Rakesh Vats v. Ms. Sharda Vats

judgment.

¶15The difficulty in this case is that though the factum of separation is there but the marriage cannot be dissolved, as the appellant had failed to establish animus deserendi on the part of the respondent. As regard the first question, undisputedly parties are residing separately since 2000, therefore, this question does not require any more consideration hence, the same is answered affirmative and it is held that they are residing separately.

¶16So far other question is concerned, this court has to consider the evidence to find out the respondents

intentions for residing separately; whether she has animus deserendi against the appellant or residing separately with sufficient cause because of the act of the appellant.

¶17No evidence apart from his own testimony by way of affidavit was led by the Appellant. Appellant himself stated in his appeal that after the marriage, they have decided to settle in USA as per settlement. Thus, there was justifiable excuse on the part of the respondent to forsake her husband. Relevant finding of the Tribunal with regard to the desertion are as under:- "Now coming to the second condition i.e., animus deserendi, I am of the view that there is no material on the record to conclude that the respondent has deserted the petitioner with the intention to put her marital relations with the petitioner to an end because in para 4 of his petition, the petitioner has admitted that after the marriage, they have decided to settle in USA as per settlement. This averment on the part of the petitioner goes to show that the refusal of the respondent to come back to India to join the company of the petitioner is not without any reasonable cause or justification and rather it was with the consent of the petitioner himself. In view of these facts and circumstances of the case, no interference can be drawn that the respondent has been living separately in USA with the intention to bring her marital relations with the petitioner to an end."

¶18In this case, it cannot be held that wife will be considered to have deserted the husband without sufficient reasons. The material on record does not show that the wife lived away from the husband without sufficient cause.

¶19Mere separation is insufficient to constitute desertion. Thus, the Court cannot go on sole deposition of the litigant. The allegation of cruelty/desertion leveled against the respondent wife hinge mainly on the narration of facts in the affidavit.

¶20In Chetan Dass v. Kamla Devi, AIR 2001 SC 1709, the Apex Court has observed that:- "Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission as a straitjacket formula for grant of relief of

divorce. This aspect has to be considered in the background of the other facts and circumstances of the case."

¶21Merely because the Respondent is ex parte, no adverse inference would be drawn. The Appellant has to stand on his own legs to prove the ground of divorce, even if the Respondent is ex parte.

¶22Thus, the submissions made by learned counsel for Appellant cannot be accepted in the facts and circumstances of the case as it appears that the appellant is the one who has left matrimonial home. The Appellant cannot be permitted to take advantage of a situation brought about by the appellant himself and seek divorce on the ground of desertion.

¶23For the above reasons, I find no infirmity with the impugned judgment of the Additional District Judge.

¶24The appeal therefore fails, and is accordingly dismissed.

V. B. GUPTA, J. May 19, 2008 Bisht

* HIGH COURT OF DELHI : NEW DELHI MAT APPEAL No.43 of 2005 % Judgment reserved on: 13th May, 2008 Judgment delivered on: 19th May, 2008 Rakesh Vats S/o Rajinder Narayan Vats R/o 10/17-A, Sidh Kunj Apartment, Near Yog Maya Mandir, Mehrauli, New Delhi. …..Appellant Through: Mr.Prasoon Kumar, Adv. Versus Ms. Sharda Vats W/o Sh.Rakesh Vats D/o Sh.H.L.Dhiman R/o 3077 Kingston Ct. Stream Wood, IL 60107 U.S.A. …..Respondent Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. The present appeal under section 28 of the Hindu Marriage Act, 1955 (for short as the "Act") read with Order XLI Rule 1 of Code of Civil Procedure, 1908 has been filed by appellant against the ex parte judgment dated 23.05.05 passed by Sh. K.S.Pal, Additional District Judge, Delhi. 2. Brief facts which are necessary to dispose of this appeal are recapitulated. The marriage between the appellant and the respondent was solemnized on 26.04.86 at New Delhi as per Hindu rites and ceremonies. After the marriage, the appellant went to U.S.A. in the year 1987 as per settlement between the parties but he could not settle there because of harassment and torture by the respondent and her family members and as such he come back to India in the year 1990 and thereafter the appellant in order to maintain his matrimonial obligations kept on going to U.S.A. in the year 1990, 1994 and 1999 but could not settle there because he was treated so badly by the respondent and his family members that the appellant was compelled to return to India every time, without respondent accompanying him. It is further stated that out of this wedlock, a male child named Sohit was born on 17.11.99 and after the birth of this child, the respondent became more violent towards him and finally he came back to India in 2000 and since then he has been living in India and the respondent has refused to join his company by coming to India despite his sincere efforts and requests made by him. 3. In view of all the circumstances, the appellant filed a divorce petition under section 13 of the Act. Summons was issued to Respondent for appearance but respondent never appeared and accordingly, she was proceeded ex parte. 4. Vide impugned judgment, the learned Trial Court dismissed the divorce petition holding that the appellant was not entitled to seek divorce against the Respondent on the ground of "Desertion" as contemplated under section 13 (1)(ib) of the Act. 5. It has been contended by the Ld. Counsel for the Appellant that the Appellant had suffered a severe torture and harassment from the Respondent side and hence was unable to restore his family obligations or matrimonial life; the Appellant in the compelling circumstances was left with no option but to live separately from his family. The case of the Appellant is squarely covered under the mental cruelty defined and provided under section 13 (i)(a) of the Act but the Trial Court failed to appreciate this fact. The Trial Court ought to have seen the fallacy of the fact that despite being served and knowing about the seriousness of the matter, the respondent avoided to appear in the Court or to give any satisfactory reply to the same which is a clear indication of willful neglect of the Respondent. Further the "animus desirendi" has very well been established on the Respondent as she had made the life of the appellant hell, and compelled him to abstain from establishing the conjugal rights, as the respondent never opted to return to her matrimonial home and nor she let the appellant resume the marital life at her place. At one time she left the matrimonial home and on the other hand she did not allow the Appellant to live with her thereby making such a situation in which the Appellant is compelled to live alone or to remain in desertion. 6. Ld. Counsel in suppo