Madras High Court
D.Rajendran vs R.Dhanalaxmi on 23 January, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.S.A.No.45 of 1996 D.Rajendran ... Appellant/husband Vs R.Dhanalaxmi ... Respondent/wife Prayer Appeal filed under Section 28 of the Hindu Marriage Act read with Section 100 of the Civil Procedure Code, against the Judgment and decree passed in H.M.C.M.A.No.9 of 1993 dated 12.01.1994 on the file of the learned District Judge, Tanjore, reversing the order passed in H.M.O.P.No.12 of 1992 dated 24.12.1992 on the file of the learned Subordinate Judge, Tanjore. !For Appellant ... Mr.K.Srinivasan ^For Respondent ... No appearance :JUDGMENT
This appeal is focussed as against the Judgment and decree passed in H.M.C.M.A.No.9 of 1993 dated 12.01.1994 on the file of the learned District Judge, Tanjore, reversing the order passed in H.M.O.P.No.12 of 1992 dated 24.12.1992 on the file of the learned Subordinate Judge, Tanjore.
2. For convenience sake, the parties are referred to hereunder as husband and wife.
3. Niggard and bereft of details, pithily and precisely the relevant facts which are absolutely necessary and germane for the disposal of this Civil Miscellaneous Second Appeal could be portrayed thus:
The appellant is the husband of the respondent herein. Their marriage was solemnized on 11.06.1986. They have no issues. While so, the husband filed H.M.O.P.No.12 of 1992 in the Sub Court, Tanjore, seeking divorce by invoking Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 so to say on the ground of cruelty and desertion. The wife filed H.M.O.P.No.34 of 1992 for restitution of conjugal rights.
4. The gist and kernel of the allegations of the husband as against the wife is that she refused to cooperate with the husband for consummating the marriage by submitting herself to sexual intercourse with him and she with effect from 05.11.1989 started living separately from the husband.
5. Per contra, denying and refuting, challenging and impugning the allegations made by the husband, the wife would contend that the husband having been dissatisfied with the wife's failure to comply with his demand for dowry, started harassing her physically and mentally and that he only started living separately from her.
6. During the joint enquiry, the husband examined himself as P.W.1 along with P.W.2 andthe wife examined himself as R.W.1 along with R.W.2. No document was marked on either side.
7. Ultimately, the trial Court granted divorce and consequently dismissed the petition for restitution of conjugal rights.
8. Being aggrieved by such Judgment and decree of the trial Court, the wife filed two appeals in H.M.C.M.A.Nos.9 and 10 of 1993 before the District Court, Tanjore. The first appellate Court set aside the Judgment and decree of divorce and dismissed both the applications.
9. Being dissatisfied with the Judgment and decree of the first appellate Court, the husband filed this Civil Miscellaneous Second appeal on the following main grounds:
The first appellate Court without any sound reason reversed the decree of divorce. The first appellate Court having dismissed the application for restitution of conjugal rights filed by the wife should have confirmed the decree of divorce. The first appellate Court failed to appreciate that the husband took steps to resume cohabitation with the wife, still she refused to respond. The first appellate Court without considering the evidence of P.W.2 and the circumstances involved in this case including the conduct of the wife, wrongly held that the case of the husband was not believable as there was no medical evidence in favour of the plea of the husband relating to his plea of non-consummation of the marriage. Accordingly he prayed for setting aside the order of the first appellate Court in reversing the decree of divorce granted by the trial Court and for restoring the decree of divorce.
10. Heard both sides.
11. At the time of admitting this second appeal, the following substantial questions of law were framed:
(1) Whether the finding of the lower Appellate Court are vitiated by its failure to draw the legal inferences on the conduct of the respondent and that the respondent's allegations of dowry harassment was not proved? (2) Whether the lower appellate Court is right in placing the burden upon the husband to prove that the marriage is not consummated, especially when there is no issues?
(3) Whether the lower appellate Court is right in not taking the adverse inference against the respondent when she did not come forward to be examined by a Medical Expert?
(4) Whether the findings of the lower appellate Court vitiated by its failure to consider the pleadings and evidence and whether a case has been made out for divorce under Section 13(i)(a) and (b) of the Hindu Marriage Act?
12. The substantial questions of law are taken together for discussion as they are interlinked with each other.
13. The unassailable facts are that the husband filed H.M.O.P.No.12 of 1992 for divorce on the ground of cruelty and desertion, whereas the wife filed H.M.O.P.No.34 of 1992 for restitution of conjugal rights.
14. In this case, it is just and necessary to refer to the decisions of the Hon'ble Apex Court concerning the fact as to what would constitute cruelty as it is obvious and axiomatic that there is no precise definition of cruelty in the Hindu Marriage Act. The following decisions of the Hon'ble Apex Court could fruitfully be cited:
(i) Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 Supreme Court Cases 73. An excerpt from it, would run thus:
"6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)( i-a ) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, pos tulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life."
(ii) Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate reported in (2003) 6 Supeme Court Cases 334. An excerpt from it, would run thus:
"6. In V. Bhagat v. D. Bhagat 2 it was observed that mental cruelty in Section 13(1)( i-a ) 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 and the parties cannot reasonably also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged party. That was a case wherein the husband filed a petition against the wife for divorce on the ground of adultery. In the written statement filed by the wife in the said proceedings, she alleged that the husband was "suffering from mental hallucination", that his was a "morbid mind ... for which he needs expert psychiatric treatment", and that he was "suffering from paranoid disorder" etc. and that during cross-examination several questions were put to him suggesting that the petitioner and several members of his family including his grandfather were lunatics and that the streak of insanity was running in the entire family. It is in the said context this Court though he ld the allegations levelled against the wife were not proved, the counter-allegations made by the wife against the husband certainly constituted mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife thereafter. The husband, it was also held, would be justified to say that it is not possible for him to live with the wife. In rejecting the stand of the wife that she wants to live with her husband, this Court observed that she was deliberately feigning a posture, wholly unnatural and beyond comprehension of a reasonable person and held that in such circumstances the obvious conclusion has to be that she has resolved to live in agony only to make life a miserable hell for the husband, as well. ...
11. ... To satisfy the requirement of clause ( i-a ) of sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitutes the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the courts perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. ..."
(iii) Parveen Mehta v. Inderjit Mehta reported in (2002) 5 Supreme Court Cases 706. An excerpt from it, would run thus:
"17. This Court, construing the question of mental cruelty under Section 13(1)( i-a ) of the Act, in the case of G.V.N.Kameswara Rao v. G.Jabilli [(2002) 2 SCC 296] observed: (SCC pp. 303-04, para 12) "12. The court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances."
21. Cruelty for the purpose of Section 13(1)( i-a ) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
(iii) A.Jayachandra v. Aneel Kaur reported in 2005-2-L.W.149. An excerpt from it, would run thus:
"10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb, or health, bodily or mental, or as to given rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."
15. I am of the considered opinion that the aforesaid excerpts from the decisions of the Hon'ble Apex Court would be more than sufficient to have a clear understanding as to what type of conduct of a spouse would constitute cruelty as against the other spouse and in the light of the aforesaid decisions, it is just and necessary to analyse and scrutinize the evidence in this case.
16. In the light of the aforesaid decisions, if the matter is viewed, it is clear that the H.M.O.P.No.12 of 1992 filed by the husband is niggard and bereft of details concerning cruelty, except one ground that there was no consummation of the marriage due to the wife's refusal to submit herself to sexual intercourse.
17. It is a trite proposition of law that any amount of evidence without proper pleadings should be eschewed. The trial Court barely relying on the evidence of the interested testimony of P.W.1, the husband, arrived at the conclusion that the marriage was not consummated. The trial Court in paragraph No.12 of its Judgment misdirected itself by expecting the wife to prove that there was sexual intercourse between her husband and herself. The 'onus probandi' is on the husband to prove that there was no consummation of marriage due to wife's non-cooperation. But curiously enough the trial Court wrongly expected that the wife should have proved the plea of the husband. The first appellate Court correctly interfered with the Judgment of the trial Court by analysing the evidence at the paragraph No.8 of its Judgment.
18. The first appellate Court referred to the depositions of P.Ws.1 and 2 and found that even according to those witnesses, the husband and wife lived happily, quite antithetical to the allegations of the husband in the petition that the wife was not cooperative in leading conjugal life ever since the date of marriage. In paragraph Nos.3 and 4 of the petition for divorce, the husband would make bald allegations as though ever since the date of marriage she shunned the company of the husband; she used to abuse him in filthy language; she picked up quarrels with his parents; she was in the habit of living in the matrimonial home and that she never even stayed with the husband for a week continuously in a month.
19. P.W.1, the husband during chief examination stated as follows:
"jpUkzj;jpw;Fg; gpd;dh; nUtUf;Fk; nilBa cly; cwt[ Vw;gltpy;iy. jpUkzj;jpw;Fg; gpd;dh; vjph;kDjhuh; vd;Dld; rhpahf cwt[ bfhs;stpy;iy"
(emphasis supplied) During cross-examination he would state as follows:
"jpUkzj;jpw;Fg; gpd;dh; ehDk; vjph;kDjhuUk; vA;fs; tPl;oy; thH;f;if elj;jpBdhk;. ehDk; vjph;kDjhuUk;, fztd; kidtpahf vA;fs; tPl;oy; 1 thuk; nUe;Bjhk;. 1 thuj;jpw;F gpd;dh; ehd; uhzpg;Bgl;ilf;F brd;wpUe;Bjd;. mg;BghJ vjph;kDjhuhpid ehd; vA;fs; tPl;oy; tpl;Lr; brd;Bwd;. ehd; uhzpg;Bgl;ilf;Fr; bry;Yk;BghJ vjph;kDjhuh; vd;id re;Bjhrkhf tHaDg;gp itj;jhh;. ehd; 3 ehl;fs; fHpj;J vd; mk;kh nwe;jjw;F te;Bjd;. mg;BghJ 15 ehl;fs; vA;fspy; tPl;oy; nUe;Bjd;. mg;BghJ vdf;Fk; vjph;kDjhuUf;Fk; gpur;id ny;iy. ehd; gpd;dh; Btiyapd; epkpj;jk; gy Ch;fSf;F brd;wpUe;Bjd;. xt;bthU thuKk; tPl;ow;F tUBtd;. ehd; vjph;kDjhuhplk; brhy;yptpl;Lr; bry;Btd;. vjph;kDjhuh; vd;id tHpaDg;gp itg;ghh;".
(emphasis supplied) As such the above excerpt from the deposition of P.W.1 would clearly spotlight that after marriage the husband and wife lived happily and peacefully and it is not as though as contended by him in paragraph Nos.3 and 4 of his petition for divorce, the wife was not cooperating with him in having sexual intercourse with her and that she tried to cut the ground under his feet or belittled or slighted him. The trial Court failed to consider these aspects, however the first appellate Court correctly appreciated the deposition of P.W.1, the husband and arrived at the conclusion that had there been non-consummation of the marriage because of the wife's refusal, then certainly the husband might not have waited for six years to file the application for divorce. The fact remains that the marriage between them took place on 11.06.1986 and the petition for divorce was filed in the year 1992.
20. At this juncture, it is just and necessary to refer to the Section 12(1)(a) of the Hindu Marriage Act, 1955, which is extracted here under for ready reference:
"12.Voidable marriages,- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotence of the respondent;"
21. It is therefore clear that non-consummation of marriage would render the marriage voidable. But the husband has not chosen to invoke Section 12(1)(a) of the Hindu Marriage Act, 1955, obviously because he was not serious about the plea of non-consummation. The husband filed H.M.O.P.No.12 of 1992 only under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 and not under Section 12(1)(a) of the Hindu Marriage Act, 1955. Once the marriage itself is a voidable marriage, there is no question of divorce at all would arise. The remedy of divorce is only for dissolving valid marriages and not void and voidable marriages.
22. It is the specific case of the husband that the wife refused to consummate the marriage and in such a case he ought to have invoked Section 12(1)(a) of the Hindu Marriage Act, 1955. But he has not chosen to do so as in his heart of heart he knew that his plea is not a well founded one; whereas R.W.1, the wife clearly and categorically stated that the husband and wife during first night were happy. An extract from her deposition is set out here under:
"11-6-86e; Bjjp, vA;fSf;Fs; jpUkzk; ele;jJ. jpUkzk; xuj;jehl;oy; ele;jJ. jpUkzj;jpw;F gpd;dh; Kjy; ehs; vA;fSf;Fs; Kjyput[ ele;jJ. Kjy; nut[ re;Bjhrkhf nUe;jJ. mjd; gpd;dh; nUtUk; fztd; kidtpahf thH;e;Bjhk;. vA;fSf;Fs; bjhlh;e;J ny;ywj; bjhlh;g[ Vw;gl;lJ". (emphasis supplied)
23. The wife is the competent person to speak about the sexual relationship between her husband and herself and she narrated in detail the sexual relationship between them. Had really the husband was sincere about his plea of non-consummation, it is not known as to what prevented him from filing an application for subjecting the wife to medical examination. The husband without realising his own responsibility and burden of proof unjustifiably expected the wife to subject herself voluntarily for medical examination. It is no where found that despite the husband had taken steps, the wife failed to respond for medical tests. In such a case, the husband cannot try to capitalize his own fault. They have no children born to them, nevertheless it will not lead to amount presumption that the marriage was not consummated. It is a trite proposition of law that in civil matters preponderance of probability would govern the adjudication. Here the probabilities are more in favour of the wife's plea rather than in favour of the husband.
24. To the risk of repetition without being tautologous, I would highlight that had really from the date of their marriage, the wife was non-cooperative in consummating the marriage and that she was wild and untruly towards the husband and his parents, certainly despite availability of 12(1)(a) of the Hindu Marriage Act, 1955 in his favour, he might not have kept quiet for six long years to file the H.M.O.P.No.12 of 1992.
25. P.W.2, Rangarajan during cross-examination stated thus:
"xU khjk; vjph;kDjhuUk;, kDjhuUk; fztd; kidtpahf nUe;jdh;. xU khj fhyj;jpy; nUtUf;Fk; nilBa ve;j gpur;ida[k; ny;iy. nUtUk; RKfkhf nUe;jdh;".
(emphasis supplied) The above extract from the deposition of P.W.2 is indicative of the fact as to how the husband was false in his plea that there was no consummation of the marriage at all. P.W.2 would project himself as one of the panchayatars, who dealt with the matter. But he never stated that during panchayat it was informed to him by anyone that the wife was non-cooperative in consummating the marriage. The husband in fact has gone to the extent of filing the divorce petition based on non-consummation of marriage due to the non-cooperative attitude of the wife and in such a case had that ground been a real and genuine one, the same would have been raised before the panchayatars. But the evidence of P.W.2 does not speak anything about the plea of non-consummation of marriage at all. But he would only speak about some misunderstandings between the husband and wife.
26. In fact, by way of adding fuel to the fire, P.W.2 during cross- examination would clearly state thus:
"vjph;kDjhuh; xU khjj;jpw;F gpd;dh; fztd; tPl;oYk; bgw;Bwhh;fs; tPl;oYk; nUg;ghh;. kDjhuh; uhzpg;Bgl;ilf;F Btiyf;Fr; brd;W tpLthh;. kDjhuh; Btiyf;F brd;Ws;s BghJ vjph;kDjhuh; kDjhuhpd; tPl;oYk; nthpd; bgw;Bwhh;fspd; tPl;oYk; nUg;ghh;. rpy BeuA;fspy; vjph;kDjhuh; jhdhf jd; bgw;Bwhhpd; tPl;oypUe;J te;JtpLthh;. kDjhuh; uhzpg;Bgl;ilapy; nUe;J tUk;BghJk; nUtUf;Fk; nilBa RKfkhd thH;f;if nUe;jJ. vjph;kDjhuh; ny;yw thH;;f;iff;F xj;J tukhl;Bld; vd TWfpd;whh; vd kDjhuh; vd;dplk; Twtpy;iy. gq;rhaj;jpy; gpur;rpid vd;d vd Bfl;Blhk;. mg;BghJ cly; cwt[ ny;iy vd kDjhuh; jug;gpy; Twtpy;iy".
(emphasis supplied) As such the evidence of P.W.2 clearly torpedoes the plea of the husband that there was no consummation of the marriage, due to the non-cooperative attitude of the wife. The trial Court without properly analysing the evidence of the witnesses, simply jumped to the conclusion as though there was non- consummation of the marriage.
27. The husband, as an afterthought at the time of filing the application for divorce, had chosen to dish out the plea of 'non-consummation', which was correctly found to be false by the first appellate Court, even though the trial Court had fallen into error in appreciating the evidence.
28. The husband would allege as though the wife made false allegations that he and his family members demanded dowry. R.W.2 Perumal, one of the panchayatars, clearly and categorically stated that the panchayatars persuaded the husband to resume cohabitation with the wife; that they even promised him that they would direct the wife's side to give jewels to the husband but nevertheless the husband looked askance at such a suggestion of the panchayatars and contended before them that on the wife's side they would not keep up the promise in giving the jewels. The evidence of R.W.2 is cogent and convincing and in fact it is free from embellishment. However, the evidence of P.W.2, during chief examination is bald as baldness could be and he never even stated as to what was the real cause for the rift in the matrimonial relationship between the husband and wife. Whereas the evidence of R.W.2, the panchayatar would clearly detail and delineate as to what was the cause for the rift in the relationship between the husband and wife and that 'dowry' figured as a problem in view of the demand of dowry on the husband's side. Hence, in this factual matrix, it cannot be stated that the wife uttered out falsely some allegations relating to demand of dowry by the husband.
29. In view of the discussions supra, it is evident that the husband futaily and vainly and more so fruitlessly dished out the pleas based on false allegations so as to camouflage and conceal his own fault in not treating the wife properly which in fact resulted in causing separation in their matrimonial relationship.
30. To constitute 'desertion', there should be 'animus deserendi'. Among the catena of decisions, the one which could be cited is Savitri Pandey's case, already referred to supra. An excerpt from it, would run thus:
"9.Following the decision in Bipinchandra case, this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena (AIR 1964 SC 40) by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (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. For holding desertion as proved 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 separation."
31. The husband would simply stated as though the wife was not even interested in living with the husband for a week continuously in a month, but as already highlighted supra, the deposition of the husband is to the contrary to the effect that for a pretty long time, the husband and wife lived happily without any problem. The onus of proof was on the husband to prove that there was animus deserendi on the part of the wife in shunning the company of the husband. But in this case, the wife despite having underwent torture at the hands of the husband, has chosen to file the application for restitution of conjugal rights and that shows her intention to resume cohabitation with the husband. There is not even any plausible suggestion from the husband's side as to what was the reason for the wife allegedly leaving the matrimonial home often when according to the husband he was very affectionate and kind towards her. The trial Court simply accepted the case of the husband without any evidence muchless clinching evidence to prove desertion.
32. The first appellate Court in paragraph No.10 adverted to the evidence adduced on both sides and correctly held that there was no desertion on the part of the wife. In fact, P.W.2, the husband's side witness would speak to the effect that during the year 1989 in response to the decision of the panchayatars that the couple should resume cohabitation, the wife went and stayed in the husband's house for one week. Had really the wife had animus deserendi, she would not have obeyed the directions of the panchayatars and stayed in her husband's house during the year 1989.
33. It is the consistent case of the wife that even though she was adjustable and willing to live with the husband, it was because of the husband's attitude, the separation resulted in their matrimonial relationship. Hence, in such a case it is crystal clear that absolutely there is no ground for granting divorce. The trial Court fell into error, which was corrected by the first appellate Court. Accordingly, the substantial questions of law are answered.
34. The appeal was filed only by the husband as against the dismissal of his divorce O.P. by the first appellate Court after reversing the decree of divorce of the trial Court. However the first appellate Court also dismissed erroneously the petition for restitution of conjugal rights on the ground that since the wife had also grievance that the husband was treating her cruelly, there was no point in ordering restitution. In my opinion such a view is not tenable. The first appellate Court should have allowed the application for restitution of conjugal rights. The wife has not filed any appeal still while dismissing this appeal and confirming the Judgment of the first appellate Court in allowing the appeal in H.M.C.M.A.No.9 of 1993 in dismissing the H.M.O.P.No.12 of 1992, I would like to observe thus:
The husband and wife shall do well to see that they resume cohabitation in the best interest of both of them instead of wasting their rest of their life in matrimonial litigative battle endlessly.
35. With the above observation, this Civil Miscellaneous Second Appeal is dismissed, confirming the judgment and decree of the first appellate Court in reversing the decree of divorce and in dismissing the O.P. for divorce. However, in the facts and circumstances of the case, there is no order as to costs.
smn To
1.The District Judge, Tanjore.
2.The Subordinate Judge, Tanjore.