1. The appellant-husband was before the Prl. Judge, Family Court, in M.C.No. 453/91, a petition filed u/s 13(1)(ia)(ib) of the Hindu Marriage Act seeking for a decree of divorce to dissolve the marriage which was solemnised with the respondent on 20.3.1969. In support of his petition, the appellant had alleged cruelty and desertion on the part of the respondent-wife. In this regard, the appellant had contended that they had lived together as husband and wife at No. 4, 2nd cross, Nandidurg Road and at No. 3, Commissariat road, Bangalore, till 11.01.1986 and from the said marriage, they have two sons viz., Raman and Arjun, who were born on 24.5.1970 and 19.6.1971 respectively. The allegations in brief were that the appellant being a Horse trainer had to go to different places such as Bombay, Hyderabad, Ooty and Madras and the appellant''s work and children suffered due to wayward behaviour of the respondent. Insofar as alleging cruelty the appellant had pleaded with regard to her habit of disappearing without cause or intimation and being a person of independent means was more interested in her freedom rather than her responsibility towards her matrimonial home. Further, it is the allegation of the appellant that the respondent ultimately withdrew herself from the society of the appellant after an argument and without any reasonable cause on 11.01.1986. Thereby she has deserted him to all intents and purposes. On receipt of notice in the said petition, the respondent appeared and denied the allegations made against her with regard to cruelty and desertion. Insofar as cruelty, respondent contended that there is no specific allegations whatsoever. In fact, the respondent has made several counter allegations with regard to the wayward behaviour of the appellant himself and insofar as the allegation of desertion made against her, she sought to justify her action of staying away from the matrimonial home since according to her, the same is not a willful act, but she has been prevented from staying in the matrimonial home for a reasonable cause. In this regard she has specifically referred to a brutal assault which was inflicted on her on 11.1.1986 and therefore, she has apprehension of the worst. Further, she has contended that all her efforts to get back to the matrimonial home has failed. Hence, she has contended that the appellant cannot take advantage of his own wrong.
2. Based on the rival contentions, the Family Court framed two issues for its consideration, one with regard to cruelty and other with regard to desertion. In order to discharge their burden, the appellant has examined himself as P.W.1 and one Smt. Rukmini Reddy as P.W.2 and has marked Exhs.P1 to P13. On the other hand, the respondent has examined herself as R.W.1 and has examined three witnesses as R.W.2 to R.W.4 and marked two documents. The learned Judge of the Family Court after adverting to the contentions and the evidence placed before the Family Court, by his judgment and decree dated 10.01.2001 has dismissed the petition filed by the appellant with costs. The said judgment and decree dated 10.1.2001 passed in M.C.No. 453/91 is called in question in this appeal.
3. Sri P.B. Appaiah, learned Counsel appearing for the appellant while assailing the judgment and decree dated 10.1.2001 passed by the Family Court would contend that the Family Court has failed to appreciate the matter in its correct perspective. The learned Counsel no doubt would fairly concede that the Family Court may be justified to the extent of not upholding the allegations of cruelty made by the appellant, since sufficient material was not available before the Family Court and therefore, the learned Counsel did not choose to labour much on that aspect. But, the learned Counsel however contended that the Family Court had seriously erred in dismissing the petition insofar as the relief sought u/s 13(1)(ib) of the Hindu Marriage Act, since apart from the other aspects, the desertion was apparent on the face of the records even if the admitted dates are taken into consideration.
The learned Counsel referring to the letters which have been marked, more particularly Exhs.P2 and P3 would contend that the very contents of the said letters would indicate that from the very beginning, the respondent was content in staying away from the company of the appellant as she was more happy travelling to different places or during most of the time she was in the Ramana Mahashree Ashram at Thiruvannamalai and this aspect of the matter would indicate that she has always been in the habit of staying away from the family responsibilities and her intention of deserting the company of the appellant was always evident. Further, the learned Counsel taking us through the deposition of the appellant and his witness and also the cross examination of the witnesses examined on behalf of the respondent would contend that through out she had lead her life without taking upon herself the family responsibilities and finally, she had deserted the appellant on 11.1.1986 for all purposes. Thereafter, even though the appellant waited till the year 1991 to file the petition seeking for divorce, the respondent had not made any attempts whatsoever to get back to the matrimonial home. In this regard, the learned Counsel would pointedly refer to the requirement of Section 13(1)(ib) of the Hindu Marriage Act and contend the minimum requirement is the desertion for a period of two years before filing the petition but in the present case, five years had elapsed as on the date of filing. Therefore, there has been compliance of more than its requirement and despite the same, even to that length of time, the respondent had not made any efforts and even after filing the petition till date, the respondent seems content staying away from the appellant and no efforts has been made. According to the learned Counsel, the Family Court was therefore not justified in rejecting the petition on the ground of desertion. With regard to the defence taken by the respondent that she had been assaulted on 11.1.1986 which forced her to leave the matrimonial home and that the appellant has not made any attempts to take her back to the matrimonial home and that even today, she is ready and willing to join him, the learned Counsel would contend that the same cannot be a justification. In this regard, the learned Counsel would refer to the incident of 11.1.1986 and would further contend that the same has been exaggerated and therefore, the said incident of 11.1.1986 cannot be taken advantage of by the respondent to stay away from the company of the appellant.
4. On the contrary, in order to repel the contentions urged on behalf of the appellant, Sri M.U. Poonacha, learned Counsel appearing for the respondent would at the outset contend that the Family Court was justified in rejecting the petition on the ground of cruelty as well as desertion. According to the learned Counsel, on both these grounds the appellant had not placed any reliable evidence whatsoever before the Court. More particularly, with regard to the ground of desertion urged by the appellant, the learned Counsel would contend that the law is well settled that desertion would be a ground only if it is willful. In the present case, the facts on hand would disclose that there was an incident on 11.1.1986 and all that the appellant seems to he disputing is the gravity of the same. The learned Counsel would dispute the contention that she was through out content in staying away from the appellant. With regard to the stay at Thiruvannamalai, the learned Counsel would justify the same by contending that the respondent is an ardent devotee of Sri Ramana Mahashree and it is for this reason that their elder son has been named as Raman and in any event, the appellant cannot find fault with the respondent visiting a place of worship. That apart, the learned Counsel would also contend that as brought out by the appellant himself, he was required to be away from Bangalore most of the time in view of his avocation and considering the living style and status of the parties, they were visiting different places at different time and by compulsion they were not in each others company for short duration. According to the learned Counsel, the letters relied on by the appellant would not be of great consequence, since the contents are only the natural exchange of thoughts when the parties were away from each other. By saying so, the learned Counsel would contend that there is absolutely nothing to indicate that prior to the incident dated 11.01.1986 there was any separation by way of desertion between the parties. Therefore, the entire question is after the incident of 11.01.1986, whether the respondent was justified in staying away. In this regard, the learned Counsel would refer to the evidence of R.W.1, R.W.3 and R.W.4, to establish that such an incident had taken place on that date and the injuries suffered were also grave in nature, which had to be treated by a Doctor and thereafter, she has been residing with her friends and further though efforts have been made by her to get back to the matrimonial home, the appellant has prevented her from going back and as such, the respondent has not wilfully deserted the appellant.
5. In the backdrop of the contentions of the respective learned Counsel, we would at the outset refer to the decision of the Hon''ble Supreme Court in the case of
7. ''Desertion'' in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end-animus deserendi;
3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;
The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include "willful neglect" of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.
6. In the said decision, the Hon''ble Supreme Court has laid down the two essential conditions of desertion so far as the deserting spouse is concerned and also the two essential elements insofar as the deserted spouse is concerned. Keeping this aspect in view, it would be appropriate to examine the facts involved in the present case with reference to the evidence adduced by the parties. As already noted by us above, the only issue which requires consideration in this appeal is with regard to the aspect of desertion, since the aspect of cruelty has not been argued. Therefore, we would be limiting ourselves to that aspect. In this regard, from the facts involved and the contentions narrated above, it would be clear that the entire issue hinges on the incident which is alleged to have taken place on 11.1.1986, since all the earlier aspects of the matter are not very much in dispute. While doing so, the perusal of the case pleaded by the appellant and the oral evidence of the appellant itself would indicate that there was an incident on 11.1.1986. Inasmuch as in the pleading, it is stated that the respondent withdrew herself after an argument and in the course of the cross examination of the appellant, it has been brought out that when he returned home at 8.30 p.m. along with his sons, the respondent started screaming at him and the appellant admits that at the time of the incident one Rafath Hussain was also present. However, the appellant has no doubt denied that he assaulted roe respondent but would say that he pushed her outside the bedroom. This would indicate that there was some scuffle between the appellant and the respondent as admitted by the appellant himself. Therefore, the next question would be to consider the gravity of the said incident so as to determine whether the respondent''s justification to stay away could be accepted. In this regard, the respondent has narrated in detail in her evidence about the incident. While doing so, she has narrated that she had been assaulted and there was bleeding from her nose and therefore, she had called her friend Mrs. Prema Rao over the phone and the said Prema Rao came and took the respondent to her house as she was completely traumatized on account of the assault. With regard to the said incident, the said Smt. Prema Rao has been examined as R.W.4 and with regard to injuries and treatment, the Doctor has been examined as R.W.2.
7. The evidence of R.W.2, Dr. P.A.E. Peters and that of R.W.4 Smt. Prema Rao would provide sufficient insight into the incident that had taken place on 11.1.1986. Even though the learned Counsel for the appellant attempted to pick out certain discrepancies and inconsistencies in the evidence, it is seen that both the witnesses have withstood the cross-examination, and nothing has been brought out to discredit their evidence. Further, we cannot ignore the fact that the said witnesses were aged 85 years and 72 years respectively at the time of deposition and being independent witnesses were deposing about an incident which had taken place about 14 years earlier. Keeping all this in view, a conjoint reading of the evidence of the respondent and her witnesses would establish that the incident of the gravity as claimed by the respondent had taken place. Even though the appellant had stated that one Sri Rafath Hussain was present, he has not chosen to examine him to speak about the same. Therefore, all these aspects take us to the irresistible conclusion that such an assault had taken place and considering the status of the parties one cannot expect her to submit to such behaviour by the appellant and her apprehension cannot be said to be without basis. That being so, the respondent was justified in leaving the matrimonial home on 11.1.1986 seeking the assistance of her friend and the same cannot be termed as an act of willful desertion.
8. The next question that would arise for consideration is with regard to the effort made by the parties, more particularly as to whether the appellant has made any attempts to bring the respondent back to the matrimonial home since the respondent had to leave the matrimonial home due to the act of the appellant. In this regard, except for the say of the appellant that the sons had called her to join the appellant but she has failed to do so, there is no other material or attempt indicated. The learned Counsel for the appellant however sought to rely on a decision of this Court in the case of Rukmini v. Narayana 1969 (2) MLJ 2 to contend that the husband need not make such attempt. Apart from the reason that the facts involved therein and the facts on hand are not analogous, the said decision would even otherwise be of no assistance since in the instant case the respondent herself has made certain attempts to get back to the matrimonial home but the same have not been reciprocated by the appellant. In this regard, it would be useful to refer to the deposition of the respondent, wherein she has categorically stated that after the incident of 11.1.1986, the appellant did not allow her to join in spite of the best efforts by her relatives and friends. She has also referred to the names of the persons who intervened and the efforts made by them had failed. Further, she has stated that after filing of the petition, the appellant had been threatening her and she had brought this to the notice of her sons. She has further stated that after filing of the petition by the appellant, she had once again approached him along with her aunt Smt. Varadhe Panje and even at that time, the appellant refused to take her back. Apart from stating the other circumstances about the illicit relationships of the appellant which has resulted in the appellant not taking her back, the respondent has stated that despite all her best efforts to rejoin the appellant, he has refused to take her back. Even though, the said statements of the respondent was attempted to be categorised as self serving statements by the learned Counsel for the appellant, we cannot accept such submission for the reason that there is no cross-examination whatsoever in this regard. That would therefore lead us to the conclusion that after the incident of 1986, the appellant did not make any efforts to seek return of the respondent. On the other hand, the respondent has made several attempts to get back to the matrimonial home, but she has been prevented by the appellant. Therefore, in the facts and circumstances of this case, the appellant has failed to prove that the respondent has the intention of permanently bringing the cohabitation to an end. Even though there has been the factum of separation, the same has been with a reasonable cause. Hence, the elements indicated in the decision of the Hon''ble Supreme Court is not in favour of the appellant.
9. Sri P.B. Appaiah, learned Counsel for the appellant by placing reliance on the decision in the case of
10. Thus, considering the rival contentions and having re-appreciated the oral and documentary evidence on record and having perused the impugned judgment and decree passed by the Family Court, we are of the view that there is no error whatsoever in the reasoning adapted and the conclusion reached by the Family Court, which calls for our interference.
11. In the result, we pass the following:
ORDER
The appeal is rejected with no order as to costs. Ordered accordingly.
