Andhra HC (Pre-Telangana)
Kosuri (Chandana) Dhanum Kumari vs Kosuri Venkata Vara Prasad on 22 August, 1997
Equivalent citations: 1998(3)ALD608, 1997(5)ALT805, I(1998)DMC83, AIR 1998 ANDHRA PRADESH 225, (1998) 3 ANDHLD 608, (1998) 1 RECCIVR 179, (1997) 5 ANDH LT 805, (1998) 1 MARRILJ 116, (1998) MATLR 216, (1997) 2 HINDULR 620, (1998) 1 DMC 83
Author: J. Chelameswar
Bench: J. Chelameswar
ORDER Lingaraja Rath, J.
1. The wife is in appeal assailing the decree of divorce granted to the husband by the Family Court, Visakhapatnam. The marriage between the parties took place on 25-6-1989 at Machilipatnam. At the time of the marriage and presently also, the respondent was and is an employee of the Steel Plant at Viskhapatnam and was staying in the quarters allotted to him by the Steel Plant. At the time of the marriage he was holding the post of Assistant Manager in the Steel Plant and it appears from the record that subsequently he was promoted as Deputy Manager. The appellant at the time of the marriage was doing research work in the Andhra University preparing for her Ph.D. It is the admitted case of the parties that the distance between the Steel Plant and the Andhra University is about 30 to 35 kms. It is also their admitted case that a condition had been agreed upon between them before the marriage requiring the respondent to take up a house near the Andhra University and the couple to live together there so as to facilitate the appellant pursuing her research career. Admittedly, the condition could not be complied with, it being the version of the respondent that he had tried to locate a house near Andhra University but it was not selected by the appellant, and the appellant contending that the respondent had not taken a house at all. The fact remains that both of them could not live together but the respondent was coming to the house of the elder sister of the appellant near the University, where the appellant was staying. It is on record that the respondent on occasions more than one disencouraged the respondent to meet her or to have correspondence with her through letters and telegrams. The petition for dissolution of the marriage was filed on 23-9-1992 on the ground of desertion by the respondent.
2. The pleadings of the respondent in support of the relief was that the marriage had not been consummated as the appellant has postponed the same until the submission of her thesis; after the marriage the appellant did not accompany him to Visakhapatnam but came there later on but without coming to him, she proceeded to the house of her sister.
He had fixed up the marriage reception party on 3-9-1989 with ail of his friends and had invited the appellant but she did not come and gave a telegram that she was not able to attend the function but that she may attend it on the following Monday. For that reason lie had to cancel the programme and arrange it according to her wish but to that function she came as a guest and left immediately after the function. On 1-12-1989, she addressed a letter to the respondent asking him not to come to her sister's house and in another letter dated 15-12-1989 she asked him not to see her. She also issued telegrams asking him not to address letters or telegrams to her. The respondent had informed the matter to the parents, brother and sister of the appellant but there was no result. He hence sought the divorce.
3. The appellant contested the case on pleadings, as are essential to be stated here, that she is always willing to join the respondent; that he being under the influence of inimical people and on the ill advise of others is avoiding her; and that the marriage, contrary to the contention of the respondent, was consummated on 25-8-1989 at the house of the parents of the appellant. She had not been treated with love and affection by the respondent, that the respondent has not made any effort for restitution of conjugal rights, that it is he who has deserted her and that she was not willing for divorce.
4. The appellant examined herself as RWI and her brother as RW2. The respondent on his side while examining himself as PWL examined two of his friends as PWs.2 and 3.
5. The learned Family Court on an analysis of the evidence, both oral and documentary, came to the conclusion that though the marriage was consummated and that the claim of the respondent to the contrary was not correct, yet the appellant had conducted herself as unbecoming of a wife in rudely treating the respondent sending letters and telegrams to him not to sec her or to establish any contact with her and that even after her thesis was submitted for Ph.D. in January, 1991, she had no reasonable excuse not to join the respondent and that there could not be any necessity for her to continue to live near the Andhra University even after January, 1991. With such findings, he concluded that there was a desire to severe the relationship which is apparent from the conduct of the appellant for which reason the decree of divorce was granted.
6. The law is far too well settled that mere living apart by the parties is not desertion. Desertion indicates a state of mind in which a party guilts' of the act must indicate either in express words or by conduct to put an end to the relationship. The event must be specific as a limitation period is stipulated under the provisions of Section 13(1)(b) of the Act itself that such conduct and state of mind of the offending party must continue in the minimum for a period of two years so as to enable the other party to a decree of divorce. As to what constitutes desertion has been the exposition by the Apex Court in many pronouncements of which reference may be made to Lachman v. Meena, . In the case an earlier decision, Bipin Chandra v. Prabhavali, was referred to which had cited with approval a passage from the Halsbury's Laws of England as follows :
"In its essence desertion means that intentional permanent for saking and abandonment of one spouse by the other without that others consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, mere being no general principle applicable to all cases."
In the same decision it was further explained that "If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. 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...."
Speaking on the question of burden of proof in the matter, the latter decision went on to explain as follows ;
"It is settled law that the burden of proving desertion - the "'factum" as well as the "animus deserendf" - is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy' the Court that the desertion was without just cause."
Though the law is such, yet we do not find from the judgment of the learned Family Court that position to have been kept in view while deciding to allow the divorce. After referring to the evidence on either side, no conclusion was reached as to whether there was animus deserendi on the part of the appellant and if so when that animus started. All that was observed was "Therefore, the mind of respondent is constant from the beginning to be inconsistent with her marital obligations. This conduct continued over a long period even after completion of the research is nothing but to severe the relationship. The intention is apparent from the conduct of the respondent to avoid the petitioner without any reasonable cause. In the circumstances, the point is decided in favour of the petitioner."
7. When the learned Judge came to the conclusion that the conduct of the appellant continued over a long period even after completion of the research, it was necessary to have reformed a finding as to whether from the date of the animus deserendi, the period of two years had elapsed. If it was his conclusion that the animus deserendi was evident from the date of the marriage itself, the opinion that the conduct continued over a long period even after completion of the research is susceptible to the meaning that die finding of desertion was given only because there was no attempt on the part of the appellant even after her completion of the research to join the respondent. Animus deserendi also could not have been there from the day of the marriage itself as the learned Judge himself found die marriage to have been consummated which fact was claimed by the appellant to be on 25-8-1989. It was hence necessary for him to fix die date precisely as to when the Animus deserendi commenced.
8. Admittedly, the appellant was a research scholar doing her Ph.D. at die time of marriage. Admittedly also, the couple had agreed to set up a house near the University. The stipulation is understandable as the distance between the University and the Steel Plant is 30 to 35 kms and it would have been very difficult for the appellant to take the journey every day by bus to cover the distance. Even if the dispute regarding die fact as to whether the respondent did make search for a house near the University and even located one but that the appellant did not agree to the selection is not resolved, yet, the fact remains that such a house was not found and hence it may have been necessary for the appellant to continue to stay at her sister's house near the University to complete her studies. Since there is so, it is necessary to analyse as to whether, even if she had continued to stay in her sister's place, had either by her conduct or by her correspondences exhibited a desire to put an end to the marriage. To establish such fact, great reliance is placed by Mr. Veerabhadrayya, the learned Counsel for the respondent on Exs.Pl to PS.
9. Ex.Pl is a telegram issued by the appellant no 31-8-1989 intimating the respondent of it being not possible for her to attend the Sunday party since she had work on that day and asking the respondent to come on Monday, if it is convenient to him. The actual words used are -
''Not possible to attend on Sunday parly. I have work on Sunday. If convenient come on Monday... Kumari"
This telegram was issued in connection with the marriage reception party which had been arranged by the respondent. This document by itself does not show any element of desertion. It is the allegation of the respondent that even on the deferred day of the party, the appellant had come to attend the party as a guest and departed immediately after the party was over. That also is not a display of an attitude of desertion since it was necessary for her to live in her sister's place and it was only natural for her to have gone back immediately as she had to cover 30 to 35 kms. It is also not in the evidence of the respondent that he had requested the appellant to stay back for the night and leave in the morning. She had also been accompanied to the' party with the son of her sister and hence it can be imagined that she had necessarily return.
10. The next letter is Ex.P2 which does not carry any date but it is agreed between the parties to have been sent somewhere in November, 1989. The letter was to the following effect, "Mr, Prasad, Received your greeting. The main thing I want to inform you if you have any work with me, then only you come and meet me by informing earlier, that to after 4.00 p.m. of Sundays.
Dhanum Kitmari G,"
The letter having been put to her in the box. she stated that "after marriage PW1 also sent a new year greetings for 1990 January. Sunday is a holiday for me. I wrote a letter to PW1 stating not to visit me unless he got any work with me under Ex.P2." Though it has to be said that the letter Ex.P2 is far from a courteous reply to agreeting, yet it is difficult to consider it as an expression of declaring an intention to permanently separate. As she has explained, she had asked the respondent to come to her after 4.00 p.m. on Sundays which is a holiday for her. Though such a restriction or the tone of the restriction may not be very endeavour, yet the fact remains that this was not a declaration of separation and on the contrary a bidding to the appellant to come at an appointed time on Sundays.
11. Next is the letter Ex.P3 which is again undated but is agreed to by the parties to be of 15-12-1989. The letter is to the following effect.
"Prasad garu, Received your letter and noted the content. I don't want to see any body. Please do not come.
Dhanum Kumari G."
This letter was also explained by the appellant saying "Some time his family members visited me once. I wrote letter Ex.P3 after the visit of P.S. 1 's parents. All the letters covered under Exs.P2, 3 and 4 were only after receiving letters from PW1". Earlier, in her deposition she had also stated that "one day PW1, his parents, his father's elder brother and his wife and one Ranga Rao - mediator visited me at my sister's house at China Waltair and wanted me to write a letter stating that I have no connection with PW1. I refused to do so. Thereupon, they sent me a lawyer's notice. Then I got issued a reply. Before giving reply, PW1 met me and stated that he wanted to get the above mediators and family members. Then I wrote him a letter not to get anybody.'' This evidence finds corroboration from the evidence of PW 1 in which he stated that he used to go to the respondent when she was staying at Satya Prasad buildings at China Waltair. Further, he said ''it is true that myself mediators K. Ranga Rao, my parents and my senior paternal uncle and his wife went to Satya Prasad buildings." The respondent of course stated that Ex.P3 was not written in that connection. But there is no reason not to accept the explanation of the appellant of the context in which Ex.P3 was written. As a matter of fact, the version of the respondent is intringically not correct. It is his case that his mother wanted to visit the appellant when she was with him. The respondent wrote a letter to the appellant in that connection and Ex.P3 was the reply to his letter. But, the visit of the respondent's mother is stated to be subsequent to the visit of the elders and probably in 1991. But, since it is accepted by the parties that this letter Ex.P3 was dated 15-12-1989, the version of the respondent cannot be correct. If the explanation of the appellant is accepted, it has to be said that Ex.P3 was a letter written in the context of the visit of the ciders and demanding her to give a writing her of not having any connection with the respondent. For such reason this also cannot be taken to be a writing satisfying the requirements of Section 13(l)(b). Again, even if the letter taken to have been written in the context is explained by the respondent, that the appellant did not want to meet his mother, yet it cannot be said as an evidence of animus deserendi.
12. Ex.P4 is also an undated letter of the appellant to the respondent in which she wrote "Received your letter. If you want to go for Sankranti you go, but I do not want to go anywhere." This was explained by the appellant that it was true that PW1 asked her to pay a visit to his parents house for the Sankranti festival of 1990 and that she had stated that she was not willing to come. The appellant of course stated that it was not true that Ex.P4 was written in connection with the Sankranti festival as she apprehended danger. He did give any explanation as to in what connection Ex,P4 was written. But, it was not the case of the respondent mat she did not like to go to his parents house in connection with Sankranti festival as she apprehended danger. Ex.P4 was, without doubt, written in connection with the Sankranti festival. This intringically shows that it was a reply letter of the appellant to the respondent in which he must have requested her to accompany him for the Sankranti festival but herself declining to do so. This by itself also does not establish any such animus.
13. The last in the line of correspondences, and on which great stress is laid by Mr. Veerabhadrayya, is Ex.P5 which is a telegram issued on 9-1-1990 by the appellant by the respondent in the following words.
"Do not come do not give telegrams- none onwards -Hanuma Kumari"
This is argued tenaciously as unmistakably showing the animus deserendi. It is the argument that when the wife sents a telegram commanding the husband not to come, not to send any telegram, none onwards, it could only mean that she wanted nothing of the husband and wanted to free herself from the marriage bondage. There is ofcourse no explanation to the telegram in the evidence of the appellant. As to in what context it was sent is also not forthcoming from the records. The telegram by itself, as it appears to us may not be an exclusive declaration of indication to permanently separate. But even accepting the telegram that it was so, yet, the telegram having been issued on 9-1-1990 and the appellant having unequivocally declared her intention on 30-7-1991, in her reply to the registered notice issued by the respondent on 16-7-1991 calling upon the appellant to join him within ten days, that she is prepared to join him provided a house is taken up near the Andhra University. To the contents of the notice and the reply we shall come later but the feet remains that on 30-7-1991 she affirmed that she wanted to join the respondent and lead a conjugal life. The period between 9-1-1990 and 30-7-1991 is less than two years and hence even accepting the submission of Mr. Veerabhadrayya of Ex.P5 being a declaration of separation, yet the so called desertion is not for the requisite period.
14. It however remains to be seen, as has been submitted by Mr. Veerabhadrayya, whether the cumulative effect of Exs.Pl to P5 would exhibit the intention to separate from the date of P1 itself and even before that i. e., from the date of marriage. We are not pursuaded to accept the submission for variety of reasons. Firstly, as we have expressed earlier, since the marriage was admittedly consummated in August, 1989, there could not be any desertion by the appellant till that date. In Ex.Pl itself she unequivocally declared that she was prepared to come to the reception party and in fact she did come. That was on 31-8-1989. Ex-P2 has been already seen. It was a bidding to the respondent to come only after 4.00 p.m. on Sundays. This was agreed to be in November, 1989 though we have a feeling that this must be at a later date as it was a reply to 1990 new year greetings. The other correspondences considered in their own context also do not cumulatively add on to produce a different result to pursuade us to come to the conclusion of she having exhibited the animus deserendi.
15. The burden of proof to prove the fact of desertion lies on the person who alleged it. As was explained by the Supreme Court even when the wife, when she is a deserting spouse, does not prove any just cause for living apart, yet, the husband has still to establish the absence of any just cause for her to live separately. In the present case, admittedly, the appellant was intending upon pursuing an academic course. At the time of the marriage she was pursuing Ph.D. course and hence a condition was agreed upon between the parties of finding a house nearby the Andhra University to facilitate her to continue her research while leading a conjugal life. The respondent having accepted such condition, it cannot be open for him to insist that she should have joined him at his steel plant quarters before she submitted her thesis. The refusal of the appellant to live with the respondent in his quarters, as is pleaded, would not constitute a desertion by her in the context of the circumstances. It is however, argued by Mr, Veerabhadrayya that while that may be true, yet since her thesis was submitted in January, 1991, nothing prevented her thereafter to join the respondent. But, the learned Counsel is unable to show anything on record that between January 1991 and 16-7-1991 the respondent made any efforts to bring the appellant to his house. It appears from the evidence of the appellant that from 1992, she is working as a Research Associate for a project of five years getting a gross salary of Rs.2,640/- per month. Evidently, she has taken up the Associateship after the issue of the notice by the respondent. In her evidence, she stated that she is willing to join the respondent after completing the present project which may be complete by the end of December. 1996.
16. Before hearing this case, since we found that an attempt for reconciliation between the parties has not been made, we called upon the parties to appear in person. Both the parties appeared on 23-6-1997. The appellant, to the question of the Court unconditionally agreed to join the respondent and stay with him. The respondent, however was unwilling to accept the appellant saying that in the long years of gap between the marriage and that day, he had suffered much humiliation and set back in his relationship with the appellant. The Court recorded an order as follows :
"We feel that because of the gap involved and living apart of the two parties, necessarily frigidness and cold attitude towards the wife has developed. The decree of divorce has been stayed by order dated 17-2-1996. We as such direct the appellant to join the respondent in her marital home for a month and make all attempts in pursuance of her submission before this Court to lead a happy life. The respondent is directed to permit the appellant to join him in his house."
The matter was again listed on 29-7-1997 when it was found that the previous order had not been carried out. It was stated by the appellant that she had tried to contact the respondent over telephone at his office to ascertain the mode of her joining. The respondent stated that he had asked her to telephone to his residence, but that she did not telephone to his residence. Since there was difference between the parties as to their coming together, they were left in the Chambers of the senior Judge of the Bench from 2.30 p.m. to 4.00 p.m. to talk over the matter between themselves. At 4.00 p.m. the appellant being asked, stated that she was willing to go with the respondent from the Court itself to join him. The respondent submitted that though the appellant was willing to join him and stay with him, yet he has distrust of her and is not able to take her or live with her even on trial basis. Because of such development, the order were passed as follows :
"Since the respondent has disclosed his complete unwillingness to take the appellant, we feel that there is no purpose in pursuing to achieve reconciliation between them. The attempt hence is closed.'' It would hence appear that though the appellant had stated in her evidence that she would join the appellant at the end of her project which may be in December, 1996 and which project must have ended by now, and she has also expressed her unequivocal desire to join the respondent unconditionally and lead conjugal life, but that the respondent has not responded. Thus, the feet remains that from 30-7-1991, the appellant has been expressing her desire to remain with the respondent if he takes up the house near the University and thereafter has made it clear that she is willing to join him unconditionally.
17. Mr. Veerabhadrayya placed reliance on two cases viz.. Goya Pmsad v. Bhagwati, and Surinder Kaur v. Gurdeep Singh, to contend that it is the duty of every Hindu wife to join her husband under his roof aid not put forth a condition, without his consent, to live apart and that if such is the fact, the desertion of the wife is established.
18. So far as the first citation is concerned, the principle purported to be decided therein is that where a wife accepts a service without husband's consent at a place different from the husband's home and fails to relinquish the job and live with the husband inspite of his calling upon her to do so, it would amount to wite's withdrawal from the Company of the husband without reasonable excuse. The other citation is also similar of similar purport. With the facts that the wife had left husband's home on the pretext of going to her parents house but had not returned and instead had taken up a job at Ludhiyana whereas the husband was staying at Chandigarh. Since she did not return at the husband's request, he filed a petition for restitution of Conjugal rights which was dismissed for default as a compromise had been settled between the parties that she would join him at Chandigarh. Since she did not so act, again a petition for restitution of conjugal rights was filed in which the Court ruled, on the facts, that she had withdrawn from the Company of the husband without reasonable excuse. So far as the case at hand is concerned, the facts are wholly different. It is not the case where the appellant-wife had remained away from the husband without his consent or has taken up a job elsewhere against his desire. The respondent had himself consented to the wife's pursuing her research in the Andhra University and had agreed to take up residence nearthe University to facilitate her prosecution of the studies. He, has himself admitted about his such consent. Once consent was given for the wife to take up any assignment and she puts herself under some obligation or takes up a particular avocation, it cannot be conceded that the husband can call back the wife at any time giving a go bye to her obligations and if she is unable to join him, it has to be construed as her having withdrawn from his Company. The two cases cited are under Section 9 of the Act whereas the present case is one for divorce on the ground of desertion. There would be difference between the two concepts. A decree for restitution granted but not complied with would form ground for divorce. If the wife with the consent of the husband has placed herself under obligations to others in the nature of taking up some service, it would be inconsistent to hold that she can repudiate her obligations on the asking of the husband and must join back him or else face a threat of dissolution of marriage. Similar is the case where wife is pursuing sonic academic career with the consent of the husband and she is unable to for sake that pursuit immediately at the call of the husband. Indira Gangele v. Shailendra Kumar Gangele, is a case apt on the issue. In that case a decree of divorce had been granted at the instance of the husband on the ground of desertion of the wife. The learned single Judge found that it was the husband's own evidence that last time when he had gone to Faizabad to bring the wife back, she informed him that she was pursuing her law studies and would not be able to join him. It was not disputed that the wife had successfully completed her law studies which indicated that her excuse was not fake but was real. Taking such view, the Court observed as follows:
"In such a situation, she was not expected to give up her studies and join the respondent. The appellant had, in her written statement,, made an unconditional statement that she was willing to go and stay with the respondent. She had also repeated this in her statement on oath. The respondent has been resisting any such effort. Under the circumstances, it cannot be said that the appellant had been staying away from the respondent with an intention to bring the matrimonial relationship to an end. The facts, on the contrary, indicate that she had earlier not joined the respondent for sufficient cause and thereafter the respondent has not been willing to keep her."
In the present case also, we are told that the appellant had obtained her Ph.D. She has indicated her willingness unconditionally to join the husband. But, it is the respondent-husband who is not willing to accept her which he candidly stated before us.
19. Mr. Veerabhadrayya brings to our notice the reply sent by the advocate of the respondent on 9-9-1991, marked as Ex.P7 to the reply of the appellant on 30-7-1991 to the notice issued by the respondent on 16-7-1991 respectively marked as Ex.Rl and P6. In that notice, it was stated on behalf of the respondent that he had been earlier prepared to stay with the appellant near Andhra University but she has not selected and fixed up the house. He was not able to stay out of town any longer as the plant was then working and his presence may be required any time in the day. If the appellant was willing to stay with the respondent and also continue her Ph.D. from the plant quarters she can do so as there are plenty of transport facilities from Steel plant to Andhra University. It is argued that the respondent had thus called upon the appellant to join him in his house. In that communication it was stated on behalf of the respondent that the appellant had the responsibility to select and fix up the house, a tact which is contrary to the evidence on both sides. But, it is true, as the reply shows, that the respondent put up to the appellant to come and join him in his house and asked her to continue her pursuing to Ph.D. from there. The respondent was probably mis-informed regarding the Ph,D. as it has come out in the evidence that the Ph.D. thesis had been submitted in January, 1991. All the more, by such time the acrimonious feelings between the parties had commenced with exchange of notices and replies. We are in agreement with Mr. Veerabhadrayya that after her thesis for Ph.D. was submitted, the appellant could have joined the respondent at his house or else if she had to pursue her further career, that was to be with mutual discussion and convenience of the parties. But as we have already noticed, there is no evidence on record that after January, 1991 till 16-7-1991 no effort was made by the respondent to take back the appellant to his house. Also, in spite of her having entered into a fresh project for five years she has expressed her unconditional willingness to join the respondent. In these circumstances it would be wholly inconsistent to uphold the plea of desertion. Also, as has been found earlier, even if Ex.P5 is taken as a letter indicating desertion, yet the time for filing the application was not over. Yet, the appellant had herself indicated inner reply dated 30-7-1991 of her willingness to join the husband which would completely destroy the concept of desertion.
20. In the result, the judgment of the Family Court is set aside and the petition for divorce is dismissed. The CMA is accordingly allowed.
21. In the circumstances, parties are directed to bear their own costs.