ORISSA HIGH COURT CUTTACK Civil Appeal No.16 of 1996 From the judgment and decree dated 16th March, 1996 passed by the learned Judge, Family Court, Rourkela in Original Suit No.104 of 1995/Misc. Case No.56 of 1995 -------------------Dibya Kishore Patel .…… Appellant -versusTanot Kumari Patel ….… For Appellant : M/s. J.R.Patnaik, P.C.Rout, L.M.Nanda & P.K.Patnaik For Respondent Respondent : M/s. A.R.Dash, N.Lenka & N.Das -------------------Date of Judgment:
27. 08.2013 -------------------P R E S E N T: THE HONOURABLE KUMARI JUSTICE SANJ.PANDA AND THE HONOURABLE DR. JUSTICE B.R.SARANGI ----------------------------------------------------------------------------------------------------S. Panda, J.This appeal is directed against the judgment and decree dated 16th March, 1996 passed by the learned Judge, Family Court, Rourkela in Original Suit No.104 of 1995/Misc. Case No.56 of 1995.
2. The appellant is the plaintiff filed the application under Section 13 of the Hindu Marriage Act (hereafter referred to as “the Act”.) for dissolution of marriage by a decree of divorce. The marriage between the parties solemnized on 4.4.1987 and the same is admitted. The parties are Hindu. After marriage, both the husband and wife lived together at the native place. Thereafter, husband returned to his working 2 place in New Delhi. The wife subsequently joined him and they led a happy conjugal life till 15.6.1987. The wife returned to Rourkela to prosecute and complete her study. The husband joined I.I.T in New Delhi to prosecute his M.Tech Course during June, 1988. In November, 1988, the wife joined the husband in New Delhi. The husband insisted her to complete her M.Phil Course in New Delhi.
3. While the matter stood thus, the brother of the wife came to New Delhi and took her back to Rourkela to attend the marriage ceremony. It was decided that after ten days, she would come back. However, she overstayed for a considerable period which caused immense agony and hardship to the husband. On the return of the wife, the husband insisted her to complete her study. However, she came back to the native place of the husband and from there she again returned to her parents house at Rourkela. On 17.10.1989, she was blessed with a male child. The in-laws were all along present with her. The husband came to Rourkela to take back the wife and the child. However, her father did not agree. On 18.5.1990, her father lodged an FIR against the husband on false and imaginary ground and on the basis of which a criminal proceeding A/307/435/294/506 was IPC read initiated with under Section 4 Sections of the D.P 498Act. Accordingly, the dissension cropped up. In spite of the criminal case, the husband subsequently wanted to take back the child and his wife. However, due to intervention of the parents, the same could not be materialized. In the meantime, the wife filed Original Suit No.45 of 1993 for permanent alimony and return of the dowry articles. During pendency of the said suit, conciliation failed. The relationship became strained due to filing of the criminal case and pending of litigation between the parties. The wife willfully deserted the husband for more than six years and withdrew herself from the society without any just and reasonable cause. Therefore, the husband filed an application for dissolution of marriage.
4. After receiving notice, the wife filed her written statement traversing the allegations made by the husband and stated that the 3 adverse attitude of the husband towards her had been reflected immediately after the marriage which resulted in a series of litigations and a G.R. case No.790 of 1990 was also pending for adjudication. Her father is a retired person. She has been facing much hardship to maintain herself and the child without any financial assistance from the husband. The suit was filed with an ulterior motive and she prayed for dismissal of the same. During pendency of the suit, the husband filed an application under Section 26 of the Act for custody of the child which was registered as Misc. Case No.56 of 1995. Accordingly, both the applications were heard together. In support of their respective pleadings, they adduced evidence by examining themselves as P.W.1 and D.W.1. The husband did not file any documentary evidence. However, the wife filed four letters which were marked as Exts.A to D.
5. Considering the pleadings and the evidence adduced by the parties, the court below came to the findings that Original Suit No.45 of 1991 for restitution of conjugal rights was dismissed against which an appeal was filed before the High Court and the same was also dismissed. The application filed by the husband for permanent alimony and return of the articles was allowed. During pendency of the litigation, an attempt was made for reconciliation which was also failed. No evidence was led regarding any torture towards the husband by the wife; rather the evidence, both from the side of the husband as well as wife along with exhibit, go to suggest that it was the husband who used to torture his wife and assault her not only by slaps but also by fist blows on her eyes due to greediness of demand of dowry. Since there was danger to her life and her child, she did not prefer to stay with the husband. The allegations of the husband that the wife deserted him and tortured him having not been proved, the relief sought for by the husband in the suit failed. Regarding custody of the child, as the son was 7 years old and he was under the care of his mother and the father did not knot about reading of the son and he had no knowledge about the comforts of the son, it was not safe to allow the custody of the child to the father. On the above findings, the original suit as well as misc. case was dismissed”
6. Learned counsel appearing for the appellant-husband submitted that since the parties are residing separately from 1989 till date, the marriage is irretrievable broken down. Therefore, the decree of divorce needs to be passed by setting aside the judgment and decree passed by the court below.
7. Learned counsel appearing for the respondent-wife, however, supported the impugned judgment and decree and submitted that the husband was guilty of desertion and cruelty towards her and he should not take advantage of his own wrong. Therefore, the relief claimed by the husband by a decree of divorce need not be passed.
8. In view of the above facts and circumstances of the case and the submissions of the parties, in the present appeal, it is to be considered whether the conduct of the wife amounts to desertion and cruelty towards the husband and the husband is entitled to the relief as claimed under Section 13 of the Act.
9. Law is well settled that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. The inference of desertion has to be made on a balance of probabilities.
10. In the present case, the husband, for the reasons best known to him, assaulted the wife during her initial period of marriage for demand of dowry as revealed from the materials available on record. Apprehending danger, she came back to her matrimonial home and then she left to her parents’ house for delivery. Thereafter, the husband had not taken any step to bring her back to the matrimonial home.
11. Law is also well settled that the burden of proving desertion- the “factum”. as well as the “animus deserendi”. – is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the husband has still to satisfy the 5 Court that the desertion was without cause (See AIR 196.SC 40.Lachman Utamchand Kirpalani v. Meena alias Mota and AIR 197.SC 1534.Dr. N.G.Dastane v. Mrs. S.Dastane).
12. So far as cruelty is concerned, we have to consider what constitutes cruelty. The inquiry therefore has to be whether the conduct charged as cruelty is of such character as to cause in the mind of the husband a reasonable apprehension that it will be harmful or injurious for him to live with the wife. The cruelty must be of such a character as to cause “danger”. to life, limb or health or as to give rise a reasonable apprehension of such a danger.
13. In the instant case, the evidence on record reveals that the husband made the life of the wife miserable by repeated assault which caused apprehension in the mind of the wife to live together. As such, she has a reasonable cause to live separately from her husband. Therefore, the husband, cannot in such a situation, turnaround and take advantage of his own wrong. Hence, the contention of the appellant, in the instant case is a clear case of irretrievable broken down of marriage due to separation between the parties for a long period, cannot be accepted. As such, there is no merit in the appeal and is accordingly dismissed with costs. ………..…………… SANJ.PANDA, J.Dr.B.R.Sarangi, J : I agree. ………..…………… Dr.B.R.Sarangi,J High Court of Orissa, Cuttack Dated 27th August, 2013/Pradeep