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2010 DIGILAW 1553 (MAD)

Thatchinamoorthy v. Sivagamy

2010-04-05

M.VENUGOPAL, R.BANUMATHI

body2010
Judgment : Feeling aggrieved by the dismissal of his divorce petition filed on the ground of desertion in M.O.P.No.38 of 2000 on the file of Family Court, Pondicherry, husband has filed this appeal. .2. The marriage between the Appellant and Respondent was solemnized on 2. 1997. Briefly stated the case of the Appellant/husband is as under: .Even during Pen Azhaippu (TAMIL) on 2. 1997, the Respondent vomited in the presence of the relatives and the Appellant came to know from the neighbours of Respondents house that she had illicit intimacy with another person in her locality and due to premarital sex, she conceived before the marriage itself and to avoid any embarrassment, her family immediately arranged for the said marriage. Though Appellant had married her, he was not having any sexual contact with her. Only after much persuasion, Respondent came for medical check up on 13. 1997 and the doctor has confirmed her pregnancy. According to the Appellant, he has inquired the Respondent about the pregnancy and she has openly agreed the truth. Thereafter elders of both families tried to sort out the problem and according to the Appellant, Respondent deserted the Appellant in the month of March, 1997. Respondent delivered a baby on 119. 1997. With the intervention of elders, both the Appellant and Respondent entered into Ex.P.1 –consent letter/release deed for dissolution of marriage dated 27. 1999. Alleging that there was no re-union between the Appellant and Respondent and that she has deserted the Appellant without any reasonable cause. Appellant filed petition under Section 13(1)(ib) of the Hindu Marriage Act (1955) and under I(vi) and 4(a)(vi) of the rules under Hindu Marriage Act praying to dissolve the marriage. 3. Emphatically denying any pre-marital pregnancy and the alleged illicit intimacy, the Respondent/wife filed counter contending that Appellant a drunkard and he used to come late in the night and beat the Respondent. In the 1st week of April, 1998, the Appellant had driven out the Respondent from the matrimonial house and she was forced to take shelter at her brother Muruganandam’s house. The child was born on 110. 1997 and according to the Respondent, in medical history, child could be born in 8 ½ months duration. She has also denied any desertion and alleged that the Appellant had driven her away from the house without any reasonable cause. Respondent has alleged that at the time of mediation. The child was born on 110. 1997 and according to the Respondent, in medical history, child could be born in 8 ½ months duration. She has also denied any desertion and alleged that the Appellant had driven her away from the house without any reasonable cause. Respondent has alleged that at the time of mediation. Appellant had obtained her signature in the stamp paper and that she was not permitted to read the contents of the documents and she was forced to sign in the document. After the marriage, the Appellant had Illicit intimacy with one Muthulakshmi and when she questioned the illicit intimacy of the Appellant with the said Muthulakshmi, the Appellant drove her away out of the house and Respondent was forced to take shelter in the house of her brother Muruganandam and the Respondent prayed for dismissal of the petition. 4. On the above pleadings, seven issues were framed by the trial Court. Before the trial Court, on behalf of the Appellant, the Appellant was examined as P.W.1 and the neighbours were examined as P.Ws.2 and 3 and Exs.P.1 to P.8 were marked. On behalf of the Respondent. Respondent was examined as R.W.1 and the neighbours, were examined as R.Ws.2 to 6 and Exs.B.1 to B.7 were marked. 5. Upon consideration of oral and documentary evidence, the Family Court negatived the plea of premarital sex and pregnancy. The Family Court further held that the Appellant is such a person who is ready to throw any wild allegation against the Respondent. The trial Court further held that the Respondent proved the illicit intimacy of the Appellant with one Muthulakshmi and when she questioned about the illicit intimacy of the Appellant, she was driven out of the house in April 1998. Observing that there was no animus desidendi and that the Respondent was driven out of the matrimonial house by the Appellant, the Family Court dismissed the divorcee petition filed by the Appellant. .6. Taking us through the oral evidence and the judgment of the trial Court, learned counsel for the Appellant contended that the trial Court erred in disbelieving the premarital pregnancy and the trial Court ought to have appreciated the evidence that even on the date of Pen Azhaippu (TAMIL) (2. 1997), the Respondent was vomiting and the said aspect was not analysed in proper perspective. 1997), the Respondent was vomiting and the said aspect was not analysed in proper perspective. It was further argued that the trial Court erred in brushing aside the evidence of P.W.3, who is an expert and that her evidence ought not to have been rejected merely on the ground that sonographic scan was not taken on the date of examination. Placing reliance upon (2003) 2 CTC 760 = 2003-2-L.W. 657 (Sharda Vs. Dharmpail) it was contended that inspite of the order passed for subjecting the parties to D.N.A. test, the Respondent has not appeared for D.N.A. Test and it would be a strong case for drawing an adverse inference against the Respondent. It was further argued that the Court below ought to have seen that for giving birth to a child through a third party would amount to cruelty to the Appellant and the marriage ought to have been dissolved under Section 13 (I)(b) of the Hindu Marriage Act. 7. We have heard Mr. K.S. Karthik Raja, learned counsel for Respondent. Learned counsel for Respondent contended that the entire gamut of allegations regarding premarital sex and pregnancy cannot be looked into as the petition was not filed within one year period from the date of marriage. It was further contended that as per Ex.P.1 release deed, marriage cannot be dissolved and that there is nothing to show that the Respondent was not willing to live with the Appellant. It was further contended that even though petition was filed, under Section 13(I)(ib) and the requisite animus decidendi was not proved by the Appellant. 8. Drawing our attention to the evidence and judgment of trial Court, the learned counsel for the Respondent would further contend that based upon oral and documentary evidence trial Court rightly held that the Appellant is living with the Muthulakshmi and that the Respondent has reasonable cause for living separate and rightly the petition for divorce on the ground of desertion was dismissed and there is no reason warranting Interference. 9. Upon analysis of evidence and materials on record and the submissions of both sides, the following points arise for consideration: .(1) Whether the Appellant is entitled to dissolution of marriage on the allegation of the premarital sex and pregnancy and without filing the petition under section 12(I)(d) can the Appellant sustain the averments in the petition? 9. Upon analysis of evidence and materials on record and the submissions of both sides, the following points arise for consideration: .(1) Whether the Appellant is entitled to dissolution of marriage on the allegation of the premarital sex and pregnancy and without filing the petition under section 12(I)(d) can the Appellant sustain the averments in the petition? .(2) Whether the allegation of premarital sex and denial of paternity is substantiated? .(3) Whether the Appellant is entitled to dissolution of marriage under Section 13(1)(ib) Hindu Marriage Act? .(4) Whether the judgment of the Family Court dismissing the petition for dissolution, of marriage suffers from any infirmity? 10. Point No.1: The entire averments in the petition relate to pre-marital sex and premarital pregnancy. Both in the petition averments and entire evidence adduced by the Appellant relate to alleged pre-marital sex of the Respondent. Even though petition was filed for divorce on the ground of desertion, all the contents of the petition are mainly to allege premarital pregnancy of the Respondent and it is the basic ground upon which the Appellant seeks for divorce. Pre-marital sex is a ground contemplated under Section 12(1)(d) of Hindu Marriage Act and petition can be filed for divorce on that ground subject to conditions imposed under Section 12(2)(b). On a combined reading of paragraphs 2 and 3 of petition, it is seen that on the very date of Pen Azhaippu (TAMIL) on 2. 1997 itself, the Appellant came to know that Respondent had illicit intimacy with another person in the locality and due to which she conceived, even before marriage. The petition averments and the evidence are to the effect that the Appellant knew about the alleged premarital sex and pregnancy on 2. 1997 itself and if it was so, absolutely there is no reason forthcoming as to why the Appellant married the Respondent in the morning of 2. 1997. 11. No application for annulment of marriage shall be entertained if the Appellant/Petitioner was at the time of marriage aware of the facts alleged and if the marital intercourse with consent of the petitioner/Appellant had taken place since the discovery by the Appellant of the existence of pregnancy. 1997. 11. No application for annulment of marriage shall be entertained if the Appellant/Petitioner was at the time of marriage aware of the facts alleged and if the marital intercourse with consent of the petitioner/Appellant had taken place since the discovery by the Appellant of the existence of pregnancy. As pointed out by the trial Court, there is a clear interdict for filing petition for dissolution of marriage on the ground of premarital sex under Section 12(2)(b) and completely being obstructed by all the three conditions imposed under Section 12(2)(b)(i)(ii)(iii), the petitioner seems to have decided to overcome these hurdles and safely landed into the ground of “desertion” and has filed this petition under Section 13(I)(ib) of Hindu Marriage Act. The trial Court also found that he evidence of Petitioner relating to premarital pregnancy will be avail to him and a decree of nullity of marriage under section 12(I)(d) cannot be passed as the Appellant is estopped from contending the same as he has not filed the petition within one year from the date of marriage. 12. The Appellant appears to have sidelined the conditions posed under Section 12(2)(b)(i)(ii)(iii) by filing the petition on the ground of desertion under Section 13(I)(ib) of Hindu Marriage act. As rightly pointed out by the trial Court, the entire evidence of the Appellant and the averments in the petition relate to premarital pregnancy and the same will be of no avail to him and a decree of nullity of marriage under Section 12(I)(d) cannot be passed as the Appellant is estopped from contending the same since the petition was not filed within one year from the date of marriage. 13. The marriage may be annulled by a decree of nullity if the Respondent was at the time of the marriage pregnant by some person other than the petitioner. Three conditions are however to be satisfied which are mentioned in subsection (2), clause (b), subclauses (i) to (iii). Those conditions are: (I) that the petitioner was at the time of marriage ignorant of the facts alleged, (ii) that the proceedings have been instituted in the case of marriage solemnized before the commencement of the Act within one year of such, commencement and in the case of marriage solemnized after the commencement of the Act within one year from the date of the marriage. Thus a period, of limitation is fixed for filing an application under this clause, (iii) The compliance of the above conditions in section 12(2)(b)(ii) is a condition preceded for annulment of marriage under this clause. When the wife was pregnant by some other person at the time of marriage, though there was consummation of marriage, but the husband was not aware of the pregnancy he was granted a decree of nullity. 14. Even though petition was filed mainly on the ground of alleged premarital sex and pregnancy, the Appellant by simply adding one single sentence in paragraph Nos.7 and 10 of the petition has changed the entire nature of petition Into one of ‘desertion’. The ground of desertion inserted by one line in paragraph Nos.7 and 10 of the petition and insertion of Section 13(1)(1b) are just colour given to get the petition being numbered and entertained by the Court. Even though the Appellant has not sought the relief of dissolution of marriage under Section 12(1)(d) by filing the petition under Section 13(1)(ib), the Appellant has adduced the evidence on the ground, under Section 12(I)(d) only. As rightly held by the trial Court, on issue No.1, the petition is not maintainable under Section 12(1)(d) of Hindu Marriage Act. As rightly pointed out by the trial Court, desertion was not at all made a ground but by introducing a single sentence in paragraph Nos.7 and 10 of the petition the Appellant has changed the entire nature of the petition under Section 13(1)(ib). Absolutely there are no averments either in the petition or in the evidence as to the desertion and point No.1 is answered accordingly. 15. Point No.2 Where the husband makes allegation of unchastity the husband has to prove beyond reasonable doubt that the Respondent/wife was pregnant by someone other than the Appellant. In his evidence, P.W.1 Appellant has stated that even on 2. 1997 itself, he came to know that Respondent had illicit intimacy with another person in her locality due to which she conceived. If the Appellant came to knout about this on 2. 1997 itself, absolutely there is no explanation as to why he should marry the Respondent on the next day morning the Respondent on the next day morning on 2. 1997. As we pointed out earlier, even the entire averments in the petition relates to premarital sex and pregnancy. If the Appellant came to knout about this on 2. 1997 itself, absolutely there is no explanation as to why he should marry the Respondent on the next day morning the Respondent on the next day morning on 2. 1997. As we pointed out earlier, even the entire averments in the petition relates to premarital sex and pregnancy. Even though P.W.1 has stated that the Respondent was vomiting even on 42. 1997 itself, no evidence was adduced to substantiate the same. Either the parents of the Appellant or his family members were also not examined to substantiate the wild allegations levelled by the Appellant. 16. P.W.2 friendof Appellant was examined, who in his evidence has stated that Respondent has vomited on 2. 1997 on the date of Pen Azhaippu (TAMIL). P.W.2 has further stated that they have been talking regarding the conduct of bride and her alleged illicit intimacy. If really the Appellant had so come to know about the same even on 2. 1997 itself, the Appellant could have well refused to marry the Respondent or insisted, for medical evidence. But that was not to be so. Without any protest the Appellant tied thali to the Respondent. On behalf of the Appellant, reliance is placed upon the evidence of P.W.3 Dr.Renuka Hari to show that on 25. 1997, P.W.3 examined the Respondent and uterus was of 20 weeks size. According to the Appellant, the marriage was held on 2. 1997 but on 25. 1997 the uterus of the Respondent was about 20 weeks size and unless the Respondent was pregnant even before the marriage the uterus could not have been 20 weeks size on 25. 1997. It is clear from the evidence of P.W.3 that she has conducted the test during the first trimester and therefore no scan test was taken. In her evidence. P.W.3 has also stated that it was her tentative opinion about the size of the uterus. Only sonographic test will reveal the exact size and condition of the uterus. When admittedly sonographic test was not conducted, the opinion evidence of P.W.3 cannot lead to definite conclusion of size of uterus and the alleged premarital pregnancy. Moreover the evidence of P.W.3 and Ex.P.8 shows that on 13. 1997 Respondent complained pain in the genital area. This is the relevant period in which Respondent was in cohabitation with the Appellant. When admittedly sonographic test was not conducted, the opinion evidence of P.W.3 cannot lead to definite conclusion of size of uterus and the alleged premarital pregnancy. Moreover the evidence of P.W.3 and Ex.P.8 shows that on 13. 1997 Respondent complained pain in the genital area. This is the relevant period in which Respondent was in cohabitation with the Appellant. P.W.3 during cross examination stated that the pain around vulva may be caused after intercourse. So, the cohabitation of the Appellant and the Respondent along with the evidence of P.W.3 goes to show that both of them led normal married life with conjugal bliss of intercourse. 17. The contention of the Appellant is that the male baby was born on 110. 1997 i.e., within 255 days from the date of marriage and therefore it could not have been born through the Appellant. In his cross examination, the Appellant has stated that one Raji alias Mayakrishnan informed him about the Respondent’s illicit intimacy with an other person in the village. The Appellant has neither, mentioned name of said Raji alias Mayakrishnan nor examined the said Raji alias Mayakrishnan as a witness. Likewise, the Appellant has neither averred in the petition nor in his evidence name of the person with whom the Appellant was said to be having the alleged illicit intimacy. As pointed out by the trial Court, when R.W.2 Geethananthan was in the box, it was suggested to him that the Respondent had illicit intimacy with him before marriage and the said suggestion was stoutly denied by R.W.1 No weight could be attached to the suggestion made to R.W.2 as his name was neither mentioned in the chief examination of P.W.1 nor in the affidavit filed in support of the divorce petition. 18. It is seen from Ex.P.8 that when P.W.3 was examined Respondent on 13. 1997, the Respondent has stated that her last menstruation was on 21. 1997. The male child was born on 110. 1997. The formula for determination of the paternity of, the child is L.M.P. plus nine months. Law presumes strongly in favour of legitimacy of offspring. 18. It is seen from Ex.P.8 that when P.W.3 was examined Respondent on 13. 1997, the Respondent has stated that her last menstruation was on 21. 1997. The male child was born on 110. 1997. The formula for determination of the paternity of, the child is L.M.P. plus nine months. Law presumes strongly in favour of legitimacy of offspring. Section 112 of Evidence Act embodies a rule of law that a child born during the continuance of a valid marriage or during 280 days (within the period of gestation), it shall be conclusive proof that it is legitimate unless it is proved by clear and strong, evidence that the husband and wife did not and could not have any access at any time when the child could have been begotten. In our considered view, the male child born on 110. 1997 is born out of lawful wed lock. When the child was born out of wedlock it is for the Appellant to prove that he had no access to the Respondent and heavy burden is case upon him to prove the same. 19. Case of Respondent is that she cohabited with the Appellant till April 1998. When both the Appellant and Respondent cohabited, heavy burden lies upon the Appellant to prove that he had no access with the Respondent. In his evidence, Appellant has stated that the Respondent left the matrimonial house even in March, 1997. When child was born during subsistence of marriage, heavy burden was case upon the appellant to prove the non-access. According to the Respondent she has cohabited with the Appellant till April, 1998. When a question was put to the Appellant/P.W.1 as to whether he attend marriage of a friend of Vijaya along with the Respondent, the Appellant gave evasive reply. 20. The presumption of legitimacy is that a child born of a married woman is deemed to be legitimate and the whole burden of proving the illegitimacy is cast upon the person who is interested in making out the illegitimacy. The, presumption of legitimacy is a rebuttable presumption of law and the only way of displacing it, is to show, as pointed out in the latter part of the section, that the parties the marriage had no access to each other at the time when the child was begotten and no other exception is allowed’. 21. The, presumption of legitimacy is a rebuttable presumption of law and the only way of displacing it, is to show, as pointed out in the latter part of the section, that the parties the marriage had no access to each other at the time when the child was begotten and no other exception is allowed’. 21. Considering the scope of presumption under Section 112 of the Evidence Act, in Goutam Kundu v State of W.B. (1993) 3 SCC 418 = AIR 1993 SC 2295 , the Supreme Court has held as under: “25. Section requires the party disputing the paternity to prove nonaccess in order to dispel the presumption. “Access” and nonaccess” mean the existence or nonexistence of opportunities for sexual intercourse; it does not mean actual cohabitation”. 25. The effect of this section is this; there is a presumption and a very strong one though a rebuttable one. Conclusive proof means as laid down under Section 4 for the Evidence Act. 26. From the above discussion it emerges .(1) that courts in India cannot under blood test as a matter of course; .(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. .(3) There must be a strong prima facie case in that the husband must establish non-acres in order to dispel the presumption arising under Section 112 of the Evidence Act. .(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. .(5) Noone can be compelled to give sample of blood for analysis.” 22. The requirement of Section 112 for rebutting the conclusive presumption is not to show “non¬access” exactly “at the time when the child was begotten, but the requirement is still more onerous and pervasive so much so that the contending party will have to show non-access “at anytime” when the child “could have been begotten” which means non-access not at any particular moment but during the whole span of the time when the conception according to the ordinary course of nature possibly could have taken place. 23. As held by the Supreme Court in Chilukuri Venkateswarlu Vs. 23. As held by the Supreme Court in Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana ( AIR 1954 SC 176 ) the “non-access” may be established not only by positive or direct evidence, but also by circumstantial evidence. Though presumption of legitimacy is highly favoured by law, proof of non-access” must be clear and satisfactory. “Nonaccess” may be proved by means of such legal evidence as admissible in every other case, in which it is necessary to prove the physical fact. 24. Appellant has not adduced any evidence to rebut the presumption raised under Section 112 of Evidence Act. Admittedly, after the marriage both Appellant and Respondent cohabited and the presumption is that both of them lead normal married life with conjugal bliss. Absolutely, there is no evidence to rebut the presumption raised under Section 112 of Evidence Act. 25. In the trial Court, in I.A.No.529 of 2000, Court has ordered conducting of D.N.A. test for which the Appellant has also deposited Rs.10,000/- The Respondent has not complied with the order of the Court. The contention of the Appellant is that since the Appellant has not subjected herself to D.N.A.test, an adverse inference has to be drawn against the Respondent. In this appeal also, the Appellant has filed C.M.P.No.561 of 2009 to send the Respondent to D.N.A. test. In the facts and circumstances and evidence obtaining in this case and having regard to the strong presumption of legitimacy of the child raised under Section 112 of the Evidence Act, in our considered view, no adverse inference could be drawn against the Respondent for not subjecting herself to D.N.A. Test. It is for the Appellant to rebut the presumption debtors the D.N.A.test. 27. The Appellant heavily placed reliance upon Ex.P.1 Release deed to prove that the marriage was dissolved on 27. 1000 itself in the presence of panchayatdars as per custom. Laying emphasis upon recitals in Ex.P.1, learned counsel for Appellant contended that the Respondent has impliedly accepted the premarital pregnancy and that is why she has agreed to dissolve the marriage as per the custom in the community of the parties. No evidence was adduced to prove the custom having the force of law or time immemorial in the community of the Appellant and Respondent. Once a marriage is solemnized performing proper marital rites and ceremonies it could be dissolved only by a compete court under valid grounds contemplated in law. No evidence was adduced to prove the custom having the force of law or time immemorial in the community of the Appellant and Respondent. Once a marriage is solemnized performing proper marital rites and ceremonies it could be dissolved only by a compete court under valid grounds contemplated in law. Ex.P.1 release deed is of no avail to the Appellant. That apart, in her evidence, R.W.1 has stated that her’s signature was obtained in the police station and no Panchayat was convened and she never agreed for any dissolution of marriage. Analysing Ex.P.1 in the light of original evidence and other circumstances, the trial Court held that no evidentiary value could be attached to Ex.P.1 and we do not find any reason to take a different view. 28. A question might arise as to why the Appellant should make such wild allegations against the Respondent. The reasons are not far to seek as the Appellant has married an other woman by name Muthulakshmi and living with her and that the Appellant for one reason or the other seeks to avoid the Respondent. In her evidence, Respondent has stated that the appellant has married one Muthulakshmi and both of them are living in the house of the Appellant at No.40, Vinayagar Koil Street, Manaveli Village, Arumparthapuram Post, Pondicherry. In his evidence, R.W.2 has also stated that he has been the Appellant riding a motor cycle with Muthulakshmi and that on enquiry, he came to know the Appellant is living with Muthulakshmi and later Muthulakshmi gave birth to a female child and that they are living at the Appellant’s house. 29. That Appellant and said Muthulakshmi are living together as husband and wife is evident from Ex.B.1 Voters list of Uzhavarkarai Constituency., wherein the name of Appellant and Muthulakshmi are entered in SI.Nos.232 and 233 in the address No. 40, Vinayagar Koil street, Manaveli village, Arumparthapuram post., Pondicherry. Ex.B.2 is the entry in the voters list of uzhavarkarai Constitutency, where the name of Muthulakshmi was found at Serial No.933 as wife of the Appellant. Exs.B.3 and B4 are certificates Issued by Electoral Registration Officer dated 210. 2001 in the name of Dakshinamoorthy. Appellant herein and Muthulakshmi respectively. Exs.13 1 to B.4 would amply show that the Appellant and Muthulakshmi are living as husband and wife in Door No.40, Vinayagak Koil Street, Manaveli Village. Exs.B.3 and B4 are certificates Issued by Electoral Registration Officer dated 210. 2001 in the name of Dakshinamoorthy. Appellant herein and Muthulakshmi respectively. Exs.13 1 to B.4 would amply show that the Appellant and Muthulakshmi are living as husband and wife in Door No.40, Vinayagak Koil Street, Manaveli Village. Arumparthapuram Post., Pondicherry, Ex.B.5 is the birth certificate of Jayashri, wherein the name of Appellant is shown as father of child and said Muthulakshmi is shown as mother of the child. 30. Point Nos.3 and 4. The oral and documentary evidence adduced by the Respondent would go to show that the Appellant developed illicit intimacy with said Muthulakshmi and both of them are living as husband and wife. Under these circumstances, the allegation of the Respondent that she questioned about the Illicit Intimacy of the Appellant with Muthulakshmi and thereafter she was driven out of the matrimonial house is probablised and strengthened by the evidence and circumstances. 31. Coming to their desertion, as pointed out earlier, absolutely there are no averments in the petition as to the desertion. By perusal of the original petition, it is seen that in paragraph Nos.7 and 10 of the petition, the petitioner/Appellant has introduced just one line “the Respondent has deserted in the month of March, 1997”. Absolutely there is no evidence to show the alleged desertion by the Respondent. 32. Under Section 13(1)(1)(ib) the, petitioner/Appellant has to prove (1) that there was desertion for a continuous period of 2 years immediately preceding the presentation of the petition (2) the desertion was without reasonable cause and without the consent or against the wish of the petitioner. 33. In AIR 1964 SC 40 (Lachhman Uttam Chand Kirpalani Vs. Meena), the Supreme Court observed that in its essence, ‘desertion’ means the intentional permanent forsaking and abandonment of the spouse by the other without that other’s consent and without reasonable cause.’ The essence of desertion has (sic) judicially understood his (sic) total repudiation of obligation of marriage or abandonment of the deserted house with an intention to bring the cohabitation permanently to an end. Mere physical separation between the spouses or very intention of one to separate from the other without any overtact would not by itself amount to desertion. 34. According to the Explanation to Section 13(1)(ib) ‘desertion’ should be without reasonable cause and without the consent or against the wish of such party. Mere physical separation between the spouses or very intention of one to separate from the other without any overtact would not by itself amount to desertion. 34. According to the Explanation to Section 13(1)(ib) ‘desertion’ should be without reasonable cause and without the consent or against the wish of such party. It follows that if a spouse for any reasonable cause or justifiable reason leaves the company of the other, such spouse cannot be said, to have deserted the other spouse, where the wife is forced to live away from the husband. In her evidence, the Respondent has stated that when she questioned about the illicit intimacy of the Appellant with Mahalakshmi, she was driven out of the matrimonial house in April, 1998. In the counter filed by the Respondent and also in her evidence, the Respondent asserted her willingness to live with the Appellant. When the Appellant /husband has developed illicit intimacy with another woman and the said Muthulakshmi has also given birth to a female child, the Appellant/husband has created a compelling situation for the wife to live separate. Having driven the Respondent out of the matrimonial house, the husband cannot blame her for desertion. 35. Desertionwithin the meaning of Section 10(1)(a) of the Act read with explanation does not imply only separate residence and separate living. It is also necessary that there must be a determination to put an end to marital relation and collabitabon. Where the Appellant/husband persistently accuses wife of unchastity it would be a reasonable cause for the wife to live separate. In the instant case, the Respondent has expressed her willingness to live with the Appellant. Absolutely no grounds are made out to prove the Respondent has deserted the Appellant. 36. Upon analysis of oral and documentary evidence, by elaborate and well considered reasonings, trial Court dismissed the petition for dissolution of marriage. We do not find any infirmity in the approach of the trial Court warranting interference in this appeal? 37. Inthe result, the Civil Miscellaneous Appeal fails and the same is dismissed. Appellant is directed to pay costs of Rs.25,000/-(Rupees twenty five thousand only) to the Respondent. Consequently, the connected C.M.P.No.561 of 2009 is also dismissed.