Madras High Court
Saroja vs Arumugham on 16 December, 1988
Equivalent citations: (1989)1MLJ21
JUDGMENT K.M. Natarajan, J.
1. These two appeals were filed by the unsuccessful wife before the lower appellate court.
2. The facts which are necessary for the disposal of these two appeals are briefly as follows: The appellant herein (wife) filed O.P. No. 144 of 1978 before the Principal Sub Judge, Cuddalore, under Section 9(1) of the Hindu Marriage Act for restitution of conjugal rights, and after summons were received in the above proceedings, the husband, who is the respondent in these appeals, filed O.P. No. 158 of 1978 for dissolution of Marriage under Section 13(1) of the Hindu Marriage Act on the ground of desertion. The case of the appellant is that she married the respondent on 16-9-1967 according to Hindu sastras in her husband's house in Melkangay-ankuppam. Thereafter they lived together at Melkangayankuppam for some time and later at Thiruvannamalai where the respondent was working as Assistant Professor in Government College. In September, 1968, she gave birth to a female child by name Meenakshi and in April, 1972, she gave birth to another female child by name Dhanalakshmi. After the birth of the second child, she returned to her husband's house and lived with him for about a year and more. During that period, the respondent began to ill-treat her and beat her often. His mother Chinnammal and sister Kullayee also ill-treated her at the instigation of the respondent. She was bearing all the ill-treatments as a dutiful wife for the interest of her two children and with the intention of living with her husband. She was unable to bear the sufferings meted out to her at the hands of her husband, his mother and sister. She was finally driven out of the house in 1973. She was staying in her parent's house at Puliyur since that date. Her husband refused to take her back as he intended to marry Rose, who is the daughter of his sister Kullayee as his second wife. Kullayee and her daughter were also staying with respondent. The appellant refused to give her consent for such second marriage and that was also one of the reasons for the ill-treatment meted out to her and driving her away out of the house. She approached the respondent on two occasions along with one Pachai Ammal and requested him to take her back, but in vain. The respondent began to make unreasonable demands in the shape of money, lands and houses from her parents. All attempts made by her father along with panchayatdars to persuade the respondent to take her back proved to be of no avail since the respondent insisted to marry his niece Rose as his second wife. Having failed in all her attempts to join with the respondent in a peaceful way, after exchange of notices she has filed the petition for restitution of conjugal rights. She emphatically denied the allegations in the petition filed by her husband for divorce (consequent to her petition for conjugal rights) as untrue and stated that she never deserted her husband: but, on the other hand, her husband drove her away with mala fide intention.
3. The case of the respondent is that though he married the appellant and got two children through her (Meenakshi and Dhanalakshmi), he never had a happy life with his wife on account of insult and misbehaviour of his wife. He is a lecturer in Thiruvannamalai Arts College. His wife returned to his village Melkangayankuppam after the birth of the second child, in May, 1972. Thereafter she left the house in June, 1972 to her parents' house without any reasonable or probable cause, abandoning her two children. Since she deserted him for six months without any justification, he is entitled to a decree for divorce. He denied that he and his mother and sister ill-treated the appellant and also his demand for marriage of his sister's daughter as his second wife. He would contend that since his wife (appellant) made his life miserable, he is not bound to take her back. Hence he prayed for dissolution of marriage and also the dismissal of the petition of the appellant for restitution of conjugal rights.
4. On the side of the appellant, she examined herself as P.W.1 and three other witnesses were examined. On the side of the respondent, he examined himself as P.W.1; the notice issued by the appellant to him was marked as ExA.1 dated 14.8.1974 and his reply dated 19.8.1974 as ExA.2. The Subordinate Judge on a consideration of the evidence on record placed before him came to the conclusion that the wife had not deserted her husband; but, on the other hand, the husband abandoned his wife and deprived the conjugal society to his wife without just and reasonable cause, and consequently allowed O.P. No. 144 of 1978 filed by the wife and dismissed O.P. No. 158 of 1978 filed by the husband, with costs. Aggrieved by the same, the respondent husband filed C.M A. Nos.30 and 31 of 1981 before the District Judge, South Arcot, Cuddalore. Both the appeals were allowed by the District Judge on the ground that he was satisfied that the appellant-wife herein appears to have deserted her husband after the birth of the second child, that she has no valid excuse for deserting her husband and that the mere refusal of the husband to take back his wife at the time of trial does not warrant rejection of his case. It is only against the above two judgments, these two appeals were filed by the unsuccessful wife. They were admitted on the following substantial question of law:
1. Whether the pending O.P. No. 144 of 1978 filed by the appellant within the statutory period for the restitution of conjugal rights is a clear bar for the maintainability of the petition in O.P. No. 158 of 1978 for divorce on the ground of desertion?
2. Whether the court below erred in reversing the inferences drawn by the trial court on the demeanour of the witnesses and drawing its own adverse inference against the appellant?
3. Whether the court below erred in finding that non-mention of the subsequent events in the earlier notice in ExA-1 is fatal to the case of the appellant?
5. Learned Counsel for the appellant, Dr. T. Thirumaran, submitted that the lower appellate Court failed to note the essential ingredients of the offence of desertion in order to furnish a ground for relief. According to the learned Counsel, the three ingredients, namely (1) factum of separation; (2) animus deserandi, that is determination to put an end to marital relation and cohabitation; and (3) the element of separation permanently which is a prime condition, were not made out. Further, in view of the fact that the wife has filed O.P No. 144 of 1978 for restitution of conjugal rights and the same was pending, the subsequent application O.P. No. 158 of 1978 for divorce on the ground of desertion is not maintainable on the ground of desertion. According to the learned Counsel, the trial court has found that the respondent-husband was never ready to take back his wife and resume' a married life, that the trial court had the opportunity to note the demeanour of the witnesses and the parties and that lower appellate Court erred in reversing the well-reasoned judgment of the trial court on some fanciful grounds. It is also submitted by the learned Counsel for the appellant that the lower appellate court has not given any finding regarding desertion. Even in the very petition filed for divorce, the respondent-husband has not given any particulars of the alleged desertion. The learned Counsel for the appellant drew the attention of this Court to various decisions on this aspect and also the relevant provision of Section 13(1)(i-b) of the Hindu Marriage Act, 1955. Before going into the facts of the case, it is worthwhile to consider the decisions with regard to the ingredients which are necessary for establishing 'desertion' for granting a relief of dissolution of marriage under Section 13(1)(i-b). Section 13(1)(i-b) reads as follows:
Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
...
(i-B) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;
...
In the Explanation, the expression 'desertion' means as follows:
In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
In Bipinchandra Shah v. Prabhavati it was held:
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. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of seperation. If, in fact, there has been a seperation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of seperation and the animus deserandi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the seperation and the animus deserandi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of locus-penitential thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence, it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Courts.
Where the wife is forcibly turned out of her marital home by the husband, the husband is guilty of "constructive desertion," because the test is not who left the matrimonial home first. If one spouse by his words and conduct compel the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home.
But the fact that the defendant has failed to substantiate by reliable evidence her case of constructive desertion by the husband does not necessarily lead to the conclusion that the plaintiff has succeeded in proving his case. The plaintiff must satisfy the court that the defendant had been in desertion for the continuous period of four years as required by the Act.
In Rohini Kumari v. Narendra Singh it has been held as follows:
Desertion within the meaning of Section 10(1)(a) of the Act read with the Explanation does not imply only a separate residence and separate living. It is also necessary that there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion within the meaning of Section 10(1)(a). The consideration that in case the husband remarries, the wife is entitled to separate residence and maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 or any other enactment could not be utilised as a reason for coming to the conclusion that the fact of the remarriage of the husband must necessarily afford a reasonable cause for desertion.
In Asha v. Baldev Raj A.I.R. 1985 Delhi 76 it has been held as follows:
The first ground for divorce is persistent cruelty on the part of the respondent. I have briefly adverted to the allegation made by the appellant in this behalf. Significantly, the respondent in his written statement did not make specific denial of each and every averment of fact contained in the petition. For instance, the appellant had specifically contended that she was forced by the respondent to hand over her entire salary to him and only a small amount out of the same was given to her for her day to day expenses but I have looked in vain for specific denial of this allegation in the corresponding para of the written statement. He has simply dubbed this allegation as wrong and baseless. Order VIII, Rule 4, Civil P.C. lays down that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. The principle underlying this rule is that pleadings should be specific. Rule 5 of the same order further lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of defendant, shall be deemed to be admitted. In such an event the admission itself being approved, no other proof is necessary. See Badat and Co. v. East India Trading Co. in which it was held that:
If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proved, no other proof is necessary. But under the proviso to Rule 5 the Court may in its discretion, require any fact so admitted to be proved otherwise than by such admission.
In Kamal Kumar v. Kalyani A.I.R. 1988 Calcutta III it has been held as follows:
In order to constitute desertion within the meaning of the Explanation to Section 13(1) while there must be two elements present on the side of the deserting spouse, namely, the factum of his or her withdrawal and the accompanying animus deserendi, i.e., the intention to bring co-habitation permanently to an end, there must also be two elements present on the side of the spouse claiming to be deserted, namely absence of his or her consent and the absence of conduct on his or her part giving the deserting spouse reasonable cause to form the animus deserendi.
In Sakuntala v. Om Prakash A.I.R. 1981 Del. 53 it has been held (Head note B). as follows:
Hindu Marriage Act (25 of 1955), Section 13(1)(ib), Explanation-Desertion-What is not-Wife leaving matrimonial house without husband's consent-Husband filing petition for annulment before expiry of two years after separation of wife-Offence of desertion is not established as husband denied opportunity to wife to return home before deadline and terminated desertion.
It is clear from the above decisions that to establish 'desertion' there must not only be the factum of separation but there must also be an intention to separate permanently and put an end to the matrimonial relationship and cohabitation. Without animus deserendi, there cannot be any desertion. Further, if the husband is responsible for the wife living away from the house, it cannot be contended that she has deserted the husband so as to attract the said provision. Further, if the wife has not sufficient reason to live away from the husband, even then it cannot be said that she is guilty of desertion so as to entitle her husband to get a decree for divorce. It is clear from Section 23(1) of the Hindu Marriage Act that in the petition for divorce or other reliefs under the Hindu Marriage Act, whether defended or not, the grounds must be established and the petitioner cannot take advantage of his or her own wrong. Applying the ratio to the facts of this case, let us analyse the facts of this case in the light of the decisions quoted above to find out whether the respondent-husband has made out any case of desertion so as to enable to get a decree for divorce and non-suit the wife for the relief of restitution of conjugal rights.
6. It is the admitted case of both the parties that the marriage between the appellant and the respondent took place on 16.9.1967 and thereafter the appellant gave birth to a female child in September, 1968, and another female child in April, 1972 and that after the birth of the second child, she returned to her husband's house with the two children and lived with him. According to the appellant, she lived with him for about a year and more and only in June, 1973 she was driven out of the house. According to the respondent-husband, she left the house in June, 1972. It is the admitted case of both the parties that the appellant-wife sent the notice ExA.1 dated 14.8.1974, through her counsel, alleging ill-treatment by her husband, his mother and sister with a view to compel her to leave the house and that at the instance of his sister Kullayee, the respondent developed illicit intimacy with kullayee's daughter by name Rose, aged about 17, who is also living in the same house of the respondent along with her mother. She expressed her readiness to join with the respondent as a dutiful wife, provided her husband is willing to send away his niece and sister from his household once for all. Hence, she called upon her husband to comply with the same and take her back and allow her to come and join him with her children. The respondent in his reply notice Ex.A.2 expressed that due to the bad behaviour of the appellant, he is not prepared to live with her and that her offer to live with him is false. It is only thereafter, according to the appellant, R.W.2 (her father) and R.W.4 approached the respondent to take her back and to lead a happy matrimonial life and that he was not amenable for the same. R.W.2 is the father of the appellant; R.Ws. 3 and 4 are the residents of the same village and neighbours. The trial court had occasion to note the demeanour of the witnesses and the parties and accepted the evidence adduced on the side of the appellant and came to the conclusion that the wife has not deserted her husband, but, on the other hand, the husband abandoned his wife and deprived the conjugal society to her without just and reasonable cause. The trial Court also found that the respondent not only refused to take back the appellant, but also insisted on her for the fulfilment of the alleged marriage promise of presenting a car and a house at Cuddalore. The trial Subordinate Judge was also impressed with the evidence of R.Ws. 2 to 4 and came to the conclusion that when they approached P.W.1, he beat not only the appellant but also her father. As rightly contended by the learned Counsel for the appellant, the lower appellate court overlooked the said material evidence and brushed aside the same on the ground that the trial court has not made any observation regarding the demeanour of the wife and her witnesses and the trial court has not made any record of observation about the demeanour of the husband P.W.1 and also other witnesses. The same Subordinate Judge who heard the evidence had delivered the judgment and the mere fact that he was not made a note of the demeanour of the witnesses in writing would not affect his statement in the judgment about the demeanour of the witnesses. The Trial Court has also rightly observed that even during the trial when an offer was made to the husband to take back the wife, he refused. Certainly that is also an important factor in matrimonial cases as the court is bound to make an attempt to reconcile between the parties. That is also a circumstance to find out the bona fides on the part of the husband. The mere fact of non-mention of the demand of seer or dowry or panchayat in the notice, which was sent as early as 1974, while the petition was filed in 1978 would not in any way falsify the case of the appellant. Even otherwise, the lower appellate Judge, failed to see that it is the wife who filed the petition for restitution of conjugal rights expressing her willingness to join with the respondent-husband. She filed the petition O.P. No. 144 of 1978 on 14.9.1978 and hearing of the petition was fixed on 16-10-1978. The husband, who is the respondent herein, after receiving notice of hearing filed the petition "in O.P. No. 158 of 1978 as a counter-blast on the date of hearing on 16-10-1978 for the relief of dissolution of marriage on the ground of desertion. The learned Counsel for the appellant rightly pointed out that in the circumstances of the case it cannot be said that there was animus deserendi on the part of the wife to put an end to the marital relationship and to separate permanently which is one of the essential ingredients of desertion for the relief of dissolution of marriage. The learned Counsel for the respondent is unable to rebut the argument of the learned Counsel for the appellant in this regard. As rightly observed by the learned Counsel for the appellant, the lower appellate judge did not at all consider the case of the respondent in the whole of the judgment; but only about the case of the appellant and allowed the petition of the respondent for divorce and dismissed the petition filed by the wife for restitution of conjugal rights.
7. Learned Counsel for the appellant also submitted that in view of Section 13(1)(i-b) of the Hindu Marriage Act the desertion should be for a continuous period of not less than two years immediately preceding the presentation of the petition. But, in view of the filing of the petition for restitution of conjugal rights even prior to the filing of the petition for divorce under Section 13(1)(i-b) the petition for divorce is liable to be dismissed on that ground alone as the ingredient is not satisfied. Learned Counsel for the respondent drew my attention to the decision in Lachman Utamchand Kirpaloni v. Meena alias Mota and submitted that mere filing of a petition would not interrupt desertion, if it is found that the said claim made in the petition is not bona fide. However, in view of the fact that the respondent has not established desertion on the ground that the appellant-wife deserted him with the intention to separate permanently and that there was animus deserendi, this question does not assume much importance. Even otherwise the fact of filing of the petition is also relevant to decide the issue as to whether there was desertion on the part of the wife. Learned Counsel for the respondent submitted that under Section 23(1)(d) if there is improper and unnecessary delay, the petition has to be dismissed. If the said ratio is applied it is only the petition of the husband, which is filed after the notice in 1974 and that too after the petition filed by wife for restitution of conjugal rights, that has to be dismissed on the said ground. The learned Counsel for the respondent also submitted that the offer by the wife to return back to the husband is not unconditional as she insisted on his sister and sister's daughter to be sent back as a condition for her return and living with the respondent. There is no merit in the said contention, as certainly the wife is entitled to ask her husband to make necessary arrangements for her comfortable living with him and to avoid ill-treatment at the hands of his sister and also his developing intimacy with his sister's daughter.
8. It is also argued by the learned Counsel for the respondent that the appellant left the one month infant child and deserted the husband. It is highly improbable and unacceptable that the wife of her own accord left the child of a tender age. On the other hand, the version of the appellant-wife is probable and natural that she was ill-treated and she was beaten and driven out of the house and that she was not allowed to take her child. Since the lower appellate Judge has not approached the case with reference to the relevant provisions of the statute on the question of desertion and had also overlooked the material evidence and reversed the well-considered judgment of trial court, certainly this is a fit case where this Court can interfere in the second appeal. In the instant case the respondent-husband cannot take advantage of his own wilful neglect. Further, the wife has every justifiable cause to live away from him. She made all honest attempts to join with him and she had also issued a notice expressing her willingness to join with him. She also filed a petition for restitution of conjugal rights. Only as a counterblast, the respondent has filed the petition for divorce on the ground of desertion. Except his ipse dixit there is no other evidence adduced on his behalf. He has not made out a case for dissolution of marriage on the ground of desertion. On the other hand, the appellant-wife has made out a case for restitution of conjugal rights by adducing satisfactory and acceptable evidence. This is one of the cases where the lower appellate court did not give any cogent reason for differing from the findings of the trial court and on the other hand it completely ignored the material evidence and chose to draw adverse inferences for reasons which are not valid and as such the finding of the lower appellate Court is not sustainable. For all these reasons, I am of the view that the judgment of the lower appellate judge is not sustainable and as such, it has to be set aside and the substantial questions of law are to be answered accordingly in favour of appellant.
9. In the result, both the appeals are allowed and the judgment of the lower appellate court is hereby set aside and that of the trial court is restored. In the circumstances of the case, there will no order as to costs.