Amarjeet Singh v. Amarjeet Kaur

order dismissing his application under Section 148 of the C.P.C. He neither MAT.APP.(F.C.)No.l28/2014 made nor pressed any objection with regard to the verification of the affidavit. The matter about which the deponent has deposed in the affidavit relate to incidents to which she has personal knowledge relating to the marriage of the parties. Respondent has established the cruelty meted out to her by the appellant entitling her to decree of divorce.

¶23On the contrary, the respondent was extensively cross-examined on the merits of the allegations made by her in cross-examinationwhich began on December, 2012 and ended on 5^ March,2014 sparingseveraldatesover a period of one year and three months.

¶24So far as proofof the documentsis concerned,the appellanthas nevertakenany objectionto the manneror mode of proofthereofand has waived any objectionthat he could have had to the filing of photocopies. It is trite that a party may wave formal proof of documents.

¶25It is equallywell settledthat if foundtrustworthy,the courtcan pass its judgment on the solitary evidence of the party. It is MAT.APP.(F.C.)No.l28/2014 Page 18 of21 completely umiecessary to burden record with repetition and corroboration. In the lightofthe above discussion,we see no reasonat all for disbelieving the unrebutted and controverted evidence of the respondenton affidavit.

¶26We may note thatbeforeproceedingto hearthe parties,we had in fact requiredthe appellantto appearin personto examinewhether any negotiationwas possible. The appellanthad categoricallyrefused the same. We have proceededto hear the appeal on merits only thereafter.

¶27We may note that the Family Courthas rejectedthe decreeof divorceon the groundofdesertion. Ithas beenheld that desertionis ''notprovedagainstthe respondentas respondenthad been residing in the same duplexflat along with his mother". It is trite that desertionmeansintentionallyforsakingand abandoningof one spouse permanently without the other's consent and without reasonable MAT.APP.(F.C.)No.l28/2014 Page19 of21 cause. Such abandonment or forsaking of the spouse does not necessarilyrequirethatthe spousesmustbe livingin two separate properties. Two personsmay be residingin differentportionsofthe samehousewithouthavingany cohabitationor matrimonialrelations.

¶28So far as matrimony is concerned, it not only requires cohabitation, it requires discharge of conjugal and matrimonial responsibilities. Abandonmentalso takes into its compassnot only abandoningasharedresidencebutwouldtakeinto its spiritand scope, mental and physicalabandonmentof the other spouse. Leavingthe matrimonialhome is only one of instancewherefromthe necessary intentionto deserta spouse may be established. In fact desertionis relatableto the matrimonialrelationshipand not to habitationmthe matrimonialhome alone. Thus, merelybecauseone ofthe spousesis livingataseparateplaceas perajobrequirement,cannotbetreatedas tantamountingto desertionofthe otherspousewhereasacouplemay be living under the same roof without any conjugal relations evidencing desertion of one spouse by the other. This therefore dependsonthe factsandcircumstancesofeachcase. MAT.APP.(F.C.)No.128/2014 Page20 of21 i

¶29For all these reasons, we find no merit in this appeal which is dismissed with costs which are quantified at ?50,000/-. JANUARYS ,2015 Aj MAT.APP.(F.C.)No.l28/2014 fGITA MITTAL) »GE (J.R. MIDHA) JUDGE

$-2 *IN THE HIGH COURT OF DELHI AT NEW DELHI MAT. APP.(F.C. Wo. 128/2014 Reserved on: 27^*^November. 2014 Date of Decision:5^^ January. 2015 ANIARJEETSINGH Appellant Through: Mr. Rajan Khosla, Adv. with appellant in person. versus AMARJEET KAUR Respondent Through : Mr. H.S. Kohli, Adv. CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA GITA MITTAL. J 1. The appellantassailsthe judgmentand decree dated 24^*^ July, 2014 on three grounds which have been pressed before us. It is firstly contended that the judgment and decree is premised on the solitary testimony of the respondent who examined herself in support of her case and did not produce any other witness. The second ground pressed before us is that the impugned judgment and decree is based MAT.APP.(F.C.)No. 128/2014 on irrelevant incidents relating to the employment record of the appellant. It is lastly urged before us that the affidavitfiled by the respondentis not in accordancewith law and ought to have been disbelieved completely. 2. The respondenthas appearedon caveat. We had calledfor the record of HMA No.658/2011 from the Family Court which has been placed before us. We have heard counsel for the parties and scrutinized the record as well. 3. The matrimonialallianceof the parties was finalizedthrough a matrimonial classified advertisementpublished in the Tribune after a formal meeting at Hisar, Haryana in the first week of November, 1993. The marriageof the partieswas solemnizedas per Sikh rites and ceremonieson 30^^ December,1993 at Hisar after an engagement ceremonyon 29^*" November,1993. From their marriage,the parties were blessed on 2"^^ March, 1995 with a daughter, presently aged about 191/2 years, and on 15^'' December, 1998 with a son, presently aged about 17 years. MAT.APP.(F.C.)No.128/2014 Page2of21 4. Itis submittedthat on 2"^ June,2006, the appellanthad wilfully withdrawn from the society of the respondent and the parties have not cohabited as husband and wife ever since. 5. On the grounds of extreme torture and cruelty, the respondent ('wife' herein) in July, 2010 filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 which is still pending before the Mahila Courts in the District Courts, Saket, New Delhi. In addition,on 11*^ August,2011, the respondentfiled a petition under Section 13(l)(ia) and (ib) of the Hindu Marriage Act, 1955 praying for dissolution of their marriage by a decree of divorce on grounds of extreme cruelty and desertion. 6. From the record of the case, we may briefly notice certain proceedings in the divorce petition which was registered as HMA No.658/2011 and placed before the Principal Judge, Family Court, Dwarka, New Delhi. The appellant herein entered appearance in personwith counselon the 17^ ofOctober2011 and was grantedtime to file the written statement within the prescribed statutory period on this date. The parties were sent to the counsellor for counselling and MAT.APP.(F.C.)No. 128/2014 ; the matter was directed to be posted for issues on the 19* of December 2011. As the court did not conduct proceedings on the next date, the case came to be adjournedto 31®^ January,2012 when again the appellant appeared in person. Instead of filing the written statement,the appellant filed an applicationunder Section 148 read with Section 151 of the C.P.C. seeking enlargementof time for filing the written statement with supportive documents. The Family Court heard the appellanton the applicationwhen it was informedthat the written statement was not yet ready and merely a draft had been prepared. The respondentopposedthe applicationpointingoutthatin accordance with the court orders, all documents stood supplied to the respondentas back as on 24* October, 2011. The court noted that since more than three months had already expired, in view of the statutory prescriptionunder Code of Civil Procedure, extensionof time afterexpiryof90 days couldnot be given. The courtalso found that there w