Dismissed

Kartik Ram v. Smt.Sunderbai

Chhattisgarh HC4 Feb 2010FA/74/2000

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed the appellant husband's appeal seeking divorce on grounds of desertion. The court held that a final judgment in a prior restitution of conjugal rights petition, establishing valid reasons for separation, precluded a finding of desertion in the present suit under res judicata.

What did the court decide?

The appeal was dismissed with the order that the respondent is not deserted and the appellant is not entitled to a decree of divorce.

Kartik Ram Vs Smt.Sunderbai — Matrimonial and Divorce | Chhattisgarh HC (2010)

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IN THE HIGH'.C0gRT'e>E'^,?UD2.eS'I'HEE AT JABALEQR.CM.P). ' Blrst:: Appeal ;No. ."7 Lf /2000 •-:''•;:'; r':.,'; j

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(Fj.rst appeal.U/S*28'of the Hi.oau Marrl.age .Sf:t} 1 i APPEliIAKS'; .s Kartik Ram, S/o Bhoora.Sa.i.,'1:

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.s Kartik Ram, S/o Bhoora.Sa.i.,'1: agsd afaout 26 years,^Resi.i.deBti^|||j1 o£ Vill. Tiur', Thana;Kfasjrsa.y4'*llhi Teb» Kharslya, Janpat Ria3.gai3ld.il

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Present address: Villf Rumgaza|,t| i ;':iT il:: Belgarl Nala, Thana Balkb ' |^|ti Hagar» leh.. & Distt.,Korba.^ (ia.i:l|)

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yersas

SOSS-SBESSGStSI:

Smt. siinaer :Baj-:,, B/o ^KiaEt-t-k ; |||, Rani, aged about. 24 ^yesirs, ; , - ii'w Kesiaen-t of Vj.i.I.1,.^'EAuri, EQsV.^:, ^iSi'! TJ-tir, Tnana, ;Etiarslxa.;; ffte hs ^.Iwa ||||i Kbarsl-ya, Distt. Eai.gj Efa.,y».M

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.AggB&i. asSS%,iSSg?iG>S'. 28 .QB ...'BHK-.BIIjBq .Ai

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HIGH COURTOF CHHATnSGARH AT SlLl^ F.A. No. 74 OF 2000

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APPELLNT Kartik Ram Versus RESPONDENT Smt. Sunder Bai ORDER ^ Postfor^_/2/2010 Sd/K. Agarwal Judger~

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HIGH COVS.T OF CHHATTISGARH AT BILASPTJR

F.A. N0.740F2000

KartikRam

Smt. Stuider Bai

SmOLE BBNCH:- Hon. Shri N.K. Aganval, J

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PRBSBNT:-

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Shri Awadh Tripathi with Shri Sanjeev Bai-yare, Advocates, for appeUant.

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» None for respondent though served.

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(^--2-2010)

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Instant aplpeal is directed against fhe judgment and decree passed;by^{tfaeAdditfonalDistriGtJudge,KorbainCivilSuit} No. 35A/98 whereby and whereunder fhe appUcdtton |for divorce under Section 13 of Hlndu Marri^e Act, 1955 (briefly,^•Act') preferred^{by fhe appellaat hasbeen disinissed.}

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Adinittedly, fhe parties to fhe proeeedir^s were niarried|as per^{Hinducustomsandoutof thesaidwedtock,twofeffliale} cluldren namely Ku. Rulanani and Ku. Ushinani were l3o;m, wKo at present are ia the custody offhe respondent/wsife. The appeUant aad the respondent lived togefher as husband and wife fbr about 7-8 years and since fhereafter fhey are living separatety. It is also not ui dispute that eariieri the appellant had filed a petition for restitution of coiijugal rights under Section 9 of fhe Acte The same was registpf-ed •as Civil Suit No. 21-A/96. The petition was dismissed by the Additional District Judge yide its judgment and decree d^ted 12-10-1998. : ! !

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According to tbe appeUant, the respondent is not living wjith htai ft>r 2 years and-she also does not want to live withilum, and fherelbre, the appellaiit is entitled ftu- the deCT^e!of divorce. ' • |

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The respondent by fifing her written statemetit alfhriug admitted that ste is notlmii^with lierhusbandfbr Zyears, but she had pleaded fhat she is ready to live with|her

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husband at any place but for Balco where the appellant is residing wifh his fafher because her fafher-in-law is havins evfl eye on her, got recentiy inarried, Uvtng with his newly wedded wife and wants matrmionial relfltionship wifh her. She had further pleaded that at present she is living with her cl-uldren in.fhe matrimonial home ofvillage Tiur.

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Leamed trial Court franied issues. Bofh the parties led evidence.

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Leamed^'I'ribunal on a Glose scrutiny of evidence led, material placed and submissions inade, dismissed the petition^{holdingthattherespondentis} justified^{tnlivin^} separately from her husband.

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Shri Sanjeev Banjare, leamed counsel for fhe appeHant could not dispute that fhe appeUant's earlier petition for restitution of conjugal right-s has been'dismissed by fhe Court after recording a finding fhat the behavior of appellant's father wifh fhe respondent is not Uke a father-inlaw and is havtng evil eye on her. Therefore, fhe respondent is entitled to live separately from fhe appellant till he is Uvtng with his father becduse in this situation, she caiinot be compelled to live wifh her fathfir-in-law at Balco. ;This Gnding recorded tn fhe earlier petition had attained finality as admittedly no appeal has been preferred by the appeUant against the sald judgment and decree. Now iminediately after dismissal of (he petition for restitution of conjugal right, the appeflant has preferred the mstant petition for divorce on the ground of desertion under Section 13(l)(ib) of theAct. | ;

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Under Sectlon 13(l)(ib) oftheAct, the petitioner hasto|prove |1)^{thattherewasdeserttonforacontinuous} periodiof² years^unmediately precedtng^fhe presentation^{of fhe} petition (2)^{thedesertionwaswithoutanycauseandwithoutthe} consent or agaiast fhe'wish of the petitioner. In Lacf^nan Uttcmichtmd Kirplcud^-v- Meena @ IHbta reported itaj AIR 1964 SC 40, the supreme Court has observed fha.t|in its essence desertion means the mtentional permlaaent forsaMag and abandonment of one spouse by fhe| ofher

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without that other's consent and witfaout reasonable cause. The essence of desertion is a total repudiation of the obligation of marriage or an abandomnent of the deserted spouse with an intention to bring fhe cohabitation pennanently to an end. Mere physical separation between the spouses or mere tntention of one to separate froia fhe ofher wifhout any overt act would not by itsetf amount to desertion. Under fhe m.atnmonial law, desertion is not only > a physical act but also mvolves essentially a mental act. To prove fhe ground of desertion, fhe appeDant has to establish 4 essential conditions (ij factum of separation, (ii) animus deserendi, (iii) absence of his or hcr consent and (iv) absence of his or her conduct g.viag reasonable cause to the deserting spouse to leave the matrimonial home {Lcicfuna.n Utteunchdnd Kirpla.ni -v- Meena @ Mote (svpra).

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By applying fhe aforesaid proposition ojf law in (he facts of fhe present case, it is ciystal clear fhat fhe appeUant has not niade out any case for grant of divorce under Section 13(l)(b) oftheAct i.e. on the g'ound ofdesertion. In earlier petition filed by fhe appeUant against the respondent for restitution of conjugal rights, the finding has been recorded that the respondent is entitled to live separately from the appellant tUl hc is livtng with his fafher because in the situation, she cannot be compeUed to Uve with her father-uilaw at Balco as he is having evil eye on her. Indisputably, this finding had attained finality. To prove desertion, one essential element is required to be proved is absence of conduct givmg reasonable cause to the deserting spouse to leave inatrimoi-ual home. This importaat aspect has already been decided against fhe appellant and fhe same had attaured finality and fhe said findir^ m the earlier petitkin operates as res Judicata in the present case. Stiffl fhe appeUant is living with his father.'The respandent has not shown any intention to bring cohabitation to an end permanenfly {aninuis deserend^ and she is ready to lite with appeUant at any place but for the place where fhe appeUant is residing with his fafher.

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In view of above, the Gourt below was justified in arrivmg at a conclusion fhat the respondent has not deserted fhe appeUant and fhe appeHant is not entitled for any decree ofdivorce.

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In view of above, appeal being devoid of substance deserves to be and is hereby dismissed.

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No order as to costs.

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Sd/-N. K. Agarwal Judge'~~

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11-i !i !

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I l' i .i

Kartik Ram v. Smt.Sunderbai

Case brief

What is this about?

What did the court decide?

Kartik Ram v. Smt.Sunderbai

Case brief

What is this about?

What did the court decide?

What the court decided

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