Court: Madhya Pradesh High Court
Bench: JUSTICE K.K. Adhikari
Radheshyam Sharma Vs. Kusum Sharma On 06 September 1988
Hindu Marriage Act, 1955 — Sections 13(1)(ia) and (ib) and 28 Husband’s petition for divorce on ground of wife’s cruelty and desertion dismissed by Trial Court — Appeal against — Wife lived for 5 days with husband did not allow sexual intercourse — Thereafter left the matrimonial home and did not return despite efforts — Wife absent — Ex-parte evidence of husband — No rebuttal on record — Whether husband has proved cruelty and desertion and is thus entitled to decree of divorce ? (Yes).
1. This appeal is by the husband/petitioner whose petition for grant of divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion, has been dismissed by the trial Court. It is not disputed that the appellant married the respondent sometimes in May, 1982. This petition for divorce was presented on 12-9-1986. The respondent did not appear in the Court and, therefore, the petition proceeded ex-parte against her. According to the allegations, after the marriage of the appellant with the respondent she came to her father-in-law’s place and remained with the appellant for five days and thereafter deserted the appellant. During this period of five days, it is stated that the respondent denial sexual intercourse with the appellant. According to the learned counsel for the appellant, denial of sexual inter-course by the respondent amounts to cruelty. So far as the desertion is concerned, it may be stated that according to the allegations, the respondent deserted the appellant five days after the marriage in May, 1982.
2. According to the learned counsel for the appellant, the appellant is entitled to decree of divorce on both the grounds, particularly when sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Thus according to the learned counsel, denial of sexual intercourse to the appellant by the respondent amounts to cruelty within the meaning of Section 13 of the Hindu Marriage Act. Further that the evidence of the appellant who was not cross-examined, ought to have been accepted by the trial Court in passing the decree of divorce. There was also no denial of the fact of the allegation that the respondent deserted the appellant five days after marriage with the appellant in the year 1982 and she lived separately with her parents till the time the present petition was filed by the appellant in the year 1986. It has been argued by the learned counsel that during all this period, the appellant was making efforts to get back the respondent, but the respondent, declined and refused to reside with the appellant. The learned trial Court, however, on the basis of the material on record dismissed the petition, holding inter alia that the appellant has failed to prove either cruelty or desertion since his evidence is not corroborated by any other evidence. The learned counsel for the respondent, however vehemently argued and supported the judgment dismissing the petition.
3. Having heard the arguments advanced on behalf of the parties on either aide and on perusal of the record, this Court is of the opinion that the burden on the appellant for the purpose of grant of decree on the ground of cruelty and desertion is not to be beyond any reasonable doubt, but would be depending on the preponderance of probabilities as occurring in the evidence on record and in this case the appellant examined himself and has on oath stated that the respondent denied sexual intercourse to him as also the fact the respondent left the appellant five days after the marriage in the year 1982. These facts go unrebutted. The intention of the Legislature appears to be that where the parties cannot live together, it is of no use to keep them together if any of the parties to the marriage wants to seek divorce. Under the circumstances in the opinion of this Court, the learned trial Court ought to have granted the decree of divorce.
4. Accordingly, this appeal is allowed. The judgment passed by the trial Court is set aside and instead a decree for divorce is granted to the appellant. Under the circumstances, however, the parties are directed to bear their own costs of the case.
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