Madhya Pradesh High Court
Smt. Sonia @ Swati vs Satish on 19 December, 2016
Writ Petition No. 11397/2011
19.12.2016
Shri Rajendra Kumar Gupta, learned counsel for the
petitioner.
None for the respondent.
Though an exception is taken to the order dated 13.4.2011 passed in Hindu Marriage Case No. 44-A/2010; whereby the Trial Court while allowing an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 has permitted the respondent applicant for alternate plea of decree of divorce.
The order when is tested on the anvil of the decision in Bhavna Manohar Adwani v. Manohar Adwani (1992 MPLJ 40) wherein it is held:
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 .
(emphasis supplied) no exception would be carved out as would warrant an interference.
Consequently, petition fails and is dismissed.
(SANJAY YADAV JUDGE VIVEK