The intentional permanent forsaking and abandonment of one spouse by the other without consent and without reasonable cause constitutes desertion under the Hindu Marriage Act, 1955.

PRATIBHA RANI, J.

MAT.APP.(F.C.) 143/2015

1. The appellant/wife is aggrieved by the judgment dated August 21, 2016 whereby a decree has been passed in favour of the respondent/husband dissolving their marriage on the ground of cruelty and desertion by her.

2. In brief, the admitted facts are that the appellant/wife got married to the respondent/husband on May 15, 1998. No issue was born out of this wedlock. The appellant/wife was the only child of her parents. She not only used to visit her parents very frequently but also stay there for about 15-20 days every month. On her visit to her parental home on the death of her father on April 16, 2000, she lived there for about eleven-twelve months.

3. Since the appellant/wife was not performing the matrimonial obligation by staying away from her matrimonial home and often living at her parental home for years together, a petition under Section 9 of Hindu Marriage Act, 1955 was filed in the year 2003 by the respondent/husband seeking restitution of conjugal rights. The appellant/wife agreed to resume cohabitation and returned to matrimonial home on March 10, 2015. The joy was short lived as admittedly she left after four days and is staying at her parental home since March 14, 2005. The circumstances under which she has gone to parental home on March 14, 2005 were intimated by the respondent/husband to the local Police Station at Kapashera on the same day.

4. After a long wait for almost five years, in the year 2010 the respondent/husband filed a petition seeking divorce on the grounds specified under Section 13(1)(ia) & (ib) of Hindu Marriage Act, 1955.

5. The divorce petition was contested by the appellant/wife levelling allegations of cruelty and harassment on account of dowry which she had been tolerating in the hope that better sense would prevail upon her husband. She was forced by her husband and in-laws to live at her parental home. She also filed a complaint before the Women Cell. She claimed that she had no intention to bring an end to cohabitation or break the matrimonial ties which can be gathered from the fact that from the Court she accompanied her husband on March 10, 2005 when he filed a petition under Section 9 of Hindu Marriage Act, 1955. She also pleaded that on March 14, 2005 she did not leave the matrimonial home on her own but after treating her with cruelty she was left at the outskirts of her parental Village Daulatabad by her husband on the pretext that he was going to Madras for 15 days on official work. Thereafter her husband never came to take her back. This compelled her to continue staying at her parent’s house. Even now she is ready and willing to return to matrimonial home and live with respondent/husband as his wife.

6. Learned Judge, Family Court after examining the testimony of the appellant/wife and respondent/husband, was of the view that appellant/wife had caused mental cruelty to respondent/husband and his family members and also deserted him on March 14, 2005 with animus deserendi. The Family Court took notice of the facts in the Criminal Case No. 116/2005 under Sections 498-A/406/506/34 IPC filed in the Court at Gurgaon by the appellant/wife, even married sister and unmarried sisters were not spared. The proceedings against the two sisters were quashed by Punjab & Haryana High Court. This was considered to be sufficient to prove mental cruelty being caused by the appellant/wife.

7. On behalf of appellant/wife, Mr. Vikas Kumar, Advocate has submitted that the respondent/husband is in Delhi police. He had used his influence in getting favourable orders. It was the respondent/husband who had been treating the appellant/wife with cruelty so much so that he even did not attend the funeral of his father-in-law. On the contrary, it was the appellant/wife who agreed to return to the matrimonial home on March 10, 2005 during hearing of petition under Section 9 of Hindu Marriage Act, 1955. It has been urged by learned counsel for the appellant/wife t