Ashok Kumar Modak vs Smt. Aparna Modak

This appeal, by the aggrieved husband, is directed against the dismissal of Matrimonial Suit No. 11 of 2005 by judgment dated 28.11.2011 and

decree dated 08.12.2011, passed by learned Principal District Judge-cum- Addl. Charge of Principal Judge, Family Court, West Singhbhum at

Chaibasa, whereunder his prayer for dissolution of marriage with the respondent-wife on the grounds of cruelty and desertion in terms of Section

13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1955, has been dismissed.

Petitioner’s/ appellant’s case, as pleaded before the Learned Family Court:

   Marriage between the parties took place on 20.04.1987 as per Hindu rites. She came to the matrimonial home on 21.04.1987. Marriage

was consummated at Chaibasa and a female child was born on 25.07.1991 named, as Deepika Modak @ Sweety. She was studying in Class-IX in

SPG Mission School, Chaibasa at the time of filing of the matrimonial suit. Differences cropped between the spouses on petty domestic matters, which

soured the relationship. It is alleged that on her insistence, she was accommodated in the upper floor of the building of the doubled storied house which

belong to the petitioner’s father. They lived strained conjugal life for about 11 years. At times, her behavior was torturous. She used to often

quarrel with him and abuse his old mother; did not cook the meals for the petitioner and her daughter. They had to take meals with the other family

members. On 15.6.2003, their relationship as husband and wife broke down, as she decided not to cohabit with him. He was forced to shift to the

ground floor of his house. She had arranged separate mess for herself and her daughter and was living in the upper floor of the house. She has,

therefore, deserted him without any valid cause since 15.06.2003. Petitioner’s father died on 06.07.2003, due to old age. Thereafter, she stopped

talking to her mother-in-law and had no words of sympathy for her. In spite of this, petitioner used to maintain her, arrange for her food, weekly

expenditure , educational expenditure of his daughter etc. This showed no change in her behavior towards him. On 25.01.2005, she consumed

phenyl and became unconscious. She was brought back to normalcy by getting her treated in Asha Kumari Nursing Home, Chaibasa. Petitioner

alleged that respondent has deserted him without any reasonable cause and willfully neglected him and his family members for continuous period of

two years. She is working as a teacher in Brilliant Coaching at Mahuri Bhavan, Sadar Bazar, Chaibasa and not dependent upon him. Still he has

undertaken to pay rent of the house and expenses of education of his minor daughter. He has always tried to resolve the dispute and differences with

her but despite best efforts both of the petitioner, his relations and well-wishers, she did not resume conjugal life. Hence, the marriage has totally

broken down and there is no chance of resumption. In this background, he sought for dissolution of marriage.   Â

    Respondent’s case:

    Respondent appeared and filed her written statement denying the allegations levelled against her. She alleged that the rift between the

parties was a creation of the petitioner. She lived as wife and their marriage also was consummated. As a result, a daughter was born. However, he

continued to ill treat her for several days together. Later on, she came to know that he was on visiting terms with one Usha Topno almost daily and on

being watched by her, he became furious and used filthy languages against her. He started ill-treating her in many ways. However, she continued to

do her daily domestic work but the quarrel continued on account of petitioner’s attitude. The matter reached a climax when the lady Usha

Topno was allowed to occupy a portion of the petitioner’s ancestral house as a monthly tenant in the year 2005.Thereafter, daily objectionable

activities of the petitioner and the said lady began. He become cruel to the respondent and his minor daughter and wanted to drive them out from the

marital home. He succeeded in inducting the lady to the adjacent room of the petitioner. Lastly on first day of July, 2005, he became furious for no

reason and asked her to go out from his house with her daughter. She failed to pacify him and was forcibly driven out of the marital house. Since then

she has been residing with great difficulty in rented house. According to the respondent, petitioner wanted to desert her as he was in close contact

with the lady, Usha Topno. Other such allegations have been denied by her. She has been made to live alone with her daughter and her temporary

work is not sufficient for livelihood and their expenses. Petitioner has done it with a purpose to marry another woman. Therefore, the suit deserves to

be dismissed.Â

Based on the rival pleadings of the parties, the following issues were framed for determination:

    “(i) Is the petitioner’s petition for divorce maintainable?

(ii) Is the respondent/wife treated the petitioner/husband with cruelty?

(iii) Is the respondent/wife deserted the petitioner/husband for two years, immediately preceding the presentation of the petition for divorce

by the petitioner/husband?

(iv) Is the petitioner entitled for a decree for divorce as claimed in the petition or to what relief or reliefs the petitioner is entitled for?

Learned Family Court proceeded to analyze the material evidences and the pleadings on record to answer the issue No.(ii) relating to cruelty in

favour of the respondent/wife.Â

Learned Family Court took note of the fact that the petitioner/ husband had been convicted in a criminal case under Section 498-A of the Indian

Penal Code by the learned Court of Judicial Magistrate, 1st Class, Chaibasa in G.R. Case No. 403 of 2005. Based on Ext.-5, a certified copy of the

order sheet dated 05.12.2007, filed in the Court of Judicial Magistrate, 1st Class, it transpired that the petitioner had preferred a Criminal Appeal No.

27 of 2007, in which, the learned Sessions Judge, Chaibasa modified this judgment and directed the petitioner to execute a bond for keeping peace.

Thereafter, a Criminal Revision No. 811 of 2007 was preferred before the High Court against the sentence passed by the learned Sessions Judge,

the fate of which, however, was not known.Â

Learned Court found that the allegations of cruelty on the ground that she had consumed phenyl to commit suicide were not to be inferred in favour

of the petitioner as the evidence of the petitioner PW-2 also reveals that Usha Topno had started living in the house of the petitioner since the year

2004, which had created lot of tension and strain in their relationship. This could be the basis for the respondent to undertake such an act.

Therefore, it was the petitioner who was responsible for this incidence. The learned family court therefore did not find any substance in the evidence

on record to hold the respondent-wife guilty of perpetrating cruelty in terms of section 13(1)(i-a) of the Hindu Marriage Act to entitle the petitioner for

divorce. Learned family court also decided the point of desertion against the petitioner-husband. The material evidence on record showed that the

petitioner had a role in inducting Usha Topno as a tenant in his house despite objection of the respondent-wife. Petitioner had, therefore, given a

reasonable cause  to her to remain away from the matrimonial home. Apart from the above, there was conviction on the allegations of cruelty in

marriage against the petitioner-husband at the instance of the respondentwife. Based on the findings recorded on each of these issues, the suit was

dismissed on contest.Â

Appellant has assailed the impugned judgment, inter alia, on the grounds that learned family court failed to appreciate the willful desertion on the

part of the respondent for a period of more than two years and came to the erroneous finding of fact based on absolutely wrong presumptions. The

learned family court also failed to appreciate that it was the respondent who was guilty of cruelty. Findings of the learned family court were

perverse as it completely overlooked the material documentary evidence relating to treatment of the respondent after she had consumed phenyl

to commit suicide. Such act of the respondent amounted to cruelty which was sufficient to grant decree of divorce. The learned family court also

failed to take into account that the petitioner was compelled to accommodate the respondent in the 1st floor of the house as she did not want to live

with him and his family members. Petitioner had to manage his food with other family members as the respondent had stooped cooking food for him.

This kind of unabated action amounted to cruelty on the part of the respondent. The finding in relation to the presence of Usha Topno is also not

correct as respondent had not examined any witness in this regard and the allegations remain unsubstantiated. Based on these and other grounds, the

appellant has prayed for dismissal of the suit.Â

We have perused the impugned judgment and the grounds urged on behalf of the appellant in the present appeal, in the light of the relevant

material evidence, discussed by the learned family court. The attendant material pleadings and evidence on record as also noticed herein above show

that it was the petitioner who was held guilty for cruelty in marriage in a proceeding under section 498A of the Indian Penal Code in G.R. Case No.

403/ 2005 by the learned Judicial Magistrate, 1st Class, Chaibasa. Even in the criminal appeal, learned Sessions Judge had only modified the judgment

and directed the petitioner to execute a bond for keeping peace in the locality. Aggrieved thereby, petitioner had preferred a Criminal Revision No.811

of 2007. As such, acts of cruelty were established as against the petitioner rather than against the respondent. Acts of such cruelty, therefore, could

not be taken to the advantage of the petitioner for seeking a decree of divorce. Even on the point of desertion, such acts of cruelty as also determined

in the criminal proceeding definitely gave a reasonable cause for the respondent-wife to remain away from the matrimonial home, though she had

always shown her intention to resume the conjugal life. It is her consistent stand that she does not want to end the marriage. Efforts for reconciliation

between the parties have failed even during pendency of the appeal as per the report of the learned Mediator, JHALSA.Â

In this backdrop, principle of law laid down by the Hon’ble Apex Court relating to ingredients of desertion are fit to be quoted hereunder. The

opinion of the Apex Court in the case of Savitri Pandey Vs. Prem Chandra Pandey, reported in (2002) 2 SCC 73, para 8 and 9, are profitably

extracted herein below:-

 “8. “Desertionâ€, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one

spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of

marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial

obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking

into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation

of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself,

it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the

views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary

passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: (AIR p.p.

183-84,para 10)

 “For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (I)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: (I) 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 petitioner for divorce bears the burden of proving those elements in the two spouses respectively.

Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law

those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the

Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the

omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of

inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case

be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by

conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential

question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation

and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced

without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating

spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has

prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements

must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted

spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after

the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably

refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the

deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well

settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable

doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is

accounted for to the satisfaction of the court.â€​

Following the decision in Bipinchandra case this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena by holding that

in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and

without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (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. For holding desertion as proved the inference may be drawn from certain facts which

may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by

those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.â€​

 It follows therefrom that for the offence of desertion to be constituted both physical separation and intention to bring cohabitation permanently to an

end (animus deserendi) should co-exist. The deserted spouse should not provide a reasonable cause to the deserting spouse to remain away from the

matrimonial home. Neither should such separation be with the consent of the deserted spouse. From the pleadings and evidence on record, it is

abundantly clear that it was the petitioner who gave reasonable cause for the respondent to remain away from the matrimonial home, though she did

not like it. If the petitioner was guilty of cruelty in marriage, the findings of the learned court on both counts i.e. cruelty and desertion does not deserve

to be disturbed.Â

We therefore do not find any perversity in the findings of the learned family court on the basis of the material evidence on record. Hence, the

appeal is dismissed being without merit. Decree accordingly.       Â