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1993 Supreme(MP) 510
A.R. Tiwari, J.
Gunuveena Singh
vs
Capt. Pankaj Puneet Singh
DECIDED ON : 25 August, 1993
A wife is entitled to a decree of divorce on proof of ill-treatment and cruelty by her husband.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 13(1A), 13(1B) - DESERTION - CRUELTY - DISSOLUTION OF MARRIAGE - WIFE ENTITLED TO DECREE OF DIVORCE ON PROOF OF ILL-TREATMENT AND CRUELTY.
Fact of the Case:
The appellant-wife filed a petition for dissolution of marriage on the grounds of cruelty and desertion. The respondent-husband remained absent and did not contest the petition. The trial court dismissed the petition on the ground of deficiency or variance in the pleadings.
Finding of the Court:
The High Court held that the appellant-wife had proved the grounds of cruelty and desertion. The court found that the respondent-husband had treated the appellant-wife with cruelty by humiliating her in front of servants, threatening to kill her, and accusing her of infidelity. The court also found that the respondent-husband had deserted the appellant-wife by refusing to take her back after she left the matrimonial home.
Issues: Whether the appellant-wife had proved the grounds of cruelty and desertion.
Ratio Decidendi: The High Court held that the appellant-wife was entitled to a decree of divorce on the grounds of cruelty and desertion. The court relied on the provisions of Section 13(1A) and 13(1B) of the Hindu Marriage Act, 1955, which define cruelty and desertion, respectively. The court also relied on the Supreme Court decision in Sanat Kumar Agarwal v. Smt. Nandini Agrawal, which held that desertion is a matter of inference to be drawn from the facts and circumstances of each case.
Final Decision: The High Court allowed the appeal in part and granted the appellant-wife a decree of divorce. The court also directed the appellant-wife to initiate appropriate proceedings against the respondent-husband for alimony and other consequential reliefs.
A.R. Tiwari, J.
1. This appeal has been presented under Section 28 of the Hindu Marriage Act, 1955 (for short, 'the Act') against the judgment and decree dt. 15th July, 1992 rendered by Additional Judge, Mhow to the Court of District Judge, Indore in Hindu Marriage Case No. 47/90, thereby dismissing the petition seeking dissolution of marriage by decree of divorce on the grounds of cruelty and desertion.
2. The factual matrix in brief is that the marriage between the parties was solemnized 14-4-87 according to Hindu rites. The respondent treated the appellant with cruelty. She was humiliated before servants and was threatened to be killed. The respondent also indicated suspicion against fidelity of the appellant and disowned the son born to her. The responder did not care to keep the appellant with him and thus deserted to her in Oct. 1988. These various acts caused reasonable apprehension in the mind of the petitioner that it will be harmful and injurious for her to live with the husband/respondent. She was tortured mentally also and on these twin grounds, the appellant presented the petition on 19-11-90 i.e. after expiry of two years from the date of desertion. She also claimed restoration of property retained by the respondent as particularised in the list annexed with the petition. The summons of the aforesaid petition was sent by Registered Post Acknowledgement Due also. The summons was treated to be served in terms of proviso to Order 5 Rule 19-A of the Code of Civil Procedure, as the acknowledgement was not received by the Court within 30 days from the issue of summons. On this ground the application dated 1-4-92 was accepted by the Trial Court and the order to proceed Ex-parte against the respondent was passed on 1-4-1992. The appellant and her father were examined on 1-5-1992 and on 11-6-1992 respectively. On evaluation of Ex parte evidence, the Trial Court, however, dismissed the petition. Aggrieved by the judgment and decree passed by the Trial Court, the appellant has preferred this appeal.
3. The point for determination is whether the judgment and decree passed by the Trial Court is sustainable in law.
4. Lett in the lurch, the wife, chagrined by lugubrious me, petitioned under Sections 13 (ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage by decree of divorce complaining of matrimonial offences by the husband. The relevant provisions are extracted below :--
That the other party--
(ia) has after the solemnization of the marriage treated the petitioner with cruelty.
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
(Explanation : In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly.)
5. As to the chronicle, the claim rested on the linchpin of the under noted matrix :--
(a) The marriage was solemnized on 14-4-87 at Chandigarh according to Hindu rites. The petitioner last resided with her husband at Mhow. The non-applicant treated the petitioner * with cruelty. Implorements by parents and relatives proved to be an exercises in futility. Apprehending risk to limb and life, the petitioner returned to parental home in Oct. 1988. The ornaments an articles given in dowry, as particularised in the annexure, are retained by the non-applicant.
(b) The Non-applicant has deserted the petitioner and is guilty of non chalange and wilful neglect.
(c) The Non-applicant, during his visit to the hospital at the time of delivery, voiced about escutcheon saying that male offspring belonged to "some one else."
6. The non-applicant chose to be absent and offered no resistance to the claim as put forward. Yet, on ev
