RAJASTHAN HIGH COURT

                  Sandeep Kumar

                  Vs.

                  Smt. Sonila Kumar

                  D.B. Civil Misc. Appeal No. 1473 of 2004
                    (Rajesh Balia and Sangeet Lodha, JJ.)

                  21.08.2007

                  JUDGMENT

Rajesh Balia, J.

1. This appeal is directed against the order of Family Court, Udaipur dated
03.03.2004, rejecting the application under Section 13 of the Hindu Marriage Act for
dissolution of marriage filed by the appellant.

Marriage of the appellant husband and respondent was solemnized on 28.01.1993 at
Udaipur. According to averments made in the application dated 03.10.2000 he has
claimed dissolution of his marriage on the ground that the respondent wife has treated
the petitioner and has conducted herself with cruelty towards the appellant and has
deserted him by leaving the matrimonial home on 12.04.1996 and since then she has
not returned to matrimonial home without any just and reasonable cause.

2. The facts which have been proved are that soon after marriage the wife has desired
that the appellant should remain away from his parents and stay at Jaipur, with the
mother of the respondent wife for which appellant was not agreeable. Since the
appellant has declined to leave his parents as he was only son. She started creating
problem in the house and often used to leave matrimonial home for going to Jaipur
and would return only after forcing the petitioner to accept the unreasonable demands.

3. The final straw came on 12.04.1996 when the respondent went with his brother
Girish Bajaj to Jaipur and did not return. The appellant has gone to Jaipur on
17.06.1996 to bring his wife but found that she has gone to Delhi. He went to Delhi
but the wife refused to return with him. The appellant has entreated her by letters
dated 27.05.1996 and 04.06.1996 and also through telegram dated 03.06.1996, to
return to the matrimonial home, but she did not return. He also filed an application
under Section 10 of the Hindu Marriage Act, 1955, but the attitude of wife remained
negative and she has harassed the petitioner by filing false reply to the application
which also amounted to cruelty.

4. Thus, for the aforesaid reasons the petitioner has claimed dissolution of marriage as
noticed above.

5. The wife in the reply has declined and has countered that it was her husband who
has called his brother from Delhi to send her with his brother and thereafter, he
declined to call her back to his matrimonial home. She declined that her husband had
any time since 12.04.1996 desired her to return to her matrimonial home. According to
her the appellant has failed to prove his case both on the count of cruelty or for the
separation for the period of more than two years at the time of filing of the petition.
The application had been rejected vide judgment dated 03.03.04.

6. On the pleadings of the parties three issues were framed firstly whether wife had
treated the appellant with cruelty secondly whether the respondent wife has deserted
her husband for more than two years before the date of filing of the application
without any reasonable cause and lastly the relief.

7. So far as the first question is concerned that the wife has treated the husband with
cruelty, the Family Court has found that the applicant has failed to prove any conduct
of cruelty by wife towards him, and in our opinion, rightly so. Neither in the pleadings
nor in the evidence, any material has come on record which could be considered as a
cruelty on the part of wife whether by harassing the petitioner mentally or physically.
Obviously, no allegation of physical manhandling has been attributed to wife. The
only conduct of cruelty that has been alleged against the wife is the desire to live
separate from her parents-in-law at Jaipur to look after her widowed mother. The
appellant in his previous application captioned under Section 10 of the Hindu
Marriage Act, had claimed for the dissolution of marriage. In this regard he has clearly
stated that wife has desired that her husband take a transfer to Jaipur where her
widowed mother is living alone, so that they can live together. A general expression of
desire by the wife about arranging their affairs in a manner that like her husband she
too could take care of her aged parents particularly widowed mother in evening of her
life cannot be said to be an unreasonable demand as to infer any mental or physical
cruelty towards husband. These are the normal problems faced by all families more
so, where the family is nuclear. Merely, by expression of desire of taking care of
husband's parents or the wife's parents by the parties to the marriage by itself cannot
amount to be a demand unreasonably made on each other so as to result in mental
harassment. Beyond expression of such desire no other overt act has been attributed to
wife so as to prove inference of cruelty. The fact that the wife has in the aforesaid
circumstance frequently visiting her mother also cannot be considered as an act of
cruelty when it is not coupled with any other allegation about withdrawal of the wife
from discharging of her matrimonial obligations or causing harassment in any manner
in order to enforce such desire in an unreasonable manner.

8. Moreover, it is high-time now that parties to marriage realize in the matter of taking
care of the parents, undue preference cannot be attached to husband's parents only to
neglect the daughter's desire to serve her parents also. It is only the matter of degree
and availability of opportunities how the obligation towards parents both can be
discharged by the parties to marriage. It cannot be denied that if a son has an
obligation to look after his parents in old age, it is also equally important in respect of
wife's desire to look after her parents in their old age particularly when they are living
all alone. A community which boasts of equality between men and women without
gender bias can ill afford to give preference in the matter of looking after the aged
parents of husband and wife to an extent to consider a request or desire of the wife to
look after her parents also to be an act of cruelty.

9. Similarly, few visits by the wife to her parents even if it be without informing
husband without anything more by itself cannot be considered to be a breach of
matrimonial obligation, so as to amount in itself an act of cruelty. It is to be realized
that the wife is not a charter or personal possession of husband that she must depend
on her husband's consent to meet her parents. Freedom of a woman is also equally to
be respected and protected in the matter of movement within the society and keeping
relations with her parents.

10. Apart from simple frequent visits to her parents nothing has been shown that how
such frequent visits have otherwise affected the matrimonial relations between the
husband and wife of any prospects of their future relationship. It shows poor mutual
understanding and male dominance, intolerance without making normal adjustments
which are ordinarily expected of an ordinary couple.

11. We are in agreement with the finding of the Family Court that the case of cruel
treatment by wife is not made out.

12. So far as, the second issue about the desertion by wife without reasonable cause is
concerned the basic facts are not in dispute that wife has left matrimonial home on
12..04.1996 and she has not returned to matrimonial home. Since then, it is also not in
dispute that she has accompanied her brother Girish Bajaj, at the time of leaving
matrimonial home on 12.04.1996. The issue between parties whether Girish Bajaj was
summoned by wife or by husband for the purpose of accompanying the respondent to
Jaipur is also of little significance because in either case the inference is irresistible
that when respondent has left her matrimonial home it was not with any animus either
on the part of the respondent to remove her from matrimonial home nor on the part of
wife not to return.

13. We are left only with the subsequent conduct of the parties to draw an inference
whether the wife has remained away from matrimonial home without any reasonable
cause so as to amount desertion in legal sense.

14. The appellant has tried to explain that he has written letters dated 27.05.1996,
04.06.1996 apart from sending a telegram dated 03.06.1996 requesting his wife to
return to her matrimonial home. He has also tried to do that when he visited Jaipur to
meet his wife on 17.06.1996, after the aforesaid two letters, respondent has not given
response and not finding her at Jaipur, he visited her at Delhi where she was staying
with her sister but she declined to return with him at that time. Though, the fact of any
such efforts by husband to seek for return to matrimonial home has been denied by the
wife, the fact remains that there is positive evidence on record that she has never tried
after leaving matrimonial home on 12.06.196 to return to Udaipur where the
matrimonial home was situated or that she was denied access to her matrimonial
home.

15. On the other hand nothing has been brought on record that she has ever denied or
tried to return to Udaipur to join her husband. It is true that after about ten months of
her leaving Udaipur an application captioned under Section 10 was filed in Udaipur
Family Court on 11.02.1997 on the ground of desertion seeking a relief of judicial
divorce.

16. However, the facts remain that she has not returned home in spite of requests made
by her husband for no justifiable cause. From the pleading of the parties and the
evidence it appears that only reason for wife not to return to her matrimonial home has
been that husband has not come to take her to matrimonial home. Apparently, merely
because husband has not made effort to go and take the wife at home personally after
she has voluntarily with consent, went to her parent's house cannot be a ground for a
wife not to return to her matrimonial home indefinitely. The fact that wife has not
made any positive attempt for all these years for return to matrimonial home except
insisting that appellant has not come to take her to matrimonial home cannot be taken
to be reasonable ground for wife to keep away from her matrimonial home and
withdrawal from her matrimonial obligations. If wife tries to act Cindrella at all times,
the fairy tales to await prince Charm of her dreams to come riding on horse and take
her, even after her marriage, she could think herself it cannot be expected in real life
to be a reasonable ground not to return to her matrimonial home to resume
matrimonial obligations.

17. It is well settled that the question of desertion is a matter of inference to be drawn
from the facts and circumstances of each case which come on record and those facts
have to be viewed as to the purpose which is revealed by those facts or by conduct and
expression of intention, both interior and subsequent to the actual act of separation.
Reference may be made to decision in case of Sanat Kumar Agarwal v. Smt. Nandini
Agarwal, 1 in this connection.

18. The primacy of circumstance that husband has not made steps to bring her wife
back to matrimonial home has been taken too far by the Family Court. Obligation of
habituating matrimonial home rest not only with the husband but rest both on husband
and wife. When it has not been proved that husband was instrumental in wife leaving
the matrimonial home, and the evidence is clear that the wife has left the matrimonial
home with the consent of her husband, and it is not the case of the either of the parties
that on 12.04.1996 there was any intention on the either of the side to put a break on
the continuance of the matrimonial obligation, irrespective of the fact who called
Girish Bajaj to accompany her to Jaipur. It was equally obligatory for the wife to have
returned within a reasonable time to the matrimonial home. There is nothing
exceptional in the circumstances to suggest which could have prevented wife from
making such Endeavour for all these years.

19. It is significant that the earlier petition was withdrawn in view of the fact that wife
has made categorical statement that she is still willing to go to matrimonial home. But
still no attempt was made by her to return to her matrimonial home. There was no
obstruction on the part of husband to resist her to return. In these circumstances, we
are of the opinion that for this reason alone the learned Judge Family Court was not
justified in drawing inference against the husband. Thus the case is clearly made out
that the wife has deserted matrimonial home without reasonable cause and she has
remained away from her matrimonial home for more than two years at the time of
filing of the petition.

20. Moreover, the ground reality is that both the parties are living separate for more
than eleven years. Now, all the efforts of reconciliation between the parties have failed
and the marriage has broken irretrievably. It would, therefore, not be in the interest of
either of the parties to carry on the burden of this status.

21. Accordingly, the appeal is allowed. Judgment under appeal is set aside. The
application of the appellant under Section 13 for dissolution of marriage with
respondent is allowed and the marriage of appellant and Smt. Sonila Kumar is
dissolved by the decree of divorce.

There shall be no order as to costs.

Appeal allowed.

Cases Referred.

1. AIR 1990 SC 594