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Santosh Kumari Sharma Vs. Shiv Prakash Sharma - Court Judgment

SooperKanoon Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 76 of 1991 and Civil Miscellaneous Appeal No. 1014 of 1991
Judge
Reported in44(1991)DLT301; II(1991)DMC8
ActsHindu Marriage Act, 1955 - Sections 9
AppellantSantosh Kumari Sharma
RespondentShiv Prakash Sharma
Advocates: C.P. Wig, Adv
Excerpt:
.....are revived by commission of the same, or another matrimonial offence.; keeping in mind that the offence of desertion stood revived, that the condensation of desertion during the pendency of the petition for restitution of conjugal rights becomes ineffective, period of desertion has to be reckoned from the date when the appellant originally left the matrimonial home. this she did on 9.11.1985.; in the circumstances of the case, that the condensation was not real one, in any case it stood extinguished on 4.12,1986, when once again the matrimonial offence of desertion was committed. the period of desertion has to bf reckoned from the time when the appellant first left the matrimonial home, i.e 9.11.1985. the petition for divorce having been presented on 13.11.1987, more than two..........burn another. the story of the appellant appears to be a false one. (4) according to the list of dates filed, the appellant left the matrimonial home again on 4.12.1286, and the parties have not lived together since a petition for divorce was filed. (5) the list of dates filed is a sufficient indication to show that the matrimonial offence of desertion, which was condoned upon parties agreeing to live together during the pendency of the petition for restitution of conjugal rights. the offence of desertion would be revived upon another matrimonial offence being committed by the appellant, by deserting the respondent on 4.12.1986. (6) it is well settled that the condoned matrimonial offences are revived by commission of the same, or another matrimonial offence. (7) keeping in mind that.....
Judgment:

Mahinder Narain, J.

(1) The wife has preferred this appeal against the judgment of the Additional District Judge dated 18.3.1991, granting a decree of divorce to the husband on the ground of desertion.

(2) List of dates has been filed, as directed.

(3) From the list of dates, it is apparent that the parties married on 23.6.1985.the appellant left the husband on 9.11.1985. On a petition being filed under section 9 of the Hindu Marriage Act for restitution of conjugal rights, the parties started to live together from 9.11.1986, and they did so till 3.12.1986. On that date, i.e. 3.12.1986, it is stated by the counsel for the appellant that an attempt was made to burn the appellant by a gas stove. Counsel has not been able to explain how this attempt was made. Indeed, I find it difficult to accept that any person can be burnt to death by another by using a gas stove. No attempt was made to assert that on that date, the appellant was wearing clothes made of flammable materials. Gas cannot be poured over any person like kerosene. True that the gas cylinder may leak, causing fire and explosion, burns and death. But all the persons in the vicinity will be affected. It may not be possible for another person to cause extensive bums by low pressure gas stoves which are usually used for cooking, without tell-tale signs on the person who attempts to burn another. The story of the appellant appears to be a false one.

(4) According to the list of dates filed, the appellant left the matrimonial home again on 4.12.1286, and the parties have not lived together since a Petition for divorce was filed.

(5) The list of dates filed is a sufficient indication to show that the matrimonial offence of desertion, which was condoned upon parties agreeing to live together during the pendency of the petition for restitution of conjugal rights. The offence of desertion would be revived upon another matrimonial offence being committed by the appellant, by deserting the respondent on 4.12.1986.

(6) It is well settled that the condoned matrimonial offences are revived by commission of the same, or another matrimonial offence.

(7) Keeping in mind that the offence of desertion stood revived, that the condensation of desertion during the pendency of the petition for restitution of conjugal rights becomes ineffective, period of desertion has to be reckoned from the date when the appellant originally left the matrimonial home. Thi she did on 9.11.1985.

(8) In the circumstances of this case, that the condensation was not real 218 one, in any case stood extinguished on 4.12.1986, when once again the matrimonial offence of desertion was committed. The period of desertion has to be reckoned from the time when the appellant first left the matrimonial home, i.e. 9.11.1985. The petition for divorce having been presented on 13.11.1987, more than two years preceded the presentation of the divorce petition.

(9) In view of what is stated above, I am not inclined to entertain this appeal.

(10) F.A.O. No 76 of 1991 is dismissed.


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