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2008 DIGILAW 1035 (AP)

Lakkaraju Padma Priya v. Lakkaraju Shyam Prasad

2008-12-04

B.PRAKASH RAO

body2008
JUDGMENT: (Per Hon'ble Sri Justice Vilas V. Afzulpurkar) 1. This is an appeal preferred by the wife, aggrieved by the decree of dissolution of marriage granted in favour of husband on the ground of desertion under Section 13 (1) (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act"). The parties are referred to as "the husband" and "the wife" for the sake of convenience. 2. The brief facts of the case are that the parties were married on 24.2.1989 and they were living together at Hyderabad. During the year 1991 the wife took an employment as a private school teacher, and after some time she gave birth to a female child on 12.8.1993. It is alleged that while working at the school, because of heavy work pressure and due to birth of daughter, she developed depression problem and as the said problem was recurring periodically for about three years, she was advised to take medical treatment at Visakhapatnam where her parents were residing. However, some time in the year 1996 her parents decided to shift the family to Hyderabad and she continued to live with her parents at Hyderabad and the husband continued to live separately at Guntur as the wife herself was unable to look after her day to day needs and had to depend on her parents. The husband alleged that he had shifted his practice of chartered accountancy to Guntur in order to look after his old parents and later brought the wife and daughter to Guntur on 5.6.2000. It is further alleged that after staying together for a month or so, the problem of depression of the wife again resurfaced and her parents took away her to Hyderabad to admit her in a reputed hospital at Hyderabad. It is alleged that since then she has been staying at Hyderabad continuously and did not join the husband at Guntur. The husband alleged that the wife had deserted him without any valid reason from 24.7.2000 and in effect right from the date of birth of child, out of 9 years period, she had lived with him hardly for a month and accordingly he filed the petition for divorce on the ground of desertion. 3. The wife resisted the petition by filing her counter denying the aforesaid allegations made against her by the husband. 3. The wife resisted the petition by filing her counter denying the aforesaid allegations made against her by the husband. She stated that her husband failed to take care of her health and she had to take the support of her parents and on account of her doctor's advice, she required treatment and for that purpose, she was forced to stay at Hyderabad for taking medical treatment and was waiting for the husband who had promised to shift them, in a short time. She has averred that she is always ready and willing to join her husband wherever he stays and she never deserted her husband. 4. Before the lower court the husband examined himself as P.W.1 and his mother as P.W.2 and marked Exs.A1 and A2 which are letters addressed by the wife dated 8.1.1995 and 23.8.1999 respectively, Ex.A3 is the letter addressed by the wife to her husband dated 5.6.2002 and Ex.A4 is the letter written by the father of the wife to the husband dated 10.11.2001. The wife examined herself as R.W.1 and her mother as R.W.2 and no document is marked on her behalf. On the basis of the aforesaid evidence of the parties, the trial court has granted a decree of divorce by accepting the case of the husband that the wife had deserted him. The said decree is in appeal at the instance of the wife. 5. We have heard Smt. K. Lalitha, learned counsel for the appellant-wife and Sri Y.V. Raviprasad, learned counsel for the respondent-husband. 6. The learned counsel appearing for the appellant-wife has submitted that the decree granted by the court below is totally unsustainable as the desertion required to be proved under Section 13 (1) (ib) of the Act has not been established by the husband. She further contends that the findings of the court below do not show that the desertion is established even on the basis of the evidence on record. She contends that even as per the case of the husband, there was separation only on 23.7.2000 and that by itself does not indicate any animus deserendi on the part of the wife to cease co-habitation and in the absence of any evidence on the part of the husband to prove the same, the OP filed by the husband on 31.7.2002 is itself misconceived and ought not to have been allowed by the lower court. She has relied upon a decision of the Supreme Court reported in Lachman Utamchand Kirpalani Vs. Meena alias Mota 1 and on a decision of this Court reported in Kosuri (Chandana) Dhanum Kumari Vs. Kosuri Venkata Vara Prasad 2. 7. Per contra, the learned counsel for the respondent-husband supports the order under appeal and contends that the evidence on record and in particular the evidence of R.W.2, the mother of the appellant-wife, itself establishes that the appellant-wife had fallen into bad habits and depression and she was addicted to drugs and had to be treated for a long period for de-addiction. He further submits that the letters written by the wife herself which are marked as Ex.A1 and A2 themselves show that the she had admitted to her medical problem as well as her behavioural problem and has sought the husband to execuse her, which according to him, is sufficient to grant a decree. He also contends that right from her separation on 23.7.2000, the wife has not made any attempt to join the company of husband and has continued to stay with her parents at Hyderabad and thereby the animus is established. He has relied upon the decisions of the Supreme Court reported in Adhyatma Bhattar Alwar Vs. Vadhyatma Bhattar Sri Devi 3 and Durga Prasanna Tripathy, Appellant v. Arundhati Tripathy, 4 8. The learned counsel for both the sides have taken us through the paper book which contains the oral and documentary evidence relied upon by both the parties. We have also examined the findings of the court below. It has to be remembered that the husband had approached the court below for a decree of divorce only the ground of desertion under Section 13 (1) (ib) of the Act. We have also examined the findings of the court below. It has to be remembered that the husband had approached the court below for a decree of divorce only the ground of desertion under Section 13 (1) (ib) of the Act. Section 13 (1) (ib) of the Act reads as follows, "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 - xxx xxx xxx (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or xxx xxx xxx Explanation - 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." 9. In Lachman Utamchand Kirpalani Vs. Meena alias Mota (1st supra) the Supreme Court interpreted the word 'desertion' expressed in the above said provision and considered the question as to what constitutes 'desertion' with reference to the various decisions under English law as well as Indian law and held that "the word 'desertion' comprises factum of separation as well as animus deserendi and the burden of proving the desertion is on the petitioner who alleges desertion and such burden has to be established beyond reasonable doubt to the satisfaction of the court that the desertion continued throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. Further the desertion is a matter of inference to be drawn from the facts and circumstances of each case. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. Further the desertion is a matter of inference to be drawn from the facts and circumstances of each case. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time." 10. This Court in Kosuri (Chandana) Dhanum Kumari Vs. Kosuri Venkata Vara Prasad (2nd supra) held that mere living apart by the parties is not desertion. The desertion indicates a state of mind in which a party guilty of the act must indicate either in express words or by conduct to put an end to the relationship. The Court further held that the burden of proof to prove the fact of desertion lies on the person who alleged it. 11. The aforesaid legal position laid down by the Supreme Court is also reiterated in Adhyatma Bhattar Alwar Vs. Vadhyatma Bhattar Sri Devi (3rd supra) and the Supreme Court held that "desertion in the context of matrimonial law represents a legal conception. The essential ingredients of the offence in order that it may furnish a ground for relief are 1. the factum of separation; 2. the intention to bring cohabitation permanently to an end - animus deserendi; 3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period." 12 Thus though the expression 'desertion' is to be widely interpreted and understood, these essential conditions have to be established. In a later decision of the Supreme Court in Durga Prasanna Tripathy, Appellant v. Arundhati Tripathy (4th supra) the above decision was noticed and the principles laid down by the Supreme Court were reiterated. 13. In the light of the above legal position, we have to examine the pleadings and the evidence of the parties. 14. The allegations in the OP filed by the respondent, particularly paragraphs 7 and 8 are relevant to the extent of the allegation of 'desertion', "7. 13. In the light of the above legal position, we have to examine the pleadings and the evidence of the parties. 14. The allegations in the OP filed by the respondent, particularly paragraphs 7 and 8 are relevant to the extent of the allegation of 'desertion', "7. During the said month, she was suffering from the same problem of severe depression and her parents took her away to Hyderabad promising that they will get her disease cured by admitting her at a reputed hospital in Hyderabad. Since then, the respondent started living with her parents continuously and did not come back to join the petitioner at Guntur. The petitioner personally met the parents of the respondent to accompany her daughter and requested to come down to Guntur and stay either with the petitioner's family or separately so as to enable them to support their daughter and give moral strength to see that both the petitioner and the respondent lived a happy married life. 8. At the first instance, the parents of the respondent promised to come down to Guntur and settle down at Guntur and look after the well being of their daughter, the respondent. Thereafter, the parents of the respondent were postponing their coming over to Guntur on some pretext or the other and they are least concerned about the leading of the family life of the petitioner and the respondent. The petitioner has tried his best to prevail counsel upon the respondent and her parents by explaining their necessity to settle down at Guntur. Ultimately, the respondent and her parents came out in their true colours and bluntly informed the petitioner that it would not be possible for them to bring their daughter to Guntur and settle down. Thus the respondent deserted the petitioner without any valid reason and subjected the petitioner to stress and strain and mental agony with effect from 24.7.00." 15. In the counter filed by the appellant-wife, she has stated in paragraph No.5 as follows, "5. The petitioner's allegations that he continued his practice at Guntur in order to look after the aged parents and for their health reasons and that he thought that a change of place may cure the illness of the respondent and accordingly he brought the respondent and his daughter Kaivaiya to Guntur on 5th June, 2000 is incorrect and baseless. The petitioner's allegations that he continued his practice at Guntur in order to look after the aged parents and for their health reasons and that he thought that a change of place may cure the illness of the respondent and accordingly he brought the respondent and his daughter Kaivaiya to Guntur on 5th June, 2000 is incorrect and baseless. The petitioner promised the respondent that he would go to Guntur and after settling there professionally and after all the issues with regard to the death of his brother are resolved, he will shift the family to Guntur, along with this respondent and his daughter. But, however, instead of doing so, he did not care for the welfare of this respondent and his daughter and he made himself scarce and used to visit the respondent and his daughter occasionally, who are forced to stay at Hyderabad and continued to promise that he would shift the family also in a short time. All the requests of the respondent to take them to Guntur, proved futile. The allegations that the petitioner and this respondent last resided at Guntur is absolutely false and this Court has no jurisdiction to entertain the matter." 16. In the evidence of the respondent-husband as P.W.1, he states as follows, "My wife joined me at Guntur on 5.6.2000 and she was taken by her parents on 23.7.2000 to Hyderabad. It is not true to say that by the time of return of my father, I wanted to send my wife away. I myself took my wife to Hyderabad and left her in the house of her parents. ......I have not got issued any notice prior to the filing of this application. The respondent was willing to live with me. I requested the respondent to come along with her parents since she requires some services because of her health. The parents of the respondent refused to come to our house. It is also one of the grounds for filing this application..........On 23.6.2000 I decided that there would not be possibility of continuing my marital life with the respondent. It is not true to say that I myself deserted the respondent without any reason or cause and filed this O.P. with false allegations...............On 23.7.2000 the parents of the respondent took the respondent from Guntur and she was admitted in the hospital at Hyderabad on 24.7.2000. It is not true to say that I myself deserted the respondent without any reason or cause and filed this O.P. with false allegations...............On 23.7.2000 the parents of the respondent took the respondent from Guntur and she was admitted in the hospital at Hyderabad on 24.7.2000. On the day when the parents of the respondent took the respondent from Guntur, I applied for divorce petition." 17. The above pleadings and the evidence clearly established that on account of medical problem, the wife was shifted by her parents from Guntur to Hyderabad and she was admitted in a hospital. The factum of separation alone is, therefore, proved and at this point of time even according to the husband, there is not even inclination of animus on the part of the wife to permanently cease the cohabitation and marital relation. While the wife was suffering from her medical problem, she had to be admitted for proper treatment in a hospital where she could be cured for her ailment. The factum of separation between the couple on account of the said medical problem therefore is by itself not sufficient to establish any animus on the part of the wife to desert the husband, as is sought to be alleged by the husband in the OP. Consequently, therefore, it has to be held that on 23.7.2000, when the wife left Guntur for the purpose of admittance into a hospital at Hyderabad, that cannot be the time of commencement of desertion as alleged by the husband. The other evidence on record also does not show as to, at what point of time, the said separation has further culminated into animus deserendi on the part of the wife. As we have seen from the legal position explained in the decisions referred to above, apart from the above two conditions, it is further necessary to be established that an element of permanence of the above two essential ingredients continued during the entire statutory period of two years. The OP in the present case was filed on 31.7.2002 and therefore it was necessary for the husband to establish all the three essential ingredients of desertion between the period from 23.7.2000 and 31.7.2002. The OP in the present case was filed on 31.7.2002 and therefore it was necessary for the husband to establish all the three essential ingredients of desertion between the period from 23.7.2000 and 31.7.2002. On an appreciation of the entire evidence on record as well as the findings of the court below, we are satisfied that there is no evidence on the part of the husband to establish the desertion within the aforesaid three essential ingredients. In fact, the very establishment of animus on the part of the wife is absent in the present case. 18. The learned counsel for the husband has placed much reliance on the evidence of mother of the appellant who was examined as R.W.2 to contend that the wife had fallen into bad habits and was addicted to drugs and had to undergo long treatment for de-addiction. He has also relied upon the cross-examination of R.W.2 to establish that during that period it is the husband who had suffered. He has also relied upon her statement that the husband requested the parents of the wife to come and stay at Guntur to attend to their daughter and he agreed to provide all the necessities including the accommodation and though the parents of the wife promised, but they could not come down and settle for personal reasons. 19. Even if the aforesaid events are accepted as real state of affairs between the parties, even then the husband has to establish all the three ingredients by leading requisite evidence in support thereof. When he has approached the court below with a specific case of desertion on the part of the wife, the burden of proof is entirely upon him. In fact, the wife, during her cross-examination as R.W.1 stated that her father shifted the family to Hyderabad in order to assist her. She stated that since she developed depression, she was admitted in Drug Addiction Centre, Hyderabad on 24.7.2000. 20. From the above evidence, it is clear that the wife was unwell on the date of alleged desertion and as such it is not expected that there will be 'animus' on her part to desert her husband. Reliance is placed by the learned counsel for the husband on the letters written by the wife viz., Exs.A1 to A3 relating to the period 1995, 1999 and 2002 for the purpose of establishing desertion. Reliance is placed by the learned counsel for the husband on the letters written by the wife viz., Exs.A1 to A3 relating to the period 1995, 1999 and 2002 for the purpose of establishing desertion. Exs.A1 and A2 are not relevant as they relate to far earlier period to the alleged desertion. So far as Ex.A3 is concerned, the wife, in fact, had promised that hereafter she will respect the decisions of her husband and behave accordingly and, in fact, she profusely thanked the husband and in-laws for their support throughout her treatment. No animus on the part of the wife can be inferred from the said letters and in fact, the inference would be otherwise. The court below has not kept in mind the above aspects and equated the mere separation to desertion and granted a decree of divorce. We are, therefore, constrained to set aside the said decree in view of our findings as above that the husband has failed to establish the desertion as alleged. 21. The learned counsel for the husband has also strenuously submitted that the parties are living apart for the last 8 years. Earlier for about two years, on account of prolong treatment, they were not staying together. Therefore, submits that the possibility of their staying together and saving the marriage being very bleak and remote, he has prayed that the above circumstances of irretrievable breakdown of marriage be taken into consideration and the decree be confirmed. The reliance placed by him on the decision of the Supreme Court in Durga Prasanna Tripathy, Appellant v. Arundhati Tripathy (4th supra) is also in this context. 22. We have considered the aforesaid submissions, especially in the light of the submission on the part of the wife that she is anxious to join her husband. Firstly, we have no material to conclude such irretrievable breakdown of marriage and secondly no such ground is permissible under Section 13 of the Act. The decision of the Supreme Court relied upon by the learned counsel for the husband is based upon the power exercised by the Supreme Court under Article 142 of the Constitution of India on being satisfied that the facts and circumstances of a particular case warrant the exercise of such power. The said submission of the learned counsel for the husband is, therefore, liable to be rejected. 23. The said submission of the learned counsel for the husband is, therefore, liable to be rejected. 23. In the result, therefore, the appeal is allowed and OP No. 227 of 2002 filed by the husband before the court below stands dismissed. However, no order as to costs.