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2007 Supreme(Raj) 130
2007 (1) W.L.N. 161 (Raj.)
Rajasthan High Court (Jaipur Bench)
HON’BLE MR. JUSTICE SHIV KUMAR SHARMA
HON’BLE MR. JUSTICE R.S. CHAUHAN
Hari Mohan Sharma
Versus
Smt. Santosh Pareek
D.B. Civil Misc. Appeal No. 36/1990—Decided on 19.01.2007.
Mr. Sagar Mal Mehta, Sr. Adv. with Mr. Anil Mehta, Advocates, for the Appellant.
Mr. Ajeet Kumar Sharma with Mr. Shobhit Vyas, Advocates, for the Respondent.
Headnote:(A) Hindu Marriage Act, 1955—Sec. 13—Family law—Divorce—On the ground of mental cruelty and desertion—Appellant and "U" both were posted at the relevant time at Sawai Mathopur—"U" was the colleague of Appellant and addressing a colleague as "my sweet heart" does not mean to denote that the letter was written by a brother to his sister—No brother would even write a letter on an indecent letter head by addressing his sister as "my sweet-heart"—Allegation of the respondent that the appellant had illicit relations with "U" were not false and grand of mental cruelty pleaded by the appellant is unfounded—In order to establish that respondent-wife had deserted the appellant, it was essential for the appellant to establish two conditions (i) factum of separation and (ii) intention of respondent to bring cohabitation permanently to an end—Refusal by the wife, to live with her husband, who has another wife living does not make her deserter—It was the appellant, who did not allow the respondent to reside with him, because he wanted to live with "U"—Appellant could not establish that it was the respondent who deserted him—He is not aggrieved and genuine party and he is not entitled to any relief—Dismissing the petition for divorce—Proper. [Paras 12 to 15]
Held : Desertion means intentional permanent abandonment of one spouse by other without the other's consent and without reasonable cause. A deserting spouse has locus paenitentiae and can purge the consequences of such desertion by offering to live with the spouse who has been deserted. In the instant matter in order to establish that the respondent had deserted the appellant, it was essential for the appellant to establish two conditions - (i) factum of separation and (ii) intention of respondent to bring cohabitation permanently to an end. Essence of desertion is abandonment of one spouse by the other for no good cause and so there can be no desertion by a wife who lives separately from her husband if in law she is entitled do so. Refusal by the wife, to live with her husband who has another wife living does not make her deserter. A petition for divorce on the ground of desertion, however, would be liable to be dismissed when the Court holds that the party is not genuine and aggrieved and that the party failed to prove the ground on the basis of which the petition was presented. [Para 14]
(B) Hindu law—Divorce—Desertion—Meaning and essence of—Stated.
“You know better
Your relations with the other.
But would it be a crime
To spare some time.
And ask about me
about how I am?”
And where I am?”
These words appear to have been uttered in the instant matter by the respondent wife in response to the allegations of ‘mental cruelty and desertion’ leveled by the appellant husband against her. Learned Family Court, Jaipur where the appellant husband filed the petition for divorce found these allegations unfounded and dismiss the petition vide decree and judgment dt. 12.12.1989 that are under challenge in his appeal.
2. As per the facts stated in the petition the appellant entered into the marriage with respondent on 11.06.1978 according to Hindu rites and from their wedlock a female child was born on 13.07.1979, thereafter from 21.12.1980 the respondent started living separately. It was averred in the petition that the respondent from the very beginning of marriage had superiority complex. She used to compare her prosperous parental family with that of the simple family of the appellant. Many a times she expressed her proud feeling that she was the daughter of a Police Officer. The behaviour and conduct of the respondent caused immense emotional stress and mental agony. It was also pleaded that in the petition filed on behalf of her daughter Shruti, claiming maintenance, the respondent made false allegation against the appellant that he had illicit relations with another female doctor. According to the appellant this false allegation caused mental cruelty to him. The Appellant also averred that the respondent and deserted him for the past six years prior to filing of the petition. She left his house on 21.12.1980 without any just cause and started living with her parents and there being no sharing of the bed and co-habitation, prayer was made to grant decree of divorce for dissolving the marriage between the parties.
3. The respondent in her reply pleaded that the petition for divorce was filed on unfounded allegations. It was stated that the appellant himself ousted her and did not allow her to live with him. In fact when the respondent was to undergo an operation in February, 1980 the appellant left her and her daughter in the house of her parents. After the operation when the respondent went to the house of appellant, he openly told her that he did not want to live with her since he intended to marry with Dr. Urmil Katyal. In the year 1982 the appellant was posted at Sawai Madhopur and the respondent was residing with her in-laws at Jaipur. On 27.06.1982 the respondent alongwith her brother and parents went to Sawai Madhopur to reside with the appellant but he misbehaved with her and did not allow her to stay with him. In such circumstances it could not be said that the respondent deserted the appellant and caused mental cruelty
4. On the basis of pleadings of the parties learned Family Court framed as many as three issues related to cruelty, desertion and relief. The appellant examined himself and Dr. Mahendra Bag, whereas the respondent in addition to her own statement, adduced the evidence of Ashok Kumar, Gartesh Narain Vyas, Dr. am Lata Bhardwaj, Sita Ram Pareek, Raj Kumar Pareek and Mahesh Pareek. Thereafter on hearing final submissions learned Family Court decided all the issues against the appellant holding that neither the respondent deserted the appellant nor her behaviour was cruel to him.
5. Mr. Sagar Mal Mehta, learned Senior Counsel appearing for the appellant canvasses as under:-
(i) Family Court while deciding issue No. 1 gave undue importance to the letter dt. 11.04.1983 (Ex.-A1) addressed to Dr. Urmil Katyal. Family Court took a very restricted and orthodox view of the said letter though the appellant had explained the circumstances in which the said letter was written by him. The Family Court drew wrong inferences from the said letter which resulted in miscarriage of justice to the appellant. It is an admitted position that making false allegations o
