Andhra HC (Pre-Telangana)
Kalapala Babu Rao vs Kalapala Ammaji on 20 February, 1990
Equivalent citations: I(1991)DMC632
JUDGMENT Radhakrishna Rao, J.
1. This case illustrates the typical mentality of a husband who, out of greed to the property belonging to the foster father of his wife, made a mockery of the oath taken at the time of the marriage that he would live with her with all love and affection, denied the parentage of the two minor children thus indirectly referring to the unchastity of his wife, which no Indian woman can tolerate for such an insinuation by no less a person than her husband. This unfounded castigation has given rise to a reasonable apprehension in the mind of the wife (respondent) of danger to her life and also of her minor children and made her to live apart from the company of her husband. Now, the husband seeks the company of his wife pleading that he made the remarks on the spur of the moment or in a fit of anger.
2. The appellant-petitioner, who is unemployed, is the husband of the respondent. Both belong to Christian religion. The husband tiled a petition in the District Court, Krishna at Machilipatnam, under Section 32 of the Indian Divorce Act (hereinafter referred to as 'the Act') for restitution of conjugal rights and the same was dismissed. Aggrieved against the said order, the husband filed the present appeal. It is convenient to refer to the parties as they are arrayed in the lower Court.
3. The marriage between the petitioner and the respondent was solemnized on 19-5-1972 as per the Christian custom and usage in CSI Church at the petitioner's village, Kalavapamula in Krishna District. Later the marriage was consummated. The respondent is no other than the daughter of the paternal aunt of the petitioner. The petitioner's father who is examined as PW 2 has got two sisters. The first sister was given in marriage to Sriramulu, RW 2, a native of Tenneru village, Krishna District. Another sister was given in marriage to RW-3, the natural father of the respondent. PW-2 is the son of RW 2's elder sister. RW-2 and his wife have no children and therefore they fostered the respondent.
4. The petitioner's father has got three sons. The petitioner is the second son. As they are closely related and as RW-2 brought up RW 1, the marriage was arranged and was performed at Kalavapamula Church and the consummation took place at Tenneru, the native place of RW 2. RW 2 has got 5 acres of land by the date of the marriage of the respondent. Subsequently, his wife died and he sold some property and kept some money in the name of the children of the respondent. RW-2 insisted that both the petitioner and the respondent should stay with him during the later part of his life. RW-2 also purchased some property at Kalavapamula and the same was sold and in that connection there was some litigation at the instance of PW-2. By 1983 differences arose between the petitioner and the respondent in connection with the property held by RW-2. On 17-4-1985 the petitioner issued a notice, Ex. A-2, to his wife alleging that the two children were not born to her through him and they were through some other person. The respondent issued a reply notice which is marked as Ex. A-3, denying the allegations and also stating that as the property was not kept in the name of the petitioner, he raised a dispute and also made unfounded allegations about her chastity. In that reply notice itself she has also expressed her desire to take steps for claiming maintenance for her and for her children also.
5. The petitioner is examined as PW-1. The petitioner's father is examined as PW-2 and two more witnesses are examined on behalf of the petitioner. On behalf of the respondent she herself was examined as RW-1 her foster father was examined as RW-2, her natural father as RW-3 and another neighbour and an elderly person of Tenneru village was examined as RW-4. On an evaluation of the entire evidence on record, the Court below came to the conclusion that the children were born out of the wedlock between the petitioner and the respondent only and they are children of the petitioner and the respondent and ultimately the lower Court held that the petitioner has not made out any case for restitution of conjugal rights against his wife.
6. The first and foremost contention raised by the petitioner in this Court is that the two children were not born to him and they were born through some other person. Exs. B-1 and B-2 are the extracts of the Birth Register issued by the Executive Officer, Pamidimukkala village and the M.R.O., Kankipadu, which go to show that the first child was born on 29-8-1975 and the second child was born on 5-11-1977. The marriage took place on 19-5-1972. The differences between the husband and wife started as is evident from the evidence, from 1983 onwards. P.Ws. 1 and 2 consistently stated and corroborated the statement made by the petitioner in Ex. A-2 that the two children were not born to PW-1, but RW-1. denied the same. R.Ws. 2 and 3 also corroborated the version of RW-1 about the access they are having and the children were born during the period they lived together as husband and wife at Tenneru. It is only for the first tine in the year 1985 in the notice Ex. A-2 the petitioner has come forward with this version that the children were not born to him. The entries that were made in the Birth Registers as is evident from Exs. B-l and B-2 cannot be said that they were made with a view to lay a foundation with regard to the parentage of the children of the petitioner. At that time there was no dispute and no imputation took place in that connection. Both the children were born to the respondent during 1975 and 1977 respectively during the period of valid marriage and absolutely there is no evidence on record to show that there was no access between the petitioner and the respondent from 1972 till 1977 by which time the two children were born to them. In the absence of any such evidence the presumption under Section 112 of the Evidence Act has to be drawn which says that :
"the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time, when he could have been begotten."
7. The evidence of P.Ws. 1 and 2 also shows that the respondent is coming to Kalavapamula and staying for 3 or 4 days. Both of them were very young at that time and they were staying at one place. Therefore, it cannot be believed by any stretch of imagination that they stayed together without any sexual contact. The evidence of P.Ws. 1 and 2 cannot be accepted in view of their silence for about a period of more than seven years and also for the fact that they have not raised any dispute till 1985 with regard to the birth of the children. The version of R.Ws. 1 to 3 coupled with the entries in Exs. B-l and B-2 leads one to draw an inference that both of them are having access with each other from 1972 to 1977 during which time the two children were born to them. Since the husband failed to prove that he has no access to his wife and, on the other hand, the respondent proved that there is access to each other and the children were born to them out of their wedlock, a presumption has to be drawn in favour of the respondent that these two children were born during their wedlock. Proof of the extracts from the Birth Register will gain probative value if the oral evidence let in by the parties support the version when the Birth Register extracts coupled with the evidence shows that the children were born during the continuance of the wedlock and they are having access to each other and, therefore, the husband must be estopped from challenging that the children were not born to him but were born through some other person to respondent. It is to be noted here that besides the allegations made in the notice Ex. A-2, the petitioner has ventured to state that their marriage took place on 19-5-1974. Even in the chief-examination or in the petition filed by him he maintained that the marriage took place on 19-5-1974. It is only when he was questioned in the cross-examination, he stated that his. marriage took place on 19-5-1972.
8. In Smt. Mango v. Mangtu, 1976 Crl. L.J. 93 it was observed that when the husband denies the parentage of the child he indirectly refers to the unchastity of the woman. The accusation of adultery is sufficient cause for refusal on the part of the wife to reside with the husband.
9. Though the petitioner denied, the main dispute has cropped up between the petitioner and the respondent with regard to the property of R.W.-2. The evidence and the facts will speak themselves that being aggrieved by the conduct of R.W.-2 in alienating a portion of the property and keeping the money in deposit in the name of the minor children of the petitioner, made him to leave the house of R.W.-2 in the year 1983. R.W.-2 brought up R.W.-1 and he performed her marriage with a condition that the couple should stay at Tenneru and look after his needs in his old age. The close relationship of RW-2 with RW-1, PW-1 and PW-2 and the fact that he has no issues lend support to the contention that the arrangement as pleaded by RWs 1 and 2 that PW-1 agreed to stay at Tenneru is correct. When proper arrangement has been entered into between the parties and in: pursuance of that arrangement he stayed there and when he is not employed anywhere, it cannot be said that the wife has dictated that her husband should stay at her house at Tenneru. It is to be noted that the native village of the natural parents of RW-1 is Pamidimukkala but not Tenneru. When RW-2 is having no children and in view of the close relationship with petitioner and the respondent, it can be said that the arrangement as pleaded by him is correct.
10. It is relevant to notice the provisions of Section 32 of the Act which reads as follows :
"When either the husband or wife was without reasonable excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court of the High Court for restitution of conjugal rights and the Court on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly."
11. Section 33 of the Act is also relevant in this connection which reads as follows :
"Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which would not be ground for a suit for judicial separation or for a decree of nullity of marriage."
12. In an application by the husband for restitution of conjugal rights, the wife had only to prove that she has reasonable excuse for withdrawing from the society of her husband on the ground of cruelty. "Cruelty" has been defined in the classic case in Russel v. Russel, (1897) AC 305 as the conduct of such character as to have caused danger to life, limb or health, bodily or mentally, or to have given rise to a reasonable apprehension of such danger. The unfounded allegation per se that the children were not born to him but through some other person without any proof will give a right to the wife to stay away from the matrimonial home and the husband is not entitled to claim restitution of conjugal bliss under Section 32 of the Indian Divorce Act as it is a reasonable excuse for the wife to defend herself as the act committed by the husband amounts to mental cruelty.
13. The request if any made by the husband in writing for resumption of co-habitation before the filing of the petition should be conciliatory and may be made by the party concerned or his advocate. Unnecessary threats should be avoided. In this case the notice Ex. A-2 shows that the petitioner wants to lay a basis to deprive his wife of her claims and attributed unchastity by stating that the children were not born to him but through some other person. The burden of proof is on the petitioner to satisfy the Court that a valid marriage was subsisting and that there has been withdrawal by the wife from his company without reasonable cause.
14. Where the sole object of the petitioner in filing the petition for restitution of conjugal rights is to get rid of maintenance claim or a partition suit that has to be made on behalf of the minor children, the Courts have to come to the rescue of the helpless wife. Matrimonial cruelty is not one act but the cumulative effect of many acts which go to injure other spouse. An act in isolation may not be held to cause mental cruelty but when that is put in the chain of so many other like acts it may prove more offensive and cruel. The number of painful acts is not relevant as cruelty does not depend upon the number of such assaults but their nature and degree is relevant for deciding if one is guilty of cruelty. Some times even a single act may be so injurious that it may be held to be cruel act and a series of acts may not constitute cruelty.
15. Sri B.V. Subbaiah, the learned counsel for the petitioner contended that the mere allegation that has been made that the children were born not to him but through some other person on the spur of the moment or in a fit of anger, cannot be taken as a ground to deny the relief that has been asked for. The imputation made to a wife that the children were born through some body else cannot be said to be attributed on the spur of the moment or in a fit of anger. In the notice Ex A-2 itself he attributed the same allegation and the same is also reiterated in the petition and it is also suggested to RWs 1 to 3 that the children were not born to them. When a serious allegation is made doubting the chastity of a wife in the notice and the same was mentioned in the petition and the witnesses also spoke about it, it cannot be said that he made the allegations casually or in a fit of anger. When a serious allegation is made, definitely the wife is entitled to stay away from the company of her husband.
16. It is also contended for the petitioner that as a true Christian, the petitioner wanted to condone the lapses of her wife and live with her happily and the statement made by him that he is prepared to live with her along with the children ought to have been taken as a genuine offer. In the lower Court also a similar argument was advanced by relying on a passage from the Bible written at page 528 under 7th Chapter with heading, "Vivaha Samasyalu, Brahmacharyam, Parityagam (these words are given in Judgment in Telugu). The 10th and 11th stanzas in that chapter read :
"that the husband should not abandon his wife even though he is not satisfied with her conduct and live, with her and make her pure by his conduct."
Since RW-2 has not given the property he ventured to make an allegation. that the children were not born to him but were born to his wife through some other person. The finding of the Court below that the children were born to the petitioner out of their wedlock is correct and the same is confirmed. The conduct exhibited by the petitioner throughout leads one to the irresistible conclusion that he is net a good natured person.
17. Sri Subbaiah, the learned counsel for the petitioner, further contended that it is the bounden duty of each wife to live with her husband wherever he chooses to reside and since the respondent has not complied with the demand as made in Ex. A-2, it must be held that the petitioner has made out a case.
18. In V. Potharaju. v. V. Radha, it was held that it was the bounden duty of the wife to live with her husband where-ever he chooses to reside and that it is the right of the husband to require his wife to live with him and courts cannot deprive him of this except for special circumstances which absolve the wife from the duty and an agreement entered into between the wife and the husband that they should live in the house of the wife's father does not affect the right of the husband to demand that his wife should live with him wherever he chooses to reside.
19. There is no dispute with regard to the proposition that has been laid down in the above case and applying the same to the facts of the present case it can be said that the husband lost his right in demanding his wife to come and live at Kalavapamula at his father's place when he entertained a doubt about the paternity of the two children and the life of the respondent is at stake The arrangement between the petitioner and the respondent is that the respondent should look after RW-2 who is her adoptive father and who is otherwise closely related. RW-2's wife died and naturally he requires some assistance. Both the petitioner and the respondent are not employed. The brother of the petitioner is residing with his wife in his father's house. The claim of the husband has to be considered with reference to the facts and circumstances that have been brought out in the each case. In this case, the husband has not made out any special case to get over the arrangement that has been entered into. The respondent apprehends that her life and also that of her children is not safe at the hands of the petitioner if they are forced to go and live at the petitioner's house. PW-1 states that an offer was made by him but we do not think that he is making the offer wholeheartedly. The intention is only a make-believe story but not with any real objective The father of the respondent has gone to the extent of saying that he is also afraid that the petitioner may cause harm to the respondent. When the wife apprehends some danger to her life and the life of her children is at stake, the only alternative for her is to live separately from her husband and in view of the conduct exhibited by the petitioner the respondent's apprehension must be a genuine one. The conduct of the respondent in staying away from the matrimonial home can be justified for the reason that her husband made an unfounded and unethical allegation doubting the paternity of the children born to him out of their legal wedlock indirectly referring to the unchastity of his wife and also for the reason that the father of the petitioner claimed the entire property of 20 acres as his self-acquired property with a view to deprive the minor children of their right to have a share and the petitioner withdrawing from the society of the wife contrary to the arrangement agreed to and entered into between the parties at the time of the marriage. When the wife has a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the husband, in view of the peculiar conduct of the husband, the statute does not require that the wife should prove actual harm and it is for the Court to adjudge, having regard to the particular facts of a case whether the conduct of the husband causes a reasonable apprehension and nothing more.
20. In the result, the appeal is dismissed. No costs.