Madras High Court
K. Palanisamy vs P. Samiathal on 6 November, 2001
Equivalent citations: AIR2002MAD156, (2002)1MLJ27, AIR 2002 MADRAS 156, (2002) 1 MAD LJ 27
Author: Prabha Sridevan
Bench: Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. The appellant, the husband filed H.M.O.P. No. 112 of 1996 before the Principal Subordinate Judge. Erode against the respondent for divorce on the ground of desertion. They were married on 28-5-1964. The respondent was related to the appellant and a few years older than him. Two children were born, a male by name Rejendran in 1968 and a female by name Padmavathy in 1974. According to the appellant he was in a transferable job. His parents as well as the respondent disliked the fact that he was constantly moving from one place to another and wanted him to resign his Job and settle down in his native village. The appellant refused to do so. In 1979 when he was posted in Erode he allowed the respondent and his children to stay with his parents in the village. According to the appellant, the respondent used to dominate him and because she was uncultured she felt isolated from her neighbours who were cultured and educated. She was encouraged in her conduct by the appellant's parents. His requests to the respondent to join him were in vain and she would threaten the appellant that if he forced her to live with him she would commit suicide. In August, 1984, when he requested her to join him she tried to commit suicide, but she was rescued. After that he did not force her to join him. In September. 1994. the appellant went to Chennai to pursue higher studies. The respondent refused to join him and she also did not allow the children to move with him freely. After 1979, she failed to perform her marital obligations. He was posted in Arani for four and half years and thereafter at Madras. Because of her illiteracy his only daughter died in 1994 due to rabies. The only son of the appellant also has become mentally unstable because of the ignorance and illiteracy of the respondent. The respondent has a morbid mind and there is no mutual adjustment and understanding. She is very money minded. The respondent had treated the appellant with cruelty and therefore, the appellant is no longer interested in retaining the marital bounds. In the first week of Chitirai 1990, an effort was made for reunion before the Panchayatars. But this also failed. Since the respondent had practically deserted the appellant from Chitirai 1990, he filed this petition for divorce on the ground of cruelty and desertion.
2. The respondent denied all the allegations and submitted that it was only at his request that she stayed with his parents when he was working in Erode, in 1977. The case that she neglected him or treated him with cruelty or she tried to commit suicide was denied. The daughter died in spite of the best efforts of the respondent and the appellant totally neglected even his own daughter, and the illhealth of his son. The appellant has not taken any efforts to help them but has shifted the blame on the respondent. The case of the Panchayat in Chitirai 1990 was also denied. According to the respondent, it was the appellant, who had deserted her while she was always ready and willing to join him. It was the appellant, who was ashamed of her because she was a village woman and had isolated her and deserted her.
3. The learned Principal subordinate Judge, Erode on a consideration of the oral and documentary evidence granted a decree dissolving the marriage. The respondent filed an appeal before the District Judge, Erode. The learned Judge held that neither cruelty was made out nor the factum of desertion and allowed the appeal. Against that the present second appeal has been filed.
4. The following substantial questions of law were framed at the time of admission :
1. Whether it is mandatory to take steps under Section 9 of the Hindu Marriage Act, 1955 before seeking divorce under Section 13 of the said Act?
2. Whether the refusal to join the husband for a long period by the wife without any reason or sufficient cause is not desertion and cruelty?
5. Mr. Suresh Kumar, learned counsel for the appellant submitted that the various efforts made by the appellant to resume the marital life had resulted in failure. He had carried on only because of the children. When his only daughter died and his son had gone mad the appellant felt there was no point in continuing the marital relationship with the respondent. He submitted that the Court below had totally failed to consider these aspects. In the oral and documentary evidence it is also shown that the respondent was not at all interested in joining him. He relied on the following judgments.
(1) Chandrika v. M. Vijayakumar (2) Smt. Chanderkala Trivedi v. Dr. S.P. Trivedi (1994) I Mad LW 36) (3) V. Bhagat v. Mrs. D. Bhagat (1994) 1 Mad LW 27).
6. The learned counsel for the respondent on the other hand submit that it was the appellant who had left the respondent in his village and had refused to take her and he cannot take advantage of his own wrong. He also pointed out that the appellant had not produced any evidence to show that he had made any efforts to take back the respondent. There was absolutely no evidence regarding the Panchayat and therefore, there was no ground for granting a divorce. As regards the ground of cruelty there are no averments regarding the instances of mental cruelty.
7. According to the appellant, the very fact that she refused to join him amounted to mental cruelty and therefore, a decree for divorce ought to be granted. The Lower Court had considered the evidence of P.W. 1 and his pleadings wherein he had stated that he allowed the respondent and the children to stay with his parents and he used to travel everyday to Erode and his native place. Therefore, the Lower Appellate Court held that when it was at the instance of the appellant that the respondent was left behind with his parents it was not open to him to say that she deserted him. The Lower Appellate Court also found that the documents filed by the appellant were letters written by the children to the appellant and there is nothing in those documents to show that the appellant requested the respondent to join him. In fact these letters only show that the children had been constantly in touch with their father which gives the lie to the case of the appellant that the respondent had poisoned her children's mind against the appellant. As regards the alleged Panchayat supposed to have been held in the first week of Chitirai 1990, the appellant has not produced any document to show that there was such a Panchayat nor has he even mentioned the names of the persons in whose presence this Panchayat was supposed to have been held. In his evidence he has stated, (Vernacular matter omitted.....Ed.) He also has said in his evidence that the Panchayat took place in his parent's house. His parents are still alive and he could have summoned them as witness to give evidence regarding the Panchayat. He did not do so. So the Court is left only with his statement that there was the Panchayat in which reunion was mooted and had failed.
8. The decisions cited by the appellant's counsel may now be examined. In (cited supra) the Division Bench of this Court held that the wife has a duty to live with her husband and failure on her part to rejoin her husband despite steps taken by him would amount to desertion. In the present case, apart from the pleadings there is absolutely no evidence to show that the appellant had taken any steps to resolve the problem or to request her to join him. In fact in his evidence, he has stated as follows :
(Vernacular matter omitted.....Ed.) Therefore, this decision will not apply to the present case. Of course, in response to this the learned counsel for the appellant could state that the respondent threatened to commit suicide whenever he called him. But there is absolutely no proof regarding this.
9. In (1994) 1 Mad LW 27 (cited supra), the Supreme Court dissolved the marriage between the parties on the ground that it is abundantly clear that there was an irretrievable break-down. Even in that case, the Supreme Court held that irretrievable breakdown of the marriage is not a ground by itself. In that case, there were allegations of an insanity, extreme mental cruelty etc. and the Supreme Court came to the conclusion that the respondent has resolved to live in agony only to make life a miserable hell for the petitioner as well. Such a circumstance does not arise in the present case.
10. In (1994) 1 Mad LW 36, the Supreme Court dismissed the wife's appeal against grant of decree of divorce on the ground the marriage appears to be practically dead. There were allegations of adultery made by the wife which were countered by allegations of undesirable association of his wife with young boys. The Supreme Court in these circumstances decided not to interfere with the decree for divorce but made some arrangements for maintenance of the wife. This decision also will not apply to the present case.
11. In the instant case, it is the appellant himself who appears to have left his wife, the respondent herein with his parents. Without any material to show that he had taken her back or had taken steps to take her back it would be difficult to come to the conclusion that she had deserted him. To grant a decree for divorce on the ground of desertion the fact of physical desertion and also the animus to desert must be proved. The pleadings have been searched in vain for any averment regarding the date when the respondent left the appellant with an intention to leave the marital home. If the appellant had left her behind and had not taken her back, because according to him she would not fit in the urban environment, he cannot be allowed, to take advantage of his own wrong. In the absence of any material to show that either the appellant had repeatedly requested the respondent to join him and she flatly refused or that the respondent had deliberately and without just and reasonable cause left the marital home. The Judgment of the Lower Appellate Court cannot be interfered with. The Lower Appellate Court found on facts that it was not the wife, who refused to join the husband, but the husband had left her behind and therefore, there was no desertion. There is nothing in the judgment of the Lower Appellate Court to show that the learned District Judge had refused to grant divorce merely because the appellant had not taken steps under Section 9 of the Hindu Marriage Act. All that the Appellate Court had said is that it was at the instance of the appellant that the respondent was left behind with his parents and that the documents filed on behalf of the appellant do not show that the respondent is deliberately living separately from the appellant. Of course, in para 14 of the judgment the Court below has stated as follows ; (Vernacular matter omitted..... Ed.) This cannot be construed to mean that the Court below had held that it was mandatory to take steps under Section 9 of the Hindu Marriage Act before seeking divorce under Section 13, of the said Act. All that it means is that there was no evidence to show that the husband had taken steps to bring the wife back to matrimonial home.
12. In these circumstances, both the substantial questions of law framed by this Court do not arise for consideration in the second appeal. The second appeal is dismissed with costs.
13. The connected C.M.P. Is also dismissed.