the original records on the basis of which it was issued were not produced. 3. The admission of the child in school and the exercise book of the child with the signature of the father were evidence of the parties staying together. 4. The leave record produced by the husband did not establish that he was not at the new residence on the date of the alleged desertion. 5. The removal of articles from the matrimonial home on the date of the alleged desertion was with the intention of shifting the common residence of the parties to a new location. 6. The testimony of the witnesses was reliable and supported the finding that the parties had shifted their residence together and that the husband had deserted the wife.
Final Decision: The appeal was dismissed.
( 1 ). Shri 0m Parkash Mangal, the husband brought a petition for dissolution of the marriage against his wife Mrs. Urmil Mangal by grant of a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the act) on the grounds of cruelty and desertion. The petition was dismissed by Shri S. C. Jain, learned additional District Judge, Delhi on 15th of December, 1977 against which the present appeal is directed.
( 2 ) THE marriage between the parties was celeberated on 2. 10. 1968. The petititioner and the respondent had been living as husband and wife at No. 719/42, Chowk Mahabir, Gandhi Nagar, Delhi 31, upto 19th of July 1974 during which period two female issues have born out of the wedlock of the parties. It is unnecessary for me to refer to the allegations relating to cruelty as that ground is not pressed in the present appeal. The case of the petitioner on the ground of desertion is that the respondent has been leaving the house of the petioner from time to time and at the last she left the house of the petitioner on 20. 7. 1974 when the petitioner was in his office and in the absence of the petitioner, the respondent had left the house of the petitioner along with the house-hold goods, valuable articles and clothes without the prior consent and information and since then the respondent has not come back to the petitioner. The defence of the respondent is that on 20th of July 1974 the petitioner himself alongwith the respondent and the childrhifted with luggage in a tempo from the previous residence to the residence at WZ-15, Nav Yug Block, Vishnu Garden, New Delhi and that the petitioner in the morning of 4. 10. 1974 in routine left his residence at Vishnu Garden and did not return to his said residence thereafter. The main question which was rightly formulated by the trial court for answer is whether the respondent left the house of the petitioner for good on 20th of July 1974 by taking her luggage in atempo or that they lived together as husband and wife upto 4th of October, 1974 in house no. WZ-15 Vishnu Garden, New Delhi and on that date the husband withdraw from her society and deserted her.
( 3 ) THE oral evidence has been discussed by the trial court in paras 11 to 15 of the judgment under appeal and the reasons for discarding the testimony of petitioner s witnesses and accepting the sworn testimony of respondents witnesses have been given from para 16 onwards.
( 4 ) THE learned counsel for the petitioner-appellant has taken me through the pleadings of the parties and the entire evidence on the record and has also questioned the inferences drawn by the trial court from that evidence. Dissolution of the marriage can only be granted if it is established on the record that the respondent has deserted the petitioner for a continuous period of notless than two years immediately proceeding the presentation of the petition. It is necessary for the petitioner to prove the factum of separation and also that the intention of the respondent was to bring cohabitation permanantly to an end. Desertion does not imply only a separate residence and separate living, but there must be animus deserendi. Oral evidence has been given as to what happened on 20th July 1974. Beli Ram father of the petitioner deposes that the respondent left at about 12 noon or 11. 30 A. M. alongwith the luggage and two daughters in a tempo when the petitioner was in his office. To the same effect is the statement of P-7 Mohan Lal. The petitioner also supports this version. Other witnesses of the petitioner depose that she was not seen at Gandhi Nagar after July 1974. Enough the petitioner was living there. Thus the evidence led by the petitioner is that he was living from 20th of July 1974 to 4th of October, 1974 at his house at Gandhi Nagar and only the respondent left.
( 5 ) THE evidence led by the respondent in the statement of RW-3, Smt. Surjit Kaur, RW-4 Devinder Kumar and Meba Ram is that the parties
