Smt. Sushma S. vs Harish Hosdurg.

Appellant is the wife aggrieved by the judgment and decree of divorce granted by the Family Court at Dakshina Kannada, Mangalore, in M.C. No. 175/2013 in the proceedings under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (�the Act� for brevity).

Briefly stated, the respondent/husband filed a petition for divorce on the contention that, the parties are married as per Hindu rites and customs on 10.6.2011 at Mangalore. He is a B.E. Mechanical Engineer and also a Marine Engineer working in a private Ship for the last eight years. The wife was studying M.B.A. in London at the time of their marriage. She came over to Mangalore two days prior to the marriage and returned on 22.6.2011, assuring to return soon. Thereafter she disconnected all her contacts with him. She did not receive his calls and did not call him back. While leaving matrimonial home on 21.6.2011, she collected all her belongings and valuables. Her mother assured to get her daughter soon, but that is not materialized. She has deserted him having no intention to continue the marriage. Marriage is not consummated on account of her. Before leaving him, on her request, he transferred Rs. 80,000/- to her Bank account.

On service of notice, it is not the wife, but her mother, who engaged a Counsel to represent her. Despite direction by the Court, the wife did not appear. Several adjournments were taken by the Counsel engaged by the mother on the representation that the wife intends to return to India but she never appeared nor did she file counter to the petition. In the meantime, her Counsel on record was also changed. Through post, she addressed a letter to the court expressing her objection for the divorce. After recording the evidence, the learned Family Court Judge allowed the petition on both counts i.e., 13(1)(ia) and (ib) of the Act.

Sri. M.S. Rajendra, learned Counsel appearing for M/s. Holla and Holla for the appellant/wife submits, the wife was in regular touch with her husband telephonically. She was unable to travel to India owing to certain unavoidable circumstances. However, she was in constant touch with the husband and his family members. She had assured them to return to India by the end of 2013, however, she was shocked to learn that the husband has filed divorce petition. She had replied to the notice, which was served on her through her mother. She had expressed her willingness to join the husband. Her mother being old and suffering from ailments having no male assistance in the family, she could not file statement of objection to the petition. She is ready and willing to join the husband in the matrimonial home. Of course, she had come to Mangalore and stayed for a couple of days and she could not appear before the court in compliance of the order of the learned Family Court Judge since her mother fell ill and was hospitalized and she was constrained to attend her mother in the hospital. Her non-appearance before the court was unintentional. The petition filed by the petitioner is allowed only for the reason that objection statement is not filed. Without giving sufficient opportunity to appear before the court and to contest the petition, the judgment passed is erroneous. The Trial Judge completely deviated from discussing on the grounds urged for the relief. He gave much importance about non-appearance of the wife and unconnected issues to the case. The finding of the Trial Court in holding that the conduct of the wife amounts to cruelty is not legal. Hence, the judgment and decree passed by the Trial Court may be set aside, giving opportunity to the wife, who is even now eager to join her husband in the matrimonial home, to contest the petition.

In reply, Sri.P.P. Hegde, learned Counsel for the respondent/husband submits that the wife stayed with him only for a short duration of ten days, at her instance, marriage was not consummated, the husband was waiting for her with a fond hope that she would return to the matrimonial home, instead, she has dis connected from him and is not allowing him to contact her at least through her mobile phone. Her mother is also not furnishing her address, at the least her E-mail address. After service of notice on her through the address at her mother�s place, her mother engaged a lawyer. Despite several directions from the Court, the wife did not care to appear before the court. Though she was very much present in India and stayed in a Lodge close to the Court premises, she did not appear before the court. When the case reached the stage of judgment, she files a writ petition for transfer of the case to Udupi. After hearing the Counsel for the appellant that the case is set down for judgment, the petition was dismissed by this Court. If she was keen to join her husband or to contest the petition, she could have appeared before this Court, which she has not done. Before the trial court, the husband apart from examining himself has led the evidence of the witnesses and produced the documentary evidence. The learned Judge in the light of indifferent attitude of the wife and also on appreciation of the oral and documentary evidence has allowed his petition both on the ground of cruelty and desertion. The judgment since is supported by sound reasonings, same does not call for interference.

In the light of the above rival submissions, we have perused the impugned judgment and decree of the trial court.

During trial, the husband examined himself as PW-1 and his father/PW-2, who apart from corroborating the evidence of his son, further testified that the mother of the wife Smt. Susheela owns a factory at Mumbai and will be frequenting to Mumbai and looks after the business and owns properties at Mumbai and she is involved in several litigations at Mumbai and Kundapura. Her son is at Mangalore and her younger daughter is looking after the factory at Mumbai along with her mother. Whenever they visit Mangalore, they stay at Srinivas Hotel, Mangalore. PW-3 is the uncle of the husband. He testified that, the mother of the wife is not ailing and he saw her at Srinivas Hotel on 5.4.2014. The Manager of the Udupi Sri. Krishna Bhavan Hotel, Mangalore, was examined as PW-4, who testified that Smt. Susheela and Sheetal are their regular customers and produced the original register maintained in the Hotel in proof of his contention that Smt.Susheela and Sheetal had occupied two rooms in his Hotel from 3.4.2014 lo 6.4.2014. PW-5 was the Receptionist in Hotel Hanuman, Mangalore, who stated that on 5.4.2014, Smt. Susheela and two other ladies occupied a room in his Hotel and vacated the Hotel on 7.4.2014. He produced the original receipt book from his Hotel and identified the appellant/wife, her mother and sister from the photograph/Ex.P5 confronted to him.

In the absence of any cross-examination to the witnesses and anything contrary to the case of the petitioner/husband, the learned Judge has recorded that, with an intention to put an end to the marital tie with necessary animus deserendi, the wife went out of the matrimonial home without any reasonable or justifiable cause and is guilty of desertion for more than two years. The marriage is not consummated due to her wilful conduct and refusal and she has dragged on the proceedings giving pinpricks to the husband amounting to mental cruelty thereby allowed the petition with decree of divorce. We find that the said conclusion is reached by the learned Judge in the backdrop of the wilful conduct of the wife and her family members that he observed during the course of proceedings. In the absence of anything to the contrary to the case of the husband, the wife having deserted the husband for two years prior to filing of petition and by denying him matrimonial obligation has inflicted mental cruelty on him, which act is not condoned by him. There is nothing from records to suspect that he is taking the benefit of his own wrong for the indifferent attitude of the wife towards him.

In the light of the above, we do not find any reason to interfere with the well-reasoned order of the court below. Having observed the conduct of the wife, which is nothing but a hide and seek with the trial court, we are not impressed to set aside the judgment and decree of the trial court.

Accordingly, the appeal is dismissed with costs.

In view of disposal of the appeal, I.A. Nos. 5/2015 and 6/2015 do not survive for consideration and hence, they stand disposed of.