IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 267 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BHARGAVKUMAR PRANSHANKAR SHUKLA Versus CHHAYABEN BHARGAVKUMAR SHUKLA -------------------------------------------------------------- Appearance: 1. First Appeal No. 267 of 1999 MR CJ VIN for Petitioner No. 1 MR PR NANAVATY with Mr.V.M.Pancholi for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 21/10/2002 C.A.V. JUDGEMENT 1. Bhargavkumar Pranshanker Shukla, appellant original petitioner has filed this appeal under provisions of Sec.28 of the Hindu Marriage Act, 1955, against the judgment and decree dated 6th November, 1998, passed by the learned Judge, City Civil Court, Court No.12, Ahmedabad, in Hindu Marriage Petition No.262 of 1992. The learned Judge by his impugned judgment pleased to dismiss the said petition of divorce filed by petitioner-husband in this behalf. 2. The facts giving rise to this petition are as under:- 2.1 Marriage of between Bhargavkumar Pranshanker Shukla - appellant husband (original petitioner) and Chhayaben Bhargavkumar Shukla - respondent wife (original opponent) was solemnised on 30th January, 1982, as per Hindu Rites at Ahmedabad. The opponent-wife gave birth to a female child in December 1982 whose name is "Vacha". 2.2 It appears that there was some difference and dispute between petitioner-husband and respondent-wife. They have also some difference and dispute between respondent-wife and her father-in-law and mother-in-law at the matrimonial home. It appears from the record that the opponent wife did not like to stay with the father-in-law and mother-in-law in a joint family. In view of the same, petitioner-husband took a new house somewhere in February 1984 and decided to live separately from his parents. 2.2(A) Somewhere in March 1984 petitioner's younger brother was going to America and at that time it was decided that all family members excepting the parties to this proceedings should go to Bombay to give send off and parties to this proceedings should only go to Ahmedabad Railway Station for the same. At the relevant time, the opponent wife had insisted that the petitioner must not go to Ahmedabad Railway Station also. In view of the same, there was a quarrel between petitioner husband and respondent-wife and the respondent had thrown tripoy or small table against the petitioner in this behalf. The fact which is emerged from the record that both the petitioner and the opponent did not went to railway station to send off the younger brother of the petitioner. 2.3 In view of the aforesaid circumstances, petitioner decided to go to Bombay to give send off by Air, the respondent had threatened not to go or else she would sprinkle kerosene on her body. In view of the aforesaid threat, the petitioner had to take the opponent in auto-rickshaw to her parent's house to place her there. Thereafter he locked the house and went to Bombay. After husband left for Bombay wife went to the house of husband and took some clothes and ornaments from that house. However, after husband came from Bombay, from the record it appears that the wife has not returned to her matrimonial home despite the husband has made several efforts in this behalf. 2.4 From the record, it appears that, since March 1984 the relation between petitioner and opponent was not cordial. The husband made several efforts to see that both opponent and her daughter return to matrimonial home. 2.5 The petitioner had also addressed a notice dated 25th May 1986 (Exh.45) which was received by opponent on 31st May 1986 in which also all the facts were stated and also indicated that if wife will not return the matrimonial home the petitioner will entitle to file appropriate proceedings. The wife also filed reply on 6th June 1986 (Exh.47) denying the contentions raised by the petitioner in this behalf. The wife specifically stated that after March 1984 her husband has not made an effort to bring her at her matrimonial home and therefore the claims lies with the petitioner husband. The petitioner also gave another notice dated 19th September 1986 in this behalf (Exh.48). 2.6 Ultimately, on August 1992 the applicant-husband filed present Hindu Marriage Petition No.262/92 before the City Civil Court at Ahmedabad for obtaining divorce against the opponent. In the said application all the facts which I have narrated earlier in paras 2.2, 2.2(A), 2.3, 2.4 & 2.5 are stated. I, therefore, did not repeat the contents of the petition to the said extent. In the petition it has been specifically stated as regards incidence regarding March 1984 when brother of the applicant was going abroad there was difference and dispute as opponent did not allow the applicant to go to station to give send off to his brother. A quarrel took place on that day and ultimately at late night the applicant decided to go to Bombay by early next morning by Plane and at that time the applicant took opponent in rickshaw and put her at her parents house. It was stated that during the absence when he was Bombay the opponent came to her matrimonial home and took all clothes, ornaments, fixed deposit receipts, utensils and cash and all other documents and also daughter's clothes and ornaments and went to her parent's house. After the applicant returned from Bombay the applicant went to opponent's house and requested her to come back to the matrimonial home, however, the opponent wife refused to come to the matrimonial home in this behalf. 2.6(A) It was therefore stated that right from March 1984 the opponent has not stayed with her husband at the matrimonial home though husband has made numerous efforts himself and also through his family members. However, without any reasonable cause, the opponent wife has abandoned the applicant for a continuous period of not less than two years immediately proceeding the presentation of the present petition. In fact, in this case, the petition has been filed in 1990 and the opponent has left the matrimonial home right from 1984. To that extent the applicant is deprived of his happiness of matrimonial home in absence of opponent since 1984. The opponent has also treated the applicant physical as well as mental cruelty due to the long absence from the matrimonial home. In fact the opponent did not allow the applicant to see his daughter also and instigated to his daughter not to see his father in this behalf. In view of the same the opponent has also tried to behave with physical as well as mental cruelty on the applicant in this behalf and, therefore, the total repudiation of marital obligation. It was stated that in view of the fact that the respondent wife's insistence of not leaving the job and to join her matrimonial home amounts to desertion and the appellant husband is entitled for a decree of divorce both on the ground of cruelty as well as desertion namely Sec.13(1)(a) and 13(1)(b) of the Hindu Marriage Act. It has been further stated that in this case marriage took place on 30th January, 1982, and since March 1984 both husband and wife have stayed separately and despite several attempts by relatives and well wishers no conciliation between them was possible. The petition for the dissolution of the marriage was filed in the year 1992 and stated that no co-habitation took place between applicant and opponent and therefore the applicant is entitled for decree of divorce in this behalf. 2.7 The opponent wife has filed a reply to the said marriage petition filed by the husband. The opponent stated that her husband and their relatives were not keeping good relation with the wife. She had denied all the contentions raised by petitioner. According to him, petitioner had no good nature and he was always suspicious in nature and because of that the marriage life of the petitioner and opponent has been ruined. According to him the petitioner had also sometime imbalance mind and had suspicion in nature and create mental cruelty. She has denied the incidence regarding petitioner's younger brother going to America. She has also denied that she has not stated that her husband should not to go to railway station. According to her, after petitioner returned from Bombay, he has never called him to stay in her matrimonial home. According to her she has not deserted her matrimonial home but petitioner has not co-operated and called her to stay at matrimonial home from March 1984 till filing of the petition. 2.8 Both the parties led documentary evidence as well as oral evidence before the trial Court. 3. On behalf of the petitioner husband, evidence has been recorded at Exh.44. He has narrated certain incidence regarding difference and dispute between husband and wife which I have narrated while describing the petition. Regarding petitioner's younger brother Pranavbhai going to America the petitioner categorically stated that his wife has specifically directed him not to go to railway station and therefore there was some difference and dispute arises and ultimately he took the wife to her parent's house because she gave certain threat in this behalf. He has also indicated that he has made an efforts and persuaded the opponent to come to matrimonial home but she refused to the same. He has also addressed a notice and correspondence which he has also narrated in this behalf. He has also stated that opponent was also serving in a Government undertaking and getting salary to the tune of Rs.3000/- per month. He has also admitted that a female child born in December 1982 out of their wedlock. According to him, the wife was also using filthy language against him. He has also stated that since March 1984 the wife has not returned to the matrimonial home. 3.1 The petitioner has also examined Harenbhai Pandya, brother of the wife. It was stated that his daughter had performed Arngetral and in that the name of her mother was mentioned but the petitioner name though being a father was not mentioned. Even the invitation card was not given to him. He was examined at Exh.64. 3.1(A) The petitioner also examined one Nishaben Dave, who happened to be neighbor of the petitioner. She had gone to petitioner's house on the day when younger brother of petitioner was going to USA. She has also confirmed that on that day there was some difference and dispute between husband and wife to send off the petitioner's younger brother. She has been examined at Exh.67. 4. The opponent was examined at Exh.69. She has also stated that because of suspicious nature of the petitioner-husband, she had no cordial relation with him. She has also stated that because of holidays on Saturday and Sunday when she was going to her parent's house, the husband did not like the same. According to her she stated that when the younger brother of the petitioner went to America and because of that the petitioner desired to go alone to Bombay and therefore there was some difference and dispute arises between them. According to her after 1984 husband put the wife to her parent's house and thereafter he has not called her to stay at matrimonial home. She stated that now her daughter became 15 years old at relevant time and she was studying in 10th Standard. She has stated that she has no desire to give divorce to the petitioner in this behalf. 5. The learned trial Judge thereafter considered the entire evidence on record and framed issues at Exh.31. The learned trial Judge after considering the documentary evidence and oral evidence came to the conclusion that (1) petitioner failed to prove that opponent has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition, (2) petitioner husband failed to prove that the opponent-wife has after the solemnization of marriage, treated him with cruelty as averred in petition. The learned trial Judge has held that opponent proved that petitioner has treated her with cruelty after the solemnization of their marriage as contended by her in her reply at Exh.5. In view of the same the learned trial Judge has held that plaintiff is not entitled to decree of divorce as prayed for in the petition in this behalf. 6. It may be noted that before this matter heard I also called the parties in chamber both husband and wife trying to settle the matter amicably. However, both the parties expressed their desire not to settle the matter out of Court and that is how I have heard the matter on the merits of the case. 6.1 Mr.C.J.Vin, learned counsel for the appellant has also stated that in view of the fact that since 1984 both husband and wife have not stayed together when the petition was filed in 1992 and evenafter petition was dismissed also by the trial court on 6th December, 1988. Thereafter the present appeal has been filed by the husband in January 1999 and since January 1999 till today both the petitioner husband and respondent wife did not live together. He, therefore, submitted that in view of this peculiar facts and circumstances of the case, the petitioner-husband is entitled to a divorce on the ground of desertion and cruelty. 6.1(A) The learned advocate for the appellant has submitted that though in the petition the ground of cruelty and desertion are mentioned he mainly relies upon the ground of desertion at the time of hearing of this appeal. 6.1(B) Learned counsel for the appellant has relied upon provisions of Hindu Marriage Act, 1955 particularly Sec.9 of the Act which provides restitution of conjugal rights. Sec.10 of the Act provides judicial separation. Sec.13 of the Act provides for divorce which reads as under: "Sec.13 Divorce:- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party - (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Explanation regarding desertion. "Explanation :- In this sub-section the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. 6.1(C) The learned advocate for the appellant husband relied on the judgment of the Hon'ble Supreme Court in the case of ADHYATMA BHATTAR ALWAR Vs. ADHYTMA BHATTAR SRI DEVI reported in (2001) AIR SCW = AIR 2002 SC 88. 6.1(D) In Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi (supra) the facts were that the appellant Adhyatma Bhattar Alwar and the respondent Adhyatma Bhattar Sri Devi were married on 22nd August, 1978 in Nalamvari Choultry at Rajamundry. The couple stayed together in village Palacole where the parents of the husband reside. A female child was born to them on 12th December, 1979 whereafter they separated. The wife and the daughter lived with her parents at Rajamundhry, while the husband continued to stay with his parents at Palacole. The husband filed a petition for dissolving the marriage under Section 13 of the Hindu Marriage Act, 1955 praying for a decree for divorce on the ground stated in sub-clause (ib) of sub-section (1). In the petition it was alleged that the father of the respondent wife had taken her to Rajamundhry for delivery and also stating that her mother was not well. After the birth of the child, since the respondent did not return to Palacole, the appellant, his father and other relatives made attempts to persuade the respondent's father to send his daughter to Palacole. The attempt did not bear fruit as the respondent was insistent that the appellant should live separately from his parents in a separate house. Since the condition was not acceptable to the appellant, she refused to join him at Palacole. On 23rd May, 1981, the appellant went to Rajamundhry to bring the respondent but she was not sent and the appellant was informed that the respondent would be sent only after he got a job. As the appellant could not be able to get a job, the respondent wife did not join matrimonial home and all attempts to persuade the respondent to come and live with him failed. The appellant therefore filed the petition for divorce on the ground of desertion by the wife for a period of more than two years. 6.1(E) The respondent wife contested the said petition before the Trial Court. The Trial Court held that the appellant had satisfactorily proved that the respondent was guilty of having deserted him for a continuous period of more than two years preceding the filing of the petition for divorce and that he was entitled to a decree for judicial separation under Section 10 of the Act instead of decree for dissolution of marriage under Section 13(1)(ib) of the Act. 6.1(F) Being aggrieved and dissatisfied with the judgment of the Trial Court, both the appellant and the respondent filed appeal before the High Court of Andhra Pradesh. The High Court of Andhra Pradesh set aside the judgment and decree of the trial court, allowed the appeal filed by the respondent wife and dismissed the appeal filed by the appellant husband. The High Court held that the wife did not have at any time the necessary animus to put an end to the matrimonial relationship and never intended to desert her husband. In view of the same, Special Leave Petition was filed before the Hon'ble Supreme Court. 6.1(G) In ADHYATMA BHATTAR ALWAR's case (supra) at para 6 on page no.91 the Hon'ble Supreme Court has observed thus: "The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition.This clause has to be read with the Explanation.The Explanation has widened the definition of desertion to include 'wilful neglect' of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, no elements are essential so far as the deserted spouse is concerned; (1) absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period." 6.1(H) Thereafter, the Hon'ble Supreme Court has, after considering its judgments in the case of BIPIN CHANDER JAINSINGHBHAI SHAH Vs. PRABHAWATI reported in AIR 1957 SC 176; LACHMAN UTAMCHAND KIRPALANI Vs. MEENA reported in AIR 1964 SC 40, ROHINI KUMARI VS. NARENDRA SINGH reported in AIR 1972 SC 459, SANAT KUMAR AGARWAL VS. NANDINI AGARWAL reported in AIR 1990 SC 594, and also CHETAN DASS VS. KAMLA DEVI reported in AIR 2001 SC 1709, in para 12 on pages 94-95, observed as under: "Para 12 - Coming to the case at hand, it is revealed from the evidence on record, as discussed in the judgments of the Trial Court and the High Court that the respondent wife had gone to her parents' house for birth of the child, which apparently cannot be construed as an expression of her desire to forsake her husband permanently; but after the birth of her child when attempts were made by the husband appellant, his parents and relations, she had laid down a condition that the appellant should live in a separate house from his parents taking the plea that her father in law had attempted to molest her, which explanation she signally failed to establish. In the meantime, father of the appellant expired some time in 1988, putting an end to the so-called reason of misbehavior of her father-in-law. There is nothing on record that thereafter she expressed her desire to join her husband at the matrimonial home. It is relevant to state here that the appellant is the only son of his parents and as expected, he was not willing to establish a separate residence leaving his parents to live alone in their old age. The cumumlative effect of the circumstances and the conduct of the respondent is that she had given expression of animus deserendi. Thus, the two ingredients of the matrimonial offence of desertion i.e. separation in fact and animus deserendi have been established by the appellant. The learned trial Judge, having regard to the facts and circumstances of the case, was right in recording the finding that the husband had successfully established the case of desertion by the wife and exercising the discretion vested under Section 13A of the Act, the learned trial judge had granted the decree of judicial separation instead of divorce. xxxxxxxxxxx The failure on the part of the wife to substantiate a serious allegation of infamous conduct of indecent advances said to have been made to her by the father-in-law, taken together with the absence and omission from her side to demonstrate her readiness and willingness to discharge her continuing obligation to return to the matrimonial home, establish sufficiently the animus deserendi, necessary to prove legal desertion as required under section 13(1)(b). The conduct of the wife seems to be more indicative of a firm determination not to return to the matrimonial home and discharge the obligations attendant thereto. Therefore, the judgment of the High Court is unsustainable and has to be set aside." 6.1(I) The Hon'ble Supreme Court has allowed the appeal and set aside the judgment of the High Court of Andhra Pradesh and the judgment of the trial court was restored. 6.2 The learned counsel for the appellant has relied on another judgment of the Hon'ble Apex Court in the case of G.V.N. Kameswara Rao Vs. G.Jabilli reported in 2002 AIR SCW 162. In that case G.V.N. Kameswara Rao - the appellant husband is a double doctorate holder one in Mathematics from Andhra University and another from U.S.A. and had been working in United States during the relevant period. The respondent, G.Jabilli, is a post-graduate in Home Science and was working as a lecturer in the year 1979. The marriage between two was solemnised on 30.7.1979. After the marriage, the appellant and respondent stayed together for some period and thereafter the appellant left India for United States. The respondent was asked to join him after having obtained the vise and completing other formalities. The respondent, after a period of six months, joined the appellant in United States. It appears that the marital life of the appellant and the respondent ran into rough weather from the very beginning of their stay in United States. A daughter, Sandhya, was born to them, on 10.6.1981. In 1982, the appellant, respondent and their daughter Sandhya came to India