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2008 DIGILAW 2 (ORI)

Dayabati Pradhan v. Hrushikesh Pradhan

2008-01-02

S.PANDA

body2008
JUDGMENT :- This appeal has been filed against the judgment and decree dated 25-9-1986 and 4-10-1986 respectively passed by the learned Subordinate Judge, Bargarh in Title Suit No. 96 of 1984. 2. The plaintiff is the appellant. The plaintiff is the legally married wife of the defendant. The marriage between the parties was solemnized on 28-2-1973 in accordance with the Hindu rites and ceremonies. After marriage, both the parties remained as husband and wife at village Antapali till Bhadrava, 1981. Thereafter, the family members of the defendant-husband disliked the plaintiff and she was subjected to various ill-treatments and cruelty. In the month of Pushera of the year 1981, the defendant with active connivance of his mother and younger brothers picked up quarrel with the plaintiff and assaulted her and drove her out of the house and left her at the bus stand of her father's village. Since then, the plaintiff is residing in her parents' house and apprehends danger to her life from the matrimonial house. In spite of repeated information given by the parents of the plaintiff to take back her, the defendant paid no heed to it. In September, 1983, the defendant came to the parents house of the plaintiff and on the insistence of the parents of the plaintiff, both the parties went to Burla Medical College for treatment, got themselves examined by Dr. M.D. Rout, but the defendant did not follow the doctor's advice and left the plaintiff at her parents' house. After that, the defendant sent two letters on 16-11-1983 and 16-12-1983 to the father of the plaintiff indicating his intention to divorce the plaintiff. Alleging that the defendant deserted the plaintiff without any reasonable excuse and therefore, he is liable to provide separate residence and maintenance to her, the plaintiff filed the suit claiming maintenance at the rate of Rs. 400/- per month and arrear maintenance at the rate of Rs. 12,000/- from the defendant. She further claimed that the defendant has the capacity to pay the maintenance as he belongs to a well-to-do cultivator family having 65 acres of irrigated land at villages Antapali and Tora. The income of the defendant approximately would be more than Rs. 25,000/- per annum. 3. 12,000/- from the defendant. She further claimed that the defendant has the capacity to pay the maintenance as he belongs to a well-to-do cultivator family having 65 acres of irrigated land at villages Antapali and Tora. The income of the defendant approximately would be more than Rs. 25,000/- per annum. 3. The defendant in his written-state-ment traversed the plaint allegations and pleaded that he has never deserted the plaintiff and still very much wishes that the plaintiff should resume her marital life with him and she should return to his company without delay. It had further been pleaded that the plaintiff finally went to her mother's place in the month of Jestha, 1982 accompanied by her mother against the wish of the defendant and his family members. The defendant had gone to the parents' house of the plaintiff to bring her back but she did not return. Apart from that, the plaintiff comes from an ordinary cultivator family and is habituated to work in the field and gets Rs. 300/- per month and hence the defendant has stated that in case maintenance, if any, is to be allowed, it should be at the rate of Rs. 10/- per month. The defendant also made a counter-claim praying for a decree for restitution of conjugal rights against the plaintiff directing her to join his company. The plaintiff resisted the counterclaim filed by the defendant wherein she denied the averments of the defendant and stated, inter alia, that the defendant is not entitled to a decree for restitution of conjugal rights; because he had deserted her for more than two years and as such the counter-claim was barred by limitation. In that premises, the plaintiff prayed for dismissal of the counter-claim. 4. In support of their case both the parties adduced oral as well as documentary evidences. They examined themselves as witnesses in the suit and did not examine other witnesses on their behalf. The trial Court on the pleadings of the parties formulated four issues out of which issue Nos. 3 and 4 are as follows : "Issue No. 3 : Is the plaintiff entitled to separate maintenance and residence? Issue No. 4 : Is whether the defendant is entitled to prayer for restitution conjugal rights?" 5. The trial Court on the pleadings of the parties formulated four issues out of which issue Nos. 3 and 4 are as follows : "Issue No. 3 : Is the plaintiff entitled to separate maintenance and residence? Issue No. 4 : Is whether the defendant is entitled to prayer for restitution conjugal rights?" 5. The trial Court recorded the findings that the plaintiff has deserted the defendant without any reasonable excuse and there is no evidence from the side of the plaintiff to show she has reasonably apprehended injury on her life and limb and the evidence of ill-treatment as stated by the plaintiff is of very general and formal nature and cannot be said to be grave justifying the claim of the plaintiff to separate residence and maintenance. The trial Court has further held that the defendant had no intention to bring an end to the conjugal rights permanently. In view of the above findings, holding that since the plaintiff has not make out any case justifying her separate residence and maintenance. She is not entitled to separate home and maintenance, the trial Court dismissed the suit. It also allowed the counter-claim of the defendant and directed the plaintiff to join her husband within one month from the date of the order failing which the defendant shall be at liberty to compel the plaintiff to join his company by levying execution of decree passed in the counterclaim. 6. The appellant-plaintiff has filed this appeal against the said judgment and decree on the ground that she has not deserted the defendant. Rather, it is the defendant who has deserted her and is not maintaining her and due to ill-treatment and risk to her life, she is staying at her parents' house. She is not able to stay with the defendant who has drove her out from the matrimonial house after ill-treatment. Thereafter the defendant has not taken any step to take her back to the matrimonial home. Even though he has the legal obligation to maintain her during her life, he has deserted her. 7. She is not able to stay with the defendant who has drove her out from the matrimonial house after ill-treatment. Thereafter the defendant has not taken any step to take her back to the matrimonial home. Even though he has the legal obligation to maintain her during her life, he has deserted her. 7. In the present appeal the question which naturally falls for determination is, "Whether it was the plaintiff who had left her matrimonial home without any rhyme or reason and withdrew herself from the society of the defendant-husband without any just cause, or she was forced out to stay with her parents on account of the callous, indifferent or neglect attitude of the defendant-husband?" 8. The plaintiff stepped into the witness box as P. W. 1 and stated that she was subjected to ill-treatment by her in-laws in the matrimonial home. Thereafter defendant has left her in her parents' house and did not take her back to the matrimonial house, rather sent two letters expressing his intention to divorce. In her cross-examination, she has categorically stated that her husband did not call her to go with him when he returned from Burla after visiting the doctor. The defendant has only stated in his deposition that after returning from Burla, he again went to house of the plaintiff's father but they told that their daughter would not go. 9. It is trite that man may lie but circumstances do not. In the instant case, the circumstances eloquently speak of what must have happened. As stated above, the marriage took place in the year 1973. Thereafter, till 1981 plaintiff has not begotten any child. The matter however, did not end there. The parents of the plaintiff took steps for best possible treatment but the defendant did not co-operate with them, rather he left her there and did not call her back to go with him to the matrimonial home. Thereafter he has sent letters intending to divorce the plaintiff. The husband-respondent has not examined any other witnesses to corroborate him that he took steps to bring the plaintiff back to the matrimonial home. It may as well be that nobody was ready to oblige him by giving false evidence. Thereafter he has sent letters intending to divorce the plaintiff. The husband-respondent has not examined any other witnesses to corroborate him that he took steps to bring the plaintiff back to the matrimonial home. It may as well be that nobody was ready to oblige him by giving false evidence. Anyhow, a broad and overall view of all these facts goes to show that the defendant, for reasons best known to him, has doubted the plaintiffs barrenness and therefore, he in order to get rid of her left her at her parents' house. 10. Even assuming for the sake of argument that the plaintiff herself left the matrimonial home, there can be a little doubt that she must have been forced to do so for compelling reasons. In a Hindu society, where marriage is still regarded as sacrament, it cannot be thought of that wife would have not regard for the sanctity of marriage and would desert her husband for no rhyme or reason. Rare exception apart, such an idea is completely abhorrent to common sense of one who has ever an idea of the social outlook and mental attitude of a Hindu wife specially a non-working housewife. Certainly, nothing has come on the record which would even remotely suggest it to be a case of rare exception. 11. It is settled that in its essence 'desertion' means, "the intentional permanent forsaking and abandonment of one spouse by the other without consent and reasonable cause". It is a total repudiation of the obligation of marriage. The burden of proving desertion - the factum as well as the animus deserendi is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the Court that the desertion throughout 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 husband has still to satisfy the Court that the desertion was without cause. The Apex Court in AIR 1975 SC 1534 (Dr. N. G. Dastane v. Mrs. S. Dastane) laid down that the word 'satisfied' in Section 23 of Hindu Marriage Act, must mean 'satisfied on a preponderance of probabilities'. Hence, the inference of desertion has to be drawn on a balance of probabilities. The circumstances speak eloquently against the husband in the present case. 12. N. G. Dastane v. Mrs. S. Dastane) laid down that the word 'satisfied' in Section 23 of Hindu Marriage Act, must mean 'satisfied on a preponderance of probabilities'. Hence, the inference of desertion has to be drawn on a balance of probabilities. The circumstances speak eloquently against the husband in the present case. 12. As observed earlier, it does not appeal to common sense that the wife would have left the house of her husband for no rhyme or reason. Assuming for a moment that she did so, nothing has come on record to suggest that she had withdrawn herself from the society of her husband with the intention of repudiating her matrimonial obligation forever. Even otherwise, it is manifest that after serious allegation was levelled against her, she has no courage to come back to her matrimonial home on her own accord. It was, therefore, for the defendant to make complete atonement for his highly wrongful act. In the absence of any regret by the husband, the continued residence of the wife at her parents' house can, by no stretch of reasoning, be said without just cause and she cannot be held guilty of the matrimonial offence of desertion. 13. On the aforesaid findings, the judgment and decree of the learned trial Court is set aside. Plaintiffs suit is decreed. Considering the materials on records regarding the landed properties of the defendant and his status, the plaintiff is entitled to maintenance of Rs. 300/- per month from the date of filing of the suit and arrear maintenance of Rs. 7,000/-. The defendant shall pay the aforesaid amount of arrear maintenance within two months from today, failing which the plaintiff will realize the same by executing the decree. No order as to cost. Order accordingly.