# Smt. Shalini Singh v. Alok Kumar Singh

- **Citation:** (2020) 2 ILRA 1343
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-17
- **Case number:** First Appeal No. 385 of 2016
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shalini-singh-v-alok-kumar-singh-45667
- **Pages:** 11

## Headnote

A. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(ib) - Divorce - On ground
of desertion - Pre condition - Proof of
two years of continuous desertion - on
the date of filing/institution of suit -
necessary for grant of divorce as per
provision of S.13(1)(ib) - period of
desertion subsequent to filing of divorce
suit cannot be looked into for calculating
mandatory period of two years - Held -
suit for divorce filed by husband on the
ground
of
'desertion'
was
not
maintainable, as statutory period of two
years desertion by other party had not
expired on the date of institution of suit-
Husband not entitled to divorce. (Para 16)

First Appeal allowed. (E-5)

List of case cited :

Adhyatma Bhattar Alwar Vs Adhyatma Bhattar
Sri Devi 2002 (1) SCC 308

## Text

2 All. Smt. Shalini Singh Vs. Alok Kumar Singh
1343
sustained.
Appeal
succeeds
and
is
accordingly allowed. Judgement dated
30.11.2016 and decree dated 3.12.2016,
passed by Kamlesh Dubey, Principal
Judge, Family Court, Hapur, whereby Suit
No. 468 of 2018 (Ravindra Singh Vs.
Seema @ Aarju), are hereby set aside. Suit
No. 468 of 2018 (Ravindra Sigh Vs.
Seema @ Arju) filed by plaintiff for
divorce shall stand dismissed. In the facts
and circumstances of case, we are of
considered view that appellant is also
entitled to cost which we quantify at Rs.
1,00,000/-. The same shall be paid by
plaintiff to appellant within a period of one
month, by furnishing a bank draft in her
name before Court below.
----------
(2020)02ILR A1343

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 385 of 2016

Smt. Shalini Singh ...Appellant
Versus
Alok Kumar Singh ...Respondent

Counsel for the Appellant:
Sri Rahul Sahai, Sri Aditya Singh Parihar

Counsel for the Respondent:
Sri Sanjay Singh, Sri Adarsh Bhushan, Sri
Amrendra Nath Rai

A. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(ib) - Divorce - On ground
of desertion - Pre condition - Proof of
two years of continuous desertion - on
the date of filing/institution of suit -
necessary for grant of divorce as per
provision of S.13(1)(ib) - period of
desertion subsequent to filing of divorce
suit cannot be looked into for calculating
mandatory period of two years - Held -
suit for divorce filed by husband on the
ground
of
'desertion'
was
not
maintainable, as statutory period of two
years desertion by other party had not
expired on the date of institution of suit-
Husband not entitled to divorce. (Para 16)

First Appeal allowed. (E-5)

List of case cited :

Adhyatma Bhattar Alwar Vs Adhyatma Bhattar
Sri Devi 2002 (1) SCC 308

(Delivered by Hon'ble Rajeev Misra, J.)

1. This is defendant's appeal under
Section 19 of Family Courts Act 1984
(hereinafter referred to as 'Act, 1984'),
arising out of judgment and decree dated
5.9.2016, passed by Principal Judge,
Family Court, Azamgarh in Case No. 50 of
2014 (Alok Kumar Singh Vs. Smt. Shalini
Singh), whereby aforesaid case filed by
plaintiff-respondent for divorce on ground
of desertion has been decreed.

2. We have heard Mr. Aditya Singh
Parihar, Advocate holding brief of Mr.
Rahul
Sahai,
learned
counsel
for
defendant-appellant (hereinafter referred
to as 'appellant') and Mr. Amrendra Nath
Rai, learned counsel representing plaintiffrespondent (hereinafter referred to as
'respondent').

3. It transpires from record that
marriage
of
appellant
(wife)
was
solemnized with respondent (husband) on
12.12.2006 in accordance with Hindu
Rites and Customs. It is alleged by
respondent (husband) that appellant (wife)
deserted respondent about one month prior
to date of institution of divorce case. For
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
better
appreciation,
it
is
useful
to
reproduce paragraphs 6 and 10 of plaint of
Case No. 50 of 2014 (Alok Kumar Singh
Vs. Smt. Shalini Singh) :

^^6& ;g fd vlkZ djhc ,d ekg iwoZ
foi{kh@izfrokfnuh ds cM+s HkkbZ ge oknh ds ?kj
vk;s rFkk firkth ls dgs fd [kkunku es gh
yM+dh dh 'kknh gS] 'kkfyuh dks fonk dj
nhft;sA yM+dh dh 'kknh esa f'kjdr djus gsrq
ge oknh ds ekrk&firk c[kq'kh o jtkeanh foi{kh
dks [kq'kh&[kq'kh e; diM+s tsojkr o udnh ds
lkFk fonk dj fn;sA

10& ;g fd okn dkj.k fnukad
15&1&2014 dks iSnk gqvk tc fd foi{kh ge
oknh ds ?kj jgus o mijksDr vof/k vlkZ djhc
3&4 o"kZ iwoZ ls dksgSfoV djus o 'kkjhfjd lEca/k
LFkkfir djus ls bUdkj djus o la;qDr ifjokj
ds yksxks ds lkFk nqO;Zogkj o xkyh&xykSt o
rksM+QksM+ djus o nkEiR; thou ls xqjst djus
ds dkj.k Jheku ds U;k;ky; ds {ks=kf/kdkj ds
rgr iSnk gqvk vkSj U;k;ky; dks okn dh
lquokbZ dk iw.kZ {ks=kf/kdkj gSA**

"6. That around one month ago
elder
brother
of
the
lady
respondent/defendant came to our house
and requested father to give a send-off to
Shalini because a marriage was to be
solemnised in their family. We, the parents
of the petitioner, gave a sent-off on a
happy note and with all pleasure to the
respondent alongwith clothes, jewellery
and cash for her participation in girl's
marriage.

10. That a cause of action arose
on 15.1.2014 under the jurisdiction of your
goodself's court when respondent refused
to reside in the petitioner's house, to
cohabit and establish physical relation
with the petitioner for the aforesaid period
i.e. about 3-4 years, thus refrained from
marital life, and also misbehaved with
members of our joint family; and this
Court has proper jurisdiction to hear the
case."(English Translation by Court)

4. Suit filed by respondent was
contested
by
appellant.
Accordingly,
appellant
filed
a
written
statement
whereby, most of the allegations made in
plaint were denied and additional pleas
were also raised. Admitting the factum of
marriage respondent and appellant, it was
pleaded by appellant that from the
aforesaid wedlock, two daughters namely,
Vijeta and Pihu were born. The averments
made in paragraphs 6 and 10 of plaint,
were categorically denied. It was stated
that desertion as a ground of divorce has
been set up by plaintiff on incorrect facts.
There is no factual basis for pleading
desertion.
It
was
also
stated
that
respondent and his family members have
continuously demanded additional dowry
from appellant. In pursuit of their
aforesaid
demand,
appellant
has
continuously been harassed and treated
with cruelty by respondent and his family
members. Respondent wants to have a
second marriage and therefore, suit for
divorce on the ground of desertion has
been filed which is liable to be dismissed.
Appellant
categorically
pleaded
her
readiness and willingness to reside with
respondent.

5. On the pleadings of parties as
noted
above,
Court
below
framed
following three issues:

(i)
Whether
defendantappellant is residing separately from
plaintiff-respondent at her maternal
home without any valid reason. If yes,
its effect.

(ii)
Whether
defendantappellant
has
deserted
plaintiffrespondent without any valid reason, if
yes, its effect.

(iii) To what relief is plaintiffrespondent entitled for.
2 All. Smt. Shalini Singh Vs. Alok Kumar Singh
1345

6. After issues were framed, parties went
to trial. Respondent in order to prove his case,
adduced himself as P.W. 1 and Lok Nath Singh
as P.W.2. Further respondent filed two
documents in evidence vide list of documents-
Paper No. 7 Ga-1 namely, (photocopy of
identity card-8 Ga-1) and Paper No. 39 Ga-1
(pay slip for the month of May and June, 2016
Paper No. 40 Ga-1).

7. Appellant in order to establish her
defence adduced herself as D.W.1 and one
Bhupendra Kumar Singh as D.W.2. In
documentary evidence, appellant filed medical
certificate dated 21.5.2016 i.e. Paper No. 30
Ga-2.

8. Court below proceeded to decide
above mentioned divorce suit by considering
pleadings of parties and oral as well as
documentary evidence adduced by parties. In
respect of Issue No.1, Court below concluded
that appellant is residing separately from
respondent since last three to four years.
Regarding Issue No.2, Court below held that
failure on the part of appellant in not residing
with respondent, without any sufficient reason,
amounts to commission of 'mental cruelty'.
Further, respondent has succeeded in proving
desertion on the part of defendant-appellant. In
view of findings recorded in respect of issue
nos. 1 and 2, Court below concluded that
respondent is entitled to decree of divorce on
the ground of desertion by appellant (wife)
without any valid reason. Consequently, Court
below by means of judgement and decree
dated 5.9.2016, decreed suit of plaintiffrespondent on the ground of 'desertion'.
Feeling aggrieved by aforesaid judgement and
decree appellant (wife) has approached this
Court by means of present First Appeal filed
under Section 19 of Act 1984.

9. Mr. Aditya Singh Parihar, learned
counsel appearing for appellant submits that
impugned judgement and decree passed by
Court below is unsustainable in law and fact,
Consequently, same are liable to be set aside
by this Court. According to learned Counsel,
suit for divorce was filed by respondent on the
ground of 'desertion' and not on the ground of
'cruelty'. Consequently, Court below, did not
frame any issue with regard to commission of
'cruelty' by appellant upon respondent. Since
suit was filed on the ground of 'desertion', precondition necessary for a decree of divorce on
ground of desertion must have been satisfied
on the date of filing of suit. The period of
desertion subsequent to filing of divorce suit
cannot be looked into for calculating
mandatory period of two years, which is a pre
condition for filing a suit for divorce on the
ground of 'desertion'. In the case in hand, suit
was filed before expiry of a period of two years
of desertion on the part of appellant. As such,
essential pre-condition for seeking a decree of
divorce on the ground of 'desertion' was not
satisfied on the date of institution of suit. Court
below by adopting a strange procedure has
concluded that mental 'cruelty' was committed
by
defendant-appellant
upon
plaintiffrespondent in the years subsequent to filing of
suit and therefore, it proved desertion also.
Hence, impugned judgement and decree
passed by Court below are liable to be set aside
by this Court.

10. Mr. Amrendra Nath Rai, learned
counsel for respondent has supported
impugned judgement and decree on the
reasonings recorded by Court below in
impugned judgement. He has further relied
upon various observations made by Court
below and on cumulative basis, he submits
that impugned judgement and decree
passed by Court below are not liable to be
interfered with.

11. Having heard learned counsel for
parties at length and in detail we find that
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
only issue which arises for consideration
in this appeal is:- "Whether suit for
divorce filed by respondent on the ground
of 'desertion' was not maintainable, as
statutory period of two years desertion by
other party had not expired on the date of
institution of suit".

12. Before proceeding to consider the
issue involved in the present appeal, it
would be prudent to reproduce Section 13
of Hindu Marriage Act, 1955 (hereinafter
referred to as' Act, 1955') which provides
for grounds of divorce:

" 13 Divorce. --(1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband or
the wife, be dissolved by a decree of
divorce on the ground that the other party-
-

[(i) has, after the solemnization
of the marriage, had voluntary sexual
intercourse with any person other than his
or her spouse; or

(i-a) has, after the solemnization
of the marriage, treated the petitioner with
cruelty; or

(i-b) has deserted the petitioner
for a continuous period of not less than
two years immediately preceding the
presentation of the petition; or]

(ii) has ceased to be a Hindu by
conversion to another religion; or

[(iii) has been incurably of
unsound mind, or has been suffering
continuously or intermittently from mental
disorder of such a kind and to such an
extent
that
the
petitioner
cannot
reasonably be expected to live with the
respondent.

Explanation.--In this clause,--

(a)
the
expression
"mental
disorder" means mental illness, arrested
or incomplete development of mind,
psychopathic
disorder
or any
other
disorder or disability of mind and includes
schizophrenia;

(b) the expression "psychopathic
disorder" means a persistent disorder or
disability of mind (whether or not
including sub-normality of intelligence)
which results in abnormally aggressive or
seriously irresponsible conduct on the part
of the other party, and whether or not it
requires or is susceptible to medical
treatment; or]

(iv) has, been suffering from a
virulent and incurable form of leprosy; or

(v) has, been suffering from
venereal disease in a communicable form;
or

(vi) has renounced the world by
entering any religious order; or

(vi) has not been heard of as
being alive for a period of seven years or
more by those persons who would
naturally have heard of it, had that party
been alive;

Explanation.
-In
this
subsection, the expression desertion means
the desertion of the petitioner by the other
party to the marriage without reasonable
cause and without the consent or against
the wish of such party, and includes the
wilful neglect of the petitioner by the other
party to the marriage, and its grammatical
variations and cognate expressions shall
be construed accordingly.

(1-A) Either party to a marriage,
whether solemnised before or after the
commencement of this Act, may also
present a petition for the dissolution of the
marriage by a decree of divorce on the
ground--

(i) that there has been no
resumption of cohabitation as between the
parties to the marriage for a period of 22
[one year] or upwards after the passing of
2 All. Smt. Shalini Singh Vs. Alok Kumar Singh
1347
a decree for judicial separation in a
proceeding to which they were parties; or

(ii) that there has been no
restitution of conjugal rights as between
the parties to the marriage for a period of
22 [one year] or upwards after the passing
of a decree for restitution of conjugal
rights in a proceeding to which they were
parties.

(2) A wife may also present a
petition for the dissolution of her marriage
by a decree of divorce on the ground,---

(i) in the case of any marriage
solemnised before the commencement
of this Act, that the husband had
married
again
before
such
commencement or that any other wife
of the husband married before such
commencement was alive at the time of
the solemnisation of the marriage of
the petitioner: Provided that in either
case the other wife is alive at the time
of the presentation of the petition; or

(ii) that the husband has,
since
the
solemnisation
of
the
marriage, been guilty of rape, sodomy
or [bestiality; or]

[(iii) that in a suit under
section 18 of the Hindu Adoptions and
Maintenance Act, 1956 (78 of 1956), or
in a proceeding under section 125 of
the Code of Criminal Procedure, 1973
(2
of
1974)
[or
under
the
corresponding section 488 of the Code
of Criminal Procedure, 1898 (5 of
1898)], a decree or order, as the case
may be, has been passed against the
husband awarding maintenance to the
wife notwithstanding that she was
living apart and that since the passing
of such decree or order, cohabitation
between the parties has not been
resumed for one year or upwards; or

[(iv) that her marriage (whether
consummated or not) was solemnised
before she attained the age of fifteen years
and she has repudiated the marriage after
attaining that age but before attaining the
age of eighteen years.]

Explanation.
--This
clause
applies
whether
the
marriage
was
solemnised
before
or
after
the
commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976).]

13. There is a State of U.P.
Amendment also but it is not relevant for
the present purpose, hence we are not
referring it.

14. The term 'desertion' has not been
defined in Act, 1955. Section 13 (1) (1b)
of Act, 1955 only provides for precondition necessary for seeking divorce on
ground of desertion. In this regard,
reference be made to Adhyatma Bhattar
Alwar Vs. Adhyatma Bhattar Sri Devi,
2002 (1) SCC 308, wherein Court has
dealt with concept of 'desertion' and
observed as follows in paragraphs 7, 8, 9,
10, 11 and 12:

"7. "Desertion" in the context of
matrimonial
law
represents
a
legal
conception. It is difficult to give a
comprehensive definition of the term. The
essential ingredients of this offence in
order that it may furnish a ground for
relief are:

1. the factum of separation;

2.
the
intention
to
bring
cohabitation permanently to an end --
animus deserendi;

3. the element of permanence
which is a prime condition requires that
both these essential ingredients should
continue during the entire statutory
period;

The clause lays down the rule
that desertion to amount to a matrimonial
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
offence must be for a continuous period of
not less than two years immediately
preceding the presentation of the petition.
This clause has to be read with the
Explanation. The Explanation has widened
the definition of desertion to include
"wilful neglect" of the petitioning spouse
by the respondent. It states that to amount
to a matrimonial offence desertion must be
without reasonable cause and without the
consent or against the wish of the
petitioner. From the Explanation it is
abundantly clear that the legislature
intended to give to the expression a wide
import which includes wilful neglect of the
petitioner by the other party to the
marriage. Therefore, for the offence of
desertion, so far as the deserting spouse is
concerned, two essential conditions must
be there, namely, (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.
The petition for divorce bears the burden
of proving those elements in the two
spouses respectively and their continuance
throughout the statutory period.

8. This Court in the case of Bipin
Chander Jaisinghbhai Shah v.Prabhawati
[1956 SCR 838 : AIR 1957 SC 176]
observed: (AIR pp. 183-84 & 190-91,
paras 10 & 21)

"Thus the quality of permanence
is one of the essential elements which
differentiates
desertion
from
wilful
separation. If a spouse abandons the other
spouse in a state of temporary passion, for
example,
anger
or
disgust,
without
intending
permanently
to
cease
cohabitation, it will not amount to
desertion. For the offence of desertion, so
far as the deserting spouse is concerned,
two essential conditions must be there,
namely, (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.
The petitioner for divorce bears the burden
of proving those elements in the two
spouses respectively. Here a difference
between the English law and the law as
enacted by the Bombay Legislature may be
pointed out. Whereas under the English
law
those
essential
conditions
must
continue throughout the course of the three
years
immediately
preceding
the
institution of the suit for divorce, under the
Act, the period is four years without
specifying that it should immediately
precede the commencement of proceedings
for divorce. Whether the omission of the
last clause has any practical result need
not detain us, as it does not call for
decision in the present case.Desertion is a
matter of inference to be drawn from the
facts and circumstances of each case. 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. If, in fact, there has
been a separation, the essential question
always is whether that act could be
attributable to an animus deserendi. The
offence of desertion commences when the
fact of separation and the animus
2 All. Smt. Shalini Singh Vs. Alok Kumar Singh
1349
deserendi coexist. But it is not necessary
that they should commence at the same
time. The de facto separation may have
commenced without the necessary animus
or it may be that the separation and the
animus deserendi coincide in point of
time; for example, when the separating
spouse abandons the marital home with
the intention, express or implied, of
bringing cohabitation permanently to a
close. The law in England has prescribed
a three years' period and the Bombay Act
prescribed a period of four years as a
continuous period during which the two
elements must subsist. Hence, if a
deserting spouse takes advantage of the
locus poenitentiae thus provided by law
and decides to come back to the deserted
spouse by a bona fide offer of resuming the
matrimonial
home
with
all
the
implications of marital life, before the
statutory period is out or even after the
lapse of that period, unless proceedings
for
divorce
have
been
commenced,
desertion comes to an end and if the
deserted spouse unreasonably refuses to
offer, the latter may be in desertion and
not the former. Hence it is necessary that
during all the period that there has been a
desertion, the deserted spouse must affirm
the marriage and be ready and willing to
resume married life on such conditions as
may be reasonable. It is also well settled
that in proceedings for divorce the plaintiff
must prove the offence of desertion, like
and other matrimonial offence, beyond all
reasonable
doubt.
Hence,
though
corroboration is not required as an
absolute rule of law the courts insist upon
corroborative evidence, unless its absence
is accounted for to the satisfaction of the
court.

But it is not necessary that at the
time the wife left her husband's home she
should have at the same time the animus
deserendi. Let us therefore examine the
question whether the defendant in this
case, even if she had no such intention at
the time she left Bombay, subsequently
decided to put an end to the matrimonial
tie. This is in consonance with the latest
pronouncement of the Judicial Committee
of the Privy Council in the case of Lang v.
Lang [1955 AC 402 : (1954) 3 All ER 571
: (1954) 3 WLR 762 (PC)] AC at p. 417(F)
in an appeal from the decision of the High
Court of Australia, to the following effect:

''Both
in
England
and
in
Australia, to establish desertion two things
must be proved: first, certain outward and
visible
conduct
--
the
''factum'
of
desertion;
secondly,
the
''animus
deserendi' -- the intention underlying this
conduct to bring the matrimonial union to
an end.

In ordinary desertion the factum
is simple; it is the act of the absconding
party in leaving the matrimonial home.
The contest in such a case will be almost
entirely as to the ''animus'. Was the
intention of the party leaving the home to
break it up for good, or something short
of, or different from that?' "

(emphasis supplied)

9. In the case of Lachman
Utamchand Kirpalani v. Meena [AIR 1964
SC 40 : (1964) 4 SCR 331] a Constitution
Bench of this Court, considering the case
of judicial separation on the ground of
desertion without just cause, held on facts
that
the
respondent
(wife)
left
the
appellant's matrimonial home on 26-21954 with the intention of permanently
breaking it up, and that such desertion
continued during the requisite period of
two years and that the appellant's letter of
1-4-1955,
did
not
constitute
an
interruption of the respondent's desertion
by its being a just cause for her to remain
away from the matrimonial home; and
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
that, in consequence, the appellant was
entitled to a decree for judicial separation
under Section 10(1)(a) of the Hindu
Marriage Act, 1955. It was observed that:
(AIR p. 52, para 28)

"An offer to return to the
matrimonial home after some time, though
desertion had started, if genuine and
sincere and represented his or her true
feelings and intention, would bring to an
end the desertion because thereafter the
animus deserendiwould be lacking, though
the factum of separation might continue;
but on the other hand, if the offer was not
sincere and there was in reality no
intention to return, the mere fact that
letters were written expressing such an
intention would not interrupt the desertion
from continuing."

In this connection, reference was
also made to the decision in the case of
Bipin Chander Jaisinghbhai Shah v.
Prabhawati [1956 SCR 838 : AIR 1957 SC
176] .

10. This Court in the case of
Rohini Kumari v. Narendra Singh[(1972)
1 SCC 1 : 1972 SCC (Cri) 1] while
considering the case of judicial separation
on the ground of desertion under Section
10(1)(a) of the Act read with the
Explanation, held: (SCC pp. 3-4, paras 45)

"The two elements present on the
side of the deserted spouse should be
absence of consent and absence of conduct
reasonably causing the deserting spouse to
form his or her intention to bring
cohabitation to an end. The requirement
that the deserting spouse must intend to
bring cohabitation to an end must be
understood
to
be
subject
to
the
qualification that if without just cause or
excuse a man persists in doing things
which he knows his wife probably will not
tolerate and which no ordinary woman
would tolerate and then she leaves, he has
deserted her whatever his desire or
intention may have been. The doctrine of
''constructive desertion' is discussed at p.
229. It is stated that desertion is not to be
tested by merely ascertaining which party
left the matrimonial home first. If one
spouse is forced by the conduct of the
other to leave home it may be that the
spouse responsible for the driving out is
guilty of desertion. There is no substantial
difference between the case of a man who
intends to cease cohabitation and leaves
the wife and the case of a man who with
the same intention compels his wife by his
conduct to leave him.

In
Lachman
Utamchand
Kirpalani v. Meena [AIR 1964 SC 40 :
(1964) 4 SCR 331] this Court had
occasion to consider the true meaning and
ambit of Section 10(1)(a) of the Act read
with the Explanation. Reference was made
in the majority judgment to the earlier
decision in Bipin Chander Jaisinghbhai
Shah v.Prabhawati [1956 SCR 838 : AIR
1957 SC 176] in which all the English
decisions as also the statement contained
in authoritative textbooks were considered.
After referring to the two essential
conditions, namely, the factum of physical
separation and the animus deserendi
which meant the intention to bring the
cohabitation permanently to an end as
also the two elements so far as the
deserted spouse was concerned i.e. (1) the
absence of consent and (2) absence of
conduct giving reasonable cause to the
spouse leaving the matrimonial home to
form the intention aforesaid, it was
observed while examining how desertion
might come to an end:

''In the first place, there must be
conduct on the part of the deserted spouse
which affords just and reasonable cause
for the deserting spouse not to seek
2 All. Smt. Shalini Singh Vs. Alok Kumar Singh
1351
reconciliation and which absolves her
from her continuing obligation to return to
the matrimonial home. In this one has to
have regard to the conduct of the deserted
spouse. But there is one other matter
which is also of equal importance, that is,
that the conduct of the deserted spouse
should have had such an impact on the
mind of the deserting spouse that in fact it
causes her to continue to live apart and
thus continue the desertion. But where,
however, on the facts it is clear that the
conduct of the deserted spouse has had no
such effect on the mind of the deserting
spouse there is no rule of law that
desertion terminates by reason of the
conduct of the deserted spouse.' "

(emphasis supplied)

11. This Court in the case of
Sanat Kumar Agarwal v. Nandini Agarwal
[(1990) 1 SCC 475] considering a case
under Section 13(1)(ib) of the Act, held
that it is well settled that the question of
desertion is a matter of inference to be
drawn from the facts and circumstances of
each case and those facts have to be
viewed as to the purpose which is revealed
by those facts or by conduct and
expression of intention, both anterior and
subsequent to the actual act of separation.

This
extract
is
taken
from
Adhyatma Bhattar Alwar v. Adhyatma
Bhattar Sri Devi, (2002) 1 SCC 308 at
page 317

12. In a recent case in Chetan
Dass v. Kamla Devi [(2001) 4 SCC 250]
this Court considered the question whether
the offer made by the husband in this
Court to keep his wife, was held to be not
sincere and did not deserve to be seriously
considered. In that connection, this Court
held: (SCC p. 258, para 12)

"12. During the course of the
arguments,
learned
counsel
for
the
appellant, so as to show the allegations
made against the appellant about having
illegitimate relationship with Sosamma
Thomas (sic), submitted that the appellant
is still prepared to keep the respondent
Kamla Devi with him. According to him,
the appellant never refused to live with
her. In reply, learned counsel for the
respondent submitted that the respondent
was also prepared to live with the
appellant provided that he discontinued
his relationship with Sosamma Thomas.
The hollowness of the submission that the
appellant was still prepared to keep the
respondent with him is quite apparent. It is
on record that it was on the same
undertaking that the respondent was taken
to Ganganagar by the appellant to live
with him but there she was subjected to
humiliating treatment meted out to her by
the appellant himself having his food only
in the room of Sosamma Thomas and
staying there during the night leaving his
wife and sister alone on the ground floor.
With this kind of attitude, the offer as made
on behalf of the appellant is too shallow to
deserve any serious thought. At the same
time,
the
condition
on
which
the
respondent is prepared to live with him
seems to be quite justified, that is to say,
she is still prepared to live with him
provided he behaves and snaps his
relationship with the other woman. It is
apparent that it is the own conduct of the
appellant which led the respondent to live
separate from the appellant. None else, but
the appellant alone, is to be blamed for
such
an
unhappy
and
unfortunate
situation. The findings of facts, as
recorded by the two courts below, do not
deserve to be disturbed in any manner nor
have they been seriously assailed before
us." (Emphasis added)

15. This Court now has to examine
the claim of respondent as per mandate of
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
section 13 (1)(ib) of Act 1955 and
meaning assigned to the term 'desertion' as
noted above. Section 13 (1) (ib) of Act
1955, clearly provides for grant of decree
of divorce on the ground of 'desertion'.
However, in order to seek decree of
divorce on the ground of 'desertion',
plaintiff must prove that he/she has been
deserted for a continuous period of not less
than two years immediately, preceding the
presentation of the petition. Therefore,
what implies from plain reading of
aforesaid section is that defendant must
have deserted petitioner for a continuous
period of two years prior to the date of
institution
of
suit.
The
aforesaid
requirement can be termed as a necessary
pre- condition for seeking a decree of
divorce on ground of desertion. Therefore,
it is imperative on the part of plaintiff to
plead and prove that defendant has
deserted plaintiff and has continued doing
so uninterruptedly for a period of two
years, prior to the institution of suit.

16. Consequently, now this Court has
to examine whether the pre requisite
condition for grant of a decree of divorce
on the ground of desertion is satisfied in
the present case or not. When we examine
the averments made in paragraphs 6 and
10 of plaint, as quoted above, we find that
respondent has miserably failed to plead
that appellant has deserted respondent
continuously for a period of two years
prior to the date of institution of suit. What
has been considered by Court below is the
period subsequent to institution of suit i.e.,
there has been continuous desertion on
part of appellant for a period of three to
four years. View taken by court below
cannot be sustained as according to
scheme of Act, it is the period of two years
of continuous desertion prior to institution
of suit, which has to be pleaded and
proved by plaintiff in order to succeed in a
suit for divorce on ground of desertion.
Since respondent failed to plead and prove
that
appellant
had
deserted
him
continuously for a period of two years,
prior to date of presentation of plaint, suit
for divorce on the ground of 'desertion'
could not have been decreed. Apart from
above, we also find that in order to justify
'desertion' on part of defendant-appellant,
court below has taken into consideration
the subsequent events which took place
after institution of suit. View taken by
Court below is manifestly illegal as
subsequent events could not have been
taken into consideration in a suit for
divorce as per scheme of Act itself.

17. We, accordingly, confronted
learned counsel for respondent on the
aforesaid aspect of matter, but he could not
create any dent. Except for reiterating the
findings recorded by court below and
observations made in the impugned
judgement, nothing new could be added to
dissuade us from the view taken by us with
regard to import of section 13 (1) (ib) of
Act 1955.

18. In view of discussions made
herein-above, present appeal succeeds
and is liable to be allowed. It is
accordingly
allowed.
Impugned
judgement and decree dated 5.9.2016,
passed by Principal Judge, Family Court,
Azamgarh in Case No. 50 of 2014 (Alok
Kumar Singh Vs. Smt. Shalini Singh),
are hereby set aside. Appellant shall be
entitled to cost, which we quantify at Rs.
1,00,000/-. Cost shall be deposited by
respondent with the Court below by
means of a Bank Draft payable in favour
of appellant within a period of one
month from today.
----------
2 All. Kailash Nath Gupta Vs. The Collector, Varanasi
1353
(2020)02ILR A1353

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

First Appeal No. 591 of 2009

Kailash Nath Gupta ...Appellant
Versus
The Collector, Varanasi ...Respondent

Counsel for the Appellant:
Sri S.K. Singh, Sri R.C. Maurya

Counsel for the Respondent:
Standing Counsel

A. Civil Law- Land Acquisition Act (1 of 1894)
- S.18 - Acquisition - Reference - Reference is
not appeal - Material relied on by Acquisition
Officer in award - cannot be relied upon by
the reference court unless same material is
produced and proved before reference court

Held - There was no justification for the reference
court to determine the market value of the acquired
land on the basis of a sale deed which was neither
filed in evidence nor it was before it but was merely
referred in the award passed by the S.L.A.O. (Para
9)

B. Land Acquisition Act - Deduction - 40% -
on account of largeness of area

Held - As per sale deed exemplars filed in evidence,
smaller area measuring 10 dhoors was sold while
total land measuring 1.492 acres, i.e. 2 bighas 7
biswas and 16 dhoors was acquired and therefore a
deduction on account largeness of area made -
Court applied deduction of 40% for the largeness of
the area (Para 10)

First Appeal partly allowed (E-5)

List of case cited :
Chimanlal Hargovinddas vs. Special Land Acquisition
Officer (1988) 3 SCC 751

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri R.C. Maurya, learned
counsel for the claimant-appellant and Sri B.K.
Yadav, learned standing counsel for the Staterespondents.

2. This first appeal has been filed for
enhancement of compensation.

3. Briefly stated facts of the present case
are that by notification under Section 4(1) of
the Land Acquisition Act, 1894 published in
the U.P. Gazette on 17.04.1982, an area of
1.492 acres land of certain khasra plots
including plot Nos.75 and 77 measuring 16
biswas in village Rajpura, Pargana Bhadohi,
Tehsil Gyanpur, District Varanasi belonging to
the claimant-Appellant, which was acquired
for construction of a building for telephone
exchange. Notification under Section 6 of the
Act was published in the Gazette on
17.04.1982. Possession was transferred on
18.01.1983. The Special Land Acquisition
Officer made the award on 13.03.1984
awarding compensation @ Rs.6428.50 per
biswa.

4. As per the impugned judgment of the
reference court, the boundaries of the
acquired khasra plot Nos.75 and 77 of the
claimant-appellant, are undisputedly as
under:

"East: Bhadohi Gyanpur Road

West: Cold Storage of Ram
Sundar Ram Nath

North: House of Daya Yadav in
which business of caustic soda is carried
on

South: Residential Houses"