Shylendra Kumar, J.@mdashWe have heard the learned counsel for the parties and perused the record of the case.
2. This appeal by the wife is against the Order and Decree dated 28-7-1995 passed in MC No. 100/90 on the file of the II Addl. Civil Judge and CJM, Mysore, granting decree in favour of the respondent/husband on the petition u/s 13 of the Hindu Marriage Act, particularly u/s 13(1)(i-b) i.e., the husband has proved that the wife has deserted his company for a continuous period of not less than two years immediately preceding the presentation of the petition.
3. The appellant wife being aggrieved by the Decree of Divorce granted against her on the ground of desertion is in appeal before us.
4. The petition by the husband was presented on the grounds of cruelty and desertion. The ground of cruelty did not find favour with the trial Court and was rejected, However the trial Court found merit in the stand of the petitioner/husband that the wife has deserted him and as such granted the decree for divorce.
5. The brief facts leading to the petition are that the parties were married in the year 1983. The wife joined the husband at the matrimonial house of the joint family, but unfortunately differences arose within a period of three months and while the case of the wife was that she was driven away from the matrimonial home due to the ill-treatment meted out by her husband, the stand of the husband is that she left the house on her own. The fact remained that the wife left the matrimonial house within three months from the date of marriage. What is significant is that the wife had filed Crl. Misc. Petition 81/85 seeking for maintenance on the ground that her husband has neglected to maintain her even while she was living separately in her father''s house. This petition came to be allowed by an order dated 10-8-1989 awarding maintenance in a sum of Rs.300/- per month. Though husband carried the matter in Revision to the District Court at Mysore in Crl. Revision Petition No. 175/90, the learned District Judge dismissed the same by an order dated 5-8-1993. The order awarding maintenance was confirmed. There was another development in the meanwhile and that was that husband had filed Matrimonial Case No. 65/95 praying for restitution of conjugal rights invoking Section 9 of the Hindu Marriage Act. The husband did not evince diligence in prosecuting the said matrimonial case and the same came to be dismissed. An application for restoration of this matrimonial case was also dismissed. These factors are not in dispute. It is thereafter the present case for divorce in M. C. No. 100/90 was presented by the husband as against the wife alleging the ground of cruelty as well as desertion.
6. It has to be stated that evidence was adduced to support both the grounds. Essentially, the case of the husband was that the wife ever since the beginning of the marriage did not live with him except for the period of three months, that she had gone away to her parents house, that in spite of several efforts to bring her back to the matrimonial home, she did not evidence sufficient responsibility and even on sporadic occasions when she returned to matrimonial house, it was only for leaving again and such conduct indicates that the wife was not keen on continuing with her husband, but on the other hand she always seeks to get away from him.
7. We are not concerned with the grounds urged in support of cruelty as this ground has been rejected. However to some extent the evidence is common and this has some bearing. The husband also tried to improve upon the case even during the pendency of the petition by relying upon developments said to have taken place subsequent to the filing of the petition. The husband had de-posed that in a development that had taken place during the pendency of the petition there was a meeting of the well wishers and that they had advised the wife to join the husband and in spite of such advice and agreement at such meeting, the wife had not responded and not joined the husband. This is a circumstance to indicate that the wife had deliberately deserted the husband. This has been considered and accepted by the trial Court holding that the statutory requirement has been met and as such decree for divorce has been granted by the trial Court.
8. The learned trial Judge while discussing the relevant aspects with regard to desertion case as pleaded and stated to have been proved by petitioner husband has observed as under :
".....................The way in which the respondent left the house of the petitioner within few months after her marriage and started residing in her father''s house, her attitude towards the petitioner, and her conduct in initiating proceedings for recovery of the maintenance amount from the petitioner and at the same time failing to discharge her marital responsibilities, will all probabilise that she left the house of the petitioner with an intention to bring the cohabitation permanently to an end.....................
The learned trial Judge relying upon the decision of the Hon''ble Supreme Court in the case of
9. Sri Shetty, learned counsel appearing on behalf of the appellant/wife submits that the trial Court has fallen into an error in holding that the husband has proved the ground of desertion. Learned counsel says that the husband did not prove anything at all and the trial Court ought to have dismissed the petition on the ground of desertion also. In this regard the learned counsel brings to our notice that the proceedings in the Criminal Misc. Petition awarding maintenance in favour of the wife and a copy of the Judgment as well as a copy of the Judgment in the Revision confirming the said award of maintenance had been marked so also several certified copies of the execution petition seeking for executing the maintenance amount which had not been paid by the husband as per the orders of the Court (Ex. R7 and Ex. R8).
10. The award of maintenance in favour of the wife in a petition u/s 125 when the wife was living separately from the husband would itself indicate that there was need for the Court to award maintenance, accepting the version of the wife that there were justifiable reasons for living separately. Learned counsel submits that in such circumstances when the same had not been get over by any explanation by the husband and on the other hand even when the order of maintenance in favour of the wife operates as on date, there was absolutely no justification for the trial Court to come to the conclusion that the wife had deserted. Counsel also submitted that the trial Court has not given categorical finding about desertion on the part of the wife.
11. Sri Balakrishna Shastry, learned counsel appearing for the respondent/husband on the other hand submits that the wife herself in the course of her evidence has admitted that she had been living separately and she was not inclined to join her husband and that she also had not acted in consonance with the wishes expressed by the elders or panchayathdars who had advised the parties to join one another. Learned counsel for the respondent relying upon the evidence of the wife submits that when the wife herself had admitted that she had consciously lived separately and had not responded to the suggestions and moves of the well wishers to join the husband at his house, it is a clear case of desertion on the part of the wife with an intention not to join the husband and to bring cohabitation permanently to an end.
12. The evidence of the wife which is sought to be relied upon is what has been elicited in the course of the cross-examination. We notice that the wife had deposed that the reason for her leaving the matrimonial house was harassment and infliction of physical injury on her and had also spoken about the incident when there was an attempt to cause physical harm on her by pouring kerosene on her body and to burn her alive. The wife had also deposed that there was a demand for dowry and constant harassment by her husband for meeting this demand had made her life miserable in the husband''s place and she had to go away from the matrimonial house. Sri Shastry, learned counsel appearing on behalf of the respondent/husband seeks to get over this portion of the evidence by indicating that complaint of harassment for dowry and also the version of an attempt on the part of the husband and his people to cause physical harm to the wife had not been pursued and no action has been taken by the wife or her people by lodging a police complaint in this regard. Counsel submits that all these circumstances would indicate that these things are not real. But it is a fact that the parties had been to the police station and perhaps reconciled the matter there and had agreed to withdraw the complaint and that may be the reason why the matter had not been pursued. But there is evidence on record to indicate that incident had taken place and there were developments in this regard. On going through the evidence in its entirety and on taking comprehensive view of the same, we are of the opinion that in the emerging hazy picture and on uncertain fact that the wife did not join the husband even after the panchayathdars advised to that effect, the trial Court could not have drawn the presumption of desertion on the part of the wife in the absence of any clinching evidence and finding on this aspect. In fact we have noticed that there is no clear finding even by the trial Court on the aspect of desertion. On the other hand the learned trial Judge seeks to probabilise that the conduct of the wife indicated the intention to bring the cohabitation to an end.
13. We are of the clear view that a finding of this nature is not sustainable, particularly for concluding that there was desertion on the part of one of the spouses and for constituting a ground for a decree for divorce. In fact the Hon''ble Supreme Court in the very case referred by the learned counsel for the respondent reported in
"Heavy burden lies upon a petitioner who seeks relief on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus desendi; (3) absence of his or her consent; and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. In short the proof required in a matrimonial case is to be equated to that in a criminal case."
14. The degree of proof is not merely one of preponderance of probabilities, but proof beyond reasonable doubt. In the circumstances, we are of the clear view that the husband had failed not simply but miserably in proving desertion, particularly in the light of the maintenance order and the confirmation order in the criminal matter. Deliberate desertion on the part of the wife could not have been inferred in the circumstances of the case. In fact it cannot even be said that the wife without any reason had remained living separately and on the other hand circumstances indicated that she had sufficient justification for her living separately. When such is the situation, the inference of desertion which requires deliberate conscious living apart can never have been inferred by the trial Court. The trial Court is clearly in error in granting a decree for divorce on the ground of desertion.
15. In the result, therefore, we allow this appeal, set aside the Judgment and Decree passed by the trial Court and dismiss the divorce petition in total.
16. Appeal allowed with costs quantified at a sum of Rs.1,000/-.
