A WIFE WHO WILFULLY DESERTS HER HUSBAND IS NOT ENTITLED TO MAINTENANCE.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (HMA) No.244 of 2000.
Judgment reserved on:20.04.2007.
Decided on: April 30, 2007
Harjeet Kaur …..Appellant.
VERSUS

Bhupinder Singh …..Respondent.
Coram
The Hon’ble Mr.Justice Kuldip Singh, Judge.
Whether approved for reporting?1
Yes
For the Appellant: Mr.M.L.Sharma, Advocate.

For the Respondent: Mr.Hardeep Verma, Advocate.
Kuldip Singh, Judge.
The wife has filed this appeal against the judgment and
decree dated 1.5.2000 passed the learned District Judge, Shimla in
H.M.A.C. No.6-S/3 of 1997 dissolving the marriage of the parties by a
decree of divorce on the ground of desertion. The parties in the
judgment are referred in the same manner as in the impugned
judgment and decree.
2. The facts disclosed in the petition filed by husband are
that marriage between the parties was solemnized on 7.4.1985
according to rites and customs of Sikhs at Ambala. The parties initially
cohabited at Paonta Sahib and then at Jutogh, Shimla where the

1 Whether the reporters of the local papers may be allowed to see the Judgment ? yes

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petitioner was posted. The behaviour of the respondent towards
petitioner was rude and cruel from the very beginning. She would pick
up quarrel over petty matters. She never attended to the friends and
relatives of the petitioner whenever they visited his place. The attitude
of the respondent towards mother, sisters and other members of
petitioner’s father’s family was also not good. She used to pick up
quarrel with them. She always insisted to live separately. The
petitioner being the eldest member of his father’s family could not
afford to live separately. This annoyed the respondent.
3. The respondent was in the habit of visiting her parents at
Ambala after every 15-20 days. She would insist the petitioner to
accompany her and when he expressed his inability to meet this
unreasonable demand she turned furious and created tension. She
always taunted and harassed the petitioner and often proclaimed that
she did not like his looks. A daughter was born from the wedlock on
24.12.1986 at Ambala at the parental house of the respondent. After
birth of the child she returned to Jutogh in March 1987 but in July 1987
she left the matrimonial home. During her short stay from March 1987
to July 1987 at Jutogh she created disharmony and friction in the
matrimonial home. She was requested many times to return to
Shimla. On persuasion she came in December 1987 but again left for
Ambala in March 1988. On the request of the petitioner and his family
members she came back in April 1988 and soon started humiliating

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and nagging the petitioner. She insisted to go back to her parents’
place in Ambala but the petitioner did not agree to this. The
respondent by making her own arrangement left the house of the
petitioner in September 1988 and since then she is living at Ambala.
4. In February 1992 she filed a petition for divorce in the
Court of Additional District Judge, Amabala which was withdrawn on
6.8.1992 when she realized that no ground of dissolution of marriage
existed. Thereafter, she filed a petition for maintenance in the Court of
Judicial Magistrate Ist Class, Ambala Cantt. This petition was allowed
on 29.11.1994. She filed another petition for grant of maintenance to
minor daughter of the parties which was pending at the time of filing of
the present petition.
5. The case of the petitioner in brief is that respondent has
left the matrimonial home in September 1988 without any excuse and
has refused to return to the matrimonial home and this constituted
desertion. He further alleged that the attitude and behaviour of the
respondent had been cruel throughout her stay with him and so he is
entitled to divorce on the ground of mental cruelty and desertion.
6. The respondent contested the petition. She has taken
the plea that the petition has not been filed in accordance with the
rules. She has denied all the allegations of cruelty and desertion. The
respondent has taken the plea that in fact the petitioner and his family
members had been cruel to her during her stay with the petitioner.

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She denied that she ever asked the petitioner to separate himself from
his father’s family. She denied that she was in the habit of visiting her
parents frequently. According to her, she used to visit her parents
occasionally. She has alleged that the petitioner used to give her
beatings after excessive drinking and that her mother-in-law also used
to quarrel with her. She has pleaded that the daughter was not born in
December 1986, rather she was born on 24.9.1987 and nobody from
the side of her in-laws, including the petitioner, visited her parents’
place after the birth of daughter. She has denied that she came to
Shimla along with her child and left the matrimonial home in
September 1988.
7. The learned District Judge allowed the petition on the
ground of desertion and rejected the case of the petitioner to seek
divorce on the ground of cruelty.
8. I have heard the learned counsel for the parties and have
also gone through the record.
9. The learned counsel for the respondent has submitted
that the learned District Judge has misconstrued and mis-interpreted
the evidence on record. The view taken by the learned District Judge
on the point of desertion of the wife is wrong. He has submitted that
husband has miserably failed to prove the desertion of the wife. The
learned counsel for the petitioner / husband has supported the
impugned judgment and decree and has submitted that the learned

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District Judge has rightly come to the conclusion that wife has
deserted the husband without reasonable cause. He has submitted
that the husband has proved factum of desertion as well as intention of
the wife not to live with the husband.
10. The husband has appeared as his own witness as PW-1.
He has deposed that their marriage was solemnized on 7.4.1984 at
Ambala and the daughter was born at Ambala in December 1986 from
the wedlock. The respondent came to Shimla for short intervals but
stayed most of the time with her parents even after the birth of the
daughter. She would come to Shimla to stay with the petitioner on
persuasion but during her stay at Shimla she would not cooperate with
the petitioner. She lastly left Shimla in July 1988 and thereafter never
returned. In the year 1991 or 1992 she filed a divorce petition against
the petitioner at Ambala which was withdrawn by her later on. Then
she filed a petition to claim maintenance which was allowed and
petitioner was directed to pay maintenance. She filed another petition
for maintenance for the daughter which petition was also allowed. He
tried to settle the matter. The petitioner was cross examined at length
but nothing favourable to the respondent has come in the cross
examination of the petitioner. PW-2 Sainu Ram is the person who was
living in the neighbourhood of the parties at Jutogh. He has stated
that the parties used to quarrel and the quarrel used to be initiated by
respondent. PW-3 is Dharminder Pal Singh who has stated that

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respondent used to pick up quarrels. The respondent used to left
matrimonial home after every 3-4 months. She would stay only for a
few months and again her parents or brothers would take her to
Ambala. In cross examination he has stated that he has not seen the
respondent at Jutogh since 1988 and she finally left the matrimonial
home in 1988. PW-4 Jitender Singh is the elder brother of the
petitioner. He has stated that behaviour of the respondent with the
petitioner has not been good from the very beginning. For the last 10-
11 years, the respondent has been staying with her parents. The
respondent Harjeet Kaur appeared as RW-1. She has stated that she
was not treated well by the petitioner whenever she lived with him. He
is habitual of drinking. She has admitted that she filed a divorce
petition against the petitioner at Ambala which was withdrawn. She
has stated that she did not return to the place of petitioner even in the
company of her brother or father or father’s brother after September
1987 because nobody from her in-laws side came to see the child
delivered by her. She has further stated that she filed the
maintenance petition because the petitioner did not turn up at her
parents’ place to bring her back to Shimla. She has also admitted that
she filed another maintenance case for the daughter. RW-Pradeep
Kumar has stated that respondent used to complain about the
behaviour of petitioner. In cross examination, he has stated that his

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house is close to the house of respondent’s parents’ house. This is
the only evidence led by the parties.
11. It is a fact that respondent is not living with petitioner
since September 1988, that means for the last 19 years the parties are
living separately. The respondent herself filed divorce petition for
dissolving the marriage of the parties which was withdrawn later on by
her. She filed one petition for maintenance for herself and another
petition for maintenance of the daughter. The respondent has not
shown any reasonable cause to live separately at Ambala. There is
nothing on record that respondent ever approached the lawful
authorities against the alleged ill treatment of husband. The residence
of the respondent after marriage is with the petitioner. She has not
placed unimpeachable evidence on record to support her separate
living. On the basis of material on record and conduct of the
respondent, it is clear that respondent has no intention to live with the
petitioner and to continue the matrimonial tie. The petitioner has
proved desertion and the respondent has failed to prove any just and
reasonable cause to live separately. She has levelled bald allegations
against the petitioner which have not been proved. The learned
District Judge has appreciated the evidence in its right perspective.
The petitioner has proved the factum of desertion as well as animus
deserendi on the part of the respondent. The learned counsel for the
respondent has relied on Lachman Utamchand Kirpalani vs. Meena

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alias Mota, AIR 1964 SC 40 for the proposition that petitioner cannot
take benefit of his own wrong. He has submitted that respondent has
excuse to live separately. The petitioner did not make efforts for
reconciliation and for taking back the wife and, therefore, it will be
presumed that husband has consented for separate living of wife. In
the present case, it has been proved on facts that respondent without
any reasonable cause has left the company of the petitioner. The wife
is living at Ambala against the wish of the petitioner. It has come on
record that petitioner several times made attempts to bring back the
respondent but every time after staying for some time at Jutogh she
left the company of the petitioner and since September 1988 she has
not come back to live with husband in the matrimonial home. In Para-
20 of Lachman’s case (supra), the Hon’ble Supreme Court has
observed as follows:-
“20. The other matter is this. Once
desertion, as defined earlier, is established
there is no obligation on the deserted
husband (taking the case where he is the
deserted spouse) to appeal to the deserting
spouse to change her mind, and the
circumstance that the deserted husband
makes no effort to take steps to effect a
reconciliation with the wife does not debar
him from obtaining the relief of judicial
separation, for once desertion is proved the
deserting spouse, so long as she evinces

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no sincere intention to effect a
reconciliation and return to the matrimonial
home, is presumed to continue in
desertion.”
The Lachman’s case (supra) helps the petitioner rather than the
respondent. The learned counsel for the respondent has failed to
make out any case for interference.
12. No other point was urged.
13. In view of above discussion, the appeal is dismissed and
the impugned judgment and decree are affirmed with no order as to
costs.
( Kuldip Singh )
April 30, 2007 Judge. (soni)