Daily Archives: August 14, 2015

forcing hubby as Ghar Jamaee, deserting him on refusal, not attending 2 his ailments CRUELTY. Divorce decreed. MP HC

In this case the couple get married at a very young age. Right from the start of the matrimonial relations the wife and her father pressurize the husband to live as a Ghar Jamaee. He refuses to ditch his parents and live with them. So the wife misbehaves with him and starts living with her parents. She does not attend to him even though he is an Asthma Patient. His attempts to bring her back fail. He files for divorce in lower court, but looses the case in lower court. He appeals to the HC. The Hon HC appreciates the evidence and correspondence between parties and ascertains the wife’s cruelty and desertion. Husband gets divorce.

Excerpts :
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The Hon HC appreciates the evidence : “……21. The evidence as above would indicate that the petitioner desired that respondent should live with him, but the respondent and his family members insisted that the petitioner should come to Indore and should live with the respondent’s parents. It also appears from the above evidence that the respondent/wife, was not willing to live with the petitioner, in her matrimonial home; and that she used to quarrel and misbehave with the petitioner and her parents, even during the short period for which she lived with them. Thereafter, she returned back to her parents home in the year 1984, and did not return back despite persuasion of petitioner and his family members. It is also clear that the petitioner’s elder brother Ravishankar who was married on the same day, on which the petitioner was married, was required to live with the in-laws as ‘Ghar Jamaee’ under their pressure and expressed regrets and remorse about the above state of affairs, as would be evident from letters Ex. P-1 and Ex. P-2, written by him…..”

“…….22. In view of above, the petitioner’s statement that he was being persuaded and forced to live with his in-laws at Indore as ‘Ghar Jamaee’ is rendered plausible and believable. In fact, a letter Ex. P-3 written by respondent’s father, clearly contains a veiled threat that the petitioner’s parents would be loosing their younger son i.e., the petitioner also, as was the case with their elder son, i.e., Ravishankar. …..”

The Honourable HC concludes as follows “…..34. It would appear from the evidence as discussed above, that the respondent and her father had been continuously pressing the petitioner/husband to live with them as ‘Ghar Jamaee’. On the petitioner’s refusal to yield their unjust demand as above, the respondent/wife started misbehaving and maltreating the petitioner/husband and his family members. The respondent/wife had forsaken the company of the petitioner/husband without any justifiable cause and against his wishes. The petitioner/husband was an asthama patient. However, he was left alone to suffer in his misery and ailment, while he was posted at Bakhtara, as has been stated by him. Though married the petitioner, never enjoyed the marital bliss and comfort of a home. She did not return back despite requests and efforts made by the petitioner. The respondent’s father had extended threats to the father of the petitioner that he would be losing his younger son i.e., the petitioner also, as was the case of the elder brother of the petitioner.

35. It is, therefore, clear that the petitioner had to live a lonely life for a very long period of 17 years. The cumulative effect of the above facts and circumstances indicate that the respondent had treated the petitioner with cruelty.

36. It is thus clear that the grounds of desertion and cruelty have been established by the evidence and the facts and circumstances of the case. Thus, grounds for granting a decree of divorce as enumerated in Section 13(1)(i-a) and 13 (1) (i-b) have been made out…………….”

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Madhya Pradesh High Court

Gajendra vs Smt. Madhu Mati on 16 March, 2001

Equivalent citations: AIR 2001 MP 299, II (2001) DMC 123, 2001 (3) MPHT 335

Author: V Agrawal

Bench: V Agarwal

JUDGMENT V.K. Agrawal, J.

1. This appeal preferred under Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and decree dated 23-12-1991 by Third Additional District Judge, Bhopal, dismissing the petition under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’ for short), praying for divorce.

2. Undisputably, the parties were married in the month of February, 1976 at Indore. Both of them were minors at the time of their marriage. I; is also not in dispute that the elder sister of respondent was also married to the elder brother of petitioner on the same day, on which the parties were married. The ‘Gauna’ ceremony took place in the year 1978; whereafter, the respondent/wife came to the house of petitioner husband for a short while and then went back to the house of her parents. She continued to reside with her parents at Indore till the year 1983. The parents of appellant/husband are permanently residing at Bhopal. It is also now not in dispute that the parties last resided together at Bhopal till the year 1984, whereafter the respondent is living with her parents.

3. The petitioner filed an application under Section 13(1)(i-a) and 13(1)(i-b) of the Act, praying for dissolution of marriage by a decree of divorce. He averred therein that the petitioner made several efforts upto the year 1983 to bring his wife – the respondent to the matrimonial home at Bhopal, however the respondent was reluctant to come to the matrimonial home and the father of respondent desired that the petitioner/husband should reside at Indore in the house of respondent/wife as ‘Ghar Jamaee’. It was alleged that, when the pressure tactics of respondent and her father failed, the respondent started behaving in a harsh manner. It was alleged that she used to misbehave with the family members of petitioner and created nuisance and rowdy scenes. She would threaten that she would commit suicide in case the petitioner does not shift to Indore as desired by respondent, and if she was compelled to reside at Bhopal. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. It was further averred that ultimately the petitioner yielded to the persuasion and pressure tactics of respondent and shifted to Indore in June 1983 with her. A job in a private factory was procured by the father of respondent. However, as the petitioner was not inclined to reside with his in-laws in their house, he started residing in his own house at Indore, despite pressure from respondent and her father to live with them. Annoyed on account of resistance as above on the part of the petitioner, the respondent and her father used to quarrel with him. They also desired that the earnings of petitioner should be handed over to the respondent’s father. On account of constant nuisance and ill-treatment of respondent and her father, the petitioner went back to Bhopal in December, 1983. It was averred that the respondent after great persuasion agreed to accompany the petitioner and came to Bhopal. However, the respondent continued to compel and pressurise the petitioner to return to Indore. The petitioner refused to yield to the above pressure. Having failed in their efforts, the father of respondent took her away to Indore in February, 1984. It has also been averred by the petitioner that since then the respondent did not come back to the petitioner, despite several efforts made by him. The respondent filed an application under Section 125, CPC for maintenance at Indore, which has been allowed. A criminal revision against the said order was pending.

5. The petitioner further averred that the demand of respondent and her father that the petitioner should leave his parents and should live with the respondent’s father was unacceptable to the petitioner. Since the petitioner refused to accede to the above demand, the respondent is living with her father for a long period and has thus deserted the petitioner for a period of more than two years. The petitioner/husband therefore prayed for a decree for divorce on the ground of cruelty and desertion as above on the part of the respondent.

6. The respondent/wife resisted the petition and the above averments were denied. According to the respondent/wife she never misbehaved or maltreated the petitioner or his family members. She has also denied that she or her father desired that the petitioner should live with the father of respondent as ‘Ghar Jamaee’. According to the respondent, she never deserted the petitioner and in fact she made several attempts to come to her matrimonial home, but she was not permitted to do so.

7. The learned Trial Court framed mainly two issues, which were to the effect: as to whether the respondent treated the petitioner/husband with cruelly and as to whether the respondent has deserted the petitioner for a period of more than two years preceding the filing of the petition ?

8. The learned Trial Court found that the evidence led by the petitioner regarding allegations of cruelty or desertion is not worth acceptance, and thus it held that it was not proved that the respondent treated the petitioner with cruelty or had deserted him. Thus both the issues have been decided by the Trial Court against the petitioner/husband. The petition of divorce filed by him was therefore dismissed.

9. Learned counsel for petitioner/appellant submitted that the marriage between the parties took place while they were minors. It was also submitted that the petitioner’s elder brother was married to the respondent’s elder sister. The petitioner’s elder brother has been made to live by his wife’s parents as ‘Ghar Jamaee’, and the respondent and her father desired and persistently pressed the petitioner to live with them at Indore at the house of respondent’s parents as ‘Ghar Jamaee’. When the petitioner/husband refused to accede to their desire as above, the respondent started maltreating and misbehaving with the petitioner and his family members. She ultimately left the matrimonial home in the year 1984 and has not returned so far, despite persistent efforts by the petitioner. It was therefore, submitted that the respondent has treated the petitioner with cruelty and has deserted him. It has also been submitted by the learned counsel for the appellant that the marriage between the parties has completely broken down and there are no chances of their reunion. It was therefore submitted that the petition filed by the husband for decree of divorce deserves to be allowed.

10. None appeared for the respondent at the time of hearing.

11. The first question that requires consideration is, as to whether it has been established that the respondent/wife has deserted the petitioner for a period of two years or more ?

12. Under Section 13(1)(i-b) of the ‘Act’ one of the grounds for granting divorce is desertion. A decree for divorce can be granted on the ground that the other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The expression ‘desertion’ is not defined in the ‘Act’. ‘Desertion’ in the context of matrimonial law represents a legal conception which is very difficult to define. Essential ingredients of desertion’, so as to furnish a ground for the relief of divorce are:

(a) Factum of separation;

(b) Intention to bring cohabitation permanently to an end -Animus deserendi; and

(c) The element of permanence i.e., elements (a) and (b) as above should continue during the entire statutory period.

The explanation clause of Section 13(1)(i-b) of the ‘Act’ provides that 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. Thus, the above explanation has widened definition of desertion to include wilful neglect of the respondent and so as to amount to matrimonial offence, desertion must be without reasonable cause and without the consent or against the wish of the petitioner. The offence of desertion thus commences when the fact of separation and the animus deserendi co-exist.

13. As laid down in Smt. Rohini Kumar Vs. Narendra Singh (AIR 1972 SC 459) desertion does not imply, only a separate residence and separate living, but it is also necessary that there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion.

Similarly in Sanat Kumar Agarwal Vs. Smt. Nandini Agarwal (AIR 1990 SC 594), it has been observed that:

“The question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both interior and subsequent to the actual act of separation.”

14. In the instant case, undisputably the parties are living separately from each other from February, 1984, i.e., for a much longer period of two years. In the circumstances, the question that requires consideration would be as to whether the respondent can be said to have ‘deserted’ the petitioner. Therefore, the evidence regarding the circumstances, in which the parties are residing separately shall now be considered.

15. The petitioner/husband Gajendra (A.W. 1) has stated that he was married in the year 1976 with the respondent, when he was aged about 14 years. He further stated that his elder brother was married to the respondent’s elder sister on the same day. Thereafter, the respondent went back alongwith her parents to Bombay where they were then residing; while the petitioner came back to Bhopal to his parents’ house. He further states that in the year 1978 the ‘Gauna’ ceremony took place and his wife the respondent, came and resided with him at their house at Indore for a couple of days and then left for Bombay to her parental home. The petitioner Gajendra (A.W. 1) has stated that in the year 1983 he went to Indore, where her parents had settled to bring his wife – the respondent, with him. He stales that the parents of his wife however, were not prepared to sent her with him, and desired that the petitioner should come and live with them at Indore and serve at the place as may be directed by them. He has stated that in 1983 with great difficulty he could persuade his wife – the respondent, to come to Bhopal. The petitioner Gajendra (A.W. 1) has further stated that the respondent wife had come to Bhopal with him reluctantly, and lived with him at Bhopal only for about two or three months. During the above period the brother and parents of his wile used to come to Bhopal and tried to take the respondent as well as the petitioner to Indore. They also interfered in his domestic affairs. He also states that the respondent would also threaten him with dire consequences and also of committing suicide. She would also insult and humiliate him and used abusive language.

16. Petitioner Gajendra (A.W. 1) also stated that ultimately he was forced to go to Indore with his wife. However, at Indore he stayed at his own house. Further statement of Gajendra (A.W. 1) was that at Indore also the parents of respondent/wife would insist that the petitioner and his wife should reside with them in their house and should give them the income earned by him. He has stated that his elder brother Ravishankar was already living with the parents of his wife as ‘Ghar Jamaee’ and was giving his in-laws his income, which t hey would spend as they desired. Gajendra (A.W. 1) further states that he returned back alongwith the respondent to Bhopal where she stayed with him till February, 1984. During the above period also she misbehaved with him. In February, 1984 she went away with her father and never came back.

17. Petitioner Gajendra (A.W. 1) has also stated that he was unemployed till December, 1985. He was suffering from Asthama. He got an employment in the year 1986. His statement is that despite knowledge of his ailment the respondent never lived with him and he remained uncared for, while he stayed at Baktara, where he was posted in the year 1986. He stated that on account of behaviour of respondent and her parents as above, his life became miserable and mental and physical pain and suffering was caused to him. He also stated that the respondent/wife filed an application under Section 125, CPC for maintenance at Indore. That application was allowed and that he has filed a revision against the said order.

18. The statement as above has been corroborated by the statement of his father Bagirath (A.W. 4). He has stated that his elder son Ravishankar was residing as ‘Ghar Jamaee’ with his in-laws under their pressure. He has also stated that from 1986 onwards his elder son Ravishankar had not come to visit them. Bagirath (A.W. 4) states that the behaviour of respondent was objectionable. She used to abuse them and misbehave with them. She used to threaten them and quarrel with her husband – the petitioner. He has also stated that when the respondent was with them in Bhopal, her father and brother used to visit them and coax the petitioner to come to Indore and reside with them. This behaviour of respondent and her family members caused great disturbance in their family. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. The petitioner has also examined Kanhaiyalal (A. W. 2) who belongs to their community. The statement of Kanhaiyalal (A.W. 2) would indicate that Bagirath (A.W. 4) the father of petitioner complained to him that the respondent was living with her parents, who did not send her to the petitioner’s house. He has stated that he also tried to persuade the respondent to live with the petitioner but, her father did not agree to send her.

20. Kamal (A.W. 3) who is the maternal uncle of petitioner has also stated that the petitioner Gajendra (A.W. 1) complained to him that he was under tension due to the behaviour of his wife – the respondent. Kamal (A.W. 3) further stated that when he visited the house of petitioner at Indore, there was quarrel between the petitioner and respondent and her father.

21. The evidence as above would indicate that the petitioner desired that respondent should live with him, but the respondent and his family members insisted that the petitioner should come to Indore and should live with the respondent’s parents. It also appears from the above evidence that the respondent/wife, was not willing to live with the petitioner, in her matrimonial home; and that she used to quarrel and misbehave with the petitioner and her parents, even during the short period for which she lived with them. Thereafter, she returned back to her parents home in the year 1984, and did not return back despite persuasion of petitioner and his family members. It is also clear that the petitioner’s elder brother Ravishankar who was married on the same day, on which the petitioner was married, was required to live with the in-laws as ‘Ghar Jamaee’ under their pressure and expressed regrets and remorse about the above state of affairs, as would be evident from letters Ex. P-1 and Ex. P-2, written by him.

22. In view of above, the petitioner’s statement that he was being persuaded and forced to live with his in-laws at Indore as ‘Ghar Jamaee’ is rendered plausible and believable. In fact, a letter Ex. P-3 written by respondent’s father, clearly contains a veiled threat that the petitioner’s parents would be loosing their younger son i.e., the petitioner also, as was the case with their elder son, i.e., Ravishankar. It also appears from Ex. P-3 that the relationship between the parents of the parties were strained and the respondent’s father desired that the petitioner should also come and live with them. The contents and the language used in letter Ex. P-3 of respondent’s father corroborates the version of petitioner that the respondent and her father pressurised the petitioner to live with them as ‘Ghar Jamaee’.

23. As against the petitioner’s evidence as above, the respondent/wife Madhu Mati (N.A.W. 1) in her statement has denied the above allegations. According to her, she used to behave properly with the petitioner as also her in-laws and that she wanted to live with the petitioner, but was not permitted to do so by him. Kishore Kumar (N.A.W. 3) the father of respondent has supported the version of respondent Madhu Mati (N.A.W. 1). According to him the petitioner never turned up to take his wife – the respondent, with him. He has stated that his son-in-law – the petitioner, had written a letter to him that since he could not get accommodation, he is not taking his wife with him. However, the said letter has not been produced in the case.

24. The respondent has also examined her brother Jagdish (N.A.W. 2), who has stated that they had gone to Bhopal on receiving information of accident of younger brother of petitioner. However, at the Hospital the father of petitioner asked them to go away. It may be noticed that there is no specific mention about the above incident in the pleadings of the respondent.

25. Though, the respondent and her father claim that the petitioner wrote to them about his inability to take respondent with him and to live with her, yet none of such letters or other documents have been produced by them. It may also be noticed that no notice was served by the respondent beseeching or requesting the petitioner to take her with him. It may also be noted in the above connection that the respondent had not returned back to the petitioner, despite petitioner’s notice having been served on her. The foregoing circumstances clearly indicate that the respondent has deliberately abandoned her matrimonial home and had shown her unwillingness to return back and to live with the petitioner.

26. Thus weighing the evidence as above led by the respective parties, it appears that the version as put forth by the petitioner is more probable. The fact that petitioner’s elder brother is living with the respondent’s parents as ‘Ghar Jamaee’ lends support to the assertion of the petitioner that his in-laws wanted that the petitioner should also live as ‘Ghar Jamaee’ with them. As noticed above, the language and contents of the letter Ex. P-3 written by the respondent’s father also indicate that the relations between the parties were strained and that the respondent’s father had gone to the extent of extending threat the petitioner’s father that he would be loosing his younger son i.e., the petitioner also, as was the case with his elder son.

27. In the foregoing circumstances, the observation of the Trial Court that the evidence of the petitioner could not be accepted in the face of discrepancies between the pleadings and proof, does not appear to be justified. It is clear that minor discrepancies as pointed out by the learned Trial Court, could not constitute a valid ground for discrediting the whole of petitioner’s evidence. It is clear that in such cases broad probabilities have to be considered to weigh and assess the truthfulness or otherwise of the rival cases of the parties, keeping in view the circumstances of the case. In the instant case, the evidence led by the petitioner and the circumstances as pointed out above are indicative of the fact that it was the respondent/wife who was responsible for leaving the matrimonial home and preferring to live with her parents.

28. The evidence led as above by the petitioner appears to be probable. There appears to be no other reason as to why the petitioner would not keep the respondent with him if the petitioner and respondent were married in childhood, and ‘Gaunna’ ceremony look place as far back as in the year 1976 when the parties were young. Had three been cordiality between the two families, there was no reason why at that adaptable age the parties would not have amicably lived together. However, their relationship appears to have grown sour on account of unreasonable demand and desire of the respondent and her father that the petitioner should follow the path of his elder brother and live with them as ‘Ghar Jamaee’. Clearly, the respondent and her parents could certainly not force the petitioner to live with them as ‘Ghar Jamaee’. The petitioner was justified in refusing to yield to their unreasonable demand as above.

29. The foregoing discussion also indicates that the respondent/wife had left the company of the petitioner/husband and did not accede to her request to come back. There was no intention on her part to resume cohabitation unless and until the petitioner/husband acceded to the demand of the respondent/wife and her father to live with them as ‘Ghar Jamaee’. In view of above, the evidence placed on record indicates that there was abandonment and non-performance of marital obligations by the respondent/wife with an intention to do so. The conduct as above of the respondent goes to show that she is living separately from the petitioner without any reasonable cause and against his wishes and has wilfully neglected the petitioner.

30. It may be noted that the Supreme Court in Lachman Utamchand Kirpalani Vs. Meena alia Mota (AIR 1964 SC 40), while discussing desertion has observed:

“For the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there, (1) the factum of
separation, and (2) the intention to bring cohabitation permanently
to an end (animus deserendi). Similarly, two elements are essential
so far as the deserted spouse is concerned: (1) absence of consent,
and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid. Desertion is a matter of inference to be drawn from the
facts and circumstances of each case. The inference may be, drawn
from certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to be
viewed as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and subsequent to
the actual acts of separation. If, in fact, there has been a
separation, the essential question always is whether that act could
be attributable to an animus deserendi. The offence of desertion
commences when the act of separation and the animus deserendi coexist.”

31. To reiterate, in the instant case the demand of the respondent/wife and her father that the petitioner should live as her ‘Ghar Jamaee’ was unreasonable and it cannot be said that the petitioner/husband was not justified in not yielding to such a demand. In the circumstances, the blame for the differences between the parties in the instant case squarely lies on the shoulders of the respondent/wife and her father. As noticed above, it is also clear that the respondent/wife not only continued to live separately for a long period right from the year 1984, but she had intention to put to an end the marital relations. Thus, there was animus deserendi on her part. Therefore, the foregoing facts and circumstances of the case and conduct of the respondent, lead to an irresistible conclusion that it was the respondent/wife who deserted her husband – the petitioner.

32. The next question that requires consideration is as to whether the respondent/wife treated the petitioner with cruelty ?

33. Section 13(1)(i-a) of the ‘Act’ provides that a decree of divorce can be granted on the ground that the other party had treated the petitioner with cruelty. It is also well established that cruelty could be either physical or mental. The cruelty may be inferred from all the facts and matrimonial relations of the parties and inter-action between them in their daily life, as disclosed by the evidence. The question as to whether the petitioner was treated with cruelty, can be answered only after all the facts have been taken into account, and the Court has to ascertain whether or not the treatment or conduct of the offending party would amount to cruelty. What is a cruel treatment to large extent would depend on the facts and circumstances of each case. In V. Bhagat Vs. Mrs. D. Bhagat (AIR 1994 SC 710), it has been observed in the above context that:

“Mental cruelty in Section 13(1)(i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental paid and
suffering as would make it not possible for that party to live with
the other. In other words, mental cruelty must be of such a nature
that the parties cannot reasonably be expected to live together. The
situation must be such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with the other
party. It is not necessary to prove that the mental cruelty is such
as to cause injury to the health of the petitioner. While arriving at
the conclusion regard must be had to the social status, educational
level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are
already living apart and all other relevant facts and circumstances
which it is neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in another
case. It is a matter to be determined in each case having regard to
the facts and circumstances of that case. If it is a case of
accusations and allegations, regard must also be had to the context
in which they were made.”

34. It would appear from the evidence as discussed above, that the respondent and her father had been continuously pressing the petitioner/husband to live with them as ‘Ghar Jamaee’. On the petitioner’s refusal to yield their unjust demand as above, the respondent/wife started misbehaving and maltreating the petitioner/husband and his family members. The respondent/wife had forsaken the company of the petitioner/husband without any justifiable cause and against his wishes. The petitioner/husband was an asthama patient. However, he was left alone to suffer in his misery and ailment, while he was posted at Bakhtara, as has been stated by him. Though married the petitioner, never enjoyed the marital bliss and comfort of a home. She did not return back despite requests and efforts made by the petitioner. The respondent’s father had extended threats to the father of the petitioner that he would be losing his younger son i.e., the petitioner also, as was the case of the elder brother of the petitioner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

35. It is, therefore, clear that the petitioner had to live a lonely life for a very long period of 17 years. The cumulative effect of the above facts and circumstances indicate that the respondent had treated the petitioner with cruelty.

36. It is thus clear that the grounds of desertion and cruelty have been established by the evidence and the facts and circumstances of the case. Thus, grounds for granting a decree of divorce as enumerated in Section 13(1)(i-a) and 13 (1) (i-b) have been made out.

37. Yet another aspect of the matter, arising from the facts and circumstances of the case, deserves notice in the instant case. The parties are admittedly living separately for a long period of about 17 years. Their marriage appears to have irretrievable broken with no chance of reunion or resumption of their marital relations. The marriage between the parties therefore appears to be beyond repair. This would also constitute and justify grant of decree for divorce, as prayed by the petitioner.

38. In Smt Saroj Rani Vs. Sudarshan Kumar Chadha [(1984) 4 SCC 90], it has been laid down that the right of the husband or the wife to the society of the other spouse is not merely a creature of the statute. Such a right is inherent in the very institution of marriage itself. The essence of marriage lies in sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection of one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage – “breakdown” and if it continues for a fairly long period, it would indicate destruction of the essence of marriage – “irretrievable breakdown”. Similarly in Romesh Chander Vs. Smt. Savitri (AIR 1995 SC 851), the Supreme Court considered it just and proper to grant a decree for divorce in a case where there was irretrievable break down and the marriage was held to be dead.

39. In the instant case also, since the parties are living separately for the last about 17 years and have in fact spent the prime of their life without the company of each other, and as there appears to be no chance for their reunion and living together, and as the grounds under Sections 13(1)(i-a) and 13 (1) (i-b) of the ‘Act’ are made out, decree for divorce deserves to be granted.

40. Therefore, this appeal deserves to be and is hereby allowed. The impugned judgment and decree is set aside. The petitioner’s application for divorce under Section 13(1)(i-a) & 13(1)(i-b) of the ‘Act’ is allowed, and decree for divorce as prayed by the petitioner/husband is granted and their marriage is dissolved.

41. First Appeal allowed.

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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driving husband out, assaulting & abusing him, refusing 2 cohabit ALL cruelty, Delhi HC

plain & sufficient enough to justify that husband subjected to cruelty & has become unendurable! DelhiHC

A 60+ year old man who was driven away from his own house seeks justice. Wife refuses to live with him, abuses him and assaults him. She admits writing letters against the husband to the Prime Minister, her son Shri Sanjay Gandhi; and Shri Charan Singh under her own signatures and also to Shah Cominission. The allegations against her are supported by no less than the oral testimony of her sons Surinder Kumar (AW2) and Raj Kumar (AW3) and the letters of the eldest one Ashok who is abroad and pelts stones at his car !! Husband pleads for mercy for divorce !!

The court appreciates the evidence and says :

“….that there was evidence plain and sufficient enough to justify a finding that the life of the husband has been subjected to cruelty and has become unendurable even for a man who has carried on with it right into his sixties. There is limit to endurance. Howsoever, one may wish, society cannot scrap marriage. It is compulsion of creation. It was rather sanctified and hallowed so that couples live in peace, in fear of God and help retain calmness in the community. Yet, it had to devise doors of exit as and when it becomes unreasonably unbearable and converges into sheer bondage. I, therefore, find no ground for altering the decision of the court below. There remained nothing in the marriage except the name. The vows were forgotten. Incantations lost in their spell. The learned Judge below was right in formally snapping the ties which had ceased to be binding happy or purposeful.

(10) I say amen and dismiss this appeal. The cross-objection need not now be examined and is dismissed hereby. Let me, however, add that it is not easy as the court below did, to absolve the wife of willful desertion. She refuses with astounding obstinacy to go and live in the new matrimonial home and demands of the husband to come and live where she wishes to…..”

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Delhi High Court
 
Chandhok (Lajwanti) vs Chandhok (O.N.) on 26 August, 1981
 
Equivalent citations: ILR 1982 Delhi 689, 1981 RLR 619
 
Author: M Jain
 
Bench: M Jain
 
JUDGMENT M.L. Jain, J.
 

(1) The Chandhoka were married on 27-2-1944 at Peshawar. In 1947, they migrated to Delhi. One daughter and three sons were born out of the wedlock. After 34 years of marital existence husband O.N.Chandhok filed a petition for divorce on 30-5-1977 on the ground Of desertion and. cruelty. The wife Lajwanti Chandhok pleaded counter cruelty and also alleged that the husband had extra-marital relations with two Sethi girls namely, Satish and Vinod. The learned Additional District Judge found that cruelty on the part of the wife was established. By his order of 21-9-1979 he allowed the application and dissolved the marriage. Aggrieved, the wife has come in appeal. The husband has filed a cross-objection challenging the finding that desertion was not proved.

(2) I have heard arguments. My attempts. at reconciliation and counsel have failed.

(3) The allegation of the husband 13 that right from the day of marriage, Lajwanti began to treat him with mental and physical cruelty and it had now become unbearable. She is haughty, quarrelsome and aggressive. She use to lose temper on him without any rhyme or reason, used to abuse him very frequently, insult and manhandle him and used to hurl chappals, shoes, glasses and bottles at him. She falsely accused him of immorality. She refused to live with him in the year 1975 after their eldest son Ashok left for Canada. She was provided with a ground floor accommodation and the whole family moved upstairs. but even then, she did not relent rather her acts of cruelty continued to maltiply. She injured him once on , and again on 18-5-1976. She started demanding transfer of the house in her name and from May, 1976 started sending all types of signed or unsigned letters or pseudonymous letters to his employers, friends, relatives and officers including the Prime Minister, maligning his character. He moved with the other members of the family to another house in Greater Kailash in June, 1976. Yet, on March 15, 1977 she pelted stones on his car. It had become impossible for him to live with her any more. He told me that he has blood pressure and suffers from heart trouble. Divorce necessary for his very survival. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

(4) In her reply, the wife said that until the year 1960, the relations between them were nothing but cordial. Thereafter, the husband took to drinking and womanising and cultivated intimacy with the girls, Satish Sethi and Vinod Sethi. That infuriated her. She became hysteric and objected to his illicit connections with those two girls. She is still prepared to live with him but in the house in which she has been living. The petition suffers from delay and has been made with the motive to divorce her so that he may have free illicit connection with the aforesaid girls.

(5) Apart from all what happened till 1975, it is clear that from l8-5-1976 onwards she started writing anonymous letters to the Prime Minister, late Shri Sanjay Ganhi, Shri Jag Pravesh, I.G.Police. S.D.M. Lajpatnagar and to his relations. She also lodged. reports against the husband with the police. She addressed a letter (Ex. A4). dated 16-3-1978. to the Vice President of the Distillers Association where the husband is working as its Secretary. She made complaints to Charan Singh and filed a complaint against him under sections 107/150 Criminal Procedure Code . She hurled stones on him, causing an injury in the forehead. On 26-1-1976. when his brother came to see him the wife banged the door and when he opened the door, she abused him and hit him with kerosene oil pipe. She hurled chappals on him In the presence of his son Ashok and his wife. The husband refuted the allegations that be had kept goondas in the house as tenants and on 18-5-1976 bad torn her clothes and gave her a harsh beating.

(6) The wife admitted that the husband kept her in comfort and even financed her trip abroad but the cleavage occurred in 1975 and from 1976 the husband is not living with her. She admitted that she wrote letters against the husband to the Prime Minister, her son Shri Sanjay Gandhi; and Shri Charan Singh under her own signatures and also to Shah Cominission. The allegations against her are supported by no less than the oral testimony of her sons Surinder Kumar (AW2) and Raj Kumar (AW3) and the letters of the eldest one Ashok who is abroad. She perhaps has, as she told me, the sympathies of her daughter who is married and lives in U.S.A. She still persists in her accusation that the husband is having illicit connections , with Satish Sethi and Vinod Sethi. Her allegations of counter cruelty cannot be accepted unless she herself wants a divorce, nor does it appear to me to,be a case in which the husband can be said to be taking advantage of his own wrong. Whatever have been the-position earlier and for whatsoever reason the alleged cruel conduct of the wife was tolerated by the husband, a fresh bout of cruelty began with the spate of complaints to his employers and other authorities which she began to lodge against him in order to defame him. That is a worse type of cruelty that the wife had inflicted upon her husband which he is not prepared to bear with and condone. It is a case in which it was extremely painful to dissolve a marriage after it has lasted for 36 years, but it appears to me that the learned Additional District Judge has done what should be done in the circumstances. At the time of the reconciliation, they gave me. the impression that they Were married against their wishes and I found that senility has so overtaken them that it Wa,s difficult for them to live together. The husband even said that if his marriage was not dissolved and the wife continued to behave in the manner she is doing, his life was no more worth living. He will at least be able to defend the calumny launched by her that it was being pursued not by his wife but by a person who no more enjoyed that. status. Divorce will give that advantage.

(7) Mr. Nijhawan on behalf of the wife appellant agreed that the quarrel between the parties began In the year 1960 and cohabitation ceased in the year 1974. Yet, he maintained that no case for divorce was made out. He complained that her evidence was (closed while the transfer petition was pending and no adjournment was granted. But this grievance is without basis, because she filed no list of witnesses and on every date different witnesses were cited. Even when her revision (C.R. 141/79)was accepted, and the High Court directed to allow her to lead evidene, she did not care to bring the witnesses.

(8) Mr. Nijhawan next pointed out that the learned trial court has erred in taking into consideration the letters of Aahok Kumar because Ashok Kumar was not examined. This argument has no merit because Ashok Kumar could not be brought to the witness box from Canada without an amount of unreasonable delay and expenses. Mr. Nijhawan further urged that the letter of the wife Ex.A-4 of 16-3-1978 to the Distilleries Association in which the husband is employed and the complaint (Ex.A-5) made to the S.D.M. on 2-1-1978 should not betaken into consideration. Mr, Nijhawan stated that these are in innocuous documents which the wife was forced to write in order to seek protection. Ex. A-3 was a representation of 12-10-1976 by the people of the Mohalla not signed by her. He stated that there is no satisfactory evidence to prove that anonymous letters were written by the wife and there is further no evidence that the husband was beaten by a pipe or that the brother carried the husband to the hospital. The Judge below has believed these allegations on the basis of the respondent’s evidence and I see no reason to differ from his findings. In these documents she alleged that he has engaged men “of bad character and wants to kill her and has begun the business of prostitution. Ex. A-4 and Ex. A-5 were written after the present petition was filed. That all this conduct of the wife amounts to cruel treatment, finds support in the special submission of Mr. Nijhawan that the Sethi girl came to the marriage reception of Ashok and paid Rs. 100.00 and this could not be without any sinister significance and since the husband was a rich man, womanising is a necessary follower of wealth and the charge of the wife cannot be dismissed out of hand. ‘This is a stance at once defiant and deprecable. Here is then certainly a case of matrimonial unhappiness and misery caused by an unjustified and improper course of conduct deliberately and consciously pursued in a determined manner in order to malign, humiliate and wound the husband coupled with physical violence, small, yet serious in consequence. Even if one were to believe that the husband was moving in the company of other women which J believe is not true, I will like to call it an attempt to seek solace and sympathy in a place other than the place where it is his due to find and receive. The real problem is that the wife persisted with callous indifference to the feelings of the husband in her ill-advised campaign of rancour and virulence which coming from a Hindu wife as she claims she is, can be nothing but painful in the extreme.. Her conduct does not consist merely of acts amounting to cruelty, but there is evidence of an-intention of being cruel which cuts more unkindly. Cruelty consists not in the conduct complained of but in its impact, upon the spouse. It is the last straw that breaks the camel’s back which must be looked at in the light of earlier history and general picture of married life. I have had an occasion to discuss cruelty in Parihar v. Parihar, , but cruelty cannot be found on the basis of law reports, neither on the basis of several acts seen in isolation, nor of any standard behavior but in the light of the total impact on the person of the complaining husband or wife. It is in the totality of the marital relations and factors like age, health, living, culture, status, mind and even money, that cruelty can be found. This applies more pertinently where it is alleged to comprise injurious reproaches, complaints, accusations or taunts.” Treatment is with cruelty where the spouse levels charges of immorality based upon, as in this case, suspicion or at best hearsay. It insults and injures. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

(9) I am of the view that there was evidence plain and sufficient enough to justify a finding that the life of the husband has been subjected to cruelty and has become unendurable even for a man who has carried on with it right into his sixties. There is limit to endurance. Howsoever, one may wish, society cannot scrap marriage. It is compulsion of creation. It was rather sanctified and hallowed so that couples live in peace, in fear of God and help retain calmness in the community. Yet, it had to devise doors of exit as and when it becomes unreasonably unbearable and converges into sheer bondage. I, therefore, find no ground for altering the decision of the court below. There remained nothing in the marriage except the name. The vows were forgotten. Incantations lost in their spell. The learned Judge below was right in formally snapping the ties which had ceased to be binding happy or purposeful.

(10) I say amen and dismiss this appeal. The cross-objection need not now be examined and is dismissed hereby. Let me, however, add that it is not easy as the court below did, to absolve the wife of willful desertion. She refuses with astounding obstinacy to go and live in the new matrimonial home and demands of the husband to come and live where she wishes to.

(11) The husband shall bear the costs, throughout.

 

*****************************disclaimer**********************************

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting

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Minor taunts or dowry demands cannot B reasonable cause to desert husband & never return! MP HC .

Minor taunts or dowry demands cannot B reasonable cause to desert husband & never return!  MP HC . NO prohibition in the Act for filing a joint petition for restitution and IF restitution fails, for divorce

In this case the wife leaves the husband after a very short stay. Husband makes MANY efforts to get the wife back. He sends his people. He send letters etc. Wife refuses to come back. It transpiers that the wife’s father is adamant in not letting the wife go back to the husband’s place. Unable to proceed further, the husband sends a legal notice and then approaches the court. He wins divorce on grounds of desertion. Wife goes on appeal to HC.

The HC affirms the divorce in favour of the husband and says

“…Only because during a brief stay of the wife at her husband’s home, there was some taunts or demands of dowry, it cannot be said that they furnished a reasonable cause to the wife to leave the home of the husband and never to return. I, therefore, hold that there did not exist any reasonable cause for the wife to refuse to return to the husband. …”

“…It cannot be disputed that normal place of living of the wife after marriage is the husband’s home. Heavy burden, therefore, lies on the wife to prove that there was such ill-treatment to her at the husband’s place that her living there was impossible. The “reasonable cause” as contemplated by explanation below Section 13(1) should be a cause, which should be sufficiently gave and weighty so as to justify the living of the wife away from the husband….”

“….the only excuse offered by the wife not to rejoin her husband was that she wanted the husband or some elderly person in the family to take responsibility that she would not be ill-treated in the marital home. To me, it appears that such an expectation from the husband cannot constitute a good ground or a reasonable ground for the wife to refuse to live with the husband. In marital relationship, there is no question of any responsibility being taken by the spouses of each other or by the elder members of their families. As I have held above, the wife utterly failed to produce any reliable evidence that she was ill-treated in her brief stay with the husband, by the mother. In her romantic letter sent to the husband after their long separation she did not even make a passing reference of having suffered any ill-treatment from him or his relations during her stay. The version of the wife and her father, therefore, neither appears believable nor reasonable. …..”

“….The last submission made by the learned counsel for the respondent now needs to be considered that there could be no joint petition, both for restitution and divorce. I do no find any legal prohibition under the provisions of the Act for filing a petition by a spouse for restitution or in the alternative, for a decree of divorce on the ground of desertion. The husband has frankly come forward with a case that he was willing at the time of filing of the petition to receive her back in the marital home and in the alternative, if she still continued to refuse, she should be held guilty of a matrimonial offence of desertion and the marriage be dissolved. ….”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Madhya Pradesh High Court

Smt. Bhavna Adwani vs Manohar Adwani on 8 May, 1991

Equivalent citations: AIR 1992 MP 105, I (1992) DMC 286, 1992 (0) MPLJ 40

Author: D Dharmaadhikari

Bench: D Dharmadhikari

JUDGMENT D.M. Dharmaadhikari, J.

1. In this appeal by the wife, under the provisions of Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred as to the Act), the question that needs to be decided is, whether the conduct of the wife, as brought out by evidence on record, amounts to ‘wilful neglect’ on her part, within the meaning of explanation appended to Section 13(1) of the Act, so as to uphold the decree of divorce under Section 13(1)(ib) of the Act?

2. Parties were married on 27-4-1983 at Raipur. Admittedly, they lived together after marriage at Raipur between 27-4-1983 to 19-6-1983. It is also not disputed that one Murlidhar, brother-in-law of the wife, took her back on 20-6-1983 to Katni for a brief stay with her parents.

3. The case of the husband is that thereafter he made repeated approaches personally, through his relations and also by sending her letters requesting her to come back home, but she persistently expressed her inability to do so. In the course of these attempts to bring the wife back to home, on 29-11-1983, the husband himself went to Katni with his sister, Padma and brother-in-law, Arjundas to bring back the wife ceremoniously, according to the caste-custom. It is admitted that the husband and wife lived at Kanti and cohabited. During this brief stay of the husband, he requested the parents, of the wife to send his wife with him and his relations, who had gone to Katni to bring her, but the parents refused to send her and the wife also did not express any willingness to accompany him back, stating that she had no courage to act against the wishes of her parents. The husband made a second attempt through his uncle Ramesh Adwani, who was sent to persuade the parents of the wife and her to come back to the husband’s house. But, again they refused. On 28-8-1984, the wife gave birth to a female child named Varsha, now about three years old. The husband sent a letter on 14-9-1985 (Ex. P/l) to the wife requesting her to come back to him. The wife sent a reply dated 20-9-1985 (Ex. P/2) in which she expressed her desire to lead a happy married life with him, but again expressed her helplessness, because there was misunderstanding between the husband and her father. The husband sent one more letter on 28-9-1985 (Ex. P/10) and gave her an option that either she should remain at Katni in obedience to the wishes of her father or come back to him, for which, the husband showed his willingness to come up to Bilaspur Station to receive her there for return to Raipur. The wife, however, did not send any reply to the aforesaid letter. The husband then sent a legal notice addressed to the wife (Ex. P/4) calling upon her to return to him within a week of the receipt of the notice or else proceedings for restitution of conjugal rights or in the alternative judicial separation would be filed in the Court of law. he sent a separate legal notice dated 31-8-1986 (Ex. P/6) addressed to the father of the wife and alleged that his wife was being illegally withheld and detained for which the father was stated to be liable for compensation. The repeated attempts made by the husband having failed to persuade the wife to rejoin him, he filed petition under Section 9 of the Act for restitution of conjugal rights and in the alternative, for grant of a decree of divorce under Section 13 of the Act.

4. In her written statement filed in the petition, the wife took a plea that during stay with the husband, his mother used to make dowry demands and used to ill treat her. It is also pleaded by the wife that the husband, during the pendency of the case in the trial Court, has gone through a second marriage and, therefore, cannot the relief either of restitution of conjugal rights or of divorce. The trial Court, by order under appeal dated 30-3-1990, held that the wife was guilty of desertion of the husband for a period of more than two years of the filing of the petition. The trial Court held that the remarriage of the husband was not proved. The trial Court, therefore, granted a decree of divorce against the wife on the ground of desertion.

5. The learned counsel appearing on behalf of the respondent-wife assailed the decree of the trial Court firstly on the ground that the contents of the letters and the legal notice sent by the husband to the wife themselves nullify the case set-up against the wife of her desertion. It was also stated that the letter sent in reply by the wife (Ex. P/2) also does not make out that the wife had deserted the husband. It was stated that the contents of the letter of the wife show that she was very eager to join the husband and, in fact, invited him for a meeting. According to the counsel for the wife, one of the essential ingredients of the matrimonial offence of animus deserendi on the part of the wife is totally absent in this case and, therefore, decree on the ground of desertion could not be passed.

6. The second submission of the learned counsel of the wife was that the husband has failed to prove that the desertion with animus deserendi continued on the part of the wife during the entire statutory period of two years immediately preceding the presentation of the petition. It was stated that animus deserendi, if at all, on her part could be presumed against her from the date of legal notice dated 31-1-1986 and the petition filed on 12-12-1986 was before expiry of two years statutory period, provided under Section 13(1)(ib) of the Act. Lastly, it was submitted on behalf of the wife that there would be no joint petition seeking relief of restitution of conjugal rights or in the alternative, a decree of divorce and the petition was liable to be rejected for misjoinder of causes of action.

7. The learned counsel appearing on behalf of the husband supported the decree passed by the trial Court submitting, inter alia, that the husband made all possible efforts to persuade the wife to come back to him and her continuous conduct in remaining away from husband constituted desertion within the meaning of Section 13(1)(ia) read with the explanation appended thereunder. It was also stated that the wife had lived separately from the husband for a period of more than two years before filing of the petition and there was no legal prohibition to grant a decree of divorce. The learned counsel for the appellant also submitted that there is nothing in the Act that in a petition for restitution of conjugal rights, an alternative relief of divorce could not be claimed.

8. Having gone through the pleadings of the parties, the documentary and oral evidence on record and the submissions made by the counsel for the parties, I have formed an opinion that this case is an unhappy instance of a happy marriage being ruined because of the timidity of the wife and the tack less handling and ill-advice of the father of the wife.

9. I take up first the question, whether decree of divorce could be passed on the ground of desertion. It is to be noticed that in order to widen the meaning of desertion as a matrimonial offence and to include within it even the case of constructive desertion, explanation was added below Section 13(1) by the Marriage Laws (Amendment) Act, 1976, which reads as under :–

“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.”

It is thus clear that now after addition of the above explanation to Section 13(1), even if the wife is guilty of wilful neglect of the husband, she would be guilty of desertion to constitute a ground of divorce. The first question before me is whether there was any reasonable cause for the wife to live away from the husband? It is to be noted that in none of her letters, she ever complained of any ill-treatment for dowry demands by the mother of the husband, much less, by the husband. The case of ill-treatment to the wife for dowry demands came to be stated for the first time in the reply filed in the Court to the petition and in her deposition. So far as her pleadings on the subject of alleged ill-treatment to her is concerned, it may be noticed that the plea is totally vague and bereft of all necessary particulars of ill-treatment. In para 7 of the written statement, only a general statement has been made that the husband and his mother used to repeatedly demand dowry and complain that sufficient dowry was not brought by the wife. In the same paragraph, it was stated that they used to ill-treat her. No details have been given as to when, where and how the demands were made and that was the nature of ill-treatment. In her deposition as N.A.W.-l, she made a general statement that her mother-in-law used to say that she is not beautiful and both her husband and mother-in-law used to ill-treat her for not bringing scooter and more presents in the marriage. In the cross-examination, she was confronted with her letter (Ex. P/2). She admitted that she sent it, but could not give any explanation why she did not complain to the husband of ill-treatment that she received at his house. There is nothing on record to show that she ever complained of ill-treatment by the husband and his family members to her father. Her father Pariamal has been examined as N.A.W. 5. In para 8 of his cross-examination, he admitted that no dowry was settled at the time of marriage. He also admitted that three times the husband approached to him at Katni to take back the wife. His version was that on each occasion, he was willing to send her back, provided she was promised no ill-treatment for dowry demands by the husband and her family members. From the above state of evidence on record, even if the wife and her father are to be believed that there were some dowry demands and some ill-treatment to the wife, it cannot be inferred that the ill-treatment was of such a magnitude that she should have left the husband’s home for all times. It cannot be disputed that normal place of living of the wife after marriage is the husband’s home. Heavy burden, therefore, lies on the wife to prove that there was such ill-treatment to her at the husband’s place that her living there was impossible. The “reasonable cause” as contemplated by explanation below Section 13(1) should be a cause, which should be sufficiently gave and weighty so as to justify the living of the wife away from the husband. Only because during a brief stay of the wife at her husband’s home, there was some taunts or demands of dowry, it cannot be said that they furnished a reasonable cause to the wife to leave the home of the husband and never to return. I, therefore, hold that there did not exist any reasonable cause for the wife to refuse to return to the husband. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

10. The second question is whether the wife can be held to be guilty of desertion within the wider meaning of that expression contained in explanation below Section 13(1) of the Act? In other words, whether it could be said, in the background of the facts of the case, that there was any wilful neglect of the petitioner by her constitute constructive desertion? From the evidence on record and the pleadings of the parties, it has to be accepted that, to begin with, when after the marriage and brief stay with her husband at his house, she returned to her parents, there was no intention to desert the husband. It was only a return to the parents as per the custom prevalent in the community. According to the husband, when he personally went with his sister and his brother-in-law on 21-11-1983 to Katni to bring her back, she expressed helplessness due to the wishes of her father. In para 2 of her deposition in the Court, her version is that the husband asked her to accompany, whereupon she replied that she was willing to return with him, but the husband to take any responsibility for likely misbehaviour from his mother. In para 6 of her statement, she admitted that Ramesh Advani, uncle of the husband had gone to Katni for the second time to bring her and she expressed to them that if they were agreeable to take her responsibility, she would return. Her father Panamal, examined as N.A.W.-5, substantially supported her version and stated in para 2 of his deposition that when the husband’s relations approached him to take the wife, he expressed his willingness to send her, but he complained that she was ill-treated for dowry and that they should send some responsible person to him again for necessary talks and giving assurance on the subject. The father of the wife also accepted that Ramesh Adwani, uncle of the husband, had also approached him for the purpose and to him also, he expressed that he should take the responsibility that no one should misbehave or ill-treat her, whereupon, the uncle of the husband is said to have refused to take any such responsibility. In the light of the above deposition and version of the wife and her father, it has to be judged whether the conduct of the wife amounts to a wilful neglect on her part so as to constitute desertion? The expression “wilful neglect” used in explanation under Section 13(1) of the Act has been commented by Mulla in Hindu Law, 16th Edition at page 674 and it has been explained thus:–

“…..In the context of matrimonial law wilful neglect would seem to
mean that the person is consciously acting in a reprehensible manner
in the discharge of its marital obligations or is consciously failing
in a reprehensible manner in the discharge of those obligations; and
connotes that degree of neglect, which is shown by an abstention from
an obvious duty, attended by a knowledge of the likely results of the
abstention….. The neglect to become desertion must be such as
amounts to forsaking or abandonment of one spouse by the other by a
conscious disregard of the duties and obligations of the married
state considered as a whole.”

11. Understanding the expression “wilful neglect” from the commentary above, it may be seen that in this case, the only excuse offered by the wife not to rejoin her husband was that she wanted the husband or some elderly person in the family to take responsibility that she would not be ill-treated in the marital home. To me, it appears that such an expectation from the husband cannot constitute a good ground or a reasonable ground for the wife to refuse to live with the husband. In marital relationship, there is no question of any responsibility being taken by the spouses of each other or by the elder members of their families. As I have held above, the wife utterly failed to produce any reliable evidence that she was ill-treated in her brief stay with the husband, by the mother. In her romantic letter sent to the husband after their long separation she did not even make a passing reference of having suffered any ill-treatment from him or his relations during her stay. The version of the wife and her father, therefore, neither appears believable nor reasonable. She can, therefore, be held guilty of a wilful neglect in the discharge of her marital obligations towards the husband.

12. Now the stage in considering the objection raised on behalf of the wife that the husband failed to prove desertion on the part of wife for a continuous statutory period of two years. The agreement of the learned counsel for the wife is that the two years period could not be reckoned prior to the service of the legal notice dated 31-1-1986 (Ex. P/4) and non-compliance thereof by the wife.

13. This argument also does not seem to sound. As I have stated above, on 20-6-1983, when she first left the husband’s place, there was neither any intention to leave forever, nor was there any act of wilful neglect. According to me, the wife would be guilty of wilful neglect when the husband personally approached her on 29-11-1983 and she refused to return with him, on the pretext that he had refused to take responsibility for the alleged ill-treatment by his mother. The period of desertion can, therefore, be reckoned from 29-11-1983, when she would be deemed to be . guilty of wilful neglect in discharge of her marital obligation. Reckoning period of desertion from the above date, the petition filed on 12-2-1986 was much after the expiry of two years statutory period provided in Section 13(1)(ib) of the Act.

14. The last submission made by the learned counsel for the respondent now needs to be considered that there could be no joint petition, both for restitution and divorce. I do no find any legal prohibition under the provisions of the Act for filing a petition by a spouse for restitution or in the alternative, for a decree of divorce on the ground of desertion. The husband has frankly come forward with a case that he was willing at the time of filing of the petition to receive her back in the marital home and in the alternative, if she still continued to refuse, she should be held guilty of a matrimonial offence of desertion and the marriage be dissolved. Her testimony in the Court and the letter sent by her to her husband do not at all show that she ever made any sincere effort to return to the husband. The learned counsel for the wife submitted that her letter sent to the husband expressing yearning for him and keen desire to meet him, terminated the desertion. This argument does not appear to be correct. As commented by Mulla in Hindu Law at page 677, “desertion may also be terminated by supervening animus revertendi expressed by a genuine offer to return to the deserted spouse or in case of constructive desertion by a bona fide attempt to get back the aggrieved spouse. If a deserting spouse takes advantage of the locus poenitentiae provided by law and goes back to the deserted spouse by a bona fide offer or resuming the matrimonial home with all the implications of marital life before the statutory periods is out or even thereafter before any proceedings for relief have been commenced, desertion conies to an end and if the deserted spouse unreasonably refuses the offer the entire position would become different and the latter of the former would become the deserter.”

15. From the correspondence exchanged between the parties, I find that in her letter, although she expressed her intense desire and keen anxiety to meet the husband, but at the same lime again referred to the misunderstanding that was created between him and her father. Before concluding the letter, she merely expressed a fond hope and invited him to her arms, but did not clearly express any desire to go to him. Her letter was replied by the husband vide Ex. P/16 and he gave her a clear option to either live with the father or return to him. He also expressed his willingness to come up to Bilaspur Station to receive her. No attempt on the part of the wife thereafter to return to the husband was made and it was, therefore, a clear indication that her offers earlier made to meet him were either not genuine or in any case she could not muster sufficient courage to disobey her father, who wanted that the husband should live as Ghar Jamai at Katni, like husband of his other daughters. In my opinion, on the basis of evidence led in the case, it can be safely held that where a wife submits herself meekly to the dictates of her father and has no courage to disobey and leave the parental house to go to the husband, she is guilty of wilful neglect. The husband in this case made all possible efforts to persuade and bring back the wife to his home and even after setting totally frustrated, made last attempt by filing a petition for restitution of conjugal rights, although, in the alternative, he claimed a relief of divorce. As I have said above, this is a tragedy, which has been fallen on the wife due to her own shyness and timidity coupled with the tactless handling of the entire situation by her father, who appears to have given undue importance to the frivolous quarrels and minor irritations, which were caused, in initial period of their married life. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

16. At the end, the learned counsel for the wife submitted that the husband has taken another woman from whom he has children and, therefore, her going back to him to now an impossibility. He prayed for fixing a lump-sum amount as a permanent alimony. In this case before me, there is no application for fixing permanent alimony under Section 25 of the Act which, when made, will have to be decision the basis of evidence with regard to the husband’s income and the requirement of the wife.

17. So far as the alleged second marriage of the husband is concerned, the trial Court held that the marriage was not proved. In deciding the above controversy, I had tried to remain completely uninfluenced by that fact, because even if the husband has gone through a second marriage during the subsistence of the first, with the present wife, the second marriage would be a nullity in law and has to be overlooked for the purpose of deciding this case.

18. The trial Court, keeping in view the fact that the wife will require some money for her maintenance, has fixed a sum of Rs. 200/-per month, which will be paid by the husband to the wife till her remarriage. The amount of Rs. 200/ – per month appears to me rather on lower side, taking into account the financial status of the parties, as disclosed from the evidence on record. The husband is doing private service and is earning a fixed salary. Keeping in view the fact that his income is likely to increase as also the needs of the wife, I think it proper to increase the monthly maintenance from Rs. 200/- to Rs. 300/- per month.

19. Consequently, with the above slight modification in the amount of maintenance, the appeal fails and is hereby dismissed, but without any order as to costs.