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TMI Blog1997 (11) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of said wedlock who is now about 10 years old as informed by both the counsel appearing for the parties. Before presenting matrimonial petition the wife had filed a petition for restitution of conjugal rights in view of provisions of Section 9 of Hindu Marriage Act, 1955 (hereinafter referred to as Hindu Marriage Act for convenience). The said matrimonial petition filed by the respondent Sarla came to be dismissed on 5-10-88 on default. No application was preferred by Sarla in the Court for its restoration. The said order of dismissal for default was also not challenged by resorting to other provisions of law. After that petition, Sarla did not file any matrimonial petition for restitution of conjugal rights. The appellant examined himself, however, the wife Sarla examined Ghanshyamdas Agrawal, Hiralal Jain, her self in support of here case. Learned trial Judge after assessing the evidence in the light of evidence adduced held that the appellant did not prove that the wife Sarla had deserted him for more than two years. In view of that, he dismissed the matrimonial petition filed by the present appellant claiming for the decree of divorce in his favour and against the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in her evidence that she was and she happens to be willing to cohabitate with the appellant Prafulla Kumar. Mr. A.K. Sethi, counsel appearing for the appellant made reference to a number of letters which are on record, and submitted that the respondent happens to be a lady of ill-temper and, therefore, she abruptly decided to sever her relation of wife with the appellant and in pursuance of that, took away all the articles from the house of parents of appellant on 20th April, 1987. Mr. Sethi pointed out in this context that the said work of preparing the list continued even up to 1.30 a.m. in night. By pointing out this Mr. Sethi argued that the respondent who was even unmanageable to the members of her parents family, herself decided to abandon the appellant and, therefore, deserted him permanently with the intention of deserting him since 20th April, 1987 and she did not make any attempt for their reunion for a period of nearly about 10 years. He further submitted that the statement made by respondent-Sarla in her evidence that she was and happens to be willing to cohabitate is a false pretext, for seeing that the petition of the appellant stands dismissed. Counterin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 has given definition of word' desertion' as a desertion implies an abandonment against wish of the person charging it . Appropriate help can be obtained from provisions of Section 9 of Hindu Marriage Act which deals with restitution of conjugal rights. It writes that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition etc. etc. The total sums of this is that the act of desertion conveys following things : (i) Withdrawal of the society of a spouse from other, (ii) Without the consent/wish of spouse so aggrieved, (iii) Without an intimation to such spouse, (iv) With the intention of not returning. Thus, for the purpose of understanding the correct impact of term 'deserlion' which has been used in Section 13(1 )(ib) of Hindu Marriage Act, the evidence will have to be carefully assessed. There may be direct evidence on the point of 'desertion' and if such evidence is not available to the Court for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing but falsehood. In this context it is to be noted that both Sarla and her mother stayed at the house of parents of Prafulla Kumar for the purpose of taking those articles for late night and said work continued even up to 1.30 a.m. in the night between 20th and 21st April, 1987. The persons were required to execute two documents i.e. Exs. P-l and P-2. This aspect has to be considered together with the letters which are on record. Some letters are written to Sarla by her younger sister and some letters have been written by her mother to Sarla. Those letters are Exs. P-9 and P-10 and P-l I. In some letters younger sister of Sarla advised her to abandon her short temperedness and the tendency of dictating terms which she was exhibiting even at her parents' house. In one letter she has stated that if at all she was angry, she was at liberty to go to Ujjain and vent out all her anger on her. She entreated her not to be so rough with her husband. She also advised her to listen to her parents-in-laws advice and the advice of her own husband. The tone of said letters will have to be given due consideration. One letter written by her mother was indicating that her mother was as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afulla Kumar did not send any notice to Sarla inviting her for co-habitation in matrimonial house. 'At the same time Sarla did not send am notice to her husband Prafulla Kumar asking him to take her to matrimonial home. Even she did not insist for her entry in the matrimonial life of Prafulla Kumar after the said matrimonial petition was dismissed and thereafter also, intermittently. Sarla does not have any explanation for that. Truth seldom appears directly face to face. It exhibits its presence in a concealed way. It is to be gathered from surrounding circumstances. That is why the process of sifting the grains from the chauff is to be adopted. Truth never exhibits its presence entirely. It surfaces partially and in concealed way. Exactly it is the same case in this case. Truth has to be gathered from the circumstances depicted by this case and from the record. It has to be assembled by parts for the purpose of finding out as to who was blamable for this separation. Withdrawal of one spouse from the association of other, has to be continued and with animus deserendi and that has to be assessed in the present case by the circumstances of the case and its record. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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