FAO No. M-204 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. M-204 of 2008 (O&M) Date of decision: 22.10.2009 Gagandeep Gupta ....Appellant Versus Dr. Sonika Gupta ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Ms. Rachna Arora, Advocate, for Mr. Amar Vivek, Advocate, for the appellant. Mr. R.S. Sidhu, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) With the consent of the parties, main appeal is taken up for final disposal. The appellant-husband by way of this appeal has challenged the judgment and decree dated 28.5.2008 passed by the learned Additional District Judge, Jalandhar, vide which the petition filed by the appellant under Section 13 of the Hindu Marriage Act, for dissolution of marriage, on the ground of desertion and cruelty, was ordered to be dismissed. The parties to the litigation were married on 20.4.1998 at Jalandhar as per Hindu rites and rituals. The case of the appellant was, that though the respondent-wife conceived four times, but without his FAO No. M-204 of 2008 -2- consent got herself aborted. Therefore, it was claimed that he was entitled to decree of divorce on the ground of cruelty. It was also pleaded, that the attitude of the respondent towards appellant and his family members was rude and offensive, for the reason, that she is a qualified doctor, whereas the appellant was merely a diploma holder in pharmacy and is running a chemist shop. The plea of desertion was also pressed on the pleadings, that the respondent-wife had withdrawn from the society of the husband without any reasonable cause, with an intention to bring matrimonial relationship to an end. The petition was contested and the allegations made in the petition were denied. On appreciation of evidence, the learned Matrimonial Court did not agree with the appellant-husband that he was treated with cruelty, as he was not able to prove the allegations levelled in the petition. The plea of desertion was rejected by recording the following finding: - “Version of the petitioner that the respondent has deserted him without any reasonable cause also falls flat. In view of the facts already noticed herein above, the respondent is still residing in a portion of the matrimonial house even after the petitioner tried his best to prevent her from staying in that house by virtue of an order of a Civil Court which he failed to obtain. It is further established that the respondent is still serving in a nearby Charitable Hospital and has not returned to her parental house. As held in Durga P. Tripathy V. Arundhati Tripathy, (2005), 7 SCC 353, Ajay Kumar Bhatnagar Vs. Bhabnam Bhatnagar 1989(1) DMC 172. Courts all over the country are unanimous over the proposition that mere withdrawal FAO No. M-204 of 2008 -3- from society of husband is not enough to reward the husband with a decree of divorce. It has to be established that withdrawal if without sufficient cause and the deserting spouse has withdrawn with the intention of bringing matrimony to a permanent end and that the husband was not responsible for creating such a situation with the intention to bring. The Matrimonial Court has not to just at as to which of the party was ostensibly living about. The entire conspectus of family life has to be kept in view, and if one side by his words and conduct compels the other side to leave the matrimonial home or stay away there from, the former would be guilty of desertion though it is the latter who is seemingly separated from the other.” During the pendency of this appeal, the parties have entered into compromise, wherein they had agreed to withdraw all the cases filed by them against each other. All claims payable to the respondent were also settled and the appellant had agreed to pay a sum of Rs.16.00 lac (Rupees sixteen lac only) towards full and final settlement. A sum of Rs.10.00 lac (Rupees ten lac only) was paid to the respondent-wife, receipt of which is acknowledged by her, who is present in Court today. Appellant has also handed over two bankers cheque drawn on HDFC Bank for a sum of Rs.3.00 (Rupees three lac only) each. Learned counsel for the appellant has not challenged the finding of the learned Matrimonial Court on the ground of cruelty, but has pressed the ground of desertion, to claim decree of divorce. The contention of the learned counsel for the appellant is, that the learned Matrimonial Court was not justified in drawing an inference against the appellant merely because the respondent continued to live in the same house. The contention of the learned counsel for the appellant FAO No. M-204 of 2008 -4- was, that the respondent was not only staying in the house against the wishes of the appellant, but was also not performing her matrimonial obligations, nor was having any connection or dealing with him or family members in day to day affairs. The respondent has, thus, withdrawn from the society of appellant without any reasonable cause. There is a force in the contentions raised by the learned counsel for the appellant. The explanation added to sub-section (1) of Section 13 by Act No. 68 of 1976 reads as under: - “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.” The wilful neglect of a party by other spouse to marriage also amounts to desertion. Once it was proved on record, that the respondent was not performing her matrimonial obligations, though staying in the same house, with an intention to bring matrimonial obligations to a naught permanently, this also amounts to desertion. The respondent while appearing in this Court had not disputed that there has been no co-habitation between the parties since they separated, though she continued to remain in the matrimonial home by asserting her right of residence, in spite of the matrimonial discord. It may be noticed here that claim of respondent also stands settled, as she has received the settled amount of Rs.16,00,000/- (Rupees sixteen lac only) from the appellant. Finding of the learned Matrimonial FAO No. M-204 of 2008 -5- Court, therefore, on the ground of desertion deserves to be reversed. It is held, that the respondent has deserted the appellant-husband without any reasonable cause for more than two years immediately preceding the presentation of the petition for divorce. For the reasons stated above, while affirming the finding of the learned Matrimonial Court on the ground of cruelty, the finding on the issue of desertion is reversed. The appeal is allowed and the marriage between the parties is ordered to be dissolved by decree of divorce. No costs. (Vinod K. Sharma) Judge October 22, 2009 R.S.