Hon'ble Saurabh Lavania,J.
Heard Sri Ashok Kumar Verma, learned counsel for appellant, Sri Ganesh Kumar, learned counsel for respondent and perused the record.
Under appeal is the judgemnt and decree dated 01.10.2014 passed by Additional Principal Judge, Family Court, Lucknow in the Case No. 820 of 2009 (Amar Jyoti Chaudhary Vs. smt. Alka Chaudhary).
Sri A.K. Verma, learned counsel for appellant submitted that marriage between appellant/Amar Jyoti Chaudhary and respondent/Smt. Alka Chaudhary Srivastava was solemnized as per Hindu rites and rituals. At that time, the appellant/Amar Jyoti Chaudhary was working on the post of Manager, Customer Services, HEL, Lucknow and respondent/Smt. Alka Chaudhary Srivastava was working on the post of Senior Scientist at Aurangabad.
He further submitted that thereafter in spite of the best effort made by appellant, respondent/Smt. Alka Chaudhary Srivastava did not live with appellant at Lucknow rather chosen to live at Aurangabad where she was posted. Appellant had tried his best that respondent/Smt. Alka Chaudhary Srivastava live with him but she was not willing to live with him due to her career at Aurangabad, in spite of the said fact, the appellant had tried his level best to resolve his matrimonial dispute. Respondent/Smt. Alka Chaudhary Srivastava was got examined by Dr. Prakash Patel at Bombay and in the medical examination it was found that she was not able to conceive even after the treatment, but he could not succeed in resolving the same and respondent in clear terms had shown her intention not to make any relationship with appellant rather live separately at Aurangabad.
In view of the said factual background, having no other alternative with appellant, an application under Section 13 of the Hindu marriage Act was filed by him on the ground of desertion, registered as Case No. 820/2009 (Amar Jyoti Chaudhary Vs. Smt. Alka Chaudhary Srivastava).
He further submitted that in spite of the service of notice/summon, the respondent had not put appearance in the matter. By means of judgment and order dated 01.10.2014, the petition filed by the appellant under Section 13 of the Hindu Marriage Act was dismissed.
Learned counsel for appellant while challenging the impugned order submitted that the trial court wrongly relies upon the decisions - Kamal Gorai Vs. Smt. Menka Gorai & another, 2008 (2) ALJ (NOC) 505 Jharkhand by the Hon'ble High Court Jharkhand and the judgment reported in2005 (141) Punjab LR. 2; 2006 (1) ALJ (EE) 56(Punjab Haryana) passed by the Hon'ble High Court of Punjab and Haryana even though these decision were not applicable to the facts of the case and learned trial court failed to consider the unrebutted evidence on record which categorically established that without any reason or wish of the appellant the respondent continuously and permanently deserted the appellant.
He further submitted that from the evidence, it was established that on the part of respondent there was a total repudiation of the obligations of the marriage as the respondent herself withdrawn from the matrimonial obligations by not permitting or allowing and facilitating the cohabitation between the parties. Further, submitted that the continuous course of conduct of the respondent as is apparent from the evidence on record proves complete desertion of the appellant and the intention of the respondent to bring cohabitation permanently to an end.
It is further submitted by him that for desertion the trial court has to view, which is revealed by acts or by conduct and expression of intention both anterior and subsequent to the actual acts of separation and trial court failed to consider that when sufficient evidence begin available about the separating spouse abandoning the marital home with intentions express or implies of bringing cohabitation permanently to close, there was evidence of desertion and sufficient for decreeing the suit for divorce and trial court also failed to consider the facts and the evidence available that even the respondent was not keen to appear before the Family Court to contest the case as deliberately in spite of various modes of service being adopted for serving the notices over the respondent, including the Newspaper publication (Financial Express) having circulation at the workplace of the respondent, the respondent avoided to appear in case, so the impugned judgment and order passed by the trial court is contrary to section 17 of the Family Courts Act as case has been decided without determination of the points.
We have heard learned counsel for parties and gone through the record.
From the material on record, it appears that the appellant/Amar Jyoti Chaudhary has filed an application under Section 13 of the Hindu Marriage Act on the ground of desertion, registered as Case No. 820/2009 (Amar Jyoti Vs. Smt. Alka Chaudhary Srivastava), thereafter on the basis of record, the position which emerged out is that summons were sent to the respondent but in spite of service, she did not appear to contest the matter and on behalf of appellant, in order to prove his version, an affidavit was filed by way of evidence.
Trial Court/ Family Court after taking into consideration the material on facts and circumstances of the case dismissed the case on 01.10.2014 . The relevant portion of judgment dated 01.10.2014 reads as under:-
"कमल गोरई बनाम श्रीमती मेनका गोरई एवं एक अन्य, 2008 (2) ए. एल.जे. (एन. ओ. सी.) 505 झारखण्ड के मामले में माननीय न्यायलय द्वारा यह अभिमत व्ययक्त किया गया है कि पत्नी कि अनुपस्थिति में इस आधार पर विवाह का विघटन नहीं किया जा सकता है कि विगत कई वर्षो से पक्षकार अलग रह रहे है | 2005 (141) पंजाब एल.आर. 2: 2006 (1) ए. एल.जे. (ई. ई.) 56 (पंजाब हरियाणा ) के मामले में माननीय न्यायालय ने यह मत व्यक्त किया है कि बगैर किसी युक्तियुक्त कारण या सहमति के दम्पति के किसी एक का दूसरे द्वारा स्थायी बिछोह त्यजन कहा जाता है और वह भी आचरण के अनवरत क्रम में अवश्य होना चाहिए दम्पति से विछोह का एक मात्रा कृत्य विवाह विच्छेद की डिक्री हेतु एक आधार के रूप में "त्यजन" के समतुल्य नहीं होता | प्रस्तुत मामले में वादी द्वारा कहीं भी यह नहीं दर्शाया गया है कि दोनों कब तक और कहा कितने समय एक साथ रहे और दांपत्य कर्तव्यों का नरिवहन किया | वादी ने साथ साथ रहने कि अवधि के दौरान प्रतिवादिनी के किसी भी आचरण व् व्यवहार का कोई वरन नहीं किया है जिससे यह निष्कर्ष अवधारित किया जा सके कि प्रतिवादिनी ने बिना किसी युक्तियुक्त कारन वादी का "त्यजन" कर दिया है | न्यायलय की राय में मामले के तथ्यों, परिस्थितियों तथा उपरोक्त वर्णित विधिव्यवस्थाओं में अवधारित मतों के प्रकाश में वादी यह साबित करने में असफल रहा है कि प्रतिवादिनी ने उसका अभित्यजन बिना किसी युक्ति कारन के कर दिया |"
In order to decide the controversy involved in the present case, we would like to see what is the meaning of desertion?-
"Desertion", for the purpose of seeking divorce under the Act, means the intentional Permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single Act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.
To prove desertion in matrimonial mater it is not always necessary that one of the spouses should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case, Savitri Panday v. Prem Chandra Panday, (2002) 2 SCC 73.
In cases where there is a dispute between husband and wife it is very difficult to unravel the true reason for the dispute. After separation when the relationship turns sour, all sorts of allegations and counter-allegations are made against each other. Evidence of contemporaneous nature therefore plays an important role in such cases as it may reveal the thinking and attitude of the parties towards each other at the relevant time. Such evidence is usually found in the form of letters written by the parties to each other or to their friend and relatives or recorded in any other document of contemporaneous nature, Deb Narayana Hhalder v. Anushree Halder, (2003)11 SSC 303.
Hon'ble the Apex Court in the case of Gurubux Singh v. Harminder Kaur, reported in VII (2010) SL T 282, in para 12 laid down certain principles as to under what circumstances, cruelty could be taken into consideration for the purpose of divorce, at para 12 it is held as under :-
"12. In Samar Ghosh v. Jaya Ghosh MANU/SC/ 1386/2007 : (2007) 4 SCC 511, a three-Judge Bench of this Court while considering Section 13(1)(ia) of the Act laid down certain guidelines. The analysis and ultimate conclusion are relevant which reads as under:
98. On proper analysis and scrutiny of the judgments of this Court and other courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.
99 . Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101 . No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
Hon'ble the Apex Court in the case of Sanat Kumar Agarwal vs. Nandini Agarwal, (1990) 1 SCC 475 held that the question of desertion in Section 13 (1) (i-b), is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation.
In view of the abovesaid settled position of law in respect to grant of divorce on the ground of desertion we are of the considered opinion that no illegality or infirmity has been done by the trial court in passing the judgment under challenge in the present appeal.
For the foregoing reasons, the appeal lacks merit and is dismissed.
(Saurabh Lavania, J.) (Anil Kumar, J.) Order Date :- 19.12.2019 Ravi/