Shivanand vs Vijayalaxmi and Others

S. Sujatha, J.—This appeal is directed against the judgment and order dated 26.11.2008 passed by the Civil Judge, (Sr.Dn.) Bailhongal in M.C. No. 17/2005.

The facts in brief are that, the respondent No. 1 is the wife and respondent No. 2 is the son of the appellant. The appellant is serving in Army. It transpires that the marriage between appellant and respondent No. 1 was solemnized on 08.06.1995 at Neginahal village in Bailhongal Taluk as per Hindu rituals and customs. It appears that, after the marriage, appellant and respondent No. 1 lived happily for 2-3 years, a male child, respondent No. 2 was born during this period. It is alleged by the appellant that respondent No. 1 insisted for separate residence, for which, appellant expressed his unwillingness to leave his parents, but requested respondent No. 1 to stay along with the family members, for which, respondent No. 1 picked up quarrel with the appellant as well as the family members of the appellant, started abusing them in foul language causing mental agony to the appellant, thereafter she left the company of the appellant voluntarily and started living in her parental house with the son in the year 2000. It is contended that the appellant personally went to Neginahal village in the year 2000 to look after the welfare of the child and his education and requested respondent No. 1 to join him, but the said request was flatly refused by respondent No. 1. Despite the advise given by the elders of the family, the respondent No. 1 did not heed to any of the requests made by the appellant to join the company of the appellant. It is also contended that respondent No. 1 also lodged a complaint against the appellant and his parents, when he was on duty at Kochi, more so when the appellant was very much interested to restitute his conjugal rights with respondent No. 1. Based on these facts, appellant filed petition under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as ''the Act'' for short) seeking decree of divorce on the ground of desertion, since respondent No. 1 had deliberately withdrawn from his society. It transpires that, pursuant to the summons, respondent No. 1 appeared before the trial Court through her counsel, filed objections and denied the allegations made in the petition. It was contended by the respondent that the appellant had contracted a second marriage and with the instigation of his second wife, he had driven out the respondents from his matrimonial home. Respondent No. 1 had also filed a petition before the JMFC, Bailhongal seeking maintenance and the trial Court has passed an order directing the appellant to pay maintenance of Rs. 500/- p.m. to respondent No. 1 and Rs. 400/- to respondent No. 2.

In order to prove the contentions raised in the petition seeking for divorce, the appellant himself examined as P.W.1 and also examined two independent witnesses as P.Ws.2 and 3. On the contrary, respondent No. 1 got herself examined as R.W.1 and also examined one independent witness as R.W.2. The trial Court after considering the evidence placed on record dismissed the petition filed by the appellant. Being aggrieved by the judgment and order passed by the Court below, the appellant is before this Court, inter alia contending that the trial Court failed to consider the evidence placed on record which clearly establishes the desertion; the admission made by the respondent No. 1 that she was residing at her parental village in a separate residence along with her son from last 15 years establishes the separation; respondent No. 1 has shown furious attitude at the time of recording evidence, the demeanor of the respondent No. 1 is also recorded by the Family Court, despite several requests made by the appellant to join him, respondent No. 1 out rightly rejected the same. The desertion being well established, the Family Court failed to appreciate the same in the proper perspective and dismissed the case of the appellant, which necessarily requires interference by this Court.

The learned counsel appearing for the appellant re-iterating these grounds vehemently argued that the trial Court without examining the material evidence of establishing desertion by respondent No. 1, dismissed the case. It is an admitted fact that, since 2000, respondent No. 1 has deserted the appellant and is staying in her parental village in a separate residence which clearly shows her intention, to put an end to the marital life, consortium and cohabitation permanently.

Per contra, the learned counsel appearing for the respondents strenuously argued in support of the order passed by the Court below. It is contended that the appellant is working in Army, unless he makes arrangements at the place of work, i.e., obtaining a quarters for living, respondents cannot join the company of the appellant. The allegation of desertion is totally denied by respondent No. 1. On the other hand, it is the case of respondent No. 1 that, without giving necessary support, the appellant has ill-treated the respondents and illegally contracted a second marriage, due to which she was driven out from the matrimonial home. In such circumstances, the divorce as prayed for is totally obnoxious, without any valid grounds.

Heard the learned counsel for the parities and perused the records. Section 13(1)(ib) of the Act postulates thus:

"Section 13(1): Any marriage solemnised, whether before or after commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

Section (ib): has deserted the petitioner for a continuous period of not less than two years immediately preceding of the petition.

(Explanation: In this sub-section, the expression "desertion" means 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 to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.)"

To attract this provision, necessarily two elements are to be proved, i) factum of separation and ii) animus deserandi. It is an undisputed fact that respondent No. 1 has left the company of the appellant from the year 2000 itself. Thus, the respondent No. 1 has deserted the appellant for a continuous period of not less than two years immediately preceding the presentation of the petition. The evidence on record clearly establishes presence of these two elements as set out under Section 13(1)(ib) of the Act to seek the decree of divorce. As per the explanation, the expression ''desertion'' means the desertion of either party to the marriage without reasonable cause and without the consent or against the wish of such party, which is well established in the present case, as respondent No. 1 has left the company of the appellant without reasonable cause and without the consent or against the wish of the appellant. Parties have been residing separately for almost 15 years as on date and there is irretrievable breakdown of marriage rendering the marriage a dead wood.

Efforts to bring about reconciliation between the parties has become futile. All the endeavour to effect a reconciliation is failed even before the Mediation Centre. On our request, the parties were present in the Court on two occasions, but the reconciliation/re-union could not be effected since respondent No. 1 is not willing to rejoin the appellant, as it is alleged that the appellant has contracted a second marriage. We are of the opinion that there is no chance of any reunion between the parties. The Family Court has dismissed the petition on the ground that the desertion is not proved by the appellant. The conduct of the parties before this Court clearly establishes the strained relationship between the parties, more particularly, the allegation of the respondents that the appellant having contracted the second marriage albeit not proved by respondents. Allegation and counter allegation would add to the bitterness, to put a quietus to the litigation and in the interest of the parties, it would be appropriate to dissolve the marriage and to grant a decree of divorce, as the respondent No. 1 is not willing to join the company of the appellant, despite the best efforts made by the Mediation Centre and by this Court.

Given the circumstances, we have no option except to allow the appeal and set aside the judgment of the Family Court, it would be appropriate to grant the decree of divorce. Considering totality of the circumstances, we fix the permanent alimony as under:

i) The appellant shall pay Rs. 2,50,000/- each to the respondents and shall transfer 1 acre of agricultural land out of 2 acres 17 guntas standing in the name of the appellant and his brother bearing R.S. No. 27/1B in Kesarkoppa village in Bailhongal Taluka in favour of respondents by way of gift deed and shall assist the respondents to perfect their title as admitted by the appellant within a period of six weeks from the date of receipt of the certified copy of the judgment.

ii) However, in the event of the appellant takes voluntary retirement from the service and gets a lump sum amount towards retirement benefits, 25% of the amount so received shall be paid to the respondent No. 1 within six weeks from the date of receipt of such amount.