1 First Appeal No. 161 of 2011 ------ [An application under Section 28(1) of Hindu Marriage Act, 1955 read with Section 19(1) of the Family Courts Act, 1984] Sujoy Ghosh Dastidar .... .... …. Appellant Versus Dayita Ghosh Dastidar .... .... .... Respondent For the Appellant : Mr. Rajivnandan Sahay, Sr. Advocate Mr. Yashvardhan, Advocate Mr. S.P. Mehta, Advocate Mr. Binod Kumar, Advocate For the Respondent : PRESENT HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE B.B. MANGALMURTI By Court Heard learned counsel for the appellant.
2. The respondent has not appeared despite service of notice on three occasions. It is pertinent to mention here that the Matrimonial Suit No.406 of 2010 instituted by the husband/appellant herein was decided ex-parte as despite service of notice including through paper publication, the respondent did not appear to contest the suit as per the order dated 18th July, 2011 passed by the court of learned Principal Judge, Family Court, Jamshedpur.
3. The appellant herein is aggrieved by the dismissal of the Matrimonial Suit vide impugned judgment dated 19th September, 2011 and decree dated 23rd September, 2011 passed by the Principal Judge, Family Court, Jamshedpur in Matrimonial Suit No.406 of 2010. The appellant had approached the learned Family Court for dissolution of marriage under Section 13 (1) (a) of the Hindu Marriage Act while also taking a ground of desertion as per the averments made in the plaint. The case of the appellant in nut-shell is inter alia as follows:- The marriage between the parties was solemnized on 5th December, 2000 as per Hindu Rites and Custom whereafter both of them were living together as husband and wife at Jamshedpur. No child was born out of the wedlock. It was detected sometime in May, 2003 that the respondent-wife was suffering from a disease when she was advised to undergo treatment at Tata Memorial Hospital at Mumbai for suspected case of Cancer. The husband undertook the expenses for the treatment but there were no signs of improvement. The respondent's family took her back from her matrimonial home on 18 th May, 2005 and thereafter she 2 has been residing there. On 29th October, 2008 she alongwith her mother Smt. Rama Guha took all her articles and belongings to her parental house. The family of the respondent knew that she was suffering from Tumor in her ovary which is a incurable disease with no chance of recovery. The respondent deserted the petitioner-husband without any fault on his side for which he has been suffering since 2005. Neither he has condoned the act of desertion or cruelty nor has he connived with the respondent. The cause of action for institution of the suit arose lastly on 18th May, 2005 when both the parties had resided together at their conjugal home in Jamshedpur. The husband prayed for a decree of divorce on the ground of desertion (inadvertently typed as dissolution), cruelty and incurable disease together with cost. During the course of the trial which proceeded ex-parte, the petitioner/husband adduced three witnesses. P.W.1-petitioner himself, P.W.2-Rajesh Narayan, a close friend of the petitioner and P.W.3-Ajay Kumar. No one turned up on behalf of the respondent to cross-examine these witnesses. The following list of documents were filed on behalf of the petitioner namely (i) photocopy of letter dated 13th August 2003 of Dr. M. Roy, A.G.M. Medical Services to the Director, Tata Memorial Hospital, Mumbai (ii) photocopy of advance payment voucher dated 13 th August, 2003 (iii) photocopy of credit card number 5455 dated 19th August, 2003 issued by Tata Memorial Hospital (iv) photocopy of letter dated 26th November, 2004 issued by Dr. M. Roy, A.G.M., Medical Services, Tata Motors. The appellant examined himself and supported the case set up through his plaint. He further stated that since 18 th May, 2003 respondent was suffering from different diseases and when the local doctors suspected her suffering from Cancer she was referred to Tata Memorial Hospital, Mumbai and treated there. He further deposed that the respondent's family took her back to her matrimonial home and from that period she was residing there and till now she is living at her parental home. Other witnesses have also reportedly deposed in favour of the petitioner's case. The learned trial court disbelieved the case of the petitioner for dissolution of the marriage on the ground that she was suffering from incurable disease as there is no such ground permissible under Section 13 of the Hindu Marriage Act, 1955. From the evidence adduced on behalf of the petitioner, it did not appear to the learned Family Court that the respondent-wife ever treated him with cruelty rather she was suffering from different diseases. The learned trial court also discussed the 3 plea of the petitioner on the point of desertion and came to a finding that there is no evidence on record to show that the respondent-wife ever withdrew from the matrimonial obligations. Therefore, it held that the petitioner had failed to establish the aforesaid grounds for dissolution of marriage.
4. Learned Senior Counsel for the appellant has fervently submitted that leaving of matrimonial home from December, 2005 on the part of the respondent without any cause till date is sufficient to establish the plea of desertion. Desertion in such a manner would also amount to mental cruelty. The intention of the respondent not to continue with the matrimonial relationship can easily be inferred in the undisputed facts of the case and the material evidence on record. The conduct of the respondent-wife shows that she has shown no interest even in appearing before the learned trial court or this court to contest the claim of the petitioner/appellant for divorce on these grounds. The respondent-wife does not seems to be interested in maintaining any conjugal life with the appellant/husband. In these circumstances, the marriage has irretrievably broken down also which can be a ground for dissolution of the marriage. Learned Senior Counsel for the appellant has relied upon the judgment rendered by the Apex Court reported in (2002) 2 SCC73in the case of Savitri Pandey vs. Prem Chandra Pandey. Reliance has also been placed on the judgments of the Apex Court in the case of Geeta Jagdish Mangtani vs. Jagdish Mangtani reported in (2005) 8 SCC177 Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC511and in the case of Malathi Ravi, M.D. vs. B.V. Ravi, M.D. reported in (2014) 7 SCC640in support of his submission that intentional permanent forsaking and abandonment of one spouse by the other without others consent and without reasonable cause clearly fulfills the ingredients of desertion and entitles the appellant to seek a decree of divorce. Sustained and studied neglect, indifference or total departure from the normal standard of conjugal kindness over a period of time would in itself amount to cruelty and lack of sensitivity leading to mental cruelty upon the husband/appellant which also stand established in the facts and circumstances of the case. Therefore, this Court could be justified in decreeing the suit by dissolution of the marriage.
5. We have considered the submission of the learned counsel for the appellant and the relevant material pleadings and evidence as born out from the lower court records. Indeed, this Court is faced with the peculiar situation where the 4 respondent-wife has for inexplicable reasons not only failed to contest the suit despite sufficient notice but has also failed to appear in the present appeal despite service of notice on three occasions consecutively. On the basis of the pleadings and the material evidence on record, the appellant has been able to show that after undertaking her treatment at Tata Memorial Hospital, Mumbai for suspected case of Cancer, the respondent-wife left the matrimonial home on 18th May, 2005 and never came back except to take her articles and belongings on 29th October, 2008. For the ingredients of desertion to be established so far as the deserting spouse is concerned two essential conditions must be there (i) the factum of separation, and (ii) the intention to bring co-habitation permanently to an end. (animus deserendi). Similarly two elements are there so far as the deserted spouse is concerned: (i) the absence of consent, and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Whether desertion has been established in a case depends upon the facts and circumstances of that case. In the present case, we find that the factum of separation on the part of the deserting spouse i.e., the respondent is established since May, 2005. In the background facts where the appellant had herself undertaken the expenses for her treatment for Cancer at Tata Memorial Hospital, Mumbai, the departure of the respondent from her matrimonial house in 2005 continued thereafter till date also shows a clear intention to bring co-habitation permanently to an end. Whereas on the part of the appellant/husband, the material pleading show that he was never willing or agreeable to the respondent-wife leaving the matrimonial house in such fashion. It can be safely presumed that there was absence of consent of the appellant. We may further infer on the basis of the material evidence and pleadings that when the appellant had himself got her treated by incurring substantial expenses for Cancer at Tata Memorial Hospital, Mumbai, it can be said that the appellant did not provide any reasonable cause to the wife to leave the matrimonial home to form the necessary intention. The manner in which even after treatment in the year 2005, she has completely left her husband and also chosen not to contest his claim for dissolution of marriage before the trial court and this Court till date is another factor to derive inference that she is not interested in maintaining conjugal relationship with the appellant/husband. 5 6. In the case of Savitri Pandey (supra) the Apex Court made the following observation in relation to the plea of desertion:- 8.“Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: (AIR pp. 183-84, para
10) “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 two elements are essential so far as the deserted spouse is concerned: (1) the 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. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. 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 coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, 6 express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.” As the present case reveals desertion was not a single act of 2005 on the part of the wife but a continuous course of conduct till date when she has in full consciousness abandoned her interest in keeping alive the matrimonial relationship. Continuous desertion on the part of the respondent is reflective of her indifference or total departure from the normal standard of conjugal relationship. In such state of fact, it may also amount to mental cruelty upon the other spouse. The appellant/husband is compelled to live with a marriage in which the others spouse is no longer interested. The conduct of the respondent by withdrawing from the matrimonial obligations i.e., by not permitting or allowing and facilitating co-habitation between the parties without any reasonable cause would also be equivalent to mental cruelty. Learned Senior Counsel for the appellant has rightly relied upon the case of Geeta Jagdish Mangtani (supra) where the appellant-wife had by her course of conduct over a period of time given sufficient reason to hold that it was a case of desertion on her part which entitled the husband to a decree of divorce. Reliance has also been placed upon a judgment rendered by the Patna High Court in the case of Smt. Babita Kumari vs. Ramesh Kumar reported in 2016 (4) PLJR575by the learned Senior Counsel for the appellant. We find that the learned Court has also copiously relied upon ratio rendered by the Apex Court in the case of Malathi Ravi, M.D. and Samar Ghosh and other cases (supra) decided by the Apex Court on the issue of mental cruelty and desertion. 7 7. Section 23 of the Hindu Marriage Act, 1955 read as under:-
“23. Decree in proceedings-(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5] is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in clause (i) of sub-Section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and] (c) [the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceeding, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly. (2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause(v), clause (vi) or clause (vii) of sub-section (1) of Section 13.] [(3) For the purpose of aiding the Court in bringing about such reconciliation, the Court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person, with directions to report to the Court, as to whether reconciliation can be and has been, effected and the Court shall in disposing of the proceeding have due regard to the report. (4) In every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties.]” In terms of Section 23 (1) (b) read with sub-clause (d) & (e), in any proceeding under the Act, whether defended or not, if the Court is satisfied that where the ground of the petition is the ground specified in clause (i) of sub -section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and there has been no unnecessary or improper delay in instituting the proceedings and that there is no other legal ground why relief should not be granted, the Court shall decree such relief accordingly. Section 23 (2) also 8 provides that before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. In the present case, we find that despite repeated attempts made by the learned trial court for appearance of the respondent-wife and inspite of service of notice on three occasions in the present appeal lastly in 2014, the respondent has failed to appear and defend herself. In such state of facts the learned trial court could not have been burdened with an endeavour to bring about a reconciliation between the parties. We are also seriously constrained in resorting to any reconciliation efforts through conciliation or mediation between the parties because of the approach of the respondent-wife in not participating in the present lis. In the facts and circumstances of the case, we also do not find any unnecessary or improper delay in instituting the proceedings on the part of the appellant-husband as it is only in the year 2008 that the respondent-wife took away all her belongings and articles from the matrimonial home and never came back. We can, therefore, safely presume that the respondent-wife is no longer interested in maintaining conjugal relationship with the appellant-husband. In such a situation, it would be indeed harsh and unjust upon the appellant to continue this marriage with the respondent-wife. We are, therefore, of the considered view that the appellant has been able to successfully make out a case for decree of dissolution of marriage.
8. The appellant is working as Junior Engineer since 1995 in the Tata Motors Company and is reported to be earning a gross salary of about Rs.49,000/- per month. There are no children to be maintained out of the wedlock with the respondent-wife. However the appellant has an ailing father to attend as stated by the learned Senior Counsel for the appellant. Therefore, we are of the view that interest of justice should be served if the appellant is directed to pay permanent alimony of Rs.3,00,000/- to the respondent-wife. The appellant would deposit the amount of permanent alimony in three equal installments of Rs.1,00,000/- each before the Principal Judge, Family Court, Jamshedpur first by 15 th January, 2018, second by 15th March, 2018 and third by 15th May, 2018. The respondent shall be at liberty to withdraw the amount of permanent alimony by making proper application before the learned Family Court, Jamshedpur. On such application 9 being made the learned Family Court, Jamshedpur should release the amount after being duly satisfied with the identity of the respondent-wife. The impugned judgment dated 19th September, 2011 and decree dated 23 rd September, 2011 passed by the learned Principal Judge, Family Court, Jamshedpur is accordingly set aside.
9. The appeal stands allowed. The marriage between the parties stands dissolved. Decree accordingly. (Aparesh Kumar Singh, J.) (B.B. Mangalmurti, J.) In the High Court of Jharkhand at Ranchi Dated 18th December, 2017 Anit/R.P.