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HIMACHAL PRADESH HIGH COURT
Rajiv Sharma, J.
Yashwant Singh Chauhan —Appellant
versus
Sneh Lata —Respondent
FAO No.251 of 2015
Decided on 19.8.2015
Counsel for the Parties:
For the Appellant:Mr. Anuj Gupta, Advocate
For the Respondent: Nemo
IMPORTANT POINT
A bigamous husband cannot be awarded relief of divorce with his first wife.
Headnote:(A) Hindu Marriage Act, 1955—Section 13—Divorce—Cruelty and desertion by wife—Desertion is separation of one spouse from other with an intention on part of deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without consent of other spouse—Physical act of departure by one spouse does not necessarily make that spouse deserting party—There can be desertion without previous cohabitation by parties or without marriage having been consummated—Person who actually withdraws from cohabitation is not necessarily deserting party—Fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion—Quality of permanence is one of essential elements which differentiates desertion from wilful separation—If a spouse abandons other spouse in a state of temporary passion without intending permanently to cease cohabitation, it will not amount to desertion. (Para 11)
(B) Hindu Marriage Act, 1955—Section 13—Divorce—Cruelty and desertion by wife— Appellant has contracted second marriage though first marriage was subsisting—Relief sought for by appellant cannot be granted to him—Appellant has disobeyed law by contracting second marriage—He cannot be permitted to take advantage of his own wrong and respondent has no option but to leave matrimonial home—Appeal dismissed. (Paras 17 and 18)
Result: Appeal dismissed.
Rajiv Sharma, J.—This appeal is directed against the judgment and decree dated 16.5.2015 rendered by the Additional District Judge- Shimla in Case No.12-R/3 of 2010.
2. “Key facts” necessary for the adjudication of this appeal are that the marriage between the parties was solemnized on 5.5.1995 according to Hindu ritual, rites and custom prevalent in the area. Appellant has filed petition under section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by decree of divorce. According to the appellant, conduct of the respondent always remained arrogant, cruel and quarrelsome. Respondent without any reasonable cause withdrew from the society of the appellant. She has also filed petition for maintenance. There is no possibility of conciliation between the parties. Respondent has subjected him to cruelty.
3. Petition was contested by the respondent. The averments made in the petition were denied. According to the respondent, a sum of Rs. 25,000/-, which was given to her at the time of marriage was also utilized by the appellant. Appellant has contracted second marriage with another lady, namely, Smt. Yashodha. She has given birth to two children. She has filed a petition under section 125 of the Code of Criminal Procedure against the appellant seeking maintenance. It was allowed by the Court. The appellant was Government servant. He was drawing more than Rs. 30,000/- per month. He was having income of Rs. 5 lakhs from the orchard. Respondent has no alternative except to take shelter in the house of her father. The son was about 12 years old at the time of filing of petition.
4. Issues were framed by the learned Additional District Judge-I, Shimla on 16.3.2012. He dismissed the petition on 16.5.2015. Hence, the present appeal.
5. Mr. Anuj Gupta, learned counsel for the appellant has vehemently argued that his client has been subjected to cruelty by the respondent. Respondent has deserted the appellant without any reasonable cause.
6. I have heard the learned counsel for the appellant and have gone through the judgment carefully.
7. Appellant has appeared as PW-1. According to him, he was treated by the respondent with cruelty. She used to abuse him with intention to humiliate him. She used to leave the house without permission. Respondent has left his company without any reason and cause.
8. PW-2 Roshan Singh has shown ignorance to the specific case of respondent that the appellant has contracted second marriage with Yashoda Devi. PW-4 Gulab Singh has also shown ignorance regarding second wife of the appellant having two children. PW-5 Mehar Sain has also shown ignorance regarding contracting second marriage by the appellant. However, fact of the matter is that these witnesses have not denied the case of respondent that appellant has contracted second marriage specifically.
9. Respondent Sneh Lata has appeared as RW-1. According to her, she was living separately from her husband since 1996. It is the appellant who has left her company without any reason. The behaviour of appellant towards her was not good. Appellant has contracted second marriage with Yashodha Devi. She was constrained to file a petition under section 125 of the Code of Criminal Procedure for maintenance.
10. RW-2 Duni Chand has proved documents Ex.RW- 2/A to Ex.RW-2/D. RW-3 Kusum Clerk from Sarswati Vidya Mandir School, Samala, Rohru has proved school record Ex.RW-2/D. It is evident from the school record that appellant has contracted second marriage with Yashodha Devi. Date of birth of Bharat Bhushan is 5.12.2002 and date of birth of Jaiwanti is 25.12.2003. Name of the mother of Bharat Bhushan and Jaiwanti in the school register is recorded as Yashodha Devi. The averments made by the appellant in the petition against the respondent were vague and sketchy. It was upon the appellant to prove cruelty against the respondent. It is the appellant, who has caused mental cruelty towards respondent by contracting second marriage with Yashodha th
