THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE B.N.RAO NALLA Civil Miscellaneous Appeal No. 2111 of 2002
22-04-2010
Smt. Rekha
B. Susheelendra
Counsel for the Petitioner: Sri M. Papi Reddy
Counsel for the Respondent: Sri M. Sreenivas
:JUDGMENT:- (Per Hon'ble Sri Justice B.N.Rao Nalla)
This Civil Miscellaneous Appeal is directed against order dated 08.04.2002 passed in O.P. No. 273 of 1999 by the learned Judge, Family Court, Hyderabad, whereby the petition filed by the respondent-husband under Section 13(1)(ia)(ib) and (iii) of the Hindu Marriage Act, 1955 (for brevity "the Act") for dissolution of the marriage, was allowed. The wife filed this appeal. For the sake of convenience, the parties are referred to as they are arrayed in O.P. No.273 of 1999.
The marriage between the petitioner-husband and the respondent-wife was solemnized on 09.07.1989 as per Hindu customs and rites. Immediately after the marriage, the respondent joined him at matrimonial home at Ramkoti in the joint family house of the petitioner consisting of his parents and his younger brother and started insisting the petitioner on setting up separate family. While so, during pregnancy, the respondent went to her parents' house and gave birth to a baby-girl on 09.08.1990, and later she stayed hardly for four months with the petitioner at Ramkoti. In December, 1990, she abruptly left the company of the petitioner for her parents' house with the child even without informing him. When the petitioner went to the respondent to take her back, she refused to join him. In March, 1991, the petitioner was allotted Government quarters at Bhanur campus of BDL defence unit, where she joined him on 26.3.1991, but again started insulting him in the presence of his friends and superiors commenting that the quarters is situated in jungle area, and left his company within five days. Having no alternative, the petitioner vacated the quarters and came back to his house at Ramkoti and stayed with his parents waiting for his wife to turn up, but she did not come. Then, he filed O.P. No.228 of 1991 for divorce. However, on her assurance to live with him peacefully, and on the advice of the elders and in the welfare of the child, compromise effected between them, and he got dismissed the O.P. on 18.12.1992 and shifted his residence to Nallakunta, where she joined him on 05.03.1993 and lived hardly for nine months, but with no change in her attitude and with cruel treatment. She never even attended cooking, and she used to sleep separately, go out without informing him, come back home during late hours, pick up quarrels, shout loudly causing disturbance and nuisance to neighbours and hit him with chappals even before outsiders. Therefore, the owner of the house at Nallakunta asked them to vacate the house, as such, the petitioner shifted his residence to another house at Jambagh at her request, and lived together for three months, where also she continued the same ill-treatment and abruptly left his company along with the child on 05.04.1994 without informing him. Therefore, the petitioner filed O.P.No.1170 of 1994 for divorce, which was transferred to another Court and renumbered as O.P. No. 1043 of 1995, but again at the intervention of elders, the matter was compromised, as a result, it was dismissed on 25.6.1996. In spite of her assurance and mediation and withdrawal of O.P. No.1170 of 1994 by the petitioner for the second time, she did not join him nor did she talk to him nor allow him to the see the child. As she continuously deserted him since 05.04.1994 with animus deserende, the petitioner filed O.P. No.273 of 1999 seeking divorce. The respondent filed counter affidavit inter alia denying the allegations made in the O.P. and stated that the parents of the petitioner are hale and healthy. After the marriage, she stayed with the husband in the joint family consisting of the petitioner's eldest sister and her daughter, his parents, his brother's family, and his second and third sisters till 01.02.1991, on which day, when her father was going to Bombay for three days, she requested the petitioner to allow her to go to her parents' house at Jambagh to stay with her mother, who was staying alone, for which, the petitioner created a big scene though ultimately agreed to send her. In December, 1991, the petitioner visited the house of her parents, and with an intention to set up separate family, both of them searched for a house for rent and the landlord fixed rent, and the petitioner promised the landlord to come again and pay advance, but he did not turn up. She states that she is always ready and willing to join him to lead happy marital life, but he is not providing her any opportunity. The petitioner knows that she was doing M.Phil while they were living together at Nallakunta, and thereby, she was attending classes in the morning and returning home by 4.00 p.m. Again, she joined him at Jambagh and lived for four months during 01.12.1993 to 05.04.1994. She states that the petitioner was not paying the rents regularly to the landlord before the stipulated date of 10th of every month, and on 05.04.1994, during her absence, the petitioner came along with his mother and one Jayaprakash started packing all the belongings. When the respondent was at Vivek Vardhini College, where she was working, the landlords' wife sent word to her, thereupon, the respondent rushed to the house and objected the petitioner to packing the material, but he kept silent, and his mother and Jayaprakash asked the petitioner to accompany them, and the petitioner, though he said that he was unwilling to go, went with them with some luggage. Then, the respondent alone continued to stay in that premises for one more month hoping that the petitioner would join her, but he never came back. She states that she never herself deserted him nor ill-treated him during their stay nor he suffered cruelty in her hands much less during 09.07.1989 to 09.04.1999. On the premise of the aforesaid pleadings of the parties, the trial Court framed the following point for determination:
"whether the petitioner-husband is entitled to divorce or any other alternative relief against the respondent-wife?"
The petitioner-husband, who was examined as PW1, deposed that immediately after the marriage was consummated, she joined him at his joint family house at Ramkoti where they lived together for six months. Later, she picked up quarrels by demanding him to set up separate family away to his parents. When he could not concede her request, she used to go to her parents' house at Hyderabad without his knowledge. In November, 1990, after baby-girl was born to them, she started quarrelling with him to set up separate residence. In December 1990, in his absence, she left for her parents' house without intimating him. She joined him only on 26.03.1991 in Bhanur, where he was allotted Government Quarters. She stayed there for 4 to 5 days, and insulted him in front of his colleagues and superiors, stating that the quarters is situated in a jungle area and not convenient for human dwelling and left him for her parents' house. He waited for three to four months, but as she did not turn up, he filed O.P. No. 228 of 1991 seeking divorce, and on the persuasion of the elders and relatives, and on her promise to join him, he withdrew the O.P. on 18.12.1992, but she did not join him as promised. In March, 1993, he took rented premises at Nallakunta where they stayed for a period of eight months, during which, she treated him cruelly and used to beat him with chappals. Because of the nuisance, their house owner got them vacated. In November, 1993, he shifted his family to a rented house at Jambagh, which place is near her parents' house, where also she used to quarrel with him. On 05.04.1994, she left his house without his knowledge, and as she did not turn up, he filed O.P. No.1170 of 1994 which was transferred to another Court and renumbered as O.P. No.1043 of 1995. Even after the O.P. was filed, she did not join him. On 25.06.1996, he withdrew the case on her promise to live with him during reconciliation proceedings, but even after 25.06.1996, she did not join him. In cross-examination, he denied a suggestion that he vacated the house at Jambagh in the absence of the respondent and at the instance of his mother.
PW2, the father of PW1, deposed that the respondent was frequently going to her parents' house and was returning only in the nights at her choice. Even after joining the petitioner with the child, she stayed only for a few days, and left for her parents' house without the consent of either the petitioner or his father. The petitioner set up separate residence at quarters, but she lived hardly for five days, and insulted him and left for her parents' house. He further deposed that himself and his wife are aged and sick as they were hospitalised thrice, and required some assistance from his son, PW1, who asked his mother to live with him at the joint family house so that he would take care of them. In cross-examination, he deposed that he left it to the wisdom of PW1 if he wants to stay away from him despite his ill-health. RW1, the respondent-wife, deposed that after the marriage, the petitioner and the respondent lived at his parents' house at Ramkoti, and by then, their family consisted of his parents, three sisters including daughter of the eldest sister and his younger brother. She states that they treated her well initially for a few months, but later, there was hostile attitude towards her. After her marriage, she secured a job in Samata Investments as Assistant, but resigned it in March 1991, in view of the fact that her husband shifted their family to Government Quarters at Bhanur. She states that she did not insult the petitioner before his colleagues and superiors, etc. while they were at Bhanur. Later, they stayed at Nallakunta in a rented house for eight months. After vacating the house at Nallakunta, they lived for four months in a rented house at Jambagh. On 5th of April, 1993 at about 3.30 p.m., while she was at College, PW1's mother and one Jaiprakash (his friend), as per their pre-plan, they took away samans including all her belongings along with PW1 to his parents' house, without paying rent and the same was informed by her landlady. Thereafter, she stayed in the premises for one month more expecting PW1's arrival, but he did not turn up. She denied a suggestion that herself and her parents did not allow the petitioner to stay at her house or see the child for more than five minutes. On 17.12.1997, PW1 came to her and told her that he searched for a rented house near her parents' house, however he did not turn up later. She is willing to stay with PW1 provided he sets up separate family, and she cannot live jointly with his family members as she was being subjected to acute harassment by not allowing her to use telephone, bathroom, etc. or even to go to her parents' house, and further, his parents are not willing to his coming to her parents' house to see her. In cross-examination, she denied a suggestion that she hit her husband with chappals in the presence of outsiders during their stay at Nallakunta. She states that on 25.06.1996, she went to her parents' house from the Court, accompanied by her husband till Jambagh, Hyderabad by Auto who stated that he would return, but did not come again.
RW2, who is the relative of RW1, stated that though the petitioner was ready to stay with RW1 in the house at Jambagh, his mother and Jayaprakash took him to his paternal house. At that time, RW1's sister and her husband came to RW1's house and requested the petitioner to live with the respondent amicably, but of no use.
RW3, who is the owner of the house at Jambagh, deposed that when the respondent went into her portion and asked her mother-in-law to get out from the house and not enter again, she came to his house and called her sisters, brothers-in-law, and other relatives, over his telephone, and left the place taking the petitioner along with her. Thereafter, the petitioner never came to the house and the respondent stayed for one month and vacated the house by paying the rent.
On the basis of the aforesaid evidence of the parties, both oral and documentary, the Family Court allowed O.P. No.273 of 1999 by order and decree dated 08.04.2002. Challenging this order, the respondent-wife has preferred the present C.M.A.
The learned counsel for the appellant-wife has contended that the wife has no animus deserendi towards her husband, but the trial Court has erred in dissolving the marriage between the petitioner-husband and the respondent-wife on the ground of constructive desertion which is not a separate ground for divorce as contemplated under the provisions of the Act, and prays this Court to set aside the order under appeal.
Having heard the learned counsel for both the parties, the only question that arises for determination in this appeal is whether the O.P. No. 273 of 1999 filed by the petitioner-husband, which was allowed, is justified in the facts and circumstances of the case?
The petitioner filed O.P.No. 273 of 1999 seeking dissolution of the marriage between the petitioner and the respondent mainly on the grounds of desertion and cruelty on the part of the respondent.
As could be seen from the order impugned in this appeal, the ground of cruelty is not proved.
Insofar as the ground of desertion is concerned, this Court, in Kosuri (Chandana) Dhanum Kumari Vs. Kosuri Venkata Vara Prasad1 held that mere living apart by the parties is not desertion. The desertion indicates a state of mind in which a party is guilty of the act must indicate either in express words or by conduct to put an end to the relationship. The Court further held that that burden of proof of the fact of desertion lies on the person who alleged it. The essential ingredients of the offence in order that it may furnish a ground or relief are;
i) the factum of separation;
ii) the intention to bring cohabitation permanently to an end - animus deserendi;
iii) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period of two years immediately preceding presentation of the petition for divorce. Thus, though the expression "desertion" is to be widely interpreted and understood, these essential conditions have to be established. In the light of the above legal position, we have to examine the pleadings and the evidence of the parties to determine the issue.
From a careful analysis of the pleadings and the evidence on record, it is obvious that the petitioner made several allegations against the respondent-wife such as she used to leave him on several occasions for her parents' house without informing him even after the child was born to them, and in spite of his best efforts to take her back to make her lead matrimonial life, she did not agree to join him. It is further stated that even though he shifted his residence from one place to another for the sake of the respondent, she lived with him occasionally, but did not continue to stay with him. The main ground of desertion as alleged by the petitioner against the respondent is that the respondent left the petitioner on 05.04.1994 disliking the company of the members of his family with them together wherever they reside, and since then, she has not joined him, and the petitioner also made in clear terms both in the facts and in the evidence that he would not stay away from his parents even though the respondent deserts him. The evidence of PW2, the father of the petitioner, is on the same lines as that of the petitioner. Even the pleadings made both in the counter affidavit and in the evidence of the respondent-wife are to the effect that she lived with the petitioner for a certain period of time though not incessantly, and the main ground for her deserting her husband and living with her parents on several occasions is that the members of the petitioner's family are living together with them, which is not liked by her.
Whether the husband and the wife of Hindu background should or should not live together in the husband's joint family house, which may or may not cause aversion to the wife to lead matrimonial life with the husband, is a question to be decided depending on the facts and circumstances of the case, more particularly on the conduct and nature of the wife/husband, but in the instant case, the circumstances that led the petitioner and the respondent living separately since 05.04.1994 cannot be taken as tenable grounds to form an opinion of constructive desertion, as observed by the trial Court, for granting a decree for dissolution the marriage. When the grounds are not proved to their logical conclusion and both the parties are to be equally blamed, the Court cannot grant decree for divorce on the ground of constructive desertion. It is a matter of common sense that when both the parties are to be blamed, the Court should try for their reunion rather than making them live apart. In any case, constructive desertion is neither a separate ground for granting divorce nor it statutorily forms part of the ground of desertion.
In the light of the above discussion, we are of the opinion that though the factum of separation of the petitioner and the respondent was occasionally proved, there are instances when the petitioner and the respondent lived together as is clear from the evidence both oral and documentary, and at that juncture, there is not even inclination of animus deserendi on the part of the wife to permanently cease the cohabitation and marital relation, and these facts and circumstances would also probablize that there is no love lost between the spouses. Moreover, the petitioner-husband appears to have stuck to his nature not to cause hurt to the feelings of the wife, but so as to cause reasonable apprehension in the mind of the wife to live with him peacefully by adjusting with his family members.
On an appreciation of the entire evidence on record as well as the findings of the Family Court, we are satisfied that there is no evidence on the part of the husband to establish the desertion within the aforesaid three essential ingredients, and in fact, the very establishment of animus deserendi on the part of the wife is absent in the present case. The petitioner-husband also miserably failed to establish the allegation of cruelty meted out by his wife by adducing substantial legal evidence. Therefore, the finding recorded by the Family Court granting decree for divorce on the ground of constructive desertion, in our considered opinion, is not justified and the same is liable to be set aside.
Hence, the Civil Miscellaneous Appeal is allowed setting aside the order, dated 08.04.2002 passed in O.P. No. 273 of 1999 by the learned Judge, Family Court, Hyderabad. No order as to costs.
