Palaniswamy vs Sarojini

S. Jagadeesan, J.—The unsuccessful petitioner before the courts below is the appellant in both the appeals. The appellant had filed O.P.

Nos. 193 of 1981 and 164 of 1982 for dissolution of the marriage with the respondent. O.P. No. 193 of 1981 was filed on the ground of cruelty.

It is the case of the appellant that the appellant and respondent lived together for six years after the marriage as husband and wife. They do not

have any child. One medical examination, the medical report reveals that the respondent may not bear any child. Thereafter misunderstanding arose

between them and the respondent treated the appellant with utmost cruelty in all possible ways and it is not possible for the appellant to live with

the respondent.

During the pendency of this O.P. No. 193 of 1981, the appellant had filed another O.P. No. 164 of 1982 against the respondent for dissolution

of marriage on the ground of desertion alleging that the respondent had left the marital home for more than two years and she is living with her

parents and she refused to return to the appellant''s house to lead a normal married life. The respondent has filed a counter affidavit denying the

allegations made in the original petition. The trial court after careful consideration of the documentary as well as oral evidence dismissed both O.P.

Nos. 193 of 1981 and 164 of 1982 by a common judgment. As against the said common judgment, the appellant had filed appeals in C.M.A.

Nos. 133 and 134 of 1983 before the District Court, Coimbatore and the appellate authority also after carefully considering the oral and

documentary evidence dismissed the appeals. Hence the present C.M.S.A. Nos. 9 and 10 were filed against the Judgment of the district Judge,

Coimbatore.

In these appeals, the learned counsel for the appellant contended that for the past nearly 15 years, the parties are living separately and there is

no possibility of any reconciliation between the parties. When that be so, there is no justification for dismissing the appeals and in order to purchase

peace, it will be better that divorce may be granted. It is an admitted case that the appellant and the respondent were married on 7.12.1973 and

they lived for seven years and lead a happy married life. From the materials on record, I am of the view that the appellant has not come out with a

true case. So far as the plea of cruelty is concerned the appellant''s case is that in January, 1980, the respondent/wife whipped out a knife and

made an attempt on his life. Unfortunately, on account of the intervention of some others he had a providential escape, and in June, 1981, the

respondent trespassed into the appellant''s room and abused him and other members of the family in a very bad language. So far as the desertion is

concerned, it is the case of the appellant that the parents of the respondent are residing 20 Kilometers away from the village of the appellant and

the respondent very often used to stay with her parents and she refused to come back after the misunderstanding arose between them in 1980. The

courts below have taken into consideration the evidence of the appellant himself wherein he has admitted that the respondent was residing with her

parents and he used to visit her parents house during the week ends and stayed there for two days and this was continued for nearly six years. If

this evidence is accepted, automatically the plea of cruelty during the period of 1980 would fail. Even assuming that there is something to say about

the plea of cruelty the same is deemed to be condoned by the subsequent conduct of the appellant by visiting the respondent''s parent''s house and

staying there with the respondent. It should be taken that her conduct had been condoned by the appellant and now it is not open to him to make

any complaint against her. Both the courts below have concurrently held that there is no desertion as well as no cruelty on the part of the

respondent. For the plea of desertion, it would be worthwhile to note the recent judgment reported in Ganesan v. G. Gnanasoundari 1995 (1) LW

113, wherein Thangamani, J., has observed as follows:-

There expression ''desertion'' in the context of matrimonial law represents a legal conception and is one very difficult to define. The essence of

desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the

other. It is a well established principle that the spouse who withdraws from cohabitation for what is described as a good cause, such as cruelty,

cannot be said to be guilty of desertion. For, in such a case, it is the conduct of the offending spouse that is the cause of the separation and the

spouse who leaves the matrimonial home cannot be said to have acted from any animus deserendi and it is also well settled that the legal burden

throughout the case is on the petitioner to prove that the wife deserted him without cause.

In this case, when the appellant himself has admitted that he is visiting the respondent at her parent''s house once in a week and staying there for

two days, it cannot be presumed that the respondent of her own volition has deserted the appellant and left the matrimonial home and stayed with

her parents, which amounts to desertion. The appellant miserably failed to establish the plea of desertion.

It should be noticed that the respondent always expressed her willingness to come and join with the appellant and only the appellant has rejected

the offer made by the respondent. The appellant cannot be permitted to take advantage of his own fault to plead the desertion. Hence there are no

merits in both the CM Second Appeals and they are liable to be dismissed.

In the result, the CM.S.A. Nos. 9 and 10 of 1984 are dismissed. However, considering the relationship between the parties, there will be no

order as to costs.