C. Hanumantharayadu vs Smt L.Kavitha

N. Kumar, J.—The husband has preferred this appeal challenging the order passed by the Civil Judge (Sr.Dn.), Hiriyur, disimissing his petition for divorce on the ground of dissolution.

For the purpose of convenience, the parties are referred to as they are referred to in the petition,

The petitioner Sri Hanumantharayadu married the respondent L.Kavitha on 13.10.1995 as per Hindu custom and rituals prevailing in the community at Hiriyur in Karnataka State. The petitioner is the parmanent resident of Kalyanadurga Town in Anantapur District After the marriage, the respondent joined the petitioner at Kalyanadurga. Both of them lived happily. The respondent gave birth to one male and one female child and their names are Varshini and Yeshwanth. The case of the petitioner is that the respondent lived with the petitioner for 3 years and even in that 3 years she was moody and reluctant to cooperate with the petitioner in all aspects After some time she refused to stay with the petitioner in the matrimonial house. She wants to live separately and forced him to males a separate family excluding his old aged parents. His parents are aged 62 years and 58 years respectively The health of his parents was not good and they are dependant on the income of the petitioner. The respondent quarreled with the petitioner number of nines when she was staying with the petitioner so that she want to live separately. The respondent was not at all looking after the parents of the petitioner. At that stage, the petitioner tried to convince hex for staying along with his parents and to look after the parents and respondent has not heeded his request and she was always quarreling and does not want, to live with the petitioner. When the respondent was pregnant, she left the house without intimation and without any reasonable cause on 30.11.1999. petitioner and his parents thought that she has gone to her parents place as she is pregnant Immediately they have contacted her parents who are living at Hiriyur and requested her to come to matrimonial house. She bluntly refused. She made it clear that she will not come to Kalyanadurga and the petitioner has to make a separate family. A male child was born to the respondent on 25.05.2000. Even thereafter the respondent did not join the petitioner. A panchayath was held in presence of elders. Still the respondent revised to join the petitioner. Petitioner has suffered a lot and spent peaceless days. He failed to attend to his duty property. The petitioner had a hope that in future the respondent will join him and they will lead a happy matrimonial life. But the respondent did not join him He waited and from 19.11.1999 she is living with her parents.

In para 2 of the petition, it is specifically stated that the petitioner came to know that the respendent is living wavered life and she is having illegal intimacy with number of persons. Immediately after coming to know the said fact the petitioner went to Hiriyur and enquired about her and came to know that she is living immoral life. When the petitioner questioned about the character of the respondent, this respondent herself admitted that she is living wavered and immoral life. Immediately to threaten the petitioner, the respondent filed M.C.No. 102/2001 on the the of he JMFC Court at Hiriyur which came to be dismissed for default on 07.01.2003. Due to the conduct of the respondent behaving rudely, the petitioner has lost his reputation in the society. The respondent ill-treated and harassed the petitioner as well as his family members. In view of the respect of his family, petitioner tolerated all the humiliation and mental agony. How children of the petitioner are with the impendent The petitioner vexed with the attitude of the respondent and as respondent did not join the petitioner since 30.11.1999, there is no other go to the petitioner except filing a petition for divorce, Therefore, a petition is filed in the Court of the Additional Civil Judge (Sr.Dn.), Anantapur in Andhra Pradesh.

It appears after service of notice, the respondent moved the Apex Court and got the petition transferred to CM Judge (St.Dn), Hiriyur. She filed a detailed statement of objections contesting the claim. The respondent admitted the marriage, birth of children, but the denied all other allegations relating to desertion, Panchayath and humiliation to the petitioner and his parents, She has set out her version. It is her specific case that at the time of marriage of the respondent with the petitioner the parents of the respondent paid a sum of Rs.25,000/- in cash as dowry, one golden chain and one golden ring to the petitioner and also 4 golden bangles weighing 50 gms, one golden chain weighing 30 gms and another gold chain weighing 25 gms and 4 sets of ear rings to the respondent as demanded by the petitioner and his parents. After the marriages, the respondent was sent to matrimonial home i.e., Kalyanadurga. Petitioner and him family members looked after the respondent happily for a, period of 6 months and thereafter the petitioner started demanding Rs.1,00,000/- from the respondent parents through respondent on the pretext of getting Government job. The petitioner and his family members also started demanding the above said amount and started ill-treating her and the said demand had gone to a maximum stage when respondent delivered a girl baby at her parental house at Hiriyur and at that tone the petitioner and his family members refused to take her back without Rs. 1,00,000/-. On the ground that by spending the amount, the petitioner would get a Government job and at this juncture, the parents of the respondent having known the fact of the petitioner getting Government job an a Teacher with utmost difficulty managed to pay Rs.50,000/- cash and after receiving the said amount the petitioner took the respondent and baby to his house. Thereafter, they looked after the respondent happily for few months. Again the petitioner started neglecting the respondent and refused to take her to Mangammena Falli, Anantapur District, where he was residing and working as Teacher. Even petitioner''s parents never allowed the respondent to join the petitioner. At initial stages the petitioner used to come over to Kalyanadurga once in a week and gradually used to visit respondent and his daughter once in a month and thereafter started to neglect her and even started to have illegal intimacy with one Srilatha and also forced her to give consent for divorce or for second marriage or to bring Rs,1,00,000/-from her parents. The parents of the respondent having come to know About the facts and as the respondent being the only daughter and having very much hope it; their daughters life asked the parents of the petitioner to advise the petitioner and in the meanwhile the respondent became pregnant for second time and parents took her back to Hiriyur and during this period the petitioner put forth his illegal demands for money before parents of the respondent. The respondent''s parents refused to fulfill his unlawful demands and finally during December 3000 she gave birth to a male child. The petitioner and his parents refused to come over to Hiriyur to see the newly born baby. The respondent''s parents went to Kalyanadurga to settle the matter and asked the petitioner and his parents to take back the respondent and his children Petitioner again refused. The respondent filed petition for maintenance in MC.No.102/2001 before Hiriyur Court. After learning about the said proceedings the petitioner promised to take her back and get the petition withdrawn. At this juncture, as per his demand one colour T.V., one golden bracelet worth Rs.20,000/- and Rs.50,000/- respectively were given to the petitioner and the respondent along with her two children were taken back by the petitioner to his house. However, they could not live for long. On 03.05.2004, the petitioner and his family members by raining quarrel with the respondent thrown her and her two children by retaining all gold jewels and other valuables with them. Therefore, she was forced to return to her parental house. The respondent has filed a petition in M.C.No.77/3004 on the file of the JMFC, Hiriyur. the petitioner refused to receive the notice of the said case. Now having come to know about the said proceedings, as a counter blast he has preferred this petition for divorce.

In the light of the aforesaid pleadings, the Trial Court framed the following points for its consideration;

1) Whether the petitioner proves that respondent without any reasonable cause or excuse has deserted him for a period of more than 2 years earlier to the filing of the present petition?

2) Whether the petitioner proves that respondent has treated him with cruelty?

3) Whether the petitioner is entitled for de of dissolution of marriage as prayed for?

The petitioner examined himself as FW. 1 and produced two documents - copy of the legal notice and its version as Exk.P1 & P2. The respondent was examined as RW.1. She did cot produce any evidence.

The Trial Court on consideration of the aforesaid oral and documentary evidence on record held that the entire evidence lead by the petitioner and the respondent disclose that the petitioner was ill-treating the respondent and the petitioner was leading immoral life with one Srilatha and petitioner himself has driven the respondent out of his house and as the respondent is not having any alternative, she its residing with her parents. When husband has immoral life with other lady and husband is giving ill treatment, the wile con reside separately from husband and there is exouse for the wife to reside separately under such circumstances there is sufficient cause for the respondent to reside separately from the petitioner. Therefor it proceeded to hold that the case of desertion pleaded is not true. Similarly, it held a case of cruslty is also not established and consequently, it held that the petitioner is not entitled to decres for divorce.

Aggrieved by the said order, the appellant/husband is befors this Court.

The learned counsel for the appellant assailing the impugned order contended that the respondent has deserted the petitioner on the ground that unless he goes out of his family and provides a separate accommodation to her, she would not live with him and the evidence on record clearly established the said fact Mars: so, Ex.P1 produced in this case establishes the said fact. But unfortunately the Trial Court did not properly appreciate the material on record and committed a serious error in holding that case of desertion is not proved. Therefore, he submitted that the order requires to be set aside.

Per contra, teamed counsel for the respondent/wife supported the impugned order

Therefore, the point that arise for our consideration in this appeal is,-

''Whether the finding recorded by the Trial Court that a case for desecration and cruelty is not made out calls for any interference?''

Desertion is a ground for divorce u/s 13(1)(ib). Explanation to Section 13 defines the expression ''Desertion''. It reads as under:

Explanation.- In this sub-section, the expression ''desertion'' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

The evidence on record shows that. from. 2004 the parties are living separately. The marriage took place on 13.10.1095. Two children are born. On the date of the marriage, the petitioner was unemployed. He is the resident of Kalyanadurga in Anantapur District. The respondent is from Hiriyur in Karnataka. She is the only daughter to her parents. After the first child was born, it seams dispute arose between, the parties. The reason is that the petitioner secured an employment as a Teacher at a place called Mangammana Palli. Therefore, he was living separately in Mangammana. Palli whereas the rest of his family was residing in his parental house at Kalayanadurga. In this context if we look into Ex.P1, the respondent demanded that her husband should not leave her in the company of his parents and other members of the family and he should take her to Mangammana Patti, which is rightful place which belongs to her. Unfortunately, the petitioner who is in a teaching profession seem to have not understood these things. Though he is not living with his parents and other family members and as he is employed in Mangammana Palli, he wards to live alone and wants his wife to live with his parents and other family members and to take care of them. Notwithstanding this fact after notice one more child is born to them. Even thereafter the petitioner was not witting to take his wife to the place where he was working. How material on record discloses the reason appears to be that he had an illicit relationship with a nurse Srilatha hailing from Bellary and it is specific case of the respondent that he wants her to give either no objection for the second marriage or a consent decree to enable him to marry that lady.

In addition to that in the petition he has specifically pleaded that the respondent is having illicit relationship with others and therefore according to him that is the reason for her living separately. The Trial Court has carefully scrutinized the entire evidence on record which clearly shows that it is the petitioner who has deserted the respondent in preference to the nurse on whom he has an eye. The ''desertion'' is defined now under the Act means, the desertion of the petitioner by other party to the marriage without reasonable cause and without the consent or against the wish of such party. When the petitioner is not willing to take her back and when she is subjected to humiliation, cruelty and the petitioner has thrown out the respondent and her children out of the family, she has no other go except to go and stay with her parents. The evidence on record is consistent that she is ready and willing to join the petitioner at Mangamamna Palli. It is he who is refusing to take her. The very fact that he contends that she wants an independent house to be made giving an impression that she wants him to come out of his parents family, is contrary to the material on record because he is not living with his parents, he is living independently in Mangammana Palli, he is refusing to take her to Mangammana Palli. Therefore, the trial judge was fully justified in holding that the case of desertion is not proved and that he falsely accused her having illicit relationship with others and that is the reason she is living separately and that would not constitute a case for desertion. We do not see any merit in this appeal Accordingly, appeal is dismissed.