Chigurupati Sambasiva Rao vs Chigurupati Vijayalakshmi

G. Radhakrishna Rao, J.—This appeal is filed against the order of dismissal in O.P.No. 560 of 1987 by the learned Subordinate Judge, Khammam.

O.P. No. 560 of 1987 was filed by the husband for divorce u/s 13(1)(b) of the Hindu Marriage Act, on the ground of desertion. It is averred by the petitioner-husband that his marriage took place with the respondent on 16-6-1979 at Vijayawada as per Hindu rites and custom and the same was consummated; that during the wedlock, they were blessed with two daughters; that the petitioner, who was working in Postal Department at Vijayawada, put up his family in his own village i.e., Penamaluru, which is nearer to Vijayawada and there the respondent lived for a period of six months with the petitioner; that thereafter, she left the company of the petitioner without any reasonable cause and excuse and began to live in the house of one Smt. Arvapalli Suseela; that thereafter, the respondent went to her native place Bommaluru and stayed there for a period of one and half years; that due to the repeated persuasion of the petitioner, the respondent again joined the petitioner after one and half years; and that the respondent was advised by the elders to behave properly in view of the welfare of their family. It is further alleged that right from the beginning, the respondent used to behave as per her own whims and fancies to the dislike of the petitioner; that she tried to assert her supremacy and sense of independence and in pursuance of her such predelictions, she always used to pick up quarrels with the petitioner and used to make simple tilings complicated; and that the on one occasion she had gone to the extent of removing her ''Mangala Sutram'' and thrown it on road and went away, without informing the petitioner. It is further alleged that the respondent used to demand the petitioner to resign his job and come over to her village Bommaluru, and that during her stay with the petitioner, she was highly adamant. When the petitioner was transferred from Vijayawada to Khammam in the year 1983, the respondent was brought to Khammam and set up family there, and even in Khammam also, in spite of the repeated advice of the elders to behave properly, she again left the company of the petitioner, after staying there for five or six months at Khammam, without informing him. As the petitioner found it extremely difficult to lead marital life with the respondent any longer, he filed the petition for divorce after having failed in his attempts to get her back by sending mediators, and also after issuing a legal notice to the respondent on 12-10-1987.

The respondent-wife admitted the marriage and her begetting the two children through the petitioner. She denied all other allegations made in the petition. It is stated that at the time of marriage, an amount of Rs. 30,000/- was paid to the petitioner towards dowry by her parents and in addition, they promised to give three acres of land to him, and that the petitioner since then used to demand the respondent to alienate the said landed property and bring the amount, to which the respondent did not agree, and that, since then the disputes started. It is further alleged that the petitioner mercilessly beat the respondent when he came to attend the ceremonial function of her father saying that he died without selling the landed property, and he created nuisance there. It is further alleged that after reaching Penamaluru from the native place of respondent i.e., Bommaluru, after one week, the mother of the petitioner tried to pour kerosene on the respondent and beat her mercilessly and also tried to administer poison to her insisting her to sign on some blank papers. Even under those circumstances, the respondent continued to live there along with the petitioner. But finally in the year 1986, on one night, the petitioner beat the respondent brutally and forced her to sign on a blank paper and pressed her to give her consent for divorce, for which, the respondent did not agree and under such circumstances, the respondent went away to her parents place and living there. It is further stated that even now, the respondent has no objection to join her husband to lead marital life.

In order to prove the factum of desertion, the petitioner examined himself as P.W.1. He also examined P.W.2 and P.W.3 to prove the mediation, which was alleged to have been initiated at the instance of the petitioner to bring the respondent back. On behalf of the respondent, she herself was examined as R.W.1. She also examined R.W.2 to speak about the demand made by the petitioner to sell away the landed property and also about the mediation with regard to the said dispute. She examined R.W.3 to speak about the quarrels between the parties, about the demand of the petitioner to sell away the landed property and about the respondent coming and staying in her house for short period. R.W.4 is the adoptive mother of the respondent. R.W.5 was examined to speak about her efforts to settle the disputes between the parties. On a consideration of the entire evidence on record, the learned Judge came to a conclusion that it is not the respondent, but the petitioner himself that had actually deserted the other spouse, and so holding, dismissed the petition filed by the husband. Hence, this appeal.

It is the case of the petitioner that the respondent left his company in the year 1983 itself. But, the respondent on the other hand contends that she was driven out of the house by the petitioner in the year 1986. In order to pass a decree of divorce u/s 13(1)(b) of the Hindu Marriage Act, the petitioner should establish that the respondent deserted him without any reasonable cause and without his consent for not less than two years immediately preceding the presentation of the petition. The O.P. is filed in the year 1987. The witnesses examined on behalf of the petitioner, including the petitioner himself, nowhere stated that the respondent had left the company of the petitioner on a specified date. It must be pointed out here itself that both the petitioner and the respondent are post-graduates. So, when the petitioner seeks decree of divorce on the ground of desertion, the burden is very heavy on him to establish the fact that the respondent had left his company two years prior to filing of the petition by adducing positive evidence to that effect. When he failed to discharge such burden, the petition must fail.

Further, it is the case of the petitioner that when the respondent was living with him in Penamaluru village, she used to harass him and his family members and create nuisance by throwing away her Mangala Sutrams on the road and that she used to go away from his house without informing him, and that she is an adamant lady, and that the said facts are known to one and all in the village. In such a case, the neighbours to the house where the parties are residing are the best persons to speak about the disputes between the parties and the character and the behaviour of the respondent towards her husband and in laws. But, the petitioner did not choose to examine not even a single person who resides in the locality where the house of the petitioner is situate. The non-examination of any of the neighbours is one of the circumstances which goes against the petitioner. The petitioner, however, examined P.W.3, who is related to the petitioner, to speak about the disputes and the alleged mediation. Admittedly, the sur-name of the petitioner and the sur-name of P.W.3 are one and the same. The petitioner also examined P.W.2 who is his colleague, who also spoke about the mediation. He deposed that he was informed by the petitioner that the respondent left his house and that he mediated to settle the differences between the parties but the respondent did not hear his advice. Admittedly, both P.Ws.2 and 3 are interested witnesses. In the absence of any independent evidence to speak about the disputes between the parties, the evidence of the interested witnesses has to be eschewed from consideration and the same need not be given any weight. Thus, the non-examination of independent witnesses, and moreover examining the persons who are interested in one way or other in the case of the petitioner, throws any amount of doubt over the case of the petitioner.

It is the case of the petitioner that when the mediations to bring the respondent back home failed, the petitioner, as alast resort, issued a legal notice to the respondent asking her to come and join the matrimonial home. If the version of the petitioner that the respondent harassed him and caused annoyance to him and also his family members and finally left his company is, for a moment, taken as real truth, the petitioner would not definitely have made an attempt to issue a legal notice to the respondent, who has been termed as an adamant lady by the petitioner, calling her to come and live with him. So, the bona fides in issuance of the notice by the petitioner is itself in doubt. Surprisingly, the petitioner did not choose to mark the said legal notice as exhibit in the trial Court, which is another circumstance to doubt his veracity. Even if it is believed for argument sake that the petitioner had issued the notice with a genuine intention to resume the marital tie with the respondent, for which the respondent was not agreeable, in such a case, the only recourse available to the petitioner naturally is to file a petition for restitution of conjugal rites u/s 9 of the Act and not a petition for divorce. So, filing of a petition for divorce, without caring to take the available remedy u/s 9 for restitution, is a circumstance which throws a great deal of doubt over the bona fides of the petitioner.

The bone of contention of the petitioner is that the respondent after creating so much of nuisance in their family, left the company of the petitioner and deserted him without any reasonable cause and without informing him. To substantiate his contention, no independent evidence is adduced by P.W.I, except his self-serving statement. One of the witnesses examined i.e., P.W.2 simply spoke that prior to 1983, the petitioner used to come to Vijayawada daily from Fenamaluru, that in the year 1983 both P.W.2 and the petitioner were transferred to Dornakal and the petitioner had kept his family at Khammam, and that the respondent stayed with him for three or four months. Thereafter, the petitioner informed that the respondent left his house and he mediated the issue, but in vain. But there is no whisper in the evidence of P.W.2 that the respondent had caused annoyance or behaved indifferently at any point of time. He simply stated about the desertion of the respondent and his mediation, but he does not know on what ground the respondent had to leave the matrimonial home. The evidence of P.W.3 also is similar. He also did not say the reason for leaving the house of the petitioner by the respondent. So, there is absolutely no evidence to establish the allegation that the respondent deserted the petitioner after causing annoyance and creating scenes in the village.

On the other hand, the witnesses examined on behalf of the respondent deposed that the parents of the respondent gave Rs. 30,000/- as dowry and agreed to give three acres of land, that the petitioner was demanding the respondent to alienate the said land to third parties and bring the sale proceeds, for which the respondent and her parents were not agreeable, and that since then the petitioner used to harass the respondent and beat her frequently and ultimately in the year 1986, she was beaten and driven out of the house by the petitioner.

So, the evidence available on record goes to show that the respondent was forcibly driven out of the matrimonial home by the petitioner as she was not agreeable for the selling away of the landed property. It leads to a conclusion that the petitioner himself is responsible for the desertion. When the petitioner himself is held to be responsible for the desertion, the respondent cannot be found fault. It is universally known fact that unlike in western countries, were the matrimonial ties are simply regarded as mere contracts and nothing more and separation is not at all viewed with any seriousness, the women in this Hindu society regard the matrimonial tie as a sacred one and do not, in any normal circumstances, prefer to break away that tie. We come across so many instances where, inspite of the brutal harassment and torture meted out at the hands of the husband, she will not try to break away the sacred tie. Coming to the case on hand, the respondent is an educated lady, having possessed postgraduate degree. She also hairs from a decent family and is having properties in her name. Above all, she is shouldered with the burden of looking after the welfare and maintenance of her two minor female children. So, under the given circumstances, it is not possible for us to believe the allegation of the petitioner that the respondent herself deserted his company without any reasonable cause, and therefore, we hold that this allegation is wild and baseless, and is made only to get rid of the respondent, with an ulterior motive.

Further, according to the petitioner, the respondent left his company in the year 1983. According to the respondent, she was driven out in the year 1986. No steps are taken by the petitioner from then onwards to provide maintenance to his children, who are living along with their mother. He did not even care to see them at any point of time since their separation. So, it clearly points out the intention of the petitioner that he is neither interested in his wife nor in his children and moreover, he filed this petition alleging desertion. It is to be noted here that the respondent expressed her willingness to join the petitioner. But, the petitioner himself is not ready and willing to live with the respondent. All these circumstances go to show that the petition is falsely filed without any reasonable cause in order to get rid of the head-ache of the respondent. For these reasons, the petitioner is not entitled for a decree of divorce against his wife. In dealing with the cases of this nature, the Courts must bear in mind that breaking of a matrimonial tie is an exception and reuniting the same is an ordinary thing. Unless and until exceptional circumstances are brought out, it is not desirable to break off the matrimonial tie. In this case, no such exceptional or unnatural circumstances are brought out by the petitioner. He did not even make a bald allegation that the respondent is having bad character. In such circumstances, it is not at all desirable to break off the matrimonial tie between the parties. Simple differences should not lead to the breaking of the very matrimonial relation. For the above reasons, we are of the view that the trial Court is perfectly justified in dismissing the O.P. filed by the husband.

Pending the appeal, on an application filed by the respondent herein u/s 24 of the Act, a Division Bench of this Court in its order dated 3-4-1992 in CM.P.No. 3188 of 1992, directed the petitioner herein to pay maintenance of Rs. 500/- to the wife and Rs. 250/- to each of the minor daughters, in all a sum of Rs. 1,000/- every month, pending disposal of the appeal. A reading of Sections 25 and 26 of the Hindu Marriage Act makes it abundantly clear that pending appeal, the Court has got power to make such interim orders and also make such provisions in the decree, with regard to the maintenance of the wife and children as well as for the education of the children and their expenses, without insisting on separate application. After the appeal is disposed of, at times on application by the party, similar directions or provisions in the decree can also be made. Thus, the maintenance granted earlier pending the appeal can be directed to be paid even after the disposal of the appeal, depending on the circumstances of the case, and the said direction can even form a part of the decree. For this view of ours, support can be had from the Judgment rendered by a Division Bench of this Court in C. Meena Vs. C. Suresh Kumar, . The reasoning given by the Division Bench of this Court in C.M.P.No. 3188 of 1992 while assessing the quantum of maintenance for granting a sum of Rs. 1,000/- appears to be correct. The Division Bench after taking into consideration the status and necessities of the parties and the income derived by the petitioner granted the said sum. We feel that granting a sum of Rs. 1,000/- towards the maintenance of the respondent and her children is not either on the high side or on the low side. Hence, the said amount is maintained.

In the result, the appeal is dismissed with the above observations.