T. Sujatha vs R.Govindaraju

Vijaykumar A. Patil, J

This appeal under Section 28(1) of the Hindu Marriage Act, 1955, has been filed against the judgment and decree dated 22.07.2017 passed in M.C.No.47/2011 by the Principal Senior Civil Judge & JMFC, Madhugiri, by which the petition filed by the respondent seeking dissolution of marriage on the ground of cruelty and desertion, was allowed.

Brief facts giving rise to filing of this appeal are that the marriage of the respondent and appellant was solemnized on 29.04.2001 at Kannikaparameshwari Temple, Madhugiri town. They led a happy marital life for a period of five years and out the wedlock two children are born. It is averred that the appellant used to quarrel with the respondent and his parents for no reason. The appellant also had an illicit relationship with Sri.Ramesha, later for which the panchayat was held and the appellant was advised to lead the married life with respondent, but the same went in vain. It is further averred that the appellant along with the children deserted the respondent in the year 2007. Consequently, respondent requested the appellant to join the matrimonial home by issuing the legal notice dated 18.08.2009. It is also averred that the respondent has filed the petition for restitution of conjugal rights in M.C No.57/2009, but he withdrew the same, the appellant has filed a suit in O.S No.101/2010 for seeking maintenance, the respondent has made efforts to bring back the appellant to matrimonial home, but all his efforts went in vain.

The appellant has entered appearance before the Family Court and filed the statement of objections. The appellant has admitted their relationship and birth of two children. It is averred that the respondent has agreed that he would reside with her parents, but the respondent refused to do so. It is further averred that the respondent refused to visit the appellant’s parents and when the appellant questioned the same, the respondent used to abuse her. It also averred that the respondent has received a telephonic call from Smt.Manjula and when the appellant has enquired regarding the telephonic call, the respondent abruptly left the matrimonial home and on further enquiry the appellant came to know that the said call was made by Smt.Manjula and the respondent is having illicit relationship with her. It is averred that the respondent is working as a Police Constable and the appellant is a Teacher. The appellant has made a request to the respondent to make arrangement for transfer to one place, however, the respondent refused to do so. The respondent intentionally withdrew the petition filed for restitution of conjugal rights, as the appellant filed objections stating that she is ready and willing to lead marital life with the respondent.

The Family Court has recorded the evidence of the parties. The appellant examined herself as RW.1 and no documents were produced. The respondent examined himself as PW.1 and produced Exs.P1 to P12. The Family Court based on the evidence adduced by the parties vide judgment dated 22.07.2017 allowed the petition by granting decree of divorce. In the aforesaid factual matrix, the present appeal has been filed.

Learned counsel for the appellant submits that the Family Court has committed error in granting decree of divorce on the ground of cruelty and desertion without properly appreciating the evidence on record. It is submitted that the respondent has failed to plead and adduce any evidence to establish the factum of cruelty and desertion. Without looking into the pleadings, the Family Court has proceeded to pass the judgment by recording incorrect finding that the respondent has proved the grounds of divorce.

It is further submitted that there is no dispute with regard to the relationship between the parties and birth of two children. It is also submitted that the Family Court has committed error in not allowing the appellant to adduce her further evidence after providing one more opportunity to the respondent to adduce his further evidence, hence, the Family Court has committed procedural irregularity. It is submitted that the respondent has filed petition for restitution of conjugal rights and when the appellant has filed the statement of objections stating that she is ready to join the matrimonial home, the respondent withdrew the petition, which clearly establishes that the appellant has not deserted the matrimonial home and it is because of the conduct of the respondent, she has started living with her parents.

Per contra, learned counsel for the respondent supports the impugned judgment and contends that the Family Court has properly appreciated the evidence on record and given categorical finding that the appellant in her objections has made allegation of illicit relationship and extra marital affair of the respondent which amounts to mental cruelty. It is submitted that the appellant has led married life only for a period of 5 years and she has left the matrimonial home without any reason by denying conjugal relationship to the respondent and the same amounts to mental cruelty on the respondent. It is further submitted that the respondent has sent legal notice dated 18.08.2009 requesting the appellant to join the matrimonial home. Despite the same, she has failed to join the matrimonial home which clearly establishes that the appellant is not interested to lead married life with the respondent.

We have heard the learned counsel for the appellant and the respondent and perused the material on record. It is not in dispute that the appellant and respondent have married on 29.04.2001, out of the wedlock two children have been born and the appellant started residing separately after five years of marriage. On perusal of the petition filed by the respondent seeking dissolution of marriage on the ground of cruelty and desertion, it is pleaded that the appellant used to quarrel unnecessarily with the respondent and his parents and he has advised her to mend herself however, she has failed to change her behavior. It is further pleaded that the respondent has learnt that the appellant is having illicit relationship with Sri.Ramesha and when the panchayats were held, it was advised to the appellant to live happily with the respondent by giving up all unlawful activities, however, she has not changed.

It is also pleaded that the appellant left the respondent about four years back voluntarily along with the children and without intimating the respondent and since then there has been no cohabitation between the parties. The aforesaid allegations of cruelty and desertion are reiterated in the evidence of PW.1. The said assertion of cruelty and desertion has been denied by the appellant in her statement of objections and evidence.

On careful scrutiny of the pleading and evidence on record, it is evident that except vague assertion that the appellant used to quarrel unnecessarily with the respondent and his parents, she had illicit relation with Sri.Ramesh and that she has left the matrimonial home four years ago with the children, no specific instances of cruelty is pleaded nor substantiated with the evidence. The allegations of cruelty are very vague and are in the nature of usual wear and tear of marital life.

The allegation of adulterous life of the appellant is not substantiated with any corroborative evidence. The allegations of cruelty are not so weighty to come to the conclusion that the respondent is unable to lead married life with the appellant. The respondent has failed to plead and prove the ground of desertion. The respondent has not stated that the appellant has left the matrimonial home with an intention to end the cohabitation permanently and without any reason. The respondent has made assertion that the appellant has left the matrimonial home along with the children by deserting the respondent and also alleged cruelty. However, the respondent has filed the petition for dissolution of marriage on the ground of cruelty and desertion only on 09.06.2011 after six years, there is no explanation whatsoever for the delay and the Family Court has failed to consider this aspect while allowing the petition.

The Family Court has given the finding that both the parties have made allegation of illicit relationship with other persons and both have failed to prove the same. It has further observed that since 2007 both the parties are not in good terms. The respondent has deposed that there is no cohabitation between them since 2010 and there is no point in asking the parties to live together, hence, proceeded to dissolve the marriage. The Family Court has failed to appreciate the fact that the respondent is required to discharge the burden of proving the grounds of cruelty and desertion by proper pleading and evidence in which he has failed. The Family Court has given an incorrect finding that the marriage can be dissolved on the ground that the parties have not cohabitated for long time and there are no chances of reunion. The aforesaid finding of the Family Court is contrary to law, pleading and evidence on record.

For the aforementioned reasons, the impugned judgment and decree dated 22.07.2017 passed by the Family Court in M.C.No.47/2011 is set aside. In the result the appeal is allowed.