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Bharat Lal Vs. Smt. Ram Kali Devi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 414 of 1983
Judge
Reported inAIR1984All274
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantBharat Lal
RespondentSmt. Ram Kali Devi
Advocates:Markanday Katju, Adv.
DispositionAppeal allowed
Excerpt:
family - section 13 (1) (b) of hindu marriage act, 1955 - desertion - desertion by one spouse determined - other spouse not under compulsion to recall the deserting spouse back - can obtain divorce decree even if no efforts made to call him or her back - on proof of desertion it is supposed that deserting spouse will carry on in state of desertion. - - according to trial court the respondent was hindu wife and she having left with her brother in the month of february, 1979 it was moral as well as legal obligation of the petitioner to visit her and bring her back and as he failed to do so he was guilty of constructive desertion......is established there is no obligation on the deserted husband (taking the case where he is the deserted spouse) to appeal to the deserted spouse to change her mind, and the circumstances that the deserted husband makes no efforts to take steps to effect reconciliation with the wife does not debar from obtaining the relief of judicial separation for once desertion is proved the deserting spouse, so long as she evinces no serious intention to effect the reconciliation and return to the matrimonial home is presumed to continue in desertion the appellant, therefore, could not be denied divorce because he did not write letters to respondent or made an effort to reconcile.5. in the result this appeal succeeds and is allowed. the order passed by the trial court dismissing the petition for.....
Judgment:

R.M. Sahai, J.

1. Should decree for divorce by dissolution of marriage he denied under Section 13(1)(b) of Hindu Marriage Act because animus for desertion was not established as petitioner did not make any effort to reconciliate by either going or writing letters or sending anyone even though respondent had separated of her own accord.

2. From unchallenged statement of petitioner, as the respondent did not appear either in the trial court or this Court despite service, it is established that the respondent went away with her brother in 1979, and is living separately with him since then. The ingredient of separation the first essential of desertion, therefore, was found established. The decree for divorce, however, was refused because animus or intention to desert could not be inferred because petitioner did not make any effort to reconciliate. According to trial Court the respondent was Hindu wife and she having left with her brother in the month of February, 1979 it was moral as well as legal obligation of the petitioner to visit her and bring her back and as he failed to do so he was guilty of constructive desertion.

3. Desertion under Hindu Marriage Act by either spouse is a ground for dissolution of marriage. In Laxman v. Meena, (AIR 1964 SC 40) it has been held to constitute in factum of separated and intention to bring co-habitation permanently to an end. Latter can be inferred from circumstances. And the most important of course is living separately without sufficient reason.' The offence of desertion commences when the fact of separation and animus deserendi co-exist. But it is not necessary that they should commence at the same time (Lachman's case supra). In absence of respondent or any evidence on her behalf the statement of petitioner that she did not join his society wilfully has to be accepted. Nor there is any material on record to establish that the respondent left with petitioner's consent or his conduct was such as forced her to leave. If it would have been so then the petitioner could be held guilty of constructive desertion as, there is no substantial difference between the rasp of a man who intends to cease co-habitation and leaves his wife, and the case of a man who compels his wife with the same intention to leave her. This is the doctrine of constructive desertion (Rayden on Divorce VII Edition page 155). It does not arise, as has been held by trial Court, because the petitioner did not visit her or write any letter to respondent.

4. In Lachman's case (Supra), it was held, once desertion, as defined earlier, is established there is no obligation on the deserted husband (taking the case where he is the deserted spouse) to appeal to the deserted spouse to change her mind, and the circumstances that the deserted husband makes no efforts to take steps to effect reconciliation with the wife does not debar from obtaining the relief of judicial separation for once desertion is proved the deserting spouse, so long as she evinces no serious intention to effect the reconciliation and return to the matrimonial home is presumed to continue in desertion The appellant, therefore, could not be denied divorce because he did not write letters to respondent or made an effort to reconcile.

5. In the result this appeal succeeds and is allowed. The order passed by the Trial Court dismissing the petition for dissolution of marriage is set aside. The decree of divorce is granted by dissolving the marriage between the appellant and the respondent.


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