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IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

FAO (HMA) No.4012 of 2013

Reserved on:- 28.02.2026

Date of Decision: 31.03.2026

Leelawati …Appellant

Versus

Jai Krishan Sharma …..Respondent

Coram:

The Hon’ble Mr. Justice Virender Singh, Judge.

Whether approved for reporting? Yes.

For the Appellant :Mr. Atul G. Sood, Advocate.

For the Respondent :Mr. Abhinav Sharma, Advocate,

vice Mr. Surinder Saklani,

Advocate.

_________________________________________________________

Virender Singh, Judge

Appellant-Leelawati has filed the present appeal

under Section 28 of the Hindu Marriage Act, 1955

(amended up to date), (hereinafter referred to as ‘H.M. Act’)

against the judgment and decree dated 29.04.2013,

passed in H.M.A. Petition No.4-S/3 of 2009, titled as Jai

Krishan Sharma versus Leelawati, by the learned

Additional District Judge-II, Shimla, H.P. (hereinafter

referred to as the learned trial Court).

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2. Vide judgment and decree dated 29.04.2013,

the learned trial Court has partly allowed the petition, filed

under Section 13 of the H.M. Act, by respondent-Jai

Krishan Sharma, by dissolving the marriage between

appellant and respondent, by way of decree of divorce, on

the ground of desertion.

3. For the sake of convenience, the parties to the

present lis, are hereinafter referred to, in the same

manner, as were, referred to, by the learned trial Court.

4. Brief facts, leading to the filing of the present

appeal, before this Court, may be summed up, as under:-

4.1 Petitioner-husband Jai Krishan Sharma has

filed the petition under Section 13 of the H.M. Act, 1955

before the learned trial Court, on the ground that the

marriage between him and respondent was solemnized, as

per Hindu rites and customs on 15.12.1998 at village

Karyali, Tehsil Theog, District Shimla, H.P. The marriage

was duly consummated and they have been blessed with a

son on 12.12.2000. The son is stated to be residing with

the respondent, as according to the petitioner, the

respondent had forcibly taken away their son on

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26.11.2008, when, he was returning back from school.

The matter was also reported to the Police of Police

Station, Dhalli.

4.2. According to the petitioner, he was being

treated with cruelty by the respondent and due to her

cruel behaviour, he cannot live with the respondent.

Elaborating his stand, he has pleaded that the respondent

never shown any love and affection towards the petitioner.

She never used to do the daily routine work and she was

in habit of wandering here and there.

4.3. It is his further case that in the month of

November, 2006, respondent left the matrimonial home

without the permission of the petitioner and started living

with her parents. Thereafter, the petitioner along with his

parents and brother-in-law visited the house of the

parents of the respondent to take her back and to settle

the matrimonial dispute, but, respondent was not found

there. When, her whereabouts were inquired, it has been

told by the parents of the respondent that she is residing

with one Dev Raj, who is maternal uncle of the petitioner.

According to the petitioner, there was no occasion for the

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respondent to live with the maternal uncle of the

petitioner. When, mother of the petitioner inquired from

her brother, as to why, he is keeping the respondent with

him, he started abusing the mother of the petitioner.

5. On the basis of the above facts, the dissolution

of the marriage has been sought on the ground of cruelty

and desertion.

6. From the pleadings of the parties, the following

issues were framed by the learned trial Court, vide order

dated 14.01.2010:-

(i) Whether the respondent has deserted the

petitioner, as alleged, if so, its effect? OPP.

(ii) Whether the respondent treated the petitioner

with cruelty as alleged. If so, its effect? OPP.

(iii) Whether the petitioner has a cause of action?

OPP

(iv) Whether the petition is not maintainable in the

present form? OPR.

(v) Whether the petitioner is estopped from filing

the present petition by his act and conduct, as

alleged? OPR.

(vi) Whether the petitioner has not come to the

Court with clean hands as alleged. If so, its

effect ? OPR.

(vii) Relief.

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7. Thereafter the parties to the lis were directed to

adduce evidence. After closure of the evidence, the

learned trial Court has decided the petition in favour of the

petitioner, vide judgment and decree dated 29.04.2013.

8. Feeling aggrieved from the said judgment and

decree, present appeal has been preferred, before this

Court by the respondent wife, mainly on the ground, that

the judgment and decree passed by the learned trial Court

is based upon surmises and conjectures and the evidence

led by the parties has not been taken into consideration,

in its proper perspective.

9. According to the appellant, the learned trial

Court has failed to take into consideration the fact that the

wife and her son were forced by the petitioner to leave the

matrimonial home.

10. On the basis of the above facts, Mr. Atul G.

Sood, Advocate, appearing for the appellant has prayed

that the present appeal may kindly be allowed, by setting

aside the judgment and decree under challenge, before

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this Court, by dismissing the petition of the petitioner-

husband, under Section 13 of the H.M. Act.

11. Per contra, Mr. Abhinav Sharma, Advocate, vice

Mr. Surinder Saklani, Advocate, appearing for the

appellant-respondent, has supported the judgment and

decree passed by the learned trial Court, on the ground

that the learned trial Court has rightly appreciated the

evidence, so adduced and there is no occasion for this

Court to interfere with the well reasoned judgment passed

by the learned trial Court.

12. On the basis of the above facts, a prayer has

been made to dismiss the appeal.

13. In the present case, factum of marriage has not

been disputed. It has not been disputed that the

respondent wife is not residing in the matrimonial home

and she is residing in her parents house along with her

son.

14. In the above admitted factual background, now,

this Court would proceed further to discuss the evidence,

so adduced, by the parties in the present case.

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15. After framing of the issues, the petitioner has

examined his mother Sumitra Devi, as PW-1, who has filed

the affidavit Ex.PW-1/A, which is based upon the

averments, as made in the petition. In the cross

examination, this witness, this witness has deposed that

during the initial four-five years of their marriage, parties

to the lis lived happily in the matrimonial home.

Thereafter, the respondent had started abusing her

husband. She has further deposed that the respondent

had left the matrimonial home about four-five years ago

from the date when this witness stepped into the witness

box. Efforts were made to bring her back by associating

the panchayat members, but, she was not found present.

However, no case was filed in the Court for restitution.

16. PW-2, Suresh Sharma, is the brother-in-law of

the petitioner, who has filed his affidavit Ex.PW-2/A,

which is also based upon the assertion, as made in the

petition. According to this witness, the petitioner had

taken the separate accommodation on rent for respondent

at Theog and this witness had also visited the residence of

the petitioner at Theog. According to him, in the year

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2006, respondent had started residing with her house,

upon which, this witness, along with the petitioner and his

parents, had visited the house of the parents of the

respondent and tried their best to take her back, but, she

was not found there. Later on, they were told that she is

residing with one Dev Raj, who is maternal uncle of the

petitioner. In the cross examination, this witness has

exonerated the respondent by stating that her behaviour

with this witness was cordial.

17. PW-3, Tej Ram, is the witness to the same facts.

18. Petitioner-Jai Krishan Sharma, has appeared in

the witness box as PW-4 and has filed his affidavit in

evidence Ex. PW4/A, which is based upon the stand, as

taken in the petition. In the cross examination, he has

deposed that he is residing separately from the respondent

from the year 2006. His son was taken away by the

respondent from the school. When, she took away their

son, then, matter was reported to police and he proved the

copy of the same as Mark-X. No case has been instituted

for seeking the custody of the minor son. When, the

respondent had allegedly given threatening to him, neither

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the matter was reported to the police, nor, the proceedings

for restitution of conjugal rights have been initiated.

According to him, his parents and brother-in-law made

efforts to bring the respondent back to the matrimonial

home, however, he could not spell out the date, when, they

had gone to the parents’ house of the respondent. This

witness has also denied that he has solemnized marriage

with one Rekha. He has denied that he was found

residing with his second wife at Sanjauli and matter was

reported to the police on 23.09.2002. Rest, he has denied

all the suggestions, which were put to him by learned

counsel appearing for the respondent.

19. PW-5 Harish Sharma has also supported the

case of the petitioner.

20. To rebut this evidence, the respondent appeared

in the witness box as RW-1 and deposed that she was

married to the petitioner in the year 1998. Right from the

date of their marriage, behaviour of her in-laws was not

cordial with her, they used to beat her and she was

maintained by her father. According to her further

deposition, petitioner used to beat her on account of the

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fact that he had solemnized second marriage with one

Rekha. This witness has inquired about the second

marriage of her husband in the year 2008, by visiting the

rental accommodation of her husband, where, one lady

was found, who left the spot on seeing her. When,

inquired from the petitioner, he has proclaimed that she is

the wife of his brother. Thereafter, the matter was

reported to police at Dhalli, by moving the complaint

mark-X. She has categorically stated that neither her

husband, nor, her in-laws made efforts to take her back to

the matrimonial home. Lastly, she has expressed her

intention to go back to the matrimonial home.

21. In the cross examination, she has admitted that

after the marriage, she had initially resided at her in-laws

house and thereafter, resided with the petitioner at Theog.

Her son was studying in Prem Public School at Theog and

his expenses were borne by her husband. She has denied

the suggestion that after the marriage, she had started

quarreling with her in-laws. She has also denied the

suggestion that she used to force her husband to reside

separately at Theog. She has denied the suggestion that

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she had started residing with Dev Raj, maternal uncle of

petitioner. This witness has admitted that she had not got

her self medico-legally examined qua the alleged beatings

given by her husband, nor, the matter was reported to the

police.

22. RW-2, Tulsi Ram is the father of the

respondent, who has supported the stand of his daughter.

23. So far as the documentary evidence is

concerned, mark-Y is the complaint made by the petitioner

to Pradhan Gram Panchayat, Kot-Shillaro. Mark-X is the

complaint made by petitioner to police. PW-6/A, is the

copy of the Parivar register.

24. The petitioner has sought dissolution of his

marriage with respondent, mainly on the ground that the

respondent has deserted him and she has treated her with

cruelty. The learned trial Court has decided Issue No.2

against the petitioner and the findings of the learned trial

Court, on this issue have not been assailed, by the

petitioner-husband by filing the cross objection or by filing

the appeal against those findings. Hence, those findings

have now attained finality.

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25. The learned trial Court has dissolved the

marriage between the parties, on the ground that the

respondent-wife has deserted the petitioner-husband. As

per the stand taken in the petition, the respondent wife

had taken away the son of the parties from the

matrimonial home on 26.11.2018. The respondent-wife

had allegedly left the matrimonial home in the month of

November, 2006, without informing the

petitioner/husband and thereafter, she had started living

at her parents’ house. It has also been pleaded in the

petition that the petitioner/husband along with his

parents and brother-in-law, had visited the house of the

parents of the respondent wife to take her back and to

settle the matrimonial ties, but, according to him, she was

not found there. On inquiry, her parents had disclosed

that she has started residing with one Dev Raj, who is

maternal uncle of petitioner/husband.

26. The plea of desertion has been taken by the

petitioner/husband. Desertion means the intentional

permanent forsaking and abandonment of one spouse by

the other without any reasonable cause.

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27. In order to succeed on the plea of desertion, it is

incumbent upon the petitioner/husband to plead and

prove the fact that there is total repudiation of the

obligations, of the marriage of the part of the respondent

wife. For proving the plea of desertion, burden is upon the

party, who alleges that the other party has deserted him.

To prove the factum of desertion, as well as, animus-

deserendi, he has to establish, beyond reasonable doubt,

to the satisfaction of the Court, that the desertion

throughout the entire period of two years, before the

presentation of the petition, was without just cause.

28. In this case, the petition has been filed,

before the learned trial Court on 26.03.2009 and as per

para-5, the wife (respondent) allegedly left the matrimonial

home, in the month of November, 2006, without telling the

petitioner/husband. His petition is totally silent about the

material fact that the factum of desertion was with the

animus-deserendi, as desertion is not merely a physical

act of leaving a place, but, it is a withdrawal from a state

of things. The pleadings are also silent about the fact that

the respondent wife had left the matrimonial home,

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without any intention to return, as well as, with the

intention to bring co-habitation permanently to an end.

29. In addition to this, the petitioner-husband

has also to plead and prove that he is willing to keep the

respondent-wife in the matrimonial home, but, the

respondent wife without any reasonable cause is avoiding

his company. In this case, when, the husband appeared

in the witness box as PW-4, filed his affidavit, in

examination-in-chief, which is based upon the stand as

taken in the pleadings, however, in the cross examination,

he has admitted that no efforts have been made by him to

bring respondent wife back to matrimonial home, by filing

the petition for restitution of conjugal rights.

30. Not only this, he has admitted that he does not

remember the date, when, he, along with his parents and

brother-in-law, had gone to bring the respondent wife back

from her parents house.

31. His mother Sumitra Devi, appeared in the

witness box, as PW-1/A and has also failed to spell out the

date, when, she, along with her husband, her son

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(petitioner) and their son-in-law had gone to bring the

respondent-wife back to the matrimonial home.

32. PW-2, Suresh Sharma, brother-in-law of the

petitioner, also could not spell out the date, when, they

had gone to the respondents parents’ house to bring her

back.

33. Another fact, which has rightly been highlighted

by the learned counsel appearing for the appellant, in the

present case is about the fact that the pleadings of the

petitioner husband qua desertion, in para-5 of the

petition, are vague in nature, as, he has simply mentioned

that in the month of November, 2006, the respondent-wife

had left the company of the petitioner and started living at

her parents house. The petition has been filed in the year,

2009 and non- mentioning the exact date, when, the

respondent-wife had left the matrimonial home, is fatal

for the case of the petitioner/husband, as the said

pleadings are vague pleadings.

34. The learned trial Court, while accepting

the plea of desertion, has relied upon the decision of

Hon’ble Supreme Court Case, in Gita Jagdish Mangtani

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versus Jagdish Mangtani, reported in 2005 (8) SSC 177.

With due respect to the law laid down, by the Hon’ble

Supreme Court, in the said case, in the considered opinion

of this Court, the same is not applicable in the facts and

circumstances of the present case.

35. In the present case, except taking a vague plea

with regard to the visit of the petitioner/husband along

with his parents and brother-in-law, to the house of

respondent’s parents, no other effort has been made by

him to pursue the legal remedies, to bring respondent-wife

back to the matrimonial home, by filing the petition under

Section 9 of the Hindu Marriage Act.

36. The petitioner/husband in this case, has also

made half hearted stand, by pleading that the respondent

wife was found residing with one Dev Raj, maternal uncle

of the petitioner. Neither the plea of adultery has been

taken in the present case, nor, said Dev Raj has been

examined, as witness, in the present case, so that a

suggestion could be given to him qua the fact that the wife

of the petitioner is residing with him.

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37. The respondent-wife in para-4 of the reply, has

taken the specific plea that the petitioner/husband had

started residing with one Rekha, The said stand has not

been controverted/repelled by the petitioner husband, by

filing replication/rejoinder.

38. At the cost of repetition, no efforts have

been made by the petitioner/husband to bring the

respondent-wife back to the matrimonial home, nor,

allegations, as contained in para-4 of the reply qua the

fact that he is residing with one Rekha, have not been

repelled, by the petitioner-husband. As such, it can be

said that the respondent wife has probibalized the

reasons, due to which, she is not residing with the

petitioner/husband in the matrimonial home.

39. Considering all these facts, this Court is of

the view that the learned trial Court has fallen into an

error, while, accepting the plea of desertion. In such type

of cases, it is the bounden duty of the Court to see that

the fact of residing separately falls within the definition of

‘desertion’, as the same is not walking out of the house,

but, withdrawal from a home.

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40. Pleadings in this case, are too short to

demonstrate that the petitioner-husband has proved the

fact that the respondent-wife has left the matrimonial

home with a determination to put an end to the marital

relations and to cohabitation permanently. However, the

stand of the respondent-wife in reply, which has not been

controverted, by the petitioner-husband, qua his living

with a lady Rekha, to the considered opinion of this Court,

constitutes a valid reason for the respondent-wife not to

live in the matrimonial home.

41. The learned trial Court has fallen into an error,

while accepting the plea of desertion, in the present case.

The petitioner/husband has placed on record copy of legal

notice, which was served upon to respondent-wife.

Although, this document has not been relied upon by the

petitioner/husband, but, the same can be taken into

consideration, while judging the stand of the respondent-

wife to the disadvantage of the petitioner/husband. In

this notice, no date has been mentioned, when, the

respondent-wife allegedly left the matrimonial home and a

vague averment has been made that the respondent-wife

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had left the matrimonial home from the last more than two

years. The alleged intention of the petitioner/husband to

bring the respondent-wife back to the matrimonial home

also comes under cloud of suspicion, when, he has got

mentioned in the notice, qua dissolution of his marriage,

which means the petitioner-husband wants to take the

benefit of his own wrong, which is not permissible under

the law.

42. The act and conduct of the petitioner-

husband in not making any effort to bring the respondent-

wife back to the matrimonial home, by instituting the

requisite proceedings, before the competent Court of law

or making any sincere effort to bring her back dis-entitles

the petitioner/husband from the relief, which has been

given to him by the learned trial Court.

43. In view of the above, the findings recorded

by the learned trial Court are liable to be reversed.

Consequently, the present appeal is allowed and judgment

and decree dated 29.04.2023 passed by the learned trial

Court, which are under challenge, before this Court, are

set-aside, by allowing the appeal and the petition, filed

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under Section 13 of the Hindu Marriage Act, by the

husband is ordered to be dismissed. There shall be no

order so as to costs.

44. Pending application(s), if any, shall also stand

disposed of.

45. Record be sent back.

(Virender Singh)

Judge

March 31, 2026

(subhash)