Loknath Manna v. Puspita Manna — 1996 DIGILAW 82 (CAL)

JUDGMENT Vidya Nand, J.: This is an appeal against the Judgement dated 23.12.93 and decree dated 5.1.94 passed by Sri S.K. Gupta Learned Additional District Judge, 5th Court, Midnapure in Matrimonial Suit No. 16 of 1990 dismissing on contest with cost this suit' filed by Sri Loknath Manna, the petitioner. 2. The appellant husband petitioner u/s. 13 of the Hindu Marriage Act, 1955 (which we shall hereafter refer to as the Act) for passing a decree of divorce/dissolution between the petitioner and the respondent with costs on the ground that Smt. Puspita manna, his wife "deserted" him for "a continuous period of not less than two years immediately preceding the presentation of his petition". The petition was presented on 12th January, 1990 and the material allegation is that Smt. Puspita Manna the respondent due to false vanity and feudal aristocratic pride and mentality left the matrimonial home finally on the 15th Agrahayan 1394 B.S. and went to her .. sister-in-law's house and therefrom she went to her father's house and though the petitioner requested the respondent to come back again still the respondent did not return to the petitioners house and thus, the respondent deserted the petitioner by completely withdrawing herself from the association of the petitioner. 3. The facts of the case, state in some detail in the judgement of the trial Court, need not be restated in detail as the real controversy lies within a very narrow compass. 4. The petitioner appellant who comes from a middle class family was married to the respondent, daughter of a very rich man of Contai. After the death of her father, his son-in-law Prasanta Kumar Maity, an influential person of the locality, was looking after his family affairs and the O.P. respondent before her marriage used to' stay for her study in the rented house of the said Prasanta Kumar Maity and it was he who approached the father of the appellant petitioner for his marriage with the O.P. respondent and after receipt of his consent the marriage between the appellant and respondent was solemnised on 21st Ashar 1394 B.S. and she started living there as his wife. But since the very beginning she was very much reluctant to stay in the house of her husband and often she used to go to her father's house. But since the very beginning she was very much reluctant to stay in the house of her husband and often she used to go to her father's house. According to the wish of the respondents' mother the petitioner went to his father-in-law's house on 19th Bhadra and keeping the respondent there came back home alone. On 28th Bhadra the petitioner again went to his father-in-law's house to bring the respondent back to the matrimonial home but the respondents' mother, sister and sister's husband Prasanta Babu did not allow the petitioner to bring back the respondent and when the petitioner hard pressed for bringing the respondent they all became angry and remarked about the different standards of social status of the petitioner and the respondent after making arrangements to keep her according to the respondents' standard and did not allow him to bring back the respondent. The petitioner felt insulted and was overwhelmed with grief. On returning home the petitioner narrated all facts and disclosed his mental agony to his elder brother, who wrote a letter to the- respondent's mother. He went again to his father's-in-law's house on 8th of Aswin to see his ailing wife where he was again rebuked by his mother-in-law over the letter written by his elder brother. She told him that they were much higher than the family of the petitioner in wealth, respect and social status. Prasanta Babu once told him that a house would be constructed for him with other benefits if he lived in Kanthi separately from his parents, brothers and other relatives to which the petitioner did not agree as it was against his honour and self respect. He also refused the offer to live as Gharjamai (Griha Jamata). As pointed out above due to false vanity and feudal aristocratic pride and mentality the respondent left the petitioner's house on 15th Agrahayan 1394 B.S. and she deserted him by completely withdrawing herself from the association of the petitioner. He has, therefore, prayed for a decree of divorce against the respondent. 5. As pointed out above due to false vanity and feudal aristocratic pride and mentality the respondent left the petitioner's house on 15th Agrahayan 1394 B.S. and she deserted him by completely withdrawing herself from the association of the petitioner. He has, therefore, prayed for a decree of divorce against the respondent. 5. The O.P./wife contested the petition by filing written objection where in she has denied the allegations of her husband on all material points and further claimed that she tried her best to adjust herself with him although the petitioner never took any care for her and due to' the misbehaviour of the petitioner as well as his family members particularly of his second brother Sanatan Manna she felt uneasy and discomfort. She has further claimed that the petitioner, his family members and particularly his brother Sanatan Manna used to insist on her to bring more and more cash and kind from her paternal house and when she refused she was driven out from her matrimonial house by them by snatching all her ornaments and she was forced to leave her matrimonial home with a single wearing apparel. She has also pointed it out that she always wanted to lead her conjugal life Peacefully but she was always insulted, annoyed and tortured both mentally and physically in her matrimonial home. She has also expressed her willingness to lead a conjugal life with the petitioner if he could afford separate accommodation and bare necessities for the respondent. Admittedly, the respondent is the legally married wife of the petitioner and she did not live with her husband for more than two years from the date of the petition. Now the only question that arises for determination is whether her separate residence from the marital home for the statutory period of not less than two years from the date of the petition is reasonable and without the consent or against the wish of the other party and includes the wilful neglect of petitioner by the other party? In other words, whether she has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition as required u/s. 13 clause (1 b) of the Act? 6. Before entering into the merit of the case it might be convenient to refer, in brief, to the law on the point. In other words, whether she has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition as required u/s. 13 clause (1 b) of the Act? 6. Before entering into the merit of the case it might be convenient to refer, in brief, to the law on the point. The material point of law which s. 13(1) enacts is as follows: 13. Divorce.-(1) Any marriage, solemnized, whether before or after the 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, (1 b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; There is an explanation to this sub-section which runs: "Explanation.-In this sub-section the expression "deserted" 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". 7. It has been held in a decision reported in (1972) 2 SCR page 657 Rohini Kumari vs. Narendra Singh that to constitute desertion there must be two elements present on the side of the deserting spouse, namely, the factum of physical separation and the animus deserendi, i.e., the intention to bring cohabitation permanently to an end, and, so 'far as the deserted spouse is concerned the absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention. 8. In AIR 1988 Cal 111 (Kamal Kumar Basu, vs. Kalyani Basu) their Lordships held that in order to constitute desertion within the meaning of the Explanation to s. 13(1) of the Hindu Marriage Act, while there must be two elements present on the side of the deserting spouse, namely the factum of his or her withdrawal and the accompanying animus deserendi, there must also be two elements present on the side of the spouse claiming to be deserted, namely, absence of his or her consent and the absence of conduct on his or her part giving the deserted spouse reasonable cause to form the animus deserendi. 9. 9. We shall now proceed to consider the facts in the light of these principles with a view to find out whether the appellant has proved that the respondent had deserted him without just cause for the requisite statutory period? 10. We start with the admitted circumstance that the respondent did not return to the matrimonial home since Agrahayan 15th, 1394, i.e., 2.12.87 and the said suit was filed on 12.1.90 The petitioner's husband has claimed that he should be awarded with a decree of divorce on the ground that the respondent has withdrawn herself from the society of the petitioner without any reasonable and just cause for more than two years. This has been resisted by the respondent wife. Admittedly the respondent wife is living separately with the petitioner for more than two years. It is to be seen, as to whether the respondent has withdrawn herself from the society of the petitioner without reasonable and just cause, continuously for the statutory period or whether she was driven out from her matrimonial home and she has just and reasonable cause to withdraw herself from the society of the petitioner. In his evidence Loknath Manna PW1 says that his wife visited her father's house on 15th Agrahayan 1394 B.S. and since then she did not return back to his house as according to her, there are differences of social status between him and the respondent wife and she asked him to stay in her father's house or to increase up his standard to the level of the respondent to which he did not agree. He also says that he went to the house of his' father-in-law to bring her to his house on several occasions and also requested her to come back to his house. In sum and substance his evidence is that as his wife is a daughter of an affluent family and accustomed to get service of servants and maid servants which he was unable to provide and as such she is not willing to stay with him. There is lack of corroborative evidence on the point. His other witnesses PW2 Parameswar Das and PW3 Jagdish Chandra Das have only claimed that the respondent refused to return back to her father's-in-law house when the petitioner went to bring her. There is lack of corroborative evidence on the point. His other witnesses PW2 Parameswar Das and PW3 Jagdish Chandra Das have only claimed that the respondent refused to return back to her father's-in-law house when the petitioner went to bring her. The fact remains that the petitioner's claim that the respondent used to misbehave with his family members and that she intentionally left the house of the petitioner in order to put a permanent end to cohabitation remained uncorroborated. The petitioner failed to examine his family members for justifying his claim. - 11. The respondent wife has examined herself as O.P.W.1 wherein she has denied the claim of the petitioner and asserted that in the house of the petitioner she received very bad treatment from her husband as well as from the other members of his family. She says that her husband and his family members including his second brother Sanatan Manna ill-treated her and the said second brother insisted her to bring further ornaments and further money from her father's house which could not be done and as a result of which her husband assaulted her and also drove her out of his house and since then she is living in her father's house. She also says that Sanatan Manna misbehaved with her. She further says that she is ready to go with her husband if he makes separate arrangement so that she may not come in contact with his second brother Sanatan manna. O.P.W.2 Gunadhar Mandai has made statements to the effect that as the husband of O.P. drove her out of his house after assaulting so the O.P. was staying in her father's house and this fact he heard from the O.P. It appears from the perusal of Ext.A, a letter writhen by one Haripada Manna, the elder brother of the petitioner that the family members of the petitioner gave perusal on the respondent to bring properties from her father's house. The petitioner has admitted that the said letter was written by his elder brother. The respondent has, thus, been able to prove that there was pressure from the side of the petitioner's family on the respondent to bring properties from her father's house. The petitioner has admitted that the said letter was written by his elder brother. The respondent has, thus, been able to prove that there was pressure from the side of the petitioner's family on the respondent to bring properties from her father's house. From the perusal of Ext.A/1 which has been admittedly written by the petitioner to the elder brother of the respondent, it appears that the respondent has been termed as characterless woman with treachery, forgery, falsehood to the brim. The contents of the letter is as follows:- "Ext.A(1) :-Letter from Loknath Manna to Samar Da, dated the 22nd March, 1988. Ohm. Loknath Manna Vill. Naukaberth P.O. Bhagwanpore, Dist. Midnapore. 22.3.88. Respectable Samarda Take my obeisance through my letter. Why did you come to my house? Is it to understand my mind and the intention of the members of my' family? Knowing everything you have pretended as if you know nothing, then why did you come to invite? I know everything of the past history of your family. But falsehood, forgery, lechery and treachery are full to the brim in the body of Puspita. It is really not their fault. The tradition is going on with speed and that is still going on. Puspita came to investigate my house. She has gone away with the result. What is the use of coming again will she like such a calm an simple house? This house is not to her liking. No one do not want a characterless woman. N.B :- The residents of the village, Gounje people of country and the relatives (torn) Everyone is doing wrong. All my relatives and relations are remarking that the daughters of that family do not reside in husband's house. Finis. Lokenath Manna 22.3.88 12. It is mentioned in Ext. A/1 that the respondent is a characterless woman although he has not make such statement in his deposition before the court. On persual of the evidence of the respondent together with the contents of the two letters it can be safely said that in such circumstances it was absolutely impossible for a wife to stay in the house of her husband and she had good and reasonable reasons to live separately with the petitioner-husband. The circumstances were such as to compel her to live separately. The circumstances were such as to compel her to live separately. Where the circumstances are such which forces the respondent to leave the matrimonial house and live separately for a continuous period of not less than two years immediately preceding the presentation of the petition or where the petitioner drives away the respondent forcing her to live in separation continuously for the statutory period or more or where the driving away of the respondent results in continuous separate residence for the statutory period or more it cannot be said that the respondent has deserted the petitioner as per requirement of s. 13(1)(1 b). In the instant case the petitioner has failed to prove the factum of desertion. 13. The learned lawyer appearing for the petitioner has submitted before us that the respondent, by saying that she has got objection in residing with her husband if he stays along with his elder brother, cannot make it a good ground for staying separately and in this connection he has drawn our attention to the decision reported in AIR 1967 MP page 200 wherein their Lordships held that offer of a wife to live with husband provided he lives separately from his parents, is an unreasonable condition not made in good faith. But this decision does not apply in the facts and circumstances of this case. In the reported case the appellant Krishna Bai was unable to prove that the father of the respondent husband had in any way misbehaved with the appellant but here in the instant case the respondent wife has been able to prove that Sanatan Manna and other members of the family of the husband misbehaved and illtreated the respondent wife giving her a reasonable cause to leave the matrimonial home and by living separately for the statutory period or more she has not deserted her husband. The husband petitioner has failed to prove that he was deserted by his wife for not less than the continuous period of two years from the date of filing his petition. There is physical separation but the element of/animus diserendi, i.e., the intention to bring cohabitation permanently to an end is missing and has not been proved by the petitioner. We have, therefore, no hesitation in holding the judgment and decree of the learned court below. In the result, the appeal fails, and it is dismissed. There is physical separation but the element of/animus diserendi, i.e., the intention to bring cohabitation permanently to an end is missing and has not been proved by the petitioner. We have, therefore, no hesitation in holding the judgment and decree of the learned court below. In the result, the appeal fails, and it is dismissed. The parties are to bear their own costs in this court. S. N. Mallick, J. : I agree. The appeal fails and dismissed.