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1998 DIGILAW 988 (SC)

Ramani v. Saraswathi

1998-08-25

B.N.KIRPAL, V.N.KHARE

body1998
B.N.KIRPAL, J. (1) THE appellant and the respondent were married on 19-8-1979 at Chidambaram. Thereafter they lived together in Delhi for some time when on 17-4-1981 the respondent went to her parents house where she delivered a child on 22-4-1981. (2) IT is not in dispute that the parties never lived together thereafter. The appellant continued to live in Delhi till 15-4-1982. Thereafter he went and took up employment in Kuwait. According to the appellant, between May 1982 and 1984, he made five trips to India so as to persuade the respondent to join him but he was not successful. (3) ON 18-10-1984, the appellant filed a petition for divorce on the ground of desertion by the respondent. The trial court made an effort to bring about a compromise but did not succeed. Thereupon a decree of divorce was passed on 20-4-1987 as the trial court came to the conclusion, on the basis of the evidence on record, that the respondent had wilfully deserted the appellant and was not wanting to go back to her matrimonial home. Against the said decree an appeal was filed by the respondent before the District Judge. Fresh attempts were made to bring about a compromise but they also failed. Thereafter, the District Judge by judgment dated 12-3-1990 dismissed the appeal and confirmed the decree of divorce which had been passed by the trial court. (4) THE appellant then got married on 28-5-1990 and is now stated to be having two children. However, a second appeal was filed by the respondent in June 1990 and the High Court by judgment dated 7-7-1992 set aside the decree of divorce after coming to the conclusion that a period of two years had not elapsed before filing of the divorce petition. (5) WHEN the special leave petition was filed in this Court, notice was issued and the parties were directed to be personally present in court. The notices which were issued were not accepted by the respondent and on 5-5-1994 it was again directed that fresh service should be effected on her and in case she refuses to accept the same then service by substitution should also be effected. The Court also recorded the willingness of the appellant to deposit a sum of Rs. 1,50,000 for the benefit of the child which was born out of the wedlock. The Court also recorded the willingness of the appellant to deposit a sum of Rs. 1,50,000 for the benefit of the child which was born out of the wedlock. We have been given to understand that this amount had been deposited in a fixed deposit and along with interest the amount now comes to Rs 2,40,865. This amount has been reinvested in a fixed deposit to mature on 4-10-1999. Despite substituted service having been effected, the respondent has chosen not to put in an appearance in this Court. (6) BOTH the trial court and the lower appellate court have found as a fact that the respondent had deserted the appellant for about three and a half years prior to the filing of the petition for divorce. In coming to this conclusion, the courts took into consideration the evidence of PW 2 who had stated that he had gone to the house of the respondent to bring about a settlement prior to the filing of the petition for divorce, but the respondent had said that "we cannot agree to live together". The trial court and the lower appellate court concluded that there was no intention on the part of the respondent to go and live with her husband. (7) THE High Court observed that one year after the respondent had left the appellant he had gone away to Kuwait without informing the wife or her relatives about his address. This being so, the High Court observed that the respondent could not have gone to live with her husband because she was not aware of his address. The High Court, therefore, concluded that the period of two years prior to the filing of the divorce petition was not there and there was no question of desertion on the part of the respondent as she did not know the whereabouts of the husband and the husband did not care to give his address to her. (8) THE question whether the wife was guilty of desertion or not is essentially a question of fact. Both the trial court and the lower appellate court had, on the basis of the evidence on record, concurrently come to the conclusion that the wife had deserted the husband about three and a half years prior to the filing of the divorce petition. Both the trial court and the lower appellate court had, on the basis of the evidence on record, concurrently come to the conclusion that the wife had deserted the husband about three and a half years prior to the filing of the divorce petition. This concurrent finding of fact has been upset on the basis that the wife did not know about the address of her husband when he had gone away to Kuwait. We, however, find, as noticed by the District Judge, that the parents of the respondent were living only 4 km away from Chidambaram and there is nothing to show that any effort was made by the respondent or her parents for finding out the address of the appellant. Moreover, the evidence of PW 2 has, unfortunately, not been discussed by the High Court. We find from the documents which had been filed in the trial court that a letter Exh. B-6 is stated to have been written by the respondent to the appellant on 16-10-1985 nearly one year after filing of the divorce petition. No document had been placed on record by the respondent to show that any such letter was written by her to the appellant between April 1981 and 18-10-1984. Under these circumstances, the High Court ought not to have reversed the concurrent finding of fact of the trial court and the lower appellate court. From the evidence on record, it is clear that the appellant was entitled to a decree of divorce on the ground of desertion. (9) AS we have already noticed, a sum of Rs 1,50,000 which was deposited by the appellant for the benefit of the child has now swollen to a sum of Rs 2,40,865 which on maturity will become Rs 2,75,856. Learned counsel for the appellant states that a further sum of Rs 2,50,000 will be paid by the appellant for the benefit of the child. In addition thereto, another sum of Rs 2,50,000 will be deposited with the District Judge, Cuddalore towards maintenance of the respondent. We, accordingly, direct that the aforesaid sums be deposited with the District Judge, Cuddalore for the benefit of the child and the wife within eight weeks from today. Furthermore, the amount deposited with the Indian Bank on maturity on 4-10-1999 will be withdrawn and deposited with the District Judge for the benefit of the child. We, accordingly, direct that the aforesaid sums be deposited with the District Judge, Cuddalore for the benefit of the child and the wife within eight weeks from today. Furthermore, the amount deposited with the Indian Bank on maturity on 4-10-1999 will be withdrawn and deposited with the District Judge for the benefit of the child. It is made clear that the sum of Rs 2,50,000 which is to be deposited in favour of the wife is only a provisional amount and this deposit will not in any way take away her right to file an application under Section 25 of the Hindu Marriage Act. If such an application is filed, the Court will take into consideration the fact that a sum of Rs 2,50,000 has already been paid by the appellant. On the aforesaid amounts being deposited, the District Judge will inform the respondent about this order and the deposit of the amount with intimation to this Court. (10) WITH the aforesaid directions, this appeal is allowed. The judgment of the High Court is set aside and that of the lower appellate court restored. There will be no older as to costs.