ORDER
S.S. Dwivedi, J.
1. The appellant has preferred this appeal under Section 19 of the Family Court Act, 1985, being aggrieved by the judgment and decree dated 5-4-2003 passed by Ku. Premlata Pradhan, Presiding Judge of the Family Court, Bhopal in Civil Suit No. 285-A of 2002 whereby the petition filed by the respondent for the decree of judicial separation under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as Act for brevity) has been decreed.
2. Briefly stated the facts of the case are that parties are wife and husband, their marriage solemnized on 24-6-1993 at Bhopal as per Hindu rites and as per custom prevailing in their community, the parties lived together up till on 4-8-2001. Respondent/petitioner filed the petition under Section 13 of the Act, with the allegations that the appellant/respondent is not willing to live with the petitioner; and normally wanted to live with her parents on getting each and every opportunity she used to go to her parents home. On the pretext that she was preparing for B.A. Examination etc. The petitioner sent registered notice to the appellant to come back and live with him, but unsuccessfully at last the respondent/petitioner filed the petition under Section 9 of the Act for restitution of conjugal rights on 2-9-96. In this case both the parties came to compromise and thereafter both the parties live together, therefore, the afore- , said suit had been dismissed on 21-2-97. Thereafter when both are living together on 16-10-97 a son was born to the applicant. But thereafter also the appellant repeatedly tried to live with her parents. On 4-8-2001 the appellant leave her matrimonial home on the festival of “Raksha Bandhan”, on this day the mother of the petitioner/respondent was seriously ill but instead of that the appellant went to her parental house, ultimately the mother of the petitioner died after few days. After hearing the sad news also the appellant did not come back to the respondent house. Therefore, on the basis of the aforesaid allegations the respondent/petitioner had filed the present petition under Section 13(1) of the Act for the decree of judicial separation on 25-2-2002 before the Family Court at Bhopal.
3. In reply the appellant/defendant stated that it is the petitioner’s behaviour and ill treatment because of that the appellant is forced to leave her husband’s home. She is always ready to live with her husband but he repeatedly mis-behaved with her and thrown her out from the matrimonial home. When she came to know about the death of her mother-in-law then also she come back but her husband not allowed her to come in the house. Thus the petitioner had filed this petition without any valid ground. Therefore, prayed for the dismissal of the petition.
4. Learned Trial Court after recording of evidence of both the parties, vide impugned judgment dated 5-4-2003 decree the petitioner’s suit and awarded the decree for judicial separation under Section 13(1) of the Act. Feeling aggrieved by the aforesaid judgment and decree the appellant/defendant had preferred this appeal.
5. Learned Counsel for the respondent/petitioner supported the impugned judgment and decree and prayed for the dismissal of the appeal.
6. We have heard the learned Counsel for the parties and perused record.
7. It is submitted by Shri R.D. Hundikar, learned Counsel for the appellant that no valid ground of desertion is made out, on the basis of evidence on record. Therefore, judgment and decree passed by the learned Trial Court is illegal and erroneous. Therefore, prayed for setting aside of the impugned judgment and decree.
8. Per contra, Shri, P.K. Asati, learned Counsel for the petitioner/respondent submits that the petitioner specifically proved the grounds for Judicial Separation; the appellant willfully deserted the petitioner and, after repeated efforts by him, she is not willing to a live with him. Therefore, the learned Trial Court has rightly decreed the petitioner suit; and no valid ground is available in this appeal for interference in the impugned judgment and decree by this Court.
9. The crucial question which arises for consideration is as to whether the appellant/defendant willfully deserted, the petitioner/husband; on which basis the petitioner/husband is entitled to get the decree for the judicial separation.
10. For the determination of the ground for judicial separation it will be useful to extract the provision of Section 13(1) (ia) and (ib) of the Act which are as follows:
13. Divorce.– (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
11. As per the aforesaid provisions of Section 13(1)(ib) it is necessary for the petitioner to prove that the desertion of the other party for a period not less than two years immediately preceding the presentation of the petition for judicial separation or divorce, and this period of two years is mandatory for the decree on the ground of desertion.
12. On perusal of the petition filed by the respondent/petitioner it is apparent that the petitioner alleged that the appellant/defendant the wife leave the matrimonial home. Lastly on 21-8-01 on the festival of “Raksha Bandhan” instead of the fact that her mother-in-law is seriously ill and after few days she died also. Therefore, as per respondent/petitioner the cause of action arise for desertion lastly on 21-8-01 as mentioned in Para 10 of the original petition. Thereafter, the appellant did not turn up to live with her husband. This petition had been filed by the respondent/petitioner on 25-2-2002, i.e., only after six months from the date when the appellant/defendant lastly leave her husband’s house. Therefore, as the petition for judicial separation has been filed within six months from the date of cause of action, i.e., on 21-8-2001. Thus the mandatory requirement of Section 13(1)(ib) of the Act is not fulfill that the petition can only be filed if the desertion for continuous period of not less than two years before filing of the petition. Therefore, on this ground alone the petition for judicial separation is liable to be dismissed; as prematured.
13. For the decree of judicial separation on the ground on desertion the petitioner/plaintiff not only required to prove factum of physical separation but also “animus deserendi”, i.e., “the intentional permanent for saking and abandonment of one spouse by the other without that others consent and without reasonable cause”. In the present case the petitioner has failed to prove by cogent evidence.
14. On perusal of the evidence on record it is apparent that the petitioner Mohan Kushwah (P.W. 1) in his statement stated that his wife Smt. Laxmi Kushwah left the matrimonial home on 21-8-2001 on the festival of Raksha Bandhan instead of his denial and on that time his mother was seriously ill. Therefore, it is expected that she should remained present to look after his ailment mother. She also did not turn up after hearing the news of the death of her mother-in-law. Therefore, it appears that on this sole ground the petitioner being annoyed with behaviour of her wife filed this petition for the decree of judicial separation. This appears to be a single instance which is pleaded for desertion; that will not amount to be a valid reasonable and proper ground on which basis the decree of judicial separation can be granted in favour of the respondent/petitioner.
15. In rebuttal Smt. Laxmi Kushwah (D.W. 1) in her statement clearly stated that due to misbehaviour of her husband which lead her to remain at her parental home. Her husband repeatedly ill treated her also beaten her in various occasion. Therefore, due to the ill treatment and misbehaviour on the part of the husband; himself, the appellant/wife can not be held responsible for desertion if any.
16. Mere departure from the matrimonial home on the part of the appellant wife itself does not constitute the desertion if it is without “animus deserendi”. The appellant Smt. Laxmi Kushwah (D.W. 1) specifically and categorically stated she is ready to live with her husband but it is the behaviour of the husband which forced her to live with her parents. It is the duty of the husband that he treated her wife properly and the wife is certainly entitled to comfort and company of the husband and live with dignity. If the wife is forced to live matrimonial home on failure of the husband to provide her home of congenial atmosphere and to provide her with protective umbrella of safety then such an act can not be given insignia of desertion.
17. Therefore, on the basis of evidence on record respondent/petitioner has failed to prove that the appellant wife has willfully deserted him and living separately for a continuous period of two years immediately preceding before the date of presentation of this petition.
18. For the determination of “animus deserendi” for desertion as the ground for divorce or judicial separation this Court in SunilKumar v. Usha w/o SunilKumar held as under:
16. It is settled law that without “animus deserendi” there can be no desertion. In the instant case, there is demonstration of surge of an urge to live together and thus, to resume cohabitation. In other words, there is luculent indication of “animus revertendi” to the matrimonial home.
17. Mere departure from home on being unable to stand the conditions prevalent there and so journ with parents for a while are not pointers to desertion as envisaged under the Act. One must rise to the occasion and be prepared to shed “Teedium vitae”. The respondent did return only to be greeted by the command of “no entry”. After all, how long should an Indian woman suffer the fate of having “milk in breasts and tears in eyes” ? It is time to grant her emancipation. The husband should realise his obligation and play his role ideally and really.
18. It appears that the appellant is determined to see that the respondent is not in. The inbred question then is as to who has deserted and who is deserted. The expression “without reasonable cause and without the consent” as employed in the explanation, inserted by Act No. 68 of 1976 and quoted above, must mean that the conduct of the other party should not be such as may reasonably cause formation of requisite “animus deserendi”.
19. Therefore, on the basis of the aforesaid proposition of law as laid down by this Court in the present case the respondents/petitioner fails to prove the “Desertion” as a ground for the decree for judicial separation. This petition has also been filed before the end of statutory period of two years from 21-8-2001. Thus, on this ground also the petition is liable to be dismissed.
20. Therefore, learned Trial Court has erred in granting the aforesaid decree on the ground of desertion in favour of the respondent/petitioner which is in our opinion liable to be set aside.
21. No other ground has been assailed before us in this appeal.
22. Consequently, the appeal filed by the appellant/wife is allowed and the impugned judgment and decree dated 5-4-2003 passed by the Presiding Judge of the Family Court, Bhopal is set aside and the original petition’ filed for judicial separation by the respondent/petitioner is dismissed. The appellant will get the cost of this appeal from the respondents. Counsel fee of Rs. 1000/- if certified.
