BABY v. GOPINATH — 1989 DIGILAW 110 (KER)

Judgment :- 1. Appellant who is the wife of the respondent challenges the order of the District Judge, Kozhikode in O.P. 212 of 1981, which is a petition under S.13(1) (ib) of the Hindu Marriage Act. The learned District judge allowed the petition and declared the marriage between them dissolved. 2. For the purpose of convenience the husband is referred to as the petitioner and wife as the respondent. 3. The petitioner married the respondent on 14-12-1972 in accordance with the custom prevalent in the Thiyya community. The allegation of the petitioner is that the relationship between him and the respondent was cordial during the initial days of the marriage, that his wife behaved arrogantly towards him, that while becoming pregnant of the third child she left his house on her own accord in August 1976, that she adopted stubborn attitude and never returned to his house and that all his entreaties to her to return to his house proved futile in view of her adament attitude of hostility. -The trial Court considering the evidence held that the allegation of desertion has been succinctly established and granted dissolution of the marriage. 4. S.13(1) (ib) and S.10(1) of the Hindu Marriage Act envisage desertion as a ground for divorce and judicial separation. The term desertion is defined in the explanation to S.13(1) of the Act. The explanation reads: "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 constitute an act of desertion two elements must be there on the side of the deserting spouse. Firstly, the factum of physical separation is the sine qua non of desertion. There must also be the animus deserandi to bring co-habitation or the matrimonial consortium to an end. Likewise, so far as deserted spouse is concerned, to constitute desertion, it must be affirmatively established that he was not a consenting party to the desertion by the opposite party. In other words, if it is found that desertion happened on account of the action of the deserted spouse he cannot legitimately adopt the posture of innocence. Likewise, so far as deserted spouse is concerned, to constitute desertion, it must be affirmatively established that he was not a consenting party to the desertion by the opposite party. In other words, if it is found that desertion happened on account of the action of the deserted spouse he cannot legitimately adopt the posture of innocence. On the side of the deserted spouse there should not occur any conduct giving reasonable cause to the spouse leaving matrimonial house. In a case where desertion is alleged to obtain decree of divorce it must be established that the deserting spouse purposefully kept away from the other party to the marriage with the avowed intention of not having any matrimonial relationship. In Rohini Kumari v. Narendra Singh (AIR. 1972 S.C. 459) the Supreme Court held that desertion within the meaning of S.10(1) (e) of the Act read with Explanation does not imply only a separate residence and separate living but also a determination to put an end to matrimonial relationship and co-habitation. One of the essential elements which differentiates desertion from wilful separation is the quality of permanence. If in a case a spouse abandons the other spouse in a state of temporary passion or anger without intending to cease co-habitation permanently, it will not amount to desertion. In a case where a spouse had left the opposite party's company never to return and with the intention to bring cohabitation permanently to an end, the necessary animus deserandi can be inferred. In a case where physical separation with animus deserandi has been established, certainly, the allegation of desertion stands proved. 5. The evidence in the case would show that P.W.1 made several attempts to bring back his wife to his house. Respondent contended that she was always willing to reside with her husband. There, is no evidence of she sending any letter to the petitioner or making any attempt to contact him. She admitted that nothing prevented her from going to her husband. On a consideration of the entire evidence the trial Court held that the allegation of desertion has been established in the case. From the evidence on record no other conclusion is possible. Hence we hold that the trial Court was justified in declaring the marriage between the petitioner and the respondent dissolved. 6. Respondent has claimed permanent alimony and maintenance as stipulated under S.25 of the Act. From the evidence on record no other conclusion is possible. Hence we hold that the trial Court was justified in declaring the marriage between the petitioner and the respondent dissolved. 6. Respondent has claimed permanent alimony and maintenance as stipulated under S.25 of the Act. The section provides for grant of permanent alimony and maintenance to any of the party to a marriage at the time of passing any decree or at anytime subsequent thereto. In the petitions filed under S.25 and 26 claiming permanent alimony and maintenance for the respondent as well as maintenance to her daughters who are with her, she has staged that her husband gets Rs. 3,500/- per month as salary. It is also stated that he gets Rs. 2,500/- per month as income from landed properties, In C.M.P. 2202 of 1988 filed under S.25 of the Act the respondent has claimed a gross sum of Rs. 50,000/- or a sum of Rs. 1,000/-per month. In C.M.P. 4829 of 1989 filed under S.26 of the Act the respondent has claimed Rs. 2,000/-per month towards educational expenses and maintenance of her daughters. 7. S.25 recognises the right of the wife to get permanent alimony and maintenance. S.26 provides for the maintenance of the children. A reading of S.25 would clearly show that permanent alimony and maintenance can be. granted by any court exercising jurisdiction under the Act at the time of passing the decree or at any time subsequent thereto on application made to it for that purpose. Merely because such an application has not been filed before the trial Court it cannot be said that the application filed before the appellate Court is not maintainable. The obligation of the husband to provide for his wife's maintenance and support is not terminated even in a case where he has succeeded in getting an order of divorce. In Chickchannappa v. State of Mysore (1967-2-Mysore Law Journal 373) a Division Bench of the Mysore High Court held thus: "The obligation of the husband to provide for his wife's maintenance and support does not come to an end simply on the passing of a decree or any of the reliefs which the Court is empowered to grant under the Act even when the decree is in favour of the husband." 8. A narrow interpretation cannot be given to the words "wife" and "husband" in S.25 of the Act. A narrow interpretation cannot be given to the words "wife" and "husband" in S.25 of the Act. The words "wife" and "husband" in S.25 are used in a descriptive sense and not as indicating their legal status which may have to be determined by the Court in the main proceedings. This is very clear from a reading of S.25 of the Act. The relief under S.25 is ancillary and consequential to the one in the main proceedings. That being so, a liberal construction is necessary. If a strict construction is adopted to the words "wife" and "husband" in S.25 it would not be possible for a wife or husband to claim permanent alimony and maintenance after an order has been passed declaring the marriage dissolved. It is not the intention of the legislature that the party who is otherwise entitled to alimony should be denied of it causing penury and starvation merely because the marriage has been dissolved. Such a view has been taken in Kuldipchand v. Geetha (AIR. 1977 Delhi 124) and Sisirkumar v. Sabitha Rani Mandal (AIR. 1972 Calcutta 4). The contention that after dissolution of marriage on the ground of desertion by the wife, she has no locus standi to claim permanent alimony and maintenance is not tenable. At this juncture reference to Soumyanarayanan v. Jayalakshmi Ammal (1971 Law Weekly 95) is apposite. Madras High Court held thus: "Reference to the wife or the husband in S.25, is only descriptive in character, and if read in the context of the entire section, would mean the divorced wife or the divorced husband. The severance of the marital tie effected by the decree annulling the marriage does not, in the eye of the law, put an end to the liability to pay maintenance, which, on grounds of high State Policy, is recognised and enforced by the statute." In Durga Das v. Tara Rani (AIR 1971 Punjab & Haryana 141) Full Bench of the Court held: "When the language of S.25(3) is taken along with S.25(1), it is clear that in S.25 the statute has described the patties to the proceedings under the Act as husband and wife not only for the stage before or by the time of passing of a decree under the Act but for the purpose of the grant of permanent alimony even after that. So the description of the parties for purposes of S.25 continues to be exactly the same as it was in the proceedings originally initiated for any decree under the Act. The fact that the proceedings for grant of permanent alimony are incidental to the main proceedings also lends support to this approach. Therefore an alimony application under S.25(1) can be made even after the grant of divorce decree." In Rajinder Prakash v. Roshni Devi (AIR 1981 Punjab & Haryana 212) permanent alimony and maintenance were claimed by a wife against whom her husband obtained divorce on the ground of desertion. The Court held that simply because the divorce was granted on the basis of desertion on the part of the wife, it is not sufficient to deprive her of maintenance under S.25 of the Act. Thus the settled legal position is that though divorce has been granted in favour of the petitioner, it does not annihilate the right of the respondent to claim permanent alimony and maintenance. 9. Another question to be considered is whether grant of maintenance under S.125 Crl. P.C. would deprive the respondent from claiming permanent alimony and maintenance under S.25 of the Hindu Marriage Act. There is no provision in the Criminal Procedure Code barring the claim of alimony and maintenance under Hindu Marriage Act in a case where maintenance has been granted under S.125 Crl. P.C. It is always open to the Magistrate to cancel maintenance ordered under S.125 Crl. P.C. whenever it is brought to his notice that the same party has obtained order of alimony and maintenance under Hindu Marriage Act. S.127(2) Crl.P.C. empowers the magistrate to cancel or vary the order of maintenance awarded under S.125 whenever the magistrate finds that consequent to a competent Civil Courts order it is necessary to do so. Conversely it cannot be said that merely because maintenance has been granted under S.125 Crl. P.C. claim under S.25 of the Hindu Marriage Act is barred. 10. Considering the fact that the petitioner gets monthly salary of Rs. 3,500/- we hold that permanent alimony can be awarded to the respondent at the rate of Rs. 500/- per month. We do so. This amount has been fixed taking into consideration the offer of the petitioner that he would meet all educational and marriage expenses of the two children who are with the respondent. 11. 3,500/- we hold that permanent alimony can be awarded to the respondent at the rate of Rs. 500/- per month. We do so. This amount has been fixed taking into consideration the offer of the petitioner that he would meet all educational and marriage expenses of the two children who are with the respondent. 11. The next point to be considered is with regard to the amount of maintenance claimed for the children. S.26 has been enacted to safeguard the rights and interest of the children of the parties to the proceedings under the Act. The intention to incorporate S.26 is that the children of the parties should not suffer on account of the follies and mistakes committed by the parents. The court has the power to make provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of the minor children. Welfare of the children being of paramount importance the Court must always zealously guard it. In a case where a marriage is dissolved it is the prime duty of the Court to consider the welfare of the children which is of supreme importance. The fate of the children cannot be left in the lurch. S.26 empowers the Court to make such orders as deemed just and proper for the proper maintenance of the children. It becomes the duty of the Court to protect the interest of the minor children when divorce or judicial separation is granted. When a wife claims maintenance and she has children to support, awarding maintenance to wife alone is meaningless if it does not provide for the maintenance of the children also. 12.Considering the fact that the children are studying in the school and also taking into account the financial position of their father, we hold that the two children who are in the custody of their mother are entitled to get maintenance each at the rate of Rs. 250/- per month till they attain majority. We direct the petitioner to pay the said amount to their mother, the respondent every month. 13. The amounts directed to be paid by the husband to the wife and children should be paid from 18-1-1988. The M.F.A. is disposed of as stated above with no order as to costs.