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IN THE HIGH COURT OF RAJASTHAN
AJAY RASTOGI, ASHOK KUMAR GAUR, JJ.
SMT. NANDANI SINGH — Appellant
Vs.
RAN VIJAY SINGH — Respondent
Civil Miscellaneous Appeal No. 3123, 940 of 2010
Decided on : 30-08-2017
Hindu Marriage Act, 1955 – section 9 13 23 28A – Cr.P.C., 1973 – section 125 – CPC – Order 21, Rule 33 – Appeal Against Divorce and Denial of Maintenance – D.B. Civil Misc. Appeal 940 is filed by the appellant wife against judgment and decree passed by the ld.Family Court No.1, granting decree of divorce to the respondent-husband and dissolving their marriage solemnized in 1990 – Another D.B. Civil Misc. Appeal 312 is preferred by the appellant-wife assailing the order passed by the ld.Family Court No.1, rejecting her application for maintenance filed under section 125 Cr.P.C., 1973 – Held, From the material which has come on record, the two essential conditions which have to be fulfilled regarding deserting spouse is concerned are (1) the factum of separation; and (2) the intention to bring cohabitation permanently to an end (animus deserendi) – At the same time, two elements are essential so far as the deserted spouse is concerned viz., (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 – From the material available on record, it is established that the appellant-wife has deserted the respondent-husband for a continuous period of not less than two years immediately preceding the presentation of the divorce petition but the fact is that she left the matrimonial home in1997 and never tried to return back and has no intention to restore the matrimonial ties and that is supported by her own deposition in cross examination as DW-1 that it was not possible for her to restore the conjugal rights as she has preferred appeal against the judgment & decree of the ld.Family Court granting decree of restitution of conjugal rights to the respondent-husband and is not interested to give divorce to him – Thus, the factum of separation and her intention to bring cohabitation permanently to an end (animus deserendi) stands established – Court is satisfied that the evidence of respondent-husband appears to be reliable whereas the testimony of the appellant-wife is against her averments on record which certainly not only belies her testimony but also renders her unworthy of trust – The finding of fact which has been recorded by the ld.Family Court of the appellant-wife has deserted the respondent-husband without any reasonable cause or justification is well established from the material on record and, in Court considered view, the finding is liable to be sustained and does not call for interference – The submission made by counsel for the appellant is wholly without substance – So far as the appeal which has been preferred by the appellant-wife against the order rejecting her application under section 125 Cr.P.C., 1973 is concerned, Court have gone through the order impugned and find that substantial reasons have been assigned by the ld.Family Court while rejecting her application seeking maintenance under section 125 Cr.P.C., 1973 which does not call for interference by this Court – Consequently, both the misc. appeals being devoid of merit and substance are hereby dismissed – Appeals Dismissed
Ajay Rastogi, J.
D.B. Civil Misc. Appeal No.940/2010 is filed by the appellant wife against judgment and decree dated 26.02.2010 passed by the ld.Family Court No.1, Jaipur granting decree of divorce to the respondent-husband and dissolving their marriage solemnized on 15.04.1990.
2. Another D.B. Civil Misc. Appeal No.3123/2010 is preferred by the appellant-wife assailing the order passed by the ld.Family Court No.1, Jaipur rejecting her application for maintenance filed under section 125 Cr.P.C., 1973 vide order dated 08.09.2010.
3. The brief facts of the case are that marriage of the appellant & respondent was solemnized on 15.04.1990 at Jaipur according to Hindu rites & customs but there is no issue from this wedlock. Application has been filed by the respondent-husband seeking decree of divorce under section 13 of the Hindu Marriage Act, 1955 on 22.03.2006 and it was averred by him that at the time of marriage he was working in tea gardens in the State of Assam but due to insistence of the appellant-wife, he left his job and came to Jaipur in April, 1991 and parents of both the parties are residing in the city of Jaipur. According to him, most of the time, the appellant wife used to stay at her parents' house and did not take care to prepare meals etc. for the respondent-husband and she finally left her matrimonial home on 27.01.1997 and went to her parents' house. In the month of May, 1998, she came to the house of the respondent-husband and took her personal belongings like cloths, ornaments etc., which she needed on the occasion of marriage of her brother and thereafter she did not return back despite various efforts being made and she certainly has a proud of her higher education in comparison to the respondent-husband.
4. When the respondent-husband finally failed in the efforts to restore back their matrimonial ties, he filed application under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights in the year 2002, on the basis of the pleadings on record application was decreed by the ld.Family Court No.1, Jaipur vide judgment & decree dated 10.03.2005, which came to be challenged by the appellant-wife before this court in D.B. Civil Misc. Appeal No.1063/2005 and that came to be dismissed on 08.05.2007 and she further filed D.B. Civil Review Petition No.53/2007 which too was dismissed on 26.02.2008.
5. It was further averred by the respondent-husband in his matrimonial application that despite the judgment & decree of the ld. Family Court for restitution of conjugal rights dated 10.03.2005 he has tried his best to restore his matrimonial ties but since he failed and no cohabitation has taken place at least permanently after the appellant-wife left the matrimonial home on 27.01.1997, he is entitled for decree of divorce.
6. In the written statement filed by the appellant-wife, the only defence which she took was that against the judgment & decree of restitution of conjugal rights in favour of the respondent-husband dated 10.03.2005 she has preferred D.B. Civil Misc. Appeal No.1063/2005 in the High Court and such plea is not available to be raised by the respondent-husband. In the same breath, further averred that she is still willing to restore their matrimonial relations.
7. The ld. Family Court on the basis of the pleadings of the parties, in all framed three issues for determination, which read ad infra:-
^^1- D;k nkEiR; vf/kdkjksa ds iquZLFkkiuk dh fM+dzh fnuakd 10-03-2005 ds i'pkr i{kdkjksa ds e/; nkEiR; laca/kksa dh izR;kLFkkiuk ugha gqbZ\ 2- D;k izkFkhZ fookg foPNsn izkIr djus dk vf/kdkjh gS\ 3- vuqrks"k\^^
8. In support of his case, the respondent-husband recorded his own statement as PW-1 and of his father as PW-2 and the appellant-wife in support of her defence recorded her own statement as DW-1.
9. On the basis of the pleadings of the parties, the ld.Judge, Family Court No.1, Jaipur finally arrived to the conclusion that there is sufficient material on record to establish that the appel
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