Madras High Court
M. Lakshmi vs K. Seethapathy, Technician, Baggage ... on 3 December, 1997
Equivalent citations: 1997(3)CTC718
ORDER K. Govindarajan, J.
1. The respondent/husband filed O.P. No. 48 of 1982 on the file of the learned VI Assistant Judge, City Civil Court, Madras, seeking a decree for divorce under Section 13(l)(i-a) and 13(l)(i-b) of the Hindu Marriage Act, 1955 as amended by Act 68 of 1976. According to the respondent, as stated in the petition, the marriage between the petitioner and the respondent took place on 11.2.1976 at Nellore, Andhra Pradesh and they had been living together as husband and wife at No. 99 Thyappa Mudali Street, G.T., Madras-1 till 20.3.1978, on which date the wife left the matrimonial home with the intention to desert the husband. A female child was born to the appellant through the respondent on 15.8.1977. Ever since the date of marriage the wife did not want to live with the husband and she frequently went away to her parents' house during the period of her living with him and she treated the husband with contempt and developed a dislike and aversion towards him. The petitioner has further stated in the petition, with respect to cruelty, that the respondent practiced mental cruelty on him on several occasions in 1977 and 1978 till 20.3.1978, during her stay with him, by systematically imputing adulterous and immoral conduct on the part of the petitioner. His further case was that the wife refused to have any sexual intercourse with the petitioner up to the date of desertion. As a result of such refusal to cohabit with the petitioner he had become a physical and nervous wreck and has also become unable to concentrate on his official work. On these basis, the respondent herein filed the petition for divorce.
2. The wife/appellant contested the petition by filing a counter stating that she had not deserted her husband as alleged by him on any day much less on 20.3.1978. She had no intention to desert her husband. According to the wife, she never treated her husband with contempt and developed a dislike or aversion towards him as alleged.
3. With respect to the ground of cruelty, it is the case of the wife that she has not been falsely accusing the husband. It is her further case that even though her husband had developed illicit intimacy with other women and was indulging in adulterous activities, she was keeping quiet and she never objected to his ways of living. She has also denied the averments regarding cruelty alleged by the husband,
4. The lower court accepted the case of the wife and rejected the case of the husband and thereby dismissed the petition. On appeal by the husband in C.M.A. No. 123 of 1984, on the file of the learned IX Additional Judge, City Civil Court, Madras, the lower appellate court found that the wife had deserted the husband without any reasonable cause, on 20.3.1978, and for a continuous period of two years immediately preceding the presentation of the petition. He rejected the case of the husband with respect to the ground of cruelty. Aggrieved against the same, the wife has filed the above appeal.
5. It is not in dispute that the wife left the matrimonial home on 20.3.1978. The five essential factors which must be established under Section 13(1)(i-b) of the Hindu Marriage Act to succeed in the petition for divorce on the ground of desertion are as follows:-
(a) the spouses must have parted or terminated all joint life;
(b) the deserting spouse must have an intention to desert the other spouse;
(c) the deserted spouse must not have agreed to the separation;
(d) the desertion must have been without cause
(e) this state of affairs must be continued for at least two years immediately preceding the presentation of the petition;
6. In T. Rangaswami v. T. Aravindammal, , while dealing with the scope of the said Section, Ramaswami, J., has held as follows :-
"In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserting spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial home. In such cases the actual abandoning of the matrimonial home is not the act of the person against whom the allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behaviour of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has arisen in these circumstances are sometimes called 'constructive' desertions.
This desertion may be terminated in the following ways:
(i) By resumption of cohabitation between the spouses
(ii) By the desertion becoming a separation of the spouses by agreement
(iii) By the deserted spouse refusing a genuine offer made by the deserting spouse to resume cohabitation
(iv) By the deserting spouse becoming insane." Having the above principles in mind, we have to examine the facts of the present case. It is not indispute that the wife left the matrimonial home on 20.3.1978 and she has been living in her parents' house. So, the deserting spouse must be deemed to be the husband. We have to now find out whether such desertion is of her own accord or due to some reasonable cause, and, such desertion of the wife is with an intention to put an end to the matrimonial life throughout the said period of two years.
7. In the present case, before the date of desertion, the husband issued a telegram under Ex.B-3 dated 9.3.1978 to his father-in-law stating that 'Lakshmi serious-start immediately' even though she was hale and healthy. It is not in dispute before me that the telegram was issued only for the real purpose. So, the intention of the husband was only to send the wife to her parents' house. Even as PW1 the husband has admitted that the facts mentioned in ExB-3 is a false one. In the evidence the reason given by the husband was that since the wife iltreated him so much, he gave such a telegram. Except the evidence of the husband as PW1, there is no other evidence to prove that the wife left the matrimonial home of her own. Ex B-3 supports the case of the wife to the effect that only at the instance of the husband, she went out of the matrimonial home.
8. The wife filed ExB-6 dated 17.7.1978 which is a telegram issued to the father of the wife to show that the husband refused to take the wife. Exs.B-7 to B-9 will show that the wife with the intention to live with the husband came to Kavarapettai and stayed in the house of the husband's brother. This fact has been admitted by the husband himself. The lower appellate court while rejecting the case of the wife has erroneously come to the conclusion that even if the wife had come to Kavarapettai it is only at the instance of the husband and not of her own accord. Such an approach cannot be sustained in law. Either of her own or at the instance of the husband, the wife had an intention to live with her husband, and, as such she had tried to create a situation for the same. That itself is enough to show that the wife had an intention to join her husband. But. on the contrary, the evidence itself shows that the husband did not try to take her wife back in spite of the fact that the husband often visited Kavarapettai. As observed in the abovesaid decision T. Rangaswami v. T. Aravindammal, , the deserted spouse, namely, the husband did not make any genuine offer to resume cohabitation. But, even the reply given by the wife, Ex.A-3 will clearly show the intention of the wife that she had always been willing to live with her husband.
9. The Apex Court in Bipinchandra Shah v. Prabhavati, has held that the burden is on the plaintiff (husband) to prove desertion, without cause, for the statutory period of four years, that is to say, that the deserting spouse must be in desertion throughout the whole period. In this connection the following observations of Lord Macmillan in his speech in the house of Lords in the case of Pratt v. Pratt, 1939 A.C. 417 at p. 420(G) are apposite:-
"In my opinion what is required of a petitioner for divorce on the ground of desertion is proof that throughout the whole course of the three years the respondent has without cause been in desertion. The deserting spouse must be shown to have persisted in the intention to desert throughout the whole period. In fulfilling its duty of determining whether on the evidence a case of desertion without cause has been proved the court ought not, in my opinion, to leave out of account the attitude of mind of the petitioner. If on the facts it appears that a petitioning husband has made it plain to his deserting wife that he will not receive her back, or if he has repelled all the advances which she may have made towards a resumption of married life, he cannot complain that she has persisted without cause in her desertion."
In view of the abovesaid decision of the Apex Court, the burden is on the husband to prove the desertion without cause for the statutory period, and, he has to prove that such an intention was available throughout the whole course of the statutory period, and he must prove that the wife must be shown to have persisted in the intention to desert throughout the whole period, In this case, no such evidence is available. On the other hand, the facts discussed above, will clearly prove that the wife had the intention to join her husband. The findings of the lower appellate court in this regard cannot be sustained as it is contrary to the evidence available on record, and, accordingly, the same has to be set aside.
10. With respect to the ground of cruelty, it is the case of the husband that the wife had been imputing adulterous and immoral conduct on the part of the husband systematically. The second ground urged is that the wife refused to cohabit with the husband due to which he had become physical and nervous wreck and thereby he could not concentrate on his official work. But, before the courts below and also before me much reliance had been placed only with respect to the first ground to prove the cruelty on the part of the wife. The , learned counsel appearing for the husband has submitted that even in the counter and also in the evidence, the wife has sustained the said false allegations against the husband, but the same had not been proved before the courts below.
11. As submitted by the learned counsel appearing for the wife, the Division Bench of this Court in Saikumari. S v. Mohanasundaram, P. 1995 (1) L.W. 201, relying on the decision in Tamilzh Selvi v. Arumugam, 1990 (2) L.W. 133 has held as follows:-
"...In a Hindu society, if an allegation of unchastity is made against woman falsely, it would certainly amount to cruelty on the part of the husband. But, the converse will not be correct. The Court can certainly take judicial notice of the fact that even though bigamy is made an offence under the Penal Code and bigamy is prevented by legislation from 1949 onwards, there are numerous instances where men are living with more than one woman in extra-marital relationship. If an allegation is made against a man that he is living with another woman in illicit intimacy, that will not by itself amount to cruelty"
In view of the fact that the cruelty alleged by the husband is only similar to the averments mentioned in the abovesaid decision, the husband cannot sustain the petition, on the basis of the said allegations to substantiate his case that the accusation by the wife amounts to cruelty.
12. In view of the above settled law, the courts below are correct in rejecting the said contention. In view of the above, the order of the lower appellate court is set aside in so far as it relates to point No. 1 is concerned, and the order of the lower court in O.P. No. 48 of 1982, dated 29.11.1983 is restored. Consequently, the CMS.A. is allowed. No costs. Consequently, C.M.R. No. 15374 of 1977 is closed.