Karnataka High Court
Sangeeta W/O Rajkumar Seeri @ ... vs Rajkumar Seeri @ Rajshekhar Harsoor S/O ... on 25 February, 2013
Bench: N.Kumar, H.G.Ramesh
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 25TH DAY OF FEBRUARY 2013
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE H.G.RAMESH
M.FA. No.31563/2012 (FC)
BETWEEN:
SANGEETA W/O RAJKUMAR SEERI
@ RAJSHEKHAR HARSOOR,
AGE: 28 YEARS, OCC: TEACHER,
R/O C/O SAIBANAPPA SAHU
NEAR CHOWDHARY CASSETTE CENTRE,
BEHIND MAHARAJA HOTEL,
PDA ENGINEERING COLLEGE ROAD,
AIWAN-E-SHAHI AREA,
GULBARGA-585101.
... APPELLANT
(BY SRI ASHOK KINAGI, ADVOCATE)
AND:
RAJKUMAR SEERI @ RAJSHEKHAR HARSOOR
S/O SHARNAPPA SEERI,
AGE: 38 YEARS, OCC: MEDICAL
REPRESENTATIVE,
R/O HARSOOR,
TQ. & DIST. GULBARGA-585101.
...RESPONDENT
(BY SMT. MAYA T.R., ADVOCATE)
2
THIS MFA IS FILED U/S 19 (1) OF FAMILY COURT
ACT AGAINST THE JUDGMENT AND ORDER DATED
19.7.2012 PASSED IN M.C. NO.141/2011 ON THE FILE OF
THE DISTRICT JUDGE, FAMILY COURT, GULBARGA,
WHEREIN ALLOWING THE PETITION FILED U/S. 13(1)
(ia)(ib) OF HINDU MARRIAGE ACT, 1955.
THIS MFA COMING ON FOR DICTATING
JUDGEMENT THIS DAY, N. KUMAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by the wife challenging the order passed by the Family Court dissolving the marriage between her and the respondent under Section 13(1) (ia) (ib) of the Hindu Marriage Act, 1955. For the purpose of convenience, the parties are referred to as they are referred to before the Family Court.
2. The petitioner Rajkumar Seeri married the respondent Sangeeta on 27.06.2007 at Veerashaiva Kalyana Mantap, Public Garden, Gulbarga as per the Hindu customs prevailing in the community. The marriage was consummated. The case of the petitioner 3 is; after the marriage respondent resided with him for couple of days. Thereafter, she was taken to her parents' house for 10-15 days. She was brought back after couple of days, again she wanted to go to her parents house. Petitioner's mother told the respondent that it is not good for a newly married girl to leave the company of her husband often and often within a period of 2-3 days for which the respondent created a scene in front of maid servant and neighbours by shouting, abusing the petitioner and his mother saying that petitioner's family is beggar's family and how dare they are to object her to go to her parents' house. She said that they have no status and respect in the society, she is coming from a rich family. Thus, she insulted and abused the petitioner and his mother and then went to her parents' house without permission and consent of the petitioner. The said fact was brought to the notice of the parents of the respondent, but they did not give any response. Respondent used to reside hardly for 2-3 days or at the 4 most a week in a month with the petitioner and most of the time in a month she used to reside with her parents. Three months after the marriage, the petitioner arranged a small get together party with his friends along with their family at his home. On that day respondent remained herself confined in bedroom and did not take part in any of the household work and also in cooking the food for the guests. When she came out at the request of the petitioner, she shouted and insulted the petitioner and his mother without any reason in the presence of his friends and guests saying financial status of the petitioner is much below. She was not willing to marry the petitioner, but due to pressure of her parents, she married him. She wanted to marry a rich man. She even commented on the quality of food prepared and asked all the guests not to eat anything stating that it is a beggar's food. It has caused great insult to the petitioner in front of his friends and caused mental agony.
5
3. When the respondent was three months pregnant she again picked up quarrel with the petitioner without any cause. She demanded the petitioner to leave his mother and that he should break all his ties with family members if he wanted to continue relationship with the respondent. She further demanded he should stay in her parents' house and she does not want stay with the petitioner who is pauper. The respondent left the house of the petitioner and went to her parents' house. In spite of several request she has not come back. On 3.10.2008 she delivered a male child at Banale hospital, Gulbarga. After two months of child's birth, cradle ceremony was arranged by respondent's parents at their house. The petitioner was neither intimated by the respondent nor by her parents. Even then petitioner attended the cradle ceremony and suggested the name of child as Supreet, but respondent refused the said name for his child. After the cradle ceremony, petitioner asked respondent to come to his house and 6 requested his in-laws to send respondent. On one pretext or the other she avoided to come to petitioner's home. Ultimately on 1st June 2009 she came to petitioner's house. In the first week of June 2009 petitioner performed cradle ceremony of his son at his house. Next day respondent picked up quarrel with the petitioner and said she does not want to live with him along with the mother of petitioner under one roof and again by teasing, abusing the petitioner of his financial status in front of neighbours she left the house of petitioner and went to her parents' house without his permission since then she is residing with her parents at their house deserting the petitioner without any cause. Since last more than two years i.e., from first week of June 2009 the respondent has totally deserted the petitioner by not residing with him. On the other hand, she is residing with her parents. In August 2009, the petitioner along with his close relatives went to the respondent's parents' house to see his child and respondent. The petitioner took 7 sweets and dress for his child. The petitioner was stopped outside the house by respondent and her parents, not shown courtesy towards petitioner. Even then the petitioner gave dress and sweet brought by him to respondent. The respondent thrown the dress and sweet on the road saying that her child does not need beggar's dress and did not allow the petitioner to see the child. Similarly, the incident repeated on 20.03.2011. The said act of the respondent hurt feelings of petitioner deeply and constituted mental cruelty. The petitioner several time tried to contact the respondent telephonically, but she never responded. The conduct of the respondent in not resuming conjugal relationshi9p with petitioner by not coming to matrimonial home though several attempts made by petitioner and well-wishers clearly establishes intention of the respondent to remain separate. Therefore, she deserted the petitioner continuously since first week of June 2009 without any reasonable cause without consent and against the wish of 8 petitioner. Since then respondent totally put an end to marital relations, obligations and cohabitation permanently with petitioner.
4. To sum up the attitude of respondent towards petitioner, it was very arrogant, rude and was full of adamancy, behaving with the petitioner in an insulting manner. She never treated the petitioner with respect. The language of respondent always been teasing, abusive and she was treating the petitioner with cruelty. The act of deprivation of conjugal rights on the part of respondent towards petitioner amounts to cruelty. Due to persistent non-co-operation and hostile attitude of respondent, the petitioner was subjected to serious traumatic experience. Because of that petitioner could not concentrate in his job and ultimately lost his job. The petitioner being fed up with the attitude of the respondent, on 19.02.2011 got issued a legal notice calling upon the respondent to join the petitioner by coming to matrimonial home 9 within 15 days of receipt of the notice. The said notice was duly served on the respondent. She neither came to petitioner's home nor sent any reply. Again on 13.06.2011 petitioner got issued one more legal notice calling upon her to come to the Court and file a joint divorce petition by mutual consent within 15 days of receipt of the notice. Though the said notice was served, she did not collect the legal notice. Hence, it was returned to the petitioner. On 19.07.2011 he got issued reminder notice addressed both her parents' address and also where she is working calling upon her within 7 days of receipt of said notice to come to the Court and file divorce petition by mutual consent. Said notices were duly served on both the addresses, she has not complied with the notice nor given any reply. He has tried his level best to secure respondent in matrimonial home, but same is failed. The marriage between the parties irretrievably broken down and there is no hope in future of continuing marital relationship. There is no purpose to be served by 10 continuance of marriage. Therefore, aggrieved by the adamant and arrogant attitude of respondent the petitioner left with no choice except to file this petition for divorce, which is the only remedy, left for him. Therefore, he preferred a petition for divorce under Section 13 (1) (ia) & (ib) of Hindu Marriage Act for dissolution of marriage.
5. After service of notice, the respondent entered her appearance. She has filed detailed written objections. After traversing all the allegations in the petition and denying the same she has set out her case. It is her specific case that she has not left the house of the petitioner on her own, but the petitioner and his family members have harassed her and threw her and her new born child out of the house. Petitioner has neglected to maintain the respondent and their new born child. Petitioner is not able to understand his obligation towards his wife and child. He is running away from the matrimonial 11 responsibilities. The petitioner is under the influence of his parents and the parents of the petitioner were trying to perform the second marriage of the respondent. In the month of March 2011, she had been to the house of petitioner with her new born child and she remained there for three days. During that period also the petitioner and his family members ill- treated the respondent and her new born child and dragged her and her child out of the house. Hence, respondent is left with no other remedy except residing with her parents. The elders and well wishers of the respondent had been to the house of the petitioner to reconcile the difference, but the petitioner and his parents have abused and threatened the elders and well wishers and not allowed them to enter the house. They admit the notice sent for restitution of conjugal rights. She has not initiated any proceedings for the said relief. She has denied the receipt of other notices.
6. On the aforesaid pleadings the Family Court framed the following points for consideration; 12
1. Whether petitioner proves that respondent has ill-treated him with cruelty?
2. Whether petitioner proves that respondent has deserted him without any cause?
3. Whether petitioner is entitled to the decree of divorce?
4. What order?
7. In order to substantiate his claim the petitioner himself examined as PW-1 and he examined two witnesses and produced 7 documents, which are marked as Ex.P.1 to P.7. On behalf of the respondent, she was examined as DW-1 and she also examined 2 witnesses. No documents are produced. The Family Court on appreciation of the aforesaid oral and documentary evidence on record held that the evidence placed before the Court clearly indicates that the respondent has treated the petitioner with cruelty by teasing him. She has deserted the petitioner for a continuous period of not less than two years and therefore, the petitioner is entitled to decree for divorce 13 against respondent. Accordingly, it has passed a decree for dissolution of marriage. Aggrieved by the said judgment and decree of the Family Court, the respondent has preferred this appeal.
8. The learned counsel appearing for the respondent assailing the impugned order contended that all the allegations made in the petition are false. It does not constitute a case of cruelty nor a case of desertion. The admitted evidence on record shows it was an arranged marriage. After marriage there was cohabitation and on consummation of marriage a son is born. After the birth of the son the petitioner has not allowed the wife to join him with the child. The learned Family Court Judge after examining the evidence on record disbelieving the evidence of DW-1 and DW-2 has accepted the evidence of PW-2 and PW- 3 as having proved the factum of cruelty which is contrary to the evidence on record. He pointed out the allegations in the legal notice and the allegations in the 14 petition shows the improvement of the case made by the petitioner. Unfortunately, the Family Court believed this improvement and has held both cruelty and desertion is proved and therefore he submits the judgment and order passed by the Family Court requires to be set aside and the petition for divorce is to be dismissed.
9. Per contra, the learned counsel appearing for the petitioner-husband submitted that within few days from the date of the marriage the wife picked up quarrel with the husband on the ground that she is coming from a very rich family. Whereas the husband is coming from the very poor family, they are beggars, paupers and she did not live with him. She has insulted himself and his mother in the presence of neighbours as well as the friends and well wishers in the family. Even the attempts made on their part to get back the wife to their house was not successful. The mental agony, which the husband underwent 15 because of her behaviour, resulted in losing his job. She is not interested in living with him, as she wanted to marry a wealthy person. Even the husband was not allowed to look at the child and prefer the name, they have kept a name different from the one, which is suggested by him. She is insisting on him living with her without the mother. These facts constitute cruelty and therefore, the Family Court was justified in passing the decree of dissolution of marriage. Admittedly, she has been living away from the husband for more than two years. She is refusing to join him. Therefore, there is no justification for her not to live with her husband. Under these circumstances, even the case of dissolution is made out as held by the learned Family Court Judge and therefore, she submits no interference is made out.
10. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration in this appeal are as under; 16
1) Whether the finding of the Family Court that a case of cruelty is made out for dissolution of the marriage is supported by the legal evidence on record?
2) Whether the petitioner has proved that the respondent has deserted him without a just cause?
11. POINT NO.1:- This court had an occasion to consider this aspect of mental cruelty in MFA No.11929/2006 (FC) in case of Huvakka -Vs- Vishwanath. After reviewing the entire case this Court held as under;
" Para-12. Cruelty is one of the ground for granting a decree of divorce. However, the word "Cruelty" has not been defined. It is impossible to give a comprehensive definition to cruelty. It has been used in relation to human conduct or human behaviour. It is a conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one, which is adversely affecting the other. It may be intentional or 17 unintentional. The cruelty may be mental or physical.
Para-13. If it is physical, the Court will have no problem to determine. It is a question of fact and degree. The nature of injuries inflicted, the extent of physical force used, the time and place of inflicting injuries, the part of the body affected, medical records showing the treatment given, the money spent on treatment, eye witness if any, the cause for such assault, would give an insight to determine the physical cruelty pleaded as a ground of divorce. The Court would be justified in insisting on some evidence as a proof of physical cruelty and thereafter to proceed to assess to the evidence to record a finding of cruelty.
Para-14. But if the case pleaded is of mental cruelty, the problem presents difficulty. Mental cruelty is a conduct which one party inflicts upon the other party, such mental pain and suffering as would make it not possible for that party to live with the other. First the enquiry must begin as to the 18 nature of cruel conduct complained of. Secondly, the impact of such conduct on the mind of the other spouse. In trying to find out the impact of such conduct, one should have knowledge and intention of the spouses, their character and physical and mental weakness. It is also necessary to have a fair knowledge of the setting in which they are living. The type of life the parties are accustomed to or their economic and social condition, the education they had, the cultural background and the human values to which they attach importance.
Para-15. The Judge who is deciding a case of cruelty more so mental cruelty should be sensitive to the feelings and in understanding the trauma of the parties. Otherwise he will not be able to appreciate and understand the intricacies involved in a sensitive conjugal relationship. The Judge should not import his own notions of life and go parallel with them. Actually there is a generation gap between the Judge and the parties. It would be less better if he depends on precedents. It is necessary to bear in mind that there has been marked 19 change in the life around us. In matrimonial duties and responsibilities in particular there is a sea change. They are of varying degrees from house to house, person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standards in life. A set of facts stigmatized as cruelty in one case may not be so in another. 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."
The Apex Court in the case of Gurbux Singh -Vs- Harminder Kaur reported in AIR 2011 SUPREME COURT 114 at para-11 and 12 observed as under;
" 11. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified therein. We have already pointed out that in the petition for dissolution of marriage, the appellant has merely mentioned Section 13 of the Act and in the body of the petition he highlighted certain instances amounting to cruelty by 20 the respondent-wife. Cruelty has not be defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Therefore, it is essential for the appellant, who claims relief, to prove that a particular part of conduct or behaviour resulted in cruelty to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis-à-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty. It is true that even a single act of violence which is of grievous and inexcusable nature satisfies the test of cruelty. Persistence in inordinate sexual demands or malpractices by either spouse can be cruelty if it injures the other spouse. There is no such complaint by the appellant. In the case on hand, as stated earlier, the appellant has projected few instances in 21 which, according to him, the respondent abused his parents. We have verified all the averments in the petitions, reply statement, written submissions as well as the evidence of both parties. We are satisfied that on the basis of such instances, marriage cannot be dissolved.
12. The married life should be assessed as a whole and few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty. Sustained unjustifiable and reprehensible 22 conduct affecting physical and mental health of the other spouse may lead to mental cruelty. Both the appellant and respondent being highly qualified persons, the appellant being Principal in ITI College, the respondent working as a Librarian in a Government Institute, an isolated friction on some occasion like festival of Lohri even in the presence of others cannot be a valid ground for dissolving the marriage."
The learned counsel appearing for the respondent had relied on a judgment of the Apex Court in the case of G.V.N. Kameswara Rao -Vs- G.Jabilli reported in AIR 2002 SC 576 wherein it is observed as under;
" The case of the appellant that he had been subjected to cruelty by the wife is not put as such solely on the basis of one or two incidents. Their marriage life started in 1979 with so many ups and downs. Both of them did not live together for a longer period as happily married couple. The appellant has succeeded in proving that the attitude of the respondent was not cordial and co-operative. The respondent also 23 alleged that their marriage life was not happy and cheerful. The way in which the appellant was treated by the respondent when he visited her sisters house at Araku Valley and the subsequent filing of the criminal complaint whereby the appellant was subjected to severe humiliation would go to show that the respondent was not prepared to extend any kind of co-operation to the appellant. The respondents allegation that she was physically assaulted by the appellant and his mother is not very convincing. The fact that there was a bleeding injury on her hand was taken note of seriously by the High Court but the question is, in those circumstances, would an ordinary prudent person rush to the police station and file a complaint to see that her husband and his mother be kept in police custody for unduly long hours. These incidents throw an insight into her past conduct when she was staying with the appellant. The mental cruelty faced by the appellant is to be assessed having regard to his status in his life, educational background, the environment in which he 24 lived. The appellant could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. Married life of the appellant with the respondent had never been happy. The appellant would say that from 1985 onwards, he has not been having conjugal relationship with the respondent and even prior thereto, the respondent was not properly discharging her marital obligations."
12. In the background of these judgments, let us see facts of this case. In the first legal notice issued which is at Ex.P.1 it is stated that the wife was frequently visiting her parents' house. When it was objected to by her mother-in law she raised her voice in front of maid servant and the neighbours and she also stated that her family status is superior that of a family status of her husband. She insisted that the petitioner should leave his mother and he should stay in her parents house and thereafter she went to her 25 parents' house where she delivered a child. The grievance was, they were not informed about the birth of the child for nearly nine months, they were not informed about child's cradle ceremony. He suggested the name of child as Supreet, which was not accepted by her. After the cradle ceremony he requested her parents to send her back. Thereafter, she was sent to her husband's house where again they performed one more cradle ceremony. Again she abused him and because of those abuses he was mentally upset, he was transferred from one place to another and in the end he lost his job. This is the mental cruelty which is pleaded in the first legal notice and the demand in the said legal notice was; she has to come and reside with him, she has to respect his mother and relatives and perform her marital obligations within 15 days from the date of receipt of the notice failing which he would move the Court for dissolution of the marriage. This offer in the legal notice makes it clear that he had no intention of taking back the wife. If she is not coming 26 he wanted to seek divorce. If really the intention was to have his wife back, when he has approached the counsel, his demand should be that if she has not joined him within 15 days he would proceed to seek for restitution of conjugal rights and not divorce. Here, the intention of the petitioner gets completely exposed. In the second legal notice after referring to the first legal notice it is stated that he went to her house on 20.03.2011 i.e., after the legal notice was served to bring her back to his house, again she abused him and spoke about his financial condition. Now for the first time in the second legal notice it is stated that she is living separately without any reasonable cause since June 2009 and as she has not complied with the first legal notice, it amounts to desertion and then it is stated that there is absolutely no compatibility between them and again the demand was reiterated that she is not returning home he would file a petition for divorce. The third legal notice dated 19.07.2011, which is a repetition of the earlier legal notices. In these two legal 27 notices the demand is that she should come to Court and file a consent divorce petition. In the entire legal notice referred to supra, there is no mention about the petitioner three months after the marriage arranging a small get together party of his friends along with their families in the house. The respondent refusing to cook the food, she has remained herself confined in bedroom and did not take part; in any of the household work. When she was persuaded, she came out and abused the petitioner, his mother, friends and relatives and that she informed that financial status of petitioner's family is much below with that of her parents. She was not willing to marry petitioner, but due to pressure of her parents she married the petitioner and that she wanted to marry a rich man. These allegations are conspicuously absent in the legal notices and the witnesses who have deposed supporting these allegations could be conveniently turned as tailor made witnesses who have come to Court to support the claim of petitioner which has no 28 foundation. Similarly, in those three legal notices there is no mention of he taking sweets and dress for the child and he was stopped outside the house by respondent and her parents, not shown any courtesy towards petitioner and the dress and suit given to her were thrown out saying that her child do not need beggar's dress which according to the averments of the petition caused mental cruelty. These facts again are conspicuously missing in the three legal notices, which were sent to the respondent before filing the petition for divorce. Therefore, the evidence tendered by the petitioner in support of the case also do not have any value. If we exclude the said two aspects from the case of the petitioner, all that emerges is after the marriage the respondent joined the petitioner as a dutiful wife. They lived together, marriage was consummated, and within nine months from the date of marriage the child is also born. This clearly shows that she has performed her marital obligations. Even if the allegations that she was frequently visiting her parents 29 house, it only shows that the respondent is having normal behaviour. That is what a girl displaced from her parental house and made her to live in a all together a different atmosphere with her husband would feel at the beginning of the marriage. If she wanted to visit her parents frequently, a sensible husband would have understood the sensitivity involved, and should accompany her and brought her back. A mother-in law taking exception cannot be found fault because she is a mother-in law, she cannot treat her daughter-in law as her daughter. But that cannot be blown out of proportion. When the mother- in law objects for the frequent visits of the daughter-in law, normally the wife would insist her husband to desert the mother-in law and live with her. It is here immediately after marriage, in the house of the boy, a stranger, the girl coming all together from a different background, it takes some time to understand each other, understanding the surroundings of the house to which she is married and the persons living there and 30 adjust them is a gradual process. It is here, everyone should have some patience, understanding and understand the human behaviour and they should realise the fact that they have married for life and they should try to live together. At any rate, mother-in law, if she is interested in her son's happy married life, should show tolerance. On the contrary, if they start asserting their rights, there is clash of ego. These clashes, utterings do not constitute cruelty so as to dissolve the marriage which is celebrated with pomp and pleasure. After marriage, which is consummated, a lovely son is born in the said family. Unfortunately, the Family Court Judge who is exclusively dealing with the matrimonial cases should have appreciated the matter in a proper perspective and should not have jumped to conclusion and blown the minor irritant which happen in every household out of proportion and made out a ground of divorce. In view of the law laid down by the Apex Court and this Court as aforesaid, every case have to be decided in the facts of 31 that particular case. It is to be said to the credit of the wife, after denying the allegations made by the petitioner in the petition, at any rate she did not lose her balance. It was open to her to make serious allegations about husband as we find in many of the cases accusing him of physical cruelty, demand for dowry, demand for money etc. It only shows her culture, it only shows she is interested in living with her husband. She does not want to leave the company of the petitioner, which shows what type of lady she is. If that lady, in spite of such baseless allegations made in the petition has shown patience, maturity and dignity in making allegations against her husband, it clearly demonstrates where the fault lies. Therefore, we have to give credence to the plea taken by her as well as the evidence on record which clearly goes to show that she is coming from a decent family, cultured family, she had no intention to break the marriage and wants to live with her husband. There is no demand for maintenance and for payment of cost of litigation. 32 All this can happen only if they want to retain the relationship. If there was any intention of harassing the petitioner, there would have been counter allegations. On the contrary, it is the petitioner who is accusing her of making his life miserable. According to him her conduct has caused mental agony, because of the same he could not concentrate in his job and ultimately lost his job. Here we are convinced that the petitioner probably after marriage for lack of experience is unable to handle a girl coming from a very cultured family. He has been trying to show his manliness and wants to dominate her supported by his mother. Though the respondent is decent and humble she appears to be firm, she knows where to adjust and will not to yield, and putting forth a stout defence asserting her right and has not allowed the petitioner and her mother to have their way. She cannot be described as adamant. If only they have lived for couple of years with all these pinpricks, they would have understood better and lead a happy married life. 33 It is unfortunate that parents of both sides have not looked into matter in a proper perspective. May be they are also responsible for this, as there is misunderstanding and the allegations made are only small irritants. Now that they are living separately for couple of years, probably if they start living together now, they will be very careful enough not to repeat the very same mistake and they will behave more responsible and forget whatever they did and lead a happy married life. In that view of the matter, we are satisfied that the allegations in the petition are not only untrue as set out above and not supported by any acceptable evidence and they do not constitute a case of mental cruelty.
13. POINT NO.2:- Insofar as desertion is concerned, the law on the point is well settled. This Court had an occasion to consider this in the case of Suvarna Kom Ratnakar Shet -Vs- Ratnakar Vinayak Shet in MFA No.23999/2009 and connected case 34 decided on 6th July 20011. After setting out the provisions of law and various decisions where this word desertion has fell for consideration held as under;
" Para-31. The clause lays down the rule, that desertion to amounting to a ground for divorce must be for a continuous period of not less than two years immediately preceding the presentation of the petition.
This clause has to be read with the Explanation. The Explanation has widened the definition of "desertion" to include willful neglect of the petitioning spouse by the respondent. It must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage.
Para-32. The deserting spouse must be shown to have persisted in the intention to desert throughout the whole of the two year period. In most cases of desertion the guilty party actually leaves the other, but it 35 is not always or necessarily the guilty party who leaves the matrimonial home. The party who intends bringing the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion. We must look at the conduct of the spouses and ascertain their real intention. In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without other's consent, and without reasonable cause. It is a total repudiation of the obligation of marriage.
Para-33. The expression "willful neglect" included in the section does not introduce any new concept in Indian law unknown to the English law, but is only an affirmation of the doctrine of constructive desertion. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. No inspiration could be derived from Section 9 of the Act in order to construe the scope of the expression "without reasonable cause" and whether 36 there is a reasonable cause or not? Is a question of fact to be decided on the facts of each case. Therefore, the essential conditions, which must exist in order to constitute 'Desertion' under Section 13(1)(1b) of the Act are as under;
"For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there... namely:
(1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted spouse is concerned:
(1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
14. In the background of these settled legal positions let us look at the facts of this case. Immediately after the marriage the respondent joined her husband. There was cohabitation. Marriage was 37 consummated. Immediately, the respondent became pregnant. She started visiting her parents' house. Then her parents took her to their place and in nine months period the child is born. After the birth of child she has lived with her parents. After nine months, it is her case, she was not allowed to enter the house with her child because the petitioner's mother wanted to perform the second marriage of the petitioner. Absolutely, no evidence on that ground. The evidence of the petitioner and the plea raised clearly makes it very clear that the respondent is not refusing to join the petitioner. She is demanding that the petitioner should give up her mother and he should live with her. Therefore, there is no intention to separate or there is no intention to bring cohabitation permanently to an end. The evidence on record shows that at the time of cradle ceremony even though the petitioner was not intimated, he attended the cradle ceremony and suggested the name of child as Supreet, but respondent refused the said name for 38 the child. Thereafter, one more cradle ceremony was performed in the house of the petitioner after the respondent returned on which day she was very much present in his house. Thereafter she again picked up quarrel with the petitioner that she do not want to live with petitioner's mother. As already stated above, this is an improvement and conspicuously missing in three legal notices issued prior to filing of the petition. Therefore, the wife had the intention of joining of her husband with the child with the intention of living together. Thereafter she has joined her husband. The petitioner has no explanation to give except repeating what he has been saying throughout i.e., she claims to have come from a rich family and petitioner's family is beggar's family and how dare they are to object her to go to her parents' house and she does not want to live with him. It is very difficult to believe; these versions. Truth somewhere lies in between. But the fact remains, if really petitioner was interested in getting back the wife when she was living separately, he would 39 have said that if you are not coming back I will file petition for restitution of conjugal rights, but he was very much wanted divorce. The petitioner in the first legal notice called upon the respondent to come and join him and she was expected to live with where he resides, respect his mother and other relatives and she must perform marital obligations. Assuming that the wife is not respecting his mother and other relatives, that cannot be a ground for dissolution of marriage. If he had respected his parents, normally the girl will also follow the same. Absolutely there is nothing on record to show that she was showing any disrespect. The allegations that the respondent insulted the petitioner and his mother in the presence of friends and neighbours. Therefore, the intention could be gathered from this legal notice and the petitioner's conduct is not bonafide throughout. In every notice he threatens to file divorce petition and not the petition for restitution of conjugal rights. In the two notices he demands that she should give her consent for a 40 divorce. Therefore it is he who has closed his mind. Therefore, he is deserting the spouse. Therefore, as stated in the aforesaid judgments, it is the petitioner who has the intention to permanently desert the respondent and not the other. So merely because, they lived for more than two years separately itself is not a ground or proof of desertion on the part of the wife. There is no intention of such desertion to bring the cohabitation permanently to an end on the part of the wife. On the contrary, he is the guilty party. According to petitioner she is willing to live with him provided his mother does not accompany. This clearly shows that she has no intention to abandon the husband. In the light of this unimpeachable material on record, the finding of the trial court is contrary to the well-settled principles of law. The learned trial Judge has not properly appreciated the material on record and he seems to have come to the conclusion that merely because the parties are lived separately for more than two years and the wife has not responded 41 two legal notices, the case of desertion is proved. The said finding is perverse and it cannot be supported with evidence. In that view of the matter, we pass the following;
ORDER The appeal is allowed. The judgment and decree passed by the Family Court is hereby set aside.
The petition for divorce filed by the husband is hereby dismissed.
Parties to bear their own cost.
Sd/-
JUDGE Sd/-
JUDGE.
NSP