Renganayaki vs Arunagiri

Pratap Singh, J.—This appeal is directed against the judgment in C.M.A. 128/81 on the file of District Judge, Trichirapalli in which the

learned District Judge has allowed the appeal and thereby decreed H.M.O.P. 7/78 on the file of Principal Subordinate Judge, Tiruehirapalki, for

divorce.

Short facts are : The respondent herein had filed petition u/s 13(1)(b) of Hindu Marriage Act for divorce on ''the ground of desertion in

H.M.O.P. 7/78 before the trial Court on the following grounds :

He married the petitioner herein on 10-9-64. She is a hot tempered lady. She used to leave for Karur without any intimation to him and used to

stay there. On 6-8-66 she went away to Karur and wrote a registered letter calling upon him to go and reside with her at Karur. Despite his

efforts, she did not come and so he filed H.M.O.P. 63/67 for restitution of conjugal rights. She realised her mistake and came over to his house

with her parents. So, H.M.O.P. 63/67 was not pressed and dismissed. But again trouble started and she left him in the third week of December

1973. Thereafter she has not come back. Thus she had deserted him for more than a continuous period of two years. Hence the petition.

The petitioner herein, respondent before the trial court resisted the claim on the following grounds :

Marriage is true and she went to live with her husband. She was treated with hostility. Her father-in-law has got two wives. The respondent is the

son of the second wife. She also joined with him in abusing her. An undesirable woman was brought into service. She was hostile from the

beginning. Getting frustrated, she tried to commit suicide by swallowing a diamond stone from her earring, within closed doors. Her father-in-law

pushed upon the doors and then her father-in-law sent a telegram to her father and admitted her in the hospital. The diamond stone came out of the

stomach. Without showing any sympathy, she was treated with hostility and ultimately she was driven out. After the filing of O. P. 63/67 through

the good offices of her advocate, the matter was compromised. Her husband undertook to send away the undesirable Chakklar woman.

In the middle of 1972, this Chakklar woman Kannammal was brought back to the house and her husband was freely having amorous

relationship with her. Though she protested, it was not heeded. In the circumstances, her parents came over there and the petitioner and his mother

abused them and stated that she and her children were not wanted in the house and they should be taken away. In those circumstances she had to

go. There was no desertion.

After trial, the learned trial Judge had found that the petitioner''s case is not proved and had dismissed the petition. Aggrieved by the-same, the

petitioner filed appeal in C.M.A. 128/81 before the Principal District Judge, Trichirappalli. After hearing the parties, the learned District Judge had

allowed the appeal and thereby decreed H.M.O.P 7/78 and had awarded divorce. Aggrieved by the same, the respondent in the trial court has

come forward with this second appeal.

Mr. P. Mani, the learned counsel for the appellant, would submit that the learned District Judge has not assessed the evidence in its proper

perspective and has come to an erroneous conclusion. He further submitted that the learned District Judge has stated that at any rate the appellant

has condoned the immoral relationship between her husband and Kannammal and while so she cannot complained about it, but there is evidence to

show that after dismissal of the petition for restitution of conjugal rights and after the appellant resumed cohabitation with her husband, Kannammal

was again brought back to the house of the respondent and immoral relationship continued and this has not been taken note of by the learned

District Judge. There is no representation on behalf of the respondent.

The lower appellate court has stated that the learned counsel for the husband submitted that reference to this spouses past conduct was

immaterial in as much as such past conduct has been condoned by the wife who had come and lived with him and as a matter of fact had given

birth to three children and therefore in view of such condonation, it is not open to the wife now to find fault with the past conduct of the husband

and put forward this ground as justification for her separate residence at Karur. The learned District Judge would state that there is considerable

force in this contention raised by the learned counsel for the respondent. The learned counsel for the appellant would also submit that there is

admission by the petitioner himself that even after the reconciliation and after the wife rejoined her husband, the Chakklar woman was again

brought back to the house. The husband, the respondent herein, figured as P.W. 1 has admitted in cross-examination that the Chakklar woman is

living in his house even now. He would add that if his wife comes and lives with him, he is prepared to terminate her services, so even now that

lady is living in the house of the respondent herein. The appellant, as R.W. 1 has stated that her mother-in-law and Chakklar woman Kannammal

abused her and when she reported the matter to her husband, he told that he is keeping that Chakklar lady Kannammal and asked her to leave the

house and so she swallowed a diamond stone and jumped into the well to commit suicide. She would also state that her husband had intimacy with

servant woman Kannammal and beat her and asked her to go away from the house. She has also stated that after the filing of the petition for

restitution of conjugal rights in HMOP 63/67, her advocate asked her husband to terminate the services of Kannammal and he agreed and so she

also agreed to live with him and went and lived with her husband and thereafter three children were born to them. But after the birth of the third

child, her husband again took the said Kannammal back and he objected to the same. She would further state that the said servant lady abused her

and she complained to her husband and he beat her. She has also stated that her husband only asked herself to leave the house and her husband

gave a telegram to her father and he came and her husband abused her parents and send them away. The tenor of the evidence would clearly go to

show that the appellant was anxious to live with her husband and on one occasion, because of the ill-treatment meted out by her in her husband''s

house, she was constrained to swallow a diamond stone and attempted to commit suicide. It is also in evidence that after her husband filed a

petition for restitution of conjugal rights, she readily rejoined with him. Her complaint is that her husband is having illicit intimacy with that Chakklar

woman servant lady Kannammal and the servant lady goes to the extent of even abusing her and her complaint to her husband did not bear any

fruit. On the other hand her husband would only beat her. It is the admission of her husband that the said servant lady is now in the house. He is

prepared to send her away only in case her wife rejoins him. The totality of the circumstances would clearly go to show that the appellant was

constrained to leave her husband''s house, because of the circumstances and because of the hostile attitude of her husband who had asked her to

leave the house when she complained about the servant lady. The appellant has stated that he had seen her husband having sexual intercourse with

the said Kannammal in the cattle shed on several occasions and that was prior to HMOP 63/67. Now the very same lady had rejoined service. It

is the positive evidence of the appellant that her husband had beat her only because she complained to him about that servant lady. I am clear that

there is no desertion on the part of the appellant but she was practically driven out of the house by the respondent herein. It can also be inferred

from the available evidence that the respondent has taken back the same servant lady Kannammal and the circumstances indicate that he would

have resumed his illicit intimacy with her. In the circumstances, the learned District Judge is wholly incorrect in coming to a conclusion that the

appellant had deserted her husband wilfully for more than the required period. Such a finding cannot at all he arrived at on the foot of the evidence

available in this case. Hence I have no hesitation to setting aside the finding of the lower appellate court and restore the finding of the trial court. In

the absence of evidence of desertion on the part of the appellant, the petition for divorce is to necessarily fail and shall stand dismissed.

In view of the above, this appeal is allowed, setting aside the judgment of the lower appellate court and restoring the judgment of the trial court

and thereby H.M.O.P. 7/78 shall stand dismissed.

Appeal allowed.