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CHHATTISGARH HIGH COURT
Goutam Bhaduri and Rajani Dubey, JJ.
Santosh Singh – Appellant
versus
Amita Singh – Respondents
FAM No.154 of 2015
Decided on 13.12.2021
Counsel for the Parties:
For the Appellant:Mr. Sourabh Sharma, Advocate
For the Respondent:Mrs. Renu Kochar, Advocate
IMPORTANT POINT
Divorce – Desertion by wife for no good reasons may lead to dissolution of marriage by a decree of divorce.
Headnote:
Hindu Marriage Act, 1955 – Sections 13(1)(ib) and 13(IA)(ii) – Divorce – Desertion by wife – Statement of wife would show that she was in know of fact that application for restitution of conjugal rights was filed by husband and despite notice by court, she refused to appear – Simply sitting dormant despite knowing of fact about effort made by husband for restitution of conjugal rights atleast shows intention of wife not to join back company of husband – Even otherwise she could have joined company of husband without there being execution of decree – Despite effort taken by husband to restore his matrimonial home, wife was not cooperative and under guise of auspicious time to return back, she continued at her maternal home – Marriage solemnized between appellant and respondent dissolved under Hindu Marriage Act by a decree of divorce. (Paras 11, 12, 13 and 14)
Result: Appeal allowed.
JUDGMENT
Goutam Bhaduri, J.—This appeal is against the judgment and decree dated 26.09.2015 passed by the Family Court, Raigarh, whereby the petition preferred by the appellant seeking divorce on the ground of desertion was dismissed.
2. The short facts, which is pleaded, before the court below, was that the appellant and respondent got married on 08.07.2010 and they lived together uptill 19.07.2010 for about 11 days. Subsequently, the respondent’s family members came and took her away on the ground of some important work. Thereafter, she did not return. It is pleaded on behalf of the plaintiff/ appellant that the appellant tried to get her back on two occasions on 04.08.2010 and on 14.10.2010 but the same was not acceded to on the ground that auspicious time (subh-muharat) was not there. It is further alleged that thereafter the respondent/ wife did not volunteer to join her husband back at any point of time. Subsequently, the appellant/husband filed a suit for restitution of conjugal rights, which was decreed exparte. In reply to the petition, the wife contended that she was ready and willing to join the company of the husband but the husband did not turn back to get her back when auspicious time started, which is according to their custom was necessary one. Thereafter, the husband did not make any effort to get her back. It is further contended that though the notice to the application for restitution of conjugal rights was received by the respondent/wife but she could not appear before the Court, as she was stuck in discharge of the Govt. official duties. It is further contended on behalf of the wife that she had not deserted the appellant/husband but infact the appellant/ husband failed to take her back as per the prevailing custom of duviragaman. Therefore, no desertion on the part of the respondent was committed.
3. Both the parties have adduced their evidence to the limited extent, which is in support of desertion and contrary to it.
4. The trial Court observed while dismissing the suit that the husband has failed proved the ground of desertion and further even after getting a decree for restitution of conjugal rights, since it was not put to execution; therefore, the intention of the husband was not to resume and restore the family and consequently would not be entitled for any decree of divorce.
5. Learned counsel for the appellant would submit that only on the ground of desertion that the husband has failed to prove the desertion, the dismissal of decree is bad. He would further submit that the evidence of the husband would show that the efforts to restore the family ties were proved and the evidence is beyond reasonable doubt. It is stated there was no iota of evidence to draw an inference to the fact that husband himself has not acted upon to continue his family life/matrimonial home. He would further submit that the admission on the part of the wife would also show that she was in know of the fact that the restitution of conjugal rights have been filed by husband and the decree was passed but despite that no efforts was made by the wife to join the matrimonial life along with the appellant/husband. Therefore, the decree of divorce is required to be passed. He placed his reliance in AIR 1990 SC 594.
6. Per contra, learned counsel for the respondent would submit that the custom which was prevailing in between the parties that during the ceremony of duviragaman, the husband was required to come personally to take the wife back. It is contended when husband came back to take the wife back the auspicious time was not existing as per the advice of the Pandit and the elders of the family. It is stated under these circumstances when the husband approached in the month of August and October, 2010, he was advised to come back after some time and was particularly advice to come back at particular auspicious time to take her back but the husband failed to turn back. She would submit that in the custom of the appellant and th
