Shantakumari @ Santhi vs R. Venkatasubramani

R.S. Ramanathan, J.—The wife is the appellant. The respondent/husband filed HMOP No. 7 of 2006 before the learned Principal

Subordinate Judge, Salem, for divorce on the ground of cruelty and desertion. The trial court dismissed the petition and the respondent filed an

appeal in CMA No. 46 of 2007 on the file of the Fast Track Court No. 2, Salem and the first appellate court allowed the appeal and granted

decree of divorce. Aggrieved by the same, the respondent/wife filed CMA No. 39 of 2008. The appellant/wife filed HMOP No. 6 of 2006 on the

file of the Principal Subordinate Judge, Salem for restitution of conjugal rights and that was allowed and the respondent/husband filed CMA No.

45 of 2007 on the file of the Fast Track Court No. 2, Salem and the lower appellate court allowed the appeal and aggrieved by the same, the

appellant/wife filed CMSA No. 38 of 2008.

The learned counsel appearing for the appellant submitted that the lower appellate court without understanding the entire principle of law that a

person, who files an application for divorce stating certain grounds has to prove the same and allowed the appeal filed by the respondent on the

ground that the appellant/wife has treated the husband with cruelty and that become evident from her deposition given during trial and the appellant

did not take any steps to live with her husband, even after the application filed by her for restitution of conjugal rights, was ordered in her favour

and therefore, the respondent/husband is entitled to the relief of divorce and the order of the lower appellate court is liable to be set aside.

The learned counsel further submitted that the lower appellate court without properly appreciating the meaning of desertion and cruelty held by

the Hon''ble Supreme Court, erred in holding that the wife/appellant deliberately did not live with her husband and she has not taken any steps to

beget a child and she was not interested to have a child. He further submitted that the respondent/husband did not prove any act of cruelty alleged

in the petition and the conduct of the respondent would also prove that he deserted the appellant and therefore, the order of the lower appellate

court is liable to be set aside.

On the other hand, the learned counsel appearing for the respondent submitted that after the decree of divorce granted by the lower appellate

court, the husband married 2nd wife and therefore, no purpose will be achieved in entertaining the appeal.

The learned counsel for the respondent further submitted that the lower appellate court, after appreciating the evidence of the appellant, rightly

came to the conclusion that the allegations made by the appellant against the respondent would amount to cruelty by relying upon the judgment of

the Hon''ble Supreme Court reported in V. Bhagat Vs. Mrs. D. Bhagat, .

The learned counsel further submitted that the conduct of the appellant would also prove that she was guilty of desertion and considering all

these aspects, the lower appellate court rightly allowed the appeal and therefore, there is no need to interfere with the order of the lower appellate

court.

From the submissions of the learned counsel appearing for the parties, the following substantial questions of law arise for consideration in this

second appeal.

Whether the lower appellate court is right in holding that the appellant has treated the respondent with cruelty having regard to the evidence?

Whether the lower appellate court was right in holding that the appellant is guilty of desertion?

Admittedly the husband/respondent herein filed a petition for divorce on the ground of desertion and cruelty. In the petition, he has made the

following allegation in support of the case of desertion and cruelty:-

The appellant after coming to Chennai and living with her in-laws behaved in a different way and she was influenced by her parents and she was

only interested in living with her parents and also was interested in taking the husband also along with her. During her stay at Chennai, she did not

behave as a normal woman and treated the husband with contempt, never cooperated to have medical checkup for begetting a child and was

depending upon her parents for everything and after leaving Chennai, she was threatening her husband stating that she would disappear leaving

notes against the husband and joined M.D. (Siddha) without the knowledge and consent of the husband and left the matrimonial home after picking

up quarrel with his parents and therefore, she deserted the husband without any reasonable cause.

On the other hand, the appellant/wife had stated in the counter that after the marriage, they were living separately at Madurai and at that time,

either the respondent''s parents or her sisters were there in the house and they were ill-treating the wife on the ground that she was incapable of

giving birth to a child and the wife also cooperated with the husband in consulting the Doctor and also underwent operation as suggested by the

Doctor for begetting a child and the husband and his sisters ill-treated her.

The husband examined himself as PW1 and on the side of the appellant, she examined 3 witnesses, including herself in the application for

divorce and in the application filed by her for restitution of conjugal rights, she examined another witness, including herself as RW1.

Before going into the aspects of desertion and cruelty, certain admitted facts have to be stated.

The husband is a Research Officer in Bio-Technology Department at Madurai Kamaraj University and the wife is a Sidhha Doctor. The marriage

took place on 16.06.1997 and it was an arranged marriage. Till August 2000, there was no difference of opinion between the husband and wife

and according to the husband, he wanted to do Ph.D in Micro Biology at Institute of Basic Medical Science, Government of Tamil Nadu,

Taramani, Chennai and for that purpose, both the husband and wife left for Chennai and lived with the husband''s parents at Kolathur, Chennai.

From the date of marriage till August 2000, they had their matrimonial home at Madurai. Though, it was alleged by the husband that the wife

wanted him to stay with her at her father''s place at Udumalpet from the date of marriage, the admitted fact was that they lived in Madurai for

nearly three years. It is also admitted that the husband discontinued his Ph.D course in December 2000 and both of them lived at Chennai till

11.04.2001 and it is admitted by the husband that he left for Madurai on 10.04.2001 and the wife left for Udumalpet on 12.04.2001. It is also

admitted that during that period, the wife got admission in Siddha Medical College at Palayamkottai for studying M.D. The husband has not stated

anything that happened between the 2001 to 2004. On the other hand, the wife had stated in the counter that after joining M.D. at Palayamkottai,

both of them were living as husband and wife in Palayamkottai and Madurai and in February 2004, her mother passed away and thereafter, there

was a change in the attitude of the husband and therefore, the wife was forced to leave for Udumalpet with her father. With these facts, we will

have to see the law relating to desertion and cruelty.

In the judgment reported in Savitri Pandey Vs. Prem Chandra Pandey, the Hon''ble Supreme Court discussed the meaning of cruelty and

desertion as follows:

Treating the petitioner with cruelty is a ground for divorce u/s 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to

matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists

of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and

manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering

or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to

the matrimonial life of the other. ""Cruelty"", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable

apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be

distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be

adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both

the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.

Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of

India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to

have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more

than ordinary wear and tear of the family life.

No decree of divorce could be granted on the ground of desertion in the absence of pleading and proof. Learned counsel for the appellant

submitted that even in the absence of specific issue, the parties had led evidence and there was sufficient material for the Family Court to return a

verdict of desertion having been proved. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the

matter despite the fact that there was no specific issue framed or insisted to be framed.

Desertion"", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the

other without that other''s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is

not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not

permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration

the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race,

permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a

continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views

of various authors, this Court in Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, held that if a spouse abandons the other in a state of temporary

passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held:

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of

separation, and (2) the intention to bring 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 aforesaid. The petitioner for divorce bears the burden of proving those elements in the two

spouses respectively. Here a different between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas

under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the

suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for

divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case.

Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which

may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed

by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a

separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences

when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto

separation may have commenced without the necessary animus ort it may be that the separation and the animus deserendi coincide in point of time;

for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to

a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period

during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and

decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before

the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end

and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the

period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such

conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and

other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist

upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.

Following the decision in Bipinchandra''s case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani Vs. Meena

alias Mota, by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without

that other''s consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions

must be there (1) the factum of separation and (2) the intention to bring 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 aforesaid. For holding desertion proved the inference may be drawn

from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the

purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.

To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion

could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may

also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a

matter of inference to be drawn from the facts and circumstances of each case.

In the judgment reported in [1975]3 SLR 967, [Narayan Ganesh Dastane vs. Sucheta Narayan Destane], the Hon''ble Supreme Court held as

follows:

The court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with particular man and woman before it. The ideal

couple or a near-ideal one will probably have no occasion to go to a matrimonial court, for, even if they may not be able to drown their

differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures.

In the very same judgment, the Hon''ble Supreme court observed that normally the burden lies on the petitioner to establish his or her plea that

the respondent had meted out cruelty to the petitioner and that the standard of proof required in matrimonial cases under the Act is not to establish

the charge of cruelty beyond reasonable doubt, but merely one of weighing the various probabilities to find out whether the preponderance is in

favour of the existence of the said fact alleged. The court under the Marriage Act has only to see whether the petitioner proved that the respondent

has treated the petitioner with such cruelty as to cause a reasonable apprehension in mind that it will be harmful or injurious to live together,

keeping into consideration the resultant possibilities of harm or injury to health, reputation etc.

Recently, the Hon''ble Supreme court in the judgment reported in Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, held that the

expression ''cruelty'' has an inseparable nexus with human conduct or human behavior. It is always dependent upon the social strata or the milieu to

which the parties belong, their ways of life, relationship, temperaments and emotions that are conditioned by their social status. The facts and

circumstance are to be assessed emerging from the evidence on record and thereafter, a fair interference has to be drawn whether the petitioner in

the divorce petition has been subjected to mental cruelty due to the conduct of the other. Further, in the judgment reported in V. Bhagat Vs. Mrs.

D. Bhagat, , the Hon''ble Supreme Court dealt with elaborately the law relating to cruelty and desertion. Therefore, if the facts of the cases were

analyzed with reference to the law laid down by the Hon''ble Supreme court as stated supra, in my opinion, the lower appellate court did not

approach the case in proper perspective and erroneously put the burden on the appellant and erred in granting divorce.

As stated supra, from 1997 to August 2000, both of them lived together at Madurai and as the respondent wanted to do Ph.D and got

admission at Government Institute, Chennai, both of them left for Chennai. If the allegation of the husband that the wife was insisting to live at

Udumalpet along with her parents from the date of marriage and therefore, she was treating him with cruelty were true, the wife would not have

accompanied her husband to Chennai, especially when she was having clinic at Madurai and was practicing Siddha Medicine at that time.

Therefore, the fact that the appellant/wife went with her husband to Chennai would prove that she was interested in living with her husband. Latter,

the respondent/husband discontinued his studies and left for Madurai to continue his job at the University and even according to him, he left

Chennai on 10.04.2001 and he did not say that the wife refused to come with him and the wife left Chennai on 12.02.2002. Though, it is alleged

by the respondent/husband that the appellant/wife ill-treated him and did not respect his parents and often quarrel with them, no steps were taken

by the husband to substantiate all those allegations, either by examining his parents or other relatives. On the other hand, it is admitted that the wife

got admission for M.D. (Siddha) and she left Chennai to join the course at Palayamkottai. The conduct of the husband would also prove that he

was jealous about the higher qualification to be acquired by his wife and that was the reason for the allegation that without informing him, she

applied for M.D. and got admission.

Further, the husband has not stated anything about the happening that took place between April 2001 to February 2004, whether both of them

lived together during that period or he was living separately and the wife was living separately. On the other hand, the wife/appellant had stated in

the counter and also let in evidence that when she was pursuing her higher studies at Palayamkottai, during week end, they lived together in

Palayamkottai and in Madurai and therefore, having regard to the allegations in the petition and counter, I am of the opinion that the husband has

not proved that the wife deserted him without any reasonable cause. Though, the wife did not live with her husband at Madurai, after 2001 she had

a justifiable cause for not living with her husband, as she was pursuing her higher studies and it is her case that both of them lived during holidays at

Palayamkottai and Madurai. Unfortunately, the lower appellate court disbelieved the case of the appellant stating that the appellant has not

examined the landlady, where they lived to prove that they were living together. When the husband was silent about their relationship during that

period and the wife alleged that she was living with her husband during the week ends, the lower appellate court ought to have accepted the case

of the wife, as she has given evidence as per the pleadings and the husband has not pleaded anything about the desertion in the petition. Therefore,

the finding of the lower appellate court that the wife is guilty of desertion is set aside and I hold that the husband has not proved that the

appellant/wife without any reasonable cause deserted him.

As regards the aspect of cruelty is concerned, having regard to the allegations made in the petition, one can easily infer that it was the husband

and his relatives, who treated the appellant with cruelty. Both of them are from village background and though, they are educated they have not

given up their beliefs and faith as a rural person. It is the complaint of the husband that the appellant/wife was not interested in begetting a child and

she did not cooperate in undergoing medical treatment. That was repudiated by the wife in her counter statement stating that she underwent some

operation and she also cooperated with the husband in begetting a child. Therefore, the husband was obsessed with the fact that the wife was not

capable of giving birth to a child and on that ground, he and his family members must have blamed the wife. Normally, people from the rural

background are obsessed, if the woman did not give birth to a child immediately after the marriage and having regard to the allegations made in the

petition that the wife has not cooperated with the husband in begetting a child, one can infer that on that ground, namely the wife was incapable of

giving birth to a child, the wife must have been put to mental stress by the husband. Further, no allegations of cruelty has been made against the

wife and only general accusations were made that she ill-treated his parents and did not respect them and even those allegations were not proved

by examining the relatives. On the other hand, the lower appellate court held that the wife made allegations against the husband and she has not

proved the same and therefore, it can be presumed that the wife had treated the husband with cruelty. The allegations made by the wife in the

counter are not relating to cruelty but about the indifference attitude of the husband and without appreciating the different between indifference

behaviour and cruelty, the lower appellate court erred in holding that the evidence of the wife and the allegations made in the counter by the wife

would prove that she treated the husband with cruelty and therefore, the husband is entitled to the decree of divorce. When the husband has not let

in any evidence to prove the desertion or cruelty, the decree of divorce cannot be granted on the ground that the wife''s conduct would prove that

she treated the husband with cruelty. Therefore, the findings of the lower appellate court that the wife treated the husband with cruelty and the

husband is entitled to divorce cannot be sustained and set aside.

I hold that the husband has not proved that the wife treated him with cruelty. Therefore, substantial questions of law are answered in favour of

the appellant.

The contention of the learned counsel for the respondent that the husband had married another woman and the wife did not take any steps to

execute the decree of restitution of conjugal rights and therefore, the husband is entitled to a decree of divorce, as per section 23 of the Hindu

Marriage Act cannot be accepted. The trial court dismissed the application filed by the husband and decreed the petition filed by the wife for

restitution of conjugal rights and immediately thereafter the respondent filed an appeal against the decrees and during the pendency of the appeal,

no one can expect the wife to execute the decree of restitution of conjugal rights and therefore, the wife cannot be blamed for not executing the

decree of restitution of conjugal rights during the pendency of the appeal. Further, the second marriage of the husband cannot be a ground for

dismissing the appeal filed by the wife and the appeal will not become infructuous on that ground. Hence, the judgments and decrees of the lower

appellate court are set aside the appeals are allowed and the judgments and decrees of the trial court is restored. Consequently, connected

Miscellaneous Petitions are closed. No costs.