Rajasthan High Court - Jodhpur
Pankaj Bhatnagar vs Smt. Shanti Devi @ Pappi & Anr on 22 August, 2013
Equivalent citations: AIR 2014 RAJASTHAN 59, (2014) 3 DMC 700, (2014) 133 ALLINDCAS 3 (RAJ), (2014) 4 CIVILCOURTC 520, (2014) 3 WLC(RAJ) 767, 2014 (133) ALLINDCAS 3 SOC, (2014) 1 RAJ LW 899
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
(1) S.B. CIVIL MISC. APPEAL NO.212/2001
Smt. Shanti Devi Vs. Pankaj
(2) S.B. CIVIL MISC. APPEAL NO.776/1999
Pankaj Bhatnagar Vs. Smt. Shanti Devi & Anr.
Appeals under Section 28 of the Hindu Marriage Act
DATE OF JUDGMENT: August 22, 2013
::P R E S E N T::
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. M.D. Boob, for the appellant-wife.
Mr. Shatish Sharma, for the respondent-husband.
***
Reportable
BY THE COURT:
These two appeals under Section 28 of the Hindu Marriage Act, 1955 (for short, hereinafter referred to as 'the Act of 1955') are directed against the judgment and decree dated 7th of May 1998 under Section 13 of the Act of 1955 and order dated 20.08.1999 under Section 25(1) of the Act of 1955 passed by the learned Addl. District Judge No.1, Bikaner, involving matrimonial dispute between the rival parties and therefore both are heard together and disposed of by this common judgment.
[2]
Apposite facts necessary for both these appeals are that appellant-wife and respondent-husband entered into matrimony as per Hindu rites and rituals at Jaipur on 21st of February 1987. As per version of the respondent, soon after marriage, the appellant adopted a defiant posture and refused to carry out her obligations as a wife. Despite altruistic behaviour of the respondent husband, the appellant did not mend her ways and for trifle things used to quarrel with the respondent and his family members. The respondent has also inter-alia averred in the petition for annulment of marriage that the appellant developed a practice of leaving matrimonial home after short duration periodically without any rhyme and reason. This practice continued up to 5th of December 1987 when she left perpetually matrimonial home during advance stage of her pregnancy. Appalled by this action of the appellant, the respondent laid a petition for restitution of conjugal rights before learned Family Court, Jaipur but all his efforts went in vain and the appellant refused to return back to the matrimonial home for resuming cohabitation. In the petition for divorce, the respondent pleaded that the appellant committed mental and physical cruelty vis-à-vis him and despite his readiness and willingness to keep her with him, she refused to carry out her matrimonial [3] obligations by withdrawing from his society. With these pleas of cruelty and desertion, the respondent prayed for a decree for divorce from the appellant.
The divorce petition preferred by the respondent was contested by the appellant and it was inter-alia averred in the reply that all allegations are false and baseless. As per version of the appellant, after marriage the respondent and his family members were not happily disposed with her and she was never given a fair treatment as a wife and family member. The appellant has also pleaded in the reply that on 3rd of June 1993 when her mother-in-law expired, she immediately visited Bikaner and stayed at matrimonial home upto 11th of July 1993 and during this entire period she has undertaken all her social and moral obligations. However, as per the version of the appellant, during the interregnum period when she stayed at matrimonial home, the respondent refused to reconcile with her and made no endeavor to cohabit with her. Soon after the period of mourn was over, the respondent took her back to her parental house at Jaipur and thereafter did not turn up to bring her back.
[4]
On the basis of pleadings of the rival parties, the learned trial Court framed following issues for determination:
1. आय व पक द न क 05.12.87 स अक रण प र स अलग जयपर म रह रह ह और उसन प र क! मपतय सबध& स च(त ककय हआ ह। यद ऐस ह त! कय प र व ह व च/ क0 ड2क0 प न क अचधक र ह ?
2. आय य च(क म रण5त तथय& क आध र पर व पक क वय ह र प र क स र क8रत प8ण5 रह ह। यद ऐस ह त! कय प र व ह व च/ क0 ड2क0 प न क अचधक र ह ?
3. रस ?
After framing of the issues by the learned trial Court, the rival parties tendered their evidence. On conclusion of the evidence of both the parties, the learned trial Court heard final arguments and vide impugned judgment and decree dated 7th of May 1998 allowed the petition for divorce and granted decree for divorce in favour of the respondent.
Subsequent to passing of the decree by the learned trial Court, a petition under Section 25 of the Act of 1955 was filed by the appellant in the joint name of herself [5] and her minor son Prashant Bhatnagar. In her petition under Section 25(1) of the Act of 1955, the appellant has inter-alia averred that she has no sufficient means to maintain herself and her minor son and therefore they are entitled for permanent alimony and maintenance from the respondent @ Rs.4,500/- per month. The said petition of the appellant was contested by the respondent. The learned trial Court adjudicated the petition for permanent alimony and maintenance by the impugned order dated 20th August 1999 and partly allowed the same by awarding monthly maintenance of Rs.2,000/- to the appellant and Rs.1500/- to her minor son.
Before this Court, both these appeals were clubbed together vide order dated 22nd January 2002. On 7th December 2009, when the matter came up before the coordinate Bench of this Court, efforts were made for reconciling both the spouses but the efforts have not yielded the desired results. As both the spouses failed to arrive at some amicable settlement when the reconciliation proceedings were undertaken by the coordinate Bench, the only son of both the spouses was also present and Court, after interaction with both the parties issued following directions:
[6]
(i)From January, 2010, the respondent-
husband Pankaj Bhatnagar shall pay monthly maintenance of Rs.5000/- per month within first week of the month to the respondent-wife and their son Prashant. The said sum of Rs.5000/- will be remitted either by money order or by demand draft or by the cheque payable at Jaipur by registered AD/Speed post at the address of the appellant or in the alternative the said amount may be deposited in the bank account of the respondent-wife/their son Prashant as is being now in the Allahabad Bank within first week of the month.
(ii)The respondent-husband will visit Jaipur either at the residential address of the respondent-wife or their son or in the alternative will hold meeting with them outside the residential house during such week-end as per his convenience.
(iii) It is further directed that if the appellant wife and their son Prashant visit Bikaner and they want to meet the respondent-husband at some 3rd place, other than present residential address of respondent husband on such week-end, then during that month, the respondent- husband need not visit Jaipur and he may meet the appellant-wife and their son at Bikaner as per their mutual convenience.
(iv)It is stated that the respondent-
husband keeps telephonic touch with his son Prashant and he would continue to have the similar interaction with the son Prashant.
Although the efforts made by the coordinate Bench on 7th December 2009 proved futile, further [7] directions were issued to both the spouses to remain present for reconciliation from time to time. On 22nd February 2011, both the parties were present and reconciliation proceedings were undertaken by the coordinate Bench in camera but the same remained inconclusive because of paucity of time. Yet again efforts were made by the Court to reconcile both the spouses on 3rd September 2012 but no fruitful results yielded and impasse continued. Thus, the proceedings undertaken by the Court from time to time clearly and unequivocally reveals that there is a serious acrimony between the rival parties and both are living separately since last more than two and a half decades.
Assailing the impugned judgment and decree dated 7th of May 1998, the learned counsel for the appellant Mr. M.D. Boob has strenuously argued that the learned Court below has not appreciated the evidence tendered by the rival parties in right perspective and therefore the impugned judgment cannot be sustained. Learned counsel for the appellant would urge that the respondent-husband has miserably failed to prove physical and mental cruelty against the appellant inasmuch as according to learned counsel, no evidence has been tendered on behalf of the respondent to show that conduct of the appellant was of [8] such type that it was not reasonably expected from the respondent to live with her. Mr. Boob has contended that there is no evidence worth the name tendered by the respondent indicating that the treatment accorded to him by the appellant has caused such apprehension in his mind so as to think that cohabitation with the appellant would be harmful or injurious and it is not reasonably possible for the respondent to live with the appellant in such circumstances. The learned counsel for the appellant has argued that while deciding issue No.2 against appellant, the learned court below has not properly construed the term "cruelty" in matrimonial sense and therefore finding on issue No.2 is wholly perverse and cannot be sustained. Attacking the finding of the learned court below on Issue No.1, the learned counsel for the appellant would urge that there was absolutely no evidence and other materials on record to prove that the appellant has deprived respondent from his right of cohabitation. The submission of the learned counsel for the appellant is that in fact the respondent himself has abandoned her and refused to cohabit with her. Thus, the sum and substance of the submission of the learned counsel for the appellant is that appellant cannot be held responsible for depriving the respondent from his conjugal rights in the backdrop of facts and circumstances of the [9] instant case. In support of his contentions, the learned counsel for the appellant has placed reliance on following legal precedents:
1. Raj Talreja V/s. Kavita Talreja 2013 (2) CCC 428 (Raj.) (DB)
2. Kailash Deo V/s. Smt. Shanti 2012 (1) DNJ (Raj.) 379
3. Lakkaaraju Padma Priya V/s. Lakkaraju Shyam Prasad 2009 (2) CCC 258 (AP) (DB)
4. Vishnu Dutt Sharma V/s. Manju Sharma 2009 (2) CCC 343 (SC)
5. Arundhati Deepak Patil V/s. Deepak Bhaurao Patil 2009 (1) CCC 117 (Bombay) (DB)
6. Jatinder Kumar V/s. Preety 2008 (1) CCC 403 (P & H)
7. Usha Rani V/s. Sham Lal 2008 (1) CCC 663 (P & H)
8. Purshotam Dass V/s. Smt. Purnima 2006 (4) CCC 750 (Raj.) (DB)
9. Shyam Sunder Kohli V/s. Sushma Kohli @ Satya Devi 2005 (1) CCC 85 (SC) Per contra, learned counsel for the respondent-
husband has vociferously defended the impugned judgment and decree and submitted that the learned court below has thrashed out the matter in its right perspective and that being so it has rightly passed the decree for annulment of marriage. Buttressing his submissions with full emphasis, the learned counsel for the respondent would urge that on meaningful consideration of the statement of the respondent and other supporting witnesses, there remains [10] no room of doubt that appellant has failed to discharge her marital obligations and has treated the respondent with cruelty. The learned counsel for the respondent has contended that a cumulative reading of the evidence tendered by the respondent clearly goes to show that appellant has always adopted a stubborn posture and cultivated the habit of leaving matrimonial home from time to time on trifle matters. Learned counsel for the respondent further submits that the appellant never maintained cordial relations with the respondent as well as his family members and despite sincere efforts made by the respondent, she has refused to resume cohabitation and consequently the conclusions arrived at by the learned court below on Issue No.1 and Issue No.2 are just conclusions warranting no interference by the appellate Court. Mr. Satish Sharma, learned counsel for the respondent, urged that finding of fact recorded by the learned Court below on the basis of proper appreciation of evidence in the backdrop of the facts and circumstances of the instant case cannot be faulted, and therefore, no interference with the impugned judgment and decree is called for. In support of his contentions, the learned counsel for the respondent has placed reliance on following legal precedents:
1. Anita Jain V/s. Rajendra Jain AIR 2010 Raj. 56.[11]
2. Narendra Kumar Gupta V/s. Indu AIR 2002 Raj 169
3. Naveen Kohli V/s. Neelu Kohli AIR 2006 SC 1675
4. Dr PK Tomar V/s. Smt. Archana AIR 2003 Allahabd 214
5. Dr. N.G. Dastane V/s. Mrs. S. Dastane AIR 1975 SC 1534
6. P Kalyanasundaram V/s. K Paquialatchamy AIR 2004 Madras 43
7. Lachman Utamchand Kriplani V/s. Meena alias Mota AIR 1964 SC 40
8. Geeta Jagdish Mangtani V/s. Jagdish Mangtani AIR 2005 SC 3508
9. Bipinchandra Jaisinghbai Shah V/s.
Prabhavati AIR 1957 SC 176 I have heard the learned counsel for the rival parties, perused the impugned judgment as well as the order, and thoroughly scanned the materials on record.
The crucial issue, which has emerged out in the instant appeals for adjudication, is the factum of cruelty by the appellant-wife vis-à-vis respondent-husband. In common parlance, the word "cruelty" pre-supposes an act or omission done by an individual willfully or knowingly causing pain or distress to others or enjoying pain or distress of others. When the connotation of the word "cruelty" is examined in the matrimonial disputes, it ipso- facto reveals that for construing the word "cruelty", the entire factual background of the case is to be examined. [12] The general rule in all questions of cruelty is that whole matrimonial relationship must be considered and that rule is of special value where cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations or taunts. The word cruelty occurring in Section 13(1)(i)(a) of the Act of 1955 means an act committed by one spouse to other with the intention to cause sufferings. Cruelty includes action or omission which injures the susceptibilities of the affected spouse and causes him or her mental agony to which the sufferer alone can state. Therefore, significance of the term "cruelty" in matrimonial jurisprudence is at a different pedestal vis-à-vis a cruelty in general parlance. In a matrimonial dispute, even a trifle incident can acquire shape of mental or physical cruelty by a spouse vis-à-vis the other spouse. Thus, the matrimonial courts while construing the word "cruelty" are required to delve deep into the matter to unearth the truth. In the present case, for substantiating the allegations of mental and physical cruelty against the appellant-wife, the respondent-husband himself has deposed on oath in his testimony that right from the inception of the matrimony the appellant was not happily disposed of with him and his family members. For proving his bonafide, the respondent has also stated that he made all sincere endeavors for [13] reconciliation but all his efforts proved abortive because of recalcitrant attitude of the appellant. With a view to prove mental cruelty, the respondent has also proved the contents of two letters written by the appellant's brother wherein false and reckless allegations were made against the respondent and his family members. Registration of a false criminal case at the behest of appellant's father under Section 498A and 406 IPC against the respondent and his family members is also cited as a glaring example of cruelty by the appellant in his deposition by the respondent. The version of the respondent is fully endorsed by the other supporting witnesses, namely, PW2 Pradeep Kumar Gupta, PW3 Mahesh Bhatnagar, and PW4 Krishan Mohan Swaroop Bhatnagar, father of the respondent. For the purpose of authenticating her defence, the appellant herself has appeared in the witness box and testified on oath. Besides the testimony of the appellant, her brother Madan Gopal has also appeared in the witness box. The Court below, while construing the documentary and oral evidence of the rival parties, has discussed the same threadbare in the impugned judgment while deciding Issue No.1 & 2 in favour of the respondent. Analyzing the conduct of the appellant and her other family members, the learned Court below has recorded a clear and unequivocal finding that the appellant [14] was never ready and willing to reconcile and to cohabit with the respondent. The learned Court below has also taken serious note of the fact that the appellant and her family members have filed a false criminal case against the respondent and his family members. Castigating the respondent and his family members for serious offences under Section 498A and 406 IPC without any rhyme and reason, is a conduct which clearly depicts that the appellant was not in a conciliatory mood, rather she was interested in perpetuating the acrimony and discord. Taking serious note of lodging of false criminal case, the learned Court below has recorded an affirmative finding that this sort of conduct of the appellant clearly tantamount to mental and physical cruelty. On evaluation of the evidence and other materials on record, and a critical analysis of the findings and conclusions recorded by the learned Court below, in my considered opinion, there is apparently no infirmity much less legal infirmity in the said finding. As thrashed out supra the concept of cruelty in matrimonial sense is to be construed with pragmatic approach, the finding recorded by the learned Court below, in my view, cannot be faulted nor the same can be categorized as infirm from any stretch of imagination. Under the Hindu law, marriage is a sacred ceremony and trust of a spouse vis-à-vis other spouse is a [15] pre-requisite for success of nuptial. Any overt act, omission or commission by any of the spouse, which can have ill-effect of putting the marital relation to jeopardy, is ex-facie an act of cruelty. This sort of conduct by any spouse, may it be unintentional, is inexcusable in matrimonial relationship. Therefore, viewed from any angle, in my humble opinion, the findings of the learned Court below, that the appellant has practiced mental and physical cruelty vis-à-vis her spouse respondent and she has deprived him from his right of cohabitation, is in consonance and in conformity with matrimonial jurisprudence and the said conclusion of the learned Court below is a just conclusion in the backdrop of the facts and circumstances of the instant case. The findings of the learned Court below on Issue No.1 relating to desertion is apparently just and reasonable in the facts and circumstances of the instant case because there was umpteen material on record to show that there was factum of separation between both the spouses directly attributable to the appellant and existence of clear intention of the appellant to bring cohabitation permanently to an end (animus deserendi). In this view of the matter, the impugned judgment of the learned Court below on Issue No.1 is also based on proper appreciation of evidence and [16] marshaling all facts in the right perspective.
Although the learned counsel appearing for the rival parties have made endeavor to place reliance on catena of judicial precedents throwing light on the propositions they have urged, but the significance of a legal precedent in a matrimonial case always depends on facts and circumstances of an individual case.
I have given my anxious consideration to the law cited at Bar and on examining all these judgments, in my humble opinion, it is not desirable to discuss all these legal precedents on the anvil of facts of the instant case.
The Apex Court in case of Naveen Kohli Vs Neelu Kohli (supra), while examining the institution of marriage under the Hindu law has made following observations in Para 68 of the verdict:
68. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as [17] noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-
productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.
Examining the aspect relating to cruelty by one spouse vis-à-vis other, the Apex Court was pleased to make following observations in Para 84 to 86 of the verdict:
84. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is concerned, the status of husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5% share of Rs.100/- each in the company. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the company, besides diverted orders of foreign [18] buyers to his proprietorship firm M/s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the company. Statutory authority-Companies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause notice.
All business associates were cautioned to avoid dealing with him alone. Neither the company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.
85. The findings of the High Court that the respondent wife's cautioning the entire world not to deal with the appellant (her husband) would not lead to mental cruelty is also wholly unsustainable.
86. The High Court ought to have examined the facts of the case and its impact. In the instant case, the following cases were filed by the respondent against the appellant.
1. The respondent filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC
2. The respondent got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City.
3. At the behest of the respondent FIR No.156 of 1996 was also filed in the police station, Panki.
4. The respondent filed FIR under Section 420/468 IPC at the Police Station, Kotwali.
5. The respondent got a case registered under Section under Sections 420/467/468 and 471 [19] IPC.
6. The respondent filed a complaint against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna.
7. The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the police station, Kotwali
8. When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the respondent filed protest petition in these cases.
9. The respondent filed complaint No.125 of 1998 in the Women Cell, Delhi in September 1997 against the appellant's lawyer and friend alleging criminal intimidation.
10. The respondent filed a complaint under sections 397/398 before the Company Law Board, New Delhi.
11. The respondent filed a complaint in Case No.1365 0f 1988 against the appellant.
12. Again on 8.7.1999, the respondent filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to get the appellant arrested.
13. On 31.3.1999, the respondent have sent a notice for breaking the Nucleus of the HUF.
14. The respondent filed a complaint against the appellant under Section 24 of the Hindu Marriage Act.
15. The respondent had withdrawn Rs.9,50,000/- from the bank account of the appellant in a clandestine manner.
16. On 22.1.01 the respondent gave affidavit [20] before the High Court and got non-bailable warrants issued against the appellant.
17. The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant.
The Apex Court in case of Dr. N.G. Dastane V/s. Mrs. S. Dastane (supra), while examining the standard of proof in matrimonial proceedings, has held that for proving cruelty conclusions can be drawn on a mere preponderance of probabilities by the Court. The Apex Court made following observations in this behalf in Para 26 to 28 of the verdict:
26. Neither section 10 of the Act which enumer-
ates the grounds on which a petition for judicial separation may be presented nor section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is "satisfied" on matters mentioned in clauses (a) to (e) of the section. Considering that proceed- ings under the Act are essentially of a civil na- ture, the word "satisfied" must mean "satisfied on a preponderance of probabilities" and not "satisfied beyond a reasonable doubt". Section 23 does not alter the standard of proof in civil cases.
27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a "matrimonial of- [21] fence". Acts of a spouse which are calculated to impair the integrity of a marital union have a so- cial significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this so- cial philosophy, though it may have a bearing on the need to have the clearest proof of an allega- tion before it is accepted as a ground for the dis- solution of a marriage, has no bearing on the standard of proof in matrimonial cases.
28. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in (1966) 1 All ER 524 at p. 536, the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, "the case; like any civil case, may be proved by a pre- ponderance of probability". The High Court of Austraila in (1948) 77 CLR 191 at p. 2010 Wright v. Wright, has also taken the view that "the civil and not the criminal standard of persuasion ap- plies to matrimonial causes, including issues of adultery". The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty "beyond reasonable doubt". The High Court adds that "This must be in accordance with the law of evidence", but we are not clear as to the implications of this observation. Adverting to the ground of divorce set out in the petition, viz. desertion, reliance can be profitably made to the judgment of the Apex Court in case of Lachman Utamchand Kriplani V/s. Meena alias Mota (supra), the Apex [22] Court, while construing the term "desertion", discussed its ingredients and made following observations in this behalf in Para 18 to 20 of the verdict:
18. The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal from Bombay where the Court had to consider the provisions of s. 3(1) of the Bombay Hindu Divorce Act, 1947, whose lan-
guage is in pari materia with that of s. 10(1) of the Act. In the judgment of this Court in Bipin Chander v. Prabhawati. 1956 SCR 838: ((S) AIR 1957 SC176) there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury's Laws of England (3rd Edn.), Vol. 12, was cited with approval :
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repu- diation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged at- tempts at defining desertion, there being no gen- eral principle applicable to all cases.
The position was thus further explained by this Court:
"If a spouse abandon the other spouse in a state of temporary passion, for example, anger or dis- gust, without intending permanently to cease co- habitation, it will not amount to desertion. 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 of bring cohabitation perma-
nently to an end (animus deserendi). Similarly [23] two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention afore- said........ 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 at- tributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus de- serendi coincide in point of time."
Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. It is settled law that the burden of proving desertion- the "factum" as well as the "animus deserendi is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court the desertion throughout the entire pe- riod of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was with- [24] out just cause. As Denning, L....., observed :
(Dunn v. Dunn) [1948] 2 All. E.R. 822, 823 :
"The burden he (Counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distin- guish between a legal burden of proof laid down by law and a provisional burden raised by the state of the evidence............ The legal burden throughout this case is on the husband, as peti- tioner, to prove that his wife deserted him with- out cause. To discharge that burden, he relies on the fact that he asked her to join him and she re- fused. That is a fact from which the court may in- fer that she deserted him without cause, but it is not bound to do so. Once he proves that fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself: Is the legal burden dis- charged? Has the husband proved that she de- serted him without cause? Take this case. The wife was very deaf, and for that reason could not explain to the court her reasons for refusal. The judge thereupon considered reasons for her re- fusal which appeared from the facts in evidence, though she had not herself stated that they oper- ated on her mind. Counsel for the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of the case: Has that burden been dis- charged?"[25]
19. This, in our opinion, is as well the law in this country under the Act.
20. The other matter is this. Once desertion, as defined earlier, is established there is no obliga- tion on the deserted husband (taking the case where he is the deserted spouse) to appeal to the deserting spouse to change her mind, and the circumstance that the deserted husband makes no effort to take steps to effect a reconciliation with the wife does not debar him from obtaining the relief of judicial separation, for once deser- tion is proved the deserting spouse, so long as she evinces no sincere intention to effect a rec- onciliation and return to the matrimonial home, is presumed to continue in desertion, of course, the matter would wear a different complexion and different considerations would arise where before the end of the statutory period of 2 years or even thereafter before the filing of the petition for judicial separation the conduct of the desert- ed spouse was such as to make the deserting spouse desist from making any attempt at recon- ciliation. If he or she so acts as to make it plain to the deserting spouse that any offer on the part of the latter to resume cohabitation would be re- jected, then the deserting spouse could obviously not be blamed for not bringing the desertion to an end. Or again, if before the end of the period of two years or the filing of the peti- tion his or her conduct is such as to provide a just cause for the deserting spouse for not re- suming cohabitation, the petition cannot succeed, for the petitioner would have to establish that the desertion was without just cause during the en- tire period referred to in s.10(1)(a) of the Act be- fore he can succeed.
On examining the facts and circumstances of the instant case on the touchstone of the law laid down by the Apex Court, in my considered view, the respondent has succeeded in proving the factum of cruelty by the appellant [26] and further he has been able to prove animus deserendi on the part of the appellant spouse. In this view of the matter, I feel persuaded to fully concur with the findings and conclusions arrived at by the learned Court below.
One more redeeming feature of the instant case is that both the spouses are litigating since last more than two decades and are living separately for last two and half decades. This vital fact has also acquired great significance in the light of fact situation of the instant case. The reconciliation proceedings drawn by this Court from time to time clearly and unambiguously demonstrates that efforts made by the Court for reunion of both the spouses have not yielded the desired results and the acrimony between the rival parties has not only subsisted but it has perpetuated by afflux of time. The lapse of time of more than two and half decades in the considered view of this Court has its serious repercussions in the relationship of spouses and virtually the state of things, which are prevailing at the moment, clearly portrays ramification of irretrievable breakdown of the marriage. This Court is quite conscious about the fact that irretrievable breakdown of the marriage is not a ground of divorce within the four corners of Section 13 of the Act of 1955. However, this important aspect [27] cannot be overlooked by this Court so as to conclude that matrimony between both the spouses is dead for all practical purposes due to passage of time and revival of the same would prolong the agony of both the spouses. The Apex Court in case of Naveen Kohli V/s. Neelu Kohli (supra), while dealing with this aspect of the matter, has made following observations in Para 77 to 82:
77. A law of divorce based mainly on fault is inadequate to deal with a broken marriage.
Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute.
78. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
79. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. [28]
80. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
81. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.
82. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.
The Apex Court has further gone to the extent of recommending Union of India to bring an amendment in the Act of 1955 for incorporating the said ground as ground for divorce. The Court, ultimately, made following observations in Para 96 of the verdict:
96. Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, [29] 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal Affairs, Government of India for taking appropriate steps.
True it is, that till date the said ground has not been incorporated under Section 13 of the Act of 1955, but in the backdrop of the facts and circumstances of the instant case, the ratio decidendi of the aforementioned verdict can be appropriately applied and therefore while upholding the impugned judgment and decree on its merit, I am of the view that even on the anvil of principle of irretrievable breakdown of marriage also no indulgence can be granted to the appellant in her pursuit.
Now switching on to the appeal preferred by the respondent assailing the order dated 20th of August 1999 passed by the learned trial Court under Section 25(1) of the Act of 1955, in my considered opinion, the said appeal lacks merit and no interference with the impugned order is warranted. As quoted supra, this Court has directed the respondent husband vide order dated 7th December 2009 to pay monthly maintenance of Rs.5,000/- and the respondent is making compliance of the said order, in the changed [30] scenario and taking into account inflationary trends and devaluation of Rupee, the amount of permanent alimony and maintenance deserves enhancement. On consideration of all these factors, this Court feels that monthly amount of permanent alimony and maintenance for the appellant is required to be enhanced so as to make it adequate for survival of the appellant and the amount of permanent alimony and maintenance is accordingly enhanced to Rs.9,000/- per month and the appellant is declared entitled for the same from the date of this judgment. It is made clear that the respondent shall abide by his commitments made before this Court on 7th of December 2009 to look after the interest of his only major son Prashant and discharge all his legal, social and moral obligations vis-à-vis him as father.
The net result of the above discussion is that both these appeals are having no merit and are accordingly dismissed and the respondent Pankaj Bhatnagar is directed to pay enhanced amount of permanent alimony and maintenance to the appellant Shanti Bhatnagar, as quantified hereinabove.
Parties are left to bear their own costs.
(P.K. LOHRA), J.
arora/