The burden of proving desertion is on the petitioner and must be established beyond reasonable doubt. The delay in presenting a petition for divorce on the ground of desertion is a question of fact, and each case must be examined based on its facts and circumstances.

Reva Khetrapal, J.

1. The Appellant seeks to challenge the judgment dated 14.08.2012 passed by the Family Court, Saket, New Delhi in HMA No. 451/2011 whereunder her petition seeking divorce from the Respondent on the ground of cruelty and desertion under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 was dismissed.

2. The facts relevant for deciding the present appeal are that the Appellant was married to the Respondent as far back as on 25th January, 1987 according to Hindu rites and ceremonies. The marriage was duly consummated and a son was born to the parties in the same year on 03.11.1987. The Appellant alleges that the Respondent was of a cruel, adamant and stubborn nature and throughout their matrimonial life he treated her with cruelty. He was also abusive and many a times would force her to sell her ornaments to pay his debts. Emboldened by her silence and her submissive nature, he subsequently started demanding money from her, obtaining loans in her name, misusing her credit card and even got a vehicle purchased and financed in the name of the Appellant. His ill treatment caused her untold misery and humiliation. In the year 2006, he left the matrimonial home but nevertheless continuously extended threats to her through his friends and other anti-social elements right upto the month of August, 2010. The marriage thus became a fiction supported only by the legal tie. The sustained force of abusive and humiliated treatment calculated to torture her rendered the life of the Appellant unbearable. The Appellant, therefore, petitioned for divorce on 22nd January, 2011 on grounds of cruelty and desertion.

3. Though the Respondent was served with notice of the petition seeking dissolution of marriage by publication by the learned Family Court, he failed to enter appearance and was accordingly proceeded ex parte on 15.11.2011.

4. Ex parte evidence was adduced by the Appellant before the Family Court by tendering in evidence her affidavit Ex. PW-1/A1 and documents Ex. PW-1/A to Ex. PW-1/C.

5. The Family Court on the aspect of cruelty held that the Appellant had failed to prove specific dates and instances which had created apprehension in her mind making it impossible for her to live with the Respondent. It further held:

All instances, as mentioned in the petition, appear to be normal wear and tear of a married life which require mutual understanding and adjustments between a married couple and had not reached the height of cruelty to grant divorce (sic.).

6. With regard to the allegation of desertion made by the Appellant against the Respondent, the Family Court held:

"12. Secondly, the version of the petitioner cannot be accepted on the ground of desertion also. According to her, she was deserted in November, 2006 but no efforts were made by her to patch up the matter with the respondent. The present petition has been filed on 22.01.2011.

13. As per Section 23 of the Hindu Marriage Act, 1955, in any proceedings 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 accordingly.

14. In the present case, though desertion has continued since November, 2006 but present petition was filed only on 22.01.2011. Thus, there is unnecessary and improper delay by the petitioner in filing the present petition. The petitioner has not been able to establish the grounds of cruelty and also the ground of desertion in her favour."

7. Aggrieved by the aforesaid findings, the present appeal has been preferred by the Appellant praying for the setting aside of the impugned judgment and for dissolution of the marriage between the parties by a decree of divorce on the grounds of desertion and cruelty.

8. Notice of the admission of the appeal was issued to the Respondent who evaded service and was ultimately served by publication in the newspapers notwithstanding he chose not to contest the matter.

9. Accordingly, we have