S. Murugan vs K. Rajeswari

P.D. Dinakaran, J.—The above appeals are directed against the common order of the Family Court, Coimbatore, dated 14.11.2000

passed in H.M.O.P. Nos. 715 and 755 of 1995.

While H.M.O.P. Nos. 715 of 1995 was filed by the husband for divorce on the grounds of cruelty and desertion, H.M.O.P. Nos. 755 of 1995

was filed by the wife for restitution of conjugal rights. The Family Court, after considering the materials available on record, dismissed the petition

for divorce and allowed the petition for restitution of conjugal rights. Hence, the present appeal by the appellant/husband.

3.1. The facts, in nutshell, are stated as follows:

The marriage of the appellant/husband with the respondent/wife was solemnized on 30.8.90 at Coimbatore as per the Hindu customs and rites.

After the marriage, they lived happily for some time and out of their lawful wedlock, one female child and one male child were born and the male

child is stated to be no more. The appellant is working as a driver in the Mettupalayam Municipality.

3.2. It is the case of the appellant/husband that after their marriage, the respondent/wife often used to pick up quarrels with him and his parents on

flimsy grounds, and leave the matrimonial home and go back to her parents house. After much persuasions, the respondent/wife joined him and

insisted him to put up a separate residence. But, since the appellant/husband was not willing for the same, she again left the matrimonial home and

lived with her parents. It is the further case of the appellant/husband that even after giving birth to the children, the respondent/wife picked up

quarrels and on one occasion, threatened him that she would commit suicide by pouring kerosene and setting up fire on her. Hence, he issued

notice on 26.9.95 calling upon her to give willingness for divorce by mutual consent.

3.3. Per contra, the respondent/wife, by way of a counter affidavit, denied all the allegations made by the appellant/husband. She has stated that

the petition for divorce on the ground of desertion is not maintainable and that in spite of the notice sent by her on 30.11.95 calling upon the

appellant/husband to take her and the children back to matrimonial home, the appellant/husband did not turn up. She has further stated that there

was a demand of dowry both before and after the marriage. Appellant/husband is a alcoholic and in spite of repeated requests by the wife, he did

not stop and he consumed liquor and scolded the respondent/wife in filthy language and also beaten her. The respondent/wife further stated that the

appellant/husband insisted her to make arrangement for marrying her sister as his second wife. Since the respondent/wife refused to give consent

for the same, the appellant/husband drove her and the children out of the matrimonial home. In spite of interference of the panchayatdars, the

appellant/husband is stated to have refused to take her back. Hence, the respondent/wife has stated that it was not she who deserted him, but it

was the appellant/husband who deserted her and ill-treated her. Reiterating the averments made by her in the counter-affidavit, the respondent/wife

has filed the petition seeking restitution of conjugal rights stating that she is ready and willing to live with the appellant/husband, but he is living away

without just and reasonable cause.

3.4. The Family Court, based on the above facts, framed two issues, viz., whether the husband withdrew from the society of the wife without

reasonable and just cause and whether the wife is entitled to the relief of restitution of conjugal rights. The appellant/husband was examined as

P.W. 1 and Exs. A.1 to A.7 were marked on his side. On the side of the respondent/wife, four witnesses were examined and Exs. B.1 to B.7

were marked. The respondent/wife examined herself as R.W. 1, R.W. 2 is the sister of the respondent/wife and R.Ws. 3 and 4 are the

panchayatdars.

4.1. Ms. S. Sasikala, learned Counsel appearing for the appellant/husband, invited our attention to the findings of the trial Court and contended

that the learned trial Judge failed to consider the material evidence adduced on the side of the appellant/husband in a proper and perspective

manner.

4.2. There is no representation on behalf of the respondent/wife. We have carefully perused the judgment and decree of the trial Court in the light

of both the oral and documentary evidence.

5.1. It is seen that the trial Court, on the basis of the evidence, came to the conclusion that the contention of the appellant/husband to the effect that

the respondent/wife had been quarrelling with him even from the very fifth day of their marriage cannot be true, since out of their wedlock, two

children were born and if at all the respondent/wife had no intention to join with the appellant/husband, she would not have returned to the

matrimonial home nor would have lead the family life. The trial Court also disbelieved the evidence of the appellant/husband as P.W. 1 that the

respondent/wife ill-treated him and that she had no liking to him on the basis of the evidence of the respondent/wife, as R.W. 1 that he demanded

money and gold and also told her that if he had waited for six more months, he would have got a wealthy lady as his wife. The evidence of the

respondent/wife with regard to the intention of the appellant/husband in marrying her sister for second time, was also found to be proved by the

evidence of R.W. 2, Suguna, the sister of the respondent/wife, who has stated that she used to receive letters from the appellant/husband as well as

by the documentary evidence, viz., Ex. A-4, the reply notice dated 30.11.95 sent by the respondent/wife to the appellant/husband and Ex. B-3,

the letter written by the appellant/husband to R.W. 2, Suguna, sister of the respondent/wife. In Ex. A-4, it is found stated that when she refused to

give her consent for second marriage, the appellant/husband ill-treated her by beating severely and also drove her away from the matrimonial

home. In Ex. B-3, the appellant/husband has stated that R.W. 2, Suguna, must give a favourable reply for his proposal to marry her. That apart,

the letter given by the appellant/husband to R.W. 2, Suguna, is also fortified by evidence of R.Ws. 3 and 4, who participated in the panchayat and

they also warned the appellant/husband not to repeat that act. As rightly found by the trial Court, there can be no motive for R.Ws. 3 and 4 to

speak falsehood against the appellant/husband and there is also no material on the side of the appellant/husband contradicting the evidence of

R.Ws. 3 and 4. It is also pertinent to note that in Ex. B-1, a xerox copy of the letter addressed by the appellant/husband to one Madaiyan, in

whose house the panchayat was held, the appellant/husband has stated that he would not hereafter interfere with Suguna''s (R.W. 2) life, in which

R.Ws. 3 and 4 have also signed.

5.2. Further, the trial Court has rightly rejected the documentary evidence, Ex. A-7, a copy of the letter written by the respondent/wife to one

Madaiyan, wherein she has stated that she did not like her husband and that there would not be any relationship between her and her husband, on

the ground that it cannot be a document to prove that the respondent/wife treated the appellant/husband cruelly. The trial Court also found that Ex.

B-5, the salary certificate of the appellant/husband, and Exs. B-6 and B-7, the medical records of the two children, prove that the

appellant/husband though earned, did not take care of his wife and children. Based on the above facts and material evidence, the trial Court came

to the conclusion that the appellant/husband demanded further money from the respondent/wife and ill-treated her and accordingly, rejected the

case of the appellant/husband that the respondent/wife had deserted him and treated him cruelly and allowed the petition filed by the

respondent/wife for restitution of conjugal rights.

6.1. The foundation of a sound marriage is tolerance, adjustment and respect for one another. Tolerance to each other''s fault to a certain bearable

extent has to be inherent in every marriage. Petty quibbles and trifling differences should not be exaggerated and magnified to destroy what is said

to have been arranged in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular

case always keeping in view the physical and mental conditions of the parties, their character and their social status. Too technical and

hypersensitive approach would be counterproductive to the institution of marriage vide A. Jayachandra Vs. Aneel Kaur, .

6.2. Apropos of desertion, it only means the intentional permanent forsaking and abandonment of one spouse by the other without the other''s

consent and reasonable cause. The two essential elements to prove desertion are the factum of separation and the intention to bring cohabitation

permanently to an end (animus deserendi).

Furthermore, two elements that are essential for the deserted spouse are (a) the absence of consent and (b) the absence of a conduct giving

reasonable opportunity to the spouse leaving the matrimonial home to form the necessary intention aforesaid.

6.3. In the instant case, as seen from the facts already stated above, it is evident that it was the appellant/husband who ill-treated the

respondent/wife cruelly by demanding further money and by beating her after consuming liquor. Though the appellant/husband alleged that the

respondent/wife attempted to commit suicide, no material evidence has been brought forth by the appellant/husband nor any witness was examined

on this aspect. Further, the mere statement of the appellant/husband that the respondent/wife had left to her parents'' place would not amount to

desertion. The appellant/husband had not proved the factum of separation or the intention to bring cohabitation permanently to an end (animus

deserendi) in the light of any material evidence. On the other hand, the oral evidence of R.W. 2, Suguna, sister of respondent/wife and the

documentary evidence, Ex. B-3, the letter written by the appellant/husband to R.W. 2, Suguna, disclose the intention of the appellant/husband in

marrying R.W. 2, Suguna, the sister of the respondent/wife for the second time and bringing the cohabitation with the respondent/wife permanently

to an end.

6.4. In the light of the views expressed by the Apex Court referred to supra as well as in the light of the materials available, we do not see any

evidence or relevant material adduced by the appellant to substantiate the allegations of cruelty and desertion against the respondent/wife. In the

absence of such evidence and material, we are of the opinion that the trial Court rightly came to the conclusion that the appellant was not subjected

to cruelty at the hands of the respondent nor was he deserted by the respondent/wife.

In the circumstances, finding no material forthcoming to enable the appellant/husband to make out a case for divorce on the grounds of cruelty and

desertion nor any illegality or irregularity in the findings of the Court below, the Civil Miscellaneous Appeals stand dismissed. No costs.