Rajasthan High Court - Jaipur
Dr. K.C. Sikroria vs Sarla Sikroria on 3 November, 1988
Equivalent citations: I(1990)DMC177, 1990(1)WLN520
Author: J.S. Verma
Bench: J.S. Verma
JUDGMENT Farooq Hassan, J.
1. Apparently a coil of reversals is the fats of this litigative battle before this Court between the appellant and the respondent over a petition for divorce sought by the appellant-husband on the ground of desertion as provided for in Section 13(1)(b) of Hindu Marriage Act, 1955, (for brevity, 'the Act') The first inning of the litigative match was fought and played before the District Judge, Kota, who, on an evaluation of the relative merits and demerits of the rivals, granted a decree of divorce dissolving the marriage solemnized between the parties, on the ground of desertion (Supra), but this victory of the husband was short-lived because at the second inning of the legal bout, the Single Judge of this Court inverting the 'decree of divorce dismissed the husband's petition holding that the desertion by the wife is not proved. Hence the worsted appellant invokes the jurisdiction of the Division Bench of this Court by filing special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, seeking that we should review the decision impugned, rejudge the relevance and weight of the points, pro and con, and as a result of this, adjudicatory exercise on facts sparingly.
2. The voluminous accord which the spouses have collectively built up in the case contains a reflection of their rancour an acrimony, a thumb-nail sketch of which herein will help resolve the legal controversy canvassed in this appeal before us.
3. The appellant was married with the respondent on June 11, 1973, according to Hindu rites at New Delhi, and the spouses were living in Kola where the appellant was employed as a medical officer in the Railway Hospital. Soon after the marriage' the appellant detected that the respondent was suffering from fibroid uterine tumour. Admittedly, the parties last resided together at Kota till May 17, 1974, on which date, the respondent left her in-laws matrimonial home allegedly for the purpose of medical examination and treatment of the said tumour but, thereafter she did not return. The crux of the rancour is that even after she was informed well in advance, she did not come to be present by the bed side of the husband during his hernia operation in August, 1974 so also thereafter, and did not join him even in his days of grief or for the obsequies on the occasion of the death of his father in March, 1975 and of his mother in December, 1975 inspite of the fact that she was remembered by persistent requests by the husband.
4. The husband had also moved a petition for restitution of conjugal rights in the District Court at Kota on October 3, 1973, which was resisted by the wife and obviously she was determined not to turn. Pendente petition for restitution of conjugal rights, the husband filed the present petition for divorce on grounds of cruelty and desertion made with animus deserendi on December 21, 1976. The petition for restitution of conjugal rights was got dismissed as withdrawn on April 30, 1977.
5. The wife (respondent) resisted the petition for divorce tooth and nail by vehemently refuting all the allegations levelled against her especially the allegation about her chastity and moral character. She denying that she and her parents had any knowledge before her marriage about her suffering from fibroid uterine tumour, asserted that it was only after the marriage that the husband being and experienced medical practitioner discovered the said tumour (supra) and it was the husband himself who sent her to Delhi for treatment which she pleaded to continue there and because of that, as she pleaded, it was not possible for her to stay at Kota. She asserted that making wrong, malicious and reckless allegations against her chastity and moral character, she was virtually turned out of the home after maltreatment and beating. The maintainability of the petition for divorce was also assailed on the ground that the petition for restitution of conjugal rights was sub judice though it was withdrawn later on.
6. The foremost contention on behalf of the appellant is that non-return by the wife to her matrimonial home even after repeated requests by the husband clearly shows the animus deserendi of the wife on the basis of which the trial Court had decreed by granting divorce. But, according to the appellant, learned Single Judge was not justified in reversing the finding of the trial Court because the Single Judge has erred in holding that the appellant has not only to prove desertion but also that it was not for reasonable cause, in order to succeed in a petition for divorce. In this context, learned counsel contended that the Single Judge ought to have held that the factum and animus of desertion having been proved it was for the respondent to prove that it was for reasonable cause, and contrarily the Single Judge made out a case of persistent inquisition not pleaded by the respondent.
7. The Single Judge ought not to have taken out passages from the appellant's long letters, torn from context and built up a case for the respondent not pleaded by her, whereas over all look at the appellant's correspondence that over-looking pre-marital adventure of the respondent, he provided affections to the respondent, Shri R.M. Lodha, added Shri Lodha urged that the Single Judge missed philosophical part of the appellant's correspondence and misunderstood the appellant's moral exhortations to the respondent as sarcasm.
8. Shri R.M. Lodha also urged that when the case of the respondent was clearly that she left matrimonial home for treatment at the All India Institute of Medical Science where her sister Dr. Meera Mathur was allegedly working and even the appellant gave introductory letters for her treatment, then also the Single Judge found that the appellant's conduct was expulsive. According to Shri Lodha, the Single Judge lightly brushed aside the appreciation of the evidence done by the trial Judge who had the advantage of seeing the witnesses and thus, the Single Judge failed to appreciate the concept of desertion and capture the background of the correspondence addressed by the appellant to the respondent.
9. Shri R.M. Lodha then urged that the appellant has successfully proved that in view of the family circumstances, it was obligatory on the respondent-wife to have come to her matrimonial home and could have done service to the appellant as well as his father and mother at the time of their illness, but not coming of the respondent-wife on the occasion of their illness shows the crued attitude mind of the wife and in these circumstances, only inference that can be drawn should be that the wife was adament in not coming to the matrimonial home and not doing any service to her husband and/or in-laws.
10. Shri N.L. Jain, learned counsel for the respondent, on the other hand contended that looking to the facts and circumstances of the case there was reasonable cause for the wife to live separately because the husband made filthy allegations against the wife and in these circumstances, the wife was justified in living separately from the appellant and in this view of the matter, the Single Judge set aside the decree of divorce passed in favour of the appellant.
11. Shri N.L. Jain added that in the instant case, it cannot be informed that the wife condoned the expulsive conduct of the appellant in making allegations against her chastity and moral character and no such stand was taken by the appellant before the trial court, even no question was put to the wife in her cross-examination in regard to the condonation. Shri N.L. Jain then urged that in reconciliation proceedings before the trial court, the offer of the husband was accepted by the wife on Stipulation that she should be taken to matrimonial home from Delhi and it will be disgraceful for her to accompany with husband straightway from the court--which was not acted upon by the husband and which by itself is sufficient to show that the husband was not intending to keep the wife with him. Irretrievably broken marriage cannot be a ground for divorce, Shri Jain added.
12. Shri N.L. Jain lastly wrangled by contending that having regard to the finding recorded by the Single Judge being of fact, this court while hearing an appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, cannot exercise to re-examine the points in controversy on the basis of the evidence on record which according to him has already been appreciated by the Single Judge and the exercise to re-examine and re-appreciate these findings of fact should not be undertaken at this level, particularly in the context of the fact that this is a special appeal under Section 18 of the Rajasthan High Court Ordinance 1949 and the powers under this Section can only be exercised sparingly that too in a case where an illegality is found by the Court hearing special appeal.
13. Here, we may mention that during the course of the arguments, both the learned counsel frankly conceded that special appeal should be disposed of without any delay and sending for the record as they are prepared to file certified and photostat copy of the relevant papers. Therefore, in view of frank concession, the documents filed by the parties were taken on record through which we have gone after giving our thoughtful consideration to the rival contentions.
14. At the very outset, before going into merits of this special appeal. we must consider the crucial question on which the fate of this appeal hinges, whether this Court should exercise its jurisdiction under Section 18 of the Rajasthan High Court Ordinance to review and reverse a decision of the Single Judge. This question has been condensed by us from the argument made by Shri N.L. Jain on behalf, of the wife-respondent, as a last ditch effort to the utmost stretchable limit by contending that having regard to the fading recorded by the Single Judge the exercise to re-examine the issue on the basis of the evidence on record should not be undertaken at this level particularly in the context of the fact that this is a special appeal under Section 18 of the High Court Ordinance. In our opinion, there are many answers to this argument. Section 18 of the High Court Ordinance does not forge any such fetters expressly. It does not oblige this Court to fold its hands and become a helpless spectator even when this Court perceives that a manifest injustice has been occasioned. If and when the court is satisfied that great injustice has been done it is not only the 'right' but also the 'duty' of this Court to reverse the error and the injustice and to upset the finding. There is no warrant to import the concept of the conclusiveness of divorce on the utterance of "Talaq" in interpreting the scope of the jurisdiction of this Court under Section 18. What really matters is whether the finding is manifestly an unreasonable, and unjust one in the context of evidence on record. It is no doubt true that this Court will unlock the door opening into the area of facts only sparingly and only when injustice is perceived to have been perpetuated. But, in any view of the matter there is no jurisdictional lock which cannot be opened in the face of grave injustice,
15. Though we have enlighted above, we are of the view that explanation calls for a more intrinsical examination that has been done hitherto. It can be said that where while exercising the powers under Section 96 C P.C. the approach of the single Judge to the case has not been proper and his findings are unsupportable on the materials of record, the interference is warranted under Section 18 of the High Court Ordinance. We find comfort and strength from the decision of the Apex Court in Sarju Prasad v. Jwaleshwar, AIR 1951 SC 120 wherein it has been held that the High Court was wrong in thinking that it would detract from the value to be attached to a trial Judge's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. Taking comfort from the observations in Netherlandsehe Handel v. R.M.P. Chettiar Firm, AIR 1929 PC 202 the Supreme Court observed that the duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the Court outweights such finding.
16. In a special appeal under Section 18 of the High Court Ordinance, it would be open to the Court of Appeal to consider all the points to be investigated for the determination of the question of the correctness of the decree under appeal and such consideration could not be limited to any particular question of fact or law; though on a question of fact, this Court of appeal would be slow to interfere unless glaring circumstances warrant it. It is also open to the Division Bench on an appeal under Section 18 to examine the findings of fact arrived at by the judgment appealed, and in doing so, this Court, where necessary may interfere with the findings of fact which should not ordinarily be interfere unless they are manifestly erroneous and against the weight of evidence on record as has been laid down in Kedarnath v. Sita Ram, 1960 RLW 328 and in another case reported in ILR:(1960) 10 Raj. 1304 which were followed in consonance with the decisions reported in AIR 1916 Cal. 843 and AIR 1949 EP 342.
17. Thus, having benefitted by the enlightments derived from the decisions referred to above, we are of the view that the jurisdiction of this Court in a special appeal under Section 18 of the High Court Ordinance has to be exercised sparingly. But, that cannot possibly mean that injustice must be perpetuated. The interference in the findings arrived at by the Court given while exercising the powers under Section 96, C.P.C. is only warranted when the findings of fact arrived at by the trial Judge or not based on the impressions he gathers from the demeanour of witnesses, and in that situation it becomes the duty of the appellate Court to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances. Now, we must conclude by condensing our view that this Court in a special appeal under Section 18 of the High Court Ordinance may determine the question of the correctness of the decree under appeal considering all the points and such consideration could not be limited to any particular question of fact or law which has wrongly been determined by lower appellate Court; and the interference with the findings there on and be possible when the findings are manifestly erroneous and the weight of evidence on record.
18. Now, the decks are clear.
19. On carefully perusing the pleadings and the evidence and also the findings recorded by the trial Judge and Single Judge of this Court, we are fully satisfied that the Single Judge was entirely in error in recording a finding adverse to the appellant husband on the ground that the wife separated from him with reasonable cause and that the said cause still exists; and further that the wife cannot therefore, be said to have committed the matrimonial offence of desertion. The finding is contrary to the evidence and is palpably unreasonable and was based on an entirely wrong view of law in disregard of the law declared by the Supreme Court in respect of the circumstances in which adverse inference can be drawn. Serious errors have been committed in reaching this conclusion which we would detail out a little latter. At this stage, it would be advantageous to mention the issues framed by the trial Court, the findings arrived at by it on those issues, and then the points urged by the single Judge and his reasonings to reverse the decree of divorce.
20. The issues framed by the trial court --
(1) Whether the petitioner is entitled to a decree of divorce on the grounds (of cruelty and desertion) mentioned in paragraphs 4 to 8 of the petition ?
(2) Whether the wife took away the entire jewellery, and if so, whether the petitioner is entitled to recover it from her ?
(3) Whether the petition for divorce is not maintainable during the pendency of the petition for restitution of conjugal rights?
(4) Relief?
We may mention that the Single Judge decided the appeal only on issue No. 1.
21. On issue No. 1 the trial Judge founded that the husband did make accusations against the chastity and moral character of the wife but those accusations do not amount to such conduct on the part of the husband as could legally terminate the matrimonial offence of desertion committed by the wife. The trial judge also came to the conclusion that the said accusations were the outpourings of an angry and grieved husband who was desperately trying to persuade the wife to come back to him and these accusations did not have much impact on the wife as she herself did not attach much significance to those accusations for she bad later agreed to go back to him during the course of hearing of the petition for divorce. As regards desertion of the husband by the wife, the trial Judge held it without reasonable cause and his consent for a continuous period of not less than two years immediately preceding the presentation of the petition, i.e. from August, 1974 to December, 1976, being fully proved.
22. It was contended before the Single Judge on behalf of the wife, that the trial Judge was in error in holding that the husband's accusation of unchastity and loose moral character against her did not have any impact on her and that if the evidence is read as a whole and properly appraised. It leaves no manner of doubt that she was compelled to separate from the husband on May 17, 1974, due to the latter's constant naging and a persistent inquisition, as it were, regarding her alleged unchastity and sexual immorality prior to the marriage.
23. For the aforesaid contention, the Single Judge firstly considered a letter, dated May, 7, 1974, written by the husband to the wife's elder brother, Girdhar Gopal (since deceased) which was produced in evidence in previous petition for restitution of conjugal rights which disappeared from the court file, so, on request of the wife secondary evidence was allowed by the trial Judge, as taken note of this fact by the Single Judge, in his judgment under appeal, and Narindar Gopal and Dr. Meera Mathur brother and sister respectively of Girdhar Gopal deceased and the wife to prove the contents of that letter. The Single judge observed and stated that both of them deposed that they had read it and recalled that the husband had made filthy allegations therein that the wife had sexual relations with one C.P. Mathur before the marriage. The Single Judge reproduced a portion of the contents of the letter which Narinder Gopal was able to reproduce from memory. Some other portions of the letter have also been quoted by the Single Judge.
24. The Single Judge also took note of the finding recorded by the trial Judge to the effect that desertion by the wife had in fact commenced on May 17, 1974. According to the Single Judge, the trial Judge seemed to think that if a spouse leaves the matrimonial home with the consent of the other spouse by obtaining such consent on a false pretext such conduct on the part of the separating spouse must automatically amount to desertion regardless of the fact that the real motivating force which led to the separation was reasonable are not. Then the Single Judge went on to observe that this is view not legally tenable because, in the definition of the desertion, it envisages that the desertion of the petitioner by the other party to the marriage must be without reasonable cause and without the consent or against the wish of such party. The Single Judge, therefore, on the basis of the letters written by the husband came to the conclusion that the letters hardly need any further comments and it may, therefore, be straightway held that it certainly provided the wife just and reasonable cause for separation from the husband. Therefore, it held that such separation cannot by any means be treated as 'desertion' as defined in the Explanation to Sub-section (1) of Section 13 of the Act.
25. Supporting the judgment of the Single Judge Shri N.L. Jain learned counsel for the wife contended that looking to the contents of the letter dated May 7, 1974, there was a reasonable cause for the wife for separation from the husband and this conduct of the wife does not amount to desertion. To substantiate his above contention, Shri N.L Jain cited a decision of the Delhi High Court Dharam Dev v. Raj Rani, AIR 1984 Delhi 389. In that case, the petitioner took the respondent to her father's house only about year and months after their marriage and left there but he did not bother to bring her or call her back thereafter he was not at all happy with her and somehow he wanted to get rid of her. It is noteworthly that the petitioner had not owned the paternity of the son born to the wife about 16 years before filing the petition for divorce and he had not been able to reconcile himself to the idea that he was his son, he had manoenured to leave the respondent at her parental house and then forget all about her. In these circumstances, the Court observed that the continued residence of the respondent at her parents house can, by no stretch of reasoning, be said to be without just cause. In our view, the fact of the present case are entirely different to the one cited by Shri Jain.
26. In our view, the decision of the present appeal hinges on the point as to whether in the present case, the desertion is found not proved against the wife by the Single Judge and for that purpose we will have to consider as to in what circumstances, the offence of desertion can be said to have been proved, so; here we would refer the decision of the Supreme Court in Bipinchandra Shah v. Prabhawati, AIR 1957 SC 176, wherein it has been observed as under:--
"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 in 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 separation. If, in fact, there has been a separation, the essential question always is whether that act could .. be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus diserendi co-exist. But it is not necessary that they should commence at the same time. The defacto separation may have commenced without the necessary animus diserendi 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".
27. What emerges from the above provision of law is that the desertion is a matter of inference to be drawn from the facts and circumstances of each case which can be 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.
28. As stated earlier, the Single Judge on the basis of the letter written by the husband came to the conclusion that the contents of letter certainly provided the wife just and reasonable cause for separation from the husband and thus such separation cannot be treated as desertion as defined in the explanation to Sub-section (1) of Section 13 of the Act.
29. That takes us to turn upon to see as to whether the Single Judge was justified in arriving at such a conclusion (supra); and for this purpose, we will have to see the contents of the letters written by the husband and the evidence of both, the husband and wife, because, the evidence taken as a whole does not reasonably justify the conclusions of the Single Judge mere so there is improbability arising from proved circumstances which have not been viewed by the Single Judge as to the purpose which is revealed by the acts or by conduct and expression of intention both anterior and subsequent to the actual acts of separation.
30. The portions which have been taken note of by the Single Judge find place in the letter (Ex. 1). In this very letter, the husband has stated that:
"it has taken me about 9 months of persuation and coaxing of my wife to tell me the whole truth of her third disease. She told me things piecemeal and full confession I got only on 1st May, 1974, I have taken about a week to think over the whole affair and matter again and again to avoid taking any hasty and percipitate action in the heat of the moment or being misled by emotions into something regrettable."
Further, the husband went on saying, "You can imagine my horror on getting full confessions from my wife and can also imagine her condition under the circumstances".
At one stage, the husband said, "I hope and wish that you will read the letter very carefully and calmly and not do anything on the spur of the moment and will not be misled by emotions. It's a very delicate issue and needs all wisdom, quanimity and peace and balance of mind to decide as to what can be done in the matter. I have no desire to hurt or harm anyone physically or mentally and if I do so, through this letter inadvertantly, kindly excuse me graciously for the same realising my own state of mind. I have good will for all and ill-will for none and I sincerely hope and pray that nothing bad will result out of this letter for anyone whoever he or she might be".
From the above said material available in the letter, it can be inferred that the husband never intended to desert his wife and it was only a Sort of information for the doubts which crept in his mind. The intention and conduct of the husband has clearly been explained in his subsequent letter (Ex 2) dated July 19, 1974 addressed to his wife wherein he stated that:
"we are happy to note that you are willing to come here now. I had recently to be out of Kota and so far last some days I am not keeping very well and as such you are wanted here at the earliest, under the circumstances I wish that you please come down here as soon as you can with some one from your family without waiting for me to come and fetch you from there".
In the same letter, the husband has also stated :
"Please bring with you as many investigation result and details of yours as possible including last year's also full clinical examination reports of Gynaecologists and Physician. More details available the better."
Then, in letter dated 26-7-1974 the husband said,--
"Mother and father both are unwell these days. Mother is having cough and fever and father is down with toothache."
"... We are awaiting news of your welfare. Please do write your progress and intimate us when you are likely to be back in Kota so that we may reply accordingly those who every day question us and want to know when you are coming from Delhi."
Further, he said in this letter (Ex. 3) dated 26-7-1974, "You can realise our embarassment at these times when I, as your husband by marriage do not know any thing about your return programme and am not very sure whether you are thinking of returning here at all or . have some intention and plan otherwise."
". . . When you are returning back to Kota. You may intimate your programme to them directly to save my embarassment if you care at all about it". "
The appellant in his letter dated 28-7-1974 (Ex. A-10) informed the wife about his operation of hernia, and he had desired the wife to be present by his bed-side during the operation of hernia and for this purpose, he had said in this letter;
Before deciding on and fixing the date of my operation, I would like to know very frankly as to whether you are likely to return to Kota or not ?
If you are not coming back here then I need not wait for fixing the date of operation. If you are coming here, please let we know now soon and on what date should we expect you here ?
"... If you are returning here please do so in about a week or so failing which I may be compelled to undergo the operation in your absence which I hope you should not mind. If I get operated in your absence I will have to face enquiries about your absence even on my operation."
. . . Please see if you can co-operate with me accordingly failing which I will have to go through all this by myself."
Even, the husband in his another letter dated 30-7-1974 went on requesting the wife to the extent that, "Please be kind to me now that I am also a patient and have to undergo an operation the only delay about which is to know your decision and programme so that the date may be fixed accordingly."
31. From the above quoted contents of the said letters, it does not appear that the husband ever intended to live separately rather his motive and desire were that he wanted to live with his wife and that was the reason that in all the letters the husband persistently was making requests to the wife to return at Kola on one pretext or the other. Thus, the Single Judge was in error in finding that the husband is guilty of expulsive conduct over a long period of time compelling the wife to separate from him.
32. Though, the Single Judge held that in view of the facts mentioned in the letters of the appellant, it certainly provided the wife just and reasonable cause for separation from her husband. A question arises as to whether the intention of the wife was of the same nature, as is the observation of the Single Judge.
33. Admittedly, letter dated May 7, 1974 was received by the brother of the wife prior to the. date when the wife left the matrimonial home. As admitted by the wife in her statement, she left matrimonial home on May 17, 1974 and that she left the home for seeking treatment of suspected fibroid uterine tumour.
The stand taken by the wife was that it was only after the marriage that the petitioner husband who is an experienced medical practitioner discovered that she was suffering from this growth and that it needed treatment and surgery. Therefore, according to her, the wife left the matrimonial home at the instance of the husband who advised her to go to Delhi for treatment with his introductory letter addressed to the All India Institute of Medical Sciences, New Delhi requesting that he would have no objection to any investigation or operative procedure for her treatment.
34. But, at the same time, the wife took a different stand while saying that after the discovery of this growth in her uterus, the husband began to mistreat her and that his subsequent conduct revealed to her in retrospect that he had been acting in a pre-planned and calculated manner to get rid of her and to create fake grounds for getting the marriage dissolved. Not disputed by the wife, she was having trouble in her uterus and she in her statement as well as reply has admitted these facts. In these circumstances, we fail to understand as to on what reasons, she complained that the husband began to mistreat her and the subsequent conduct revealed to her in retrospect that he had been acting in a pre-planned and calculated manner to get rid of her and to create fake grounds for getting marriage dissolved.
35. The wife in her statement has stated that on May 17, 1974, she was taken to Delhi by her brother who received letter dated 7-5-1974 of the husband the contents of which were also brought to her notice by her brother at Kota and even after knowing the contents of the said letter she in her reply has stated that she went to Delhi for treatment and the husband had given letter addressed to the Medical Institute, New Delhi. It has nowhere been stated by her that she left matrimonial home because of the vexatious allegations levelled against her in the letter dated 7th May, 1974. It is thus clear that the case set up by the wife was not to the effect that she left the matrimonial home because of the vexatious allegations levelled against her but, the case was that she left the home for the purpose of treatment. In view of these circumstances, this can be said and inferred that though the husband did make accusation against the chastity and moral character of the wife but, his intention was not to hurt and harm anyone physically or mentally, as he had expressed in his letter dated 7th May, 1974 even he has gone saying to the exent that if he does so, through that letter inadvertantly, he begged pardon and excuse graciously for the same realising his own state of mind. The husband also desired in this letter saying that he has good will for all and ill-will for none and then he sincerely prayed that nothing bad would result out of this letter for anyone whoever he or she might be. Thus, the accusation does not amount to such a conduct on the part of the husband as could legally terminate matrimonial offence of the desertion committed by the wife. The said accusations were the outpourings of an angry and grieved husband who was desperately trying to persuade the wife to come back to him. These accusations did not have much impact on the wife who herself did not attach much significance to those accusations for she had later agreed to go back to him during the course of hearing of the petition for divorce. If the evidence is read as a whole and properly appraised, it appears that she was not compelled to separate from the husband on May 17, 1974 due to the latter's constant nagging and a persistent inquisition as it were, regarding her alleged unchastity and sexual immorality prior to the marriage, as was the case set up by the wife at the time of appeal before the Single Judge.
36. The wife in her statement before the trial Court has stated :
"my brother, Girdhar Gopal and sister, Dr. Meera came at Kota to take me (wife) at Delhi".
She further stated, "my brother Girdhar Gopal came to Kota to take me to Delhi due to the reason that letter dated 7-5-1974 written by the husband was received by her brother".
But such a stand was dot taken by the wife in her reply of the petition or during the course of trial before the trial Court. As stated earlier, 'the reason given by the wife for leaving matrimonial home was of her treatment. Thus, in our view, it is a case where desertion by the wife in fact commenced on 17-5-74 when she left matrimonial home with husband's consent obtained on false pretext must automatically amount to desertion regardless of the fact that the real motivating force leading to separation was reasonable or not as is fortified by the following piece of evidence of the wife :--
"Main Delhi gayee uske baad mere pati ne mujhe Kota bulaane ke liye 3 4 patr likhe. Maine unhein likha ki meree beemaree ka investigation chal raha hai."
"Yah sahee hai ki mere pati ne inke harnia ke aapreshan kee soochna mujhe dee thee."
"Yaa sahee hai mere pati ke aapreshan ke samay main Kota nahin aayee thee kintu iska kaaran mera swayam un dinon beemar hona tha jiskee soochna inhein de dee thee. Un dinon mujhe bukhaar aata thaa. Maheena bhar se bukhar aa raha thaa. Bukhaar mera ek maheene main theek ho gayaa tha. Uske baad bhee main yahaan isliye naheen aayee ki inhonne mere par vaad daayar kar diyaa thaa."
"Yah sahee hai ki 13-3-76 ko mere pad mujhe le jaane ko taiyaar the kintu we court se le jaana chaahte the par main yah chaahtee the ki we Delhi se le jaayen."
"Yah sahee hai ki laanchan lagaane ke baad bhi mere pati ne kai baar mujhe Kota bulaane ko likhaa thaa."
"Sasur kee mrityu ke baad main aapreshan se swasth hone ke baad bhi sasuraal nahin aayee thee. Donon baadon mein 4 baar Kota aayee hoon."
"Yah sahee hai ki maine mere pati dwaaraa mere charitr sambandhi laanchan lagaaye jaane ke baad bhi jawaab mein yah likhaa hai ki main mere pati ke saath jaane ko taiyaar hoon."
The wife has also admitted that she did not go to Kota even after the death of her parents-in-laws. From the above quoted piece of evidence from the statement of the wife, it is clear that the wife did not take any serious note of the so-called vexatious allegations levelled by the husband in his letter which has been made the basis by the Single Judge to hold the conduct of the husband as expulsive, apart from others, which according to the Single Judge had compelled the wife to separate from the husband which in our view, is manifestly erroneous; and otherwise the wife could have refused to go to Kota and live with the husband but, we may state that all the time, the stand taken by the wife was that she was always ready to go and live with the husband at Kota. This by itself is sufficient to observe that the wife did not attach much significance and condoned the so called wrongful act of the accusations against her chastity and moral character.
37. It is admitted fact that the wife did not attend the husband .when he was seriously ill and was being operated for hernia disease and further that at the time of serious illness of his parents, the wife never cared to come to Kota and that too even after the death of her parents-in-laws to pay homage to the departed soul. This shows the adamancy of the wife and her conduct as it was hot expected from any wife to any caste. Moreso, during treatment of the wife for her uterus, the surgery was to take place much latter in March, 1975, she could have easily and conveniently come back to the matrimonial home at Kota and resume cohabitation with the husband which she did not resume inspite of repeated and urgent requests by the husband through letters. In these circumstances, inference can be drawn against the wife that she deserted the husband without reasonable cause and in this view of the matter, the learned Single Judge fell in error in holding that there was reasonable cause with the wife for separation from the husband and such a separation cannot by any means be treated as desertion. Ignoring other piece of evidence of an irrefutable nature much stress was led on the evidence of accusations in the letter of 7th May, 1974 which the Single Judge further held to be repeated and persistive which in our view is manifestly erroneous, because, in every communications, the husband has given much stress on the return of the wife and he was much anxious about her treatment. Even assuming for the sake of arguments that the husband has made accusations against the chastity and moral character of the wife in the letter of 7th May, there can be little doubt that it was expulsive for compelling reason; and in our view, the emotions of the husband in that letter which is manifest and weighty, cannot be ignored because, the husband has hope and wished that the letter would be read carefully and calmly and would not be misled by emotions as according to him, it was a very delicate issue and needed all wisdom, quanimity and peace with balance of mind to decide as to what can be done in the matter. According to this, it can safely be inferred that the husband never intended to accuse the wife persistently and he had no desire to hurt or harm anyone. Even the husband in that letter went by saying, "if I do so, through this letter inadvertantly, kindly excuse me graciously for the same realising my own state of mind." This shows the repentance on his part and he was not expulsive in nature. And, as rightly observed by the trial Court, the said accusations were the outpourings of an angry and grieved husband who was desperately trying to persuade the wife to come back to him. In our opinion, these accusations could not be held to have compelled the wife to separate from him whereas the reason was her adamancy and detriment not to return for ever as is manifest from the fact of intentional permanent for-saking and abandonment of the husband who was even ready to take her during reconciliation proceedings but she was detriment to her condition that she should be taken from Delhi and not from the Court. The wife is a well educated woman apparently and similarly is the status of the husband. In these circumstances, the husband could expect the presence and company of his wife during his sickness as well as on the sad demise of his parents, apart from she was expected to have served her husband during his sickness and operation hours being present by his bed side as well as his old parents. The conduct of the wife showing attitude of indifference is sufficient to infer that the wife left matrimonial home with pretext and intention that she would never return to her matrimonial home and this circumstance is also sufficient to infer that the wife deserted the husband.
38. Admittedly.-the respondent-wife leaving the matrimonial home on 17-5-1974 did not at all return, even after the repeated requests with emotions by the husband. In these circumstances, as stated above, it can be said that the wife abandoned matrimonial home with intent to bring cohabitation permanently to an end and thus deserted the husband by not accepting the offer of the appellant which is also a circumstance to infer desertion is from the side of the wife and the appellant husband cannot be held to be responsible for the aforesaid separation.
39. On a look at the judgment of the trial Court as well as the Single Judge, it appears that attempt was made for reconciliation but the same failed On 1-9-1988, the time was granted to both the sides to find out whether there is any possibility of reconciliation between the parties or of narrowing the controversy between them But, on subsequent date October 5, 1988, the learned counsel for the respondent conceded before this Court that there is no possibility of any reconciliation. Consequently, final arguments were heard in the case. However, the matter does not end there. It is trite that men may lie but circumstances do not. In the instant case, the circumstances eloquently speak of what must have happened. It is a case where the wife has been living separately from her husband leaving her matrimonial home on 17th May, 1974, for last about 14 years on the pretext of treatment of her uterus; and in the reconciliation proceedings, it was stated by her or on her behalf that she was not prepared to have any reconciliation talks with the husband. It is thus clear that it is a case where the marriage has irretrievable broken. On an appreciation of the entire evidence on record, no other view is possible. The finding recorded by the Single Judge is based on an entirely wrong view of law in disregard of the law declared by numerous decisions, in respect of the circumstances in which the adverse inference can be drawn. Under the circumstances, the finding recorded by the Single Judge must be unhesitatingly set aside, restoring the judgment and decree granting divorce in favour of the husband and against the wife, of the trial Court.
40. Having dwelt on the crucial aspect of the case, we felt it necessary to discuss a point relating to the grant of alimony, on which during the course of the arguments, learned counsel for the parties were directed to address because the Court while passing any decree of divorce is fully competent to order that other spouse shall pay to the applicant for her or his maintenance and support, such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as having regard to the respondent's income or other property if any. On the aforesaid direction, both the learned counsel desired to give written arguments on the point of alimony. Learned counsel for the appellant-husband has submitted written arguments and no argument on behalf of the wife has been filed.
41. According to the written arguments of the appellant-husband, the respondent-wife is working as Senior Teacher for the last about 25 years, presently is getting emoluments not less than Rs. 2,500 per month inasmuch as being about 49-1/2 years of her age, she has more than ten years of service before superannuation as superannuation age being sixty years in Education Department. Further, the written arguments make a mention that the respondent-wife is well off and financially well secured moreso her claim of maintenance pendente lite was rejected by the trial .. Court. As regards the husband, it has been stated in the written arguments, that he is working as Medical Superintendent, Divisional Railway Hospital, after income tax and other deductions, gets about Rs. 3,000 per month. Being 57 years of his age, he is to retire in February, 1990, and does not own any immovable property apart from no other source of income. The appellant's contention further is that after retirement he shall have to survive on post-retirement benefit alone. The parties got married on 11-6-1973 and did not live together even for one year and has been living separately for last more than 14 years. Lastly, the appellant stated that in view of the fact of retirement of the appellant in near future, it would not be possible for him to make monthly or periodical payment of maintenance to the respondent. In view of the aforesaid circumstances, the offer has been made on behalf of the appellant in the written arguments, that the appellant is prepared to pay a sum of Rs. 25,000 (Rupees twenty-five thousand only) as gross amount towards permanent alimony to the wife in the event this Court dissolves marriage of the parties by decree of divorce and awards permanent alimony.
42. Considered, we are of the opinion that the wife should be paid Rs. 25,000 as permanent alimony which is ordered to be paid by the husband within a period of six months.
43. In the result, we allow this appeal and set aside the judgment and decree dated 14-12-1981 passed by the learned Single Judge of this Court and uphold the judgment and decree dated 23-9-1978 passed by the District Judge, Kota. And, we allow permanent alimony of Rs. 25,000 in favour of the wife to be paid by the appellant, within a period of six months.
44. No costs.