FAO No. M-222 of 2008 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
FAO No. M-222 of 2008 (O&M)
Date of Decision : 27.7.2009
Sharonjit Kaur
.......... Appellant
Versus
Kuldeep Singh Mander
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. S.K. Bansal, Advocate
for the appellant.
Mr. Balram Singh, Advocate
for the respondent.
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VINOD K. SHARMA, J. (ORAL)
This appeal by the appellant / wife is directed against the
judgment and decree dated 15.5.2008, passed by the learned District Judge,
Kapurthala, dismissing the petition filed under Section 13 of the Hindu
Marriage Act, 1955 (hereinafter referred to as “the Act” ).
The appellant wife sought decree of divorce under Section 13
of the Act, on the pleading that the marriage between the parties was
performed on 14.2.2004, by way of Anand Karaj ceremony. The parties
cohabited at Phagwara but no child was born. It was claimed by the
appellant, that the respondent and his family members maltreated her for
bringing less dowry. It is further the case set up by the appellant, that the
respondent / husband deserted her with an intention to bring the
FAO No. M-222 of 2008 2
matrimonial relation to an end, as the respondent did not take steps to get
visa for going to UK, as settled between the parties before the marriage. It
was pleaded, that the parties are living separately since 17.2.2004.
The petition was opposed and averments made in the petition
were denied. It was not disputed that the appellant / wife left for England on
17.2.2004. It was also the case set up that visa was not granted to the
respondent / husband, however, factum that no second try was made, was
not disputed.
The appellant / wife in support of her case appeared in the
witness box as PW1 and reiterated her stand taken in the petition. She also
examined PW-2 Hardeep Singh and Yudhvir Singh as PW-3 in support of
the case set up.
However, the respondent did not lead any evidence in support
of defence.
Though the evidence of appellant went unrebutted, the learned
District Judge dismissed the petition primarily on the ground, that the
allegations made, were not specific and that the allegations of maltreatment
were made without material particulars, which could not be believed.
The learned counsel for the appellant contends, that the
judgment and decree passed by the learned Matrimonial Court cannot be
sustained as the allegations of maltreatment were specific and were
supported by unrebutted evidence. This plea of the learned counsel for the
appellant cannot be accepted. The allegations of maltreatment were general
and lacked material particulars, therefore, the learned Matrimonial Court
was right in deciding issue No.1 against the appellant.
FAO No. M-222 of 2008 3
The learned counsel for the appellant thereafter contended, that
it was pleaded and proved, that the parties were living separately since
17.2.2004. The evidence on record further proved, that the respondent /
husband had withdrawn from the society without any reasonable cause with
an intention to permanently bring an end to matrimonial alliance.
The learned counsel for the appellant in support of this, referred
to the pleadings and the evidence, where it was proved on record, that the
husband had refused to join the company of the appellant without any
reasonable cause and further he had no intention to resume matrimonial
alliance. The evidence in this regard went unrebutted as the respondent did
not lead any evidence to controvert this. The finding of the learned
Matrimonial Court on issue No.2, therefore, deserves to be reversed. Issue
No.2 is accordingly decided in favour of the appellant and it is held, that the
respondent had deserted the appellant without any reasonable cause for a
period of more than two years prior to filing of petition under Section 13 of
the Hindu Marriage Act, 1955.
In view of the reversal of finding on issue No.2, the judgment
and decree passed by the learned Matrimonial Court is set aside and the
petition filed by the appellant wife under Section 13 of the Hindu Marriage
Act, 1955 seeking decree of divorce is allowed but with no order as to costs.
Appeal allowed.
27.7.2009 ( VINOD K. SHARMA ) 'sp' JUDGE