Madras High Court
J. Shyamala vs P. Sundar Kumar on 23 March, 1990
Equivalent citations: (1990)2MLJ198
JUDGMENT Bellie, J.
1. This Civil Miscellaneous Second Appeal is directed against an order of the First Additional Judge, City Civil Court, Madras in C.M.A. No. 225 of 1986 wherein he dismissed the appeal and confirmed the order of the Second Assistant Judge, City Civil Court, Madras in O.P.No.628 of 1982 wherein he ordered judicial separation in a petition filed by the husband against his wife for divorce under Section 13(1)(a) and 13(1)(b) of the Hindu Marriage Act.
2. The petitioner-husband married the respondent-wife on 24-8-1980. During the night of the marriage day itself his wife pleaded with the husband that she did not consent to the marriage but it was forced on her by her parents. He believed what all she said. Because of this there was no consummation of the marriage. He hoped that in course of time she would reconcile to the marriage and there will be consummation. But she never behaved as a wife should behave towards her husband. One day in the Music Academy Hall she sat by the side of one Padmanabhan with whom she had told him that she had intimate association for a long time. She then left his house. In these circumstances the petitioner had to issue a notice to her on 25-2-1981. His attempts through his well-wishers to bring back the wife failed. The petitioner has further stated, with some particulars, that the wife had taken away some articles and cash from his house. He has further stated that the wife began abusing him on the way to the school where he was working as a teacher and other public places and therefore he had to give a complaint to the police on 16-9-1981, and on 18-2-1982 she came to the petitioner's school along with her parents and brother and some hidings and he was abused, assaulted and they tried to kidnap him to murder but they failed in that attempt due to the timely intervention of some teaching staff members. Thus the respondent-wife deprived him of her company and deserted him and committed acts of cruelty. Therefore he had no other alternative but to file the petition for divorce.
3. The respondent-wife in her counter would submit that oh the very night of the marriage day there was consummation. She would deny that she told the petitioner that against her will the marriage was forced on her. She further denied that she told the petitioner about any intimacy of her with any Padmanabhan and would submit that no incident in the Music Academy as alleged happened. She submits that the petitioner is making false allegations against her affecting her chastity. She then submits that after the marriage the petitioner-husband wanted her to give him her salary of Rs. 800 but she did not do so and she deposited the amount in her account in the State Bank of Hyderabad. Because of this he became infuriated and abused her and threatened with dire consequences. She then paid him Rs.300 per month for four months, but still he was not satisfied. She was living with the petitioner for about 70 days and all through she had co-habitation with him. The petitioner was persistently and continuously making false allegations against her attributing immorality to her and he was also forcing her to agree for a divorce by mutual consent and therefore it became impossible for her to live with him any longer and therefore she left his house and went to her parents' house on 17-12-1980. She then denied that she took away with her any of the articles from the house of the petitioner and would submit that on the other hand there are many articles of her with the petitioner. The respondent and her parents alone met the petitioner in his school on 18-2-1982 just for asking him why he was indulging in malicious accusations against her morality and to request him not to indulge any more in such things and it is not true they have taken with them hirelings and assaulted the petitioner. It is the petitioner alone who is guilty of constructive desertion and the respondent did not desert the petitioner. It is also submitted that since the respondent has left the house of the petitioner only on 17-12-1980 and the petition having been filed within two years i.e., on 5-11-1982 the petition is not maintainable. Then the respondent submits that even now she is prepared to go to her husband-petitioner and live with him provided he undertakes not to indulge in character assassination and treat her with kindness and love.
4. The respondent-wife filed a petition I.A. No. 12379 of 1983 under Section 27 of the Hindu Marriage Act for ordering the petitioner to deliver to her the articles and properties presented to her at the time of marriage by her parents and relations which are with here husband. As against this the petitioner-husband filed a counter stating that he is prepared to return some of the article mentioned in the petition (specified in the counter) but not others as the respondent-wife is not entitled to them.
5. The second Assistant Judge, City Civil Court, Madras who enquired the petitioner came to the conclusion that the respondent wife refused sexual intercourse with the petitioner-husband from the date of marriage and this amounts to cruely under Section 13(1)(a). He then held that there is no evidence to show that the respondent-wife deserted the petitioner for two years before the filing of the petition and therefore the alleged desertion is not proved. As regards the petition filed by the respondent-wife for directing the petitioner-husband to deliver the proparties and articles alleged to be her's the learned Judge held that she is not entitled to any such property or article. Having found that the respondent-wife has caused cruelty to the petitoner-husband which entitled him to seek for divorce, the learned Judge opined that considering the circumstances of the case it would be just to order judicial separation instead of divorce under Section 13-A of the Act. Accordingly he passed an order for judicial separation. He dismissed the application I.A. 12379 of 1983 filed by the respondent-wife.
6. As against this the respondent-wife filed C.M.A. No. 225 of 1986 contending that the learned trial Judge should not have passed an order for judicial separation bat should have dismissed the O.P. and that he should have allowed the petition I.A. No. 12379 of 1983 filed by the wife. The husband filed a cross objection contending that the trial Court should have passed a decree for divorce. the First Additional Judge, City Civil Court, Madras, who heard the appeal and the cross objection concurred with the findings of the trial Court in full and therefore he dismissed the appeal and also the cross objection. Now, here too on the same grounds as in the first appellate Court the wife has filed the Civil Miscellaneous Second Appeal and the husband has filed a cross objection.
7. Mr. V. Swaminathan, learned Counsel appearing for the appellant-wife argues that the Courts below have found that the wife treated the husband with cruelty holding that she denied cohabitation with him but there is no pleading to that effect in the petition. On a careful reading of the petition I find that the learned Counsel is absolutely correct. Nowhere in the petition it is stated that the wife denied or refused sexual intercourse with the husband. It is unfortunate that the petition has been drafted rather unhappily for, if I may say so, nothing is clearly averred. Every sentence is a complex one running to several lines jumbling many things. The relevant, sentence in paragraph 3 of the petition runs as follows;
the petitioner states that on 24-8-1980, the marriage between himself and the respondent was solemnized, according to Hindu customs and rites at Madras, that the consummation has not taken place since the respondent was candid enough to accept and plead with him that this marriage was brought about by force, on the part of her parents and close relations, in short, against her will, that she was kind enough to tell him then and there on the night of the marriage itself that she would have revealed all these and much more, if he would have met her in the bank premises before the final word was given in the matter and that he was very much convinced about what all she has said, but felt that irk course of time he will be allowed by her out of her own accord thereby rendering connubium and consortium but in vain.
From this sentence it is argued on behalf of the petitioner-husband that it is the case of the petitioner that the wife denied sexual intercourse. Certainly this argument is unacceptable. What the sentence conveys is that, the wife candidly admitted that the marriage was forced on her by her parents and relations and if the husband had met her earlier she would have told him all about it, and because of that there was no consummation. From this one cannot make out whether the husband did not want to have consummation or the wife refused or denied consummation. One can only understand from this that because the wife revealed to the husband that the marriage was forced on her there was no consummation. This by no reason can be said to be denial of sexual intercourse by the wife. The question is whether the husband wanted to have sexual intercourse "before or after the wife spoke to him as stated above. Nothing about it is mentioned. Then how can the wife be found fault with that she refused or denied sexual intercourse. A reading of the entire paragraph (3) would suggest that, if it is true that the wife had said so, the husband was rather happy at her conduct of making candid admission and he did not want to demand anything of her and he simply withdrew. It is argued for the husband that in paragraph 4 of the petition it is stated that the wife did not allow the husband to touch her. A reading of this paragraph would show that he really does not say so but stating some other thing, in that context he just makes a passing remark, that, ...that she has been honest enough in not allowing him even to touch her at all till the date of parting which had immediately taken place....
and then he goes on to state some other thing in the same sentence. If really she did not allow him to touch her that fact should have been stated by him first in paragraph 3 itself. Therefore we cannot take it that it is the husband's case that the wife denied or refused sexual intercourse.
And if the husband wants to have divorce on the ground of cruelty by the wife he must specifically and clearly state in what way the wife treated him with cruelty see-Smt. Sulochana v. Ram Kumar Chauhan . Therefore I am clearly of the view that there is no pleading by the husband that the wife denied or refused sexual intercourse. Even in the notice Ex.A-2 sent by him earlier to the petition no complaint of denial or refusal of sexual intercourse by the wife has been made. In the evidence also the petitioner has stated in chief examination that he filed the petition on the ground of desertion. He has not uttered anything about cruelty. In spite of this position the Courts below proceeded on the footing that it is the case of the petitioner-husband that the wife denied sexual intercourse. Therefore the finding of the Courts below that there was denial of sexual intercourse by the wife cannot be sustained.
8. Then the allegation that in the first night itself the wife told the husband that the marriage was forced on her against her will itself sounds unbelievable. The wife denies having said so at all. Apart from the petitioner's own evidence there is no other evidence worth relying. From the notice Ex.A4 dated 24-4-1981 it appears that he has not stated any such thing to anyone including his own close relations. In the petition also he has not stated that he had informed anybody as to what happened in the first night. The petitioner-husband has examined P.W.2, one Remadas, who is said to be a teacher in the same school where the petitioner-husband is working as a teacher. He has deposed that about 2-3 days after the marriage of the petitioner he (P.W.2) met him in the school and at that time the petitioner- husband was very sad and when questioned he told that his wife told him in the first night of the marriage that the marriage was forced on her and that she had already been in love with somebody else and told him not to approach her. This evidence is not corroborated by any evidence except the interested testimony of the petitioner- husband (P.W.1). As stated above, nowhere before, even in the petition itself or in any of the notices sent by the petitioner-husband earlier to the petition, anything about himself telling P.W.2 as to what happened in the first night has been mentioned. Admittedly P.W. 2 is a friend of the petitioner-husband. Therefore his evidence is difficult to believe.
9. Then the petitioner-husband has also examined P.W.3 and 4. Their evidence is that they wanted to effect a compromise between the parties and for that they along with the petitioner went to the house of the Wife's parents and there when the wife's parents refused to send her back the petitioner-husband told them that even in the first night itself the wife told him that she was having an affair with one Padmanabhan and the marriage was forced upon her and she also told him not to approach him. Again as regards these witnesses also nothing has been mentioned even in the petition or in any of the notice Exs.A-2 and A-4 sent by the petitioner-husband to the wife earlier. These witnesses have not mentioned on which date or even in which month this happened. P.W.I, the husband, however seems to say that this happened in the first week of September. But the Courts below have given a categorical finding with which I entirely agree that the wife had left the house of the husband only on 17-12-1980, Therefore the evidence of P.Ws.2, 3 and 4 is unworthy of acceptance. Even the allegation of the husband that one day at the request of his mother he took his wife to Music Academy and there she showed him a person and told that he was the Padmanabhan about whom she mentioned during the first night and she went and sat with him speaks of artificiality. First of all the husband would not state the date of that alleged incident. It is not difficult for him to state the date since according to him it was a day of a function. The wife emphatically denies that there was such an incident. Then how to believe that there was any such incident only on the evidence of the husband (P.W. 1) alone. Further if the version of the husband about what happened during the first night is true it is highly improbable that soon thereafter he would have taken the wife to a function at Music Academy, and it is further improbable that there she without any sense of shame or fear introduced a person as Padmanabhan and sat with him neglecting her husband. The husband (P.W. 1) has further stated that he straight away took his wife to her parents' house from the Music Academy and left her there. Here again as seen above it is the definite finding of the Courts below that the wife left the house of the husband only on 17-12-1980 and this senders the said alleged incident in the Music Academy untrue. Thus not only there is no plea that the wife refused of denied cohabitation but also there is no evidence that it happened so.
10. As aforesaid the wife denied the allegations of the husband and it is her case that nothing as alleged happened in the first night and she lived with the husband and had cohabitation with the husband for more than 70 days. According to her the husband, when she received her salary of Rs. 800 soon after the marriage as a bank employee and deposited it in the State Bank of Hyderabad in her name, became highly infuriated and abused her for it was not given to him and threatened her with dire consequences and she paid Rs. 300 per mensem for four months but the husband was not satisfied with that and he ill-treated her and was making false allegations of immorality against her from about the first week of November, 1980 up to 17-12-1980 when she left him unable to bear it. The trial Court and also the first appellate Court took the view that only for the reasons stated by the wife in respect of her salary the disruption of marital life between the spouses could not have happened, and therefore they appear to think that the entire incident could have happened during the first night as alleged by the husband. In this the Courts below cannot be said to be correct. It could have happened as stated by the wife if the husband is greedy for money and he wanted the salary of the wife to be handed over to him and the wife refused. Considering the entire matter it appears to me that the case of the wife is more probable than that of the husband.
It must be remembered the wife is an educated lady and she is employed and she was already earning a substantial sum of Rs. 800 per mensem and in that position it is hardly believable that her parents could have prevailed upon her and forced her to a marriage with the petitioner. If it was so and the wife is unhappy and the husband wanted to divorce her (it may be remembered that according to the evidence of the husband--P.W.1 in the first night itself she agreed to him to have a consent divorce after six months) she would have considered it as a gift of God and would have readily agreed and she would not have remained one day in the house of the husband. But even according to the husband himself she was in the house till the first or second week of September 1980 i.e., for minimum of about two weeks. The petitioner has not examined anyone from his house like his mother or any other relation who could have definitely spoken about the behavior of the wife during that time if really what the husband says is true. But he has not chosen to examine any such witnesses. The Courts below have pointed out the prevaricating statements of the husband as regards the time when she left his house and they have disbelieved his version, and on the other hand they are sure that the case of the wife that she left the house of the husband on 17-12-1980 must be true. In view of this finding it can be safely said that she had been in the house of the husband for fairly a long time after the marriage. It is her case that because of the ill-treatment of the husband and imputation of immorality to her, by force, she had to leave the house of the husband on 17-12-1980. When the husband and wife live in the same house for fairly a long time that too as young couple immediately after the marriage a natural presumption arises that they should have had cohabitation. Therefore it is indeed hard to believe that the wife denied or refused cohabitation with the husband.
11. The allegation of the husband that the wife and her parents brought hirelings to his school and they assaulted him and tried to kidnap him to murder is denied by the wife and according to her only she and her parents went to the school just to question him as to why he was making false allegations. It is not stated by the husband as to why they should make such an assault on him and attempt to murder him. On the other hand the version of the wife appears to be quite reasonable. Quite, possibly her parents wanted to see the petitioner and ask him why he was making allegations of immorality. Supporting the evidence of the husband-P.W.1, there is only the evidence of P.W.2. As regards this witness we have already seen that he is in the same school working along with the petitioner-husband. Only from the corroboration of his evidence it cannot be believed that the incident happened as stated by the husband. I am clearly of the view that the husband is making an exaggeration of the incident. Thus considering the entire relevant evidence and the circumstances I find that no treatment of cruelty by the wife against the husband has been made out.
12. Now, as stated above, both the Courts below have found that there is no desertion by the wife as alleged by the husband. They have found that the evidence clearly shows that the wife has left the house of the husband on 17-12-1980 and the petition has been filed within two years thereof i.e., on 5-11-1982 and therefore desertion for two years as required under Section 13(1)(ib) has not been proved. However, Mr. R. Alagar, learned Counsel for the petitioner-husband would submit that desertion does not necessarily mean the wife quitting the house of the husband but desertion can be there even while the wife is living in the house of the husband itself, and that intentional abandonment of marital duties amounts to desertion. In this connection the learned Counsel has cited the decisions in Dr. Srikant Rangacharya Adya v. Smt. Anuradha and G. Ramakrishna Pillazi v. J. Vijayakumari Amma . But in, our case no specific abandonment of marital duties has been alleged for the relief of divorce on the ground of desertion apart from the allegation that she left the house of the husband. As seen above the only allegation made against the wife is that she told the husband in the first night that the marriage was forced on her and he believed what ail she said but he however thought that in coarse of time she would reconcile to the marriage. No other overt act has been pleaded. This being the case no desertion can be said to have been made out as the learned Counsel would submit. Further we have held above that there is no proof of the husband's allegation of cruelty to him by the wife. On the other hand it is the case of the wife that the husband has heaped many false allegations against her morality. He has alleged that she had been living with one Padmanabhan before marriage for ten years having everything with him and he has also made a disguised allegation that she had already a child born to her and that child is in Andhra Pradesh and she wanted to adopt that child. None of these has been proved. When the husband has made such wild accusations against the wife and she because of these wanted to go to the house of her parents, can she be said to have deserted the husband? Thus as rightly held by both the courts below there is no desertion by the wife.
13. Mr. R. Alagar, learned Counsel for the petitioner-husband submits that this marriage has irretrievably broken down and therefore it would be better to leave it as it is passing a decree for divorce and no fruitful purpose will be served if a decree for divorce is not passed. In this connection he cited a ruling of the Supreme Court in Smt. Saroj Rani v. Sundarshan Kumar Chadha in which case there was a consent for divorce and in that ruling in paragraph 10 it is stated that, Further-more we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter.
This the Supreme Court has stated in the context of wife seeking in the Supreme Court permission to amend the pleading alleging that the husband had deceived her into filing a petition for conjugal rights. The facts in that case are different from the facts in our case and therefore the above observation made by the Supreme Court cannot be made applicable to this case. Thus I do not find any justification for the Courts below to grant a decree for judicial separation to the husband.
14. Now, as regards the petition filed by the wife under Section 27 of the Hindu Marriage Act seeking delivery of her properties from the husband, as the Courts below have held, this petition is not competent since the section deals with only the property that jointly belong to the husband and wife, and that is not the case here. Hence that petition has been rightly rejected.
15. In the result the Civil Miscellaneous Second Appeal is allowed and the Judgment of the Courts below are set aside the Original Petition for divorce is dismissed. The husband shall pay costs to the wife throughout The cross objection is dismissed. No costs.