2021 Supreme(Tri) 5

IN THE HIGH COURT OF TRIPURA, AGARTALA
AKIL KURESHI, S.G. CHATTOPADHYAY, JJ.
Sri Nirmal Paul, S/o. Sri Bhubaneswar Paul - Appellant
Versus
Smt. Namita Paul, W/o. Sri Nirmal Paul - Respondent
FA No. 06 of 2015
Decided On : 22-03-2021

Point of Law: Family and Personal Law - Seeking divorce - Ground of desertion - It is obligation of the court and all concerned that marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.

Headnote:

HINDU MARRIAGE ACT, 1955 - Section 13(1)(ib) – Matrimonial Dispute - Rejection of divorce petition – Appeal against – Case of appellant that a month after marriage, his wife started misbehaving with him - At that time appellant lived in a common mess with his old parents, three brothers and their families which were not liked by his respondent wife - She demanded a separate mess and told her appellant husband that it was not possible on her part to prepare food for every member of the extended family - Her conduct and behavior to appellant and his family members was very indignant and rude - She also used to visit her parents frequently and stay at her parental home for months together, within few months of marriage, she conceived and a daughter was born to them. 6 (six) months after birth of her daughter, respondent got a government job as teacher in an anganwadi centre at Udaipur - After getting her job she left company of her appellant husband and started living with her parents - Appellant visited his wife and daughter at her parental home several times to bring them back - But, she wanted her appellant husband to stay with her at her parental home at Udaipur - He then filed a suit in Family Court seeking restitution of conjugal rights which was registered in Family Court and after hearing parties, Family Court decided suit by directing spouses to meet each other once in a week – Though appellant met his wife and daughter at her parental home several times in terms of said order of Family Court but his respondent wife never came to meet him - Rather, she implicated appellant, his mother, younger brother and husband of his sister in a case under section 498A IPC - Whether in context of matrimonial offence appellant husband has been able to prove desertion against his respondent wife.

Finding of the Court: the essence of desertion is animus deserendi or intention on part of offending spouse to bring cohabitation permanently to an end without reasonable cause against consent or wish of the other spouse - Appellant husband in his testimony at trial before Family Court has categorically stated that his wife always wanted him to stay with her at Udaipur - Since, her proposal was not agreeable to him, he filed a suit for restitution of conjugal rights at Family Court at Agartala. It is admitted by the husband that in terms of direction of the Family Court he used to meet and stay with her at Udaipur. Admittedly, his respondent wife never objected his stay with her at Udaipur. In her evidence as DW-1, respondent wife also stated that she used to visit her husband at Agartala along with her daughter after order was passed by the Family Court in the suit for restitution of conjugal rights. According to her, since she was doing a Govt. job at Udaipur she used to come on every Saturday to place of her husband and leave on Monday morning to resume her duties at Udaipur. All those meetings between the spouses took place after the respondent wife allegedly abandoned her husband Marital bond between parties cannot be said to have gone beyond repair and as such the ground of irretrievable break down of marriage as expounded by learned counsel of the appellant is not acceptable to us - Appellant failed to prove ground of desertion against his respondent wife impugned judgment of Family Court does not call for any interference

Result: Appeal dismissed