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2000 Supreme(MP) 352
High Court Of Madhya Pradesh
V. K. AGRAWAL
SHRIKANT - Appellant
Versus
SAROJ - Respondents
FIRST APPEAL 276 Of 1998
Decided On : 04/08/2000
Alok Aradhe, Dinesh Choubey, N.K.PATEL
The main legal point established is that to prove desertion under Section 13(1)(ia) of the Hindu Marriage Act, the factum of separation and the intention to bring cohabitation permanently to an end must be proved, and the party seeking divorce cannot take advantage of their own wrong.
Headnote:
Hindu Marriage Act - Desertion - Section 13 - Summary of Acts and Sections: Hindu Marriage Act, 1955, Section 13(1)(ia), Section 9 - The court discussed the grounds for divorce under Section 13(1)(ia) and the definition of desertion as per the explanation to Section 13(1), and also referred to the restitution of conjugal rights under Section 9.
Fact of the Case:
The appellant sought divorce on the grounds of desertion and cruelty, alleging that the respondent had deserted him and treated him and his family with cruelty. The respondent denied the allegations and filed for restitution of conjugal rights.
Finding of the Court:
The court found that the appellant failed to prove desertion by the respondent and that the evidence presented was discrepant and inconsistent. The court also noted the demand of dowry by the appellant's father and the subsequent strained relationship, concluding that the appellant was responsible for the estrangement.
Issues: The main issue was whether the appellant had established desertion by the respondent and whether the marriage had irretrievably broken down.
Ratio Decidendi: The court held that the appellant's evidence of desertion was not credible and that the respondent's living separately was justified due to the appellant's conduct. The court also emphasized that the appellant could not take advantage of his own wrong under Section 23(1)(a) of the Hindu Marriage Act.
Final Decision: The court dismissed the application for divorce and the appeal, ruling in favor of the respondent and ordering the appellant to bear his own costs and pay the costs of the respondent.
( 1 ) THIS appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'act' for short) has been preferred against the judgment and decree dated 12-5-1998 in Civil Suit No. 2-A/1997 by District Judge, Panna whereby the petition under Section 13 of the 'act' by the appellant seeking divorce against the respondent wife has been dismissed.
( 2 ) UNDISPUTABLY parties were married in January, 1990 at village Kanti, Tahsil Gunnore, District Panna. Gauna ceremony took place in November, 1992 whereafter, the respondent/wife lived in the matrimonial home for some time. She thereafter visited her parents' home twice till April, 1994. In April, 1994, she went along with her father to her parents' home. She did not reside with the appellant/petitioner after April, 1994. It is also not in dispute that the petitioner/appellant served two notices to the respondent/wife asking her to return back to the matrimonial home, which were duly replied to by the respondent/wife through her counsel.
( 3 ) THE petitioner/appellant averred in his petition under Section 13 of the 'act' that his wife/respondent did not return back to him after she left the matrimonial home with her father on 30th April, 1994, despite several efforts made by the appellant/husband to bring her back. It has been averred in the above context that on four occasions, the appellant or his brothers went to the parents' home of the respondent/wife, but they could not succeed in bringing her back. It has, therefore, been averred that the respondent/wife has deserted the appellant. It was further averred that the respondent treated the appellant and his family members with cruelty, when she was living with them in the matrimonial home. A decree for divorce on the afore-mentioned grounds was sought.
( 4 ) THE application was resisted by the respondent/wife. According to her averments in reply to the above petition, the father of the appellant, at the time of marriage in January, 90 demanded four tolas of gold, 2 Kgs. of silver ornaments and cash amount of Rs. 50,000/- as dowry from the father of the respondent. Since the respondent's father expressed his inability to meet such a demand, the marriage-party returned back without taking the respondent along with them and the 'bida' of the respondent could not take place on the above ground. Later on, with the intervention and persuasion of the relatives of the respondent/wife and other respectable persons, the appellant/husband performed the 'bida' of his wife in the month of November, 1992 and had taken her with him to his village Kamta. During the period, the respondent/wife resided in her matrimonial home at village Kamta, there was continuous demand of dowry by the appellant and his family members. She was not even afforded articles of daily needs. She apprehended danger to her life. Therefore, she communicated the message through one Neeraj to her father, Badri Prasad, who had thereafter taken her back. She has denied the averments of the petitioner/appellant that he or his brothers and other relatives attempted to take her back to her matrimonial home. She has further averred that there was a possibility of the appellant remarrying. Therefore, she had filed an application under Section 9 of the 'act', which was registered as Civil Suit No. 40-A/1996 in the Court of District Judge, Panna. She also averred that she is still willing to live with her husband, the appellant, provided she is assured of security of her life and the appellant's father gives up his demand of dowry.
( 5 ) THE learned trial Court, in the impugned judgment, held that there was demand of dowry by the appellant and his family members. It was also found that the respondent has not deliberately refused to live with the appellant/husband and has not deserted him. It was also held that there was no effort on the part of the appellant/husband to bring back the respondent/wife to the matrimonial home, as has been his stand.
