Madras High Court
K.Kuppuraj vs M.Rajasulochana on 3 April, 2014
Author: S.Vaidyanathan
Bench: S.Rajeswaran, S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 03-04-2014 CORAM: THE HON'BLE MR.JUSTICE S.RAJESWARAN AND THE HON'BLE MR.JUSTICE S.VAIDYANATHAN C.M.A.NO.604 OF 2007 K.Kuppuraj .. Appellant Versus M.Rajasulochana .. Respondent Prayer: This Appeal has been filed against the judgment and decree in H.M.O.P.No.382 of 1999, dated 24.6.2005 passed by the Family Court, Coimbatore. For Appellant : Mr.Rajnish Pathiyil For Respondent : No appearance JUDGMENT
(Judgment of the Court was delivered by S.VAIDYANATHAN, J.) This Civil Miscellaneous Appeal arises out of the judgment and decree, in H.M.O.P.No.382 of 1999, dated 24.6.2005 passed by the Family Court, Coimbatore, whereby the petition filed by the appellant, for grant of divorce, under Section 13(i-a)(i-b) of the Hindu Marriage Act, i.e. on the ground of 'cruelty' and 'desertion'.
2. The facts, in brief, giving rise to this appeal are as follows:
The marriage between the appellant/husband and respondent/wife took place on 5.4.1993 at Sri Ethirajulu Janakiammal Thirumana Mandapam, Vysial Street, Coimbatore as per hindu rites and customs. After marriage, both of them were living in appellant's residence at Palladam. In the petition filed by the appellant/husband for divorce, it was alleged that soon after the marriage, the respondent was behaving in a cruel manner, subjecting the appellant to the torture and tension and she is mentally imbalanced and suppressing this fact, the parents performed the marriage and it was not consummated and there were no conjugal relationship between him and the respondent and she did not show any interest in matrimonial life. Once, while the appellant and the respondent were travelling to Kumbakonam, the respondent created a scene as if she is stranger. On 15.5.1993, the respondent also threatened the appellant that she would commit suicide by setting herself ablaze, if the appellant does not come away from his family and thereafter, the respondent took all her belongings and left the matrimonial home without informing the appellant and she never came back. All the steps to bring down normalcy in the matrimonial life by the appellant have become futile. The relationship between the appellant and the respondent has irretrievably broken down and there would no chance for reunion. Hence, the appellant has filed a petition for grant of divorce.
3. This petition has been resisted by the respondent/wife, by way of counter affidavit, wherein, while denying the averments made by the appellant, it is stated that the respondent is a balanced and mentally sound woman and she never behaved with the respondent in a cruel manner. After marriage, both of them were living together happily and marriage was consummated on the date of marriage itself. The respondent had participated in training on entrepreneurship conducted by Sri Avinashlingam Shranik Vidyapeeth, Coimbatore. The appellant has been running a xerox shop in Coimbatore for the past several years and he employed a girl, namely Subha and he developed illicit intimacy with her even prior to his marriage, which he continued even after marriage with the respondent/wife. While staying at Palladam, all the members of the appellant's family used to ill treat her. The appellant very often used to beat and abused her. The appellant and his family members demanded more dowry, jewels from her parents and since the same was not fulfilled, she was forcibly sent out of her matrimonial home. After a panchayat, the appellant took her back to his house. Though the appellant is still living in adultery, the respondent is willing to live with the appellant and she never deserted him. With these averments, the respondent sought for dismissal of the petition.
4. The trial Court, on consideration of the above pleadings, framed the issue as to whether the appellant is entitled to get a decree for divorce as alleged by him?
5. In order to prove their case before the trial Court, the appellant got himself examined as PW.1 apart from examining one Parthasarathy and Govindaraj as Pws.2 and 3 and marked two documents, viz., Marriage Invitation as Ex.P1 and Photo as Ex.P2; while the respondent herself was examined as RW.1 apart from examined one Sankar as RW.2 and marked three documents, viz., Participation certificate issued by Avinashlingam Shranik Vidyapeeth as Ex.R1, Course completion certificate issued by the Principal Govt.Ploytechnic for Women, Coimbatore as Ex.R2 and Participation certificate issued by the course Director, Professor and Hand Training Division, Tamil Nadu Agricultural University, Coimbatore.
6. The trial Court, after analyzing the entire pleadings and evidence on record, has categorically held that the appellant/husband has not proved the case for grant of divorce either on the ground of cruelty or desertion or irretrievable breakdown of marriage and consequently dismissed the petition. Aggrieved by the same, the appellant has come forward with the present appeal.
7. Despite notice having been served on the respondent/wife, there was no representation on her behalf either in person or through a counsel and hence, the matter was adjourned under the caption 'for orders' and even then, as there was no representation on behalf of the respondent, we heard the learned counsel for the appellant and disposed of this appeal on merits.
8. The learned counsel appearing for the appellant/husband would contend that the trial Court has not appreciated the evidence as well as case law in a proper perspective to come to the conclusion that the respondent/wife treated the appellant in a cruel manner and deserted him. It is also contended that though the appellant has proved the fact that the respondent/wife has not been living with the appellant/husband for the past seven years, however, the trial Court has erroneously held that it was not ground for grant of divorce on desertion. Therefore, the learned counsel sought for setting aside the judgment and decree passed by the trial Court.
9. The issue for consideration is whether the trial Court was right in rejecting the relief sought for by the appellant for grant of divorce against the respondent/wife on the ground of 'cruelty' and 'desertion'?
10. The appellant/husband has moved the petition before the Family Court, for grant of divorce under Section 13(i-a)(i-b) of the Hindu Marriage Act, i.e. on the ground of 'cruelty' and 'desertion'. According to the appellant, he was subjected to cruelty by his wife since she is a imbalanced woman and used to threat him that she would commit suicide if the appellant does not come separate by leaving his family members and that marriage itself was not consummated.
11. It is not in dispute that the marriage took place on 5.3.1993 and the respondent/wife left the matrimonial home on 15.5.1993 and thereafter, she never came back. The case of the respondent/wife is that her husband was running a xerox shop and was having an illegal affair with another girl and this illicit relationship was there even prior to her marriage and after the marriage, the said illicit relationship continued. She stated that her husband demanded more dowry and she was driven out from the matrimonial home. According to her, even on the date of counter before the trial Court, he was living in adultery with one Subha and even then, she is willing to live with her husband and she never deserted her husband. The firm case of the respondent/wife is that her husband is bound to take her back.
12. After analyzing the evidence on record, the trial Court rendered a finding that the case of the "cruelty" and "desertion" has not been made out by the appellant/husband. It is true that to establish cruelty, there should be a concrete evidence and one or two stray instances and quarrels between the spouses cannot be considered as a ground for cruelty and further the word cruelty itself has not been defined under the Act. Therefore, on going through the entire evidence on record, we find that the appellant has not proved that the acts of the respondent/wife would amount to cruelty and there is a reasonable apprehension in his mind that it would be harmful and injurious for him to live with his wife/respondent and thereby, the appellant has failed to establish the case of cruelty and the trial Court was right in rejecting the relief on the ground of cruelty.
13. As regards the ground of desertion, under Section 13(1)(i-b) of Hindu Marriage Act, the appellant/husband has to prove (i) that there was desertion for a continuous period of two years immediately preceding the presentation of the petition, ii) the desertion was without reasonable cause and without the consent or against the wish of the appellant herein. The desertion requires four important elements, viz., (i) factum of separation (ii) necessary intention to put an end to matrimonial consortium and cohabitation permanently, (iii) want of reasonable cause and (iv) want of consent or against the wish of the other spouse.
14. The trial Court rendered a finding that the husband/appellant was having illicit relationship with one Subha and in view of the same, the respondent/wife was justified in living separately. The respondent/wife was examined as RW.1 and she deposed that she is aware of the relationship of her husband with one Subha and knowing this fact, she is ready and willing to live with her husband. It is to be noted that when she had no objection to live with her husband though he was having illicit relationship with another lady, the reason given by the Tribunal for separate living by the wife due to her husband's illicit intimacy with another lady, cannot be accepted. It is not in dispute that the respondent/wife had left matrimonial home and living separately for more than seven years.
15. This Court, in a decision reported in "Ms.P.Manimekalaik versus R.Kothandaraman (2010) 7 MLJ 417", has considered the issue of 'desertion' in para 31 which is extracted hereunder:
"31. "Desertion" for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things,. Desertion, therefore, means withdrawing from the matrimonial obligations i.e., not permitting or allowing and facilitating cohabitation between the parties. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. The party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong. (vide SAVITRI PANDEY VS. PREM CHANDRA PANDEY ((2002) 2 SCC 73)."
16. This Court has also relied upon the decisions of the Hon'ble Supreme Court, wherein, it has been specifically observed that the wife was forced to live because of ill-treatment, it cannot amount to desertion. In this case, the respondent/wife had been living separately for more than seven years. So, the factum of separation is proved. Necessary intention to put an end to matrimonial relationship was that there should be no cohabitation and there is no direct evidence on this aspect. But the wife has stated that she is willing to live with the appellant/husband though she is knowing that her husband was having illicit relationship with one Subha. However, it is to be noted that she has not attempted or taken any steps to join her husband. Admittedly, she has not filed any petition before the Family Court for restitution of conjugal rights even after lapse of years while she was in separation. There is a reasonable cause for the wife and it may be justified in living separately since her husband was alleged to have illicit relationship with another woman. But that cannot be quoted as a reasonable cause inasmuch as the respondent/wife was very much ready and willing to live with her husband knowing the fact that her husband was having illicit relationship with another woman.
17. In cross-examination, the respondent wife has admitted that there was a meeting to mediate and resolve the dispute between the wife and husband, namely, the appellant and respondent herein. She has stated that she had not disrespected her husband in the presence of his friends and that she did not refuse to participate in the panchayath meeting held for the settlement of differences between the wife and husband. Hence from the evidence, it is clear that there was a mediation, but it failed. The appellant has denied that he was having illicit relationship and he is not aware of one Subha.
18. From the aforesaid discussion, it is clear that the wife had not attempted or taken any steps to join her husband by filing a petition before the family Court for restitution of conjugal rights. If at all she is interested to live with her husband, she could have filed a petition for conjugal rights to establish her stand. Even assuming that her husband was having illicit relationship with one Subha, it is not a hurdle for her to live with her husband as she clearly deposed that she is willing to live with her husband despite knowing that he had illicit relationship with another woman. In cross-examination, the wife has stated that her husband character is good except the fact that he was living with one Subha. She has specifically stated that her husband was having very good character. Since the case squarely falls within the four corners mentioned supra (in para 13), we are of the view that it is a fit case for granting divorce on the ground of "desertion".
19. Irretrievable breakdown of marriage has not been incorporated as a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted on the ground of irretrievable breakdown of marriage. In fact, on this issue, i.e. granting divorce on the ground of "irretrievable breakdown of marriage", there are conflict views of the two learned Judges and three learned Judges of the Hon'ble Supreme Court. We do not want to decide the same in this matter. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and it is mandatory that everyone should act in terms of the orders of the Hon'ble Apex Court. As regards the issue "irretrievable breakdown of marriage", in "Vishnu Dutt Sharma versus Manju Sharma (2010) 6 SCC 379", two learned Judge Bench of the Hon'ble Supreme Court have held that unless and otherwise the word "orretrievable breakdown of marriage" is incorporated as a provision for divorce in the statute and the decision rendered contrary to the statutory provision cannot be taken as a precedent and that the Court cannot function as Legislature. The Hon'ble Supreme Court in its decision reported in "Central Board of Dawoodi Bohra Community versus State of Maharashtra (2005) 2 SCC 673" has held that the law declared by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or equal strength and in case a Bench of lesser quorum disagrees or dissents from the view of the law taken by a Bench of larger quorum, it has to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter would be placed before the larger Bench. The Hon'ble Supreme Court in its decision reported in "Pradip Chandra Parija versus Pramod Chandra Patnaik (2002) 1 SCC 1", has held that the judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges.
20. Even though there is no provision incorporated in the Hindu Marriage Act, 1955 for granting divorce on the ground of "irretrievable breakdown of marriage" and that the Courts cannot function as a Legislature and grant the relief of divorce by adding the said ground "irretrievable ground" as rightly held by the Bench of two Judges of Apex Court, in "Vishnu Dutt Sharma versus Manju Sharma (2010) 6 SCC 379" as the law declared by the Supreme Court in terms of Article 32 read with 142 will have the effect of law by virtue of Article 141, till such time, the decision being taken by the Legislature, the decisions rendered by the Bench of three Judges in "A.Jayachandra versus Aneel Kaur reported in (2005) 2 SCC 22" and in "Samar Ghosh versus Jaya Ghosh reported in (2007) 4 SCC 511" will prevail unless and otherwise, they are modified or changed by a larger Bench. When the Hon'ble Supreme Court has categorically held in "Pradeep Chandra Parija case" (cited supra) that the judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges, this Court cannot take a different view and it is bound to follow the decision of the three learned Judges in "A.Jayachandra versus Aneel Kaur reported in (2005) 2 SCC 22" and in "Samar Ghosh versus Jaya Ghosh reported in (2007) 4 SCC 511". However, since it is a question to be decided by a Bench consisting of four Judges or by the Constitution Bench of the Honble Apex Court, there is no need to go into the question of "irretrievable breakdown of marriage" and we are not expressing (we cannot express) anything on this issue of "irretrievable breakdown of marriage".
21. In view of the above discussion, as the appellant/husband has proved the ground of desertion, we are of the view that the appellant/husband is entitled for the relief of divorce on the ground of desertion and there is no need to harp upon the issue of "irretrievable breakdown of marriage" any further.
22. In the result, the Civil Miscellaneous Appeal is allowed in part, granting decree of divorce under Section 13 (1)(i-b) of the Hindu Marriage Act, i.e. on the ground of 'desertion' and the judgment and decree of the Court below is set aside to that extent. No costs.
Suk (S.R.,J.) (S.V.N.,J) 03-04-2014 Index: Yes Internet: Yes S.RAJESWARAN, J. AND S.VAIDYANATHAN, J. C.M.A.NO.604 OF 2007 03.04.2014