Telangana High Court
Sachin Mahale vs Supriya Mahale on 7 June, 2024
Bench: K.Lakshman, P.Sree Sudha
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SMT JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL Nos.361 AND 406 OF 2012
COMMON JUDGMENT:(Per Hon'ble Sri Justice K.Lakshman) Heard Smt. Manjiri S.Ganu, learned counsel for the appellant and Sri Shyam Sunder Murthy, learned counsel for the respondent in both the appeals.
2. The appellant-husband had filed a petition under Section 13 (i)(ia) and (ib) of the Hindu Marriage Act, 1955 (for short, 'the Act, 1955') vide O.P.No.596 of 2009 on the file of learned Judge, Additional Family Court, Hyderabad, against the respondent-wife seeking dissolution of marriage performed on 26.12.2002 on the ground of cruelty and desertion. Like-wise, the respondent-wife and her son filed a petition under Sections 18 and 20 of the Hindu Adoption and Maintenance Act read with Section 7 of the Family Courts Act, 1956 vide O.P.No.164 of 2009 against the appellant- husband seeking maintenance. Vide common order, dated 01.10.2012, the learned Judge, Additional Family Court, Hyderabad, dismissed O.P.No.596 of 2009 filed by the 2 KL,J&PSS,J fca_361&406_2012 appellant-husband and partly allowed O.P.No.164 of 2009 filed by the respondent-wife and her son. The learned Family Court also directed the appellant-husband to pay maintenance of Rs.10,000/- per month for the period from 07.02.2006 to 06.02.2009. Further, the appellant-husband is also directed to pay maintenance and medical expenses @ Rs.15,000/- per month to the respondent-wife and her son from the date of the petition. The amount paid by the appellant @ Rs.5,000/- per month as per the order of this court in C.R.P.No.4130 of 2009 shall be deducted out of the total claim.
3. Feeling aggrieved by the said order, dated 01.10.2012 in dismissing O.P.No.596 of 2009 filed by the appellant-husband seeking dissolution of marriage, the appellant preferred F.C.A.No.406 of 2012. Like-wise, aggrieved by the said order in partly allowing O.P.No.164 of 2009 filed by the respondent-wife directing the appellant- husband to pay aforesaid amount to the respondent-wife and her son towards maintenance, the appellant-husband preferred F.C.A.No.361 of 2012.
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4. In O.P.No.596 of 2009, the petitioner-husband contended as follows:
(i) The marriage of the appellant with the respondent was performed on 26.12.2002 at Tulja Bhavan, Dharmashala, Kachiguda, Hyderabad, as per Hindu rites and customs.
(ii) It is an arranged marriage. After the marriage, they lead happy marital life only for few days.
(iii) Since then, respondent started behaving strangely.
(iv) Even after the marriage, the respondent was under the control of her parents and acting under their dictates.
(v) Prior to the marriage, the respondent and her parents are very well aware about the languages known to the appellant and his ancestors.
(vi) Even then, the respondent and her parents, especially her mother made it a point to insult the appellant stating that he does not speak 'Konkani' language but speaks 'Marathi'.
(vii) The respondent and her parents further stated that they would have rejected the proposal if they would come 4 KL,J&PSS,J fca_361&406_2012 to know about the said fact that the appellant has grown up at Mumbai and speak 'Marathi'. In April, 2003, parents of the appellant, his sister and her daughter visited the marital house of the appellant and the respondent at Allahabad.
(viii) During stay at Allahabad, the respondent picked up quarrel on every trivial issue.
(ix) On the first day of their arrival, the respondent stated the mother of the appellant that expenses for additional four people would become too much for her. Thus, there was a quarrel between them.
(x) The respondent conceived in the month of January, 2003 and the appellant had taken her to Gynaecologist for check up regularly and bearing expenses for the same.
(xi) She delivered a baby boy on 30.09.2003 at Fernandez Hospital at Hyderabad.
(xii) The said boy had a health problem and everybody in the family was disturbed and anxious relating to the same.
(xiii) Originally, the doctors at Fernandez hospital had diagnosed it as a 'seizure' and administered treatment for the said ailment.5
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(xiv) There was no progress in the health of the boy and on the contrary, the health condition of boy was deteriorating day-by-day.
(xv) The appellant requested the respondent and her parents to seek second opinion. But, they did not heed to his request.
(xvi) The appellant had taken appointment with a renowned specialist at Mumbai for treatment of his boy.
(xvii) The respondent and her parents refused the same. Thus, the appellant, being the natural father of the boy was deprived and he was not allowed to take steps for well being of his son and the same caused mental agony to him.
(xviii) On 12.10.2003, cradle ceremony of boy was held. (xix) The respondent and her parents strongly protested when the appellant and his father suggested the name of boy as 'Mohit Mahale'. Mohit is another name of 'Lord Ganesha', their family deity. There was a big scene and unpleasant situation created by the respondent and her parents.
(xx) Ultimately, after repeated persuasion and request the boy named as 'Mohit Mahale.' 6 KL,J&PSS,J fca_361&406_2012 (xxi) As there was no sign of improvement in the health of the boy, the appellant requested the respondent and her parents to take him to Madurai for treatment. But, the respondent and her parents brushed aside the suggestion of the appellant.
(xxii) On 20.08.2004, the appellant, the respondent and her parents went to Madurai.
(xxiii) The appellant made arrangements for taking private taxi from Lucknow to Delhi by flight and then to Hyderabad. He has incurred the entire expenditure.
(xxiv) The doctors at Madurai opined that in fact actually the boy had breathing problem since the birth and the same was wrongly diagnosed and wrong medication was administered to him. Had the respondent and her parents take appropriate steps as suggested /requested by the appellant at the earliest point of time, the boy would not have suffered to such extent.
(xxv) On 19.12.2004, when the appellant's colleagues came to the house of the respondent, the respondent picked up quarrel and insulted the appellant in front of his office colleagues.
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KL,J&PSS,J fca_361&406_2012 (xxvi) On 14.01.2005, when the appellant was talking his father over phone, who was in Mumbai, and his father wanted to hear the voice of the boy and when the appellant tried to adjust the phone, the respondent created a scene and snatched away the boy forcibly from the appellant. Thus, the appellant subjected him to cruelty.
(xxvii) On 15.01.2005, when the appellant returned to home, he was surprised to realize that the respondent and her parents took away the boy and left the house without any intimation to him.
(xxviii) On enquiry, the appellant came to know that the respondent and her parents are staying at Civil Lines, Allahabad. The respondent was not in good terms with the appellant. Thereafter, the appellant came to know that the respondent and her parents kidnapped the boy from his house.
(xxix) The respondent left the marital house on 15.01.2005 and since then she is residing at Hyderabad with her parents. Thereafter, the respondent lodged a complaint before the Station House Officer, Civil Lines, Thane, Allahabad on 18.01.2005.
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KL,J&PSS,J fca_361&406_2012 (xxx) Even during said period also, the appellant was sending demand drafts to the appellant for her expenses and the expenses of boy.
(xxxi) The respondent joined her former employer M/s. Weizmann Homes Limited in February, 2004 in spite of advise of the appellant not to join in the job.
(xxxii) He has also addressed letters, dated 17.12.2003, 10.01.2004, 24.01.2004, 10.03.2004 and 29.04.2004 to the respondent along with Demand Drafts. He has also addressed two more letter, dated 13.04.2004 and 24.09.2004.
(xxxiii) While leaving the marital house, the respondent took away all her belongings i.e., jewellery, clothes, articles and cash. Though the respondent is an employee, she has filed a petition seeking maintenance.
(xxxiv) The appellant is getting meager amount of salary i.e, Rs.48,000/- and take home salary is Rs.20,000/- only and he has to bear expenditure including expenses for litigation. Thus, according to the appellant, the respondent subjected him to cruelty.
5. Respondent filed counter denying the said allegations.
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(i) According to her, appellant made the aforesaid allegations to assassinate her character.
(ii) On 17.11.2004, the minor boy accompanied by her parents went to Allahabad. They stayed for two months.
(iii) During that time, the appellant constantly abused, harassed and humiliated the respondent and her parents. He has also physically assaulted her father when he tried to rescue her. He has abused and assaulted the father of the respondent. Therefore, the respondent was constrained to leave the marital house and reached Hyderabad on 19.01.2005.
(iv) Since then, she has been living with her parents at Hyderabad.
(v) He has written letters in the months of December, 2003, January, March and April, 2004 asking her to join his company.
(vi) Since the boy was not well, she did not join him.
(vii) The said fact is within the knowledge of the appellant. Even then he wanted to make the same as an issue and in fact he never came to Hyderabad to take the respondent and the boy to Allahabad.
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(viii) The appellant failed to give moral and financial support to the respondent and her boy.
(ix) He has totally neglected her.
(x) Therefore, she has issued legal notice on
19.01.2009 calling upon the appellant to pay maintenance.
(xi) The appellant received the said notice and failed to comply with the demand of respondent though he is getting handsome salary.
(xii) She along with her son filed a petition seeking maintenance.
6. To prove said grounds of cruelty and desertion, appellant himself examined as P.W.1 and filed Exs.P.1 to P.26. To disprove the said grounds of cruelty and desertion and to substantiate her claim of maintenance, respondent- wife had herself examined as R.W.1 and her mother was examined as R.W.2. She has filed Exs.R.1 to R.29.
7. On consideration of the entire evidence, both oral and documentary, vide impugned common order, dated 01.10.2012, learned Judge, Additional Family Court, Hyderabad, dismissed O.P.No.596 of 2009 filed by the appellant and partly allowed O.P.No.164 of 2009 filed by 11 KL,J&PSS,J fca_361&406_2012 respondent-wife and directed the appellant to pay maintenance in the manner stated above. Challenging the said common order, the appellant-husband preferred the present appeals.
8. The appellant-husband filed the aforesaid O.P.No.596 of 2009 for dissolution of marriage on the ground of cruelty and desertion. Therefore, the burden lies on him to prove the same by producing legally acceptable evidence.
9. As discussed supra, to prove said grounds, he got himself examined as P.W.1. But, he did not examine any other witness.
10. As discussed supra, the respondent and her mother were examined as R.Ws.1 and 2. But, the appellant has not examined any witness and nothing was elicited from respondent (R.W.1) during cross-examination. Though the appellant has alleged that he has requested the respondent and her parents to take second opinion with regard to the health condition of his son, they did not heed to his request, he failed to examine any witness including his parents to substantiate the same. He failed to elicit anything from respondent (R.W.1) and her mother (R.W.2) with regard to the 12 KL,J&PSS,J fca_361&406_2012 same during cross-examination. Therefore, his allegation that the respondent and her parents denied him in taking steps to take his son to the hospital is not acceptable.
11. The appellant has made an allegation with regard to the issue of naming ceremony conducted on 12.10.2003. But, he failed to examine anybody including his parents to prove the said allegation. He failed to elicit anything from R.Ws.1 and 2 during cross examination. He has not examined any witness and failed to prove with regard to the alleged incident in Madurai. However, the respondent admitted that they gone to Madurai for treatment of her son. There is no dispute with regard to the said fact.
12. The appellant has also made an allegation that the respondent created a scene and insulted him on 19.12.2004 when his colleagues visited the house. He has not examined any of the said colleagues. During cross-examination, he has failed to prove the alleged insult on 19.12.2004. According to the appellant, the respondent left his house on 15.01.2005 without intimating him. But, according to the respondent, she left the house by intimating the appellant. However, with 13 KL,J&PSS,J fca_361&406_2012 regard to addressing of letters to the appellant, he has admitted the same.
13. During cross-examination, appellant (P.W.1), categorically admitted the date of separation between him and R.W.1 on 15.01.2005. Respondent parents and child and the respondent lived in the said house of ex-landlord after their separation for two days. Thereafter, from 15.01.2005, the respondent started living at Hyderabad. He has further admitted that he did not make any efforts to see his wife and the child after 16.01.2005 and according to him, the respondent did not allow him. He did not come to Hyderabad after 16.01.2005 to see the respondent and child. He knows that the respondent filed a petition with regard to maintenance. He has also issued legal notice to the respondent. He did not mention in his counter filed in the maintenance petition filed by the respondent and also in O.P. No.596 of 2009 that after 2006, his son was crippled physically. From 2004 to 2005, the appellant and respondent lived together at Allahabad. He has taken his son to various doctors at Allahabad in 2004-2005 as his son was suffering from Neuro Regression. Presently, he is suffering from Neuro 14 KL,J&PSS,J fca_361&406_2012 regression and in 2004 and 2005 his son suffered from breathing problem.
14. He has further admitted that he did not sent any amount for the purpose of medical examination and treatment of his child after 15.01.2005 till the respondent files petition seeking maintenance. Even his parents also did not come to Hyderabad subsequent to 16.01.2005 to see his child at Hyderabad. He was residing with his parents at Mumbai from 2008 onwards. He was contacting the respondent through phone, but the respondent was threatening him through phone. Therefore, after 16.01.2005, he has not taken any steps for custody of the child and also registration rites.
15. Sri Maruthi Bhatt and Sri Damodar acted as mediators to resolve the dispute between the appellant and the respondent. But, he did not examine them. His father was an employee at the time of marriage and thereafter, he has retired. Within fifteen days after the marriage, appellant and respondent went to Allahabad. No other person accompanied them when they visited Allahabad fifteen days after their marriage.
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16. In the month of January, 2003, mother of the respondent joined the respondent at Allahabad. She came to Allahabad purely for the purpose of creating disharmony between the appellant and the respondent. She stayed at Allahabad for 12 days.
17. Thus, according to the appellant, mother of the respondent created problem in January, 2003 and till then, the appellant and the respondent lead their marital life happily. According to him, his mother-in-law created problem stating that the appellant has to learn 'Konkani' language. He has further admitted that his mother-in-law advised not to take non-vegetarian food. He do not have any objection if the respondent and his mother see the TV programs relating to religious disclosures. His sister and parents came to Allahabad in 2003. There was a discussion when they came to Allahabad with regard to the alleged acts of his mother-in- law. Though during cross-examination, appellant stated that the respondent prevented his mother from entering into the store room, he failed to examine his mother to prove the same. Nothing was suggested to her during cross- examination. Though he stated that he prepared to examine 16 KL,J&PSS,J fca_361&406_2012 her mother, he did not examine her for the reasons best known to him. He did not send any notice to the respondent alleging that she is unnecessarily threatening him saying that he will approach police. When she was pregnant, he took care of her and had taken her to frequent checkups.
18. He has further admitted that till January, 2003, the appellant and the respondent maintained cordial relationship when resided together at Allahabad. According to him, disputes arose between him and respondent after the respondent's mother visited their house at Allahabad in January, 2003. When they went to Madurai for treatment of their son, parents and brother of respondent also accompanied them. But, there was no issue. He has also admitted about the presence of Sri Maruthi Butt and Sri Damodar, Ms.Supriya SRD, Sri Kamath, Sri Janardhan, Ms.Shenoy, Sri Harish and Sri Prabhu, who acted as mediators in the panchayat. He has not examined any of them. From the date of marriage i.e., from 26.12.2002, he has been working. P.W.1 in his cross-examination stated that his gross salary is Rs.62,000/- and take home salary is Rs.48,000/-.
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19. He has not produced any evidence to show that respondent was working and she is preparing papads and pickles and selling the same. He has been paying an amount of Rs.5,000/- to the respondent towards maintenance of the child. He is preparing to pay medical maintenance.
20. Thus, according to the appellant, he maintained cordial relationship with his wife till January, 2003 and problems started when the mother of the respondent came to their house at Allahabad in January, 2003. There was dispute with regard to the appellant learning 'Konkani' language and having Non-Vegetarian food. The said two incidents, assuming for a moment are correct, the said incidents cannot be said to be cruel acts.
21. With regard to other acts, the appellant failed to prove the same by producing any legally acceptable or cogent evidence. Respondent (R.W.1) during cross-examination categorically admitted that the appellant and the respondent went to Goa for Honeymoon. Thereafter, they went to Allahabad. In the first week of February, 2003, her mother came to Allahabad. They had a big house consisting of 2 bed rooms, dining, kitchen, store room etc. They have purchased 18 KL,J&PSS,J fca_361&406_2012 household articles. There were no disputes between them. Once she said that it would have been better if she had accepted person, who is fluent in 'Konkani' language.
22. In January, 2003 itself when they were at Allahabad, she conceived, they consulted Dr.Sharada Chandra. First two months, appellant did not take proper care and subsequently there was big fight between them and thereafter appellant started taking care.
23. She delivered a baby boy on 30.09.2003 in Fernandez Hospital, Hyderabad. The appellant was in the hospital for two days. Boy was admitted in NICU within 4 hours of his birth as the colour of the body changed and it became blue. There was recurrence of 'seizures' on 3rd and 4th day of the birth. She was discharged from the hospital on 05.10.2003. The appellant was constantly in touch with respondent after she returned home. Baby boy was again admitted in the hospital on 26.10.2003, 01.11.2003 and 18.11.2003. She has also personally spoken with Dr.Udhani from Mumbai, who is a famous Neuro Pediatrician. She knows Mr.Rajeev Pandey and K.C.Dey, who were friends of the appellant. She called Dr. Rajeev Pandey and his family 19 KL,J&PSS,J fca_361&406_2012 for lunch. She did not lodge any complaint with police with regard to physical harassment by the appellant. She is a B.Com Graduate and working with Weizmann company before marriage for two years. She had done Diploma in Computer Application as well as Diploma in Tailoring. She also admits about issuance of legal notice and reply by appellant that the appellant has been paying an amount of Rs.5,000/- per month as maintenance in compliance of the orders passed by this Court in C.R.P.No.4130 of 2009, dated 23.08.2010. Her mother also deposed in the same lines.
24. The aforesaid evidence, both oral and documentary, would reveal that the marriage of the appellant with the respondent was performed on 26.12.2002. The said marriage was consummated and they were blessed with a baby boy on 30.09.2003. It is also not in dispute that the boy is suffering from serious health issue. Even according to the respondent, the appellant took care of her and the boy initially. Thereafter, disputes arose between them. According to the appellant, his mother-in-law created problem and she was instrumental in disturbing the cordial relationship between the appellant and the respondent. 20
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25. As discussed supra, though the appellant has made several allegations against the respondent, he has not examined anyone, except examining himself as P.W.1. He has filed some documents showing payment of certain amounts to the respondent.
26. As discussed supra, the appellant filed the aforesaid OP seeking dissolution of marriage on the ground of cruelty and desertion. He has to prove the same by producing some cogent evidence. On mere allegations, he cannot seek decree of divorce. Burden lies on him.
27. Cruelty is not defined in any statute. In Samar Ghosh v. Jaya Ghosh 1 the Apex Court mentioned certain acts as cruel acts which are only illustrative but not exhaustive. The said judgment was reiterated by the Apex Court in Naveen Kohli v. Neelu Kohli 2 and relevant paragraphs are extracted below:
In Samar Ghosh's case (supra1), the Hon'ble Apex Court drawing insights from English, American, Canadian, and Australian cases, has established that no universal standard can be universally prescribed to guide judgments on mental cruelty. However, the Court has outlined specific instances, illustrative but not exhaustive, that constitute mental cruelty. It emphasizes that the entirety of married life should be assessed, 1 (2007) 4 SCC 511 2 AIR 2006 SC 1675 21 KL,J&PSS,J fca_361&406_2012 and isolated instances over a span of years would not qualify as cruelty.
for an act to be deemed mentally cruel, it must persist over a significant period, leading to a deteriorated relationship where living together becomes extremely challenging for the wronged party due to the acts and behavior of the spouse. Mere trivial irritations, day-to-day quarrels, and the normal wear and tear of married life are insufficient grounds for granting a divorce based on mental cruelty.
"Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in our definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs persons to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
98. Apart from this, the concept of mental cruelty cannot remain static. It is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. what may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
99. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instance of human behavior which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties. It becomes abundantly clear that situation is such that the 22 KL,J&PSS,J fca_361&406_2012 wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lock of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health fo the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, sustained and weighty.
(vii) Sustained reprehensible conduct, studied neglect in difference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritation, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent of knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical 23 KL,J&PSS,J fca_361&406_2012 reason or without the consent of knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie. The law in such cases, does not serve the sanctity of marriage. On the contrary, it shows scant regard for the feelings and emotions of the parties.
In such like situations, it may lead to mental cruelty. "
28. In V.Bhagat v. D.Bhagat 3, the Apex Court held as under:
"16. Mental cruelty in Section 13 (1) (i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise or the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to be context in which they were made."3
(1994) 1 SCC 337 24 KL,J&PSS,J fca_361&406_2012
29. As discussed supra, the disputes between the appellant and respondent are trivial in nature. The same do not amount to cruelty. Even the appellant failed to establish the said allegations made by him by examining of his parents and elders i.e., Sri Maruthi Butt and Sri Damodar etc. He failed to examine his sister. Thus, he cannot seek decree of divorce basing on mere allegations. Thus, we are of the considered opinion that the appellant failed to prove the cruelty.
30. According to the appellant, the respondent deserted him on 15.01.2005 by leaving matrimonial house without informing him. Whereas, according to respondent, she was forced to leave the company of the appellant due to attitude of negligence of the appellant and that she was necked out from the said house.
31. As discussed supra, even the appellant himself during cross-examination admitted that he neither visited the boy or the respondent. He has not taken any steps to file a petition seeking restitution of conjugal rights. He has not taken any steps to see the respondent or the child. He has not filed any petition seeking to appoint him as guardian of 25 KL,J&PSS,J fca_361&406_2012 the minor or seeking custody including interim custody of the child or visiting rights. Thus, he totally neglected the respondent and his son, who is suffering with serious health issue.
32. Desertion is a continuing offence and is a course of conduct which exists independently of its duration, but as a ground for divorce, it must exist for a period of at least two years immediately preceding the presentation of the petition. In Bipin Chander Jaisinghbhai Shah v. Prabhawati 4 the Hon'ble Apex Court held that 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 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.
33. It is further held that for the offence of desertion, so far as the deserting spouse is concerned, two essential 4 1957AIR 176 26 KL,J&PSS,J fca_361&406_2012 conditions must be there, namely (1) factum of separation , and (2) the intention to bring cohabitation permanently to an end (animus deserendi meaning intention of deserting, i.e., bringing cohabitation permanently to an end). Similarly, two elements are essential so far 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. Paragraph 19 of the said judgment is relevant and the same is extracted as under:
"19.1 Deserting Spouse essential conditions
(i) Factum of Separation : The respondent's abrupt abandonment of the matrimonial home from Chennai on the 28.04.2003 establishes the factum of separation, a crucial condition for proving desertion. However it was contended that she left for her maternal house owing to her mothers deteriorating health condition and petitioner wasinformed of the same and was asked to stay as she was also pregnant. In the interim, the appellant got an offer in the USA and left for the job without informing the respondent and also not leaving any information about the whereabouts such as address and phone number. Later in attempt to trace the appellant address the respondent found it difficult and approached the
(ii) Animus Deserendi : The continuous pattern of disputes between the family by the way of filing criminal cases against the in-
laws family, subsequently forced relocation, and the respondent's absence of cohabitation since April, 2003 collectively indicate the 27 KL,J&PSS,J fca_361&406_2012 animus deserendi - the intention to bring cohabitation permanently to an end.
19.2 Deserted Spouse essential conditions
(i) Absence of Consent: The appellant upon going to the office after returning was expecting his wife at the house but the neighbor handed over the key and was shocked to notice that she had left Chennai with her father and brother duly locking the house and giving it to the neighbor without informing the appellant of this departure thereby demonstrating a lack of consent to the separation imposed by the respondent's actions.
(ii) Absence of Conduct Giving Reasonable Cause: There was no cause/reason accorded to the appellant during the departure of the respondent from Chennai apart. In the Cross Examination of RW1 (Respondent) it was accepted that she was staying with her in-laws at Chinnatokatta and she was happy reporting no problems where she admitted was treated for Tuberculosis. After her departure from the matrimonial house the respondent had not returned since without providing any reasonable cause for her untimed/unexpected departure."
34. In the present case, the appellant failed to prove that the respondent left his company and deserted him voluntarily and that the aforesaid two ingredients exist.
35. As discussed supra, the appellant failed to examine any witness to prove the cruelty as well as desertion. By mere allegations, he cannot seek decree of divorce. He has to prove the same by producing legally acceptable evidence. 28
KL,J&PSS,J fca_361&406_2012 He failed to prove the same in the present case and failed to discharge his burden.
36. On consideration of entire evidence both oral and documentary, the learned Family Court dismissed the O.P. filed by the appellant seeking dissolution of marriage. It is a reasoned order and well founded. It does not call for any interference of this Court.
37. With regard to the maintenance, as discussed supra, even according to the appellant, he was drawing gross salary of Rs.62,000/- per month and take home salary is Rs.48,000/- per month. It is not in dispute that the boy of the appellant and the respondent is suffering with serious health issue. He needs constant treatment and the said treatment requires expenditure. The appellant, being father of the boy, has to bear the said expenses. On consideration of the said aspects only, vide impugned order, the learned Family Court granted an amount of Rs.15,000/- per month to the respondent towards maintenance. There is no error in it. The appellant herein failed to make out any case to interfere with the said order. Therefore, both the appeals filed by the 29 KL,J&PSS,J fca_361&406_2012 appellant fail and they are liable to be dismissed and accordingly dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in these two appeals shall stand closed.
____________________________ JUSTICE K.LAKSHMAN ____________________________ JUSTICE P.SREE SUDHA Date :07.06.2024 YVL