Dismissed

Smt. Sangeeta Sahu v. Ishwar Sahu

Chhattisgarh HC14 Jun 2024FA(MAT)/243/2022

Case brief

AI extract

What is this about?

The High Court dismissed the wife's appeal against a Family Court decree granting divorce on grounds of desertion under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The Court upheld findings that the wife permanently severed ties without reasonable cause. The Court also increased monthly maintenance from Rs. 4,000 to Rs. 10,000 under Section 125 Cr.P.C. due to inflation.

What did the court decide?

Maintenance increased to Rs. 10,000 per month to be paid by the husband to the wife and children.

Smt. Sangeeta Sahu Vs Ishwar Sahu — Matrimonial and Divorce | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA(MAT) No. 243 of 2022

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Smt. Sangeeta Sahu W/o Shri Ishwar Sahu Aged About 29 Years R/o Village Pratappur, Tahsil Navagarh, District Bemetara (C.G.) ---

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Appellant

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Versus

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Ishwar Sahu S/o Shri Kashiram Sahu Aged About 27 Years R/o Village Karchuva, P.S. Bemetara, Tahsil And District Bemetara (C.G.) --- Respondent

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For the Appellant : Mr. Anish Tiwari, Advocate For the Respondent : Mr. Sanjeev Kumar Sahu, Advocate

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Hon'ble Shri Justice Goutam Bhaduri, & Hon'ble Shri Justice Mrs. Rajani Dubey

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Judgment on Board

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(15.06.2024)

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The following judgment of the Court is dictated by Goutam Bhaduri, J.

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1. The present appeal is against the judgment dated 14.09.2022 passed by the Judge, Family Court, Bemetara, Distt. Bemetara in Civil Case No.23A/ 2022 whereby the suit preferred by the husband (respondent herein) under section 13(1) of the Hindu Marriage Act, 1955 seeking decree of divorce on the ground of cruelty was allowed. Hence the wife filed this appeal.

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1. The husband filed the petition with the averments that the parties got married on 15.04.2013 at Amarkantak and out of wedlock, a child was born. Initially, the wife remained in the company of husband for two years. Thereafter, she deserted the husband and as and when she used to go her parental home with the intervention of elders of family as also the Society members, the meetings were being convened and as a

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result of such meetings, she used to come and stay in matrimonial house for 10-15 days and again she used to leave matrimonial house. The husband has stated that the wife is staying in her maternal home since 2015 and despite all efforts made by him, she did not return. It was further stated that in a proceeding initiated under section 125 CrPC, he was paying Rs.4000/- per months towards maintenance of wife and child. The husband further stated that during her stay with him, she made a false report before the Police which was found to be wrong and since November, 2015 she is living separate. He has stated that earlier to filing of civil suit for taking divorce on 15.04.2013, an application was filed to declare the marriage as nullity u/s 11 of the Hindu Marriage Act, which was dismissed. Subsequently, the husband along with the community members tried to bring back the wife but she refused to join his Company. Therefore, she has deserted the husband knowing fully well and never wanted to resume marital ties. Consequently, the judgment and decree passed by the learned Family Court granting divorce is well merited, which needs no interference.

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1. The wife has filed reply and stated that initially the marriage was fixed with the elder brother of the husband but due to his sad demise, the marriage was performed with the present respondent. She further stated that she was subjected to physical and mental torture for demand of dowry and she was ousted from the matrimonial home by the husband and in- laws for demand of dowry for which a meeting was convened and further the family members physically assaulted her and despite all reports to the family and other elderly people, no improvement was seen and she was driven out of the house. It was further stated that earlier application was filed to declare the marriage as a nullity that too also causes mental torture to the wife, however, the same was dismissed. The wife stated that at one point of time, the husband along with his father came to their parental home and tried to

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get divorce and asked for signature on the document but she refused. However, thereafter, they did not turn back. She prays for setting aside the impugned judgment and decree.

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1. The learned trial Court on the basis of pleadings of the parties framed the issue of desertion as to whether the wife has deserted the husband for continuous period of atleast two years immediately preceding the date of filing the petition on 15.03.2022. The further issue of cruelty being meted out by the wife towards husband was also framed. Both these issues were answered in affirmative. The husband examined himself as P.W.1 and his father Kanshiram Sahu as P.W.2, Dheluram as P.W.3 and Bharos Sahu as P.W.4. The wife examined herself as D.W.1 and her mother as D.W.2. The learned family Court after evaluating the entire pleadings and evidence, found that the wife has deserted the husband for more than 2 years and granted decree of divorce. Hence, this appeal.

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1. Learned counsel for the appellant-wife would submit that in document Ex.D which is a reply filed under section 125 CrPC and Ex.D-2 an affidavit filed in earlier proceeding, the status of wife was shown as a concubine which itself would show that the husband has caused mental cruelty toward the wife. He further submits that the statement of wife remains unrebutted which shows that she was subjected to physical and mental torture for demand of dowry, therefore, she could not join back. He further submits that if such assurance of security was given, she would have joined him but under the circumstance when the life is under threat, she cannot again join therefore that fact cannot be said to be desertion and hence the decree of divorce granted on the grounds of desertion and cruelty is called for interference.

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1. Per contra, learned counsel for the respondent would submit that the statement of wife would go to show that she does not want to join him

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and even false allegations have been made against the husband, therefore, that would also amount to cruelty. He would further submit that when counseling took place, the wife without any reason refused to join back the company and the statements of P.W.3 Dheluram and P.W.4 Bharos Sahu would show that they wanted to bring back the wife but she had refused. Consequently, the findings arrived at by the learned family court is well merited which do not call for any interference.

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1. We have heard learned counsel for the parties. The primary averments are based on desertion. The husband states that after the marriage, the wife left the matrimonial house in the month of November, 2015 whereas the wife stated that he was subjected to torture for demand of dowry. The husband states in his statement before the Court that he wanted to take back his wife and counseling also took place on this aspect in Women Cell Bemetara, but she did not join back. She has further stated that he was subjected to cruelty as false reports were made and allegation of dowry was clamped.

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1. The wife in her statement stated that she was subjected to torture for demand of dowry and after physical assault, she was ousted by the husband. She admits the fact that she had made report under the domestic violence Act to the Women Cell but despite that no improvement was there and she was driven out. With respect to the report made, in cross examination of wife at Para 7, she stated that though she made a report for demand of dowry against the husband and in-laws yet the police did not take any action and stated that the report was lodged the and case was registered. Nothing is before us to appreciate those fact that on the report of the wife a case for demand of dowry u/s 498-A of IPC was registered. In absence of those evidence that it is the copy of the charge sheet or any report, the averment made

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by the husband appears to be correct that false reports were made by the wife against the entire family members. When a report of like nature is made wherein the allegation of demand of dowry or torture are attributed and when those allegations are found to be false then in such a case lodging of false report would amount to cruelty.

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1. Now coming back to the point of desertion, the husband stated that the wife deserted him in the month of November, 2015 and despite counseling took place, she did not return. The statement of father P.W.2 Kanshi Ram Sahu also reiterates the same thing that he along-with the society member went to bring back her daughter-in-law along with his son but she refused to come. Similar statements have been made by the villager Dheluram Sahu (P.W.3) and Bharos Sahu (P.W.4). Both the villagers have categorically stated that they along with family members of the husband went to village Pratappur to bring back the wife but she did not return. The statement of Dheluram would show that at the relevant time when they went to bring back, he was Secretary of Bhansuli Region. In the cross examination of these witnesses, nothing has been eliminated to negate their statements.

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1. In the statement of the wife (D.W.1) at para 8 she states that she was beaten and ousted by her husband and if the husband does not come to pick up her then how she will go to him. She further categorically states that even if her husband wants to take her with him, she will not go with him. She has further categorically stated that neither she wants to go to her husband’s house nor she wants to wants to give divorce. She has denied the fact that she wants to harass her husband mentally and physically by not divorcing him and not going with him. At para 12 of her cross examination, she states that now if the plaintiff registers the land in her name and wants to take her away, she will not go with him. She has repeated that she was beaten and ousted by the husband and

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her life is in danger. She further states that she did not give any report regarding assault and just made a report for dowry. However, she again says that she has reported to police regarding assault. She has denied the suggestion that she is a woman of stubborn nature. Lastly a question was put to the witness (D.W.1) to get her opinion in the following terms :

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“ Question : Whatever conditions you put, whatever you say, whatever you want to get written you can get it written but the plaintiff wants to keep you with him on every condition, what do you say on this ?

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The wife (D.W.1) has answered thus :

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Answer : I do not want to go to live with the Plaintiff.

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Thus reading of evidence of wife would show the wife has straight away stated that she does not want to join the company of husband.

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1. The case law of “desertion” has been summarised by “Rayden on Divorce” which is a standard Work on the Subject. It explains that “Desertion” is separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse. The said case law has been reiterated by Hon’ble Supreme Court in Bipinchandra Jaisinghbai Shah v. Prabhavati AIR 1957 SC 176. Para 10 is relevant and quoted below :

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(10) What is desertion? "Rayden on Divorce" which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:-

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"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the

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consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".

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The legal position has been admirably summarised in paras 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.) Vol. 12, in the following words:-

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"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

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Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

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The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it

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must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a crosscharge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".

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Thus the quality of permanence is one of the essential elements which differentiates desertion from wailful separation. If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.' 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 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 the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout

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the course of the three years immediately preceding the institution of the suit for divorce; under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed 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 separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if

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a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial some with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson(1) may be referred to:-

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"These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution...............

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1. Translating the aforesaid principles into the facts of this case, the physical departure has already been made by the wife as it would be apparent from her statement which was recorded before the Family

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Court on 02.09.2022 wherein she has deposed that she mentally did not want to reunite with the husband. In sum and substance, the evidence of wife would reveal the following two essential elements - (i) the factum of separation and (ii) the intention of wife to bring cohabitation permanently to an end (animus deserendi) inasmuch as the wife has straight away refused to join the company of husband despite all efforts made by the husband.

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1. In view of the foregoing discussion, we are of the considered view that the judgment and decree passed by the learned Family Court granting divorce in favour of the husband is well merited, which does not call for any interference. Accordingly, the appeal is dismissed.

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Now coming to the question of grant of alimony, no documents have been filed to ascertain the financial status of the parties and during the course of arguments, it is submitted that the husband is carrying on agriculture. The concept of Supreme Court is that the wife and children should not be left in a hapless state of distress, destitution and starvation. The evidence would show that Rs.4000/- is being paid to the wife and children under section 125 Cr.P.C. Considering the present inflation rate and the price index, we deem it appropriate to increase the maintenance from Rs.4000/- to Rs.10,000/- per month to be paid to the wife. Therefore, the husband shall henceforth pay Rs.10,000/- per month towards maintenance of wife and children. A decree be drawn accordingly.

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Sd/Sd/(Goutam Bhaduri) (Rajani Dubey) Judge Judge

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Rao

Smt. Sangeeta Sahu v. Ishwar Sahu

Case brief

What is this about?

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Smt. Sangeeta Sahu v. Ishwar Sahu

Case brief

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