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The Tripura High Court recently comprising division bench of CJ Akil Kureshi and Justice S.G. Chattopadhyay dismissed an appeal stating that the appellant has failed to prove the ground of desertion against his respondent wife.

The facts of the present case stated that,

“…appellant Nirmal Paul and respondent Smt. Namita Paul entered into matrimonial alliance as per Hindu rites and rituals at Agartala on 14th May, 2001. It is the case of the appellant that a month after marriage, his wife started misbehaving with him. At that time the appellant lived in a common mess with his old parents, three brothers and their families which was not liked by his respondent wife. She demanded a separate mess and told her appellant husband that it was not possible on her part to prepare food for every member of the extended family. Her conduct and behaviour to the appellant and his family members was very indignant and rude. She also used to visit her parents frequently and stay at her parental home for months together. However, within few months of marriage, she conceived and a daughter was born to them. 6 (six) months after the birth of her daughter, the respondent got a government job as teacher in an anganwadi centre at Udaipur. After getting her job she left the company of her appellant husband on 04.08.2005 and started living with her parents. The appellant visited his wife and daughter at her parental home several times to bring them back. But, she wanted her appellant husband to stay with her at her parental home at Udaipur. He then filed a suit in the Family Court, Agartala seeking restitution of conjugal rights which was registered as TS (RCR) 55 of 2009 in the Family Court and after hearing the parties, the Family Court decided the suit by directing the spouses to meet each other once in a week.”

Though, the appellant met his wife and daughter at her parental home at Udaipur several times but his respondent wife never came to Agartala to meet him. Rather, she implicated the appellant, his mother, younger brother and the husband of his sister in a case under section 498A IPC.

Thereafter, the appellant filed the said petition under section 13(1)(ib) of the Hindu Marriage Act, 1955 in the Family Court at Agartala for divorce on the ground of desertion.

Further in reply to the allegations of her husband, respondent wife filed written objection. She denied every allegation of her husband and claimed that all those allegations were frivolous, vexatious and false.

“According to her, after marriage she was treated with extreme cruelty by her husband and in-laws. It was alleged by her that on 3rd August, 2005 her appellant husband and in-laws physically assaulted her and on the following day they ousted her from her matrimonial home. She was then sheltered by her brother from where she lodged a case under section 498A IPC against her husband and in-laws.”

It was further stated that her case was registered in court and after trial her appellant husband was found guilty. He was convicted and sentenced for imprisonment for 3 years by the trial court. Later the appellant husband challenged the judgment in appeal.

On the pleadings of the parties, trial court framed three issues pertaining to maintainability of the suit and petitioner’s entitlement to divorce which were as under:

“1. Whether the petition is maintainable in its present form and nature? 

2. Whether the respondent is an ill-tempered lady and deserted her matrimonial home without any reasonable cause or whether she was tortured by the husband and other family members on many occasions in demand of money and finally on 04-08-05 compelling her to take shelter in the house of her brother at Udaipur?

3. Whether the petitioner is entitled to get a decree of divorce as prayed for?”

The trial court thoroughly examined the matter in detail in the background of oral evidence led by the parties which were available on record and dismissed the petition filed by the appellant husband for divorce. It was held by the trial court, that the appellant husband could not establish the ground of desertion. Rather, the respondent wife was found always willing to live with her husband. The Family Court having found possibility of their reunion, dismissed the petition for divorce. Hence the present appeal.

Taking into account the factual matrix of the case the bench relied upon the SC judgement in  Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73 reiterated in Malathi Ravi, M.D. Vs. B.V. Ravi, M.D. reported in (2014) 7 SCC 640 and observed 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.”

Also in A. Jayachandra Vs. Aneel Kaur reported in (2005) 2 SCC 22, the Apex Court observed that, “acts of the spouses subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct.”

In the present case the bench observed that,

“in Naveen Kohli Vs. Neelu Kohli reported in (2006) 4 SCC 558 though the Apex Court granted divorce because in view of the fact that the marriage between the parties had broken down irretrievably, in paragraph 85 of the judgment it was held by the Apex Court that it is the obligation of the court and all concerned that marriage status should, as far as possible, as long as possible and whenever possible be maintained.”

“For what has been discussed by us, the marital bond between the parties cannot be said to have gone beyond repair and as such the ground of irretrievable break down of marriage as expounded by learned counsel of the appellant is not acceptable to us"

Therefore the bench dismissed the appeal, “the appellant has failed to prove the ground of desertion against his respondent wife, the impugned judgment of the Family Court, Agartala does not call for any interference”

Case title : Nirmal Paul v. Namita Paul, 2021

Law point : section 13(1)(ib),Hindu Marriage Act, 1955