VISHNUKANTA PANDEY Vs. VIDYA SHANKER PANDEY

JUDGEMENT

(1.) This is an appeal under section 28 of the Hindu Marriage Act, 1955, against the decree of divorce Granted on a finding that the appellant wife has deserted the respondent husband.

(2.) The respondent's claim in the lower Court was that the marriage between the parties was solemnized on 30-4-1968 and a daughter was born on -2-1969 as a result of that wed lock. The appellant did not behave well with the respondent and his family Members right from the time she came to his house. She left the respondent's house at the time of Rakhi festival in the year 1970 never to came back. All attempts to bring her back proved abortive. However, in May, 1971, she joined the respondent's company at Raipur but again left in the first week of July. 1971 and did not come back thereafter. It was specifically pleaded that in August; 1976, the respondent went to village Abhanpur where the appellant was employed as a teacher. He had gone there with an intention to bring the appellant back but the appellant even did not see him. Denying the allegations, the appellant contended that she lived with the respondent as a dutiful wife but when instead of giving them a son, she gave birth to a daughter, she became the victim of their wrath and was driven out of the house. She went to the respondent in May, 1971 of her own accord but was not received well, was treated indifferently and even with contempt and was ultimately driven away in June, 1971. She, however, went to see the respondent in the hospital when in the year 1975-76 he met with an accident She was even not allowed to see him. She has expressed her -willingness and eagerness to go and live with the respondent. Witnesses were examined by the parties. On assessment of the evidence, the lower Court has found the appellant guilty of desertion and, therefore, decreed the suit. "Desertion" as matrimonial offence, as pointed out by the Supreme Court in Lachman Vs. Meena, (A.I.R. 1964 S. C 40) , means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. Before a finding in favour of desertion is returned, it must be found that the erring spouse had not only left the company of the other spouse in fact but did so with an intention to bring cohabitation pemanently to an end Unless this necessary animus deserendi is found to co-exist with separation in fact, ground of desertion cannot be held to have been made out. It was also pointed out in that decision that where the wife is a deserting spouse and is unable to assign any good cause for leaving the company from her husband, the husband has still to satisfy the Court that desertion was without just cause. The facts of the present case must, therefore, be examined in the light of the law so laid down by the Supreme Court.

(3.) An examination of the plaint allegations would show that the parties lived together under one roof without much grievance against each other until the appellant gave birth to a daughter. All that the plaint discloses is that as the appellant's paternal house was also in Raipur, she often used to go there but would come back to her matrimonial house soon after. She remained at her parents' place for some time in 1970-71 and joined the respondent in April, 1971, but went back in July, 1971. The allegations are that thereafter she never joined the respondent. The evidence is that the respondent tried to bring her back but she did not come and refused to come when the respondent even went to Abhanpur to bring her back. In my opinion, these allegations are not sufficient to bring home the charge of desertion against the appellant. The evidence which has been led in support of these allegations, does not lead to an inference that the appellant left her matrimonial home to put cohabitation to an end. There appears to be a ring of truth in the appellant's version that as she gave birth to a female child, the respondent and his parents developed a feeling of hatred for her. She has deposed that she was forced to live away against her wish. This appears to be correct because when for the first time she went to her parents in the year 1970, she came back with the respondent without any trouble. She was made to go back soon thereafter. Although some evidence has been led to show that attempts were made to bring her back but the evidence inspires little confidence. The respondent as A. W. 2 has deposed that he felt that the appellant wanted to live separate from his parents. According to him, he went once in Oct., 1974 to bring the appellant back but he was not permitted to see her. Karuna Shanker Pandey (A. W. 4) is the brother of the respondent. According to him, when he went to fetch the appellant in 1971, she came with him. His evidence is of no consequence. S. S. Pandey (A. W. I) is a witness on the point that the respondent went in Feb., 1976 to Abhanpur to bring the appellant back, but the appellant did not see him. The appellant's version is that as she was informed of respondents visit to Abhanpur only late at night, she went the other day at the place where the respondent was staying, but could not meet him. There is, however, evidence on record including the admission of the respondent himself, that when he sustained injuries and was admitted in the hospital in Dec., 1975, the appellant went to see him in the hospital. According to the appellant, she went there practically every day. The respondent's mother, is A. W. 3, also admits her visit to the hospital. All this evidence is far from indicating that the appellant voluntarily severed her relations with the respondent and did ever cherish any dispute to put cohabitation to an end. Instead the fact that she went to see respondent in the hospital where he lay injured as a result of train accident gives a contra indication. There appears to be truth in the appellant's version that she always desired the company of the respondent and is still willing to join him. The lower Court seems to have been more impressed by the fact that since 1971 the parties are living separate and, therefore, forced union may not be desirable. The evidence in the case and the pleadings have not been justly and properly appreciated and the law has not been correctly applied. In my opinion, the respondent has not been able to assign any good cause why the appellant has deserted him. I am not prepared to hold as was contended on behalf of the respondent, that the appellant wanted to live away from the respondent's parents and, therefore, she deserted the respondent. Instead, the boot seems to be on the other leg. The judgment and decree of the lower Court, therefore, cannot be upheld and must be set aside.