[2026:RJ-JP:2616-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Miscellaneous Appeal No. 4291/2015 Smt Rekha daughter of Shri Krishnendra Kumar Pathak, wife of Shri Yugal Kishore Parashar, resident of Village Baghera, Tehsil Kekri, District Ajmer, presently C/o House of Gukul Chand Parashar, Purani Sabzi Mandi, Merta Road, Pushkar Ajmer ----Appellant Versus Yugal Kishore son of Shri Babu Lal Parashar resident of Village Bonli, Tehsil Bonli, District Sawai Madhopur ----Respondent For Appellant(s) : Mr. Vikas Sharma For Respondent(s) : HON'BLE MR. JUSTICE SUDESH BANSAL HON'BLE MR. JUSTICE SANDEEP TANEJA Judgment 21/01/2026 1. We have heard counsel for the appellant-wife at length and scanned the record. 2. From the record, it is apparent that instant civil misc. appeal was filed by and on behalf of appellant wayback on 17.10.2015, assailing the judgment and decree dated 23.09.2015 passed in Misc. Case No.64/2011 (154/2015) by the District Judge, Sawai Madhopur, allowing the divorce petition of respondent-husband filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred as "the Act of 1955"), and granting a decree of divorce in favour of respondent, on the ground of desertion. 3. It appears from the record that initially the appeal was kept in defect category and despite passing peremptory order, defects [2026:RJ-JP:2616-DB] (2 of 9) [CMA-4291/2015] were not removed, hence, the appeal was dismissed for non- prosecution. Later on, an application was filed for restoration of appeal, and the same was allowed to be restored, vide order dated 29.08.2023. Thereafter, several opportunities were given to appellant, to cure the defects and though the defects have been cured, but the appeal has not been pursued on merits since long. However, today, when the appeal came up on board, counsel for the appellant has argued the appeal on merits. 4. The afore-referred facts which have appeared from the record show the lethargic attitude and negligence on the part of appellant-wife, to pursue her appeal against the decree of divorce and keeping the appeal against the decree of divorce pending for years together at admission stage, such practice obviously cannot be appreciated and we deprecate such practice. 5. Coming to the merits of the case, it is a case where appellant’s marriage with respondent was solemnized wayback on 19.06.1998 as per Hindu rites and ceremonies and thereafter, appellant stayed with respondent till 27.03.2006 at her matrimonial home situated at Tehsil Bonli, District Sawai Madhopur, and out of her conjugal relationship with respondent, she gave birth to three sons, but later on she herself left the company of the respondent and shifted to Pushkar, District Ajmer, alongwith two sons and left one son with the husband. Since 27.03.2006 onwards, the appellant has been living separately from the respondent at Pushkar, District Ajmer, and has not expressed any willingness to return and reside with him or with their third child at Bonli, District Sawai Madhopur. It has been [2026:RJ-JP:2616-DB] (3 of 9) [CMA-4291/2015] stated that two sons staying with appellant, have attained the age of majority. 6. Factual matrix, in brief, is that the respondent filed a divorce petition on 30.05.2011 stating inter alia that the appellant had left his company and, after leaving one child with him, had gone to Pushkar, District Ajmer along with their two other children and since 27.03.2006, she has not performed her marital obligations as much as has deserted him without any just and reasonable cause. It is noteworthy here that prior to the filing of the divorce petition, respondent filed an application on 30.06.2008, u/s. 9 of the Act of 1955, praying for restitution of his conjugal rights with the appellant. In this application, the appellant put in appearance and submitted a contested reply dated 28.05.2009, denying to resume her conjugal relation with the respondent, hence thereafter, the respondent did not pursue that application and same was dismissed as not pressed, vide order dated 31.05.2011. 7. In the divorce petition, while seeking dissolution of marriage primarily on the ground of desertion, the respondent also prayed for the custody of his two sons, with whom the appellant had left the matrimonial home at Bonli, District Sawai Madhopur. 8. After service of notice of divorce petition, appellant filed her reply and refuted the allegations made by the respondent and it was stated that indeed there was no willful desertion on the part of appellant rather she was thrown out of the matrimonial home for demand of dowry. Appellant also leveled allegation against respondent that he was in extra marital affair with one another women and wanted to marry with that woman, who is residing in [2026:RJ-JP:2616-DB] (4 of 9) [CMA-4291/2015] the same village and her children used to call him “Papa”. Further appellant took a plea that respondent is a greedy person, and he gave beatings to appellant as also harassed her on the pretext that since appellant has received some property from her grand father after his death, such share be given to him and thereafter respondent threw appellant out of house alongwith two sons. With the above averments, appellant prayed to dismiss the divorce petition. 9. Learned Trial Court, after taking into consideration the rival pleadings and after appreciation of the evidence of both parties, vide impugned judgment dated 23.09.2015, allowed the divorce petition and granted a decree of divorce in favour of respondent- husband on the ground of desertion. The Trial Court arrived at a conclusion that the appellant has deserted the respondent continuously for a period of five years, prior to filing of the divorce petition for no good reason. 10. From the statements of husband and his witnesses (AD-1 to AD-5) as also from the statements of wife (NAW-1), it is admitted fact on record that since after date of marriage i.e. 19.06.1998 upto 27.03.2006, appellant lived with respondent at village Bonli, Sawai Madhopur and she has not levelled any allegation of demand of dowry against her husband and to harass her during this period. Wife (NAW-1) admits in her statements to live separately from her husband since 2006 onwards and staying at Pushkar. In the evidence of parties, nothing has come on record that during the period from 1998 to 2006, wife was subjected to any cruelty or harassment by the husband. During this period, on account of their conjugal relations, three sons born. From the [2026:RJ-JP:2616-DB] (5 of 9) [CMA-4291/2015] statements of husband and his witnesses, it appears that wife along with two sons left her husband by her own, without any good & reasonable cause and shifted to Pushkar, Ajmer. Wife (NAW-1) in her statements states to perform household works in others’ houses to earn her livelihood and staying at Pushkar along with two sons since 2006 onwards. 11. In the statements of husband, he deposed that he made an attempt to bring his wife and two children to live together with him at Village Bonli and even moved an application under Section 9 of the Act of 1955, but his wife was never agreed for the same. The statements of husband (AD-1) have been corroborated by the statements of other witnesses (AD-2, 3, 4 and 5). It is worthy to note here that in the statements of wife (NAW-1), she stated that she wants her husband to come and live with her at Pushkar or Kishangarh or Ajmer, but she is not ready to live with him at Village Bonli, Sawai Madhopur. She has not assigned any reason for her such adamancy or stubbornness. 12. We find that after her marriage, the wife resided with the husband at Bonli, District Sawai Madhopur, from 1998 to 2006. In the absence of any justifiable reason, it is not open to her to insist that the husband should shift and reside with her at Pushkar, particularly when the husband does his work/job at Bonli, Sawai Madhopur. 13. It is further important to note here that from the evidence of the parties, it has also transpired that appellant-wife never intended to resume her marital relation with respondent-husband, particularly after leaving Bonli on 27.03.2006. Here it is necessary to note that witness Shambhu Dayal (AD-2), who is religious [2026:RJ-JP:2616-DB] (6 of 9) [CMA-4291/2015] father of appellant and appellant in her statements admits this fact. Shambhu Dayal has appeared for husband as witness AD-2 and deposed that when appellant- Rekha, his dharam beti, left Bonli and shifted to Pushkar in the year 2006, thereafter, he invited her in marriage ceremony of his son, scheduled on 09.03.2008. Rekha came from Pushkar to Bonli to attend the marriage ceremony of son of Shambhu Dayal and stayed at his home for three days. Husband and his family members were also known to Shambhu Dayal and they also attended this marriage ceremony. During this period, some mediation talks were ensued between parties, with the indulgence of Shambhu Dayal and other people of community. Appellant-wife was made to understand to resume her marital relation with husband, and come back to live together at matrimonial home i.e. Bonli, Sawai Madhopur. It is noteworthy that though wife (NAW-1) admits to come at Bonli, to attend marriage of son of Shambhu Dayal and her stay for three days there, as also admits the factum of mediation, but she never showed interest to go and live at husband’s house and even, during her continuous stay for three days at Bonli, Sawai Madhopur at the house of Shambhu Dayal, she did not visit her matrimonial home. Her statement that she visited but was compelled to leave within fifteen minutes is not acceptable. 14. Such an act of wife, clearly depicts that she had adopted an attitude of adamancy and stubbornness, not to live with respondent-husband at her matrimonial home at Bonli, Sawai Madhopur. Even from the evidence of both the parties, it is revealed that thereafter from the side of husband many a times requests were made to wife come back, but wife never returned. [2026:RJ-JP:2616-DB] (7 of 9) [CMA-4291/2015] On the contrary, there is no scintilla of statements of wife that she ever made any effort to come back or resume marital relation with husband and to live with him at Bonli, Sawai Madhopur. 15. From the above, it can easily be deduced that the appellant deserted the respondent and was not willing to live with him at Bonli, Sawai Madhopur, rather she voluntarily abandoned respondent and bring all her marital obligations to an end permanently, having no intention to resume her cohabitation with respondent at Bonli, Sawai Madhopur. 16. The concept of desertion was dealt with by the Hon’ble Supreme Court in the case of Savitri Pandey Vs. Prem Chandra Pandey [2002 (2) SCC 73]. For ready reference the relevant paragraph no.8 of the judgment is reproduced hereunder:- “8. ‘Desertion’, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.” (emphasis supplied) 17. Following the ratio decidendi, expounded in the case of Savitri Pandey (supra), in a subsequent judgment of Dr. (Mrs.) Malathi Ravi Vs. Dr. B.V. Ravi reported in [(2014) 7 SCC 640], in para 20 following observations were made: - [2026:RJ-JP:2616-DB] (8 of 9) [CMA-4291/2015] “20. In the said Savitri Pandey case (supra), reference was also made to Lachman Utamchand Kirpalani case [AIR 1964 SC 40] wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.” 18. In an another case of Debananda Tamuli Vs. Smti Kakumoni Kataky reported in [(2022) 5 SCC 459] Hon’ble Supreme Court affirmed and reiterated the decision delivered in Lachman Utamchand Kirpalani v. Meena, (AIR 1964 SC 40) and held that desertion means the intentional and unreasonable abandonment of one spouse by the other without his/ her consent. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the matrimonial relation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. 19. On appreciation of the evidence and in view of the law laid down by the Apex Court in above referred cases, we find that [2026:RJ-JP:2616-DB] (9 of 9) [CMA-4291/2015] requirement of Section 13(1)(i-b) of the Act of 1955 and explanation appended thereto, stands satisfied in the present case, and the Trial Court has rightly concluded that the appellant has deserted the respondent. 20. So far as the allegation that respondent and his family members wanted to take her share in the property of her grandfather, she has not been able to explain as to what was the property of her grandfather and what was her share therein. With respect to the other allegations that respondent had relation with some other woman, neither any question was asked by the appellant to respondent in his cross-examination, nor any suggestion was given to him. Further, the appellant, in her evidence, remained miserably failed to corroborate and support this serious allegation, hence, same has rightly been held proved by the Trial Court. 21. In view of above discussion and findings, we find no reason to record any new finding, other than what has already been recorded by the Trial Court and therefore, affirm the findings given by the Trial Court in respect of issue No.1. 22. In view of the above, instant civil misc. appeal fails and consequently, the same is hereby dismissed. 23. Pending applications, if any, stand disposed of. 24. Record of the Trial Court be sent back. (SANDEEP TANEJA),J (SUDESH BANSAL),J Sachin Sharma/S-51