Karnataka High Court
Mrs. Leeladevi Rao vs K.U. Hari Rao on 21 September, 2002
Equivalent citations: I(2003)DMC375, 2003(1)KARLJ379
Author: Tirath S. Thakur
Bench: Tirath S. Thakur, D.V. Shylendra Kumar
JUDGMENT Tirath S. Thakur, J.
1. That differences can arise between spouses even at ripe old age making it impossible for them to live together is amply demonstrated by the facts of this case. The presence of grown up children who are now settled in life or the economic affluence which the parties have seen in their happier days together has also made little difference in resolving the stalemate and bringing the couple together. Litigation often brings realism with it. In the present case, even that has failed to subdue the negative sentiments which the parties have towards each other. They have continued to stay apart in two different continents for over a decade. With the husband settled in Canada and the wife spending her days in India, there is little chance for their affection overtaking their aversion. It has on the contrary hardened their attitudes and made any reconciliation difficult. All told, the situation in which the parties are placed is unfortunate and the Court's duty to find a solution for them unenviable.
2. The parties were married way back in September 1958 at Karur in Tiruchanapalli District of Tamil Nadu. They were blessed with three sons and a daughter. While two sons and the daughter are since married and settled,, the third son was during the pendency of the proceedings before the Court below studying in Kasturba Medical College at Mangalore. It is obvious that even he must have by now qualified and settled in life. The husband is a Doctor who started his matrimonial life at Rangoon. He lived there till 1971, whereafter the family shifted to Brunei and continued there up to 1984. In November 1985, the wife came to visit her mother in Bangalore. She could not according to her version return to Brunei as the husband did not send her a re-entry pass, which was essential for her return to Brunei. She was thus forced to stay back with her sons and daughter who joined her later. In March 1987, the husband came to India but shortly thereafter went away to Canada where he is now settled. He would visit India once in a while but return soon thereafter to Canada every time leaving her behind. He visited India in April 1990, but this time asked the wife to vacate No. 10, Brunton Manor, where the family was then living. Upon her refusal to leave, she was given a physical beating and threatened with dire consequences if she complained to the police. A complaint in writing was all the same made in May 1990 at Ulsoor Police Station, but the police declined to register the case as Sri K.U. Balakrishna Rao, the husband's younger brother had considerable influence with the authorities being the Director General of Police in Bangalore. Two days after the marriage of their daughter held on 17-6-1990, the wife was assaulted once again and physically thrown out of the house forcing her to take shelter in her sister's house with no money for her sustenance. Not only that, gold ornaments worth nearly four lakhs lying in the locker of Indian Overseas Bank, Indiranagar Branch, Bangalore were removed by the husband in collusion with the bank officials. M.C. No. 312 of 1991 was in the above circumstances filed by the wife before the Family Court at Bangalore seeking a decree for dissolution of the marriage on the grounds of desertion and cruelty.
3. The respondent-husband appeared and filed his objections to the said petition in which he denied the allegation made by the appellant wife that he was an alcoholic or that he had maltreated or deserted the wife as alleged by her. The objections went on to state that the wife had visited her parents in Bangalore to check the possibilities of the children's education in Bangalore. She stayed back in Bangalore as the children had commenced their education. He visited Bangalore every year since 1985 depending on his leave and sent monthly amounts towards maintenance of the family and children's education. He also claimed to have performed the wedding of his three children on which occasions the appellant-wife also was present and participating. After the marriage of their daughter Amba, she suddenly and without any cause left the matrimonial home on 19-6-1990 informing her eldest son Sri Arun Kumar that she was going to her sisters place. When the respondent-husband returned home and found the appellant-wife missing, he started to search for her. which proved abortive. She had in the meantime collected her baggage from Brunton Manor House to which she did not return despite repeated attempts made to bring her back. She did not according to the respondent indicate any reason for her withdrawal till March 1991 and stayed aloof in the marriage ceremony of their son Sri Anil Kumar. She then sent a legal notice to him in which she made false allegations and suggested a divorce by mutual consent. That request was turned down by the respondent. It was further alleged that having retired in 1988 in Brunei, he is residing in Canada as a landed immigrant without acquiring the Canadian citizenship.
4. On the above pleadings, the Family Court framed the following three issues;
"1. Whether the petitioner proves that after the solemnisation of the marriage the respondent has treated her with cruelty?
2. Whether the petitioner further proves that the respondent has deserted her without any reasonable cause for more than 2 years preceding the date of filing this petition?
3. Whether the petitioner is entitled for a decree of divorce?"
5. The parties examined themselves in support of their respective versions and placed reliance on certain documents also. The Family Court has upon consideration of the said material dismissed the petition holding that the parties having cohabited till 19-6-1990, a petition filed on 6-6-1991 could not make out a case for desertion for the statutory period of two years to entitle the appellant-wife to claim dissolution of the marriage. Similarly, the charge of cruelty levelled by the wife was also held not proved. M.F.A. No. 3535 of 1995 filed by the wife assails the correctness of the said judgment.
6. During the pendency of the above proceedings, the husband filed M.C. No. 146 of 1992 under Section 9 of the Hindu Marriage Act, 1955, for a decree for restitution of conjugal rights against the wife. The husband's version as set out in the said petition was that the wife had withdrawn from his company without any reasonable cause entitling the husband to a decree for restitution of conjugal rights. In the objections tiled by the wife to the said petition, it was inter alia alleged that the petition had been filed as a counterblast and was an afterthought meant to harass the wife. It was alleged that the husband had been staying in Canada from the year 1987 and that he had deserted the wife from the year 1985 onwards. The wife further alleged that the husband was ad-dieted to alcohol and prone to becoming violent when drunk and that he used t.o physically assault her whenever he would visit India and had forcibly thrown her out from Brunton Manor House after assaulting her. It was also alleged that in the year 1985, the wife was sent to India but after about six months when she wanted to return to Brunei to join her husband, she could not do so because the husband did not send a re-entry pass to enable her to return. The husband's allegation that he used to visit India every year was denied. It was also alleged that the parties had not cohabited any time after the year 1985. It was on the other hand asserted that immediately after the wedding of their daughter Amba, the wife was assaulted and thrown out of the house forcing her to demand dissolution of marriage in terms of the legal notice referred to earlier.
7. The parties appeared as their witnesses in support of their respective cases in the said petition also. The Family Court has by a separate judgment dated 28-2--1998 dismissed the petition filed by the husband holding that the respondent-wife had a reasonable excuse to stay away from the husband. The Court accepted the wife's version that the husband had maltreated the wife forcing her to leave his company and that the cruel treatment meted to her constituted a reasonable excuse. M.F.A. No. 1779 of 1998 filed by the husband assails the correctness of the said judgment.
8. We have heard learned Counsels for the parties and perused the records.
9. The only question that falls for consideration is whether the respondent-husband in M.F.A. No. 3535 of 1995 has treated the appellant-wife in the said appeal with cruelty or deserted her for a continuous period of not less than two years immediately preceding the presentation of the petition. As noticed above, the Family Court has in M.F.A. No. 3535 of 1995 rejected both these grounds and dismissed the wife's petition for divorce. It has in M.F.A. No. 1779 of 1998 taken a different view while disposing of husband's petition for restitution of conjugal rights, held that the wife had a reasonable excuse to stay away from the husband. The reasonable excuse, the existence whereof has been recognised by the Court below comprises the acts of omission and commission on the part of the husband which tantamount to cruelty against her thereby creating a reasonable apprehension in her mind that it will be injurious for her to stay with the husband having regard to his conduct and her failing health.
10. There is a cleavage in judicial opinion as to whether or not the conduct of the spouse seeking restitution of conjugal rights should amount to cruelty or any other matrimonial offence in order to provide a reasonable excuse to the other spouse to withdraw from his/her society. While some Courts have taken the view that even when the conduct of the spouse seeking restitution falls short of cruelty or any other matrimonial offence, it would afford a reasonable excuse to the other spouse to withdraw from his/her society, the contrary view is that a reasonable excuse contemplated by the provisions of Section 9 of the Hindu Marriage Act. 1955, must be one which would afford a ground to the other spouse opposing a decree for restitution of conjugal rights, judicial separation or a decree declaring the marriage a nullity or a decree for divorce,
11. The position in the instant case is that the wife has in defense to the husband's petition for restitution urged the very same grounds for withdrawal from his company as have been set up by her for the grant of divorce in the petition filed by her under Section 13(l)(ia) and (ib) of the Hindu Marriage Act, 1955. The claim for divorce is based on mental cruelty and desertion within the meaning of the provisions mentioned above.
12. 'Cruelty' as referred to in Section 13(1)(ia) of the Hindu Marriage Act, 1955, has not been defined in the Statute. There is no gainsaid that cruelty can be both physical as well as mental. The decisions of the Supreme Court in the cases of Dr. N.G. Dastane v. Mrs. S. Dastane, and Shobha Rani v. Madhukar Reddi, have examined the true scope of the term 'cruelty' as a matrimonial ground for dissolution of a Hindu marriage. The true meaning to be assigned to that expression was examined once again in the case of V. Bhagat v. Mrs. D. Bhagat, where the Court observed thus:
"Mental cruelty in Section 13(1)(ia) 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 of 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 the context in which they were made".
13. The other ground urged by the wife, namely desertion by the husband is in the context of matrimonial law understood to represent a legal concept which defies a precise definition. The most accepted de-scription of what would constitute desertion is that desertion is a withdrawal not from a place but from a state of things in order that it may furnish a ground for relief to the spouse seeking a remedy. To establish desertion, the party alleging the same must establish the factum of separation and 'animus deserendi" i.e., the intention to bring cohabitation permanently to an end. While discouraging attempts to define desertion, the Courts have accepted that there should be a repudiation of the obligations of marriage and an intentional and permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause.
14. In Bipinchandra Jaisinghbai Shah v. Prabhavati, MR 1957 SC 176, 1956 SCR 838 the Apex Court summed up some of the important principles that will afford guidance in cases arising under the Hindu Marriage Act, 1955. Their Lordships held that desertion is a matter of inference to be drawn from the facts and circumstance of each case. Inferences drawn from certain facts may not in another case be capable of leading to the same inference. Tf there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. Desertion therefore commences not just by mere separation of the spouses, but when it is coupled with animus deserendi, although it is unnecessary that the two commence at the same time. Decisions of the Supreme Court in Lachman Utamchand Kirpalani v. Meena alias Mota, and Smt. Rohini Kumari v. Narendra Singh, have reiterated what was stated by that Court in Prabhavati's case, supra.
15. There is one other aspect that needs to be noticed at this stage viz., whether desertion by itself can constitute cruelty. In Cade v. Cade, 1947(1) All ER 609 it was held that in England the same conduct could constitute expulsive conduct founding a charge of constructive desertion and could also be an element of conduct founding a charge of cruelty. It may at times be impossible to draw a line between the two because very often the facts are mixed so that it is impossible to extricate one from the other. The Court held that constructive desertion and cruelty can often in substance be the same thing and be proved by the same evidence. All that is necessary is that an issue must arise and be considered by the Court before granting relief.
16. In the above background, let us now examine the factual matrix by reference to which the charges of desertion and cruelty have to be answered in these appeals. There are in this case certain striking features which stand out from the maze of the allegations that are common place in such matrimonial disputes. The first and the foremost is that the couple had started their marital life away from India in Rangoon. They shifted later to Brunei from where the wife came home to meet her parents in 1985. Her visit was not however intended to put an end to their matrimonial life as it is admitted on both the sides that the visit was nnly meant to be a family re-union for the wife in Bangalore where her parents stayed. She was supposed to go back to the husband in Brunei, as indeed she had an entry permit for that purpose valid for a certain period. The wife could not for whatever reason avail of the said entry permit before its expiry. What was then required was another permit to be issued by the Competent Authorities in Brunei to enable the wife to re-enter that country. It is not disputed that the wife could not re-enter without such a permit nor is it disputed that the wife could not have secured on her own such a permit unless the husband applied for and obtained the same. It is also not disputed that the husband did not at any stage during his stay in Brunei secure or even apply for a permit for the wife's return to Brunei. The result was that the wife was forced to stay back in India with her children whom she had got admitted in educational institutions in Bangalore. It was only in March 1987 that the husband left Brunei, visited India for a short while and then proceeded to Canada. If one were to believe the version of the husband, he had retired from active professional work as a Doctor in Brunei itself and is now leading a retired life in Canada. He has denied having taken the Canadian citizenship. It is also not seriously disputed that the husband has made no real effort to take the appellant-wife with him to Canada ever since March 1987 when he migrated to that country. There is in any case no material on record to substantiate that the husband had at any stage during his stay in Brunei or in Canada made any effort to take the appellant-wife with him. All that is evident from the records is that the husband was sending to the wife certain amounts towards the maintenance of the family and education of the children. It is also admitted that the husband came to India in April 1990, but only to ask the wife to vacate the house in which she was residing with her children. She was according to her version given a physical beating and threatened with dire consequences if she complained to the police. A complaint made by her in any case made no effect. The result was that the wife had to remove her belongings and take shelter with her sister where she has been living ever since without any independent source of income to support her and afflicted by diseases like high blood pressure and diabetes. The Family Court has notwithstanding the above turned down the prayer of the wife for divorce on the ground that the couple had cohabited till as late as June 1990, with the result that the statutory period of two years of desertion had not been established. The case of the wife that she had been treated cruelly, both in terms of physical violence and mental torture failed to persuade the Family Court to either grant her a decree for divorce or any other lesser relief. We find it difficult to subscribe to the view taken by the Family Court. Apart from the fact that the husband's conduct in leaving the wife behind in India even when she wished to join him in Brunei and later in Canada was itself a conduct which would tantamount to cruelty and desertion both the fact that the husband had thrown her out of the only shelter that the family had in Bangalore in our view constitutes a sufficient ground to hold that the wife had been treated with cruelty by the husband. Just because the husband was sending money for maintenance of the family while the wife and children were residing in India could not in itself show that there was no desertion or that the cruelty stood condoned by the wife. The couple had ever since November 1985 lived separately with the wife in India and the husband living in Brunei and later in Canada. Animus deserendi too existed for the husband had fay his inaction and deliberate omission prevented the wife from joining him in Brunei and later in Canada. Desertion of the wife thus started in November 1985 when after the expiry of her re-entry permit, the husband did not secure another permit for the wife to re-enter that country to resume cohabitation with him. The position did not change even after the husband had left Brunei and shifted to Canada. In the absence of any material to show that the husband was keen to take family with him to Canada, it is difficult how the charge of desertion could be repudiated by him. Superadded to all these facts in the husband's plea that he has retired from professional work and is now leading a retired life as a landed immigrant in Canada. If that were so, there was hardly any reason for the husband to stay away from his wife and the children who were growing up and who required his affection at every stage. If the husband did not cars for his obligations towards his wife and children, it would simply mean that he had deserted the family and escaped from the obligations that he owed towards them. The view taken by the Family Court that the couple had cohabited till May 1990 is in our view unsupported by record. Just because the husband had been once in a year visiting India to stay with the family for a few days cannot possibly tantamount to cohabitation of a kind that could put an end to his act of desertion. The wife has in any case denied the allegation of the husband that they had cohabited till June 1990. Her version on the contrary is that the husband had on every visit mentally harassed and physically tortured her and that her health condition was such as would not allow her to cohabit with the husband. The harassment had eventually culminated in her being thrown out of the house. In the above background, therefore, it Is difficult to see how the charge of desertion could be rejected.
17. Even on the question of cruelty, the Family Court was not justified in holding that the husband had not treated the wife with cruelty. It is difficult to see how the husband's conduct could in the facts of this case be anything but cruel against the wife. Just because the husband provided for the bare subsistence to the wife did discharge ail his marital obligations. Marriage is not just material comforts for the couple. More important than the economic aspect, is the sense of commitment of the spouses towards each other and the time that the couple share through the vicissitudes of life. It is only the sum total of all such aspects that give a meaning to matrimony. The husband had regretfully failed to realise this and continues to believe that providing financial assistance for survival of the family was all that the family could demand from him.
18. The next question then is whether this Court ought to pass a decree for divorce as prayed for by the wife or resort to Section 13A of the Hindu Marriage Act, 1955, to pass a decree for judicial separation instead. Section 13A of the Hindu Marriage Act, 1955, reads thus:
"In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except insofar as the petition is founded on the grounds mentioned in Clauses (ii), (vi) and (vii) of Sub-section (1) of Section 13, the Court may, if it considers it just so to Ho having regard to the circumstances of the case, pass instead a decree for judicial separation".
19. It is evident from the above that the Court may if it considers it just so to do instead of passing a decree for divorce pass a decree for judicial separation. The present is in our view an appropriate case in which we ought to invoke Section 13A of the Hindu Marriage Act, 1955, and instead of granting a decree for divorce, grant a decree for judicial separation. We say so because the parties have already entered the evenings of their lives. In terms of finding another life partner for themselves, there does not appear to be any chance for either party. They have been living separately for the past fifteen years or so. In the circumstances, their continued separation if sanctioned by a decree from this Court, ought to meet the ends of justice. We feel that since the children born out of the wedlock are settled in their lives, a decree for judicial separation may with their help keep the hope of the couple coming together for the reminder of their lives alive. This may sound wishful having regard to what has happened in the past but the finality with which the wedlock would come to an end in the case of a decree for divorce may not so much help the couple as a decree for judicial separation which would leave the options open to them. We cannot however neglect the question of alimony to the wife who is admittedly unable to maintain herself. That she has serious health problems for which the husband has extended financial help is also not denied. We therefore feel that we need to award a suitable amount towards alimony to the wife. Having regard to all the circumstances, we consider it just and proper to award a sum of Rs. 7,500/- per month towards alimony in favour of the wife during the period of their judicial separation.
20. In the result, we allow M.F.A. No. 3535 of 1995 and in exercise of powers under Section 13A of the Hindu Marriage Act, 1955, pass a decree for judicial separation in favour of the appellant-wife instead of a decree for divorce as prayed for by her. M.F.A. No. 1779 of 1998 is consequently dismissed.
21. We further direct that during the period of their judicial separation, the respondent-husband shall pay to the appellant-wife a sum of Rs. 7,500/- per month towards maintenance. We leave the parties to bear their own costs.