SANTOSH KUMARI Vs. SHIV PRAKASH SHARMA

JUDGEMENT

(1.) This appeal under Clause 10 of the etters Patent is directed against the Judgment dated 30th April, 1991 of a Learned Single Judge of this Court in FAO No.76/91. whereby dismissing the appeal of the appellant-wife, the Judgment and decree of the Additional District Judge, Delhi dated 18th March, 1991 granting decree for divorce to the respondent-husband under Section 13 (1) (ib) of the Hindu Marriage Act, 1955 (hereinafter called 'the Act') was affirmed.

(2.) There appears to be no dispute that the parties were married on 23rd June, 1985 in accordance with Hindu law. On 9th November, 1985, the appellant, left her matrimonial home. On a petition being filed by the respondent under Section 9 of the Act for restitution of conjugal rights, parties started to live together from 9th November, 1986 and they did so till 3rd December, 1986. The appellant left the matrimonial home again on 4th December, 1986. Thus, on broad outlines, the parties did not differ but, as is normal in matrimonial disputes, on details they have divergent views. However, on 13th November, 1987 respondent filed a petition under Section 13 of the Act for divorce on the, ground of cruelty and desertion. The learned Trial Judge rejected the plea of cruelty, being of the view that the evidence adduced by the respondent deserved rejection besides being insufficient to prove that the respondent had actually been treated by the appellant with cruelty. But on the evidence led by the parties, the learned Trial Judge concluded that the appellant had deserted the respondent without reasonable cause and that it was an intentional permanent forsaking and abandonment of the obligations of marriage on her part. He, therefore, granted a decree of divorce under Section 13(l)(ib) of the Act in favour of the respondent. Aggrieved thereby, the appellant challenged the said judgment and decree by filing an appeal, which was rejected by the learned Single Judge vide impugned judgment dated 30th April, 1991.

(3.) Now it is required to be seen whether the evidence led by the respondent stands the test of requirement of law with regard to desertion. Needless to emphasis that the onus was on the respondent to prove beyond reasonable doubt that he was not guilty of such conduct which provided a reasonable cause to the appellant-wife to leave the matrimonial home, and if the appellant was living separately, he was not in any way, taking advantage of his wrong as envisaged in Section 23 of the Act. Desertion in that context came to be interpreted and elaborated by the Supreme Court in Lachman Utamchand v. Meena, AIR 1964 SC 40. It was held that in its essence desertion meant the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent, and without reasonable cause. It was taken as a total repudiation of the obligations of marriage. The offence of desertion was said to commence when factum of separation and animus deserendi co-existed, it being not necessary that they should commence at the same time. But, ultimately at one point of time, the animus deserendi had to co-exist.