K. Palanisamy vs P. Samiathal

Prabha Sridevan, J.—The appellant, the husband filed H.M.O.P. No. 112 of 1996 before the Principal Subordinate Judge. Erode against

the respondent for divorce on the ground of desertion. They were married on 28-5-1964. The respondent was related to the appellant and a few

years older than him. Two children were born, a male by name Rejendran in 1968 and a female by name Padmavathy in 1974. According to the

appellant he was in a transferable job. His parents as well as the respondent disliked the fact that he was constantly moving from one place to

another and wanted him to resign his Job and settle down in his native village. The appellant refused to do so. In 1979 when he was posted in

Erode he allowed the respondent and his children to stay with his parents in the village. According to the appellant, the respondent used to

dominate him and because she was uncultured she felt isolated from her neighbours who were cultured and educated. She was encouraged in her

conduct by the appellant''s parents. His requests to the respondent to join him were in vain and she would threaten the appellant that if he forced

her to live with him she would commit suicide. In August, 1984, when he requested her to join him she tried to commit suicide, but she was

rescued. After that he did not force her to join him. In September. 1994. the appellant went to Chennai to pursue higher studies. The respondent

refused to join him and she also did not allow the children to move with him freely. After 1979, she failed to perform her marital obligations. He

was posted in Arani for four and half years and thereafter at Madras. Because of her illiteracy his only daughter died in 1994 due to rabies. The

only son of the appellant also has become mentally unstable because of the ignorance and illiteracy of the respondent. The respondent has a

morbid mind and there is no mutual adjustment and understanding. She is very money minded. The respondent had treated the appellant with

cruelty and therefore, the appellant is no longer interested in retaining the marital bounds. In the first week of Chitirai 1990, an effort was made for

reunion before the Panchayatars. But this also failed. Since the respondent had practically deserted the appellant from Chitirai 1990, he filed this

petition for divorce on the ground of cruelty and desertion.

The respondent denied all the allegations and submitted that it was only at his request that she stayed with his parents when he was working in

Erode, in 1977. The case that she neglected him or treated him with cruelty or she tried to commit suicide was denied. The daughter died in spite

of the best efforts of the respondent and the appellant totally neglected even his own daughter, and the illhealth of his son. The appellant has not

taken any efforts to help them but has shifted the blame on the respondent. The case of the Panchayat in Chitirai 1990 was also denied. According

to the respondent, it was the appellant, who had deserted her while she was always ready and willing to join him. It was the appellant, who was

ashamed of her because she was a village woman and had isolated her and deserted her.

The learned Principal subordinate Judge, Erode on a consideration of the oral and documentary evidence granted a decree dissolving the

marriage. The respondent filed an appeal before the District Judge, Erode. The learned Judge held that neither cruelty was made out nor the factum

of desertion and allowed the appeal. Against that the present second appeal has been filed.

The following substantial questions of law were framed at the time of admission :

Whether it is mandatory to take steps u/s 9 of the Hindu Marriage Act, 1955 before seeking divorce u/s 13 of the said Act?

Whether the refusal to join the husband for a long period by the wife without any reason or sufficient cause is not desertion and cruelty?

Mr. Suresh Kumar, learned counsel for the appellant submitted that the various efforts made by the appellant to resume the marital life had

resulted in failure. He had carried on only because of the children. When his only daughter died and his son had gone mad the appellant felt there

was no point in continuing the marital relationship with the respondent. He submitted that the Court below had totally failed to consider these

aspects. In the oral and documentary evidence it is also shown that the respondent was not at all interested in joining him. He relied on the

following judgments.

(1) Chandrika Vs. M. Vijayakumar, :

(2) Smt. Chanderkala Trivedi v. Dr. S.P. Trivedi (1994) I MLW 36

(3) V. Bhagat v. Mrs. D. Bhagat (1994) 1 MLW 27.

The learned counsel for the respondent on the other hand submit that it was the appellant who had left the respondent in his village and had

refused to take her and he cannot take advantage of his own wrong. He also pointed out that the appellant had not produced any evidence to

show that he had made any efforts to take back the respondent. There was absolutely no evidence regarding the Panchayat and therefore, there

was no ground for granting a divorce. As regards the ground of cruelty there are no averments regarding the instances of mental cruelty.

According to the appellant, the very fact that she refused to join him amounted to mental cruelty and therefore, a decree for divorce ought to be

granted. The Lower Court had considered the evidence of P.W. 1 and his pleadings wherein he had stated that he allowed the respondent and the

children to stay with his parents and he used to travel everyday to Erode and his native place. Therefore, the Lower Appellate Court held that

when it was at the instance of the appellant that the respondent was left behind with his parents it was not open to him to say that she deserted him.

The Lower Appellate Court also found that the documents filed by the appellant were letters written by the children to the appellant and there is

nothing in those documents to show that the appellant requested the respondent to join him. In fact these letters only show that the children had

been constantly in touch with their father which gives the lie to the case of the appellant that the respondent had poisoned her children''s mind

against the appellant. As regards the alleged Panchayat supposed to have been held in the first week of Chitirai 1990, the appellant has not

produced any document to show that there was such a Panchayat nor has he even mentioned the names of the persons in whose presence this

Panchayat was supposed to have been held. In his evidence he has stated,

(Vernacular matter omitted.....Ed.)

He also has said in his evidence that the Panchayat took place in his parent''s house. His parents are still alive and he could have summoned them

as witness to give evidence regarding the Panchayat. He did not do so. So the Court is left only with his statement that there was the Panchayat in

which reunion was mooted and had failed.

The decisions cited by the appellant''s counsel may now be examined. In Chandrika Vs. M. Vijayakumar, the Division Bench of this Court held

that the wife has a duty to live with her husband and failure on her part to rejoin her husband despite steps taken by him would amount to

desertion. In the present case, apart from the pleadings there is absolutely no evidence to show that the appellant had taken any steps to resolve

the problem or to request her to join him. In fact in his evidence, he has stated as follows :

(Vernacular matter omitted.....Ed.)

Therefore, this decision will not apply to the present case. Of course, in response to this the learned counsel for the appellant

could state that the respondent threatened to commit suicide whenever he called him. But there is absolutely no proof regarding this.

In (1994) 1 MLW 27 (cited supra), the Supreme Court dissolved the marriage between the parties on the ground that it is abundantly clear that

there was an irretrievable break-down. Even in that case, the Supreme Court held that irretrievable breakdown of the marriage is not a ground by

itself. In that case, there were allegations of an insanity, extreme mental cruelty etc. and the Supreme Court came to the conclusion that the

respondent has resolved to live in agony only to make life a miserable hell for the petitioner as well. Such a circumstance

does not arise in the present case.

In (1994) 1 MLW 36, the Supreme Court dismissed the wife''s appeal against grant of decree of divorce on the ground the marriage appears

to be practically dead. There were allegations of adultery made by the wife which were countered by allegations of undesirable association of his

wife with young boys. The Supreme Court in these circumstances decided not to interfere with the decree for divorce but made some

arrangements for maintenance of the wife. This decision also will not apply to the present case.

In the instant case, it is the appellant himself who appears to have left his wife, the respondent herein with his parents. Without any material to

show that he had taken her back or had taken steps to take her back it would be difficult to come to the conclusion that she had deserted him. To

grant a decree for divorce on the ground of desertion the fact of physical desertion and also the animus to desert must be proved. The pleadings

have been searched in vain for any averment regarding the date when the respondent left the appellant with an intention to leave the marital home.

If the appellant had left her behind and had not taken her back, because according to him she would not fit in the urban environment, he cannot be

allowed, to take advantage of his own wrong. In the absence of any material to show that either the appellant had repeatedly requested the

respondent to join him and she flatly refused or that the respondent had deliberately and without just and reasonable cause left the marital home.

The Judgment of the Lower Appellate Court cannot be interfered with. The Lower Appellate Court found on facts that it was not the wife, who

refused to join the husband, but the husband had left her behind and therefore, there was no desertion. There is nothing in the judgment of the

Lower Appellate Court to show that the learned District Judge had refused to grant divorce merely because the appellant had not taken steps u/s 9

of the Hindu Marriage Act. All that the Appellate Court had said is that it was at the instance of the appellant that the respondent was left behind

with his parents and that the documents filed on behalf of the appellant do not show that the respondent is deliberately living separately from the

appellant. Of course, in para 14 of the judgment the Court below has stated as follows ; (Vernacular matter omitted..... Ed.)

This cannot be construed to mean that the Court below had held that it was mandatory to take steps u/s 9 of the Hindu Marriage Act before

seeking divorce u/s 13, of the said Act. All that it means is that there was no evidence to show that the husband had taken steps to bring the wife

back to matrimonial home.

In these circumstances, both the substantial questions of law framed by this Court do not arise for consideration in the second appeal. The

second appeal is dismissed with costs.

The connected C.M.P. Is also dismissed.