Kerala High Court
Rajendran.R. S/O N.Raghunathan vs S.Preetha on 23 July, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939
Mat.Appeal.No. 18 of 2009 ( )
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AGAINST THE JUDGMENT IN OP 1925/2003 of FAMILY
COURT,THIRUVANANTHAPURAM DATED 23-07-2008
APPELLANT(S)/PETITIONER::
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RAJENDRAN.R. S/O N.RAGHUNATHAN,
MADHU BHAVAN, UPPALAM ROAD, STATUE,
THIRUVANANTHAPURAM.
BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.GEORGE MATHEWS
RESPONDENT(S)/RESPONDENT;:
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S.PREETHA, D/O INDIRA,
VALIYAVILA VEEDU, ARAMPUNNA, ELAMPAL P.O.,
PUNALUR, KOLLAM.
R1 BY ADV. SRI.R.ARUN RAJ
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14-
06-2017, THE COURT ON 25/07/2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.
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Mat.Appeal No. 18 of 2009
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Dated this, the 25th day of July, 2017
J U D G M E N T
Shaffique, J.
This appeal is filed by the petitioner in OP No.1925/2003 challenging judgment dated 23/7/2008 by which the petition filed by him for divorce was dismissed by the Family Court.
2. The short facts arising in the appeal are as under and the parties are described as shown in the petition unless otherwise stated.
3. The petitioner married the respondent in 1987 as per customary rites and ceremonies prevailing among Hindu community. He contended that, from the very beginning of the marital life, there was discord and she was behaving in a quarrelsome manner. She also refused to perform duties expected of a normal wife. She was not affectionate to him and their Mat.Appeal No.18/2009 -:2:- children. The respondent was treated for mental disorder. Respondent thereafter left the company of the petitioner and went to her residence along with children without any reason. Thereafter, she filed a maintenance case in the year 1989. The matter was compromised and she expressed her willingness to reside with the petitioner and again they started living together. Thereafter the second child was born on 23/2/1992. After the birth of the second child, her attitude became worse. Petitioner took a rented building and started living there. Thereafter also, respondent started creating troubles. She used to state that she never wanted the petitioner as her husband and she was always humiliating him in front of his relatives and friends. On 5/9/1997, she again left the company of the petitioner and the minor children. She was not interested to see the children and all efforts for reunion turned futile. She had withdrawn from the company of the petitioner with an intention to break the marital status. Alleging that she has deserted the petitioner for more than 6 years, he sought for a decree of divorce.
4. The respondent filed objection denying the allegations. It is contended that, on 5/9/1997, the petitioner had taken the Mat.Appeal No.18/2009 -:3:- respondent to his brother's house and left her there. Her parents died several years back and she is a helpless lady without any source of income. According to her, she never deserted the petitioner and the contrary allegation was incorrect. According to her, it was the petitioner who had denied her the family life, which itself amounts to cruelty on his part.
5. The question considered was whether the respondent had deserted the petitioner. Evidence consisted of the oral testimony of PW1 and PW2 on behalf of the petitioner and RWs 1 to 3 on behalf of respondent. Respondent placed reliance upon Exts.B1 to B6 documents also. The Family Court found that a case of desertion had not been made out and he is not entitled for a decree as sought for.
6. While impugning the aforesaid judgment, learned counsel for the appellant submitted that the marriage has been broken since 5/9/1997 when the respondent left the matrimonial home even without taking care of the minor children which clearly amounts to a case of desertion and there is no reason why a decree of divorce should not be granted in the matter. According to him, all the ingredients of desertion had been made out in the Mat.Appeal No.18/2009 -:4:- case. There is no dispute about the fact and as held by the Constitution Bench in Lachman Utamchand Kirpalani v. Meena alias Mota (AIR 1964 SC 40) that for the offence of desertion, in so far as the deserting spouse is concerned, two essential conditions must exist. One is the factum of separation and secondly, the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned. One is absence of consent and the second is absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention of animus deserendi. In its essence, desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. In fact, it is a total repudiation of the obligations of marriage. The inference regarding the essential conditions is to be drawn from the facts and circumstances of each case. It is also held that heavy burden lies upon a petitioner to prove the essential conditions of desertion and it is to be proved beyond reasonable doubt and as a rule of prudence, evidence of the petitioner shall be corroborated. It is also held Mat.Appeal No.18/2009 -:5:- that the proof required in a matrimonial case is to be equated to that in a criminal case. A Division Bench of this Court in Narayanan v. Sreedevi (1989 (1) KLT 509) had occasion to consider the scope and effect of desertion coming under Section 13(1)(b) of the Hindu Marriage, Act, 1955. It is held at paragraphs 6 and 7 as under:-
"6 . The true content and import of desertion in clause l(b) of S.13 of the Hindu Marriage Act imparts a definite idea of complete and endless abandonment of one spouse by the other. This must be without the other's consent and without justifiable cause. Two essential conditions attached to the notion of desertion are: (1) the factus of separation and (2) the intention to bring marital life permanently to an end animus deserendi. Desertion is always a matter of inference to be drawn from the facts and circumstances of each case. There may be often cases where a spouse is forced under certain peculiar circumstances by the conduct of the other spouse, to live separately or to stay away. In such a case there is no legal desertion to constitute a ground for divorce. The simple reason is that the said situation has been brought about by the act of the spouse who had misconducted himself or herself.
7 . Desertion as a ground for divorce was added Mat.Appeal No.18/2009 -:6:- to S.13 by the Marriage Laws (Amendment) Act, 1976. Before the amendment, it was only a ground for judicial separation. Now the ground of desertion for claiming divorce is qualified as desertion for a continuous period of two years immediately preceding the presentation of the petition. The Explanation makes it clear that the expression `desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause, and without the consent and against the wish of such party and it includes the wilful neglect of the petitioner by the other party to the marriage. The section read along with the explanation makes it abundantly clear, that in its essence it signifies the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage vide (Lachman v. Meena A.I.R. 1964 S. C. 40). The explanation gives emphasis to the quality of permanence as one of the essential elements differentiating desertion from voluntary separation for good reasons. It is very important to note that in deciding what constitutes desertion, one of the first matters for consideration is the intent of the offending party in addition to separation or withdrawal from cohabitation."
7. Another Division Bench of this Court in Jayakrishnan G.Nair V. Salini Prasanna Balachandran Nair [2013 (2) KHC Mat.Appeal No.18/2009 -:7:- 268 (DB)] had occasion to consider the scope of desertion and it is held at paragraphs 12 and 13 as under:-
"12. Keeping in view of the aforesaid discussion we have considered the allegation of alleged "desertion" in this case. The principle of desertion is the abandonment of one spouse by the other with out any consent of the other. In actual desertion renunciation of matrimonial home as a fact is necessary. Similarly, actual separation with an intention to desert is essential. A person may go out and stay at various places for business, study, job and other various purposes in his day-today life and may be spent two years or more. It may not amount to desertion since there is an intention to return. The oral evidence of PW1 and CPW1 shows that both of them never intended to abandon each other with the factum of "Animus deserendi". It is admitted by PW1 in his evidence that at the time of marriage he was a student in Germany and after the marriage, the respondent resided with him for three months in Germany on a tourist visa. After higher studies, he obtained a job in Singapore and thereafter, he stayed there from 1997 onwards. The respondent joined with the appellant at Singapore only after finishing her classes. In the year 1998, a baby was born to them. He also attended the 'Noolukettu ceremony' at Thiruvananthapuram and thereafter, PW1 returned to Singapore. While residing in Singapore in the year 2000, one of the kidneys damaged due to T.B and he underwent curative treatment for one year. Ultimately, the Mat.Appeal No.18/2009 -:8:- right kidney was removed at AIMS at Kochi on 20.9.2001. RW1 admitted her Stay in Germany and Singapore. She admitted the delivery of female child on 15.2.1998. Her evidence shows that when PW1 requested to renew the permanent residency at Singapore and for getting re-entry permit she again visited Singapore for ten days. PW1 deposed that there was no matrimonial company at that time and she kept away from him. Both of them lived there as strangers all these ten days, and according to PW1, from that point, the relationship became strained and broken. Most of the above narrations reflect the marital life of both parties. It is admitted fact that the burden of proving all aspect of desertion is always on the appellant. Here, the facts highlighted are not sufficient to prove the actual desertion.
13. In this context we may refer to one decision of the apex court discussing the principle of desertion. In Bipinchandra Jaisinghbai Shah v. Prabhavati (AIR 1957 SC 176) in which the Supreme Court observed as follows:
"..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 Mat.Appeal No.18/2009 -:9:- aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to 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 deserendico- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, Mat.Appeal No.18/2009 -:10:- when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court."
It is worth to note the following decisions of this Court in Narayanan v. Sreedevi (1989 (1) KLT 509) and Baby v. Gopinath (1989 (1) KLT 650). In Mat.Appeal No.18/2009 -:11:- Narayanan's case (Supra) this Court considered the meaning of 'desertion' and held as follows:-
6. The true content and import of desertion in clause 1(b) of S.13 of the Hindu Marriage Act imparts a definite idea of complete and endless abandonment of one spouse by the other. This must be without the other's consent and without justifiable cause. Two essential conditions attached to the notion of desertion are: (1) the factus of separation and (2) the intention to bring marital life permanently to an end animus deserendi. Desertion is always a matter of inference to be drawn from the facts and circumstances of each case. There may be often cases where a spouse is forced under certain peculiar circumstances by the conduct of the other spouse, to live separately or to stay away.
In such a case there is no legal desertion to constitute a ground for divorce. The simple reason is that the said situation has been brought about by the act of the spouse who had misconducted himself or herself.
7. Desertion as a ground for divorce was added to S.13 by the Marriage Laws (Amendment) Act, 1996. Before the amendment, it was only a ground for judicial separation. Now the ground of desertion for claiming divorce is qualified as desertion for a continuous period of two years immediately preceding the presentation of the petition. The Explanation makes it clear that the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause, and without the consent and against the Mat.Appeal No.18/2009 -:12:- wish of such party and it includes the wilful neglect of the petitioner by the other party to the marriage. The section read along with the explanation makes it abundantly clear, that in its essence it signifies the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage vide (Lachman v. Meena AIR 1964 SC 40). The explanation gives emphasis to the quality of permanence as one of the essential elements differentiating desertion from voluntary separation for good reasons. It is very important to note that in deciding what constitutes desertion, one of the first matters for consideration is the intent of the offending party in addition to separation or withdrawal from cohabitation.
In Baby's case (Supra) this Court also held thus:-
To constitute an act of desertion two elements must be there on the side of the deserting spouse. Firstly, the factum of physical separation is the sine qua non of desertion. There must also be the animus deserandi to bring co-habitation or the matrimonial consortium to an end. Likewise, so far as deserted spouse is concerned, to constitute desertion, it must be affirmatively established that he was not a consenting party to the desertion by the opposite party. In other words, if it is found that desertion happened on account of the action of the deserted spouse he cannot legitimately adopt the posture of innocence. On the side of the deserted spouse there should not occur any conduct giving reasonable Mat.Appeal No.18/2009 -:13:- cause to the spouse leaving matrimonial house. In a case where desertion is alleged to obtain decree of divorce it must be established that the deserting spouse purposefully kept away from the other party to the marriage with the avowed intention of not having any matrimonial relationship. In Rohini Kumari v. Narendra Singh (AIR 1972 SC 459) the Supreme Court held that desertion within the meaning of S.10(1)(e) of the Act read with Explanation does not imply only a separate residence and separate living but also a determination to put an end to matrimonial relationship and co-habitation. One of the essential elements which differentiates desertion from wilful separation is the quality of permanence. If in a case a spouse abandons the other spouse in a state of temporary passion or anger without intending to cease co-habitation permanently, it will not amount to desertion. In a case where a spouse had left the opposite party's company never to return and with the intention to bring cohabitation permanently to an end, the necessary animus deserandi can be inferred. In a case where physical separation with animus deserandi has been established, certainly, the allegation of desertion stands proved."
8. There cannot be any dispute regarding the propositions stated in the judgments cited above. The question is, whether in the nature of facts available in the case, a case of desertion stands proved or not.
Mat.Appeal No.18/2009 -:14:-
9. The judgment in Lachman Utamchand Kirpalani (supra) may not have application in regard to the rigour of appreciation of evidence in the right of promulgation of the Family Courts Act 1984, the statutory provision of which have considerably reduced the manner in which evidence has to be appreciated especially Section 14, which reads as under:-
"14. Application of Indian Evidence Act, 1872.-- A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872)".
10. The proceedings before the Family Court are based on the rules and procedures prescribed under the Code of Civil Procedure and while considering a matrimonial dispute, appreciation of evidence has to be based on preponderance of probabilities and it has been held so by this Court in Mohandas Panicker v. Dakshayani (2014 (1) KLT 397) which refers to the judgment of the Apex Court in Jayachandra v. Aneel Kaur [2005 (1) KLT 26 (SC)]. Therefore, proof beyond reasonable doubt is not required to prove a case of desertion. However, the ingredients of desertion namely the factum of separation and the Mat.Appeal No.18/2009 -:15:- intention to bring marital life permanently to an end (animus deserendi) has to be proved by the person claiming desertion. PW1 in his evidence stated that even before completion of one year of marriage, respondent had left his company and had gone to her residence at Punalur. Thereafter, she filed a maintenance case. They reunited and the second child was born. At the instance of the respondent, he had taken a rented building and they were staying together. She was not happy with him and behaved in an untowardly manner in order to lower his credit and integrity among his relatives and friends. She left him and the minor children on 5/9/1997 ignoring her duties and with an intention to break the marital life. PW2 is the elder son. He in his affidavit in chief has stated that he was studying in 4th standard in the year 1997 when the mother left them and he had been residing with his father and brother since then. He further states that only 8 years after separation, he and his brother saw the respondent and she had never enquired about them or looked after their affairs.
11. Respondent in her evidence as RW1 alleged that she was brutally manhandled by the petitioner with a demand for Mat.Appeal No.18/2009 -:16:- dowry. That was at a time when the children had gone to school. She was thereafter taken to her house at Punalur and since then she was living separately. She further deposed that it is to avoid payment of maintenance that the petitioner had agreed for a reunion and after the second child was born, 50 cents of land belonging to her was given to the petitioner as gift which he had alienated. Respondent's father and brother had quarrelled with the petitioner in this regard. She further deposed that the petitioner had set fire to a cattle shed belonging to her brother and a complaint was filed before the Punalur Police and a case was taken by the Punalur Police. According to her, she never deserted the petitioner or the children but she was kept away from the children. Several attempts for mediation failed. RW2 is the brother in law of the respondent. He deposed that issues between the couple started when the petitioner's business collapsed and he was demanding more dowry which resulted in the quarrel between the parties. RW3 is the wife of respondent's brother. She deposed that the petitioner had taken the respondent to her house in Punalur and she was left there. The Family Court observed that the parties were separated for about Mat.Appeal No.18/2009 -:17:- 11 years and counselling was attempted even after closure of the evidence. Petitioner was not willing to have a reunion after such a long separation. The Family Court further found that the evidence of RWs 1 to 3 would support the version of the respondent that the petitioner had taken her to her house and therefore it is a case of desertion by the petitioner and not by the respondent. Taking into consideration all the factual circumstances, the original petition is dismissed.
12. The question is whether a different view is to be taken in the facts and circumstances of the case. Learned senior counsel for the appellant submits that the marriage has been irretrievably broken. The original petition is filed after six years of separation. The children were with the petitioner. The wife did not make any attempt to come back to the matrimonial home. The main reason stated by the Family Court was that the petitioner had taken the respondent and left her at her parental home. Of course, she did not make any attempt to come back to the matrimonial home over a long period of 6 years. There is also nothing on record to indicate that the petitioner had taken any such steps. When a wife remaining at the parental home keeps silent for a long period Mat.Appeal No.18/2009 -:18:- without even attempting to see her children and husband or attempting to have a reunion, whether it amounts to an intention to bring the marital life permanently to an end is the moot question. According to us, from such factors, no inference can be drawn regarding the intention to bring the marital life permanently to an end. This is an instance where the husband did not take any steps to bring her back to the matrimonial home. RW2, in his evidence has stated that he and certain relatives had approached the petitioner and had offered to send her to the matrimonial home, but the petitioner did not agree for the same. In cross examination, he further submits that the petitioner was an accused in several cheque cases and he was absconding. Therefore, he did not advise the respondent to take any action against the petitioner. In further cross examination, he states that she did not seek for custody of the children as she was not in a financial position to take care of them. Though a suggestion was made that he never met the petitioner for a re union, according to him, he had met the petitioner and his father several times. From an overall consideration of the evidence adduced by the parties, it is rather clear that both the parties have not taken sufficient steps Mat.Appeal No.18/2009 -:19:- for a reunion. The fact that the respondent was left at her house by the petitioner is proved by the evidence of RWs 1 to 3. The evidence of RW2 cannot be discarded. His evidence clearly indicates that there were attempts for meditation which was not agreeable to the petitioner. Therefore, merely for the reason that they were living separately for a considerable long period and the marriage has been irretrievably broken is not a ground for divorce. Hence, we are of the view that the Family Court was justified in rejecting the plea of the petitioner. The grounds urged by the appellant against the Family Court judgment do not warrant interference by this Court in exercise of appellate jurisdiction.
Mat.Appeal is therefore dismissed.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
ANU SIVARAMAN, JUDGE Rp //True Copy// P.S to Judge