Punjab-Haryana High Court
Smt. Laxmi vs Karan Singh on 25 September, 2013
Author: Jaspal Singh
Bench: Ajay Kumar Mittal, Jaspal Singh
FAO No.2786 of 2013 (O&M) -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
FAO No.2786 of 2013 (O&M)
Date of Decision:25.09.2013
Smt. Laxmi
... Appellant
Versus
Karan Singh
... Respondent
CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. R.S. Hooda, Advocate for the appellant.
Mr. S.K. Tripathi, Advocate for the respondent.
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest?
Jaspal Singh, J.
C.M. No.12613-CII of 2013 In view of the reasons mentioned in the application supported by affidavit of Smt. Laxmi, delay of 12 days in filing the main appeal is condoned.
Main case
1. The present appeal has been preferred by Smt. Laxmi-Wife feeling dissatisfied against judgment and decree dated April 11, 2013 whereby a petition preferred by her husband-Karan Singh under Section 13 of the Hindu Marriage Act 1955 (for short "the Act") as amended upto date, was allowed dissolving their marriage.
2. Facts emerging from the divorce petition are that marriage of the petitioner was solemnized with respondent/Smt. Laxmi on December 12, 2002 according to Hindu rites and ceremonies. They cohabited as such at village Harchandpur, Tehsil Bawal, District Rewari and one female child Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -2- namely Sagar @ Shanshank was born out of their wedlock. Allegations unfolded by the petitioner-husband are that respondent-wife used to pick-up quarrels with petitioner and his family members including his minor sister Kumari Pinki. Though, he tried to make the respondent understand not to quarrel with them, yet act and conduct of respondent remained unchanged. He further alleged that respondent did not show any interest in the house hold affairs. Her behaviour was rude. She used to abuse him in the presence of his family members and villagers. She pressurized petitioner to settle with her at Faridabad but it was not possible for him since his parents already expired before his marriage leaving behind four sisters namely Smt. Babita, Smt. Babli, Smt. Shobha and Kumari Pinki. He had the liability and responsibility with regard to education and marriage of his minor sister Kumari Pinki who was studying in 10th class. Seeing the unnatural conduct and behaviour of the respondent, his relatives namely Dhan Singh, Tej Pal and Naresh of the petitioner jointly tried to settle the matter and arranged a panchayat at parental house of respondent, but she and her family members refused to do so. On February 25, 2005, respondent left her matrimonial home while taking away all the ornaments, her clothes and Rs.20,000/- from almirah. On February 28, 2005, the petitioner-husband had gone to parental house of respondent to bring her back, but she and her family members tried to kill him and involved him in a false case bearing FIR No.35 dated 1.3.2005 under Sections 302, 307 IPC Police Station Chhainsa (Faridabad). He further alleged that he was implicated on the false accusation by her father, her brother, sister and had to remain in custody for about 20 months continuously. He was acquitted vide order dated 1.11.2006 by Shri A.K. Raghav, Addl. Sessions Judge Ist, Faridabad and in this way respondent in Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -3- collusion with her father, sister and brother falsely implicated the petitioner in the said case. It was further pleaded that when he was in judicial custody in the month of August 2006, respondent and her family members accompanied by their coolies came to the house of petitioner and took away all the articles of dowry including bed etc. and motorcycle No.HR-30E- 0161 in the presence of Balbir, Sher Singh, Kanhaiya Ram, Daya Chand all residents of village Harchandpur. He further pleaded that a panchayat was convened at the house of respondent in village Atali, Tehsil Ballabgarh, District Faridabad in the month of October 2006 and permanent alimony of Rs.4,00,000/- was paid to respondent and decided to seek Divorce under Section 13-B of the Act by way of mutual consent.
3. It has further been pleaded that respondent instead of filing petition for divorce by mutual consent, filed a petition under Section 125 of Cr.P.C as case No.15 of 30.3.2007 for which he is paying Rs.3,000/- per month as maintenance for his minor son. He further alleged that respondent so many times after the birth of child had taunted the petitioner that petitioner was not father of the child, therefore, as per her own utterness she even created a doubt on the parentage of son of petitioner. All the acts and conducts of respondent-wife amount to mental as well as physical cruelty. She has also deserted him without any reasonable cause since February 25, 2005. Ultimately, the petitioner-husband was constrained to prefer the petition for dissolution of his marriage with respondent on the ground of cruelty as well as desertion.
4. Upon notice, respondent appeared through her counsel and resisted the petition. She filed her written statement raising preliminary objection inter alia on the grounds that petition is based upon concocted, Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -4- false and frivolous allegations and that petitioner has not come with clean hands etc. She pleaded that attitude of petitioner was so arrogant and aggressive and he used to abuse her and her family members and it is the petitioner who is cruel man. He committed the murder of her mother and caused injuries upon her sister.
5. On merits, the marriage between the parties has been admitted. Respondent-wife has denied that she pressurized the petitioner to settle with her at Faridabad. However, it has been alleged that she was beaten up by him for demand of dowry and she lodged a complaint in this regard to SSP, Faridabad on November 16, 2004. However, the matter was compromised. Thereafter, she was again tortured and harassed and on February 25, 2005, her father took her alongwith her child to her parental house. On February 28, 2005, the petitioner had come to the house of the respondent and on the next day i.e. March 1, 2005, he attacked on the mother of respondent and her younger sister on account of which her mother died and FIR No.35 dated 1.3.2005 under Sections 302, 307 IPC was registered. However, the petitioner was acquitted in that case due to benefit of doubts. She also denied that in October 2006 panchayat was convened or Rs.4,00,000/- were given to her. She alleged that in fact petitioner suspects her character. Accordingly, she prayed for dismissal of the petition.
6. On going through the pleadings of the parties, following issues were culled out by the learned trial Court in order to adjudicate upon the matter in controversy:
"1. Whether the petitioner was subjected to cruelty by the respondent on the grounds mentioned in the petition? OPP
2. Whether the petitioner was deserted without any sufficient cause by the respondent, as mentioned in the petition? OPP
3. Whether the petition is not maintainable in the present form? OPR Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -5-
4. Whether the petitioner is guilty by his own misconduct? OPR
5. Relief."
7. Both the parties were afforded ample opportunity to adduce and conclude their evidence in support of their respective pleadings and they led oral as well as documentary evidence. In order to substantiate his case, the petitioner himself stepped into the witness box as PW-1. He also examined Hari Singh as PW-2, Banwari as PW-3, Bhikkan Lal as PW-4, Hari Ram as PW-5 in support of his case. Thereafter closed his evidence.
8. To rebut the evidence adduced by the petitioner-husband, respondent examined Hakam Ali as RW-1, Mohar Pal as RW-2 and she herself stepped into the witness box as RW-3. Thereafter, she closed her evidence.
9. After hearing the learned counsel for the parties and appraisal of the evidence adduced by the parties in support of their respective pleadings, issues No.1 and 2 were decided in favour of the petitioner- husband and against the respondent-wife holding that the ground of cruelty as well as desertion stood proved. Resultantly, the petition was accepted and the marriage of the parties was dissolved by a decree of divorce on the grounds of cruelty and desertion.
10. Feeling aggrieved, respondent-wife preferred the instant appeal in which notice of motion was issued, in response to which Shri R.S. Hooda, Advocate represented the appellant wife and Shri S.K. Tripathi, Advocate represented the respondent-husband.
11. We have heard the learned counsel for the parties at length.
12. While assailing the findings recorded by the learned trial court especially on issues No.1 and 2 and the judgment and decree dated April 11, 2013, it has been ebulliently argued by the learned counsel for the appellant- Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -6- wife that the same are absolutely against the evidence available on the file. Mis-appreciation of evidence and the legal proposition has resulted into miscarriage of justice. Learned counsel for the appellant-wife contends that the behaviour of the respondent remained cruel towards her. He was so arrogant and aggressive. He used to abuse her and her family members. It is further contended that the respondent had illicit relations for which he decided to get rid of the appellant. He committed the murder of her mother and caused injuries upon her sister. It has further been contended that she was beaten up by him for demand of dowry and she lodged a complaint in this regard to SSP, Faridabad on November 16, 2004. However, the matter was compromised. Thereafter, she was again tortured and harassed. Inspite of that she never wished for dissolution of marriage with a hope that things would get right with passage of time. Finally, it was submitted by the learned counsel for the appellant that the respondent blatantly failed to prove that the appellant has treated him with cruelty and deserted him to bring an end to the matrimonial ties. The evidence led by the respondent were not sufficient to grant him decree of divorce. Therefore, the impugned judgment and decree dated September 21, 2012 is against the evidence available on the file. As such, it requires interference by this Court.
13. It has been argued by the learned counsel for the respondent that the marriage of the respondent-husband was solemnized on December 12, 2002 and one child namely Sagar @ Shanshank was born out of the wedlock. The act and conduct of the appellant was always insulting towards the respondent and his family members. He further submitted that respondent did not show any interest in the house hold affairs. It is further submitted that the appellant pressurized the respondent to settle with her at Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -7- Faridabad but it could not be possible on account of the responsibility of the respondent towards his sisters after the death of his parents. As such, respondent crossed the limit of relations with his sisters and behaved like a cruel lady. Brothers-in-law namely Dhan Singh, Tej Pal and Naresh of the petitioner jointly tried to settle the matter and arranged a panchayat at parental house of the appellant, but the appellant and her family members refused to do so. On February 25, 2005, respondent left her matrimonial home while taking away all the ornaments, her clothes and Rs.20,000/- from almirah. On February 28, 2005, the respondent-husband had gone to parental house of respondent to bring her back, but the appellant and his family members tried to kill him and involved him in a false case bearing FIR No.35 dated 1.3.2005 under Sections 302, 307 IPC Police Station Chhainsa (Faridabad). It is further submitted that the respondent was implicated on the false accusation by her father, brother, sister and the appellant herself and he remained in custody for about 20 months continuously. However, the respondent was acquitted vide order dated 1.11.2006 by Shri A.K. Raghav, Addl. Sessions Judge Ist, Faridabad and in this way the appellant in collusion with her father, sister and brother falsely implicated the petitioner in the said case. It was further submitted that when he was in judicial custody with regard to aforementioned FIR then during that period in the month of August 2006 the appellant and her family members and many other persons of their village had come to the house of petitioner and took all the articles of dowry including bed etc. and motorcycle No.HR-30E-0161 in the presence of Balbir, Sher Singh, Kanhaiya Ram, Daya Chand all resident of village Harchandpur, were taken in the vehicle. It is further submitted that a panchayat was convened at the Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -8- house of respondent in village Atali, Tehsil Ballabgarh, District Faridabad in the month of October 2006 and permanent alimony of Rs.4,00,000/- was paid to respondent and it was decided that the appellant and the respondent both would take divorce by mutual consent. However, instead of filing petition for divorce by mutual consent, the appellant filed a petition under Section 125 of Cr.P.C as case No.15 of 30.3.2007. It is further submitted that the appellant so many times taunted the respondent that the respondent was not father of the child. All the acts and conduct of respondent-wife amount to mental as well as physical cruelty. It has further been stressed by the learned counsel for respondent -husband that respondent-husband has also been deserted by the appellant-wife without any reasonable cause. She left the matrimonial home after about two years and three months of her marriage i.e. on February 25, 2005 and thereafter, she did not turn-up despite the fact that a lot of efforts were made to bring her back to the matrimonial home. She left the company of respondent-husband with an intention to put an end to the matrimonial knot. So, it can be safely inferred that the wife is guilty of constructive desertion.
14. While concluding his arguments, it has been submitted by learned counsel for respondent that in the given circumstances, it would be harmful or injurious to live with the appellant-wife. Since respondent has successfully proved that the appellant-wife meted-out him with cruelty and had deserted him with an intention to put an end to the marriage, the present appeal deserves to be dismissed while upholding the impugned judgment and decree.
15. We have given our anxious thought to the rival contentions of the learned counsel for the parties besides going through the evidence Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -9- available on the lower courts record. Undeniably, the marriage of the parties was solemnized on December 12, 2002. The parties lived together and cohabited. The respondent-wife lived with the appellant-husband for a short period after the marriage and ultimately, she left and is residing with her parents.
16. Under Section 13(1)(i-a) of the Act the marriage can be dissolved by a decree of divorce on a petition preferred either by the wife or husband on the ground of cruelty in case, other party after the solemnization of marriage has treated the petitioner with cruelty. In a large number of cases, the Hon'ble Apex Court as well as the High Courts have repeatedly stated the meaning and outlined the scope of term 'cruelty'. In Summer Gosh vs. Jaya Ghosh, 2007 (4) SCC 511, the Hon'ble Supreme Court set out some illustrious cases where inference of mental cruelty can be inferred. This pronouncement was relied upon by the Hon'ble Apex Court in case "K. Srinivas Rao vs. D.A. Deepa, 2013 (5) SCC, 226". Para 11 of this judgment reads as under:-
"11. In Samar Ghosh this Court set out illustrative cases where inference of "mental cruelty" can be drawn. This list is obviously not exhaustive because each case presents its own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case: (SCC pp.546-47, para 101) "101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for Thakral Rajeev the parties to live with each other could come within the broad 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -10- parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) * * *
(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse.
The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii)- (ix) * * *
(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill- conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi)-(xiii) * * *
(xiv) Where there has been a long period of continuous separation, it
may fairly be concluded 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 does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
17. In V. Bhagat v. D. Bhagat, 1994 (1) SCC 337, the following observations was made by the Hon'ble Suprme Court:-
"Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain 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 Thakral Rajeev parties cannot reasonably be expected to live together. The situation 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -11- 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 such 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".
18. 'Mental cruelty' was also examined by Hon'ble Apex Court in Parveen Mehta vs. Inderjit Mehta, 2002 (3) RCR (Civil) 529, in which following observations were made:
"Cruelty for the purpose of Section 13 (1)(ia) is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental Cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -12-
19. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Court observed as under:
"The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial dispute."
20. In case Smt. Sadhana Srivastava vs. Arvind Kumar Srivastava, 2006(1) RCR (Civil) 107, the Division Bench of Allahabad High Court had categorically observed that it cannot be doubted that the respondent-husband must have suffered traumatic experience because of the arrest and confinement in prison of the entire family including himself. The arrest and imprisonment must have resulted in the loss of reputation and Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -13- prestige of the husband and his family in the society. The mental agony of being arrested and imprisoned in a false case resulting into loss of reputation and prestige in the society would also amount to cruelty. It was further observed that there is no illegality in the trial court coming to the conclusion that false criminal proceedings initiated against the husband amounted to mental cruelty entitling him to a decree of divorce on the said ground.
21. In the light of the principles discussed in the above referred authorities, it is to be determined whether respondent-husband was meted- out with cruelty and is entitled to decree of divorce. As per the facts of the case in hand, the appellant-wife stayed only for two years and three months in the matrimonial home and the parties are living separately since 2005.
22. The allegations levelled by respondent-husband in the divorce petition which stand amply proved by way of oral as well as documentary evidence may be summarized as under:-
(i) that during her short stay in the matrimonial home, the behaviour of appellant-wife was indifferent towards respondent and his fellow family members and she pressurized the respondent to settle with her at Faridabad;
(ii) that lots of efforts were made to convince her and settle her matrimonial relations with respondent but it fetch no fruitful result;
(iii) that she left the matrimonial home on February 25, 2005 while taking away all the dowry articles, valuable cloths and istridhan.
Since then she is living with her parents;
(iv) that a case bearing FIR No.35 dated 1.3.2005 under Sections 302, 307 IPC Police Station Chhainsa (Faridabad) was registered Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -14- against the respondent on the false accusation by her father, brother, sister and the appellant herself and he remained in custody for about 20 months continuously. However, he was acquitted in the said case;
(v) that she left the company of respondent-husband with an intention to put an end to the matrimonial knot. So, it can be safely inferred that the wife is guilty of constructive desertion;
23. So, from the above discussion, it can safely be concluded that respondent-husband has successfully established the ground of cruelty entitling him to a decree of divorce.
24. As far as the ground of desertion for the dissolution of the marriage is concerned, Section 13 (1)(i-b) provided that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition. This section provides that to establish desertion seeking the divorce is meant intentionally and permanently forsaking abandonment of one spouse by the other without other's consent and without reasonable cause.
25. In case Bipinchandra Jaisinghbhai Shah vs. Prabhavati, AIR 1957 SC 176, the Hon'ble Apex Court observed that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned; (i) the absence of consent and (2) absence of conduct giving Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -15- reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. While relying upon decision in Bipinchandra Jaisinghbhai Shah's case (supra) the Hon'ble Apex Court again reiterated the legal position in Lachman Utamchand Kirpalani vs. Meena @ Mota, AIR 1964 SC 40 and held that "in essence, the desertion means intentional permanent forsaking and abandoning of one spouse by the other without that other's consent and without any reasonable cause. So far as deserting spouse is concerned, two essential conditions have to be there (i) the factum of separation and (ii) the intention to permanently bring cohabitation to an end (animus deserendi). Likewise, two elements are essential so far as the deserted spouse is concerned, viz., (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid."
26. Adverting to the facts of the case in hand, the appellant-wife left the matrimonial home on February 25, 2005 and did not return to the matrimonial home despite the fact that respondent-husband visited her parental home to bring her back. She not only refused to accompany him but a false case was registered against him. This act of the appellant-wife can be said to be her intention to permanently bring cohabitation to an end i.e. animus deserendi. Admittedly, in the case in hand, the parties did not live together under one roof since the date she left the matrimonial home. In this case, it cannot be said that respondent-husband has condoned previous acts of cruelty at the hands of the appellant-wife. Moreover, condonation means forgiveness of the matrimonial offences and the restoration of the offending spouse to the same position as he or she occupied prior to the commission of the offence. To constitute condonation, there must be two Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2786 of 2013 (O&M) -16- things i.e. forgiveness and restoration, but in the case in hand both the things are not proved. Rather, it can be said that there is no evidence in this regard. So ground of desertion also stands proved.
27. In the light of what has been discussed above, we are of the considered view that respondent-husband is successful to establish cruelty as well as desertion. The findings recorded by the learned trial court as well as the judgment and decree dated April 11, 2013 are sustainable in the eyes of law being in consonance with the evidence available on record. So, the findings on the issues do not call for any interference by this Court and are affirmed.
28. As a result of the foregoing discussion, there is no merit in the present appeal and the same is hereby dismissed.
(JASPAL SINGH) JUDGE (AJAY KUMAR MITTAL) JUDGE 25.09.2013 rajeev Thakral Rajeev 2013.12.12 10:26 I attest to the accuracy and integrity of this document High Court Chandigarh