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8/3/2019 kamlesh kumari
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FAO 291/96 Page 1 of34
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 17.03.2011 Judgment delivered on: 16.01.2012
+ FAO 291/1996
Smt.Kamlesh Kumari Appellant.
Through: Mr.Sanjay Kumar Pathak, Advocate.
Vs.
Shri Mehtab Singh Respondent
Through: Mrs.Mala Goel with Mr.Yashpal Singh,Advocates.
CORAM:HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this appeal filed under Section 28 of the Hindu
Marriage Act, the appellant-wife seeks to challenge the
impugned judgment and decree dated 18.07.1996 passed by
the learned trial court whereby the divorce petition filed by
the husband, respondent herein under Section 13 (1) (ia) and
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(ib) of the Hindu Marriage Act was allowed by the court and
the marriage between the parties was dissolved.
2. A conspectus of facts based on which the
respondent filed the divorce petition are that the respondent
got married to the appellant according to Hindu rites and
ceremonies on 30.06.1982 at Delhi. It is stated that after the
marriage on 01.07.1982, the parties went to the house of
appellants parents at Yusuf Sarai and had lunch there and
thereafter the appellants parents did not send the appellant
back along with the respondent and the appellant also
declined to accompany him without any reason or
justification. It is further stated that on 11.07.1982, the
respondent again went to the house of the appellants parents
to bring her back and requested her parents to send the
appellant along with him but they refused to do so without
disclosing any reason. It is further averred that after 15 days
i.e. in the last week of July, 1982 the respondent again went
to the house of appellants parents to bring her back,
however, after reaching there it was found that the appellant
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was not present at her parents house at that time and on
persistent enquiries by the respondent her parents told him
that the appellant had gone to the house of her sisters
husband(jija) Shri Umed Singh at Village Nilothi, Nangloi,
Delhi. Thereafter about a month of the marriage of the parties
i.e. on or about 30.7.82/1.8.82/2.8.82 father of the respondent
called said Shri Umed Singh to his village Sultanpur Majra
where the respondent, his elder brother and two uncles were
also present where Shri Umed Singh blamed father of the
appellant for telling a lie that the appellant was with him at
the time when the respondent visited her parents house to
bring her back to matrimonial home. In the evening of
21.08.82, one Shri Kalam Singh and Shri Sri Lal went to the
house of Shri Umed Singh at Village Nilothi and found that
the appellant was very much there and thus the fact of the
appellant living with Shri Umed Singh without the consent or
permission of the respondent was confirmed by them. The
next day the respondent and his mother also went to the
house of Shri Umed Singh at 6 p.m and found the appellant
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present there and when the respondent and his mother tried
to reason out from the appellant as to why she was living with
Shri Umed Singh, then she replied that it was her sweet will
to go anywhere. This fact was also enquired from Shri Umed
Singh in the presence of the appellant and he said that the
appellant was his sister-in-law and he had every right over her
and that she had come to him with her own will. Despite the
request of the respondent and his mother, the appellant did
not accompany them to return to her matrimonial home and
remained there. It is also stated that in the year 1983-84, the
appellant filed a report with the Social Welfare Board, which
called Shri Umed Singh, Shri Mohinder Singh and the
appellants maternal uncle Shri Gian Singh and her brother
from the appellants side and from the respondents side the
respondent and his parents were called and on enquiry made
by the Welfare Board, it was found that the appellant was
living with her brother-in-law (jija) Shri Umed Singh and there
was no fault of the respondent and as such reconciliation
efforts made by the Board could not take place between the
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parties. It is also averred that the appellant taunted the
respondent as the educational qualification of the appellant
was graduate whereas the respondent is a matriculate, which
caused cruelty to him. It is also stated that the appellant left
the matrimonial home with the intention not to return again,
whereas the respondent had made efforts for reconciliation.
The parties are stated to be living separately since 1.7.82 and
the appellant has deserted the respondent from the first day
of marriage without any reasonable cause. The appellant has
even not made any efforts to come back to the matrimonial
home as she has been staying with her brother-in-law (jija).
3. The appellant in her written statement however,
admitted the factum of her marriage with the respondent on
30.6.82 but denied the allegation of cruelty and desertion.
The appellant has leveled allegation that the respondent and
his parents used to taunt her on account of bringing
insufficient dowry and that the main demand of the
respondent was a two-wheeler scooter which was not met by
the appellants parents. It is also alleged that the brother of
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the appellant who had come to take the appellant on 5.7.82
was humiliated, taunted and was coerced to part with the
two-wheeler scooter on which he had come to take her back
and the respondent and his parents warned the brother of the
appellant that in case the scooter was not arranged at the
earliest the appellant may not be sent to her matrimonial
home and the respondent would also not come to take her
back. It is also alleged that thereafter i.e 5.7.82 the
respondent never came to take her back. It is denied that the
appellant was ever living with her brother-in-law (jija) Shri
Umed Singh or that the respondent and his mother ever went
to the house of said Shri Umed Singh on 22.8.82 or that the
appellant was present in the house of Shri Umed Singh on
that day. It is stated that the appellant was forced to make
report to Anti Dowry Cell of Delhi Police which report of her
was referred by the Anti Dowry Cell to the Social Welfare
Board. The factum of summoning of persons from both sides
is admitted by the appellant, however, it is denied that the
Social Welfare Board held in its enquiry that the appellant
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was living with her brother-in-law (jija) Shri Umed Singh or
that there was no fault of the respondent. It is asserted that
the respondent flatly refused before the said Board to bring
the appellant back to the matrimonial home. It is alleged that
it was the appellant who had been deprived by the respondent
and had caused mental agony and torture to her by not taking
her to the matrimonial home for demand of two wheeler
scooter and other articles. It is also stated that on an
application made by the appellant to the Anti Dowry Cell the
case was proceeded against the respondent and the Anti
Dowry Cell came to the conclusion that it was a fit case for
investigation and accordingly a case was registered against
the respondent for demanding dowry and the respondent and
his family members were arrested by the police, but
subsequently were enlarged on bail. It is also alleged that it is
the respondent who had deserted the appellant since 5.7.82
and had not bothered to take her back to the matrimonial
home for his greed of dowry and did not allow her to enter the
matrimonial home in spite of repeated panchayat meetings
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between the parties, their relatives and respectable persons
of the village. It is also stated that the appellant has been
forced to live with her parents since 5.7.82 due to
greed/demand of dowry by the respondent.
4. Based on the above pleadings of the parties, the learned
trial court framed the following issues:-
(i) Whether after solemnization of marriage, therespondent treated the petitioner with cruelty? OPP
(ii) Whether the respondent has deserted the petitionerfor a continuous period of not less than 2 yearsimmediately preceding the presentation of the
petition.
(iii) Whether the petition is not in accordance with rules?If so, its effect?
(iv) Relief.
5. In support of his case, the respondent examined himself
as PW-1 besides examining Shri Maya Ram @ Mahe Ram as
PW-2 and Shri Ram Swarup as PW-3. The appellant, on the
other hand, examined herself as RW-1, besides examining
Shri J.B.Gupta as RW-2, Shri Gian Singh (appellants brother)
as RW-3 and Shri Mahinder Singh as RW-4.
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6. On issue Nos.1 and 2, the learned trial court returned a
finding against the appellant and in favour of the respondent
husband and thus dissolved the marriage of the parties by the
decree of divorce dated 18.7.1996, feeling aggrieved by which
the appellant has preferred the present appeal.
7. Assailing the impugned judgment and decree,
Mr.Sanjay Kumar Pathak, learned counsel for the appellant
submitted that sufficient efforts were made by the appellant
to join back the company of the respondent at the matrimonial
home and it was the respondent who remained reluctant to
allow the appellant to join back his company and, therefore,
the respondent cannot be allowed to take advantage of his
own wrongs. Counsel further submitted that the learned trial
court committed a grave illegality in drawing adverse
inference of her statement during her cross-examination
where she stated that the respondent-petitioner never came
to take her from her parents house after 02.07.1982 to mean
as if she had stayed at her parents house after 02.07.1982 in
contradiction to her claim of staying at the matrimonial home
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till 05.07.1982. The contention of counsel for the appellant
was that this date has been mentioned by the appellant in her
cross-examination to explain that the respondent in fact had
never visited her parents house to bring her back after
02.07.1982. Counsel also submitted that the said deposition of
the appellant could not have been read by the learned trial
court in isolation as the same was to be read in conjunction
with her earlier statement wherein she took a stand that she
had taken a lunch at her parental house on 02.07.1982 and
she also denied the suggestion in her cross-examination about
the alleged visit of the respondent to take her back on
11.07.82 or on that date the parents of the appellant had
refused to send her along with the respondent. Counsel for
the appellant further submitted that the respondent had duly
admitted in his evidence that the marriage between the
parties was consummated on the night between 02.07.82 and
03.07.82, but at the same time took a contrary stand by
alleging that the appellant never lived with him from
01.07.82. Counsel also submitted that the respondent took a
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contrary stand of his alleged visit on 11.07.82 to the parents
house of the appellant, as in the proceedings under Section
125 Cr.P.C. the respondent alleged such visit on 08.07.82
instead of 11.07.82. Counsel further submitted that the
respondent had showed his reluctance to bring the appellant
back to the matrimonial home before the Social Welfare
Board. Counsel further submitted that the respondent had
even admitted the visit of Mr.Bharat Singh, Counsellor at that
time for the purpose of reconciliation and also the visit of the
workers of the Social Welfare Board for the same purpose.
Counsel also submitted that the appellant was not cross-
examined by the respondent to contradict the deposition in
her examination-in-chief wherein she stated that on 02.07.82
the marriage was duly consummated between the parties.
Counsel also submitted that even no suggestion was given by
the respondent to suggest that the appellant did not stay at
her matrimonial home till 05.07.82 or no Panchayat took
place at the instance of the appellant or the appellant and her
parents did not make any efforts after 05.07.82 for her to go
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back to the matrimonial home. Counsel further argued that
the appellant had duly proved on record that she was never
found at the residence of her brother-in-law (jija) Mr.Umed
Singh at Nilothi. Counsel also argued that the decree of
divorce cannot be granted on the ground of irretrievable
breakdown of marriage which is not a ground under Section
13 of the Hindu Marriage Act. In support of his arguments,
counsel for the appellant placed reliance on the following
judgments:-
(i) Subhash Chander Sharma Vs. Anjali Sharma 2010(174) DLT 564
(ii) Suram Pal Singh Vs. Savita 2007(140) DLT 198
(iii) Krishan Kumar Vs. Shankari 2007(142) DLT 177
9. Opposing the present appeal, Ms.Mala Goel,
learned counsel appearing for the respondent submitted that
no fault can be found with the findings given by the learned
trial court in granting the decree of divorce under Section 13
(1) (ia) and (ib) of the Hindu Marriage Act. In support of her
arguments, counsel submitted that the appellant had deserted
the respondent on 01.07.82 with the intention to break the
marriage permanently. Counsel further submitted that the
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respondent had sufficiently proved on record that the
appellant was staying with her brother-in-law Shri Umed
Singh at his residence at Nilothi. Counsel also argued that the
appellant miserably failed to prove on record that any demand
of scooter was made by the respondent or his parents.
Counsel further submitted that in criminal proceedings, the
appellant also alleged that the demand of Rs.30,000/- was
made by the respondent along with the scooter which was not
the defence set up by her in the proceedings before the
matrimonial court and such contradictory stands of the
appellant would clearly establish her false claim of setting up
defence of demand of scooter made by the respondent or his
parents. Counsel further submitted that no attempts were
made by the appellant to join back the company of the
respondent at the matrimonial home and instead she had
approached the Anti-Dowry Cell so as to falsely implicate the
respondent and his family members to face the criminal
proceedings. In support of her arguments, counsel for the
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respondent placed reliance on the judgment of this Court
reported in Vimal Kanta Vs. J.M.Kohli176 (2011) DLT 527.
10. I have heard learned counsel for the parties at
considerable length and given my thoughtful consideration to
the arguments advanced by them.
11. The marriage which was solemnized between the
parties on 30.06.82 turned ruinous within a short period of 24
hours as per the respondent and 5 days as per the appellant.
As per the respondent-petitioner, the appellant did not return
back with the respondent on 01.07.82 when she was taken by
the respondent to her parental house. As per the respondent,
no reasons were advanced either by the appellant or her
parents for not sending back the appellant with the
respondent to the matrimonial home. In para 4 (B) of the
petition, the respondent averred as under.
4(B). That on 1st of July, 1982, the petitioner and the
respondent went to the respondents parents house at YusufSarai and had lunch there. The parents of the respondentdid not send the respondent alongwith the petitioner. Therespondent too declined to come alongwith her husband-
petitioner without any reason and justification. Therefore,
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the petitioner-husband returned back to his residencehaving been disappointed by the respondents conduct.
As per the respondent despite making efforts to bring back
the appellant, the appellant did not return and therefore, the
respondent filed a petition for divorce under section 13(1)(ia)
and (ib), i.e cruelty and desertion which vide order dated
18.7.1996 was decreed in his favour.
12. To claim a decree on the ground of desertion as
envisaged in section 13(1)(ib) of the Hindu Marriage Act the
ingredients that need to be proved , so far as the deserting
spouse is concerned it is (i) factum of separation, (ii) the
intention to bring cohabitation permanently to an end i.e
animus deserdendi, and so far deserted spouse is concerned,
(i) absence of consent and (ii) the absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home
to form the necessary intention aforesaid. It is also a settled
legal position that desertion commences when the factum of
desertion and the animus deserendi co-exist. However, it is
not necessary that these two conditions should commence at
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the same time as the de facto separation may commence
earlier in point of time without the necessary animus and the
necessary animus may arise later in point of time and then
coincide with the factum of separation. Desertion has no
straitjacket formula and in each case an inference has to be
drawn from the facts of the case. It is the intentional and
permanent forsaking of one spouse by the other without
others consent, and without reasonable cause. This was held
by the Apex Court in the case of Bipin Chander Vs.
Prabhawati AIR 1957 SC 176. Along with explaining the
essential conditions which constitute desertion as a ground
for divorce, the Apex Court in the case of Lachman
UtamChand Kirpalani vs. Meena Alias Mota (1964) 4
SCR 331 while reiterating Bipin Chander(supra) held as
under:
It would be seen that we have here the interaction of two distinct
matters which have to co-exist in order that desertion might cometo an end. In the first place, there must be conduct on the part ofthe deserted spouse which affords just and reasonable cause forthe deserting spouse not to seek reconciliation and which absolvesher from her continuing obligation to return to the matrimonialhome. In this one has to have regard to the conduct of thedeserted spouse. But there is one other matter which is also ofequal importance, that is, that the conduct of the deserted spouse
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should have had such an impact on the mind of the desertingspouse that in fact it causes her to continue to live apart and thuscontinue the desertion. But where, however, on the facts it is clear
that the conduct of the deserted spouse had had no such effect onthe mind of the deserting spouse there is no rule of law thatdesertion terminates by reason of the conduct of the desertedspouse. It appears to us that the principle that the conduct of thedeserted spouse which is proved not to have caused the desertingspouse to continue the desertion does not put an end to thedesertion appears to be self-evident and deducible from the legalconcepts underlying the law as to desertion.
Thus it is clear from above, that the deserting spouse should
have deserted the other spouse without his consent and
without being there any just and reasonable cause. In a case
of desertion by the deserting spouse there should be reasons
sufficient enough for such spouse not to reconcile with the
deserted spouse. But where the deserting spouse withdraws
not only physically from the marriage but also from the
society of the deserted spouse without any reasonable cause,
the ground of desertion shall be available to the deserted
spouse.
13. Now applying the aforesaid principles of law to the
facts of the case at hand, the appellant ceased to live with the
appellant from 1.7.82 and as per the appellant from 5.7.82.
However it is immaterial as to the date of separation as it is
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not in dispute that the parties did not live together thereafter
till the presentation of the petition and thus the essential
condition that the parties must be living for two years
separately before the presentation of the petition stands
fulfilled. Thus the first ingredient of the factum of separation
stands fulfilled.
14. Coming to the next ingredient which is the animus
desrendi, i.e the intention of the appellant to bring the
cohabitation permanently to an end. As per the respondent
petitioner the appellant did not return back from her parental
house on 1.7.82 and the parents of the appellant also refused
to send her back without any justifiable cause. As per the
respondent, he again on 11.07.82 went to the parents house
of the appellant to take her back but again the parents of the
appellant refused to send her back with the respondent. After
a gap of 15 days i.e. in the last week of July, 1982 another
attempt was made by the respondent, but this time the
appellant was found not present at her parents house and he
was told by the parents of the appellant that she had gone to
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her brother-in-law Mr.Umed Singh at village Nilothi. After
having learnt this fact, the father of the respondent had called
Mr.Umed Singh on or about 30.07.82 when in the presence of
Shri Daryao Singh, Shri Mohinder Singh, Shri Hanumant
Singh and Shri Sri Lal, uncles of the respondent besides his
family members, Shri Umed Singh blamed his father-in-law
and informed them that the appellant was not staying with
him and in fact she was with her parents. As per the
respondent in the first week of August, 1982, the father of the
respondent again informed him that the appellant was living
with Mr.Umed Singh and acting on this information, Shri
Kalam Singh and Shri Sri Lal visited the residence of Shri
Umed Singh at village Nilothi on 21.08.82. As per the
respondent, on the next day, he along with his mother went to
Shri Umed Singhs house, but the appellant refused to
accompany the respondent. On being enquired by the
respondent and his mother the reason as to why she was at
the residence of Mr.Umed Singh, then she replied that it was
her sweet will to go anywhere. As per the respondent, even
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Mr.Umed Singh also told them that the appellant is his sister-
in-law and he has every right over her and she has come there
at her own will. No further efforts were made by the
respondent to bring back the appellant and in the year 1983-
84 the appellant filed a report with the Social Welfare Board
and despite the intervention of the Members of the said Board
no reconciliation could take place between the parties. As per
the respondent, the appellant had also taken all ornaments
with her on 01.07.82 and in this manner, the appellant
deserted him since 01.07.82 and the repeated refusal of the
appellant not to return back and the continued stay with her
brother-in-law caused mental cruelty to him.
15. The appellant, on the other hand, in her written
statement took a defence that she was never taken back to
her parents house on 01.07.82. As per the appellant, she was
brought to the parents house around 4 p.m on 02.07.82 and
she returned back with the respondent after having taken
dinner at the parental home at about 9 p.m. It is also the case
of the appellant that on 02.07.82 the respondent was
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accompanied by his cousin named Ajit Singh and they
travelled back in the same taxi which brought them to the
parents house and on their way back, the respondent and his
cousin and the taxi driver consumed liquor for about one hour
and then ultimately they reached back at the matrimonial
house around 11:30 p.m It is also the case of the appellant
that the marriage had already been consummated on 01.07.82
and the respondent cohabitated with the appellant upto
04.07.82. It is also the case set up by the appellant that on
05.07.82 in the morning her brother Gian Singh came to take
her to the parents house in accordance with the customs. It is
also the case of the appellant that her brother was humiliated,
taunted and coerced to part with the two-wheeler scooter on
which he had come with the appellant on 05.07.82. It is also
the case of the appellant that she was not allowed to live
peacefully by the parents of the respondent and also the
respondent himself during the said short period between
30.06.82 till 04.07.82, during which time all of them kept
taunting and cursing the appellant and her parents for not
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bringing sufficient dowry in the marriage. It is also the case of
the appellant that on 04.07.82 the respondent and her mother
took in possession all the ornaments which were presented to
her from both the sides. It is also the case of the appellant
that the respondent never came to take her back after she
had left the matrimonial home on 05.07.82 along with her
brother. The appellant also denied that she was ever living
with her brother-in-law Umed Singh at village Nilothi. The
appellant also denied that her brother-in-law was ever called
by the father of the respondent at Sultanpur Mazra or Shri Sri
Lal and Shri Kalam Singh ever paid visit to the house of the
appellant or at the house of Shri Umed Singh at Nilothi or the
respondent and his mother found the appellant present at the
house of Shri Umed Singh on 22.08.82. The appellant also
submitted that the divorce petition filed by the respondent
was in fact a counter blast to the complaint filed by the
appellant with the Anti-Dowry Cell. The appellant also took a
stand that a criminal case was registered against the
respondent, father, mother, brother, sister and uncle of the
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respondent and they were arrested by the police for
committing offences under Section 498-A/406 IPC and later
on were enlarged on bail. The appellant in the written
statement also took a plea that her parents and Shri Umed
Singh received messages through one Shri Bhagwan Singh
who was a mediator for arranging the said marriage
regarding the demand of a two-wheeler scooter made by the
respondent and his parents. In the background of the said
facts, the appellant in her written statement submitted that
since 05.07.82 she was deserted by the respondent and no
efforts were made by the respondent to take her back even
despite repeated panchayat meetings and efforts made by the
area MLA Shri Bharat Singh.
16. Based on the above pleas of the parties, the learned trial
court held that no such conduct of the respondent was proved
on record which could have compelled the appellant to leave
the matrimonial home. The learned trial court further found
that based on the evidence led by the respondent it was
sufficiently proved on record that repeated efforts were made
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by the respondent to visit the house of the appellant to bring
her back. The learned trial court further found that even the
parents of the respondent had gone to the house of Shri Umed
Singh and even Shri Umed Singh was called to their Village to
be told not to keep the appellant with him and send her back
to the respondent being her legally wedded wife. The learned
trial court also found that the respondent and his mother
went to the house of Shri Umed Singh in Nilothi so as to
persuade the appellant to return to the matrimonial home but
with no result. The learned trial court further found that the
appellant did not examine Smt.Prem and Shri Umed Singh
who were very material witnesses to deny the version of the
respondent about stay of the appellant at Umed Singhs place,
therefore, adverse inference was drawn against the appellant.
The learned trial court although found that the appellant
failed to prove that she had been living apart from the
respondent since 05.07.1982, but in any case the learned trial
court also found that no effort was made by the appellant or
her family members to send her back to the matrimonial home
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even if the date of her returning back to the matrimonial
home on 05.07.1982 is taken as correct. The learned trial
court observed that as per ordinary course of human
behaviour even if the respondent had not come to take her
back after few days, then certainly the appellant could have
gone back to the matrimonial home herself or her parents
should have taken her to the matrimonial home with a view to
rehabilitate her in the matrimonial home. With regard to the
alleged stand of the appellant that some meetings were held
with the members of the Panchayat, the learned trial court
found that the allegations in this regard were absolutely
vague and the same could not be proved by the appellant.
17. The learned trial court has examined the evidence
adduced by both the parties in detail and has given an
extensive judgment holding the respondent husband entitled
to the decree of divorce. On examining the evidence adduced
by both the parties, it is quite manifest that the appellant has
miserably failed to disclose any reasons, much less the
justifiable reasons for bringing the cohabitation with the
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respondent permanently to end. The learned trial court has
not believed the case of the appellant that any demand of two
wheeler scooter was made by the respondent or his parents,
or the appellant and her brother were told not to send the
appellant till the said demand of two wheeler scooter is
fulfilled by the appellant and her parents. The learned trial
court also referred to the contradictory pleas raised by the
appellant in her written statement and in her evidence as
well as the stand taken by her in the criminal case wherein
the demand of two wheeler scooter, monetary demand of
Rs.30,000/- was also alleged to have been made by the father
of the respondent at the time of bidha ceremony. The trial
court further found that the allegation leveled by the
appellant in the written statement with regard to the alleged
demand of dowry are not very clear and specific as very
vaguely the appellant in para 4 (b) of the written statement
took a stand that during the period i.e. 30.6.82 to 4.7.82 she
was not allowed to live peacefully by the respondent and his
parents as they kept on taunting and cursing her and her
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parents as they were not satisfied with the dowry given by
her parents at the time of marriage. The trial court also
found that it was not the case of the appellant either in the
written statement or in the evidence that she was forcibly
turned out of the matrimonial house thereafter. The trial
court also observed that the appellant failed to prove the
exact dates, months or years as to when the alleged
panchayats meetings took place so as to resolve the
conflicts of the parties. The trial court also observed that the
appellant has not filed any record to prove any copy of
complaint/report of the proceedings of the Anti Dowry Cell or
the Social Welfare Board where she had made her first
complaint, so as to prove any efforts made by the appellant
for reconciliation of the dispute with the respondent.
18. In my considered view, no fault can be found with
the said findings of the learned trial court. The appellant has
nowhere in her written statement or evidence asserted or
claimed that she made efforts to go back to her matrimonial
home or her parents tried to send her back. It is surprising
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that the parents of a daughter who has just been married for
a day would not want to send her back or at least make any
effort to send her back. The appellant has also not been able
to prove that the in laws demanded a two wheeler or
Rs.30,000 or in any manner taunted her for bringing
insufficient dowry. It is surprising that with the marriage on
30.6.82 and the appellant going to the parental house on
1.7.82, where was the opportunity for the in laws to taunt her
for getting insufficient dowry or she could be so seriously
troubled with their conduct that she decided not to come back
forever. The appellant laid much stress on the fact that the
respondent refused to take her back when there were
reconciliation proceedings before the Social Welfare Board. It
is not surprising that the respondent reacted in the
irresponsive manner, as the reconciliation proceedings were
started after the appellant filed a complaint with the anti-
dowry cell accusing her in laws of a criminal offence, and
thereafter getting them arrested for offence under section
498-A/406 IPC, which would have naturally antagonized the
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respondent to take her back. It is also the case of the
appellant that the marriage of the parties had already been
consummated on 1.7.82, while this fact has been disputed by
the respondent who has deposed that as per the customs
prevailing in their family the marriage is not consummated on
the first night. It is immaterial of whether the marriage was
consummated or not or as to when it was consummated as the
appellant has maintained the stand that she has lived with the
respondent till 5.7.82. The relevant question to be examined
in the facts of the case as to whether the appellant had left
the matrimonial home with an intention to permanently bring
cohabitation to an end and secondly whether there was a
reasonable cause on the part of the appellant to leave the
matrimonial home due to the conduct of the respondent. As
already discussed above, the appellant has failed to justify
her conduct for not returning back to the matrimonial home,
despite repeated efforts made by the respondent. The
learned trial court has also not believed the theory of demand
of two wheeler scooter put forth by the appellant on account
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of inconsistency raised by the appellant in her pleadings and
in her evidence and also because of divergent stand taken by
her in the criminal case filed by her under Sections 498A and
406 IPC. It is true that the deserted spouse must establish on
record that sufficient efforts were made by him to bring the
deserting spouse to the matrimonial home but it is equally
true that the deserting spouse cannot be expected to sit back
at the parental home for no justifiable grounds and not to
return back to the matrimonial home. Neither in the written
statement nor in the evidence the appellant has shown
making any such efforts to return back to the matrimonial
home while on the other hand the respondent has successfully
proved on record due efforts made by him to bring back the
appellant to the matrimonial home. Taking into consideration
the aforesaid, no infirmity or illegality can be found with the
findings of the learned trail court as far as the ground of
desertion is concerned.
19. The petitioner also claimed divorce on the ground
of cruelty as envisaged in section 13(1)(ia), which finding was
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given in favour of the respondent and the decree of divorce
vide the impugned passed. The appellant has also averred
that in the present appeal the respondent has not argued the
ground of cruelty and thus the same is deemed to have been
abandoned by the respondent. Making cruelty as a ground for
divorce in conjunction with the ground of desertion has
become a common practice but it cannot be lost sight of the
fact that the two are completely distinct grounds and have
different barometers on which they are judged. The
respondent has not averred any instance of cruelty strongly or
has made a case that the conduct of the appellant was such so
as to cause mental agony so that they are not able to live with
each other. Hence, the findings of the learned trial court on
the ground of cruelty are hereby set aside.
20. Before parting with the judgment, the agonizing
facts of the case need to be reiterated. The appellant was of
20 years of age and the respondent 22 when they got married
in 1982. The petition for divorce was filed by the respondent
husband 5 years after the marriage i.e in 1987, and the
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decree of divorce granted in 1996. The present appeal was
filed by the appellant before this court in 1996 itself and has
come for the final decision in the year 2012. The fact that the
parties who stayed together for a mere 24 hours spent close
to 30 years in alleys of courts to get rid of each other, is
nothing but appalling to say the least. The institution of
marriage, which is considered the holy union of two souls, is
made mockery of by such like cases and it is no wonder that
the relevance of this pious bond is under scanner by the youth
today. Each marriage has its bittersweet moments which are
cherished by the couple in the sunset of their lives. The
companionship of the years spent together is a comforting
pillar of strength in their old age and it is most unfortunate
that the parties in the present case were devoid of making
any such memories, more so because of their own faults. This
poignant adjudication has again drawn the mind to wonder
about the litigative voyage in our courts, especially in
matrimonial cases, which leaves the parties with no hope,
zeal, or time to start their lives afresh. It would also be
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pertinent to mention here that as per the mandate of section 9
of The Family Courts Act, 1984 and section 23(2) of the Hindu
Marriage Act, the Matrimonial Courts should make every
positive endeavour to bring about reconciliation between the
parties so that the matter can be amicably settled on mutually
acceptable terms at the very threshold. The courts should
make efforts at the initial stage itself so that the burden of the
courts is also lessened and the parties are also saved from the
arduous litigation. The services of the mediators and
counselors especially appointed for this purpose are at the
disposal of the Family Courts, and should be utilized to the
fullest so that parties are reconciled or agree to part mutually
and amicably. Let the object of section 9 of the Family Courts
Act and section 23(2) HMA not be defeated by a ritualistic
exercise but a concerted, cohesive and conscientious effort on
the part of the Matrimonial Courts to bring the parties to a
pacific agreement. In-time intervention of the courts dealing
with marital disputes with devotion of sufficient hearings at
the initial stage itself may save such parties this long ordeal.
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The courts should make sustained and persistent attempts
even when the pleadings are complete and evidence led, as it
will certainly yield potent results. The present case is nothing
but a venomous irony that the vengeance which was caused in
one day between the parties was nurtured by them for three
decades, and I hope that they realize that it has bereft them of
everything that matrimonial life would have instore, leaving
them now with nothing but remorse.
21. In the light of the above, the present appeal is
dismissed.
22. Let the copy of this judgment be sent to all the
Matrimonial Courts functioning in various District Courts at
Delhi.
January, 2012 KAILASH GAMBHIR, JDc/mg