Hindu marriage Act - where even if the contents of the OP filed by the appellant are taken on their face value, no relief can be granted to him. The grounds pleaded by the appellant are that the respondent used to wake up at 9:00 a.m., she was not doing any domestic work, and she was in a moody condition and that she is a chronic patient of asthma. It is ununderstandable as to how these grounds even if taken as true, would amount to cruelty. The version of the respondent is that the house is very small and the family members of the appellant used to watch T.V. after 11:30 p.m., and occasional late awakening was cited, as a ground. She further stated that she was suffering from gyeanic problems, and the appellant and mother-in-law never used to care for her. Instead of taking care of his wife,

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY            
F.C.A.No.45 of 2008
(Judgment of the Bench delivered by
the Hon'ble Sri Justice L. Narasimha Reddy)

29-04-2013

R.Jagadeesh ..Appellant

Smt. R. Renuka ..Respondent

Counsel for the appellant:Sri J. Kanakaiah

Counsel for the Respondent:Smt. Ramani Jonna

<GIST:

>HEAD NOTE:  

?Cases referred

JUDGMENT:Per the Hon'ble Sri Justice L. Narasimha Reddy)  

 The appellant is the husband of the respondent.  Their marriage took place on
23-03-2003, and they were also blessed with a son.  Thereafter, they are living
separately.
The appellant filed FCOP No.259 of 2006 against the respondent in the Family
Court, Secunderabad, under Section 10 of the Hindu Marriage Act, 1955 (for short
'the Act'), for a decree of judicial separation.

It is stated in the O.P. that though they were in good relations for some time,
the respondent was behaving in a peculiar manner, subsequently.  According to
him, the respondent used to wake up only at 9:00 a.m., and was not doing any
household work and she used to be in a moody condition, so much so, that she was
not even noticing the presence of others, around her.  It is also alleged that
the respondent is a chronic asthma patient and was insisting on that the
appellant should set up a separate residence.  The appellant pleaded that on one
occasion, the respondent did not even react, when the T.V. set has fallen upon
the son, right in her presence.  It was also alleged that the respondent refused
to join him, in spite of repeated requests.

A counter was filed by the respondent in the O.P., denying all the allegations.
She stated that though the appellant was in good relation with her, till the boy
was born, he started ill-treating her thereafter, particularly after returning
from Tirupati.  She stated that hardly she was left with any privacy, and the
family members used to watch T.V. even late in the night, up to 11:30 p.m.,
forcing her to remain without any sleep.  She stated that though she was
extending all her cooperation to the other family members, such as, mother and
sister of the appellant, all of them have collectively
ill-treated her, and ultimately sent out from her matrimonial abode.

The respondent filed FCOP NO.357 of 2006 in the same Court against the appellant
under Section 9 of the Act.  Almost the same pleadings were repeated by the
parties.

Through a common order dated 26-10-2007, the Family Court dismissed FCOP No.259  
of 2006, and decreed FCOP NO.357 of 2006.  This appeal is filed against the
order and decree in FCOP No.259 of 2006.
Heard Sri J. Kanakaiah, learned counsel for the appellant and Smt. Ramani Jonna,
learned counsel for the respondent.

Though there were two OPs between the same parties, and they were disposed of
through a common order,
the appellant has filed appeal against the order and decree in one OP, i.e.,
FCOP No.357 of 2006.  In other words, the order and decree in FCOP No.259 of
2006 became final.  It is well settled principle of law that, if a common
judgment was rendered between the same parties, by the same Court,
in two proceedings, failure to file appeal against one of the proceedings, would
make the principle of res judicata applicable, and the appeal filed against one
such order becomes barred.  This one ground is sufficient to on-suit the
appellant.

Assuming that there is no such bar, in the instant appeal, it needs to be seen,
as to whether the appellant has made out a case for grant of judicial
separation, on the grounds of cruelty.

The appellant deposed as PW-1.   PW-2 is the deceased- mother.  No documentary  
evidence was adduced.  The respondent deposed as RW-1.  It is interesting to
note that her father-in-law i.e. the father of the appellant herein, deposed as
RW-2, and supported the respondent.  No documentary evidence was adduced on her  
behalf.

On the basis of the pleadings before it, the Family Court framed the following
points for its consideration:

In O.PNo.259 of 2006:
1) Whether the respondent subjected the petitioner to cruelty?
2) Whether the respondent is suffering from any mental disorder?
In O.P.No.337 of 2006:
1) Whether the petitioner/wife is entitled to seek restitution of conjugal
rights?

The point that arises for consideration in this appeal is, whether the appellant
has made out a case for grant of judicial separation, on the grounds of cruelty,
on the part of the respondent.
The Act confers right upon a spouse to a Hindu Marriage to seek the relief of
judicial separation under Section 10, or divorce under Section 13.  Though the
legal consequences that flow from a decree for judicial separation, on the one
hand, and divorce, on the other hand, are substantially different, no separate
grounds are stipulated for seeking the judicial separation.  Section 10 of the
Act makes it abundantly clear that the relief under that provision can be sought
by pleading any grounds, that are mentioned under Section 13(1) thereof.  It has
already been mentioned that the appellant pleaded that the acts and omissions on
the part of the respondent constitute cruelty, as defined under Section
13(1)(ia) of the Act.

The acts and omissions of a spouse, to constitute cruelty, and thereby, a ground
for judicial separation, or divorce, must be such that, the other spouse is
unable to bear the amount of pain in the marital life.  It is only when the
spouse, complaining of cruelty, is otherwise innocent, and the objectionable
behaviour and conduct emanated from the other spouse, that the Court can grant
the relief.  If the one complaining of cruelty is, himself, or herself, guilty
of such acts and omissions, and the other party has only responded or reacted,
the contention cannot be accepted, much less relief can be granted.

This is a typical case; where even if the contents of the OP filed by the
appellant are taken on their face value,
no relief can be granted to him.  The grounds pleaded by the appellant are that
the respondent used to wake up at 9:00 a.m., she was not doing any domestic 
work, and she was in a moody condition and that she is a chronic patient of
asthma.  It is ununderstandable as to how these grounds even if taken as true,
would amount to cruelty.

The version of the respondent is that the house is very small and the family
members of the appellant used to watch T.V. after 11:30 p.m., and occasional
late awakening was cited, as a ground.  She further stated that she was
suffering from gyeanic problems, and the appellant and mother-in-law never used
to care for her.  Instead of taking care of his wife,
the appellant has made an attempt to cite the ground of
ill-health, for obtaining the relief.

The Family Court has made an important observation.
The appellant did not complain of any enmity between himself and his father.
The very fact that the father of the appellant had supported the case of the
respondent discloses that it is the appellant, who is guilty of acts of cruelty.
Unfortunately, a tendency has developed, in the recent past, wherein
irresponsible spouses are attempting to break the marriage, just by wishing it
away.  Unless such tendency is curbed, the very institution of marriage and the
importance attached to it, are likely to suffer a serious dent.

The appeal is accordingly dismissed. The miscellaneous petitions filed in this
appeal shall also stand disposed of.  

There shall be no order as to costs.
________________________  
L. NARASIMHA REDDY, J.    
______________________  

K.G. SHANKAR, J.  
Dt.29-04-2013

HEAVY BURDEN LIES FOR TAKING DIVORCE

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.

IN THE ABSENCE OF ANIMUS DESERENDI

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.

¹[16. Legitimacy of children of void and voidable marriages.—(1) Notwithstanding that marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. COMMENTS :- A CHILD BORN OUT OF SEC .11- MARRIAGE - IS LEGITIMATE. WHETHER A CASE IS FILED OR NOT UNDER SEC.11.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. COMMENTS :-BEFORE PASSING DECREE UNDER SEC. 12 , A CHILD BORN /CONCEIVED - IS LEGITIMATE

Nothing contained in subsection (1) or subsection (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.] COMMENTS :- ONLY FOR THE PURPOSE OF THIS ACT THAT CHILD IS RECOGNIZED AS LEGITIMATE CHILD AND SUCH CHILD IS ENTITLED TO INHERIT ONLY TO THE PROPERTIES OF ITS PARENTS BUT NOT FOR OTHERS PROPERTY = GRAND FATHER, GRAND MOTHER ETC.,

COMMENTS

Under S.16, the children of a Hindu born out of second marriage which being wife in the lifetime of the first wife is void, are legitimate and shall be entitled to equal share with the first wife and her children of the deceased husband, including his retirement benefits. (Rameshwari Devi v. State of Bihar, AIR 2000 SC 735(739, 740).

1. Subs. by S. 11, ibid, for S. 16.

17. Punishment of bigamy.—Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 or 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply accordingly. COMMENTS :-THIS SECTION GIVES A SUPPORT TO THE IPC SECTIONS.494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception.—This Section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction,

Nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.—Whoever commits the offence defined in the last preceding Section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

COMMENTS

Where a Hindu embraces Islam and thereafter enters into a second marriage, the first marriage does not automatically gets dissolved, he would be guilty of offence under S. 17 of Hindu Marriage Act read with S. 494 of Penal Code. (Lily Thomas v. Union of India, AIR 2000 SC 1650 (1658)

18. Punishment for contravention of certain other conditions for Hindu marriage.—Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv), ¹[and (v)] of section 5 shall be punishable-

(a) In the case of a contravention of the condition specified in clause (iii) of Section 5, with simple imprisonment which may extend to fifteen days, or with line which may extend to one thousand rupees, or with both;

(b) In the case of a contravention of the condition specified in clause (iv) or clause (v) of Section 5, with simple imprisonment which may extend to one month or with fine which may extend to one thousand rupees, or with both; ²[* * *] ³ [* * *]

1. Subs. by Act 2 of 1978, S. 6 and Sch. for “(v) and (vi)” (w.e.f. 1-10-1978).

2. The word “and” omitted by S. 6 and Sch., ibid. (w.e.f. 1-10-1978).

3. Clause (c) omitted by S. 6 and Sch., ibid., (w.e.f. 1-10-1978). A MINORS MARRIAGE CANNOT BE VOID ABINTIO, IT IS ONLY FINE ABLE.

CHAPTER V

JURISDICTION AND PROCEDURE

¹[19. Court to which petition shall be presented.—Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-

(i) The marriage was solemnized, or

(ii) The respondent, at the time of the presentation of the petition, resides, or

(iii) The parties to the marriage last resided together, or

(iv) The petitioner is residing at the time of the presentation of the petition a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

1. Subs. by Act No. 68 of 1976, S. 12, for S. 19. COMMENTS :-NOW THE SENIOR CIVIL JUDGE COURTS HAVE GIVEN JURISDICTION AND ALSO FAMILY COURTS.WHERE EVER THE RESPONDENT LIVED OR WHERE THE MARRIAGE /FAMILY WAS SET UP.

20. Contents and verification of petitions.—(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded ¹[and, except in a petition under Section 11, shall also state] that there is no collusion between the petitioner and the other party to the marriage

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be refer-red to as evidence. COMMENTS :-THE MODEL OF THE PETITION MAY BE LIKE THAT OF PLAINT.

1. Subs. by Act No. 68 of 1976, S. 13, for “and shall also state”.

21. Application of Act 5 of 1908.—Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. COMMENTS :-IT SPECIFIES THE APPLICATION OF CIVIL PROCEDURE CODE.

¹[21A. Power to transfer petitions in certain cases.—(1) Where-

(a) A petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13, and --- COMMENTS :-OTHER SECTIONS ARE SAILENT.

(b) Another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, whether in the same district court or in a different district court, in the same State or in it different State, the petitions shall be dealt with as specified in subsection (2). COMMENTS :-OTHER SECTIONS ARE SAILENT.

(2) In a case where subsection (1) applies, -

(a) If the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court; COMMENTS :- CLUBBING OF CASES.

(b) If the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of subsection (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908). to transfer any suit or proceeding from the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code. COMMENTS :-FOR TRANS FER FROM ONE DISTRICT TO OTHER DISTRICT OF SAME STATE, HIGH COURT IS COMPETENT. THIS SECTION IS RESEMBLE THE SEC. 10 OF CPC10. Stay of suit.— No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in ²⁴[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of ²⁴[India] established or continued by ²⁵[the Central Government ²⁶[***] and having like jurisdiction, or before ²⁷[the Supreme Court].

Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in ²⁴[India] from trying a suit founded on the same cause of action.

24. Substituted by Act No. 2 of 1951, for the words “the States”.

25. Substituted by the A.O. 1937, for the words “the G.G. in C.”

26. The words “or the Crown Representative” omitted by the A.O. 1948.

27. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

21B. Special provision relating to trial and disposal of petitions under the Act.—

(1) The trial of a petition under this Act shall, so far as is practicable consistently “ with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following to be necessary for reasons to be recorded. COMMENTS :-DAY TO DAY PROCEEDINGS LIKE THAT OF SESSION CASE.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trail within six months from the date of service of notice of appeal on the respondent. COMMENTS :-TOTAL PERIOD IS ONLY 6 MONTHS FOR COMPLETING THE CASE. BUT NOT FOLLOWING. ?

21C. Documentary evidence.—Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.] COMMENTS :-NO STAMP DUTY AND PENALTY IS NEEDED, FOR MARKING AND RECEIVING ANY UNDER VALUED AGREEMENT ETC., DOCUMENTS. = ALL DOCUMENTS MAY BE RECEIVED WITHOUT HURDLE.

1. Sections 2lA, 21B & 21C Ins. by Act No.68 of l976, S. 14.

¹[22. Proceedings to be in camera and may not be printed or published.—(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court. COMMENTS :- SINCE IT IS BETWEEN WIFE AND HUSBAND CAMERA PROCEEDINGS IF ASKED WILL BE PROVIDED. DOES NOT IMPOSE ANY OBLIGATION ON THE COURT TO CONDUCT EACH AND EVERY CASE IN CAMERA. BECAUSE THE WORDS "ANY MATTER IN RELATION TO SUCH PROCEEDINGS " BEFORE FILING CASE,ONE CAN TAKE INTER VIEWS ETC., ONCE THE CASE IS FILED, NO QUESTION OF PUBLICITY .

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine, which may extend to one thousand rupees.] COMMENTS :-NO T.V. OR NO NEWS PAPER EXHIBIT./PUBLISH THE COURT PROCEEDINGS. SHOWING INTERVIEWS ARE ALSO COME UNDER THIS SECTION.

1. Subs. by Act No. 68 of 1976, S. 15, for S. 22.

23. Decree in proceedings.—(1) In any proceeding under this Act, whether defendant or not, if the court is satisfied that-

(a) Any of the grounds for granting relief exists and the petitioner ¹[except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5] is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief, and

(b) Where the ground of the petition is the ground specified ²[***] or in clause (i) or sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

³[(bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]

(c) ⁴[the petition (not being a petition presented under Section 11)] is not presented or prosecuted in collusion with the respondent, and

(d) There has not been any unnecessary or improper delay in instituting the proceeding, and

(e) There is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

⁵[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) or sub-section (1) of Section 13.]

⁵[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]

1. Ins. by Act 68 of 1976, S. 16.

2. Certain words omitted by S. 16, ibid.

3. Ins. by Act 68 of 1976, S. 16.

4. Subs. by S. 16, ibid., for “the petition”.

5. Ins. by Act 68 of 1976, S. 16.

¹[23A. Relief for respondent in divorce and other proceedings.—In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

1. Ins. by Act No. 68 of 1976, S. 17. COMMENT :- COUNTER CLAIM PROVISION IS LIKE THAT OF CPC . AS PER SEC. 21 , CPC IS APPLICABLE [6A. Counter-claim by defendant.—(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not :

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

1. Inserted by Act No. 104 of 1976, w.e.f.. 1st February, 1977.

6B. Counter-claim to be stated.—Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.

6C. Exclusion of counter-claim.—Where a defendant sets up a counterclaims arid the plaintiff contends the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.

6D. Effect of discontinuance of suit.—If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

6E. Default of plaintiff to reply to counter-claim.—If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit.

6F. Relief to defendant where counter claim succeeds.— Where in any suit a set-off or counterclaim is established as a defence against the plaintiff’s claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.

6G. Rules relating to written statement to apply.— The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.]

24. Maintenance pendente lite and expenses of proceedings.—Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.

25. Permanent alimony and maintenance.—(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall ¹[* * *] 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 own income and other property, if any, the income and other property of the applicant ²[the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under subsection (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such, party is the husband, that has had sexual intercourse, with any woman outside wedlock, ²[it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].

1. The words “while the applicant remains unmarried” omitted by Act No. 68 of 1976, S. 18.

2. Subs. by Act No. 68 of 1976, S. 18, for certain words. COMMENTS :- SUBSEC.3 IS LIKE THAT OF CR.PC SEC. 127127. Alteration in allowance.— (1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father of mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit:

Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) The woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage;

(b) The woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-

(i) In the case where such sum was paid before such order, from the date on which such order was made,

(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) The woman has obtained a divorce from her husband and that she had volun­tarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under Section 125, the civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.

26. Custody of children.—In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

COMMENTS

Under this section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is only the obligation of the father to maintain the child. Where both the father and the mother are employed and affluent, both to contribute proportionately for the maintenance of the child.( Padamja Sharma v. Rattan Lal Sharma, AIR 2000 SC 1398(1401)

27. Disposal of property.—In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper jointly to both the husband and the wife.

¹[28. Appeals from decrees and orders.—(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction,

(2) Orders made by the court in any proceeding under this Act under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

28A. Enforcement of decrees and orders.—All decrees and orders made by the court in any proceeding under this Act shall be enforced ;ii the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.]

1. Subs. by Sec. 19, ibid.

CHAPTER VI

SAVINGS AND REPEALS

29. Savings.—(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.

(4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954, (43 of 1954) with respect to marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act.

30. Repeals.—[Rep, by the Repealing and Amending Act, 1960 (58 of 1960)].