P.K. Tripathy, J.
1. Respondent in Civil Proceeding No. 115 of 1998 of the Court of Judge, Family Court, Cuttack has filed this appeal under Section 19 of the Family Courts Act, 1984 (in short ‘the Act 1984’) challenging to the decree of divorce passed against her on the application under Section 13(1) of the Hindu Marriage Act, 1955 (in short ‘the Act 1955’). For the sake of convenience, appellant and the respondent, hereinafter are referred to as the wife and husband respectively.
2. In his application under Section 13 of the Act 1955, read with Section 7 of the Act, 1984, the husband sought for a decree of divorce on the assertion of facts that marriage between him and the wife was solemnised on 5.3.1991, they lead a happy conjugal life for about six months and thereafter on 22.10.91 wife went to Bhubaneswar to her father’s place on the occasion of Kumar Purnima and wilfuly disassociated herself from the husband since then. His efforts to bring her back did not succeed even during illness of his father in March, 1992 followed by death on 6.4.1992 so also on the marriage of his younger brother on 27.5.1996. He further alleged that the wife demanded for his transfer and posting at Bhubaneswar so that she would stay in her father’s place along with her husband and when the husband did not yield to that request the aforesaid incidents followed. He has alleged that the aforesaid conduct of the wife has resulted in cruelty on him so also amounts to desertion and therefore a decree of divorce should be granted in his favour.
It thus appears from the aforesaid allegation that the husband has sought for the decree of divorce as per provision of law in Clauses (i-a) and (i-b) of Sub-section (1) of Section 13 of the Act. 1955.
3. In her written statement, in vernacular, the wife except admitting to the factum of marriage has denied to the allegations of cruelty and desertion. She has pleaded that she was selected by the grand-father-in-law and the father-in-law to be a bride in their family because of her good nature and conduct. It is the ill-treatment of the mother-in-law and hostile behaviour of the brother-in-laws which resulted in the husband leaving her in her parents house in October, 1991. She has further pleaded that she countered for a re-union and came to her husband’s house in the year 1992 at the time of death of her father-in-law but she was not accepted in that family. She has also alleged that the ill-treatment was on account of her father not favouring the demand of her husband’s married sisters, relating to providing a job and also for not fulfilling the demand of articles like. T. V. etc. She has also stated in her written statement that she never demanded nor desired that her husband should come and stay at Bhubaneswar. She has also stated that she did not initiate any litigation against her husband or in-laws with the hope of a re-union and that her husband notwithstanding allowing her to stay in her parents house remained in touch with her and when she approached the Mahila Commission for an amicable settlement, the husband became cautious and filed the case as preventive step.
4. Both the spouses relying on their ocular statements tendered evidence at the time of hearing of the matrimonial proceeding. Neither of them examined any other witness nor tendered any documentary evidence. Learned Judge, Family
Court on perusal of the aforesaid pleadings and evidence recorded he finding that at the time of conciliation the wife insisted and wanted to live separately from her in-laws which was totally impracticable on the part of the husband. She also deposed in Court that she was not willing to stay with the husband. Recording such finding learned Judge, Family Court, found it difficult for reunion between the parties and accordingly granted the decree of divorce subject to payment of permanent alimony of Rs. 50,000/-. In that respect, in paragraph 7 of the impugned judgment learned Judge, Family Court quoted the evidence of the wife in the following manner :
“I am not ready and willing to stay with the petitioner at Jajpur. My husband is obedient to his mother and brother, and thereby neglecting me.”
In course of hearing, we perused the evidence on record. It appears from the deposition of the wife that she has stated in cross-examination that :
“3. The petitioner left me in may father’s house after the marriage on 23.10.91. It is not a fact that I came away suo motu from the marital home deserting the petitioner. Again I came and stayed in the marital home from Dec, 1991 till February, 1992 and thereafter came to my father’s house. The petitioner left me in my father’s house. It is not a fact that I came away out of my own accord. It is not a fact that I am not willing to stay at Jajpur. I had lodged a grievance petition before the Mahila Commission against my mother-in-law and brother-in-law. It is not a fact that I am not ready and willing to stay with the petitioner at Jajpur. My husband is obedient to his mother and brother and thereby neglecting me. It is not a fact that I am deposing falsehood suppressing the real state of fact by stating that I have deserted the petitioner. It is not a fact that there was no dowry demand.”
5. At the time of hearing of the appeal, on noticing the aforesaid mis-quoting of evidence, we ascertain from the parties if they want to lead any further evidence. Since both the parties decline to lead any further evidence therefore, recording that aspect in the Order No. 14 dated 15.10.2003, we heard argument from the parties.
6. It appears from the evidence of the wife that she has not denied to stay at Jajpur i.e., in her in-laws place nor she has refused to restitution to conjugal life. In course of hearing of the appeal, we also made an effort for a conciliation but the husband could not appear because he is stated to be detained in Jail custody being convicted in a criminal case.
7. As already noted, husband’s application for divorce is on the grounds as provided in Clauses (i-a) and (i-b) of Sub-section (1) of Section 13 of the Act, 1955. Clause (i-a) speaks of cruelty whereas Clause (i-b) provides the ground of desertion for a continuance period of two years immediately preceding the presentation of the petition as grounds for seeking a decree of divorce. It is to be seen whether the husband has been able to prove the aforesaid allegations against the wife so as to claim a decree of divorce.
8. In paragraph-1 of his evidence, the husband has stated that – “After marriage we led our marital life till 22.10.91. From 22.10.91 we were living separately. After marriage the Respondent persuaded me to stay at Bhubaneswar to which I did not agree. My parents also did not agree in the proposal. At this the Respondent behaved in a most cruel manner and deserted me. So i left the Respondent on 23.10.91 in her father’s house. I persuaded the Respondent to stay together and led marital life, but she paid a deaf ear.”
In paragraph-2 of his evidence, husband has stated that “My father died on 6.4.92 and before that he was bed-ridden. He wanted to see the Respondent. I went to bring the Respondent from her father’s house, but she did not come. She did not perform the Sudhikriya of my father. There is no chance of reunion between we parties.” In the cross-examination in paragraph-3, he has deposed that “My family members, such as, my younger brother and others whose names I cannot say at present had gone to the house of the father of the Respondent to bring her to the marital home”.
In paragraph 5 of the deposition, he has stated that – “I am not sure if my father had been to the house of the Respondent’s father to bring the Respondent to martial home.
to Court :
Q. Are you willing to stay with the respondent as husband and wife at present since you have married according to Hindu rites and customs ?
Ans. Since I have filed this proceeding, so I am not willing.
Now I am aged 42 years.”
9. In her evidence, the wife stated that after the marriage there was a demand of colour T.V. and gold ornaments and when that was not fulfilled she was subjected to cruelty, torture and ill-treatment. On 23.10.91 the husband left her in her father’s place and when she went to her marital home, they did not accept so she came away and took shelter in her father’s house. She has also stated that the husband remained in visiting terms to her in her father’s house. She has denied to the suggestion of deserting the husband. The rest part of her evidence has already been quoted in a preceding paragraph.
10. The aforesaid evidence of the husband does not run consistent to the plea which he has taken in the petition under Section 13 of the Act, 1955 inasmuch as, in the said petition, he stated that on 22.10.91, the wife went to her father’s house in the pretext of celebrating Kumar Purnima. On the other hand, in his evidence, he stated that on account of ill-treatment and cruelty by her that she was left in her father’s place by him on 23.10.91. When the husband’s plea and evidence are at variance in the aforesaid manner, prudency demands that corroboration should be sought for to have confidence in such evidence. As noted he has not examined any other witness in corroboration of the fact that the Wife was ill-treating him or made cruelty on him or deserted him in the manner, it is alleged. On the other hand, it is the husband who insist for no re union and demands for a decree of divorce. He would be entitled to the same if he proves the grounds of cruelty and desertion. The concept of Hindu Marriage remains unaltered notwithstanding the advancement in the society. It is a sacred tie with a religious obligation when a man and a woman enter into matrimonial relationship. The concept of marriage as a contract and continuance of the same till subsistence of mutual understanding should not be imported to a Hindu Marriage and if that is done the very fabrics and the concept of the Hindu Marriage have to be given a go-bye. Therefore, the law makers have set out grounds and prescribed circumstances, under which a Hindu Marriage should be severed, with the rider that notwithstanding existing of such valid grounds repeated efforts should be made for reconciliation.
11. In this case, as noted above, the husband has failed to prove both the desertion and cruelty and therefore, he is not entitled to a decree of divorce. At the time of argument, learned counsel for the husband, relied on the case of G.V.N. Kameswar Rao v. G. Jabilli, A.I.R. 2002 S.C. 576 and Smt. A. Lazmi Dora v. Narasingha Dora and Anr., 2002 (II) O.L.R. 20 in support of his argument that the broken relationship for such a long period may not revive so prudency lies in granting a decree of divorce. After careful perusal of both the citations, because of the distinguishable facts and circumstances that in the case of Kameswar [supra) the Apex Court found that ill-treatment and cruelty by the wife was proved on record and in the case of A. Laxmi (supra) the wife filed an affidavit conceding to a decree of divorce on the application of her husband
that the authorities granted decree of divorce. We find no such circumstances present here to affirm to an illegal and perversal decree of divorce which is impugned before us. In other words, we find that the husband has failed to prove the allegation of cruelty and desertion in as much as when he has left the wife in her parent’s house and there is no proof worth the name, that he has made an attempt for re-union and when the evidence of the wife is that her attempt for re-union was frustrated by the misconduct of the brother-in-laws and the mother-in-law, it cannot be accepted as proof of desertion. Under such circumstance, we set aside the decree of divorce passed by the Judge, Family Court, Cuttack and allow the appeal with costs all throughout in favour of the appellant Hearing-fee is assessed at contested scale.