Hi,Kinldy mention the details and grounds of divorce he has filed the petition upon 

1) Judgments depend upon facts of each case 

2)it is necessary to go through the divorce petition filed by husband , evidence on record to suggest judgments that you should rely upon 

It depends on the merits of the case general judgement will not benefit you. You need to cite the judgement depending on facts of case

Cruelty and desertion are two grounds on which he has filed for divorce. Now there are numerous judgements on these 2 for and against. But each divorce case is unique in a certain way and hence the  facts and circumstances of your case  are relevant in order to better appreciate the controversy and provide you with the judgements that would help you.

Regards 

not possible to upload. 

1.See the judgement shall be based on allegation in such ways authorities cannot be searched or sighted.

 1


 ®

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

 DATED THIS THE 23rd DAY OF NOVEMBER 2012

 :PRESENT:

 THE HON'BLE MR. JUSTICE N.K. PATIL

 AND

 THE HON'BLE MRS. JUSTICE B.S.INDRAKALA

 MFA.NO.912/2012 (MC)

BETWEEN

SMT. SUSHEELA

W/O P.GURUMURTHY,

AGED ABOUT 35 YEARS,

OCC: COOLIE,

R/O DEVARAHALLI ROAD,

SRIRAMPURA, POST: BHADRA COLONY,

BADRAVATHI TALUK - 577301

SHIMOGA DISTRICT

 ... APPELLANT

(BY SRI S.V. PRAKASH, ADVOCATE)

AND

SRI. P. GURUMURTHY,

S.O S. PUTTARAMAIAH

AGED ABOUT 39 YEARS,

OCC: BARBER

R/O BAVIKERE VILLAGE

TARIKERE TALUK,

CHIKMAGALUR DISTRICT-577101

 ... RESPONDENT

(BY SRI.G.A.ANTHONY CROZE, ADV.)

 2

 ***

 THIS MFA IS FILED U/S 28 OF HINDU

MARRIAGE ACT, AGAINST THE JUDGEMENT AND

DECREEE DATED 10.6.2011 PASSED IN

M.C.NO.30/2005 ON THE FILE OF SENIOR CIVIL

JUDGE & JMFC, BHADRAVATHI, ALLOWING THE

PETITION FILED U/S 13 OF HINDU MARRIAGE ACT

FOR DIVORCE.

 THIS MFA COMING ON FOR ADMISSION AND

BEING RESERVED FOR PRONOUNCEMENT OF

JUDGMENT, THIS DAY, B.S.INDRAKALA J.,

DELIVERED THE FOLLOWING:-

 :J U D G M E N T:

Being aggrieved by the judgment and order dated 10.06.2011 passed in M.C.No.30/2005 on the file of Civil Judge (Sr.Dn.) and CJM, Bhadravathi, the respondent therein has preferred the above appeal seeking to set aside the same.

2. For the sake of convenience the parties herein are referred to by their respective rank as arrayed before the Court below as appellant-respondent; respondent-petitioner.

3. The petitioner filed the said M.C.No.30/2005 under Section 13 of Hindu Marriage Act seekingdissolution of his marriage with the respondent- appellant herein which was celebrated on 04.06.1998 at Kabli Thandya, Kadur Taluk as per the Hindu customs. It is further contended that after marriage, both of them started living together at Sriramanagar, Bhadra Colony Post, Bhadravathi and from the wed-lock they have a daughter aged about 7 years and a son aged about 5 years. It is further contended by the petitioner that after the birth of the second child after some time, the respondent-appellant failed to join the petitioner and as such he filed M.C.No.3/2002 on the file of Senior Civil Judge & JMFC, Bhadravathi under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Further, it is alleged that in the said M.C.No.3/2002, the respondent-appellant inspite of service of notice remained absent, and as such the exparte order was passed allowing the said petition on 04.11.2002; despite the same, the appellant did not join him. It is further contended by the petitioner that in order to get better income he left his parents and sister at Srirampura and started residing at Tarikere Taluk, M.C.Halli, during that period, the respondent- appellant was staying with his parents at Srirampura, though the petitioner called the respondent-appellant and her children to come and reside with him at M.C.Halli, she refused to join him etc. Further it is contended by the petitioner that thereafter, he shifted his residence from M.C.Halli to Bavikere Village and to the said place also, the appellant failed to join him. In the circumstances, the petitioner filed the above petition seeking dissolution of his marriage with the appellant.

4. In the statement of objections filed to the said petition, the respondent-appellant herein denied all the allegations made against her and has pleaded that the petitioner neglected to take care of her and also her children, he has not provided anything for them and even now she is willing to join him etc. and has sought dismissal of the petition.

5. On behalf of the petitioner, he himself got examined as PW-1 and another one Mr.Gangadhar as PW-2 and got marked Exs.P1 to P5 and on behalf of the respondent-appellant herein, she got herself examined as RW-1. On conclusion of the evidence, the learned Judge deemed it fit to dissolve the marriage of the parties celebrated on 04.06.1998 vide impugned judgment. Being aggrieved by the said judgment, the respondent-appellant herein has preferred the above appeal inter alia contending amongst other grounds that the impugned judgment is passed without any application of mind and the facts placed before the Court below is not comprehended properly; the same is contrary to law, facts and legal evidence available on record; it has not formulated proper points for consideration etc. and has sought allowing of the above appeal.

6. Heard the arguments.

7. In view of the submissions made, the points that arise for consideration are:

1) Whether the impugned judgment and decree dated 10.06.2011 passed in M.C.No.30/2005 on the file of the Civil Judge (Sr.Dn), Bhadravathi, is liable to be set aside?

2) What order?

8. On perusal of the petition it is seen that the same is filed under Section 13 of the Hindu Marriage Act without specifying the specific ground on which the above petition is filed. However, on perusal of the contents in the petition it is seen that the same is mainly filed on the ground of desertion under Section 13 (1)(ib) of Hindu Marriage Act.

9. The explanation to the Section 13(1) explains as to what constitute desertion and under the said explanation desertion means "desertion of petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes willful neglect of the petitioner by the other party to the marriage.

10. Thus mere physical act of departure by one of the spouses does not necessarily constitute desertion and desertion is an intentional permanent forsaking and abandonment of one of the parties to the marriage by the other without others consent and without reasonable cause; there should be a total repudiation or abandonment with an intention to bring cohabitation permanently to an end. Mere physical separation between the spouses or mere intention of one to separate from the other without any overt act would not by itself amount to desertion. Thus the fact of separation and the intention to bring cohabitation to an end permanently animus deserendi are the essential features of desertion.

11. Whenever relief is sought on the ground of desertion it is also to be seen that the act of desertion to be a ground, apart from being an intentional one it also should exist for a period of two years as on the date of filing of the petition and the period of desertion is to be considered from the day on which the spouse is guilty of willful neglect and not the day from which she is residing separately without any intention to leave forever.

12. In the instant case, on perusal of the petition filed, it is seen that as already discussed supra apart from non-mentioning of the specific ground on which the petitioner is seeking relief, he has also failed to mention the exact date on which the respondent deserted him. Likewise even in the evidence, he has not specified anything with regard to the alleged date of desertion. Besides, he has also not assigned any other reason or overt act on the part of the respondent to prove that the respondent is guilty of willful neglect. Thus, the petitioner has failed to prove the factum of desertion and mere separation without intention to put an end to cohabitation does not tantamount to desertion.

13. With regard to the filing of MC No.3/2002 on the file of the Senior Civil Judge, Bhadravathi as could be seen from Ex.P.1, the address of the respondent is given as the resident of Kadur and even in that behalf, nothing is stated with regard to the date of desertion and without assigning any reason, a bald statement is made alleging that after the birth of the male child in the parental home of the respondent, she did not join the matrimonial home. Further, he has not assigned any reason as to why the respondent is residing separately. Admittedly, it is an order passed exparte and in that regard it is contended by the respondent that she was never served with any notice and the petitioner manipulated such service of notice which contention of the respondent in the facts and circumstances of the case cannot be easily ignored. Such contention of the petitioner is further fortified by the act of the petitioner himself in getting the execution case no.108/04 filed by him seeking to execute the decree of restitution passed in MC 3/2004 dismissed by advancing the case from 24.9.2005 to 1.6.2005. Further, it is to be seen that execution petition was got dismissed as closed in which event, it is also possible to be presume that the decree so sought to be executed is duly executed. In the said circumstance, the period of 2 years of desertion is also not established by the petitioner.

14. Thus, the petitioner has failed to establish the factum of desertion as contemplated under Section 13(1)(a) and its explanation and also failed to establish the period of alleged desertion. Accordingly, the impugned order passed dissolving the marriage of the petitioner with the respondent on the ground of desertion is liable to be set-aside. Accordingly, point no.1 is answered in the affirmative. Hence, the following:

ORDER The above appeal is allowed setting-aside the judgment and decree dated 10.6.2011 passed in M.C.No.30/2005 on the file of the Senior Civil Judge & JMFC, Bhadravathi. Consequently, M.C.No.30/2005 is hereby dismissed.

Sd/-

JUDGE Sd/-

JUDGE KV

Facts of cases are vary and so the supportive judgments, Whats your husband allegations, cruelty has many forms and varies in case to case.

Mere allegation of  desertion and cruelty is irrelevant have to prove with cogent evidence.

Then you can ask the advocate you have hired for your case in family court he will arrange more appropriate authorities depending on facts and merits of your case. 

Dear Client, 

As per facts, In favour of you / respondent / wife two cases decided by Hon'ble Supreme Court, below mention:

1). On Cruelty under Section 13(1) (ia) of HMA Savitri Pandey vs. Prem Chandra Pandey, reported in (2002) 2 SCC 73, has held as follows: 

Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.

No decree of divorce could be granted on the ground of desertion in the absence of pleading and proof. Learned counsel for the appellant submitted that even in the absence of specific issue, the parties had led evidence and there was sufficient material for the Family Court to return a verdict of desertion having been proved. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the matter despite the fact that there was no specific issue framed or insisted to be framed.

2). On Desertion under Section 13(1) (ib) of HMA Savitri Pandey vs. Prem Chandra Pandey, reported in (2002) 2 SCC 73, has held as follows: 

"Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held:

"For the office 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 different 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 deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus ort 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 decide 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."

Without knowing what s the defence stand you have taken to challenge the divorce case, what type of citation may be furnished to you.

There are plenty of judgments of various nature, you may even ask your advocate to fetch you one suiting to the nature of the case in your hand and the circumstances prevailing  at your end