Guljarilal vs Genda Bai

In this appeal under section 28 of the Hindu Marriage Act, 1955, challenge is made to the order dated 17.1.2000 passed by the learned District and Sessions Judge, Panna in Civil Suit No. 32-A/1998, dismissing the application filed by the appellant for dissolution of marriage on various grounds as are contemplated under section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ''Act'' for short).

The marriage between the parties was solemnized sometime in the year 1981 and after staying for some time together in the year 1995 on the ground w.e.f. 20.8.1995 the respondent/wife has deserted the appellant/husband and had gone to her own house and is staying with her parents. That apart raising certain grounds of cruelty the application was filed for dissolution of marriage.

The learned trial court having dismissed the suit on the ground that desertion is not made out, this application has been filed for dissolution of marriage.

Shri Ranjan Banerjee, learned counsel for appellant took us through the statement of witnesses available on record particularly P.W.1 Guljarilal, the appellant, P.W.2 Saukhilal witness to the proceedings of Gram Panchayat held, resulting in recording of panchnama Ex.A-1, the statement of respondent/wife herself recorded as D.W.1, submitted that it is a case where the respondent/wife without any just cause or reason has left the company of the appellant and is staying with her parents since 20.8.1995. It is submitted by Shri Ranjan Banerjee that when the appellant filed an application for restitution of conjugal rights, the same was also dismissed by the Court without proper consideration. Shri Banerjee places reliance on the document Ex.A-1 and points out that a meeting of Gram Panchayat was held on 19.8.1999 when all efforts were made by the Panchayat to resolve the dispute and in the meeting of Panchayat the respondent/wife refused to go with the appellant/husband and even her father refused to send his daughter with the appellant. Based on the said evidence it was submitted that a case for desertion is made out and in refusing to grant a decree on such consideration learned Court below has committed error. Shri Banerjee in support of his contention placed reliance to the judgment of Supreme Court in the case of Naveen Kohli Vs. Neelu Kohli, , Malathi Ravi Vs. B.V. Ravi, and a Division Bench judgment of this Court in the case of Rajkumari Vs. Sonu Vishwakarma, to say that it is a case where the respondent has deserted the appellant and marriage has broken down beyond repair as the parties are residing separately for more than 20 years, a decree of divorce be granted.

Shri Suryakant Patel, learned counsel for respondent invited attention of this Court to the statement of respondent Genda Bai and her father Mazboot Singh (D.W.2) to emphasize that because the respondent/wife had threat to her life she refused staying with the appellant and at that point of time respondent/wife has stated that when her son will become major she will go to reside with the appellant/husband. Accordingly Shri Patel stated that because of the aforesaid circumstances respondent was compelled to stay away from the appellant. Shri Patel refuted the contentions advanced by Shri Banjerjee.

We have heard learned counsel for parties and gone through the record and we find that during the pendency of the proceedings before the Court below the appellant had initiated proceedings for restitution of conjugal rights. This application under section 9 of the Act was dismissed by the Court below by upholding that as the respondent/wife had threat to her life if she stayed with the appellant, she was justified in not going with the appellant/husband. That be as it may, the fact remains that respondent/wife is staying away from the appellant/husband since 20.8.1995. She is staying with her father since the said date and records do indicate that on 19.8.1999 Panchayat of village was held, where the members of Panchayat intervened to resolve the dispute. The appellant and his family members in the said proceedings were willing to take respondent/wife and her son, but the respondent/wife showed her reluctance to go with the respondent/husband and that apart her father Shri Mazboot Singh also categorically stated before the Panchayat that he is not willing to send her daughter with the appellant. In the statement recorded as D.W.1 respondent/wife admitted the fact that she is staying separately and when her statement was recorded in January 2000, it was said that she is living separately since 10 to 12 years, she also makes a statement that once her son grows up, she may go with the appellant/husband. That apart in para 7 of the statement she only states that she apprehends danger to her life if she goes with the appellant. Similar is the statement of her father Mazboot Singh, who was examined as D.W.2, apart from contending that respondent apprehends danger to her life in case she stays with appellant/husband, no material or documents are produced to show as to what is the danger, which the respondent/wife apprehends to her life. No FIR or complaint has been lodged against the appellant/husband at any point of time during all these period and there is only a bald statement that she apprehends danger to her life. On the contrary the evidence on record clearly shows that since 20.8.1995 the respondent/wife is living separately with her parents. That apart in the proceedings of Gram Panchayat held on 19.8.1999 vide Ex.A-1, it is also clear that before the Panchayat the appellant was willing to take his wife, but she and her father refused to go with the appellant.

In the circumstances, it is clear from the record that it is the respondent who was not willing to go with the appellant husband and, therefore, case of desertion as contemplated under section 13(a) of the Act is made out. It is a case where without any just cause or reason the respondent/wife is refusing to stay with her husband and as there is no basis for her apprehension that by staying with the appellant it will cause harm to her person and property. Taking note of the circumstances and after evaluating the case in the backdrop of the judgments relied upon by Shri Ranjan Banerjee, learned counsel for appellant, we find this to be a case where the ground for desertion as contemplated under section 13(ia) of the Act is made out and the parties are staying separately for more than 20 years, therefore, marriage should be dissolved as no purpose would be served if the marriage is continued.

In view of aforesaid, the appeal is allowed. The judgment and decree passed by the Court below is set aside. The decree of divorce in terms thereof be drawn. No order as to costs.