Desertion requires proof of separation and intent to end cohabitation; the burden of proof lies on the petitioner with a preponderance of evidence standard.

Judgment

Mr. Sumeet Goel, J.

The appellant-wife has preferred the present appeal against the judgment and decree dated 22.01.2008 passed by learned Additional District Judge, Kurukshetra whereby petition filed by respondent-husband under Section 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred as ‘the Act’) seeking dissolution of marriage was allowed and marriage between the parties was dissolved.

2. Succinctly facts first, as stated in the pleadings and evidence by rival parties.

2.1 The husband filed the divorce petition stating that marriage between the parties was solemnized on 26.06.2003, as per Hindu rites and ceremonies, at Naraingarh in District Ambala, Haryana. The parties lived together as husband and wife and cohabited with each other at village Sainsa, Tehsil Pehowa, District Kurukshetra. It was further stated by the husband that no child was born out of the wedlock and the wife left the matrimonial home on 31.05.2004. Later on, the husband came to know that wife had performed the second marriage with one Sameer resident of Jaipur on 10.07.2004. The husband also relied upon an affidavit dated 22.06.2005 sworn by the wife acknowledging the factum of her marriage with Sameer; her not willing to live with respondent (herein)-husband, having received her articles as also not wanting any legal action against respondent (herein) - husband as also his family members. The husband also relied upon DDR lodged in this regard vide rapat No.11 dated 23.06.2005 at Police Station Pehowa, District Kurukshetra, Haryana. The husband accordingly sought for a decree of divorce on account of desertion and acts of cruelty committed by wife.

2.2 Upon notice by the learned trial Court, the wife appeared and filed a written statement denying the allegations made in the petition seeking decree of divorce. She denied having performed second marriage with one Sameer resident of Jaipur as alleged in the petition filed by the husband. She further stated that it was the family members of the husband, who had turned her out from the matrimonial home on 25.05.2006 and the affidavit dated 22.06.2005 was got prepared under threat. Dismissal of divorce petition was accordingly prayed for.

2.3 From the pleadings of the parties, following issues were framed by the learned trial Court:-

1. Whether the petitioner is entitled to seek a decree of divorce on the ground of cruelty? OPP

2. Whether the petitioner is entitled to seek a decree of divorce on the ground of desertion? OPP

3. Whether the respondent performed second marriage, as alleged, if so, its effect? OPP

4. Whether the petition is not maintainable in the present form? OPR

5. Relief

2.4. To prove their respective stand, both the parties led their evidence.

PW-1-Abhey Ram, EHC No.313 Police Station Pehowa, appeared and produced police record pertaining to DDR No. 11 dated 23.06.2005 lodged at Police Station Pehowa, District Kurukshetra. PW-2-Tara Chand, Advocate/Notary Public, who attested the affidavit dated 22.06.2005 (Exhibit P-2), appeared in order to prove the execution of the said affidavit. PW-3-Puran Chand, who was the attesting witness of the said affidavit (Exhibit P-2), appeared in support of his having identified the parties at the time of execution of said affidavit. The husband himself appeared as PW-4 in support of his petition for grant of decree of divorce.

RW-1-appellant (herein) - wife appeared as a witness in support of her own defence against grant of divorce. No other witness was produced by the wife in support of her stand.

2.5. In this backdrop and on the basis of oral as well as documentary evidence available on record; issues Nos.1, 2 and 3 were answered in favour of the husband whereas issue No.4 was decided against the wife & a decree of divorce was granted in favour of the husband and against the wife and marriage between them was dissolved.

3. Learned counsel for the appellant-wife has argued that the learned trial Court has erred in granting the decree of divorce on t