Judgment:
(Prayer: This MFA is filed U/S 28 of Hindu Marriage Act, against the judgement and decree dated 10.6.2011 passed in M. C. No. 30/2005 on the file of senior civil judge and JMFC, Bhadravathi, allowing the petition filed U/S 13 of Hindu Marriage Act for divorce.)
B.S. Indrakala J.
1. Being aggrieved by the judgement and order dated 10.06.2011 passed in M.C.No. 30/2005 on the file of Civil Judge (Sr. Dn.) and CJM, Bhadravathi, the respondent therein has preferred the above appeal seeking to set aside the same.
2. For the sake of convenience the parties herein are referred to by their respective rank as arrayed before the Court below as appellant-respondent; respondent-petitioner.
3. The petitioner filed the said M. C. No. 30/2005 under Section 13 of Hindu Marriage Act seeking dissolution of his marriage with the respondent-appellant herein which was celebrated on 04.06.1998 at Kabli Thandya, Kadur Taluk as per the Hindu customs. It is further contended that after marriage, both of them started living together at Sriramanagar, Bhadra Colony Post, Bhadravathi and from the wed-lock they have a daughter aged about 7 years and a son aged about 5 years. It is further contended by the petitioner that after the birth of the second child after some time, the respondent-appellant failed to join the petitioner and as such he filed M. C. No. 3/2002 on the file of Senior Civil Judge and JMFC, Bhadravathi under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Further, it is alleged that in the said M.C.No.3/2002, the respondent-appellant inspite of service of notice remained absent, and as such the exparte order was passed allowing the said petition on 04.11.2002; despite the same, the appellant did not join him. It is further contended by the petitioner that in order to get better income he left his parents and sister at Srirampura and started residing at Tarikere Taluk, M. C. Halli, during that period, respondent-appellant was staying with his parents at Srirampura, though the petitioner called the respondent-appellant and her children to come and reside with him at M. C. Halli, she refused to join him etc. Further it is contended by the petitioner that thereafter, he shifted his residence from M. C. Halli to Bavikere Village and to the said place also, the appellant failed to join him. In the circumstances, the petitioner filed the above petition seeking dissolution of his marriage with the appellant.
4. In the statement of objections filed to the said petition, the respondent-appellant herein denied all the allegations made against her and has pleaded that the petitioner neglected to take care of her and also her children, he has not provided anything for them and even now she is willing to join him etc. and has sought dismissal of the petition.
5. On behalf of the petitioner, he himself got examined as PW-1 and another one Mr. Gangadhar as PW-2 and got marked Exs. P1 to P5 and on behalf of the respondent-appellant herein, she got herself examined as RW-1. On conclusion of the evidence, the learned Judge deemed it fit to dissolve the marriage of the parties celebrated on 04.06.1998 vide impugned judgment. Being aggrieved by the said judgment, the respondent-appellant herein has preferred the above appeal inter alia contending amongst other grounds that the impugned judgment is passed without any application of mind and the facts placed before the Court below is not comprehended properly; the same is contrary to law, facts and legal evidence available on record; it has not formulated proper points for consideration etc. and has sought allowing of the above appeal.
6. Heard the arguments.
7. In view of the submissions made, the points that arise for consideration are:
1) Whether the impugned judgment and decree dated 10.06.2011 passed in M.C.No.30/2005 on the file of the Civil Judge (Sr.Dn), Bhadravathi, is liable to be set aside?
2) What order?
8. On perusal of the petition it is seen that the same is file under Section 13 of the Hindu Marriage Act without specifying the specific ground on which the above petition is filed. However, on perusal of the contents in the petition it is seen that the same is mainly filed on the ground of desertion under Section 13 (1)(ib) of Hindu Marriage Act.
9. The explanation to the Section 13(1) explains as to what constitute desertion under the said explanation desertion means “desertion of petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes willful neglect of the petitioner by the other party to the marriage.
10. Thus mere physical act of departure by one of the spouses does not necessarily constitute desertion and desertion is an intentional permanent forsaking and abandonment of one of the parties to the marriage by the other without others consent and without reasonable cause; there should be a total repudiation or abandonment with an intention to bring cohabitation permanently to an end. Mere physical separation between the spouses or mere intention of one to separate from the other without any overt act would not by itself amount to desertion. Thus the fact of separation and the intention to bring cohabitation to an end permanently animus deserendi are the essential features of desertion.
11. Whenever relief is sought on the ground of desertion it is also to be seen that the act of desertion to be a ground, apart from being an intentional one it also should exist for a period of two years as on the date of filing of the petition and the period of desertion is to be considered from the day on which the spouse is guilty of willful neglect and not the day from which she is residing separately without any intention to leave forever.
12. In the instant case, on perusal of the petition filed, it is seen that as already discussed supra apart from non-mentioning of the specific ground on which the petitioner is seeking relief, he has also failed to mention the exact date on which the respondent deserted him. Likewise even in the evidence, he has not specified anything with regard to the alleged date of desertion. Besides, he has also not assigned any other reason or overt act on the part of respondent to prove that the respondent is guilty of willful neglect. Thus, the petitioner has failed to prove the factum of desertion and mere separation without intention to put an end to cohabitation does not tantamount to desertion.
13. With regard to the filing of MC No.3/2002 on the file of the Senior Civil Judge, Bhadravathi as could be seen from Ex.P.1, the address of the respondent is given as the resident of Kadur and even in that behalf, nothing is stated with regard to the date of desertion and without assigning any reason, a bald statement is made alleging that after the birth of the male child in the parental home of the respondent, she did not join the matrimonial home. Further, he has not assigned any reason as to why the respondent is residing separately. Admittedly, it is an order passed exparte and in that regard it is contended by the respondent that she was never served with any notice and the petitioner manipulated such service of notice which contention of the respondent in the facts and circumstances of the case cannot be easily ignored. Such contention of the petitioner is further fortified by the act of the petitioner himself in getting the execution case no. 108/04 filed by him seeking to execute the decree of restitution passed in MC 3/2004 dismissed by advancing the case from 24.9.2005 to 1.6.2005. Further, it is to be seen that execution petition was got dismissed as closed in which event, it is also possible to be presume that the decree so sought to be executed is duly executed. In the said circumstance, the period of 2 years of desertion is also not established by the petitioner.
14. Thus, the petitioner has failed to establish the factum of desertion as contemplated under Section 13(1)(a) and its explanation and also failed to establish the period of alleged desertion. Accordingly, the impugned order passed dissolving the marriage of the petitioner with the respondent on the ground of desertion is liable to be set-aside. Accordingly, point no. 1 is answered in the affirmative. Hence, the following:
ORDER
The above appeal is allowed setting-aside the judgment and decree dated 10.6.2011 passed in M.C.No.30/2005 on the file of the Senior Civil Judge and JMFC, Bhadravathi. Consequently, M.C.No.30/2005 is hereby dismissed.