B. Girish vs Mamatha

N. Kumar, J.

This is husband''s appeal against the Judgment and order passed by the Family Court dismissing his petition for divorce on the ground of desertion.

For the sake of convenience, the parties are referred to as they are referred to in the petition before the Family Court.

Petitioner - husband - B. Girish married respondent-wife Smt. S. Mamatha on 9.12.2004 at Shivamogga as per Hindu rites and customs at Gowdasaraswatha Samaja (R), Kalyana Mandira Road, Shivamogga in the presence of family members and relatives. They lived together as husband and wife at petitioner''s residence at No. 51, Subhas Nagar, Virgo Nagar Post, 4th Main Road, Bengaluru. After the marriage, the respondent did not allow the petitioner to have co-habitation with the respondent at any point of time and she refused to allow the petitioner even to touch her. She refused to accept the petitioner as her husband.

She has also lodged a complaint before Shivamogga Mahila Police which is registered as CC No. 3219/2009. Due to the above said reasons, they do not have any issues out of their wedlock. After few days of marriage, the respondent informed the petitioner that she is having an affair before marriage with one Sri Madhu who was driver of the School van where she was working in Shivamogga. She has also admitted that she has physical contact with him to which the petitioner and the parents of the petitioner advised the respondent to forget all the past and told her to change her mind and to live with the petitioner peacefully. But, the respondent refused to do the same. The matter was referred thereafter to Vanitha Sahavaani, Police Commissioner''s Office, Infantry Road, Bengaluru to bring a compromise. The respondent did not accept the advise of the counselor and she gave a statement that she has given complaint against the petitioner to the Police stating that she is not willing to marry the petitioner. The respondent''s father is the brother of petitioner''s mother so, they are close relatives. The petitioner''s mother forced her to marry and she forcibly given consent to the marriage. She is still loving the school van driver and the mind and soul of the respondent cannot accept the petitioner as her husband. Therefore, she refused to have co-habitation with the petitioner.

On 31.8.2005 at about 3.30 p.m., the respondent visited the petitioner''s house with some rowdy elements when his mother was alone in the house. She was quarreling with the petitioner''s mother assaulted her and threatened her with dire consequences. Petitioner''s mother lodged a complaint before the jurisdictional Police.

From the day the respondent left matrimonial house of the petitioner, she has not returned. The well-wishers and elders of family attempted to bring a compromise but it was a futile exercise. Therefore, left with no alternative, but, to file the petition for divorce on the ground of desertion.

After service of notice, the respondent entered appearance and filed statement of objections. She admitted the marriage and denied that she did not allow the petitioner to co-habit with her and she refused to accept him as her husband. After marriage, petitioner took respondent to his house situated at Bengaluru and made her to slog like a menial domestic servant in his house and though she was unmindful of ill-treatment and cruelty meted out by the petitioner as well as his three sisters and his parents, she was struggling in his house, as, she was not even provided with bare minimum facility in life.

The petitioner did not even allow the respondent to share his bed at any point after their marriage. As soon as the respondent was taken to her matrimonial home, the first condition that was put to her by the petitioner, his sisters and his parents was that the respondent would not be allowed to join/cohabit with the petitioner until she brings at least Rs. 3,00,000/- by way of additional dowry to enable the petitioner''s parents to liquidate the loan, alleged to have been contracted by them for the construction of their house. With this demand remaining unfulfilled, the petitioner refrained from discharging his marital obligations towards the respondent. Naturally, there was no offspring born out of the wedlock between the petitioner and the respondent. The petitioner is under the thumb of his three sisters, one of them who was married had not gone to her matrimonial home. They along with petitioner''s mother made the respondent to lie down on the floor by the side of the cot, on which the petitioner''s mother used to sleep in her room. She was made to lie down on bare hay-knit mattress with a wooden plank as a pillow. The cruel treatment started from the very first day of their marriage and continued till the respondent was practically thrown out of the house. It is an utter falsehood on the part of the petitioner to contend that the respondent did not cohabit with him and she refused to accept him as a husband. The allegation that she has admitted all the allegations made in the petition filed by the petitioner before the police in C.C. No. 3293/2009 is false. The complaint lodged by her speaks for itself. She denied that she ever stated before the petitioner or his parents that she had an affair with one Madhu, who was stated to be the driver of School Van. She denied that she ever stated that she had any physical contact with the said Madhu. She also denied that the parents of the petitioner advised her to forget all those past things and change her mind. Petitioner and his three sisters and his mother concertedly involved in hatching out a sinister idea for doing away from the respondent either to get money from her father or to arrange a second marriage to the petitioner. The above allegations made in the petition are in the climax of the scene for the purpose of this petition. She was forcibly taken to Vanitha Sahayavani by the petitioner, his mother and sisters. She has not given any letter to them. On the contrary, the petitioner''s sister has given two letters written by her copied by the respondent in her own hand and the said letters seems to have been produced. She does not even know the contents of the said letter. She denied that she has ever stated that she was not willing to marry the petitioner and that she was forced by her parents to marry the petitioner as his mother happened to be the direct sister of the respondent''s father. The allegations that the respondent''s father along with some rowdy elements visited the petitioner''s house on 31.08.2005 and took away the respondent is false. She has also pleaded the physical and mental torture inflicted by the respondent and other family members. She has also stated about the conduct of two unmarried daughters and married daughter living in the family. She is always ready and willing to join him. Even now, she is willing to join him and lead a happy marital life.

On the basis of the aforesaid pleadings, the Family Court framed the following points for consideration:

Whether the petitioner has proved that the respondent has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition and without reasonable cause and without his consent and against his wish and therefore, he is entitled for decree of divorce under Section 13(1)(ib) of Hindu Marriage Act?

What order?

To substantiate his claim, the petitioner examined himself as P.W. 1 and produced six documents, which were marked as Ex. P1 to Ex. P6. The respondent examined herself as R.W. 1. The Family Court, on appreciation of the oral and documentary evidence on record has categorically held that there is no desertion by the respondent. It is the petitioner, who has deserted his wife and therefore by giving cogent reasons, has dismissed the petition.

Aggrieved by the said judgment and order, the husband has preferred this appeal.

The learned counsel for the husband, assailing the impugned order contended that admittedly, there was no cohabitation and marriage is not consummated. It is the wife, who has deserted the husband without any just or sufficient cause. Unfortunately, the Family Court has not properly appreciated the evidence and was not right in holding that the husband has failed to prove the desertion and has also recorded a finding that the husband has deserted his wife.

Per contra, the learned counsel appearing for the respondent - wife supported the impugned order.

In the light of the aforesaid facts and rival contentions, the point that arise for our consideration in this appeal is:

Whether the finding of the Family Court that the petitioner has failed to establish the case of desertion, calls for any interference?

In the course of the evidence, a fact which is not pleaded by both the parties has been brought on record which appears to be the real reason for disharmony among the elders. It is not in dispute that the petitioner''s mother is the direct sister of respondent''s father. Dispute arose regarding partition of the joint family properties between the brothers and sisters. Therefore, a partition suit came to be filed in the year 1985. It is during the pendency of the said partition suit, the marriage took place. Later, the matter was referred to Lok Adalat and the matter was settled. Though the matter was settled in Lok Adalat, it appears the heart burning continued, which has shown its manifestation in the way the petitioner and his mother, his sisters have treated the respondent.

The evidence on record discloses that after the marriage, the nuptial ceremony was arranged in the respondent''s house on the date of the marriage itself. The spouses stayed for three days together. Admittedly, there was no cohabitation on those three days. In the cross-examination of respondent-wife, it was suggested to her that she informed her husband that she is undergoing menses period and so stayed away from him, which of course is denied by her. It is also elicited in her evidence that after the marriage, her mother-in-law left her in her parental house itself for five months stating that the days are not auspicious to take the respondent to her matrimonial house. It is admitted fact that during the five months'' period, the petitioner never used to visit the respondent. It is elicited in her evidence that during the five months period, whenever the petitioner used to visit her, he would come in the afternoon and return by evening. However, in the cross-examination of the husband, it is elicited that during the five months period, he never visited the respondent. The reason given for not visiting is, he would not do anything without consulting his parents and he further stated that he did not feel like visiting her. This admitted evidence on record clearly establishes the way the respondent had been treated immediately after the marriage. If the husband did not make any attempt to take his wife to his house and because his mother was of the opinion that for five months there was no auspicious day to take the daughter-in-law back home and if the husband were to plead the same and refused to take her back, the wife cannot be accused of living away from the husband without any just or sufficient cause. However, though this would emerge in the course of evidence, there is no whisper about these things in the pleadings of the parties.

On the contrary, the plea taken by the wife is after the marriage, the husband took her to Bangalore. There, she lived with him, her parents-in-law and three sisters out of whom, though one is married, she was living away from her husband. They had constructed a house. They were in debts and they wanted an additional dowry of Rs. 3,00,000/-, the payment of which was made a prerequisite to cohabit with her husband. According to petitioner, she had an affair with one Madhu, a School van driver and she also had physical contact with the said Madhu and therefore, she was not interested in living with the petitioner. According to him, the said fact is admitted by her before Vanita Sahayavani and she has also admitted the said fact before her parents and that her parents advised her to forget the past and to live with the petitioner. Absolutely, no evidence is adduced in support of these allegations. The documents from Vanitha Sahayavani, where she is said to have admitted her affair with Madhu is not summoned. His parents were not examined, sisters were not examined. Therefore, the Family Court held that those pleas remained as mere allegations without proof. It is strange that if really he wanted his wife, his conduct in not visiting his wife for five months immediately after the marriage is un-understandable. He has also not stated what efforts he made after the expiry of five months to get back his wife. There is no evidence adduced on record to show that the petitioner ever wanted to live with the respondent. In fact according to them, elders interfered and still they were not able to bring about a settlement. No elders are examined in this case to speak about the real dispute and the reasons for failure. On the contrary, his categorical answer in cross-examination that after marriage, for five months when the respondent lived with her parents, he did not feel like visiting her, clearly demonstrates that it is the husband, who is at fault and not the respondent. In fact not even a notice is issued to her calling upon her to join him. He has also not bothered to maintain her, in spite of the fact that the petitioner''s wife is none other than his mother''s brother''s daughter. The way the respondent is being treated by the petitioner''s family is shocking. Either both the parties are not speaking the truth or if the evidence on record is to be appreciated, the reason for separation appears to be the partition suit between the brother and sister and the sister not being satisfied with what she got in the settlement before the Lok Adalat, as they have put up a construction, incurring debts. It is probably for that reason, they demanded a sum of Rs. 3,00,000/- as additional dowry, which was not paid, which is the cause for separation. The evidence on record shows that not only the petitioner, but his parents and three daughters were after the respondent. Having regard to the close relationship between the parties, this conduct of the petitioner and his family members is unbecoming of members of a closely knit family. There is something more than that meets the eyes. At any rate, the evidence does not establish that the respondent-wife has withdrawn from the company of the petitioner without any just or sufficient cause. On the contrary, the evidence on record clearly establishes that it is the petitioner, who has withdrawn from the company of the respondent as rightly held by the Family Court, based on the legal evidence on record.

In that view of the matter, we do not see any justification to interfere with a well considered order passed by the Family Court. There is no merit in this appeal. Appeal is dismissed.