The court ruled that desertion requires proof of both physical separation and the intent to permanently end the marital relationship, which was not established in this case.

JUDGMENT :

Virender Singh, J.

Appellant-Leelawati has filed the present appeal under Section 28 of the Hindu Marriage Act, 1955 (amended up to date), (hereinafter referred to as ‘H.M. Act’) against the judgment and decree dated 29.04.2013, passed in H.M.A. Petition No.4-S/3 of 2009, titled as Jai Krishan Sharma versus Leelawati, by the learned Additional District Judge-II, Shimla, H.P. (hereinafter referred to as the learned trial Court).

2. Vide judgment and decree dated 29.04.2013, the learned trial Court has partly allowed the petition, filed under Section 13 of the H.M. Act, by respondent-Jai Krishan Sharma, by dissolving the marriage between appellant and respondent, by way of decree of divorce, on the ground of desertion.

3. For the sake of convenience, the parties to the present lis, are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:-

4.1 Petitioner-husband Jai Krishan Sharma has filed the petition under Section 13 of the H.M. Act, 1955 before the learned trial Court, on the ground that the marriage between him and respondent was solemnized, as per Hindu rites and customs on 15.12.1998 at village Karyali, Tehsil Theog, District Shimla, H.P. The marriage was duly consummated and they have been blessed with a son on 12.12.2000. The son is stated to be residing with the respondent, as according to the petitioner, the respondent had forcibly taken away their son on 26.11.2008, when, he was returning back from school. The matter was also reported to the Police of Police Station, Dhalli.

4.2. According to the petitioner, he was being treated with cruelty by the respondent and due to her cruel behaviour, he cannot live with the respondent. Elaborating his stand, he has pleaded that the respondent never shown any love and affection towards the petitioner. She never used to do the daily routine work and she was in habit of wandering here and there.

4.3. It is his further case that in the month of November, 2006, respondent left the matrimonial home without the permission of the petitioner and started living with her parents. Thereafter, the petitioner along with his parents and brother-in-law visited the house of the parents of the respondent to take her back and to settle the matrimonial dispute, but, respondent was not found there. When, her whereabouts were inquired, it has been told by the parents of the respondent that she is residing with one Dev Raj, who is maternal uncle of the petitioner. According to the petitioner, there was no occasion for the respondent to live with the maternal uncle of the petitioner. When, mother of the petitioner inquired from her brother, as to why, he is keeping the respondent with him, he started abusing the mother of the petitioner.

5. On the basis of the above facts, the dissolution of the marriage has been sought on the ground of cruelty and desertion.

6. From the pleadings of the parties, the following issues were framed by the learned trial Court, vide order dated 14.01.2010:-

(i) Whether the respondent has deserted the petitioner, as alleged, if so, its effect? OPP.

(ii) Whether the respondent treated the petitioner with cruelty as alleged. If so, its effect? OPP.

(iii) Whether the petitioner has a cause of action? OPP

(iv) Whether the petition is not maintainable in the present form? OPR.

(v) Whether the petitioner is estopped from ftling the present petition by his act and conduct, as alleged? OPR.

(vi) Whether the petitioner has not come to the Court with cle