Madhya Pradesh High Court
Subhash Chand Telang vs Rajlaxmi Telang on 8 October, 1990
Equivalent citations: I(1992)DMC389
JUDGMENT K.L. Issrani, J.
1. This is a first appeal under Section 28 of the Hindu Marriage Act, 1955 filed by the appellant against the judgment and decree dated 9th September, 1987 passed by District Judge, Bilaspur, in Civil Suit No. 8-A of 1986, whereby the petition of the appellant for grant of divorce has been dismissed.
2. The admitted facts of this case are that the respondent is the legally wedded wife of the appellant. The marriage took place on 20.3.1983, but since 9.7.1983 the parties are residing separately. Before filing the petition for divorce, a notice dated 18.7.1983 was issued to the respondent. On 2.1.1984, a child was born to the respondent out of the wedlock. But on 20th January, 1986, the appellant had filed a petition for divorce under Section 13 of the Hindu Marriage Act.
3. The case of the appellant in short is that, since the respondent has left him on 9.7.1983, she has deserted and refused to come back and live with the appellant, the appellant, therefore, wants a decree for divorce on the ground of desertion.
4. The respondent has not denied the fact of marriage birth of a child, living separately since 9.7.983 and also service of notice on her. But she has denied all other adverse allegations against her. According to the respondent she has never refused to live with the appellant, but it is the appellant who had been treating the respondent with cruelty and driven her out of the house forcibly. The appellant has also challenged the chestity of the respondent by writing letters Ex. NA-1 and Ex. NA-2, which allegations are completely false. According to her she and her parents had been approaching the appellant from time to time, but the appellant refuses to keep her as his wife.
5. The trial Court after recording the evidence has dismissed the petition of the appellant under Section 13 of the Hindu Marriage Act. The trial Court has answered all the issues against the appellant. The trial Court has found that till 1985 the respondent was trying to go and live with the appellant. The appellant has failed to keep her.
6. In the trial Court the re-conciliation proceedings failed on 30.10.1986. Before this Court also on 25.7.1990, the case was fixed for reconciliation of the parties, but the husband refused to keep the wife though the wife was ready and willing to live with the husband, in spite of his bad conduct against her.
7. Before this Court it is argued by the learned Counsel for the appellant that since the respondent has deserted the appellant without any just: reason or the cause it amounts to the mental cruelty. After such a long period it is not possible for the parties to live together. This Court should grant the decree for divorce. The learned Counsel has also prayed for a decree of judicial separation. The learned Counsel for the respondent has refuted all the allegations of the appellant and has submitted that the appellant is guilty of his own faults. He is not entitled for any type of decree sought for.
8. Having heard the parties at length, on going through the evidence on record, I am of the opinion that this appeal must fail. For proving the desertion, the burden of proof was on the appellant. It was for the appellant to prove not only the factum of desertion but also the 'animus deserendi'. The wife has not shown any intention to abandon the matrimonial relations with the appellant.
9. While reading the letters, Ex. N.A. 1 and Ex. N.A-2, admittedly written by the appellant, it cannot be believed that he had ever tried to approach the respondent or her parents for restitution of conjugal rights or for any steps to bring her back for leading a matrimonial life with the respondent. In this case the parties are living in the same town. The submission of the appellant is that he used to go to his cousin sister where he always called the respondent and offered her to go for outing somewhere else but she refused on the ground of obtaining permission from her parents, seems to be false, in view of the conduct and the letters of the appellant. The lower Court has, therefore, rightly not believed the witnesses of the appellant and rejected their testimony. On the contrary, the evidence led by the respondent is just and believable.
10. In a case where a charge of adultery has been levelled against the wife, she has a reasonable excuse to keep away from her husband and live separately. It also entitles the wife to get the marriage dissolved because the charge amounts to legal cruelty. But in this, in spite of that respondent was always ready and willing to perform her conjugal rights, but it is the appellant who has always been refusing to perform his part of the conjugal rights. Therefore, there is ample justification for the respondent's living separately under compelling circumstances with her parents. In such case, it cannot be said that there is no possibility of the parties living together and that the decree of divorce must follow. The appellant has failed to point out any other ground which entitles him for such decree. In my opinion, the appellant is also not entitled to any other alternative relief as sought by him because he is guilty of his own conduct.
11. The appeal of the appellant has, therefore, to merits and is hereby dismissed. However, there shall be no order as to costs.