DARSHAN KAUR Vs. KASHMIR SINGH

JUDGEMENT

(1.) THE appellant filed a petition under section 13(1)(i)(b) of the Hindu Marriage Act, 1955, for seeking decree of divorce by dissolution of her marriage solemnised on August 25, 1996, according to Hindu religious rites at Phagwara. It is the admitted case that the marriage was duly consummated and two sons and a daughter were born from this marriage. It is alleged that the respondent (husband) went abroad about nine years prior to the filing of the petition which was filed on 15.11.1997. It is further alleged that he had been sending money to the petitioner-appellant for maintenance for the entire family including herself. However, six years prior to the filing of the petition the respondent stopped sending any money nor any effort was made by him to find out the whereabouts of the children and also the petitioner- appellant. Since nothing was heard of the respondent, a case has been made out that he had deserted her for a period of more than two years as provided statutorily. On these premises, the petition under the aforesaid provision has been filed before the trial Court.

(2.) NOTICE of the petition was given to the respondent who was dully served and the acknowledgment so received has been placed on the Court file. Despite service, the respondent did not appear, resultantly, was proceed against ex parte. The petitioner-appellant stepped into witness box as her own witness and also produced her sister Gurbax Kaur as PW2 and closed the ex parte evidence. The pleadings contained in the petition have been supported by way of oral evidence. The allegation of desertion has not been proved in so many words. It is the admitted case that the respondent did not leave the matrimonial home without any reasonable excuse, in fact he had gone abroad with her consent as is evident from the fact that he had been sending her money till about six years prior to the filing of the petition. The petitioner-appellant has not been able to bring her case within the ambit of the word "desertion" as has been interpreted in the explanation given in sub- section (1) of Section 13 of the Act, which reads as under :-

(3.) LEARNED counsel for the appellant has placed reliance upon a judgment of the apex Court rendered in re: Savitri Pandey v. Prem Chandra Pandey, 2002(1) RCR(Civil) 719 (SC) : 2002(1) RCJ 175. Further reliance has been placed upon a judgment of this Court in re: Major Singh v. Gurdev Kaur, II (1994) DMC 408 (D.B. Judgment). The perusal of both the judgments shows that the same are not applicable to the facts of the case in hand.