1997 (11) TMI 543 - HC - Indian Laws

Appellant granted divorce on grounds of desertion, highlighting importance of evidence assessment in matrimonial cases.

Prafulla Kumar Tongya Versus Sarla

The appellant sought a divorce under Section 13(1)(ib) of the Hindu Marriage Act, alleging desertion by the respondent. The court found the respondent's ... - Issues Involved:1. Desertion by the wife.2. Restitution of conjugal rights.3. Assessment of evidence.4. Granting of divorce.5. Alimony and child support.Issue-wise Detailed Analysis:1. Desertion by the wife:The appellant sought a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act, alleging that the respondent had deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. The court defined 'desertion' using various legal dictionaries and judicial precedents, emphasizing that it involves the withdrawal of one spouse from the society of the other without consent, without intimation, and with the intention of not returning. The court found that the respondent's actions on 20th April 1987, when she took away all her belongings and marriage gifts from the appellant's house, along with her mother, indicated her intention to desert the appellant. The court noted that the respondent's claim that she was willing to cohabit with the appellant was not supported by her actions, as she did not make any genuine attempts to reconcile or cohabitate after the separation.2. Restitution of conjugal rights:The respondent had filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, which was dismissed on 5-10-88 due to default. The court observed that the respondent did not take any steps to restore the dismissed petition or challenge the dismissal order, indicating a lack of genuine intent to reunite with the appellant. The court also noted that the respondent did not file any subsequent petitions for restitution of conjugal rights, further supporting the appellant's claim of desertion.3. Assessment of evidence:The court criticized the trial judge's approach to assessing the evidence, describing it as 'slipshod and leading towards casualness.' The court emphasized the importance of a careful and probing approach in matrimonial cases, especially those involving allegations of desertion. The court found that the trial judge failed to properly consider the evidence, including letters written by the respondent's family members, which indicated the respondent's short-tempered and dictatorial behavior. The court concluded that the evidence supported the appellant's claim that the respondent had deserted him with the intention of not returning.4. Granting of divorce:The court concluded that the appellant had proved that the respondent had deserted him for a continuous period of more than two years. Consequently, the court set aside the trial judge's decree dismissing the matrimonial petition and granted the appellant a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act. The court emphasized that the trial judge had erred in his appreciation of the evidence, leading to an erroneous conclusion against the appellant.5. Alimony and child support:The court clarified that the child, Samkeet, born out of the wedlock, is entitled to alimony as provided by law, and the respondent is entitled to avail legal processes for child support until the child is a minor. The court also stated that the respondent is entitled to seek legal remedies for alimony. The court did not address the topic of allegations of torture, leaving it open for the respondent to pursue through appropriate legal channels.Conclusion:The appeal was allowed, and the decree of the trial judge was set aside. The appellant was granted a decree of divorce, and provisions for alimony and child support were clarified. The court emphasized the importance of a careful assessment of evidence in matrimonial cases and criticized the trial judge's approach to the evidence in this case.