Appeal (civil) 576 of 2003 : Geeta Jagdish Mangtani Vs Jagdish Mangtani

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Vinayak

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Oct 4, 2005, 8:26:53 AM10/4/05
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Wife earning more than husband refuses to live at her matrimonial home;
She insists that Husband has to earn a minimum of Rs. 5,000/- per month
for her to join him; Husband refuses to go and live at wife's place as
wife lives with HER parents; Divorce granted by Marriage court and HC;
SC affirms divorce and decrees desertion by wife; No alimony; Sc
comments " ..particularly note the fact that the parties knew even
prior to marriage whatever they were earning.."


CASE NO.: Appeal (civil) 576 of 2003

PETITIONER: Geeta Jagdish Mangtani

RESPONDENT: Jagdish Mangtani

DATE OF JUDGMENT: 20/09/2005

BENCH: Arun Kumar & A.K. Mathur

JUDGMENT: JUDGMEN

ARUN KUMAR, J.

This is an appeal by the wife against the judgment of the High Court
passing a decree of divorce on a petition filed by the husband under
Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955
(hereinafter referred to as 'Act').

Briefly, the facts are that the marriage between the parties took
place on 2nd November, 1992 at Ulhasnagar, Mumbai where the husband
resides with his parents and other family members. The wife stayed in
the matrimonial home up to 2nd June, 1993. In between she had returned
to her parents' house at Adipur, Bhuj (Gujarat) on a couple of
occasions to join her service as a teacher in a school at Anjar, Bhuj,
Gujarat. The wife is teaching in the Municipal School at Anjar since
prior to marriage. It is common case of the parties that on 2nd June,
1993, the appellant-wife left the husband's house for her parents'
house at Adipur in Bhuj, Gujarat for her first delivery. A son was born
on 11th November, 1993. The fact is clearly established on record that
after 2nd June, 1993 the appellant never returned to her husband to
join him in the matrimonial home at Ulhasnagar. In her evidence the
wife has said that the husband visited her off and on, stayed with her
at Adipur where she was staying with her parents. However, this
statement made of the wife has been denied by the husband. These
statements are merely oral statements made by the parties in support of
their respective stands during the course of trial and have rightly not
been relied upon by the courts below. The undisputable further fact is
that on 30th September, 1996, husband sent a notice (Exhibit 21) to the
wife through his lawyer alleging desertion on her part and also
alleging that the wife wanted that the husband should resign his job in
Ulhasnagar and stay with the wife at Adipur, Gujarat. This was on
account of the fact that the wife was in a Government job as a school
teacher and was earning about Rs.7000/- per month while the husband had
a private job in which he was earning only Rs.1400/- per month. The
husband's case has been that because he was not making enough money
while the wife was earning well, she always wanted him to stay with her
at Adipur in Gujarat. In reply to the notice vide Exhibit 22 dated
14.10.1996, the wife denied the allegations of the husband and stated
that she was prepared to stay at Ulhasnagar with the husband. The
husband got another notice dated 21st October, 1996 Exhibit-23, served
on the wife more or less on the same allegations as were made in the
previous notice. The wife sent a reply dated 4th December, 1996
Exhibit-25 on similar lines of denial. While appearing as a witness in
support of her own case the wife has categorically maintained that she
was willing to leave her job at the school in Anjar, Gujarat provided
the husband was earning at least Rs.5000/- per month so that he could
properly look after her and her son. Therefore, from the exchange of
notices and the replies only one thing emerges that till 1996 there was
no attempt on the part of the wife to join the husband.

Ultimately, on 31st December, 1996 the husband filed a divorce petition
seeking divorce on the ground of cruelty and desertion. The trial
court after recording evidence accepted both the grounds and granted a
decree of divorce. However, on an appeal filed by the wife, the lower
Appellate Court reversed the judgment of the trial Court and dismissed
the divorce petition filed by the husband. The husband appealed to the
High Court against the said order. The High court by the judgment
which is under challenge in this appeal confirmed the decree of divorce
granted by the trial Court but only on the ground of desertion as the
ground of cruelty was not pressed on behalf of the husband before the
High Court. It is apparent from the judgment of the High court that
the learned Judge made various attempts to bring about a settlement
between the parties but he failed. This is noted by the learned Judge
that both the parties appear to be adamant regarding their respective
stands, that is, the wife is not prepared to leave her hob at Anjar in
Gujarat unless the husband is able to earn a handsome salary at
Ulhasnagar where he stays with his parents and other family members.
Likewise, the husband is not willing to leave his present job and stay
with the wife at Adipur, a place near Anjar in Gujarat where she is
teaching. It may be mentioned here that at Adipur, the wife stays with
her parents, the son of the parties is also with the wife.

The husband has made allegation that after the birth of the son he had
gone to the house of the wife at Adipur, Gujarat where he was not
allowed to meet her nor he was allowed to see his son. Likewise, the
wife has made allegations that her mother-in-law had made dowry related
demands from her. These are mere allegations and counter allegations on
which reliance cannot be placed. Nothing of this kind was stated in
the notices or replies thereto. The most important fact which emerges
is that from 2nd June, 1993, the parties have been staying separately
and there is total lack of any effort on their part to stay together.
Since the wife left the matrimonial home on 2nd June, 1993 and has,
admittedly, not returned to the said home, the absence of any desire on
her part to honour the matrimonial obligation is clear. In this
connection the observation of the High Court is worth reproduction:

"..Both husband and wife have renounced the relationship as husband and
wife since June, 1993 and from the record of the case also presently
the questions which I have asked in the chamber. I am satisfied that
both husband and wife had no intention to live together as husband and
wife and decided to break off from the relationship of marriage or
withdraw that companionship of husband and wife. Desertion means
rejection by the party of all the obligations of marriage and permanent
forsaking or abandonment of one spouse by the other without any
reasonable cause and without the consent of the other."

"14.7 I have considered the entire aspect and there is no useful
purpose to have kept the parties as husband and wife particularly from
1993 both husband and wife have not stayed together. Though I have
made efforts to see that wife can go to her matrimonial home at Mumbai
or husband can stay at Gandhidham but unfortunately this Court's effort
to reunite them as husband and wife failed. This Court has therefore no
alternative but to pass the order for divorce to see that both people
can be free to have their own houses in this behalf because to keep
both husband and wife when one stays at Mumbai and another at
Gandhidham, without intention to stay together, would serve no purpose.
Therefore, the marriage is completely broken down and no useful
purpose would be served by dismissing the Second Appeal."


We are of the view that these observations of the High Court are fully
justified in the facts of the present case. One has to particularly
note the fact that the parties knew even prior to marriage whatever
they were earning. The earnings of the wife from a Government job
before the marriage was more than double of that of the husband. With
the knowledge of this fact the parties entered into matrimonial
alliance. The marriage survived only for a brief period of about seven
months. After 2nd June, 1993 till the exchange of notices and replies
during September to December, 1996 and filing of the divorce petition
ultimately by the husband on 31st December, 1996, there has been no
attempt on the part of the wife to stay with the husband. She is a
school teacher and it is common knowledge that in schools there are
long vacations during summer months, more so, in Government schools
where the wife teaches. At least during those holidays she could have
visited the husband at Ulhasnagar alongwith her son and stayed with
him. There is nothing on record to show that any such attempt was ever
made by her to visit the husband during this entire period. She has
stated in her evidence that the husband used to come and stay with her
during her vacations. This has been denied by the husband.
Therefore, the conclusion in inevitable, that there was never any
attempt on the part of the wife to go to husband's house i.e.,
matrimonial home of the parties after she left on 2nd June, 1993. From
this fact alone animus deserendi on the part of the wife is clearly
established. She has chosen to adopt a course of conduct which proves
desertion on her part. In the facts and circumstances of the case, it
cannot be said that this desertion on the part of the wife was with a
reasonable cause. Such a course of conduct over a long period indicates
total abandonment of marriage and cannot be justified on ground of
monetary consideration alone as a reasonable cause to desert. It also
amounts to willful neglect of the husband by the wife. Therefore, the
conclusion reached by the High Court appears to be absolutely correct
in the facts and circumstances of the case. This appeal is accordingly
dismissed with no order as to costs.

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