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2000 DIGILAW 564 (KAR)

T. v. Nagarthnamma VS P. C. Renuka Prakash

2000-08-11

H.N.TILHARI, T.N.VALLINAYAGAM

body2000
JUDGMENT Harinath Tilhari, J.—This appeal under Section 28 of the Hindu Marriage Act, 1955, arises from the judgment and decree dated 20.10.1994 passed in M.C. No. 20 of 1987 whereby the Principal Civil Judge, Tumkur, granted the decree for restitution of conjugal rights in favour of the present Respondent (Petitioner before the Trial Court) and dismissed the counter claim made by the wife the present Appellant seeking decree for divorce. 2. The facts of the case in nut shell are that the Petitioner i.e. the present Respondent and the Appellant were married in accordance with the Hindu customs and rites sometimes in May 1984. According to the case of the husband-Petitioner who filed a petition under Section 9 of the Hindu Marriage Act, Smt. T.V. Nagarathnamma the wife who is the Appellant before us and who is referred to as the Appellant lived as a dutiful wife for a period of one month and thereafter the Appellant went to her parents house at Tumkur along with her parents and while going so she stated that she would join the present Respondent as early as possible. Thereafter, when she did not come, the Petitioner-Respondent approached the wife-Appellant and her parents to send the Appellant i.e., wife to live with the Respondent-husband. He also made a request to the wife but it was futile and the wife refused to come to Pura Mutt village to live with the present Respondent-husband. According to the husband-Petitioner, she acted on the ill-advise of her parents and she later on put a force on the husband to ask for partition of the Immovable properties belonging to the husband's family and to sell his share therein and thereafter to establish a house at Tumkur by the money obtained by the sale of the property. The case of the husband-Petitioner is that he requested the wife from time to time to join him and live with him. But she did not agree and the request of the Petitioner to the wife i.e. the present Appellant to join the husband made times again, as well as and the Panchayat held in this respect became futile and she did not agree to come to the house of the husband and deserted for no reason and refused to live with in the husband's house at Pura Mutt village. According to the husband-Petitioner who is the Respondent before us, the Petitioner issued the notice on August 24, 1987 to wife i.e. Appellant asking her to live with him and perform marital obligations, but Appellant (wife) gave an evasive reply hereto and did not comply with the request contained in the notice. The reply and the acknowledgment were also produced. Feeling aggrieved from the conduct of the present Appellant-wife who has been Respondent before Trial Court the Petitioner-husband filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on the plea that the wife has deserted the husband without any rhyme or reason and without his consent. That summons having been served on her the wife, who was the Respondent before the Trial Court and Appellant before us filed the written statement denying the allegations made in the petition and the case of the Petitioner-husband i.e. Respondent before us, she asserted that she has not deserted the husband. She asserted that it is false to say that the present Appellant i.e. wife lived at village Pura Mutt with Respondent up to 25.6.1984 for a month. According to her case, after the marriage when she had gone to the house of husband i.e. the present Respondent, she lived there as customary for two days and thereafter she had gone to her parents house and thereafter the Petitioner i.e. the present Respondent came to the house of the wife i.e. present Appellant and lived with the parents of the present Appellant. According to the case of the Defendant the husband came to the house of the wife and lived with the wife the present Appellant and her parents till August 1985. In addition to denying of the Petitioner's case the wife i.e. present Appellant also made a counter claim seeking that decree for divorce by dissolution of marriage under Section 13(1) (i)(a) and (i)(b) read with Section 23-A of Hindu Marriage Act. According to the case of the wife i.e. the present Appellant who was Respondent before the Trial Court, all through except for two days from the date of marriage the Petitioner and Respondent in the trial Court i.e. the present Appellant and the husband i.e. the Respondent in the appeal lived together at the place of the father of the wife the Appellant i.e. the Petitioner-husband lived in the house of the father-in-law. The Respondent i.e. the present Appellant further alleged that at the time of the marriage her father had paid the dowry and spent money. It was further stated that during his stay in the Respondent's house the husband-Petitioner demanded dowry and quarrelled with the wife i.e. the present Appellant. It has been alleged that present Respondent in appeal i.e. the husband demanded a sum of Rs. 25,000/- as dowry on the pretext that he wanted to start some business at Tumkur and when the parents of the wife could not and did not pay that amount the husband-Petitioner started ill-treating her, and he used to beat and treat her cruelly. It is mentioned that the wife (present Appellant) did not lodge any police complaint against the Petitioner husband thinking that it would be alright in future after some time. The further allegation is that after the Petitioner-husband, in pursuance of demanding additional sum of Rs. 25,000/-, tried to commit suicide by hanging himself in one of the rooms of the relatives at the time of the marriage of the daughter of the relative of Respondent's father. The case of the wife is that the husband started beating and assaulting the wife and used to abuse the parents of the wife since the time the demand of dowry was not fulfilled, and then in August 1985 when he was specifically told that he would not be given any dowry as per his demand. Then husband-Petitioner according to the allegation in the written statement committed theft of the gold earring valued at Rs. 3,000/-, and left for Tumkur in the early morning and thereafter did not return. That after having alleged these facts the wife-Appellant pleaded that the husband- Petitioner thus committed an act of cruelty and desertion and neglected to maintain her. It was asserted that the husband deserted the wife for more than two years prior to presentation of the petition of objection and counter claim and, on that ground the present Appellant sought for decree of divorce. It may be mentioned that according to the Respondent-wife i.e. the present Appellant, the Petitioner was interested in drawing the amount and his intention was to collect dowry amount and put an end to the marital relationship between them. To these objections the Petitioner-husband filed a written objection denying the allegations made in by way of counter claim. 3. It may be mentioned that according to the Respondent-wife i.e. the present Appellant, the Petitioner was interested in drawing the amount and his intention was to collect dowry amount and put an end to the marital relationship between them. To these objections the Petitioner-husband filed a written objection denying the allegations made in by way of counter claim. 3. On the basis of the pleadings of the parties, the trial Court framed the following issues: 1. Whether the Petitioner has proved that the Respondent without any just cause or reasons withdrawn from his society and to live a married life with him and thereby he is entitled for decree for restitution of conjugal rights? 2. Whether the Respondent has proved that the Petitioner deserted and treated the Respondent with cruelty and thereby she is entitled for decree of divorce under Section 13(1)(i)(a) of the Hindu Marriage Act? 3. What order? 4. The Trial Court after appreciating the pleadings and the evidence led in by the parties arrived at the following conclusions; (i) That the Petitioner had been successful in establishing that the Respondent (Appellant before this Court) without any just and reasonable cause had withdrawn from the society of the husband the Petitioner and deserted him as such the Petitioner is entitled to decree of restitution of conjugal rights. The Trial Court further found that the Respondent before it completely failed to establish desertion by husband for requisite period as well as failed to establish that the husband-Petitioner treated the Respondent (Appellant) with cruelty of any sort and that as the Respondent before it has failed to establish both the ground of desertion and cruelty so the Respondent is not entitled to get a decree for divorce under Section 13(1) of the Hindu Marriage Act. 5. Feeling aggrieved from the judgment and decree of the Trial Court decreeing the Petitioner's petition for restitution of conjugal rights, and, from the dismissal of the counter claim for decree for divorce Appellant has come up before this Court by way of this appeal. 6. We have heard learned Counsel for the Appellant Sri Basavaraj and Sri Shasidharan for the Respondent. 7. It has been contended by the learned Counsel for the Appellant that the trial Court has failed to appreciate the evidence properly. Learned Counsel for the Appellant has taken us through the evidence and the materials on the record. 8. 6. We have heard learned Counsel for the Appellant Sri Basavaraj and Sri Shasidharan for the Respondent. 7. It has been contended by the learned Counsel for the Appellant that the trial Court has failed to appreciate the evidence properly. Learned Counsel for the Appellant has taken us through the evidence and the materials on the record. 8. We have perused the evidence and after perusal of the evidence and materials on record, really in our opinion the appeal has got no merits for the reasons to be given hereinafter. 9. That Respondent namely the husband had filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The present Appellant while filing the written statement had made counter claim for decree for divorce. 10. Section 9 of the Hindu Marriage Act reads as under: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Explanation: Where any question arises, whether there has been reasonable excuse for withdrawal from the Society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the Society. (Inserted by Act 68 of 1976). 11. Under this section either of the spouses if had withdrawn without reasonable excuse, from the society of the other, then the aggrieved party may file a petition for restitution of conjugal rights and the Court has been conferred power to grant the decree for restitution of Conjugal rights, if it is satisfied about the truth of the statement made in such petition and that there is no legal ground why the Petitioner should not be granted decree for restitution of conjugal rights. Explanation to Section 9 is very material and it throws light on the question as to who has to prove the existence of reasonable excuse for withdrawal. Explanation to Section 9 is very material and it throws light on the question as to who has to prove the existence of reasonable excuse for withdrawal. As per the Explanation to Section 9 when the Petitioner alleges withdrawal of the Respondent in the petition from the society of the Petitioner, and there arise a question whether such withdrawal is or has been for reasonable cause or reasonable excuse then the burden will lie on the Respondent i.e., the person who has withdrawn from the Society to prove that there was and there has been a reasonable excuse or cause for the Respondent to have withdrawn from the society of the Petitioner. This is the position under law in view of the explanation which has been inserted by amendment to Section 9 of Hindu Marriage Act being made by Act 68 of 1976. Prior to this amendment and introduction of the Explanation the position even if it might have been otherwise, the position of law now is that the burden of proof with regard to reasonable excuse for withdrawal has changed and it is for the person who has withdrawn from the society of the Petitioner to establish i.e. the Respondent in the petition under Section 9 of Hindu Marriage Act to prove that he or she has got reasonable excuse for having withdrawn from the Society of the Petitioner. Section 13 of the Hindu Marriage Act mentions the situation and circumstances and the conditions on establishment of which the decree for divorce may be granted on a petition filed or a counter claim made by the Respondent for decree for divorce. There are many conditions such as adultery i.e., voluntary intercourse by the Respondent with any person other than his or her spouse or on the ground of cruelty i.e., on the ground that the Respondent has treated the Petitioner with cruelty or many other including the ground of desertion of the Petitioner by Respondent for a continuous period and not less than two years immediately preceding i.e. before the presentation of the petition or claim made for decree for divorce. 12. 12. Section 23(A) of the Hindu Marriage Act, permits the Respondent to make a counter claim for any relief under the Act on the ground of adultery, cruelty or desertion and if in case where counter claim is made by Respondent in written statement against the Petitioner of charge of adultery, cruelty or desertion made against Petitioner is proved and established, the Respondent may be granted the relief under the Act which he or she would have been entitled to, had he or she presented the petition seeking decree for divorce on such ground. The use of expression 'adultery, cruelty or desertion is proved' clearly reveals that in case a counter claim is made by the Respondent for decree for, divorce on those grounds, then the burden will be on the person making counter claim to establish either of the said ground namely adultery, cruelty or desertion, in the same way as the burden would have been on such person if he would have filed the petition under Section 13 for decree for divorce. The burden of proving the cruelty or desertion will lie on the party who alleges it, on preponderance of probabilities even though the party denying the existence fails to read any evidence. Desertion has been defined in Explanation to Section 13 as under: 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 variation and cognate expressions shall be construed accordingly. 13. In order to claim divorce on the ground of desertion, the party asserting desertion as the ground for claiming divorce will have to prove that the other party to the marriage has deserted without reasonable cause and without consent or as against the wish of the Petitioner. Desertion may also include the conduct such as wilful negligence of the other party to the marriage. For proving desertion, two conditions must be established. (i) factum of separation (ii) intention to bring cohabitation permanently to an end (animus dedicandi). Desertion may also include the conduct such as wilful negligence of the other party to the marriage. For proving desertion, two conditions must be established. (i) factum of separation (ii) intention to bring cohabitation permanently to an end (animus dedicandi). Similarly there are two other elements which are essential so far as deserted spouse is concerned, (i) absence of his consent (ii) absence of conduct giving reasonable cause to the spouse to leave matrimonial home to form the necessary intention as aforesaid. 14. In the case where the claim is made for divorce under Section 13 of the Hindu Marriage Act, where it is on any of the grounds desertion, adultery or cruelty etc., the burden is on the Petitioner who claims that decree for divorce on any of the grounds mentioned in Section 13 to establish the grounds as existing. In a case where the Petitioner claims decree for divorce on the ground of desertion then, the Petitioner will have to establish that desertion has been without just or reasonable cause during the entire period referred to under Section 13. In the case of Lachman Utamchand Kirpalani Vs. Meena alias Mota, AIR 1964 SC 40 , which was the case under Section 10(1) of the Hindu Marriage Act for seeking decree for judicial separation on the ground of desertion, it has been so laid it down following the English decision, in the case of Dun Vs. Dun, 1948 (2) of Eng. 822, in para 18 of the report as follows: It is the settled law that the burden of proving desertion that factum as well as animus dedicandi is on the Petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion through entire period of two years and that such desertion was without just cause. 15. He or she has to establish beyond reasonable doubt to the satisfaction of the Court, the desertion throughout the entire period of two years before the filing of the petition as well as that such desertion was without just cause. In the dissenting judgment also delivered by Subba Rao, J., it has been laid, "the result of the said discussion may be stated thus, the legal burden is on the Petitioner to establish beyond any reasonable doubt, that Respondent abandoned him or her without reasonable cause. In the dissenting judgment also delivered by Subba Rao, J., it has been laid, "the result of the said discussion may be stated thus, the legal burden is on the Petitioner to establish beyond any reasonable doubt, that Respondent abandoned him or her without reasonable cause. The Petitioner must also prove that there was desertion throughout the statutory period and there was no bonafide attempt on the part of the Respondent to return to matrimonial home and that Petitioner did not prevent the other spouse by his or her action from cohabitation". We must take note of the distinction between the provisions of Section 9 and Section 13. In view of the Explanation and in view of the scheme of the Act to see that as far as possible the matrimonial life or disturbed matrimonial life may be got reconciled and the efforts was made to allow the continuancy of marriage as far as possible as such, keeping this view, I find that the intention of legislature with reference to Section 9 has been to place the burden on the Respondent in case of petition under Section 9 to establish the reasonable excuse, for withdrawal from the society of the Petitioner. In view of explanation to Section 9 in case of withdrawal of the Respondent from the society of the Petitioner, the Petitioner has to prove withdrawal by the Respondent. While the person who has withdrawn from the society of the Petitioner, namely the Respondent in petition for restitution of conjugal rights has to establish the reasonable excuse for his or her withdrawal from the society of Petitioner. But, in a case decree for judicial separation or for decree for divorce on any of the grounds mentioned under Section 13, the burden is always on the Petitioner seeking that decree to establish the grounds mentioned under Section 13 and if that ground is not established by the Petitioner, the decree for judicial separation or for divorce cannot be granted. The counter claim or the person making counter claim is in the position of Plaintiff or Petitioner so far as the counter claim is made by him. In the present case, the Appellant who was Respondent in the petition under Section 9 of the Hindu Marriage Act by the husband. The counter claim or the person making counter claim is in the position of Plaintiff or Petitioner so far as the counter claim is made by him. In the present case, the Appellant who was Respondent in the petition under Section 9 of the Hindu Marriage Act by the husband. The Respondent before Trial Court i.e. the present Appellant who had made counter claim in the written statement, its position has changed and she has to be treated as the Petitioner in the matter of seeking relief for decree for divorce under Section 13 of the Hindu Marriage Act read with Section 23(A) of the Hindu Marriage Act. With reference to the claim for divorce on the ground alleged in the counter claim the Appellant-wife, having claimed relief under Section 13 and her position being that of the Petitioner, the burden strictly has fallen on her to establish the ground of desertion or cruelty alleged by her in the counter claim. Treating the counter claim as petition, the Appellant i.e., the wife had to establish all the ingredients of desertion, she will have to establish that her husband i.e. present Respondent had deserted her without any reasonable cause, from her, arising from her own conduct and she did not furnish any cause to the husband who is alleged to have deserted her and in case i.e. if she failed or fails to establish desertion or cruelty her claim for divorce was to be dismissed. If any of the ingredients constituting desertion is not established then, the claimants in a petition for divorce or claimant making a claim for divorce in her counter claim, will not be entitled to decree for divorce or judicial separation. While, in petition for restitution of conjugal rights the Respondent therein i.e. present Appellant will have to show reasonable excuse for withdrawing from the society of the Petitioner. While, in petition for restitution of conjugal rights the Respondent therein i.e. present Appellant will have to show reasonable excuse for withdrawing from the society of the Petitioner. Thus considered in our opinion in the present case the burden did lie on the present Appellant, to prove reasonable excuse or reasonable cause for her withdrawal from the society of the Petitioner in view of explanation to Section 9, and in the case with reference to her counter claim which is tantamount to the petition under Section 13 and with reference to it the Appellant's position is that of a Petitioner she had to establish the desertion with all its ingredients and conditions and has to establish that there was no reasonable cause nor was any reasonable cause furnished by her or by her conduct, to husband-Respondent in the appeal to withdraw from the society or to desert. 16. I find support for my above view from the Division Bench decision of this Court in the case of Srikant Rangacharya Adya Vs. Anuradha, AIR 1980 Kant 8 and from another Division Bench decision of this Court in D.P. Gopala Vs. Pushpaveni, AIR 1982 Kant 329 The Trial Court in this case has disbelieved the evidence lead on behalf of the present Appellant and has relied on the evidence lead by the Respondent. The Trial Court has held, the evidence led on behalf of the husband-present Respondent referred to PW-2 is much reliable and the evidence led on behalf of the present-Appellant and referred to in the judgment RW-2 and RW-3 to be evidence of interested witness and the Court thereafter expressed its opinion. Therefore looking to all aspects Trial Court expressed the view that the Petitioner who is Respondent in the first appeal has proved that the Respondent before the trial Court (i.e. present Appellant) without just and reasonable excuse or reason had withdrawn from the society of the Petitioner (husband) and therefore, it held the husband i.e. the Petitioner before it who is the Respondent in the appeal, to be entitled to decree for restitution of conjugal rights. It further held that as regards the counter claim Respondent before it (Appellant before this Court) has failed to establish and make out any ground either on desertion or on cruelty alleged in the counter claim as contained in the written statement and held therefore that is why the present Appellant had not been entitled to decree for divorce which was sought to be claimed by way of counter claim. The Trial Court decreed the Petitioner's case in petition under Section 9 of Hindu Marriage Act for decree of restitution of conjugal rights and rejected or dismissed the counter claim. 17. We have been taken through the records and as regard the merits of the matter, the evidence laid down on behalf of the present Appellant-the wife does not appear to be reliable. The parties to case were married in the year 1984. According to the husband-Petitioner, the present Appellant-wife had come to the present Respondent i.e. Petitioner's house and both the Appellant and Respondent lived happily for one month. Their life was happy. Thereafter, the parents of the wife i.e., Respondent before the Trial Court (sic), came to the house of the husband and asked the husband to send the wife who has been Respondent in the trial Court with them telling that she would come back or would be sent back soon and thus her parents had taken the wife-Appellant to their house. But she did not turn inspite of approach being made by the husband to bring the wife. According to the Petitioner's witness, even a panchayat was held and the panchayat asked Respondent's parents to send her back with the husband. But they did not agree nor the wife-Respondent did agree and she stayed with her parents. According to PW-1 there has been no communication nor cohabitation between the husband (present Respondent in the appeal) and the wife (Appellant before this Court). The statement of PW-2 support the version of PW-1. According to RW-1 after marriage with the Petitioner, she lived only for two days with the Petitioner-husband in his house. According to RW-1 when she had been taken to her parents house, her husband came to her parents house and lived with her till 1985 i.e., lived there till August 1985 and then in the last week of August, 1985 the husband left the house of the parents, and there has been no cohabitation. According to RW-1 when she had been taken to her parents house, her husband came to her parents house and lived with her till 1985 i.e., lived there till August 1985 and then in the last week of August, 1985 the husband left the house of the parents, and there has been no cohabitation. The Appellant even at the stage of evidence as RW-1 in the course of cross-examination stated "even though the Petitioner is now ready to take with him, I am not willing to go with him as I apprehend to my life". What danger to her life is no where clarified nor there appears to be any such thing. This conduct on the part of the Appellant really shows that husband-Respondent had not deserted her but it was the wife the present Appellant who deprived the Respondent in the appeal of her company and really the present Appellant did not like to join the Petitioner's society as two days after the marriage she had been taken away from the matrimonial home to her father's home and since thereafter she did not turn up. According to P Ws evidence she wanted her husband to sell the land in the village and take a rented house in Tumkur, otherwise she would not be sent. The husband might or might not have passed SSLC or TCH, but once the marriage had been performed, the Appellant had to live with her husband like faithful loving wife. The theory set up by the wife that the Petitioner used to beat her, blame her, used to trouble her by demanding Rs. 25,000/- and the allegation that husband had troubled her for money does not appear to be believable, as if that had happened at the home of her parents and husband would have done as alleged definitely the parents of the wife would not have allowed the husband i.e. the present Respondent to leave at that and not only that they might have lodged police complaint or would have sent a letter of complaint to his parents. The theory set up by the wife that husband had tried to commit suicide by tying rope to the hook of the fan and doctor was called for giving him treatment appears to be a cock and bull story and there is no documentary evidence nor is there any reliable oral or circumstantial evidence to that effect against the Respondent. That RW-2 in course of cross-examination deposed "It is false to say that for this case I have deposed falsely that Petitioner had tried to commit suicide after the marriage of my daughter and I have saved him by getting him treatment. I and my elder brother did not give any complaint against the Petitioner regarding ill treating of Nagarathnamma about demanding dowry. To the Court question, RW-2 replied and stated that "I did not give any complaint on 16.6.1985 with regard to attempt to commit suicide by the Petitioner". The statement of PW-3 is also to the same effect. RW-3 is none other than the father of Respondent-1. He deposed that the Petitioner-husband lived in his house at Tumkur for one year. According to him the Petitioner used to beat and abuse the Respondent and demand Rs. 25,000/- for business and used to quarrel. He states that "I used to advise the Petitioner not to ill-treat my daughter and did not give a police complaint thinking he would improve". Really the evidence lead on behalf of the Appellant has rightly been disbelieved as interested one. There is no explanation why the report was not made to police. There is no explanation why any complaint was not lodged by her parents or why the doctor who according to wife and RW-2 treated the Petitioner i.e. present Respondent has not been examined or produced. In fact the Petitioner-Appellant according to the evidence of the Appellant-witness had gone there to bring his wife. He lived there also showered his love and affection but he had to return bare handed. The Appellant did not come back. No reasonable excuse appears to have been established by the Appellant for withdrawing from the society of her husband. PW-1's statement to the effect that the Appellant and her parents were emphasizing the husband to sell his landed property and to live with them cannot by itself said to be a sufficient cause or reason for withdrawal. No reasonable excuse appears to have been established by the Appellant for withdrawing from the society of her husband. PW-1's statement to the effect that the Appellant and her parents were emphasizing the husband to sell his landed property and to live with them cannot by itself said to be a sufficient cause or reason for withdrawal. Really this is something which was not justified on the part of the parents of the Appellant to have emphasized. We agree with the view of the Trial Court and the reasons given by the Trial Court when it held that the Appellant had failed to prove desertion alleged with all its ingredients as well as failed to prove the cruelty on the part of husband towards his wife-Appellant as pleaded in the counter claim. The evidence on record show and even her statement on oath is to the effect that even if the husband wants to take her to his house and she does not want to live with him "I am not prepared to go with him or live with him clearly shows that the fault did not lie with the present Respondent namely the Petitioner in petition under Section 9. But it did lie on the present Appellant-wife who was Respondent before the Court below. 18. In our opinion, the judgment and decree of the Trial Court does not call for any interference and the appeal has to be dismissed and the same is hereby dismissed. The appeal filed by the wife is hereby dismissed as it has got no merits.