INDERJIT KAUR Vs. BALBIR SINGH

JUDGEMENT

(1.) The parties to this litigation were married in the year 1968 when the respondent-husband was posted as a teacher in Rohtak district of the State of Haryana and the appellant was posted as a school mistress at Sujanpur in Tehsil Pathankot, District Gurdaspur (Punjab). In the year 1972, the services of the appellant were allocated to the State of Haryana and she was posted as a teacher in Government Higher Secondary School, Karnal. In the meantime the husband-respondent was also transferred from District Rohtak to village Saunkra, District Karnal. The respondent-husband has his parmanent residence in Taraori at a distance of about ten miles from Karnal. According to the appellant, on her posting to Karnal she started living in her in-laws house in Taraori and used to go to school daily by bus. As per the allegations in the petition filed under section 13 of the Hindu Marriage Act, the appellant left the house of the respondent without any cause and of her own free will on July 31, 1973 with a mind to not to return to that house again. on these premises the respondent accused the appellant of desertion and has obtained a decree of divorce under section 13 of the Hindu Marriage Act. In addition to this, he also pleaded that the appellant-wife had been cruel to his two widowed sisters and mother. Trial Court, however, has not found it to have been established. The decree for divorce has been granted only on the first ground, i. e., desertion. As against this, the case of the appellant throughout has been that on her posting at Karnal in the year 1972, she started residing with her in-laws in Taraori. The respondent never developed a liking for her and what to talk of looking after her as a wife, he used to maltreat her in his house at Taraori. As a matter of fact she was turned out of that house on July 31, 1973 and was not allowed to carry any of her valuables.

(2.) After hearing the learned counsel for the parties and examining the evidence on record, I find that the respondent-husband has completely failed to establish or prove his case as pleaded. The learned counsel do not dispute that in every desertion the factum of separation and animus deserendi, i.e., an intention on the part of the guilty spouse of forsaking the aggrieved spouse, has essentially to be proved. Further it also must be established that the desertion was without any reasonable cause and was rather without the consent or against the will of the deserted spouse. It is also not disputed by the counsel in the light of Lachman Utamchan Kirpalani v. Meena alias Mota, 1964 AIR(SC) 40 and Asa Nand v. Puspa Rani,1980 HinduLR 61 that in these cases standard of proof has to be that of a criminal case. i.e., the party seeking relief has to establish the case beyond any reasonable doubt. Some of the significant facts pleaded by the respondent in paragraph 3 of his application under section 13 of the Act after a reference to the transfer and posting of the appellant to Karnal in 1972, are as under :

(3.) For the reasons recorded above, this appeal is allowed and the decree of divorce granted by the lower Court is set aside. The parties are, however, left to bear their own costs.