Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO (HMA) No. 218 of 2005. Judgment reserved on: 6.4.2010. Decided on: April 22, 2010. Smt. Manita Verma. …… Appellant. Versus Sh. Anant Ram Verma. …….Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellant : Ms. Uma Manta, Advocate. For the respondent : Mr. Romesh Verma, Advocate. Surinder Singh, J . The learned District Judge granted a decree of divorce to the respondent-husband on his petition preferred against his wife under Section 13 of the Hindu Marriage Act, on twin grounds i.e. cruelty and desertion, which is under challenge in this appeal by the appellant-wife. In short, the facts giving rise to the present appeal can be stated thus. The appellant herein was married to the respondent on 10.5.1978 in village Chayori, Tehsil Sundernagar, District Mandi, H.P., as per prevalent Hindu rites. Both lived together happily as and wife till June, 1992. Thereafter, it is alleged, the appellant-wife started leaving her matrimonial home, without his consent and her behaviour towards respondent became indifferent. She was uncooperative and became quarrelsome. She started insulting the respondent. She also served a notice to pay a sum of Rs.2,000/- per - 2 - month as maintenance on false allegations and filed the maintenance petition. The efforts were made to bring her back to the matrimonial home, which ultimately yielded some success and lived together till June, 1997. But the appellant in the month of July, 1997 tried to commit suicide by jumping into the river. She left his house and started living in the protected home at Mandi. She made a false report to the police against him and his parents, for allegedly committing the offence under Section 498-A and 506 of the Indian Penal Code. Thereafter, she filed execution petition for arrears of maintenance, to the tune of Rs.56,000/-. According to her husband, it became quite impossible for him to live with her and also alleged desertion as she left his house without any rhyme and reason with an intention to permanently put an end to marital ties, thus sought divorce. Appellant-wife resisted and contested the petition and denied the allegations of cruelty and desertion. In her reply, she alleged that the respondent-husband had kept another lady with whom he was having illicit relations. She also pleaded that her husband had misbehaved and became cruel to her. He started making false accusations against her. Although, she admitted having joined the protected home at Mandi and filing of a criminal case of cruelty and criminal intimidation and also regarding the recovery of arrears of maintenance and denied other allegations, but asserted that she was ousted from her matrimonial home without any rhyme and reason. - 3 - In rejoinder, respondent-husband reiterated the contention raised in his petition. On the pleadings of the parties, the learned District Judge framed the following issues were framed:- 1. Whether the respondent treated the petitioner with cruelty, as alleged? …OPP. 2. Whether the respondent has deserted the petitioner, as alleged? …OPP. 3. Relief. Both the issues found favour with the learned trial court, as such, the petition was allowed and a decree of divorce was passed. Ms. Uma Manta, learned counsel for the appellant vehemently argued that the allegations of cruelty were not supported by filing the affidavit by the respondent-husband, as required under Rule 6 of the Rules framed by the High Court under the Hindu Marriage Act, which is sine-quo-non and otherwise also the cruelty from the facts alleged stood condoned, as such, the findings on issue No.1 against her are wrong. She also submitted that allegation of desertion is not made out from the evidence on record particularly in view of the fact that the respondent-husband was living with another lady, therefore, it was not possible for her to resume the marital ties. Contra, Shri Romesh Verma, learned counsel for the respondent-husband forcefully argued that the respondent-husband has successfully discharged the burden of proof qua cruelty and desertion to which the appellant could not rebut. He also submitted - 4 - that the allegation of living in adultery is false even to the knowledge of the appellant-wife. She of her own had permanently brought the cohabitation to an end therefore; the dissolution of marriage by a decree of divorce is sustainable. I have considered the rival contentions of the parties and have carefully gone through the evidence on record. The learned trial Court had taken pains to reconcile the matter more than once, but it did not yield any result. Even in this appeal, this Court had made attempts for amicable settlement of the parties, which ended in fiasco. The contention of the learned counsel for the appellant that the learned trial court had failed to discharge its statutory duty to make Endeavour to bring out the resolution between the parties is incorrect and without any merit and deserves to be rejected out rightly. The brief resume of the evidence led on record can be summed up thus. The respondent-husband is a Junior Engineer in the Irrigation & Public Health Department. He examined himself as PW1-A before the learned trial court. He stated that from their marriage w.e.f. 10.5.1978 till June, 1992, both lived together nicely, but thereafter the appellant-wife started quarreling on one pretext or other. At times, she threatened to jump into the river and also stopped cooperating him and other family members. She had filed a complaint with his Executive Engineer, for getting the maintenance and later also filed a maintenance petition. Later, the matter was compromised and he took her to the matrimonial home. Even - 5 - then she did not improve and made a complaint against him to the Executive Engineer with a view to humiliate him. She became tense again and made an attempt to commit suicide by jumping into the river, but she was saved by Devi Ram and Naresh Kumar (PW3). She also executed an affidavit that she would not repeat such a thing in future. Finally, she left his house and did not resume matrimonial ties. She got herself admitted in ‘Nari-Niketan. Attempts to take her back also failed. Later he came to know that she used to absent herself even from ‘Nari-Niketan’ during the night. He further stated that since 1997, she did not join his company despite his best efforts. He also stated that he has been paying the maintenance amount of Rs.2,000/- per month to her regularly. He further stated that in the year 1998, she lodged a false report against his parents for demand of dowry and the case was found false. She also filed an execution petition for the arrears of maintenance and he stated that in these circumstances, he cannot have the marital ties with her. He denied the case of respondent-wife and also that he had kept Sunita Soni as his wife and also that he is maintaining her two children. He stated that said Sunita Soni was the wife of his friend and working in his office and denied that he was having any illicit relation with her. He denied that he had tortured the appellant wife and ousted her from the matrimonial home; which compelled her to commit the suicide. His witness PW2 Kesar Singh stated that being the Pradhan of the Panchayat, he was called by respondent-husband, with respect to untoward behaviour of the appellant-wife. He had - 6 - advised her many times to behave properly, but it yielded no fruit. He further stated that in the year 1992, she poured the kerosene oil and bolted the door from inside and tried to burn herself, but she was saved. PW1 Krishan Dev, Superintendent of the Irrigation and Public Health Department, stated that in the year 1992, the Executive Engineer received a complaint Ex.PA from the appellant against her husband, which on enquiry was found to be false. PW3 Naresh Kumar stated that in the month of June, 1997, he alongwith Devi Ram saved the appellant from jumping into the river. He further stated that the appellant never cooperated with her husband whenever he visited the husband. PW4 Khem Chand, District Welfare Officer, Mandi stated that his predecessor has issued the letter Ex.PW4/A. Perusal of the said letter does not make out as to whom it was addressed and what was the context, in which it was written. Contra, the appellant-wife as RW-1 stated that she was being maltreated by her husband for not conceiving a child and he compelled her to seek divorce. She was given beatings, thereafter she went to her brother’s house. She appeared before the Deputy Commissioner. She was sent to ‘Nari-Niketan’. She also stated that her husband wanted to marry Sunita Soni. According to her, Sunita had visited her house and threatened her that she would get her oust therefrom. She also stated that when she was in the ‘Nari-Niketan’, she was taken back to her matrimonial home - 7 - by her husband after effecting a compromise. She lived there for about one month, then she was again ousted and took refuge again in ‘Nari-Niketan’, but later started residing with her brother at village Nihari. She admitted filing of maintenance petition against her husband. According to her, she had been getting monthly maintenance @ Rs.2,000/-. She denied that there was a sudden change in her behaviour and started leaving the matrimonial house without the consent and permission of her husband. She denied having made any complaint to his department, but according to her the allegations were correct. She admitted having given a notice to her husband for providing maintenance in the year 1992 when she had been with her husband. She categorically admitted that both of them lived together upto the year 1997. She further admitted having lodged a report under Section 498-A and 506 of the Indian Penal Code, in Police Station Karsog against her husband, but denied that on inquiry, it was found to be false. She denied the signatures on her affidavit mark ‘X’. She also denied that she had tried to commit suicide and also denied the letter aforesaid of District Welfare Officer. The statement of RW-2 Asha Ram is not confidence inspiring. He is a resident of Samrala, Tehsil Nihari (parental village of appellant). He stated they about 2½ years before his examination in the court as a witness, he had visited one Bali Chand, Supervisor of the Irrigation & Public Health Department. He took him to the house of respondent-husband where he was served with a tea by - 8 - some lady and the appellant-wife was not at home. Later, the Supervisor informed that she was Sunita. RW-3 Bhagi Rath, resident of some other village i.e. Sainj stated that in the years 1992-1993, the appellant had made a complaint to him that she was beaten up by her husband, but he did not know what was the cause. Even otherwise, it is not understood what was his relation to the appellant and what made her to make a complaint to him. This was in all the evidence of the parties adduced by the parties. Now against the above background evidence, the first ground cruelty need to be examined. Doubtless, the burden lies on the petitioner to establish his or her case, ordinarily the burden lies on the party which denies it. The principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him/her with cruelty. The belief regarding the existence of a fact, the Court has to determine, is not whether the petitioner has proved the charge of cruelty. The petitioner has to prove that the respondent-wife has treated him with such a cruelty as to cause a reasonable apprehension in his mind that it would harm and injurious to the life of the respondent. The only rider is the interdict of Section 23 (1) of the Act that the relief prayed for can be decreed only if the Court is satisfied that the petitioner is not in any way taking advantage of his own wrong. Not otherwise and - 9 - on the top of it, the relief prayed for can be decreed only if the Court is satisfied “but not otherwise” that a petitioner has not in any manner condoned the cruelty. In the instant case, the allegation with respect to cruelty to the husband is between the period to the years 1992 to 1997. It stands established on record that there has been a compromise between both the spouses and they started living together and the offence of cruelty stood condoned. It has been held in Dr. N.G. Dastane vs. Mrs. S. Dastane [AIR 1975 SC 1534] that to constitute condonation, there must be two things: forgiveness and restoration. Both the elements are met in the case in hand. The evidence of condonation in this case is, as strong and satisfactory as the evidence of cruelty. Therefore, the respondent-husband has failed to prove the ground of cruelty, and the subsequent affidavit on which the respondent had put reliance and his witnesses that she was saved by them while committing suicide is not confidence inspiring., as such, the findings of the learned District Judge, qua issue No.1 are unsustainable, hence set-aside. Insofar as the second ground of “desertion” is concerned, there is positive evidence that after the year 1997, the appellant did not resume marital ties. In its essence, “desertion” means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without any reasonable cause. It is a total repudiation of the obligations of marriage. - 10 - If a spouse abandons, the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it would not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there: (1) the factum of separation; and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two 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. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without - 11 - the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. Undisputedly, the burden of proving desertion- the “factum” as well as the “animus deserendi” is on the petitioner, which is required to be proved beyond reasonable doubt, to the satisfaction of the Court. In other words, even if the wife, where she is the deserting spouse does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. Please see Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi [(2002)1 SCC 308]. In the instant case, the separation in fact and animus deserendi,i.e.the desertion on the part of the appellant-wife with an intention of bringing cohabitation permanently to an end stands proved. Although she was within her right to establish that her husband (respondent) was living with another wife, but her statement coupled with the statements of her witnesses are not worth inspiring confidence to prove this fact. Even in her reply, she did not name with whom, her husband was having illicit relations and had kept her as his wife and during the evidence, she tried to build up her case to justify that she had a cause not to live with her husband which stands not proved, whereas on the other hand, the respondent-husband has been able to prove that right from July, 1997, she deserted him and did not resume the martial ties and she had voluntarily and permanently brought to an end the marital ties. Therefore, findings on issue No.2 arrived by the - 12 - learned trial court that the wife is guilty of “desertion” are absolutely correct. Therefore, for the reasons aforesaid, the present appeal is partly allowed. The respondent-husband has failed to prove the first ground I.e. cruelty, as alleged, whereas, the findings of the learned trial court on issue No.2 are affirmed and require no interference. Thus, the decree of divorce in H.M. Petition No.29 of 2002, decided on 19.4.2005 stands modified, to the extent that the marriage between the parties stands dissolved, only on the ground of “desertion”. Parties are left to bear their own costs. The appeal stands disposed of. (Surinder Singh) Judge April 22, 2010. (Pds)