Madras High Court
P.Premavathy vs J.Venkatesan on 20 February, 2012
Author: R.Banumathi
Bench: R.Banumathi, S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.02.2012 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mrs.JUSTICE S.VIMALA Civil Miscellaneous Appeal No.1045 OF 2009 P.Premavathy .. Appellant. vs. J.Venkatesan .. Respondent. Civil Miscellaneous Appeal filed under Section 28 of hindu Marriage Act and Section 19 of the Family Courts Act against the Order dated 20.10.2008 made in F.C.O.P.No.260 of 2004 on the file of Principal Family Court, Chennai. For Appellant : Mr.S.Silambannan, Senior Counsel for Ms.C.Uma For Respondent : Ms.Usha Raman JUDGMENT
R.BANUMATHI,J Challenge in this appeal is the order in F.C.O.P.No.260 of 2004 dated 20.10.2008 on the file of Principal Family Court, Chennai granting divorce on the ground of desertion [Section 13 (1) (i-b) of Hindu Marriage Act]. Unsuccessful wife is the Appellant.
2. Appellant-wife is a Post Graduate with degrees M.A., M.Ed., in Tamil discipline and working as a teacher in Madras Port Trust and Dock Educational Trust Higher Secondary School, Chennai-81. Respondent-husband is working in Ashok Leyland Company. Appellant parents gave an advertisement in the Matrimonial column in the newspaper "The Hindu" dated 10.06.2001 [Ex.P13]. In response to the said advertisement, Respondent's father sent Ex.R1-bio-data of the Respondent. Marriage between the Appellant and Respondent was solemnized on 22.11.2001 at Pink Hall, Hotel Dasaprakash, Chennai according to Hindu rites and customs. At the time of marriage, Appellant was given 10 soverigns of jewels and Respondent was given one soverign and Appellant was also given house hold articles as Sridhana. There stated to be resentment by the Respondent's family regarding jewels as well as Sridhana articles even at the time of marriage and reception. Couple happily lived together only for a few weeks. In the bio-data [Ex.R1] of the Respondent, it was stated that Respondent is stated to be having qualification Diploma in Refrigeration and Air Condition [DCE] and later which turned out to be false and thereafter differences arose making allegations and counter allegations. Respondent-husband sought for dissolution of marriage on the ground of desertion and cruelty.
3. Briefly stated case of Respondent-husband is as follows:-
After solemnization of marriage on 22.11.2001, both Appellant-wife and Respondent-husband went to the house of the Appellant's parents and stayed there for five days and on 29.11.2001, both went to the matrimonial home at Perambur. On 09.12.2001, Appellant left to her parents house on the excuse that she was unwell and returned to the matrimonial home on 12.12.2001 and on 12.12.2001 when the Appellant returned to the matrimonial home, the Respondent's maternal uncle visited their residence and invited them to dinner. The Appellant in a rude manner and with unbecoming behaviour refused the invitation and picked up quarrel with the Respondent and left again to her parental home and at the request of the Respondent, Appellant returned only on 21.12.2001. On 21.12.2001 when Appellant returned back to the matrimonial home, she demanded for separate kitchen. In compliance with her demand, the parents of Respondent constructed a separate kitchen on 24.12.2001 furnishing with all amenities. On 24.12.2001, Appellant informed the Respondent that she was going out for shopping and Respondent permitted the Appellant to go for shopping, but Appellant did not return till 26.12.2001 and did not inform over phone about her staying away and only at the request of Respondent, she returned back to the matrimonial home. It is averred that on 28.12.2001, Appellant again left the matrimonial home. Appellant while leaving the matrimonial home did not even bother to inform the Respondent over phone also. Appellant frequently picked up quarrels for no rhyme or reason, found fault with his aged parents, ridiculed and refused to follow the Hindu customs. On 26.01.2002, Appellant lodged a complaint [Ex.R17] before All Women Police Station, Thousand Lights, Chennai. Appellant also issued Ex.P9-legal notice on 27.03.2002 levelling certain allegations against the Respondent and accusing him of concealing information. On 09.06.2003, Appellant sent Ex.P11-rejoinder. On 20.11.2003, Appellant lodged another complaint before the Secretariat Colony Police Station. Alleging that the Appellant has withdrawn from the conjugal company without any reasonable cause, Respondent has filed Petition for divorce on the grounds of desertion and cruelty.
4. Resisting the Petition, Appellant-wife filed counter contending that after solemnization of marriage, on 24.11.2001 both Appellant and Respondent were forced to go to the house of Appellant's parents. Thereafter, Appellant returned back to the matrimonial home. During her stay in the matrimonial home, Appellant was not treated properly and was not provided with proper food. Since, Appellant's mother was not feeling well, with the permission of Respondent, Appellant visited her mother and returned back matrimonial home immediately. According to Appellant, she has not demanded any separate kitchen. On 24.12.2001, the Respondent's parents demanded the Appellant to leave the matrimonial home. When the Appellant informed the same to her parents and when her parents enquired the same, the Appellant was insulted by the Respondent's parents. On 27.12.2001 since the Appellant was suffering from severe stomach ache, Respondent requested his mother to take the Appellant to the hospital where the Appellant was informed that Appellant was suffering from ulcer and was made to take some medicine. According to Appellant since the same stomach pain continued even on 28.12.2001, the Appellant requested the Respondent and his parents to accompany to her to the hospital, but the Respondent's parents refused to accompany to the hospital. Unfortunately on 28.12.2001, Appellant's brother telephoned the matrimonial home and spoke with the Respondent's father with regard to Pongal Seervarisai and after the Respondent's father spoke with the Appellant's brother, the Appellant talked to her brother and informed that she had suffering from severe stomach pain and after that Appellant's mother and brother came and they took the Appellant to Apollo hospital where she was admitted for three days. During her admission in the hospital, Respondent never visited her and also Respondent refused to pay the hospital bills and after discharge, Appellant stayed in her parents house. Case of Appellant is that Appellant took all efforts for reunion with the Respondent and the mediation for reunion held by the mediators ended vain. Though, the Respondent agreed before W-8, All Women Police Station on 25.03.2004 for reunion, he has not come forward to live with the Appellant. Stating that only the Respondent is creating continuous desertion and harassing the Appellant, the Appellant prayed for dismissal of the Petition.
5. In the trial Court, Respondent-Venkatesan examined himself as PW1 and his father-Jayaseelan was examined as PW2. Exs.P1 to P30 were marked. On the side of Appellant, Appellant-Premavathy examined herself as RW1 and her brother-in-law [elder sister's husband] Anandan was examined as RW2 and S.Kanmathiyan, Journalist and Mediator and also family friend of Appellant was examined as RW3. Exs.R1 to R27 were marked.
6. Upon consideration of oral and documentary evidence, trial Court held that the Appellant went to hospital on 28.12.2001 and thereafter, did not return to the matrimonial home and there was no reasonable cause to leave the matrimonial home. Referring to Ex.P9-legal notice (27.03.2002), learned trial Judge observed that in Ex.P9-notice, Appellant's intention to divorce has been clearly expressed. Trial Court further held that lodging of complaint and by seeking direction to register a criminal case, the Appellant wanted to bring the cohabitation permanently to an end and on those findings granted divorce on the ground of desertion [Sec.13(1)(i-b)]. Learned Judge however held that ground of cruelty [Sec.13(1)(i-a)] has not been established.
7. Challenging the impugned order, Mr.S.Silambannan, learned Senior Counsel for Appellant contended that trial Court has not considered the contents in Ex.P4-FIR (15.02.2004) properly which elaborately explains the dowry problem, cheating in the marriage and dowry harassment. Learned Senior Counsel would further submit that Appellant had no intention of deserting the Respondent-husband and that she has only been making efforts to join her husband and that trial Court did not properly appreciate the oral and documentary evidence and erred in drawing inference of desertion.
8. Laying emphasis upon Ex.P9-notice, Ms.Usha Raman, learned counsel for Respondent would contend that Ex.P9-legal notice was first issued only by the Appellant on 27.03.2002 expressing Appellant's intention to divorce. Learned counsel would further submit that Appellant has lodged more than one criminal complaint with a view to harass the Respondent and his family members and that she has also approached the High Court seeking direction to register the criminal case against the Respondent and his family members and the Appellant was bent upon harassing the Respondent and his family members. Learned counsel would further submit that based on the conduct and coercive tactics adopted by the Appellant, trial Court rightly drew an inference that the Appellant had withdrawn from the conjugal company without any reasonable cause and the impugned order warrants no interference.
9. Upon consideration of rival contentions and the impugned order, the following points arise for consideration:-
(1)Whether the Respondent-husband has proved the essential conditions to establish desertion?
(2)Whether the trial Court was right in concluding that Appellant has deserted the Respondent without any reasonable cause?
(3)Whether grant of divorce on the ground of desertion is sustainable?
10. Even at the out set it is to be pointed out that Respondent had initially filed the Petition under Section 13(1)(i-a) of Hindu Marriage Act and sought for divorce only on the ground of cruelty. Appellant has filed her counter on 14.05.2004. Only thereafter on 28.06.2004, Respondent has filed petition for amendment for including Sec.13(1)(i-b) seeking divorce on the ground of desertion also. Thus in the petition originally filed substantial grounds were not averred pertaining to desertion. Only in the petition seeking for amendment, Respondent vaguely averred that Appellant has left the matrimonial home on 28.12.2001 "..... with the intention of never returning" .... and thus averred desertion..
11. Parties adduced oral and documentary evidence. By referring to the conduct of the Appellant, trial Court inferred animus deserendi and declined divorce on the ground of cruelty. Respondent has not challenged the findings declining divorce on the ground of cruelty and therefore, it is not necessary to examine correctness of those findings on cruelty.
12. Contention of Appellant is that even though voluminous evidence was adduced, Trial Court erred in not analysing the oral evidence and merely drew an inference. In the light of the submission and copious evidence adduced, we have proceeded to examine the matter with reference to oral and documentary evidence in the light of well settled principles. Before we proceed to examine the evidence, we may usefully refer to the well settled principles regarding "desertion" and onus of proof.
13. For establishing desertion, so far as the deserting spouse is concerned, two essential conditions must be there, viz., (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (i) the absence of consent, and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Under Section 13(1)(i-b) of Hindu Marriage Act, the Petitioner who seeks for divorce has to prove (i) that there was desertion for a continuous period of two years immediately preceding the presentation of the petition; (ii) the desertion was without reasonable cause and without the consent or against the wish of the Petitioner.
14. In AIR 1957 SC 176 [Bipinchandra Jaisinghbai Shah v. Prabhavati], the Supreme Court held as follows:-
....... 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 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. ................ 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.
15. In AIR 1964 SC 40 [Lachman Utamchand Kirpalani v. Meena], the Supreme Court held that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause; that once desertion as defined earlier is established there is no obligation on the deserted husband (taking the case where he is the deserted spouse) to appeal to the deserting spouse to change her mind and the circumstance that the deserted husband makes no effort to take steps to effect a reconciliation with the wife does not debar him from obtaining the relief of judicial separation.
16. Referring to the decisions in Bipinchandra case and Lachman Utamchand case, in (2002) 2 SCC 73 [Savitri pandey v. Prem Chandra Pandey], the Supreme Court held as under:-
"10. To prove desertion in matrimonial matter it is not always necessary that one of the spouses should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case."
17. Heavy burden lies upon the Petitioner who seeks relief on the ground of desertion to prove four essential conditions viz., (i) factum of separation; (ii) animus deserendi; (iii) absence of any or her consent; and (iv) absence of his or her conduct giving reasonable cause to desert the spouse to leave the matrimonial home. It is necessary for the Petitioner to establish that during all the period that there has been a desertion, Petitioner must affirm that he/she was ready and willing to resume the married life. Offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence evidence of the Petitioner is to be corroborated. In the light of the above well settled principles, it is to be seen whether Respondent-husband has discharged his burden of proof establishing that Appellant-wife had no reasonable cause to leave the matrimonial home.
18. Demand of dowry In her evidence, RW1-Premavathy has stated that at the time of marriage, her parents had given 12 sovereigns of gold jewels and that her parents provided a cot with bed, almirah and other house hold articles worth Rs.17,000/- as Sridhana articles as demanded by the Respondent's parents. RW1 has further stated that her husband's parents started insulting her alleging that the Sridhana articles given by her parents were inadequate and of inferior in quality. In her evidence, RW1 has also spoken about the demand of jewels even at the time of fixing the marriage. In his evidence, RW2-Anandan has stated that parents of Respondent compelled the Appellant's family to bring Sridhana articles to Mandapam and that immediately, after the reception, parents of Respondent have expressed grievance about the Sridhana articles. In his evidence, RW2 has stated that " .... the Respondent's family stated that the matrimonial gift is very meagre and very much worthless and that the Appellant's family have reduced the soverigns from 25 to 10 and they would not accept it. R.W.2 further stated that the Respondent's family insisted for more jewels and cash and two big silver lamps. Even though Rws.1 and 2 have denied insisting the articles to be brought to the Mandapam, by perusal of Ex.R3-photo, it is seen that Sridhana articles were displayed in the venue of marriage/reception and photographs were taken. From the evidence of RWs.1 and 2, it is thus proved that even on the date of marriage/reception, the Respondent's family were insisting for dowry, silver articles and others.
19. In her evidence, RW1 has further stated that while she was staying in the matrimonial house from 24.11.2001 to 26.12.2001, there was harassment by the parents of the Respondent. When the spouses lived together, there was dowry harassment and Respondent's family was not happy about the Appellant and the Sridhana articles.
20. Appellant's alleged demand for separate kitchen Appellant had gone to her parents house on 12.12.2001 and returned on 21.12.2001. In Paragraph (6) of the Petition, Respondent has alleged that on 21.12.2001, Appellant demanded separate kitchen to enable her to cook separately and that in compliance with her demand, Respondent's parents constructed separate kitchen on 24.12.2001 and furnished it with utensils and gas stove and gas facility. In his chief-examination, PW1 has also stated that in pursuance to the Appellant's demand, they have constructed a separate kitchen and produced the photographs Ex.P24 to P27. When being confronted, Respondent would resile from his stand that Appellant demanded for separate kitchen. Respondent has stated that Appellant wanted separate residence [jdpf;Foj;jdk;] and that separate residence was arranged for the Appellant and Respondent in a portion of the house.
21. Though Respondent has stated that separate kitchen was constructed, it is quite unbelievable that separate kitchen would have been constructed within one or two days. That apart the date of alleged separate kitchen [21.12.2001 24.12.2001] falls in the Tamil month Margazhi which month is not generally preferred for any auspicious occasions. Respondent himself has admitted that no separate kitchen was constructed and no ceremony was conducted. From PW1's own statement, it emerges that couple only stayed in a portion of the house. The evidence regarding Appellant's demand for separate kitchen is only prevaricating.
22. Admission of Appellant in the hospital on 28.12.2001 Trial Court drew inference of animus deserendi mainly from the conduct of the Appellant viz., when the Appellant was admitted in Apollo hospital and when Respondent went to meet her, Appellant avoided to speak with him. We need to consider whether the trial Court was right in so drawing inference of animus deserendi against the Appellant.
23. On 27.12.2001, Appellant was suffering severe stomach ache and Respondent took her to the hospital where she was informed that she was suffering from ulcer and she was given medicines. On 28.12.2001, Appellant had again developed severe stomach ache. Inspite of her request, parents of Respondent refused to take her to the hospital. At about 9.00 P.M. Respondent's brother telephoned to the matrimonial house and spoke with the Respondent's father with regard to "pongal seervarisai" and at that time, Appellant informed him about her severe stomach ache. Thereafter, Appellant's mother and her brother came to the matrimonial house and after informing the Respondent's parents, Appellant was taken to Apollo Hospital and admitted in the emergency ward at about 11.00 P.M. During treatment, it was diagnosed that severe stomach ache was due to consumption of wrong medicine and not because of ulcer. Appellant was in Apollo Hospital from 28.12.2001 to 31.12.2001. Respondent visited the hospital only after two days i.e. on 30.12.2001. In her evidence, RW1 has stated that Respondent and his parents refused to pay the hospital bills and on 31.12.2001, she was discharged from the hospital by pledging some of her jewels to pay the hospital bills. The xerox copy of hospital bills were marked as Ex.R13.
24. Trial Court did not consider the indifferent conduct of the Respondent viz., (i) not going to the hospital for two days; and (ii) not paying the hospital bills. Trial Court sought to justify the conduct of the Respondent by saying that "Respondent was on night duty and therefore, he could not visit the ailing Appellant in the hospital". Per contra, learned trial Judge faulted the Appellant that she turned her face in the hospital and that she did not talk to the Respondent.
25. Trial Court was not right in finding fault with the Appellant. Let us examine the matter from the perspective of the Appellant. Within one month of the marriage, Appellant was admitted in the hospital by her mother and brother. Respondent-husband has not turned up to see the Appellant-wife nor enquired about her. When the Respondent visited her after two days on 30.12.2001, quite naturally the Appellant turned her face without talking to the Respondent. Appellant has in fact recollected the same in Ex.P4 as under:-
@///// vd; fzth; ehd; ml;kpl; Mdjw;F 3k; ehs; 30/12/01 md;W kjpak; te;jhh;/ ,Wfpa kdntjidapy; ,Ue;j ehd; mthplk; ngrhky; jpUk;gp gLj;Jf; bfhz;nld;/ ///@ Trial Court was not justified in referring to the above contents in Ex.P4-FIR and faulting the Appellant. Referring to Ex.P4-FIR, learned trial Judge held that "wife also admits in her complaint Ex.P4 given to the police that her husband visited twice to the hospital and she turned her face and avoided to speak to him". The anger of Appellant was only temporary and under no stretch of imagination the said single instance of resentment would be sufficient to hold that Appellant wanted to put an end to the matrimonial relationship. In our considered view, trial Court was not justified in faulting the Appellant.
26. After discharge from the hospital, Appellant went to her parents house and thereafter Appellant along with her mother went to the matrimonial house on 06.01.2002 and 07.01.2002 and tried to rejoin. At that time, Appellant was teased and sent back. Appellant said to have taken few clothes from the matrimonial house for her use. PW1 admits Appellant having come to the house; but stated that he does not remember the date. After Appellant's discharge from the hospital the Respondent does not seem to have taken any steps to bring back the Appellant.
27. Petitioner who seeks divorce on the ground of desertion must prove that the other spouse deserted once for all and had no intention of rejoining. Trial Court drew inference of animus deserendi from yet another conduct of the Appellant viz., (i) Appellant lodged the complaint [Ex.R17] before All Women Police Station, Thousand Lights, Chennai on 26.01.2002 making allegations of dowry demand, skin disease over the chest of the Respondent and that she was defrauded about the educational qualification of the Respondent; (ii) in Ex.P9-Legal notice [27.03.2002] issued by the Appellant, she had narrated the very same allegations and expressed her desire to divorce the Respondent; (iii) Appellant had filed Criminal O.P.No.42831 of 2003 on 29.11.2003 seeking direction to the Inspector of Police, All Women Police Station, Secretariat Colony, Chennai to register the case against the Respondent and his parents. Appellant has also filed intervening Petition opposing grant of bail to the Respondent. In our considered view, the above conduct/circumstance neither independently nor cumulatively are sufficient to prove that Appellant had animus deserendi to desert the Respondent.
28. In Ex.R17-complaint [26.01.2002] lodged before All Women Police Station, Thousand Lights, the Appellant has narrated the ill-treatment and dowry harassment. In the complaint, Appellant has also stated that Respondent has suppressed his skin disease on the chest and also his educational qualification that he is an engineering graduate; whereas the Respondent was not actually a engineering graduate. Even though Appellant has made such allegations, ultimately in Ex.R17-complaint Appellant only wanted intervention of the Police to enable her to rejoin her husband.
29. Ofcourse, in Ex.P9-legal notice, Appellant has reiterated the same allegations which she made in Ex.R17-complaint. After elaborating the various incidents, interalia stated that she wants to divorce the Respondent. In Paragraph (7) of Ex.P9-legal notice, it was stated as under:-
"7. My client states that you have no intention of honouring the marriage or maintaining my client. Further you have actively concealed the facts relating to you. My client states that you were not living together from 27.12.01. For the reasons narrated above, my client wants to divorce you. My client further states that she was issuing this notice calling upon you to return all the household articles given to her as Sreethana which is now in your custody within 15 days from the date of receipt of this notice failing which my client will be taking appropriate legal action against you holding you liable for all cost and consequences thereof."
Learned counsel for Respondent mainly contended that Appellant was first to issue the legal notice expressing her desire to divorce and also asking the Respondent to return Sridhana articles and therefore, trial Court rightly came to the conclusion that it was the Appellant who wanted to put an end to the matrimonial relationship.
30. Per contra, learned Senior Counsel for Appellant would contend that in the subsequent rejoinder [Ex.R18] dated 17.04.2003, Appellant has expressed her desire to rejoin and therefore, much weight can not be attached to the passing expression made in Ex.P9-legal notice.
31. By perusal of the order of the trial Court, it is seen that learned trial Judge seem to have given undue credence to one sentence in Ex.P9-legal notice where Appellant had stated that "she wanted to divorce the Respondent". In her evidence, Appellant has categorically stated that she had no knowledge of such a statement made in Ex.P9-legal notice. Per contra, trial Court observed that Appellant had signed every page of Ex.P9-legal notice and being a teacher, she must have had knowledge of contents of Ex.P9-notice and on those findings inferred animus deserendi. The approach of the trial Court may not be correct. The situation in which Appellant was placed at the time of issuing Ex.P9-legal notice has to be taken into consideration.
32. As pointed out earlier, Appellant was discharged from the hospital on 31.12.2001 and that Respondent did not take her back; nor paid the hospital bills. Respondent did not visit the Appellant in the new year and Respondent and his family members have not participated in "Thali re-arrangement ceremony" (jhyp gphpj;Jnfhh;f;Fk; itnghfk;). Such indifference of the Respondent must have caused mental agony and frustration to the Appellant. Only in those circumstances, Appellant had lodged Ex.R17-complaint (26.01.2002) and issued Ex.P9-legal notice. Therefore, one sentence cannot be isolated from Ex.P9-legal notice to hold that Appellant wanted to put an end to the matrimonial relationship. But the facts and circumstances are to be examined as a whole. It is pertinent to note that Respondent had sent Ex.P10 [12.04.2002] reply notice, for which Appellant had sent Ex.R18 [17.04.2003] rejoinder expressing her desire to rejoin the Respondent. Learned trial Judge ought to have examined the conduct of the Appellant in the light of the circumstance in which Appellant was placed and her desire to rejoin as expressed in Ex.R18-rejoinder.
33. The essence of desertion, as judicially understood, is a total repudiation of the obligation of marriage or an abandonment of the deserted spouse with an intention to bring the cohabitation permanently to an end. If a spouse abandons the other in a state of temporary passion, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. Like wise the Respondent has to prove that during the alleged period of desertion he was ready and willing to resume the married life. It is pertinent to point out that Appellant had taken various steps for reunion. As pointed out earlier, in Ex.R17-complaint [26.01.2002], the Appellant prayed for intervention of All Women Police for reunion only. In her evidence, Appellant [RW1] has stated that after discharge from the hospital on 06.1.2002 and 07.1.2002, she went to the matrimonial house and she was allowed to enter into the house; but Respondent's father scolded and teased her.
34. Appellant adduced ample evidence to show that she had taken various efforts to rejoin her husband. In her evidence, RW1 has stated that her uncle Anandan [RW2] and his friends went to the Respondent's house for conciliation and met the Respondent's father on 24.02.2002 for reunion, but the Respondent's father [PW2] was adamant and refused for reunion and stated that he would not allow his son to live with a lady who went to the Police Station.
35. In her evidence RW1 has also stated that Prof.Manickavasagam also took efforts through one Baskaran who is working in Ashok Leyland and taken steps for reunion and the same also ended in vain. RW3-Kanmathiyan who is the family friend of the Appellant has also spoken about the reconciliation efforts taken by him on 07.01.2003. From the evidence of RW3, it is seen that Respondent's father [PW2] did not pay heed to the reconciliation efforts.
36. As pointed out earlier, even though Appellant has made allegations in Ex.R17-complaint (26.01.2002) before the All Women Police and in Ex.P9-legal notice, in Ex.R18-rejoinder [17.04.2003], ultimately Appellant has only expressed her desire for reunion. Thus ample oral and documentary evidence has been adduced to show that Appellant had taken steps for reunion and she never had an intention of putting an end to the matrimonial relationship.
37. Per contra, Respondent has not taken any efforts to rejoin. In his evidence, Respondent [PW1] has categorically stated that he has not taken any steps for restitution of conjugal rights; but would only state that he is not willing to live with the Appellant and that he is willingly forsaken his wife. The relevant portion of evidence of PW1 reads as under:-
@///// midj;J g[fhh;fspd; rkur Kaw;rpf;F gpwFk; ehd; vjph;kDjhuUld; nrh;e;J thH tutpy;iy vd;why;. vdf;F vjph;kDjhuUld; nrh;e;J thH tpUg;gkpy;iy/ ////// ehd; vdJ kidtpia ntz;Lbkd;nw iftpl;ljhf TWtJ rhpjhd;/ /////@ Learned trial Judge brushed aside the oral evidence of the Appellant and his conduct in not ready to take back the wife, trial Court did not keep in view the unwillingness expressed by the Respondent for reunion. Per contra, the trial Court seem to have attached undue importance to the sentence in Ex.P9-legal notice.
38. Inference drawn by the trial Court does not reflect the oral evidence. When the Appellant was turned out from her matrimonial home, as a result of which she had to take shelter in the house of her parents and yet she has been taking efforts to rejoin her husband and when the husband was not interested in taking her back, it is not the case of desertion and Respondent cannot be allowed to take advantage of his own wrong. Respondent cannot be allowed to take advantage of his own wrong by creating a situation compelling the wife to take shelter in her parents house and then seek divorce. Trial Court has not properly appreciated the evidence in the light of the essential requirements of desertion and therefore, the order of trial Court is liable to be set aside.
39. In the result, the order of trial Court made in F.C.O.P.No.260 of 2004 dated 20.10.2008 on the file Principal Family Court, Chennai is set aside and this appeal is allowed. Consequently, F.C.O.P.No.260 of 2004 filed by the Respondent-husband is dismissed. No costs.
(R.B.I., J.) (S.V., J.)
20.02.2012
Index: Yes/No
Internet:Yes/No
bbr
To
The Principal Family Court,
Chennai.
R.BANUMATHI, J
and
S.VIMALA,J
bbr
Pre-delivery Judgment in
C.M.A.No.1045 of 2009
20.02.2012