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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Tek Chand - Appellant
Versus
Ratu Devi - Respondent
F.A.O. No. 162 of 2012
Decided On : 23-07-2021
Desertion - Hindu Marriage Act - Section 13(1)(ib) - [Section 13(1)(ib) of the Hindu Marriage Act, 1955] - The court discussed the provisions of Section 13(1)(ib) of the Hindu Marriage Act, 1955, which allows dissolution of marriage on the ground of desertion. The court emphasized the necessity to prove that the desertion was without reasonable cause and for a continuous period of not less than two years immediately preceding the presentation of the petition. The court also highlighted the explanation appended to Section 13(1), which defines 'desertion' and includes willful neglect of the petitioner by the other party to the marriage.
Fact of the Case:
The petitioner sought a decree of divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955. The respondent denied the allegations and asserted that the petitioner was at fault for willfully deserting and neglecting her.
Finding of the Court:
The trial court dismissed the petition, holding that the necessary ingredients for seeking divorce on the ground of desertion were not proved by the petitioner. The appellate court affirmed the decision, emphasizing that the petitioner failed to discharge the burden of proof and that the findings of a previous litigation between the parties had attained finality and became res-judicata.
Issues: The issues included whether the respondent had deserted the petitioner without reasonable cause and the relief sought.
Ratio Decidendi: The court held that the petitioner failed to prove the desertion without reasonable cause for a continuous period of two years, as required by Section 13(1)(ib) of the Hindu Marriage Act, 1955. The court also emphasized that the findings of a previous litigation between the parties had attained finality and became res-judicata, precluding the petitioner from claiming desertion without reasonable cause.
Final Decision: The appeal was dismissed, and the impugned judgment and decree were affirmed.
JUDGMENT
Satyen Vaidya, J. - Appellant, by way of the instant appeal, has assailed the judgment and decree dated 20.07.2011, passed by learned District Judge, Mandi, HP, in case H.M.P. No.30/2008 titled Tek Chand Versus Ratu Devi.
2. Appellant was petitioner before the trial Court. He sought a decree of divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955 ( hereinafter referred to as the 'Act' for short). The petition filed by the petitioner was dismissed vide judgment and decree impugned in the present appeal. The parties, for the sake of convenience and clarity, herein are addressed in the same manner as before the trial Court i.e. as petitioner and respondent.
3. The petition for dissolution of marriage was instituted by the petitioner on 11.09.2008. Petitioner had averred that respondent was his legally wedded wife since 1990. Two sons and a daughter were born out of their wedlock, who were minors at the time of filing of the petition.
4. Petitioner further alleged that respondent started disobeying and neglecting him on petty matters, so much so, that she turned indifferent and hostile towards him and the children. It was also contended by petitioner that he was physically disabled, and for this reason, respondent started ignoring him.
5. According to petitioner, he and parents of the respondent were residents of the same village. Respondent without caring for the maintenance and welfare of minor children, started living for longer duration at the house of her parents. Repeated efforts by petitioner to call her back were ignored by respondent. She finally withdrew herself from the company of the petitioner w.e.f. 30.08.2006, whereafter she completely deserted and neglected the petitioner.
6. Petitioner also mentioned in the petition that he had also filed a case under Section 9 of the Act against the respondent on an earlier occasion but the same was dismissed by learned Civil Judge ( Junior Division), Chachiot at Gohar, District Mandi, H.P., vide judgment and decree dated 07.08.2008.
7. Per contra, respondent by way of written reply denied all the averments made in the petition in generality. In addition, respondent took a specific stand that so long as she lived in her matrimonial home her life was made miserable by the petitioner, who always quarreled with her. Petitioner was blamed to be the creator of entire trouble. According to respondent, petitioner did not treat her as his life partner. She was ill-treated and maltreated regularly.
8. It was further contended by respondent that in February, 2006, she was turned out from her matrimonial home by the petitioner without any reasonable cause or excuse. She also alleged of being manhandled by the petitioner.
9. As per respondent, she lodged a complaint with Gram Panchayat Baila, Tehsil Chachiot, District Mandi, where a compromise dated 04.04.2006 was arrived inter se the parties and petitioner agreed to keep her with him in future without giving her any cause of annoyance or complaint. On such assurance/ promise respondent stayed with petitioner intermittently.
10. Respondent further alleged that on 08.09.2006, petitioner swore an affidavit before Notary Public promising not to torture or maltreat the respondent and to keep her with him providing all necessities of life. As per respondent, she joined the company of petitioner for about 15 days immediately after 08.09.2006 but was again ill-treated and forced to leave the matrimonial home.
11. Respondent admitted the factum of filing of and decision in the petition under Section 9 of the Act filed by petitioner. She, however, asserted that the petition was hotly contested by her and the petitioner was found at fault being responsible for willfully deserting and neglecting the respondent after administering beatings to her.
12. Respondent specifically denied that she left her matrimonial home w.e.f. 30.08.2006 and asserted that she lived in the company of the petitioner for about 15 days after 0
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