Major Singh vs Gurdev Kaur

S.P. Kurdukar, J.—This Letters Patent Appeal is directed against the judgment and decree dated April 18, 1984 passed by the learned Single Judge in F.A.O. No. 135-M of 1982.

The learned Single Judge recorded good reasons while confirming the judgment and decree passed by the learned Additional District Judge-II, Sangrur on August 4, 1982 in H.M. Act case No. 79 of 1981. The result of both these impugned judgments is that the petition filed by the appellant for dissolution of marriage u/s 13 of the Hindu Marriage Act, 1955 (hereinafter called the Act) was dismissed.

It is not necessary to set out facts of the case in detail since the issue involved is very simple. It is summon promise that the appellant (husband) married to the respondent (wife) sometime in May 1960. For about two years, they cohabited and out of this wedlock, they got a daughter. The appellant thereafter went to England sometime in the year 1976 and returned to India on a temporary visit in July 1981. It is the case of the appellant that despite several requests to the respondent, she did not come to reside with him in England. Since the respondent failed and neglected to come and reside with the appellant for all these years, the appellant filed the petition u/s 13 of the Act for divorce on the ground of desertion.

The respondent denied the allegations and averred that she was always ready and willing to cohabit with the appellant inasmuch as she was willing to go to England. It is the appellant, who, never cared to take her to England and it is he, who failed and neglected to take her to England. According to the respondent, it is the appellant who deserted her and as a result thereof, she had to undergo several difficulties. She has pleaded that the petition is false and the same may be rejected.

Parties went to trial on the issues framed by the learned Additional District Judge. The learned Additional District Judge after perusing the pleadings of the parties and going through the oral and documentary evidence, dismissed the petition of the appellant. The appellant carried the appeal which also came to be dismissed against which the present Letters Patent Appeal was filed.

Mr. Rai, the learned Advocate appearing for the appellant took us through the relevant material on record. He urged that this is a very peculiar case of husband and wife, falling apart for the last more than twenty-five years, and they have not even seen their faces since then. He urged that on return of the appellant to India, the respondent did not bother to come and stay with him and this clearly exhibits that the respondent is not interested in continuing the matrimonial relations and she is guilty of desertion.

Mr. Markan, the learned Counsel appearing for the respondent submitted that the impugned judgments are well reasoned and there is no substance in the Letters Patent Appeal. He also urged that the appellant cannot be permitted to take advantage of his own wrong.

After hearing learned Counsel for the parties we are satisfied that this is a very peculiar case where the parties have fallen apart for more than twenty five years and they are not in a mood to live together. Be that as it may, the fact remains that the petition by the appellant will have to be disposed of on its merits. On the date of the petition, the appellant was found to have deserted the respondent for no justifiable cause. If this be so in our opinion, the appellant is not entitled for a decree of divorce u/s 13 of the Hindu Marriage Act. There is no material on record to show that the appellant ever tried to take the respondent to England and she refused to go there. In the absence of cogent and satisfactory evidence, we are of the opinion that the impugned judgments and decrees do not call for any interference. Letters Patent Appeal thus fails and the same stands dismissed with costs.

It is needless to add that the appellant, if so advised, may file a petition, if it is permissible under the Act, for divorce on the grounds available to him.