The main legal point established in the judgment is that in cases of desertion, the burden of proof lies on the party alleging desertion, and there must be evidence to show the intention to desert the matrimonial bond.

JUDGMENT :

Sri Vipin Sanghi, J.

The present Appeal, under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and decree dated 20.12.2019 passed by the Principal Judge, Family Court, Haldwani in Case No. 334 of 2014.

2. By the impugned judgment, the Family Court has dismissed the divorce petition preferred by the appellant-husband, under Section 13(1)(ia),(ib) of the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion.

3. The parties were married on 04.05.2012. According to the appellant-husband, the respondent left the matrimonial home on 05.07.2012 i.e. just after two months of the marriage. According to the appellant-husband, the respondent-wife did not return to her matrimonial home, and, consequently, he filed the divorce petition, as aforesaid, on 12.12.2014. It was the case of the appellant-husband that the respondent-wife never returned to her matrimonial home, and her conduct evidenced her intention to desert the appellant-husband.

4. The said allegation of desertion was controverted by the respondent-wife, wherein she claimed that she was harassed for dowry demands, and made to suffer physical and mental stress by the appellant-husband. She claimed that the appellant-husband himself used to leave her at her parental home, and her brother used to leave her back at her matrimonial home. She claimed that her brother kept dropping her back at her matrimonial home till 2014.

The Family Court, in the impugned judgment, inter alia, observed as follows :-

“It is version of the Respondent that in 2012 (near about Raksha Bhandhan) the Respondents brother took the Respondent to her matrimonial home. Now the dates are relevant. If the Petitioner version is believed the relevant date is 05-07-2012 when the Respondent is said to have left him and the present Civil Suit was filed on 12-12-2014. It bears to reason here that in the meantime the relations of the parties deteriorated. The Petitioners (sisters daughter wedding) fell on 24 April 2014 and the wedding card to show the above fact is filed by the Petitioner. The Respondent admitted in her cross examination that she did not go to the wedding, though she submitted that the wedding happened in year 2014 after she was returned by her husbands to her paternal home. It is pertinent again that the Respondents elder brother marriage fell in December 2014 and Respondent younger brother marriage fell in April 2016 and Respondent admitted in cross examination that her Husbands family was never invited.”

5. The Family Court, however, rejected the ground of desertion for grant of divorce to the appellant, by placing reliance on the testimony of DW-3 Nityanand Bhatt, uncle of the respondent. In relation to his testimony, the Family Court observed as follows :-

“The testimony of DW-3 Nityanand Bhatt who is uncle of Respondent becomes very important. On the day he came in Court he said he was aged about 81 years. During the course of the arguments also the Ld Counsel for the Petitioner and Respondent addressed him in respectful terms telling the Court that he is held by society in very high esteem. Hence he is not expected to depose as an interested witness. He deposed that somewhere in 2012 near Raksha Bandhan he along with Dinesh Bhatt and Pitamber Bhatt went to Petitioners home to make efforts for conciliation. He specifically deposed that: oknh rFkk mlds ekrk firk us oknh dh xyrh ekurs gq, oknh dks le>kus rFkk i{kdkjksa ds x`gLFkh cpkus ds fy, lkFk lkFk lgefr nhA

Hence the above witness is deposing that the Petitioner parents admitted their mistake. It becomes apparent that if the Petitioners parents admitted their mistake than it is clear that if the Respondent is residing separate, it is due to fault of the Petitioner.

DW-3 again said that: i{kdkjksa ds e/; iqu% fookn gksus dh tkudkjh gksus ,oa ekg uoEcj 2013 esa mlds lk; dks viuh izsl ls ?kj dh vksj tkus ij dSuky jksM ds ikl oknh ds firk ls jkLrs esa