S Vs. R

JUDGEMENT

(1.) The appellant has challenged the judgment dated 30th July, 2013 whereby the learned Trial Court dissolved the marriage between the parties by a decree of divorce on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act,1955.

(2.) The respondent instituted a petition for dissolution of marriage on the ground of desertion on various averments inter alia that the parties were married according to Hindu rites and ceremonies on 10th June, 1987, they were blessed with a daughter, named Vardha on 24th July, 1989; the appellant left the matrimonial home and deserted the respondent on 11th November, 1994 without any just and reasonable cause and without the respondent's consent; the appellant took all her clothes and jewellery at the time of leaving the matrimonial home; the appellant did not return to live with the respondent; the respondent tried to persuade the appellant to return back and even telephoned her daily for several months but all the efforts of the respondent went in vain; the family of respondent also made attempts to persuade the appellant to come back which were also unsuccessful; the appellant did not provide any reasonable explanation for her desertion; the parents of the respondent repeatedly talked to the appellant to persuade her to return; the respondent's father also visited the appellant's parental house several times almost once a month during 1995-96 but the appellant did not respond positively; the appellant has been living in her parental home continuously without a break from 11th November, 1994 till the filing of the petition; the minor daughter, Vardha spent major festivals like Holi, Diwali, winter and summer holidays with the respondent and his parents; the respondent has been deprived of legitimate company of his wife since 11th November, 1994; the appellant's conduct has caused total loss of happiness to the respondent; the appellant is living separately without any reasonable excuse or just cause and she has never disclosed any reason for leaving or withdrawing from the society of the respondent.

(3.) The appellant filed the written statement to the petition in which she denied all the averments made by the respondent. The appellant denied having deserted the respondent on 11th November, 1994. The appellant claimed to have over heard a sexually intimate telephonic conversation between the respondent and Bharti on a parallel telephonic line whereupon she inquired from the respondent who then made excuses and apologised and told the appellant that he was going on an official trip for a week, the appellant should stay with her parents till he comes back and he would take the appellant for a world tour when he returns. The respondent himself dropped the appellant and the daughter with one hand bag having 3-4 pair of clothes and nightwear at the appellant's parental house; the respondent did not bother to call for the whole week; the appellant called the respondent after a week when the respondent started talking in a taunting tone and started fighting on phone without any provocation and said that he was busy for some days and would pick the appellant after 2-3 days but that day never came; the respondent forced the appellant to continue staying with her parents; whenever the appellant wanted to come back and live with the respondent, the respondent used to make excuses; in December, 1994, the appellant returned back to the matrimonial house but was told by the respondent's parents to leave the house whereupon the appellant left the house after about 4 hours; on 01st February, 1995, the appellant found the respondent standing intimately close to Bharti with her hand touching waist of the respondent whereupon she asked Bharti whether she was having an affair with the respondent who replied by saying "if so than what"; the appellant further asked Bharti whether she was having physical relations with her husband to which she replied "may be or may not be"; the appellant contented that the respondent was having extramarital affair with Bharti who was a married lady staying separately from her husband; the appellant informed Ajay Bisaria, husband of Bharti about the involvement of his wife and the respondent; the respondent used to go out with Bharti and number of relations/friends saw them sitting together in an intimate position; one of the relations saw the respondent kissing Bharti in a moving car and the respondent was caught red-handed number of times; the news of love affair of respodnent with Bharti even spread to the school of the minor daughter of the parties; the teacher of the daughter of the parties asked the appellant as to whether her husband was having an affair with the wife of a IFS Officer; in May 1995, the appellant saw the respondent sitting in a Chinese Restaurant in Khan Market with Bharti; the appellant visited the matrimonial house in 1996 and found Bharti lying in bed; the respondent rented a flat at Jungpura Extension to continue his illicit affair; in 1996-97, the respondent's affair with Bharti became more vigorous; the respondent was a very lustful person and could go to any extent to satisfy his lust; the respondent continued having sexual relations, in a secret way, with the appellant even after deserting the respondent in the year 1994; the respondent used to call the appellant after midnight to his house so that his parents did not come to know about it and thereafter used to have sex with the appellant and used to ask the appellant to leave the house early in the morning before everybody at home would wake up; the appellant used to go and meet the respondent and his parents in the day hours at the matrimonial home since 1994 and the appellant regularly attended all functions like Karwa Chauth, Diwali, Holi and other functions, thrice in 1995, five times in 1996 and four times in 1997; the appellant went to the matrimonial home with the minor daughter with the intention to stay there but the respondent's parents requested her to go back otherwise he would come and suicide and, therefore, the appellant returned back.