Manojit Mandal, J.
1. This first appeal is at the instance of husband in a suit for divorce on the ground of desertion and is against the judgment and decree dated 25th November, 2009 passed by the Additional District Judge, Fast Track 2nd Court, Suri, Birbhum in Matrimonial Suit No. 71 of 2003.
2. Being dissatisfied, the husband/plaintiff has come up with the present appeal.
3. The appellant before us filed in the Court of the District Judge, Birbhum at Suri, a suit being Matrimonial Suit No. 71 of 2003 thereby praying for divorce under the provision of Section 13(1) of the Hindu Marriage Act and the case made out by the appellant in the petitioner for divorce may be summed up thus:
(a) The parties were married according to Hindu Rites and Customs on 6th December, 1995 in the house of the Respondent's father at Mohol under Police Station Pandabeswar, District- Birbhum. Thereafter, parties lived together in the house of the appellant at Village- Jogai under Police Station Murarai, District- Birbhum. The said marriage was duly consummated. In the wedlock of the parties, a female child was born.
(b) The appellant is an educated unemployed person and he went to Jhangra Colliery for searching a job where the respondent's father was an employee of the colliery and he gave a proposal of marriage of her daughter with the appellant and assured him that he will arrange for job for the appellant. The appellant thereafter started to live at Baishaki colony at Jhangra Colliery and father of the respondent had opened a fixed deposit policy by depositing Rs.60,000/- (Rupees Sixty Thousand) only in Bank in the joint names of the parties as the father of the respondent could not readily manage any job for the appellant.
(c) The appellant had no property to meet his family expenses and somehow collected some students and began tuition work and maintained the respondent with great difficulties.
(d) Respondent's behavior towards the appellant was not good and she was not obedient to her husband and used to behave with him badly and in all respect she used to quarrel with the appellant and abused him in filthy languages.
(e) After marriage the respondent did not like to stay in her in laws house in a remote village and the appellant was compelled to come at Jhangra where the respondent, her father and brother behaved very badly with the appellant and even threatened him to finish his life.
(f) The appellant was lastly driven out from the quarters of Baisakhi colony at Jhangra Colliery by his father in law and brother in law on 22.07.1997 and since then appellant is living separately in his native place and respondent is living her father's house.
(g) Respondent filed a Misc. Case under Section 125 of the Code of Criminal Procedure for maintenance for herself and her minor daughter and another criminal case under Section 498A with other Sections of Indian Penal Code.
(h) Appellant, his parents and brother tried to persuade her to lead a happy conjugal life with the appellant but the respondent did not return back and deserted the appellant from enjoyment of conjugal life for the last 5 years and more without any reasonable excuse and there is no chance of reunion of the respondent with the appellant in future. Hence the suit.
4. The suit was contested by the wife by filing written statement and thereby denying the material allegations made in the application for divorce and the defence of the respondent may be summed up thus:-
(1) The respondent denied the statement that respondent's behavior towards the appellant was not good and respondent was not obedient to the appellant and used to behave with him badly and in all respect she used to quarrel with the appellant and abused him in filthy languages.
(2) It was denied that on 22.07.1997 the appellant was driven out from the Quarters at Baishaki Colony by his father in law and brother in law.
(3) After marriage the respondent went to her matrimonial home and lived as husband and wife with the appellant but the respondent was subjected to cruelty and was harassed and tortured physically and mentally by the appellant and other matrimonial relatives for nonpayment of further demand of dowry of Rs.40,000/- (Rupees Forty Thousand).
(4) In order to fulfill their demand the father of the respondent deposited Rs. 10,000/- (Rupees Ten Thousand) only in the joint names in Bank. Before marriage the appellant and his family members demanded Rs.1,00,000/-(Rupees One Lakh) only as dowry from the father of the respondent and father of the respondent deposited Rs. 60,000/- (Rupees Sixty Thousand) only in the joint name of the couple in the Bank.
(5) In spite of that the appellant and his family members did not change their behavior.
(6) Since the date of marriage the appellant had no love and affection at all to the respondent and appellant did not like the respondent and used to hate her.
(7) The appellant used to reside at the Quarters of Jhangra Colliery with the respondent out of his own will and respondent never created any pressure upon the appellant to do so.
(8) Respondent behaved well with the appellant and she has a lot of love and affection for the appellant and she wants to live a happy conjugal life with appellant.
(9) Respondent was compelled to file a case under Section 125 of Criminal Procedure Code (hereinafter referred to as "Cr.P.C.") for maintenance and another case under Section 498A of Indian Penal Code (hereinafter referred to as "I.P.C") against the appellant. In the said proceeding under Section 125 of Cr.P.C., the appellant is not paying interim maintenance regularly to the respondent. The suit was, therefore, liable to be dismissed.
5. At the time of hearing of the suit the appellant examined himself as PW 1. He also examined Shri Jagannath Pramanick (PW 2) and Ashis Chakraborty (PW 3) in support of the plaint case while the respondent examined herself as DW No. I.
6. As indicated earlier, the learned Trial Judge by the judgment and decree impugned in this appeal was pleased to dismiss the suit on the ground that the appellant had failed to prove the allegations made in the petition for divorce.
7. Being dissatisfied, the husband has come with the present appeal.
8. Mr. Siddheswar Chandra, the learned Senior Advocate appearing on behalf of the appellant, vehemently contended before us that the learned Court below has committed wrong and erred in law in dismissing the plaintiff's suit. He further urged that leaned Trial Court has failed to hold that the wife/respondent deserted her matrimonial house for a long period and there is no scope to restore the marital life between the parties. He further urged that learned Trial Judge erred in law as well as in fact in holding that wife is still willing to lead conjugal life with the appellant particularly when wife was absent in the dates fixed for reconciliation between the husband and wife as fixed by the learned Trial Judge. He further contended that the learned Trial Judge failed to consider that the appellant was subjected to cruelty when the respondent in her application under Section 125 of Cr.P.C. had pleaded that her husband had kept an illicit relation with another lady and that evidence of the husband have not been considered properly. In support of his argument he has relied upon the decisions reported in 94 CWN 769, AIR 2006 (All) page 7 and AIR 2005 SC 3297.
9. Mr. M.M. Verma, learned Advocate appearing on behalf of the respondent, has, on the other hand, opposed the aforesaid contention of Mr. Chandra and has submitted that the leaned Trial Judge in the facts of the present case rightly disbelieved the husband regarding the allegation of desertion. He further submitted that the husband/appellant in his deposition has no where stated that the respondent drove out the appellant from the Quarters of Baishaki at Jhangra Colliery. He further submitted that it is in evidence that while the respondent along with her jamaibabu went to the house of the appellant, the respondent was assaulted by the appellant. Mr. Verma, therefore, prays for dismissal of appeal.
10. Therefore, the question that arises for determination in this appeal is whether the learned Trial Judge was justified in dismissing the suit for divorce on the ground that the allegation of the husband that the respondent deserted him has not been proved by the appellant in accordance with law.
11. Now coming to the point of desertion, the law in this regard must be appreciated clearly. Under Section 13(1)(ib) of the Hindu Marriage Act (hereinafter referred to as "Act") any of the spouses after the marriage is solemnized under the provisions of the Act may pray for dissolution of the marriage by decree of divorce on the ground, inter alia, that the other party has deserted him or her for a continuous period of not less than two years immediately preceding the presentation of the petition. The word "desertion" has been explained in the said Act as follows:-
".............. the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage............".
Our High Court has held in a case (Apurba Mohon Ghosh vs. Manashi Ghosh, (1989) AIR Calcutta 115) that desertion was complete, whoever might have given the initial cause, because all the three elements that generally go to constitute "desertion", namely, the factum of separation, the animus deserendi, i.e. the intention to live apart and the animus non-revertendi, i.e. the intention not to revert to the matrimonial home were proved.
12. Keeping the above principles of law on the passing of a decree of divorce on the ground of desertion in our mind it may now be seen how far the Trial Court is justified in dismissing the suit against the wife/respondent. Admittedly, the parties were married according to Hindu Rites and Customs on 06.12.1995. It is also admitted that present appellant and the respondent are living separately since long. It is the case of the husband in his petition under Section 13(1) of Hindu Marriage Act that the appellant was driven out from the quarters of Baishaki Colony at Jhangra Colliery by his father in law and brother in law on 22.07.1997 and since then appellant is living separately in his native place and respondent is living in her father's house and since then respondent never came back to the matrimonial home and deserted the appellant from enjoyment of conjugal life for the last 5 years and more without any reasonable excuse (vide Paras 6 and 7 of the petition under Section 13(1) of Hindu Marriage Act). From the allegations made in Para 7 the husband wants the Court to presume or infer that after the appellant was driven out from the quarters on 22.07.1997 he made attempt to bring her in his house for resuming the matrimonial relation and the wife did not come to his house and resume matrimonial relation without any excuse. This story does not find any place in the evidence on behalf of the husband before the Trial Court. PW 1 Basanta Das is the husband. In his examination in chief he said that on 22.07.1997 he was driven out from the quarters and that his father and his brother went to bring his wife to his house but she refused to come. In his cross-examination he has deposed that his father in law made arrangement to stay in the quarters along with his wife and daughter and he used to stay there with his family and his father in law and his family members were not residing there. The evidence of PW 1 including his cross-examination reveals that PW 1 has nowhere stated in his evidence that he was driven out from the quarters by his wife after quarrelling with him on 22.07.1997. So, there is no allegation against the wife/ respondent. The father and brother of the petitioner have not been examined in the case though it is alleged that his father and brother tried to bring his wife to his house. PW 2 is Jagannath Pramanick who knows both the parties of this suit. This witness said that he never went in the quarters of the appellant where he used to reside and he never went to the father's house of the respondent and so far he heard from the appellant that he was driven out from the quarters. PW 1 nowhere stated in his evidence that he stated to PW 2 about the fact of driven out of the appellant from the quarters. Therefore, the evidence of PW 2 on this count is hearsay which is not admissible according to Indian Evidence Act. PW 1 did not examine any other witness on this count. This apart, PW 2 in his deposition has deposed that he, the appellant and his father went to bring the respondent to the house of the appellant. But the appellant has nowhere stated in his evidence that he went to bring the respondent to his house. In cross-examination PW 2 has also admitted that he never went to the quarters and/or to the father's house of the respondent. Therefore, the evidence of PW 1 and PW 2 are inconsistent with and contradictory to each other. So, the evidence of the appellant regarding desertion does not inspire confidence.
13. Now, we should look into evidence adduced on behalf of the wife as to the circumstances which compelled her to reside in her father's house. It has been suggested to PW 1 and denied by him in cross-examination that due to torture inflicted to her by the appellant on the ground of dowry she was compelled to file criminal case and maintenance case against her husband. In Para 9 of the written statement the wife stated that after the marriage she was subjected to cruelty and torture both physically and mentally by the petitioner and his family members for non-payment of further demand of dowry of Rs. 40,000/-(Rupees Forty Thousand) only. In her evidence respondent as DW 1 said that she went to her matrimonial home and when she arrived there she was assaulted by her husband and having no other alternative she was compelled to come back from there. She said on oath that her husband went away leaving her alone in the quarters after torture upon her. She further said that her husband never looked after her. She further said that she does not want divorce and she wants to stay with her husband. Presumably she has no objection to reside with her husband. The DW 1 was cross-examined by the appellant at length. Nothing has been obtained to shake the credence of her statement. In this position there is no reason for disbelieving the wife's evidence that she was subjected to cruelty and tortured by her husband and that as such she was compelled to reside in her father's house.
14. In order to get a decree of divorce on the ground of desertion, it has to be proved by the petitioner that the other party to the marriage has deserted his or her without reasonable cause and without the consent or against the wish of the petitioner including willful neglect of the petitioner by the other party to the marriage. In addition to the fact of separation, the animus deserendi and animus non-revertendi it has to be proved by the petitioner/husband that the wife, where she is the deserting spouse and does not prove just cause for h
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er leaving apart, and to satisfy the Court that the desertion was without just cause. We have found in evidence that wife has expressed her willingness and eagerness to reunite with her husband and to resume her conjugal life. There is no reason to disbelieve her. In the facts and circumstances of the instant case, and in view of the legal principles as discussed above, we are of the opinion that in the instant case, it is the wife/respondent who has been deserted by the husband/appellant. 15. The judgment referred by the appellant reported in 94 CWN 769 and AIR 2006 (All) Page 7 are of no assistance to the appellant as because these two rulings are related to the suit for divorce on the ground of cruelty. 16. The another decision reported in AIR 2005 SC 3297 also is of no assistance to the appellant as because wife was not prepared to lead conjugal life with husband and husband attempted in getting back his wife to matrimonial house in that case. 17. For the forgoing reasons and also in the background of the pleadings, we hold that the petitioner has given a false colouring of his case. 18. Thus, taking into account the lock, stock and barrel we hold there is nothing to interfere with the judgment and decree passed by the learned Court below and accordingly, we dismiss the appeal. But considering the circumstances, we award no costs. 19. The Lower Court Record along with copy of this judgment be sent to the learned Trial Court below at once for information and taking necessary action. 20. Urgent Photostat certified copy of the order, if applied for, be given to the parties on priority basis on their usual undertaking. I agree.