Full Judgment
Gurusharan Sharma, J.
1. Admittedly, appellant was married with respondent on 14-5-1989 and on 19-4-1990, a daughter was born out of their wedlock. On 18-4-1995, appellant filed Matrimonial Title Suit No. 25 of 1995 against respondent for a decree for dissolution of marriage under the provisions of the Hindu Marriage Act, 1955.
2. According to appellant, after marriage, respondent was living with him, but gradually she started quarrelling and torturing him and his parents and became cruel and inhuman to them. She was also cruel to her newly born daughter and was neglecting her. Respondent used to take drug to get her menses stopped and left his house on 8-6-1991, leaving her baby and told her in-laws to marry their son, the appellant, with another girl.
3. Appellant's further case was that in spite of his best efforts his wife did not come back to live with him and ultimately on 6-3-1995 he gave a legal notice to her to come and live with him, i.e., for restitution of conjugal rights, otherwise, he was compelled to take step for dissolution of marriage. The said notice was not replied by her. Hence the suit.
4. In spite of service of summons of the suit, respondent did not appear. Consequently the suit was fixed for ex parte hearing. On 2-2-1996, when the husband produced his witness to be examined in the suit, the respondent appeared and filed a petition for time to file written statement. Further on 12-2-1996, she filed a petition to recall order dated 8-1-1996 by whereby suit was fixed for ex parte hearing. Trial Court recalled the said order on the same day and directed her to file written statement and to attend reconciliation proceeding on 21-3-1996. The respondent, thereafter, neither filed written statement nor appeared for re-conciliation in spite of several opportunities given to her.
5. On 12-9-1996, Kanak Xess was examined as PW 1 and thereafter on 4-10-1996, Dasrath Bharti was examined as PW 2, but none of them were cross-examined by the respondent.
6. A perusal of order sheet of suit shows that on 12-1-1998 Court again fixed the suit for ex parte hearing. On 17-4-1998 the Court noticed that issues were not framed in the suit, hence on 14-7-1998 issues were framed.
7. On 6-11-1998 petitioner-husband filed Hajri. He was required to produce witness on his behalf, but it appears that on call nobody turned up on on his behalf. No pairvi was filed by respondent. However, Sri Ramesh Chandra, counsellor respondent wife informed the Court that he had nothing to say on behalf of Rita Devi and necessary orders may be passed. Hence, on 6-11-1998 itself court closed evidence of both parties. Nobody appeared for arguments on the said date and as such the suit was fixed for Judgment in second half on the same day and Impugned judgment was delivered and suit was dismissed.
8. Trial Court dismissed the suit mainly on the ground that petitioner failed to examine himself as a witness in the suit to establish his case for divorce.
9. Perusal of order sheet of the suit reveals that trial Court framed issues on 14-7-1998 and suit was fixed for evidence and hearing on 18-7-1998. Trial Court thereafter adjourned the suit on 28-7-1998, 11-8-1998, 1-9-1998 and 9-9-1998 and thereafter next date was fixed on 6-11-1998 for evidence.
10. After the settlement of issue on 14-7-1998, the suit was not adjourned at the instance of the petitioner on the dates fixed in the suit in July, August and Sept. 1998 and on 6-11-1998, which was the date fixed for his evidence, petitioner had filed his harji in the suit but unfortunately nobody turned up on his behalf when he suit was called out and as such evidence was closed. It is, therefore, not correct to say that adequate opportunity, was given to the petitioner to adduce evidence including his examination.
11. In the present case in absence of any contest by the respondent the Court was required to decide the suit under Section 23 of the Act. Section 23 confers on the Court power to pass a decree if it is satisfied on matters mentioned in its Clauses (a) to (e). Since proceeding under the Act is of a civil nature the word 'satisfied' in Section 23 means satisfied on a preponderance of probabilities and not satisfied beyond a reasonable doubt.
12. Though petitioner had already examined two witnesses on his behalf in support of his pleadings in plaint, on perusal of lower Court records, I felt that an opportunity should be given to the petitioner, who is appellant herein to examine himself as a witness at the appellate stage to pronounce effective judgment.
13. Accordingly, petitioner-appellant, Shrawan Kumar Giri was examined as PW 3 and he was also cross-examined by the respondent's counsel.
14. In his evidence, the appellant supported his pleadings. PW 3 categorically stated that behaviour of his wife was cruel to him and her newly born baby. She left husband's house on 8-6-1991 and thereafter in spite of his best efforts, she did not come back to live with him and with her baby. In this manner, she deserted her husband.
15. P.W. 3 proved two papers, Exts. 1 and 1/1 written by his wife, Rita Devi, wherein she had denied to look after her baby and stated that she would not live in her husband's house and his parents were at liberty to get their son married with another girl. A panchanama, Ext. 2 was proved by PW 3, wherein his wife, Rita Devi had accepted before the punches, PWs 1 and 2 and three others that she was leaving her husband's house forever after breaking her relationship with him and her daughter. In his cross-examination PW 3 reiterated that behaviour of his wife with him was cruel and for the reason best known to her, she deserted him for the last 11 years.
16. Mr. B.B. Shina, counsel for respondent fairly stated that on Court's direction he tried to get instruction from the respondent as to why she left her husband's house and was living with her parents for the last 11 years and was not ready to live with her husband, but he could not get any instruction. It appears that respondent is not interested in the present litigation and has completely broken her relationship with her husband and daughter.
17. In my opinion, a marriage in which the parties can no more live together deserves to be dissolved. In the present case, cruelty and desertion on the part of wife has been established and, therefore, marriage deserved to be dissolved.
18. Here factum of separation and intention of the wife to bring cohabitation permanently to an end are established. Provisions of law relating to desertion applies only if the wife voluntarily leaves the husband against his wishes and without his consent. It is proved in the present case that the parties are living separately and wife has no intention to resume matrimonial relationship. In my opinion, animus deserendi on the part of wife is proved. In such circumstances, it is better to close the chapter when the parties cannot live together. Desertion means intentional permanent abandonment of one spouse by other without other's consent or without reasonable cause. Desertion is a matter of inference to be drawn from the facts and circumstances of each case.
19. In the present case there was no justification for the wife to leave the matrimonial house and by now 11 years have passed and the parties are staying separately. Hence, in my opinion, it is a fit case wherein the husband-appellant herein is entitled to a decree for dissolution of marriage.
20. I, therefore, set aside the impugned judgment and decree passed by the Court below and decree the Matrimonial Title Suit No. 25 of 1995 and marriage between Shrawan Kumar Giri, appellant and Smt. Rita Devi, respondent is dissolved.
21. In the result, the appeal is allowed, but without costs.