Muttaci Jeyapaul, J.@mdashAggrieved by the dismissal of the petition filed under Section 13(1)(b) of the Hindu Marriage Act, 1955, seeking
dissolution of marriage by a decree of divorce, the wife Priyanka has come forward with the present appeal.
2. Petitioner-wife filed a petition for dissolution of marriage on the sole ground of desertion. The petitioner married the respondent-husband on
27.4.2008. It was contended by the petitioner that she was a minor at the time when the marriage was performed. She visited her in-laws house
alongwith the respondent-husband only for one night and thereafter came back to her parental house on 29.4.2008. It has been alleged by the
petitioner that the respondent-husband and his family members being not satisfied with the dowry given at the time of marriage, taunted her when
she reached her matrimonial home. It is alleged that the respondent never visited her parental home to take her back. The petitioner has since
attained majority and is willing to restitute the relation with the respondent. The respondent filed a petition under Section 9 of the Hindu Marriage
Act and the same was dismissed as withdrawn on 21.7.2011. The respondent deserted the petitioner since 29.4.2008, without any reasonable
cause and excuse.
3. The respondent contended in his written statement that the date of birth of petitioner was not disclosed before the marriage. The petitioner
herself refused to restitute the relation with him. The father of the petitioner had not made any efforts. In fact, the petitioner lived for one night in her
matrimonial home. The next day, she proceeded to her parental home and never came back to accompany the respondent. The respondent waited
for about 3 months for the arrival of the petitioner to the matrimonial home and thereafter proceeded to the parental home of his wife, but she
refused to accompany him. Several efforts made by him to restitute the relation proved futile.
4. The trial Court having adverted to the evidence of the petitioner who was examined as PW1, her mother Roshni as PW2 and the documents
Ex.PW1/A, Ex.PW2/A and Mark ''A'' adduced on the side of the petitioner and RW1 who is the husband and RW2, Rajinder, father of RW1,
came to the conclusion that the petitioner failed to establish that the respondent deserted the petitioner without sufficient cause. Ultimately, the trial
Court dismissed the plea for dissolution of marriage on the ground of desertion as pleaded by the petitioner.
5. It was contended on the side of the appellant that she was a minor at the time of marriage. On the contrary, it was the plea of the respondent-
husband that the age of the petitioner was not informed to him.
6. Firstly, we find that the petition was not filed by the appellant with a prayer for annulment of the marriage by invoking the provisions under
Section 11 of the Hindu Marriage Act, 1955. Secondly, there is no documentary proof to establish that the appellant was a minor at the time when
her marriage was solemnized. Therefore, in our view, the plea of the appellant that she was a minor at the time of marriage does not have a material
bearing on this case.
7. Let us now take up the ground of desertion set up by the appellant. It is her admitted case that she stayed with the respondent- husband in the
matrimonial home only on 28.4.2008 after the marriage that was held on 27.4.2008 and thereafter she came back to her parental home on
29.4.2008 itself. Nothing was pleaded that on account of cruelty committed by the husband, she had to leave the matrimonial home. In other
words, no sufficient cause was pleaded even in the petition for her departure from the matrimonial home.
8. Learned counsel appearing for the appellant would submit that the trial Court totally ignored the evidence adduced through PW1 and PW2 that
consummation was deferred till muklawa ceremony, as the appellant was a minor at the time of marriage. As already observed by us, there is no
material to establish except the oral assertion of PW1 and PW2 that the appellant was a minor at the time when the marriage took place.
Secondly, there is no evidence on record to show that the date for muklawa ceremony was fixed and the respondent failed to take back the
appellant to matrimonial home after muklawa ceremony was over. The evidence on record would disclose that there is no muklawa ceremony at all
performed, even assuming for the sake of arguments that the appellant was a minor at the time of marriage.
9. The trial Court has rightly noted that not even a suggestion was made to RW1 and RW2 that they did not take any steps to take back the
appellant to the matrimonial home. In other words, their testimony that they took efforts to get back the appellant to matrimonial home failed, but
the father of the appellant informed them that the appellant was unwilling to join the respondent stood not challenged by the appellant.
10. The appellant has categorically deposed before the trial Court that she had no inclination to live with the respondent-husband.
11. Firstly, we find that the appellant had walked out of the matrimonial home on her own volition. No sufficient cause for such a departure from
the matrimonial home was adduced before the trial Court. Further, the evidence adduced by the respondent that they took efforts to get back the
appellant to matrimonial home was not at all put to challenge. For all these reasons, we find that the appellant has not made out a case for
dissolution of marriage on the ground of desertion.
12. It was vehemently submitted by learned counsel appearing for the appellant that this Court by virtue of its order dated 20.11.2014 directed the
respondent-husband to pay maintenance pendente lite at Rs. 3000/- per month from the date of application and litigation expenses of Rs. 11,000/-
. But the respondent failed to pay the said amount. Therefore, the defence of the respondent will have to be struck-off and the appeal will have to
be allowed, it was contended.
13. In Usha Rani Vs. Prem Singh, (2006) 1 DMC 356 : (2005) 140 PLR 292 , this Court made an observation that failure on the part of the
husband to pay maintenance pendente lite and litigation expenses to the appellant as directed by the Court shall lead to striking off the defence of
the husband and as a consequence, the appeal filed by the wife is to be allowed on that ground alone.
14. Of course, the respondent-husband who was directed to pay maintenance pendente lite, cannot be permitted to canvass his defence in the
appeal. Resultantly, the appeal preferred by the wife will have to be accepted.
15. On a careful perusal of the entire records in the instant case, we find that this Court ordered notice in the application filed by the wife under
Section 24 of the Hindu Marriage Act, 1955, while ordering notice of motion in the main appeal preferred by her. Though CMM No. 162 of 2013
filed by the wife praying for maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955 was referred in the previous notice
which returned unanswered, we find that the last notice sent to the appellant did not specifically refer to CMM No. 162 of 2013. In other words, a
typed-set of papers filed alongwith the notice issued in CMM No. 162 of 2013 had not been annexed alongwith the notice. The respondent had
chosen to refuse to receive the notice only in the main appeal.
16. It may be a case where the respondent would have preferred not to contest the appeal preferred by the wife, but to contest the application
filed under Section 24 of the Hindu Marriage Act, 1955. Inasmuch as no notice in CMM No. 162 of 2013 was served on the respondent or was
refused to be accepted by the respondent, the order passed by this Court in absentia of the respondent on 20.11.2014 would not operate against
the interest of the respondent.
17. In the above special circumstances, we are of the view that the above ratio laid down by this Court cannot be applied to the facts and
circumstances of this case.
18. In the result, the appeal fails and it stands dismissed. There is no order as to costs.
