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The Allahabad High Court has held that wife visiting to her Parental House without prior permission of her husband cannot be called as cruelty.
The Division Bench comprising of Justice Sunita Agarwal and Justice Krishan Pahal observed additionally that the same can neither constitute the offence of desertion.
In the present appeal, the wife has challenged the Family Court order granting divorce decree in favor of the husband under Section 13 of the Hindu Marriage Act.
It was stated in the divorce petition that the appellant was residing separately since 10.1.2015 and she refused to keep relationship with the respondent. The plea in the divorce petition, thus, was that the appellant wife had deserted her husband/respondent without any rhyme or reason and refused to cohabit with him.
Another ground for seeking divorce is that the appellant had refused to do the household work and misbehaved with the family members of the respondent. She used to go to her paternal home or to her relatives without any information to the respondent or his family members. Meanwhile, an application under Section 24 of the Hindu Marriage Act was filed by the wife in 2017 seeking maintenance which was allowed and an amount of Rs.5,000/- per month was awarded to the appellant and Rs.2000/- for her daughter towards monthly maintenance.
In the present appeal, the appellant has contended that she was turned out of her matrimonial home by the respondent on 21.7.2016 without any reasonable cause and the respondent did not care for his wife and the infant child.
She also has alleged that the respondent- husband had not brought any legal action with a view to asserting his right to restitute his conjugal rights.
The Court after listening to both the parties, anaylsing the facts and evidences, noted at the outset that the respondent's claim that the appellant had deserted him by leaving her matrimonial home on 10.01.2015, in his absence, permanently is unbelievable.
"From the evidence on record, thus, it cannot be accepted that the appellant had left her matrimonial home on 10.01.2015 with the intention to end her matrimonial relationship. The statement of appellant O.P.W-1 that she came back to her matrimonial home after four months of birth of her daughter when the respondent himself brought her back and remained there till July, 2016 is found to be more convincing. The plea of desertion on the part of the appellant without any reasonable cause and denial of matrimonial obligation on her part, therefore, is not found proved."
The Court also rejected the Family Court's finding on issue of desertion that the appellant could not explain as to how and why she attended the wedding anniversary of her brother-in-law on 15.12.2016 when she was thrown out of her matrimonial home by her husband on 21.07.2016 as against the evidence on record.
As regards the legal position, on the issue of desertion, the Court cited Apex Court ruling on Savitri Pandey Vs. Prem Chandra Pandey, 2002 Latest Caselaw 8 SC wherein it was held that the desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by other without that other's consent, and without reasonable cause. To constitute the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there:
(i) the factum of separation.
(ii) the intention to bring cohabitation permanently to 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 necessary intention aforesaid.
It was held that for holding desertion as proved the inference may be drawn from certain facts viewing them 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 desertion. Desertion may also be constructive which can be inferred from attending circumstances. It has also always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.
In the present case, the Court noted that it cannot be inferred that the appellant had deserted her husband (respondent) with the intention to bring cohabitation permanently to an end by leaving her matrimonial home on 10.01.2015 in the absence of her husband.
"The act of the appellant in visiting her parents house frequently without taking consent of her husband and other family members cannot constitute the offence of desertion on her part. P.W-2, brother-in-law of the appellant had stated that he brought her back many a times from her parents house and lastly she came in December, 2016. The plea of desertion taken by the respondent can not be accepted from the facts and circumstances of the case, in as much as, such an inference cannot be drawn from the attending circumstances which speak otherwise. It may be inferred that there were differences between husband and wife but the act of desertion, without reasonable cause, with the intention to bring cohabitation permanently to end is not proved."
Last ground to hold cruelty on the part of the appellant is that she had lodged a criminal case against her husband and in-laws on the false plea of demand of dowry and her statement that she was thrown out of her matrimonial house by the respondent by beating her is false, the Court further held.
"The plaintiff, i.e the respondent herein was required to prove the existence of such acts or conduct of the appellant which amounted to cruelty prior to the date of institution of the divorce suit. Any subsequent conduct of the appellant in lodging the first information report after she was thrown away from her matrimonial home by the respondent cannot be treated as an act of cruelty on the part of the appellant."
The Court concluded that respondent husband could not prove cruelty from any act or conduct or behaviour of the appellant by leading any evidence much less cogent evidence and thus allowed the appeal.
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