K. Sampath, J.@mdashThe matter arises under the Hindu Marriage Act. The husband is the appellant. He filed a petition u/s 13(1) (b) of the said Act for divorce on the ground that respondent wife had deserted him without any just and reasonable cause for a continuous period of two years. The averments in the petition are as follows:
The parties were married on 14-7-1975 and the wife was living with the husband for sometime, that she became mentally unsound and this state of affairs continued till a female child was born on 4-11-1976, but the husband came to know that the wife had mental affliction even before the marriage and this was suppressed when the marriage was celebrated, that after the birth of the female child, the wife came to the husband''s house in March, 1977, that her behavior during the stay was very bad and she was always quarrelling with the other members of the family, that she threatened to commit suicide and all the attempts on part of the husband''s family proved futile and the matter was aggravated by the mother of the wife. In January, 1978 the wife conceived again and within ten days of its birth the child died, that after the death of the child she did not evince any interest to come and live with the husband even though the first child was living with the husband, that after a lot of persuasion the wife came to Madurai in March, 1978, but her attitude and behavior did not improve and on 5-7-1978 the wife''s mother came to the husband''s house and without informing him or any of the members of the family she took the wife from the house along with her jewels, her sari and other materials and that this amounted to desertion by the wife without any intention to come back and live with her husband. There was a notice issued on 31-7-1978 and the wife sent a reply on 16-8-1978. In or about January, 1979 the wife came with eight persons at 4 p.m. and took away the child forcibly and the husband and his brother resisted this attempt, but they were beaten up and when the police arrived, the wife''s brothers left the place. The wife had not evinced any interest to come back and live with the petitioner-husband. This petition was therefore, necessitated.
2. The wife in her counter has denied all the allegation in the petition and stated as follows:
The husband was paid a cash dowry of Rs. 5,500/- and Rs. 5000/- for the dress and the wife was given 39 sovereigns of jewels, apart from silver and other vessels. Two gold rings were given to the husband at the time of the marriage and during the first Deepavali. But from the very inception, the parents of the petitioner were complaining that the jewels and the vessels presented were inadequate and they demanded diamond ear rings. In spite of the troubles given by the husband''s parents, the wife continued to stay in the husband''s house and she gave birth to a female child on 4.11.1976 and she was taken back to the husband''s house in March, 1977. During March, 1977 her father died in Hyderabad and her treatment in her in-laws house became worse from that time. She became pregnant for the second time and was taken to Srivilliputhur to her mother''s house and on 14-1-1978 she gave birth to a male child and the child died after 12 days and within 35 days of the birth of the child she was taken back to the husband''s home and she was made to work from 4 in the morning till 7 in the night and even the servant maids were stopped by the husband''s people. The husband''s people were also adamant in their demand for diamond ear rings. The wife''s mother arranged for purchase of a pair of diamond ear rings through their relation and Advocate Mr. S. Rajam and got those ear rings on the approval of the husband''s parents. But the parents of the husband of the husband got wild and asked her to get out of the house immediately. She was not even allowed to take her sarees and jewels. She had therefore to go back to her mother''s house in Srivilliputhur. She has specifically denied that she ever attempted to commit suicide. She had some physical problem after the birth of the child and she was advised to take complete rest, but her husband was insisting on her returning to his house. She was treated cruelly by the husband''s parents. The husband and his parents forcibly withheld the child from her. With a view to discard the wife somehow or other the husband resigned his job in Lakshmi Higher Secondary School, Madurai, and took up employment at Pollachi for a higher salary. The wife''s mother also received an anonymous letter to the effect that the husband has married again and was living with his second wife and in order to validate the said marriage, the husband had come up with the present petition for divorce on the ground of desertion. The wife had always been ready and willing to go and live with the husband and she had so expressed her desire in her reply notice. Several attempts were made by the wife''s brothers to persuade the husband to take back the wife, but they were beaten by the husband''s brother and they had to return after giving complaint to the police. The petition had been filed with false allegations to discard the wife at any cost.
3. The wife herself filed an application in I.A. No. 44/83 u/s 26 of the Hindu Marriage Act for a direction to the husband to hand over the child to her.
4. The learned Subordinate Judge by his common order dated 17-9-1983 found that the husband had not established that the wife had deserted him without any just and reasonable cause for a continuous period of two years and that he was not entitled to a decree for divorce on the ground of desertion. The learned Subordinate Judge also allowed the application I.A. No. 44/83 of the wife for the custody of the child. In coming to the conclusion, the learned Subordinate Judge found that it was in evidence on the side of his wife that she had taken several steps to come and live with the husband and that all her attempts were in vain. The learned Subordinate Judge also found that by alleging that the wife was mentally unsound the husband had caused mental cruelty to the wife. Apart from that, the learned Subordinate Judge also found that the wife was cruelly treated by the husband and his parents and that there was just and reasonable cause for the wife to leave the husband''s home. The husband had not proved the necessary animus deserendi on the part of the wife to desert him. In view of his finding that it was only the husband, who was responsible for the wife leaving the marital home, the learned Subordinate Judge held that the wife had not deserted the husband for a continuous period of two years without just and reasonable cause and dismissed the petition for divorce. As already stated the learned Subordinate Judge however allowed the application I. A. No. 44/83 filed by the wife for the custody of the child and the husband was directed to hand over the child to the wife.
5. Aggrieved, the husband filed an appeal in C.M.A. No. 54/83 and C.M.A. No. 66/83 before the District Court, Madurai. The learned First Additional District Judge, Madurai, by his common judgment dated 15-10-1984 concurred with the decision of the Subordinate Judge and dismissed both the appeals. The husband has preferred the present Civil Miscellaneous Second Appeal. At the time of admission, the following substantial questions of law were framed:
(1) Whether the findings regarding the respondent''s willingness to live with the petitioner is sustainable in law even though there is discrepancy between the pleadings and evidence regarding the same? and
(2) Whether the judgment of the Courts below proceeded on the basis that the petitioner is guilty of desertion, which is not supported by the pleadings nor the evidence, are sustainable in law?
6. I have gone through the pleadings in the case, the documents and the oral evidence as also the judgments of the Courts below. I am of the view that the decision of the Courts below in refusing to grant divorce to the husband is unassailable. As early as 16-8-1978 under Ex. A-2 the wife had expressed her willingness to go back to the husband''s home and live with him. But the husband refused to take back the wife and he did not even allow her brothers to enter the house. Not only that, the husband had gone to the extent of causing mental cruelty by alleging that the wife was of unsound mind even prior to the marriage between the parties the apparent intention was to get rid of the wife and go in his own way. In fact, there is an indication in the proceedings that after making her leave the house, the husband had shifted his place of work to Pollachi on higher salary and that there was an anonymous letter to the effect that he had married a second wife and was living with her and with a view to validate that marriage, the husband had thought of divorcing the wife on the ground of desertion and allegation of unsoundness of mind. Both the Courts have concurrently found that the husband had not been able to prove the intention of the wife to bring the cohabitation to an end permanently and that the husband by his words and conduct, had treated the wife cruelly and had compelled her to leave the matrimonial home. The courts below have concurrently held that the husband alone is guilty of desertion. Though the wife had actually been separated from the husband, the husband had failed to prove the necessary animus deserendi on the part of the wife and as already stated, even after the wife had expressed her desire to go back to the marital home, the husband had deliberately not allowed her to rejoin him and make a marriage of it.
7. Much is made of the fact that in the counter to the petition for divorce, the wife had stated that when the husband''s parents abused her, the husband was a silent spectator and that in her evidence she had stated that her husband also quarreled with her, abused her and sent her away. I do not find any discrepancy between the pleading and the evidence adduced in this case. The wife had also along been willing to live with her husband even though he had alleged mental imbalance and unsoundness of mind. It is in evidence that the wife went to the husband''s house to see her child and to ask them to permit her to live in the matrimonial home, but she was refused entrance and that they quarreled with her and her brothers and sent them out. In these circumstances, I am of the view that no case has been made out for differing from the findings reached by the Courts below and accordingly I dismiss the Civil Miscellaneous Second Appeal. There will be no order as to Costs.
