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Parmeshwari Devi Vs. Mahavir Prasad - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. First Appeal No. 172/1971
Judge
Reported in1975WLN(UC)131
AppellantParmeshwari Devi
RespondentMahavir Prasad
DispositionApplication dismissed
Excerpt:
.....interlude to be drawn from the facts and circumstances of the case.; it is abundantly clear that mahavir prasad has created circumstances as not to let his wife live with him. more than once and in writing the mace it clear that parmeshwari devi is a woman of had character without any obvious cause and he does not want to accept her as this wife in these circumstances it is difficult to accept that parmeshwari devi has deserted him. in my opinion this is the creation of mahavir prasad himself. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on..........been passed by the additional district judge churu, on 11.9.1971 at the instance of her husband, mahavir prasad the parties were married on 16.4.63 at churu it appears from the very beginning some unpleasantness developed between them however, they continued to live together (sic) 1966 parmeshwari devi left her marital home on 15-10-1966, it is admitted between the parties that after that she did not return to her husband house' nor did she resume her marital obligations towards her husband. mahavir prased submitted a petition for judicial separation on 18.7.70 on the allegation that parmeshwari devi has deserted him for more that two veers prior to the filing of the petition this petition was resisted by parmeshwari devi, in her written statement she alleged that she was always ready.....
Judgment:

J.P. Jain, J.

1. This is an appeal by Parmeshwari Devi against whom a decree for judicial separation has been passed by the Additional District Judge Churu, on 11.9.1971 at the instance of her husband, Mahavir Prasad The parties were married on 16.4.63 at Churu It appears from the very beginning some unpleasantness developed between them However, they continued to live together (sic) 1966 Parmeshwari Devi left her marital home on 15-10-1966, It is admitted between the parties that after that she did not return to her husband house' nor did she resume her marital obligations towards her husband. Mahavir Prased submitted a petition for judicial separation on 18.7.70 on the allegation that Parmeshwari Devi has deserted him for more that two veers prior to the filing of the petition This petition was resisted by Parmeshwari Devi, In her written statement she alleged that she was always ready and willing to go to her husband house But the is treated cruelly and tales allegations against her character are leveled against her. The learned Additional District Judge who tried the case recorded the evidence of the parties On behalf of Mahavir Prasad three witnesses were examined in clouding the petitioner; whereas on the side of the non petitioner, Parmeshwari Devi and her father Budoha Ram were examined Apart from this oral evidence copies of three notices, with were served on Parmeshwar Devi were brought on record, which were admitted by one opposite party. The learned Judge then on consideration of evidence panted a decree for judicial separation which is subject matter of challenge in this Court.

2. Learned Counsel for the parties read out the evidence before me and the three notices were also perused It appears that Mahavir Prasad has, for some reasons, suspicion against the fidelity at his wife. In the notice Ex. 1 he clearly stated that her character has not been good he does not want a woman of her character. He even said that she should treat herself to have been left by him and she is free to live with anyone she likes. The notice Ex. 2 again disclose his suspicious mind against Parmeshwari Devi He clearly stated that she is a woman of bad character and he no longer wants her as his wife, and he would have no objection it she lives anywhere else. To the same effect is the letter Ex. 3. In his statement as P.W. 1 Mahavu Prasad stated in the cross-examination that he does not want to keep Farmeshwari Devi as his wife He admitted that in none of the three letters he addressed to Parmeshwari Devi, he asked her to come to her martial home P.W. 2 Faqir Chand is the maternal uncle of Mahavir Prasad He is said to have intervened in the matter and with his efforts Parmeshwari Devi came once or twice to the house of her husband but ultimately as alleged she left the house sometime in the year 1966 after which she never returned P.W. 3 Doongar Mal is of no help to the petitioner's case. Parmeshwari Devi in her statement stated that she staved with her husband for about 5 years but she was always suspected and after she had come from her husband house she his to live with her father. She is compelled to stay there as her husband is not prepared to keep her. She categorically stated that she is also prepared to ask for forgiveness if anything wrong is pointed our in her character. And she never refused to go to her husband's house. She admitted the receipt of the three letters Ex. 1, Ex. 2 and Ex. 3 and it was not necessary for her to have answered them as they contested filthy allegations against her character. She has to earn her own living to support herself. This fact is also supported by DW 2 Buddha Ram. From the facts as borne out from the record it is no doubt clear that the parties have separated themselves. Parmeshwari Devi is living separately at her father's house and she has not gone from her father's house after 15.10.1966. But she has justifiably cause to stay apart from her husband. Her husband Mahavir Prasad is clearly suspicions He suspects her deity and is of the option that she is a woman of bad character as it is evidenced from the three letters referred to above.

3. 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 deservedly Similarly two elements are essential so for 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. Desertion is a matter of inference to he drawn from the facts and circumstances of the case. In the present case it is abundantly clear that Mahavir Prasad has created circumstances as not to let his wife live with him. More than once and in writing he made it clear that Parmeshwari Devi is a woman of had character without any obvious cause and be does not want to accept her as his write In these circus and is it is difficult to accept that Parmeshwori Devi has deserted him. In my opinion this is the creation of Mahavir Prasad himself. In this view of the matter Mahavir Prasad is not entitled to any relief and the decree passed in his favour is erroneous and cannot be sustained.

4. In the result the appeal succeeds and the judgment and decree passed by the Additional District Judge. Churu, is set aside, and the application of Mahavir Prasad is dismissed. In the facts and circumstances of the case there will be no order as to costs.


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