CMA/257/2017 of SMT SURJI Vs KALURAM on 22 July 2026

Order

22/07/2026

1. This appeal has been filed by the appellant (hereinafter to be referred as ‘wife’) under Section 28 of the Hindu Marriage Act, 1955 (hereinafter to be referred as ‘Act of 1955’) against the judgment and decree dated 17.12.2016 passed by the learned District Judge, Srimadhopur, Sikar whereby the application filed on behalf of the husband under Section 13 of the Act of 1955 was allowed.

2. Brief facts of the case are that the husband filed an application under Section 13 of the Act of 1955 against the respondent (hereinafter to be referred as ‘wife) stating therein that the marriage was solemnized between the parties on 04.07.2008 as per Hindu rites and customs. He further stated in the application that just after three days of their marriage, the wife without his consent left her matrimonial home and started

(2 of 6) [CMA-257/2017] living with her parents. He further stated that without any justifiable reason she has deserted the husband and living separately for more than two years prior to filing of the divorce application. He further stated that in the said period, there is no physical relations between them and the husband and his family members asked the wife to come and reside with them but she refused and lastly prayed for granting the decree of divorce.

3. Reply of the said application was filed on behalf of the wife in which she has stated that the husband has demanded the dowry from her and thrown her out from their matrimonial home. She further stated that she has lodged a complaint in the police station and lastly prayed for dismissal of the said application.

4. On the basis of pleading of the parties, the learned Trial Court framed the following issues:- Þ1- vk;k vizkFkhZ;k Jherh lqjth nsoh us izkFkhZ dkywjke dks mldh fof/kd iRuh gksus ds ckotwn fcuk fdlh ;qfDr;qDr dkj.k ls nks o"kZ ls vf/kd le; ls mldk ifjR;kx dj j[kk gS vkSj vius nkEiR; laca/kksa dk fuoZgu ugha fd;k tk jgk] ftl dkj.k izkFkhZ rykd dh fMØh izkIr djus dk vf/kdkjh gS\ 2- vuqrks"kAÞ

5. The husband submitted his own evidence as AW-1 and submitted the documentary evidence Ex.1. The wife submitted her own evidence as NAW-1 as well as the evidence of NAW-2- Babu Lal and NAW-3 Ram Singh and submitted the documentary evidence as Ex.1 to Ex. 5.

6. Thereafter, the learned trial Court after recording the evidence of both the parties allowed the application filed on behalf of the husband vide its judgment and decree dated 17.12.2016.

7. Being aggrieved by the judgment and decree dated 17.12.2016, this appeal has been filed on behalf of the wife.

(3 of 6) [CMA-257/2017]

8. Counsel for the wife submitted that the learned Trial Court has erred in deciding issue No.1 in favour of the husband and failed to appreciate the evidence submitted by her before it. Counsel further submits that from the very beginning of their marriage, the husband demanded the dowry on account of which she was forced to leave her matrimonial home and lastly prayed for allowing the appeal.

9. Counsel for the husband opposed the submissions made on behalf of the wife and submitted that the wife failed to perform her matrimonial obligations and denied the cohabitation and left his house just after three days of their marriage. Counsel further submits that the husband and his father on various occasions asked the wife to live with them but she refused. Counsel further submits that the judgment passed by the learned Trial Court is based on sound appreciation of evidence and prayed for dismissal of the appeal.

10. Heard counsel for the parties and perused the record.

11. The Hon’ble Supreme Court in the matter of Malathi Ravi, M.D. Vs. B.V. Rvi, M.D. reported in 2014 (7) SCC 640 wherein para No.18, it is held as under:- “18. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the Family Court and that of the High Court. The plea that was raised for grant of divorce was under Section 13(1)(ib) of the Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. The aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party

(4 of 6) [CMA-257/2017] seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68/1976. Prior to the amendment it was only a ground for judicial separation.”

12. The Hon’ble Supreme Court in the matter of Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi reported in 2002 (1) SCC 308 wherein para No.7, it is held as under:- “Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The 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 deserndi;

3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period; 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 preceding 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 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

(5 of 6) [CMA-257/2017] their continuance throughout the statutory period.”

13. The Hon’ble Supreme Court in the matter of Sivasankaran Vs. Santhimeenal reported in 2022 (15) SCC 742 wherein para No.25, it is held as under:- “In view of the legal position which we have referred to aforesaid, these continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the trial court. This conduct shows disintegration of marital unity and thus disintegration of the marriage. In fact, there was no initial integration itself which would allow disintegration afterwards. The fact that there have been continued allegations and litigative proceedings and that can amount to cruelty is an aspect taken note of by this Court. The marriage having not taken off from its inception and 5 years having been spent in the trial court, it is difficult to accept that the marriage soon after the decree of divorce, within 6 days, albeit 6 years after the initial inception of marriage, amounts to conduct which can be held against the appellant.”

14. We have gone through the record as well as the evidence submitted by the parties before the learned Trial Court. It has come on record that the divorce petition was filed on 24.08.2011 and the wife has deserted the husband two years prior to the said date.

15. We have also considered the evidence of NAW-1 in which she has admitted that there is no cohabitation between the husband and wife for more than three years. She has further admitted in her cross-examination that after her marriage, on the next day, she went to her parental home. She has further admitted in her cross-examination that she does not know the names of family members of the husband and neighbourers.

(6 of 6) [CMA-257/2017]

15. We have also considered the evidence of NAW-2 who is brother of the wife in which he has admitted that after filing of the divorce application, they lodged a criminal case against the husband with regard to demand of dowry and the said FIR was lodged in their defence of the divorce application. In his cross- examination, he has further admitted that in their ration card, the name of the wife is also mentioned.

16. In view of the cross-examination of the wife and her brother, we are of the considered view that the husband has proved the fact that the wife is not residing with him deliberately two years prior to the filing of the divorce petition and she has willfully deserted him.

17. In our considered view, the finding recorded by the learned Trial Court on issue No.1 is based on sound appreciation of evidence and the same does not require any interference by this Court.

18. We have also considered the fact that the wife has made a false criminal case against the husband after filing of the divorce application. In our considered view, lodging of false criminal case against the husband amount to cruelty with him.

19. In view of the above discussion, the appeal filed on behalf of the wife deserved to the dismissed.

20. According, this appeal filed on behalf of the wife stands dismissed. Record of the Court below be sent back. (SANDEEP TANEJA),J (INDERJEET SINGH),J 45/JYOTI/362