P.C.Kunhinarayanan vs Vijayakumari

Dr.Kauser Edappagath, J.

This appeal has been preferred by the husband against the dismissal of his original petition for dissolution of marriage on the ground of desertion.

The marriage between the appellant and the respondent was solemnized on 31/8/1991 (According to the respondent, the date of marriage is

29/8/1991) at Balal Sri Bhagavathi Kshethram, Hosdurg. Two children were born in the wedlock. Admittedly, they lived together as husband and wife

only till 10/7/1996 and since then, they are living separately. After the marriage, the appellant and the respondent were residing at the house of the

appellant. The respondent went to her house on 10/7/1996 for the delivery of the second child. Thereafter, she did not return to the house of the

appellant. The appellant alleges that the respondent without any reasonable cause did not return to matrimonial home intentionally and thus, deserted

him. On the other hand, the respondent alleges that she was treated with cruelty by the appellant while they were living together and further the

appellant has contracted another marriage and living with the said lady. Thus, the respondent projects reasonable cause for her separate living. In the

year 2002, the appellant preferred Original Petition for dissolution of marriage as OP No.88/2002 on the ground of desertion. The said original petition

was dismissed holding that the respondent did not desert him. Thereafter, in the year 2008, the appellant preferred OP No.130/2008 for restitution of

conjugal rights. The said petition was resisted by the respondent and, after trial, it was dismissed. It was thereafter that the present original petition has

been filed for dissolution of marriage on the ground of desertion in the year 2014.

It is alleged in the original petition that the respondent left the company of the appellant without any reasonable cause since 10/7/1996. It is further

alleged that, on so many occasions, the appellant approached the respondent and tried to bring her back to his house and he attempted to contact her

over telephone but the respondent did not turn up. It is specifically alleged that, on 10/12/2013, the relatives of the appellant and mediators again

approached the respondent and requested her to join him, but she expressed her unwillingness to come and reside with him and continue the marital

relationship.

In the counter statement filed by the respondent, she specifically denied the ground of desertion canvassed by the appellant. It is contended that

during the period when they resided together at the house of the appellant, she was treated with cruelty, both physically and mentally, by the appellant.

It is further contended that the appellant took her to her house for delivery of the second child when she was seven months pregnant and thereafter

the appellant never visited her to take her back. It is also contended that the appellant married another lady namely Sreeja and he is living with the said

lady. According to the respondent, it was the appellant who deserted her and deliberately deprived her the company and cohabitation without any

reasonable cause. She was constrained to live separately due to the ill-treatment and neglect by the appellant, added the respondent. The respondent

sought for the dismissal of the petition.

The appellant gave evidence as PW1 and the respondent gave evidence as RW1. Ext.A1 was marked on the side of the appellant and Ext.B1 was

marked on the side of the respondent. After trial, the court below found that the evidence on record shows that the respondent did not desert the

appellant and accordingly the original petition was dismissed as per the impugned decree and judgment. Challenging the said decree and judgment, the

appellant preferred this appeal.

Heard both sides and perused the records.

The appellant is now aged 57 years and the respondent is now aged 49 years. Admittedly, the parties are living separately for the last 25 years i.e.,

w.e.f. 10/7/1996. Both have categorically stated at the court below that they have absolutely no intention to resume the cohabitation. They have their

own reasons to tell.

This is the second time the appellant approaches the court to dissolve the marriage on the ground of desertion. Admittedly, till 10/7/1996, both were

residing at the house of the appellant. On that day, the respondent was taken to her own house for the delivery of the second child. The court found

that since the respondent went to her own house for the purpose of her second delivery, it cannot be said that she has deserted him. Accordingly, the

original petition was dismissed. However, the contention of the appellant in the earlier original petition (OP No.88/2002) was that, after the delivery of

the second child, she did not return to his house without any reasonable cause.

S.13(1)(b) of the Hindu Marriage Act states that desertion must be for a continuous period of not less than two years immediately preceding the

presentation of the petition. In the Explanation to the said provision, the word 'desertion' is defined as 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 wilful neglect of the petitioner by

the other party and its grammatical variation and cognate expression have to be construed accordingly. Therefore, in order to constitute a matrimonial

offence, desertion must be for a continuous period of not less than two years before the presentation of the petition. After the dismissal of OP

No.88/2002, the appellant filed OP No.130/2008 for restitution of conjugal rights, which was also dismissed. The definite case of the appellant is that,

thereafter on 10/12/2013, his relatives and mediators again approached and requested the respondent to join with the appellant, but, she informed her

unwillingness to come and resume cohabitation with him. Thus, the cause of action for the present original petition is a totally different one and

therefore, the dismissal of OP No.88/2002 is not a bar to institute the present petition for dissolution of marriage on the ground of desertion.

The question as to what precisely constitutes “desertion†came up for consideration before the Supreme Court in Bipinchandra Jaisinghbai

Shah v. Prabhavathi (AIR 1957 SC 176). It was held that “For the offence of desertion, so far as the deserting spouse is concerned, two essential

conditions must be there, (1) the factum of separation, and (2) the intention of bringing cohabitation permanently to an end (animus deserendi).

Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving

reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaidâ€​. It was further held that desertion is a matter

of inference to be drawn from the facts and circumstances of the case. The inference may be drawn from certain facts, which may not in another

case be capable of leading to the same inference. If, in fact, there has been separation, the essential question always is, whether that act could be

attributable to the animus deserendi since both the factum and animus should co-exist for a period of at least two years. In the case of Lachman

Utamchand Kirpalani v. Meena alias Mota (AIR 1964 SC 40) and Smt.Rohini Kumari v. Narendra Singh (AIR 1972 SC 459), the Supreme Court has

reaffirmed the principle stated in the earlier case with regard to the concept of desertion under the Hindu Marriage Act. In Savitri Pandey v. Prem

Chandra Pandey (AIR 2002 SC 591), the Supreme Court following the above decisions held that, in its essence, desertion means the intentional

permanent forsaking and abandonment of one spouse by the other without other's consent and without reasonable cause. It was further held that

desertion may also be constructive which could be inferred from the attending circumstances. The Division Bench of this Court in Latha Kunjamma S.

v. K.Anil Kumar (2008 (2) KHC 580) has held that the ground for desertion upon which the petition for dissolution of marriage was filed does not

require that the petitioner must prove her case beyond all reasonable doubt. Standard of proof required is only sufficient to find out whether the

preponderance is in favour of the existence of the fact alleged.

Coming to the facts of the case, as already stated, the respondent after leaving the company of the appellant as early as on 10/7/1996 is living

away from the appellant at her house with the children. The evidence discloses that thereafter they did not reside together even a day. In the counter

statement, the respondent projected two reasons for her separate living. The first reason shown is the ill-treatment and cruelty on the part of the

appellant and the second reason is that the appellant has contracted another marriage with one Sreeja and he is residing with her. It must be noted that

apart from the mere allegation that the appellant treated the respondent with cruelty, there is absolutely no evidence either in this case or in the earlier

litigations that the appellant exercised any cruelty on the respondent. In so far as the allegation regarding the second marriage of the appellant is

concerned, the case charged against the appellant for bigamy u/s 494 of I.P.C. at the instance of the respondent ended in acquittal. Even the criminal

case registered against the appellant at the instance of the respondent on the allegation that the appellant trespassed into the parental house of the

respondent and assaulted her ended in acquittal at the appellate stage. Thus, both grounds canvassed by the respondent for her separate living have no

basis.

It is pertinent to note that after the dismissal of OP No.88/2002, the appellant preferred OP No.88/2014 seeking restitution of conjugal rights. The

said original petition was resisted and hotly contested by the respondent and ultimately it was dismissed. When the appellant/husband makes an offer

to resume the conjugal relationship and the respondent/wife resists the same without any reasonable cause and fails to resume cohabitation, that itself

amounts to constructive desertion. In the said original petition, the respondent has contended that she was not interested to resume the conjugal

relationship. When the respondent was examined in this original petition also, she categorically stated that she has no intention to reside with the

appellant. We have already found that the respondent failed to substantiate the two reasons shown by her for her separate living. Admittedly the

parties are living separately for the last more than 25 years. Since the respondent has turned down the offer made by the appellant in the original

petition filed by him for restitution of conjugal rights to resume the marital relationship, it has to be held that the respondent has constructively deserted

the appellant without any justifiable cause since then.

For the reasons stated above, we hold that the appellant has made out a case for desertion and is entitled to a decree for dissolution of marriage on

that ground. Accordingly, we allow the appeal and set aside the impugned decree and judgment. The marriage between the appellant and the

respondent solemnized at Balal Sri Bhagavathi Kshethram, Hosdurg hereby stands dissolved. The parties shall bear their respective costs.