Sri Veeraj vs Smt. Sharada

N. Kumar, J.—This position in filed by the husband against the order passed by the Civil Judge (Sr.Dn.), Kolar, dismissing the petition for divorce, on the ground that the plea of desertion is not proved.

For the purpose of convenience the parties are referred to as they are referred to in the original proceedings.

The respondent Smt. Sharada is the legally wedded wife of the petitioner Veeraj and their marriage was solemnized on 15.12.1999 at Dharmaraya Swamy Kalyana Mantapa, Malur according to all rituals and customs of their community. After the marriage, they lived happily as husband and wife for one year. The respondent became fragrant and she went to her parents house in the 9th month. The grievance is that after she gave birth to a male child, she has not returned to the house of the petitioner. Proceedings was initiated against him u/s 498A of the Indian Penal Code which ended in acquittal of the petitioner and his family members. One more petition u/s 125 of Cr.P.C. for maintenance was filed which came to be allowed. One more suit O.S. No. 145/2005 came to be filed on behalf of the minor son for partition and separate possession and is still pending. According to the petitioner, several times he went to the respondent requested her and her parents to send her back and even panchayath was conducted and nothing had a positive effect and therefore, he preferred a petition u/s 13 of the Hindu Marriage Act, 1955 for seeking a decree of divorce on the ground of desertion.

The respondent after service of notice entered appearance, filed detailed statement of objections denying all the allegations. She contended that the petitioner and her family members treated her cruelly and made her life miserable In their house. It is their act of cruelty which forced her out of the house and therefore she was constrained to initiate the aforesaid proceedings for her living and to take care of her minor son.

In order to substantiate the claim, the petitioner filed this affidavit. Inspite of several opportunities granted, the respondent did not choose to cross-examine the petitioner, no evidence was adduced on behalf of the petitioner. The petitioner apart from his oral evidence also produced seven documents such as the certified copy of the judgment in CC 312/2003, order sheet in CMC 11/2003, deposition of respondent in CMC 11/2003, petition copy in CMC 11/2003, objection statement in CMC 11/2003, plaint copy in O.S. No. 145/2005 and the written statement filed in the said proceedings which are marked as Exe.P1-P7.

The Trial Judge on Appreciation of the oral and documentary evidence on record held that in none of the earlier proceedings the petitioner has whispered that the wife deserted him. In fact no legal notice was issued to the respondent calling upon her to join him. No petition for restitution of conjugal rights was also Sled. In the criminal proceedings, petitioner and the family members were acquitted. The said evidence shows the relation between the parties and this substantiates the contention of the wife that she was not treated properly when she lived with her husband. Therefore, she was of the view that the petitioner has miserably failed to prove the desertion and the material on record do not support his case. Therefore, she dismissed the petition. Aggrieved by the said order, the petitioner is before this Court.

Learned counsel for the appellant assailing the impugned order contended that the evidence of the petitioner remained unchallenged. The Trial Court committed a serious error in holding that the case of the petitioner is not proved. The Judgment of the Criminal Court clearly establishes that the case of cruelty pleaded by the respondent is false as they were acquitted. Admittedly, the respondent is not living with the petitioner. She is living away from the petitioner and she refused to join the petitioner and therefore, in these circumstances, the finding recorded by the Trial Court that a case of desertion is not established, is Illegal and requires to be set aside.

Per contra, learned counsel for the respondent supported the impugned order.

the marriage between the parties is not in dispute. A male child is born to them, Till the 9th month respondent lived with the petitioner. After she went to the parents house, she has not returned. It is in that context the initiation of the criminal proceedings and the proceedings for maintenance is to be appreciated The standard of proof that is required in criminal case to hold the accused guilty of a serious offence is beyond reasonable doubt. Unless evidence is adduced to prove beyond reasonable doubt as the law stands today, the accused cannot be put behind bars. In a matrimonial case, such a strict proof cannot be insisted upon, Most of the time these incidents happen and nobody would be a eye witness to the same. The fact that she was not allowed to go to her parents house till the 9th month and it is his specific case that the respondent went to her parents house without their knowledge, shows the way the respondent has been treated by the husband and his parents. There is no material on record to show that after the birth of the child they made sincere efforts to get back the mother and the son from the parents house. On the contrary litigation started between them. The petitioner to succeed in the petition has to establish that he is not the cause for wife deserting him and the wife without any cause voluntarily has withdrawn from the company of the husband, and there is no justification for the same.

In the facts of the ease, we are satisfied that the husband is the cause for the wile leaving the husband and there is nothing on record to indicate that the wife voluntarily without any justification withdrew from the company of the husband. In that view of the matter, the order passed by the Trial Court holding that the case of desertion is not proved is supported by the evidence on record and the judgment do not suffer from any infirmity which calls for interference.

Accordingly, the appeal is dismissed.