not always necessary that one of the spouse should
have left the company of the other as desertion
could be proved while living under the same roof.
Desertion cannot be equated with separate living
by the parties to the marriage. Desertion may also
be constructive which can be inferred from the
attending circumstances. It has always to be kept
in mind that the question of desertion is a matter
of inference to be drawn from the facts and
circumstances of each case.”
Thus keeping in view the aforesaid settled position of
law that there can be no desertion without animus deserendi and
it implies not only factum of separation but also intention to
separate permanently and to put an end to matrimonial
relationship and cohabitation, on scanning of the materials on 16
record, we found that the conduct of the appellant in leaving the
company of her husband and their small children and living
separately for so many years since 2007 for pursuing her socalled
political ambition clearly indicates that she had deserted
the respondent without reasonable cause and without his
consent and against the wish of the respondent.
IN THE HIGH COURT OF ORISSA, CUTTACK
MATA NO. 104 Of 2011
Usharani Pradhan V Brajakishore Pradhan
P R E S E N T:-
MR. JUSTICE VINOD PRASAD
AND
MR. JUSTICE S.K. SAHOO
Date of Judgment-19.11.2015
S. K. Sahoo, J. “A home with a loving and loyal husband and wife
is the supreme setting in which children can be
reared in love and righteousness and in which
the spiritual and physical needs of children can be
met.”
- David A. Bednar 2
This case depicts the sordid episode of the life of a
woman who spoiled her homely environment and family
relationships running after the politics and politicians forgetting
her solemn duties and responsibilities of a matrimonial life and
neglecting her husband and children. She was cautioned and
reminded of her pious obligations but she was mesmerized so
much by the political thoughts and quite adamant that she failed
to understand the consequence of her negligent attitude. When
she faced the reality and started realizing her wrongdoings, by
that time it was too late and much water had flowed under the
bridge.
This matrimonial appeal has been filed by Usharani
Pradhan (hereafter “the appellant”) under section 28 of Hindu
Marriage Act, 1955 read with section 19(1) of Family Courts Act,
1984 challenging the impugned judgment and order dated
23.09.2011 passed by the learned Judge, Family Court, Puri in
Civil Proceeding No.162 of 2010 in allowing the petition filed by
Brajakishore Pradhan (hereafter “the respondent”) under section
13 of Hindu Marriage Act, 1955 and dissolving the marriage
between the parties with a decree of divorce subject to payment
of alimony of monthly maintenance @ Rs.3,000/- by the
respondent-husband to the appellant-wife.3
2. It is the case of the respondent-husband that he
married the appellant on 22.05.1991 in accordance with the
caste, custom and rites and both of them stayed together as
husband and wife and out of the wedlock, they were blessed with
a daughter and a son. It is the further case that since the
appellant was interested in political activities, she neglected the
family and she used to return back home in the late hour of the
night. Even though the respondent raised objection but the
appellant did not bother about the same. She was not preparing
food for her family members and behaving very badly with her
husband and even gone to extent of instituting false police cases
against him for which he was taken into custody. The appellant
left her in-laws’ house on 07.03.2007 and started residing at
another place. After desertion of the appellant for a period of
more than two years, the respondent instituted a divorce
proceeding on the ground of cruelty and desertion.
3. On being noticed, the appellant appeared and filed her
written statement and denied the averments made in the divorce
petition. She put forth a case that after her maternal aunt
expired giving birth to a female child, she and her husband
adopted that child as their own daughter but when both of them
were blessed with a daughter and son, the respondent lost
interest in the adopted child and pressed the appellant to hand 4
over the child back to her father. As the appellant did not agree
to such proposal of her husband, there was dissention between
the couple and for that reason the respondent started taking
liquor and assaulting the appellant mercilessly causing serious
injuries for which she instituted G.R. cases. The respondent also
started maintaining distance from the appellant as a result of
which their relationship deteriorated. It is her further case that
after being mercilessly assaulted, she was driven out of her inlaws
house with her adopted daughter for which she was
constrained to take shelter in her paternal place at Jatani. The
appellant denied the allegations leveled against her by the
respondent regarding cruelty and desertion and it is her case
that such allegations have been concocted just to get a decree of
divorce and prayed to dismiss the divorce petition.
4. The learned Family Judge formulated the following
points for determination:-
(i) Whether the respondent was entitled to divorce the
appellant on the ground that she had treated him with
cruelty?
(ii) Whether the appellant had deserted the respondent
for a continuous period of not less than two years
immediately preceding the presentation of the petition?5
5. In order to prove his case, the respondent examined
himself as P.W.1 and proved certain documents. Ext.1 and Ext.3
are the certified copies of the FIR, Ext. 2 and 4 are the certified
copies of the charge-sheet, Ext.5 series is the notice issued by
Mahila Commissioner and Ext.6 series is the cash receipt issued
by Sovaniya Sikhashram.
The appellant examined himself as R.W.1.
6. The learned Family Judge while discussing the evidence
on record has been pleased to observe that the case of the
appellant that the respondent had kept the seized articles in the
house of a Muslim at Tiadi Sahi which was seized by police is not
correct inasmuch as the articles were seized from the house of
the respondent as per seizure list and was left in the Zima of the
appellant.
It was further held that the allegation that the
respondent had history of contact with home guard Netramani
Dei has not been substantiated anywhere rather such allegation
amounts to cruelty to her better half. It was further held that the
claim of the appellant-wife about her separate living since 2009
or 2010 is contradicted by the recital in the FIR vide Ext.1 which
indicates that they were living separately since 2007. It was
further held that living in another house in the same town away 6
from her husband is humiliating to the husband and it also
amounts to cruelty.
The learned family Judge further held that the appellant
had deserted her husband since the year 2007 by living
separately from her husband and children which might be due to
her involvement in Mahila Samiti work or any other office work
at Puri beyond the normal office hour. It was further held that it
is abundantly clear that the appellant had deserted her since
2007 for a period of more than two years by the time of filing of
the petition in the year 2010 and she had also subjected her
husband to cruelty beyond repair and toleration with
unsubstantiated allegation of involvement with another woman.
7. On 29.10.2015 both the spouses and their children
were present before us in person. We had a long deliberation
with each of them and when we asked the children, who are
staying in the company of their father as to whether they are
interested to stay with their mother, both of them bluntly denied
and stated that when they were small kids, their mother had left
them and their father is treating them with all care and affection
and they are prosecuting their studies and the girl is staying in a
hostel and her father used to visit her regularly. Though the
appellant expressed her willingness to stay in the company of
her husband but the manner in which she responded to our 7
query indicated that she had also no real inclination to stay in
the company of her husband. The respondent also denied to stay
in the company of the wife and according to him, he and his
children are living peacefully and happily and they do not want
any further disturbance in their life.
8. The learned counsel for the appellant-wife while
challenging the impugned judgment and order of the learned
Family Judge contended that there was no proper conciliation
which is mandated in the statute and the factum of desertion as
alleged has not been proved with cogent evidence. It was also
urged that the learned Family Judge has failed to appreciate that
the respondent was torturing and humiliating the appellant and
inspite of that she was living with her husband and looking after
the children. It was further urged that when the appellant is still
interested to live in the company of her husband and children to
save her marriage, it was not proper on the part of the learned
Family Judge to pass a decree of divorce in favour of the
respondent and it would also not be proper for this Court to give
a stamp of approval to such a decree.
The learned counsel for the respondent on the other
hand while supporting the impugned judgment and order
contended that the findings are based on the materials available
on record and from the evidence, the respondent appears to 8
have discharged his burden of proof regarding desertion by the
appellant. It was further urged that the manner in which the
appellant neglected to perform her duty as a wife, as a mother
keeping high ambition of becoming a politician and also
instituted false cases against the respondent after deserting him,
the Family Judge was quite justifed in granting decree of divorce.
9. Adverting to the contentions raised by the learned
counsels for the respective parties, perusing the materials
available on record and the documents proved by the
respondent, we find that the appellant had instituted two police
cases i.e. one in the year 2005 and the other in the year 2007
which led to the arrest of the respondent. The case of the
appellant that she was driven out of the house in the year 2009
which she had pleaded in her written statement as well as in the
year 2010 which she has stated in her evidence appears to be
not acceptable in view of the institution of aforesaid two police
cases and the averments made in the F.I.R. The appellant
alleged that the respondent had illicit relationship with a home
guard namely Netramani Dei which she had mentioned in the FIR
dated 19.04.2007 vide Ext.1. This allegation has not been
substantiated by any evidence. The materials available on record
rather indicate that the appellant was involved in Mahila Samiti
activities for which she was neglecting her family. She did not 9
even bother to take care of her small children and deserted her
husband for which since last eight years, the respondent was
looking after the children with all care and attention and also
providing them good education. It further appears that the case
of the appellant is inconsistent with her pleadings and
contradicted by the two FIRs vide Exts.1 and 2.
10. Desertion of one of the spouses by the other for a
continuous period of not less than two years immediately
preceding the presentation of the divorce petition as well as
treating the spouse with cruelty are some of the grounds of
divorce.
According to the Explanation provided under Section 13
of Hindu Marriage Act, 1955, “desertion” means the desertion of
the one party by the other party to the marriage without
reasonable cause and without consent or against the wish of
such party and includes willful neglect of the petitioner by the
other party to the marriage.
In case of Adhyatma Bhattar Alwar –Vrs.- Adhyatm
Bhattar Sri Devi reported in AIR 2002 SC 88, it is held as
follows:-
“6. 'Desertion' in the context of matrimonial law
represents a legal conception. It is difficult to give
a comprehensive definition of the term. The 10
essential ingredients of this offence in order that it
may furnish a ground for relief are :
1. The factum of separation;
2. The intention to bring cohabitation permanently
to an end- animus deserendi;
3. The element of permanence which is a prime
condition requires that both these essential
ingredients should continue during the entire
statutory period;
8. The clause lays down the rule that desertion to
amount to a matrimonial offence must be for a
continuous period of not less than two years
immediately proceeding the presentation of the
petition. This clause has to be read with the
Explanation. The Explanation has widened the
definition of desertion to include 'willful neglect' of
the petitioning spouse by the respondent. It states
that to amount to a matrimonial offence, desertion
must be without reasonable cause and without the
consent or against the wish of the petitioner. From
the Explanation, it is abundantly clear that the
legislature intended to give to the expression a
wide import which includes willful neglect of the
petitioner by the other party to the marriage.
Therefore, 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 11
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 and their continuance
throughout the statutory period.”
In case of Savitri Pandey -Vrs.- Prem Chandra
Pandey reported in 2002 (1) Kerala Law Journal 193, the
Hon,ble Supreme Court held as follows:-
“7. "Desertion", for the purpose of seeking divorce
under the Act, means the intentional permanent
forsaking and abandonment of one spouse by the
other without that other's consent and without
reasonable cause. In the other words, it is a total
repudiation of the obligations of marriage.
Desertion is not the withdrawal from a place but
from a state of things. Desertion, therefore, means
withdrawing from the matrimonial obligations, i.e.,
not permitting or allowing and facilitating the
cohabitation between the parties. The proof of
desertion has to be considered by taking into
consideration the concept of marriage which in law
legalizes the sexual relationship between man and
woman in the society for the perpetuation of race,
permitting lawful indulgence in passion to prevent
licentiousness and for procreation of children.
Desertion is not a single act complete in itself, it is 12
a continuous course of conduct to be determined
under the facts and circumstances of each case.
After referring to host of authorities and the views
of various authors, this Court in Bipinchandra
Jaisinghbhai Shah v. Prabhavati ( AIR 1957
SC 176) held that if a spouse abandons the other
in a state of temporary passions, for example,
anger or disgust without intending permanently to
cease cohabitation, it will be amount to desertion.
It further held:
For the office 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 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 13
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
years period and the Bombay Act prescribed a
period of four years as a continuous period during
which the two elements must subsist. Hence, if a
deserting spouse takes advantage of the locus
poenitentiae thus provided by law and decide to
come back to the deserted spouse by the bona fide 14
offer of resuming the matrimonial home 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 refused to 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 other matrimonial
offence beyond all reasonable doubt. Hence,
though corroboration is not required is in absolute
rule of law, the courts insist upon corroborative
evidence, unless its absence is accounted for to the
satisfaction of the court.
8. Following the decision in Bipinchandra's case
(supra), this Court again reiterated the legal
position in Lachman Utamchand Kirpalani v.
Meena alias Mota ( AIR 1964 SC 40) by holding
that 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. For the offence of
desertion so far as deserting spouse is concerned,
two essential conditions must be there (1) the
factum of separation and (2) the intention to bring
co-habitation permanently to an end (animus 15
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. For holding desertion proved, 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.
9. To prove desertion in matrimonial matter, it is
not always necessary that one of the spouse should
have left the company of the other as desertion
could be proved while living under the same roof.
Desertion cannot be equated with separate living
by the parties to the marriage. Desertion may also
be constructive which can be inferred from the
attending circumstances. It has always to be kept
in mind that the question of desertion is a matter
of inference to be drawn from the facts and
circumstances of each case.”
Thus keeping in view the aforesaid settled position of
law that there can be no desertion without animus deserendi and
it implies not only factum of separation but also intention to
separate permanently and to put an end to matrimonial
relationship and cohabitation, on scanning of the materials on 16
record, we found that the conduct of the appellant in leaving the
company of her husband and their small children and living
separately for so many years since 2007 for pursuing her socalled
political ambition clearly indicates that she had deserted
the respondent without reasonable cause and without his
consent and against the wish of the respondent.
The evidence on record further indicates that the
appellant treated the respondent with cruelty. She had not only
neglected to perform her matrimonial duties and obligations but
also instituted one after another case against her husband. The
manner in which she had conducted herself for so many years
and harassed and humiliated her husband has caused reasonable
apprehension in the mind of the respondent that it would be
harmful and injurious on his part to live in the company of the
appellant and that is the probable reason why the respondent is
not interested to live in the company of the appellant.
Section 13(1)(i-a) of the 1955 Act states that any
marriage solemnized can be dissolved by a decree of divorce on a
petition presented either by the husband or the wife on the
ground that the other party after solemnization of marriage had
treated the petitioner with cruelty.
The expression ‘cruelty’ has not been defined under
Section 13 of the 1955 Act. Law is well settled that the cruelty 17
may be physical or mental or both. The expression 'cruelty' has
got an inseparable nexus with human conduct or human
behaviour. It is always dependent upon the social strata or the
milieu to which the parties belong, their ways of life, relationship,
temperaments and emotions that have been conditioned by their
social status. The burden of proof lies on the aggrieved party to
make out a case of cruelty. The act of cruelty must be such which
would cause reasonable apprehension in the mind of the
aggrieved party that it would be harmful or injurious on his part
to live with the other party. A particular conduct which may
amount to cruelty in one case may not necessarily amount to
cruelty in the other case due to change of various factors and
different set of circumstances.
In case of Praveen Mehta –Vrs.- Inderjit Mehta
reported in AIR 2002 SC 2582, it is held as follows:-
“21. Cruelty for the purpose of Section 13(1)(ia) is
to be taken as a behavior by one spouse towards
the other which causes reasonable apprehension in
the mind of the latter that it is not safe for him or
her to continue the matrimonial relationship with
the other. Mental cruelty is a state of mind and
feeling with one of the spouses due to the behavior
or behavioral pattern by the other. Unlike the case
of physical cruelty, the mental cruelty is difficult to
establish by direct evidence. It is necessarily a
matter of inference to be drawn from the facts and 18
circumstances of the case. A feeling of anguish,
disappointment and frustration in one spouse
caused by the conduct of the other can only be
appreciated on assessing the attending facts and
circumstances in which the two partners of
matrimonial life have been living. The inference has
to be drawn from the attending facts and
circumstances taken cumulatively. In case of
mental cruelty, it will not be a correct approach to
take an instance of misbehavior in isolation and
then pose the question whether such behavior is
sufficient by itself to cause mental cruelty. The
approach should be to take the cumulative effect of
the facts and circumstances emerging from the
evidence on record and then draw a fair inference
whether the petitioner in the divorce petition has
been subjected to mental cruelty due to conduct of
the other.”
The case of the appellant has not been substantiated
and the contents of the FIR, the pleadings in the written
statement as well as her evidence in Court contradict each other.
Accordingly, we are of the view that the learned Family
Judge is quite justified in holding that the respondent has proved
desertion and cruelty against the appellant.
11. In view of what we have discussed above, we are of the
view that when the reconciliation between the parties is not
possible and the parties are living separately since 2007 and the 19
marriage has remained only for the name sake, the learned
Family Judge was justified in allowing the divorce petition and
therefore we do not find any infirmity, impropriety in the
impugned judgment. The quantum of alimony which was
awarded in favour of the appellant has not been challenged
before us. We therefore affirm the decree of divorce and the
dissolution of the marriage between the parties including the
payment of monthly maintenance @ Rs.3,000/- by the
respondent to the appellant from the date of the decree.
In the result, the MATA application stands dismissed.
The parties are directed to bear their own costs.
....…………………………
(S.K. Sahoo, J)
…………………………….
(Vinod Prasad, J)
Orissa High Court, Cuttack
The 19th November, 2015/Pravakar
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