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2026 DAILYLAW 16914 (HP)

Leelawati v. Jai Krishan Sharma

2026-03-31

Virender Singh

body2026
JUDGMENT : Virender Singh, J. Appellant-Leelawati has filed the present appeal under Section 28 of the Hindu Marriage Act, 1955 (amended up to date), (hereinafter referred to as ‘H.M. Act’) against the judgment and decree dated 29.04.2013, passed in H.M.A. Petition No.4-S/3 of 2009, titled as Jai Krishan Sharma versus Leelawati, by the learned Additional District Judge-II, Shimla, H.P. (hereinafter referred to as the learned trial Court). 2. Vide judgment and decree dated 29.04.2013, the learned trial Court has partly allowed the petition, filed under Section 13 of the H.M. Act, by respondent-Jai Krishan Sharma, by dissolving the marriage between appellant and respondent, by way of decree of divorce, on the ground of desertion. 3. For the sake of convenience, the parties to the present lis, are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:- 4.1 Petitioner-husband Jai Krishan Sharma has filed the petition under Section 13 of the H.M. Act, 1955 before the learned trial Court, on the ground that the marriage between him and respondent was solemnized, as per Hindu rites and customs on 15.12.1998 at village Karyali, Tehsil Theog, District Shimla, H.P. The marriage was duly consummated and they have been blessed with a son on 12.12.2000. The son is stated to be residing with the respondent, as according to the petitioner, the respondent had forcibly taken away their son on 26.11.2008, when, he was returning back from school. The matter was also reported to the Police of Police Station, Dhalli. 4.2. According to the petitioner, he was being treated with cruelty by the respondent and due to her cruel behaviour, he cannot live with the respondent. Elaborating his stand, he has pleaded that the respondent never shown any love and affection towards the petitioner. She never used to do the daily routine work and she was in habit of wandering here and there. 4.3. It is his further case that in the month of November, 2006, respondent left the matrimonial home without the permission of the petitioner and started living with her parents. Thereafter, the petitioner along with his parents and brother-in-law visited the house of the parents of the respondent to take her back and to settle the matrimonial dispute, but, respondent was not found there. Thereafter, the petitioner along with his parents and brother-in-law visited the house of the parents of the respondent to take her back and to settle the matrimonial dispute, but, respondent was not found there. When, her whereabouts were inquired, it has been told by the parents of the respondent that she is residing with one Dev Raj, who is maternal uncle of the petitioner. According to the petitioner, there was no occasion for the respondent to live with the maternal uncle of the petitioner. When, mother of the petitioner inquired from her brother, as to why, he is keeping the respondent with him, he started abusing the mother of the petitioner. 5. On the basis of the above facts, the dissolution of the marriage has been sought on the ground of cruelty and desertion. 6. From the pleadings of the parties, the following issues were framed by the learned trial Court, vide order dated 14.01.2010:- (i) Whether the respondent has deserted the petitioner, as alleged, if so, its effect? OPP. (ii) Whether the respondent treated the petitioner with cruelty as alleged. If so, its effect? OPP. (iii) Whether the petitioner has a cause of action? OPP (iv) Whether the petition is not maintainable in the present form? OPR. (v) Whether the petitioner is estopped from ftling the present petition by his act and conduct, as alleged? OPR. (vi) Whether the petitioner has not come to the Court with clean hands as alleged. If so, its effect ? OPR. (vii) Relief. 7. Thereafter the parties to the lis were directed to adduce evidence. After closure of the evidence, the learned trial Court has decided the petition in favour of the petitioner, vide judgment and decree dated 29.04.2013. 8. Feeling aggrieved from the said judgment and decree, present appeal has been preferred, before this Court by the respondent wife, mainly on the ground, that the judgment and decree passed by the learned trial Court is based upon surmises and conjectures and the evidence led by the parties has not been taken into consideration, in its proper perspective. 9. According to the appellant, the learned trial Court has failed to take into consideration the fact that the wife and her son were forced by the petitioner to leave the matrimonial home. 10. On the basis of the above facts, Mr. 9. According to the appellant, the learned trial Court has failed to take into consideration the fact that the wife and her son were forced by the petitioner to leave the matrimonial home. 10. On the basis of the above facts, Mr. Atul G. Sood, Advocate, appearing for the appellant has prayed that the present appeal may kindly be allowed, by setting aside the judgment and decree under challenge, before this Court, by dismissing the petition of the petitioner- husband, under Section 13 of the H.M. Act. 11. Per contra, Mr. Abhinav Sharma, Advocate, vice Mr. Surinder Saklani, Advocate, appearing for the appellant-respondent, has supported the judgment and decree passed by the learned trial Court, on the ground that the learned trial Court has rightly appreciated the evidence, so adduced and there is no occasion for this Court to interfere with the well reasoned judgment passed by the learned trial Court. 12. On the basis of the above facts, a prayer has been made to dismiss the appeal. 13. In the present case, factum of marriage has not been disputed. It has not been disputed that the respondent wife is not residing in the matrimonial home and she is residing in her parents house along with her son. 14. In the above admitted factual background, now, this Court would proceed further to discuss the evidence, so adduced, by the parties in the present case. 15. After framing of the issues, the petitioner has examined his mother Sumitra Devi, as PW-1, who has filed the affidavit Ex.PW-1/A, which is based upon the averments, as made in the petition. In the cross examination, this witness, this witness has deposed that during the initial four-five years of their marriage, parties to the lis lived happily in the matrimonial home. Thereafter, the respondent had started abusing her husband. She has further deposed that the respondent had left the matrimonial home about four-five years ago from the date when this witness stepped into the witness box. Efforts were made to bring her back by associating the panchayat members, but, she was not found present. However, no case was filed in the Court for restitution. 16. PW-2, Suresh Sharma, is the brother-in-law of the petitioner, who has filed his affidavit Ex.PW-2/A, which is also based upon the assertion, as made in the petition. Efforts were made to bring her back by associating the panchayat members, but, she was not found present. However, no case was filed in the Court for restitution. 16. PW-2, Suresh Sharma, is the brother-in-law of the petitioner, who has filed his affidavit Ex.PW-2/A, which is also based upon the assertion, as made in the petition. According to this witness, the petitioner had taken the separate accommodation on rent for respondent at Theog and this witness had also visited the residence of the petitioner at Theog. According to him, in the year 2006, respondent had started residing with her house, upon which, this witness, along with the petitioner and his parents, had visited the house of the parents of the respondent and tried their best to take her back, but, she was not found there. Later on, they were told that she is residing with one Dev Raj, who is maternal uncle of the petitioner. In the cross examination, this witness has exonerated the respondent by stating that her behaviour with this witness was cordial. 17. PW-3, Tej Ram, is the witness to the same facts. 18. Petitioner-Jai Krishan Sharma, has appeared in the witness box as PW-4 and has filed his affidavit in evidence Ex. PW4/A, which is based upon the stand, as taken in the petition. In the cross examination, he has deposed that he is residing separately from the respondent from the year 2006. His son was taken away by the respondent from the school. When, she took away their son, then, matter was reported to police and he proved the copy of the same as Mark-X. No case has been instituted for seeking the custody of the minor son. When, the respondent had allegedly given threatening to him, neither the matter was reported to the police, nor, the proceedings for restitution of conjugal rights have been initiated. According to him, his parents and brother-in-law made efforts to bring the respondent back to the matrimonial home, however, he could not spell out the date, when, they had gone to the parents’ house of the respondent. This witness has also denied that he has solemnized marriage with one Rekha. He has denied that he was found residing with his second wife at Sanjauli and matter was reported to the police on 23.09.2002. This witness has also denied that he has solemnized marriage with one Rekha. He has denied that he was found residing with his second wife at Sanjauli and matter was reported to the police on 23.09.2002. Rest, he has denied all the suggestions, which were put to him by learned counsel appearing for the respondent. 19. PW-5 Harish Sharma has also supported the case of the petitioner. 20. To rebut this evidence, the respondent appeared in the witness box as RW-1 and deposed that she was married to the petitioner in the year 1998. Right from the date of their marriage, behaviour of her in-laws was not cordial with her, they used to beat her and she was maintained by her father. According to her further deposition, petitioner used to beat her on account of the fact that he had solemnized second marriage with one Rekha. This witness has inquired about the second marriage of her husband in the year 2008, by visiting the rental accommodation of her husband, where, one lady was found, who left the spot on seeing her. When, inquired from the petitioner, he has proclaimed that she is the wife of his brother. Thereafter, the matter was reported to police at Dhalli, by moving the complaint mark-X. She has categorically stated that neither her husband, nor, her in-laws made efforts to take her back to the matrimonial home. Lastly, she has expressed her intention to go back to the matrimonial home. 21. In the cross examination, she has admitted that after the marriage, she had initially resided at her in-laws house and thereafter, resided with the petitioner at Theog. Her son was studying in Prem Public School at Theog and his expenses were borne by her husband. She has denied the suggestion that after the marriage, she had started quarreling with her in-laws. She has also denied the suggestion that she used to force her husband to reside separately at Theog. She has denied the suggestion that she had started residing with Dev Raj, maternal uncle of petitioner. This witness has admitted that she had not got her self medico-legally examined qua the alleged beatings given by her husband, nor, the matter was reported to the police. 22. RW-2, Tulsi Ram is the father of the respondent, who has supported the stand of his daughter. 23. This witness has admitted that she had not got her self medico-legally examined qua the alleged beatings given by her husband, nor, the matter was reported to the police. 22. RW-2, Tulsi Ram is the father of the respondent, who has supported the stand of his daughter. 23. So far as the documentary evidence is concerned, mark-Y is the complaint made by the petitioner to Pradhan Gram Panchayat, Kot-Shillaro. Mark-X is the complaint made by petitioner to police. PW-6/A, is the copy of the Parivar register. 24. The petitioner has sought dissolution of his marriage with respondent, mainly on the ground that the respondent has deserted him and she has treated her with cruelty. The learned trial Court has decided Issue No.2 against the petitioner and the findings of the learned trial Court, on this issue have not been assailed, by the petitioner-husband by filing the cross objection or by filing the appeal against those findings. Hence, those findings have now attained finality. 25. The learned trial Court has dissolved the marriage between the parties, on the ground that the respondent-wife has deserted the petitioner-husband. As per the stand taken in the petition, the respondent wife had taken away the son of the parties from the matrimonial home on 26.11.2018. The respondent-wife had allegedly left the matrimonial home in the month of November, 2006, without informing the petitioner/husband and thereafter, she had started living at her parents’ house. It has also been pleaded in the petition that the petitioner/husband along with his parents and brother-in-law, had visited the house of the parents of the respondent wife to take her back and to settle the matrimonial ties, but, according to him, she was not found there. On inquiry, her parents had disclosed that she has started residing with one Dev Raj, who is maternal uncle of petitioner/husband. 26. The plea of desertion has been taken by the petitioner/husband. Desertion means the intentional permanent forsaking and abandonment of one spouse by the other without any reasonable cause. 27. In order to succeed on the plea of desertion, it is incumbent upon the petitioner/husband to plead and prove the fact that there is total repudiation of the obligations, of the marriage of the part of the respondent wife. For proving the plea of desertion, burden is upon the party, who alleges that the other party has deserted him. 27. In order to succeed on the plea of desertion, it is incumbent upon the petitioner/husband to plead and prove the fact that there is total repudiation of the obligations, of the marriage of the part of the respondent wife. For proving the plea of desertion, burden is upon the party, who alleges that the other party has deserted him. To prove the factum of desertion, as well as, animus- deserendi, he has to establish, beyond reasonable doubt, to the satisfaction of the Court, that the desertion throughout the entire period of two years, before the presentation of the petition, was without just cause. 28. In this case, the petition has been filed, before the learned trial Court on 26.03.2009 and as per para-5, the wife (respondent) allegedly left the matrimonial home, in the month of November, 2006, without telling the petitioner/husband. His petition is totally silent about the material fact that the factum of desertion was with the animus-deserendi, as desertion is not merely a physical act of leaving a place, but, it is a withdrawal from a state of things. The pleadings are also silent about the fact that the respondent wife had left the matrimonial home, without any intention to return, as well as, with the intention to bring co-habitation permanently to an end. 29. In addition to this, the petitioner-husband has also to plead and prove that he is willing to keep the respondent-wife in the matrimonial home, but, the respondent wife without any reasonable cause is avoiding his company. In this case, when, the husband appeared in the witness box as PW-4, filed his affidavit, in examination-in-chief, which is based upon the stand as taken in the pleadings, however, in the cross examination, he has admitted that no efforts have been made by him to bring respondent wife back to matrimonial home, by filing the petition for restitution of conjugal rights. 30. Not only this, he has admitted that he does not remember the date, when, he, along with his parents and brother-in-law, had gone to bring the respondent wife back from her parents house. 31. His mother Sumitra Devi, appeared in the witness box, as PW-1/A and has also failed to spell out the date, when, she, along with her husband, her son (petitioner) and their son-in-law had gone to bring the respondent-wife back to the matrimonial home. 32. 31. His mother Sumitra Devi, appeared in the witness box, as PW-1/A and has also failed to spell out the date, when, she, along with her husband, her son (petitioner) and their son-in-law had gone to bring the respondent-wife back to the matrimonial home. 32. PW-2, Suresh Sharma, brother-in-law of the petitioner, also could not spell out the date, when, they had gone to the respondents parents’ house to bring her back. 33. Another fact, which has rightly been highlighted by the learned counsel appearing for the appellant, in the present case is about the fact that the pleadings of the petitioner husband qua desertion, in para-5 of the petition, are vague in nature, as, he has simply mentioned that in the month of November, 2006, the respondent-wife had left the company of the petitioner and started living at her parents house. The petition has been filed in the year, 2009 and non- mentioning the exact date, when, the respondent-wife had left the matrimonial home, is fatal for the case of the petitioner/husband, as the said pleadings are vague pleadings. 34. The learned trial Court, while accepting the plea of desertion, has relied upon the decision of Hon’ble Supreme Court Case, in Gita Jagdish Mangtani versus Jagdish Mangtani , reported in 2005 (8) SSC 177. With due respect to the law laid down, by the Hon’ble Supreme Court, in the said case, in the considered opinion of this Court, the same is not applicable in the facts and circumstances of the present case. 35. In the present case, except taking a vague plea with regard to the visit of the petitioner/husband along with his parents and brother-in-law, to the house of respondent’s parents, no other effort has been made by him to pursue the legal remedies, to bring respondent-wife back to the matrimonial home, by filing the petition under Section 9 of the Hindu Marriage Act. 36. The petitioner/husband in this case, has also made half hearted stand, by pleading that the respondent wife was found residing with one Dev Raj, maternal uncle of the petitioner. Neither the plea of adultery has been taken in the present case, nor, said Dev Raj has been examined, as witness, in the present case, so that a suggestion could be given to him qua the fact that the wife of the petitioner is residing with him. 37. Neither the plea of adultery has been taken in the present case, nor, said Dev Raj has been examined, as witness, in the present case, so that a suggestion could be given to him qua the fact that the wife of the petitioner is residing with him. 37. The respondent-wife in para-4 of the reply, has taken the specific plea that the petitioner/husband had started residing with one Rekha, The said stand has not been controverted/repelled by the petitioner husband, by filing replication/rejoinder. 38. At the cost of repetition, no efforts have been made by the petitioner/husband to bring the respondent-wife back to the matrimonial home, nor, allegations, as contained in para-4 of the reply qua the fact that he is residing with one Rekha, have not been repelled, by the petitioner-husband. As such, it can be said that the respondent wife has probibalized the reasons, due to which, she is not residing with the petitioner/husband in the matrimonial home. 39. Considering all these facts, this Court is of the view that the learned trial Court has fallen into an error, while, accepting the plea of desertion. In such type of cases, it is the bounden duty of the Court to see that the fact of residing separately falls within the definition of ‘desertion’, as the same is not walking out of the house, but, withdrawal from a home. 40. Pleadings in this case, are too short to demonstrate that the petitioner-husband has proved the fact that the respondent-wife has left the matrimonial home with a determination to put an end to the marital relations and to cohabitation permanently. However, the stand of the respondent-wife in reply, which has not been controverted, by the petitioner-husband, qua his living with a lady Rekha, to the considered opinion of this Court, constitutes a valid reason for the respondent-wife not to live in the matrimonial home. 41. The learned trial Court has fallen into an error, while accepting the plea of desertion, in the present case. The petitioner/husband has placed on record copy of legal notice, which was served upon to respondent-wife. Although, this document has not been relied upon by the petitioner/husband, but, the same can be taken into consideration, while judging the stand of the respondent- wife to the disadvantage of the petitioner/husband. The petitioner/husband has placed on record copy of legal notice, which was served upon to respondent-wife. Although, this document has not been relied upon by the petitioner/husband, but, the same can be taken into consideration, while judging the stand of the respondent- wife to the disadvantage of the petitioner/husband. In this notice, no date has been mentioned, when, the respondent-wife allegedly left the matrimonial home and a vague averment has been made that the respondent-wife had left the matrimonial home from the last more than two years. The alleged intention of the petitioner/husband to bring the respondent-wife back to the matrimonial home also comes under cloud of suspicion, when, he has got mentioned in the notice, qua dissolution of his marriage, which means the petitioner-husband wants to take the benefit of his own wrong, which is not permissible under the law. 42. The act and conduct of the petitioner- husband in not making any effort to bring the respondent- wife back to the matrimonial home, by instituting the requisite proceedings, before the competent Court of law or making any sincere effort to bring her back dis-entitles the petitioner/husband from the relief, which has been given to him by the learned trial Court. 43. In view of the above, the findings recorded by the learned trial Court are liable to be reversed. Consequently, the present appeal is allowed and judgment and decree dated 29.04.2023 passed by the learned trial Court, which are under challenge, before this Court, are set-aside, by allowing the appeal and the petition, filed under Section 13 of the Hindu Marriage Act, by the husband is ordered to be dismissed. There shall be no order so as to costs. 44. Pending application(s), if any, shall also stand disposed of. 45. Record be sent back.