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2013 DIGILAW 1393 (KAR)

P. T. Neelambika v. Manjunatha S. Kadam

2013-12-12

A.V.CHANDRASHEKARA, K.L.MANJUNATH

body2013
Judgment : A.V. Chandrashekara, J. 1. This appeal is directed against the final order passed in M.C.No.19/2010 dated 11.8.2011 which was pending on the file of Court of Senior Civil Judge, Chikmagalur. On a petition filed by the husband seeking divorce on the ground of desertion under Section 13(1)(ib) of Hindu Marriage, divorce has been granted after contest. Being aggrieved by the said decree of divorce, the respondent therein i.e., the wife has challenged the said order on various grounds as set out in the appeal memo. Parties will be referred to as petitioner and respondent as per their rank in the Trial Court. 2. The marriage of the petitioner and respondent was solomonised as per the Hindu customs on 23.4.2004. Thereafter, respondent started living in the matrimonial home of the petitioner at Chikmagalur. According to the petitioner, respondent is a lady of quarrelsome nature and used to pick up quarrels with him and with the family members for trivial reasons and thereby spoil the peace of the house. Out of their wed lock they have a female child Harshitha. When respondent went to her parents home for delivery, her parents insisted him to arrange for a separate house lest they would not send their daughter. The averment is that in view of their demand, the petitioner arranged for a separate house and thereafter respondent returned to Chikmagalur along with baby and started living in the separate house. Thereafter also she started quarreling with the petitioner. On 10.12.2005, she stated to have threatened him that she would send him and his family members to jail by filing a complaint and left the house. Thereafterwards she started living in her parents house in Davanagere is the averment. 3. A legal notice was got issued by the petitioner through his lawyer on 27.3.2006 and respondent gave a reply denying all the allegations and later on filed a case seeking maintenance in Davanagere Family Court in Crl.Misc.No.238/2006. In view of the compromise entered into between them, an order was passed by the Family Court at Davanagere to pay a sum of Rs.1,000/- as maintenance to her and Rs.500/- per month as maintenance to their child. It is his case that he has been paying maintenance to his wife and child. Respondent left the house on10.12.2005 and since then she is residing in her father's house at Davanagere. It is his case that he has been paying maintenance to his wife and child. Respondent left the house on10.12.2005 and since then she is residing in her father's house at Davanagere. Hence he had requested the court to allow the petition and grant a decree of divorce on the ground of desertion. 4. The respondent had appeared before the Trial Court and had filed statement of objections denying all the allegations in regard to insistence by her parents to make a separate house for her and quarrelling with him and leaving the house without a rhyme or a reason. It is her case that whenever petitioner used to go on work his family members would pick up quarrel with her on trivial matters and report the same to the petitioner after he returned from work and believing their words he used to assault her on many occasions. It is her case that in fact the petitioner and his family members used to torture her on various grounds. When the mother of the respondent came to Chikmagalur on 14.5.2005, the petitioner and his family members were abusing her for having given birth to a female child. The attitude of the petitioner and his family members became adamant when her co-sister gave birth to a male child and trouble increased in her case. It is her case that at no point of time neither she nor her family members insisted him to arrange for a separate house. Later on she came to know that separate house was made in collusion with his parents only with an intention to harass her and throw her out of the marital house. It is her case that neither she or her child was provided with proper food and clothing. Petitioner used to come late in the night and never gave money for maintenance as a result of the same, there was no other way for her except to go and reside with her parents in Davanagere and therefore she chose to file a petition in M.C.No.62/2007. Hence she requested the court to reject the petition. 5. The petitioner herein has been examined as PW.1 and respondent has been examined as RW.1 and 11 documents have been got marked on behalf of the petitioner and 18 documents have been got marked on behalf of the respondent. Hence she requested the court to reject the petition. 5. The petitioner herein has been examined as PW.1 and respondent has been examined as RW.1 and 11 documents have been got marked on behalf of the petitioner and 18 documents have been got marked on behalf of the respondent. Ultimately learned Judge, after hearing the arguments of the learned counsel appearing for the parties, has allowed the petition by formulating the following 3 points as found in page 10 of the impugned order: "1. Whether the petitioner proves that the respondent has deserted him for a continuous period of not less than 2 years immediately preceding the presentation of this petition? 2. Whether the petitioner is entitled for decree of divorce as prayed? 3. What order?" 6. Several grounds have been urged in the appeal memo filed before this Court. It is contended that the Trial Court has not properly analised the oral and documentary evidence in right perspective. It is further contended that the Trial Court has not taken into consideration the burden cast upon the petitioner to prove the aspect of desertion effectively. It is further contended that the Trial Court has failed to take into consideration that the petitioner has been saddled with an order to pay maintenance to the appellant and her daughter in a case filed under Section 125 Cr.P.C. and that she had to file many petitions for enforcement of the same. It is further contended that the Trial Court has failed to take into consideration the useful admissions culled out from the mouth of PW.1 in regard to filing of earlier petition for divorce and getting it dismissed by him in order to avoid payment of maintenance. The Trial Court has stated to have adopted a wrong approach to the real state of affairs and that the oral and documentary evidence having not been analised in the right perspective. 7. We have heard the arguments from the learned Advocates appearing for the parties. Learned Advocate for the respondent has supported the impugned judgment holding that the appellant has been living separately for more than two yeas prior to the presentation of the petition with a clear intention of severing the matrimonial tie. 7. We have heard the arguments from the learned Advocates appearing for the parties. Learned Advocate for the respondent has supported the impugned judgment holding that the appellant has been living separately for more than two yeas prior to the presentation of the petition with a clear intention of severing the matrimonial tie. Hence the following points arise for our consideration: (1) Whether the Trial Court is justified in coming to the conclusion that the petitioner - husband has effectively discharged the burden cast upon him improving the aspect of desertion? (2) Whether any interference is called for by this Court and if so, to what extent? 8. Explanation of Section 13 of the Hindu Marriage Act implies an intention and permanent absence of one spouse by the other without his or her consent. 9. In the present case, it is to be seen that before filing of this petition in M.C.No.19/10 seeking divorce on the ground of desertion, petitioner had filed a petition seeking divorce before the Court of Senior Civil Judge at Chikmagalur in M.C.No.6/2007 and got it dismissed. Apart from this, appellant herein had filed a petition in C.Misc.No.197/2008 under Section 125 of Cr.P.C. in Family Court at Davanagere seeking maintenance and the learned JMFC had ordered the respondent herein to pay a sum of Rs.1,500/- per month as maintenance to her and her daughter. He has also admitted that in the objections filed to M.C.No.62/07, the respondent therein that is the appellant herein had taken a specific plea stating that she was ready to live with him. The relevant admission is found in the cross examination of PW.1 at page 7. English translation of the said admission is reproduced as under: "It is true that after that my wife had filed a petition for maintenance in Davanagere court and that it had been decided that I should pay a sum of Rs.1,500/- per month. Thereafter, I had filed the petition seeking divorce in the Senior Civil Judge Court at Chikmagalur in M.C.No.62/2007. It is true that I got dismissed the said petition. It is true that the opponent had filed objection to the said petition. It is true that she had pleaded that she was ready to join him. It is true that in the said case, I had been directed to pay court cost and maintenance to her." 10. It is true that I got dismissed the said petition. It is true that the opponent had filed objection to the said petition. It is true that she had pleaded that she was ready to join him. It is true that in the said case, I had been directed to pay court cost and maintenance to her." 10. This aspect speaks in volumes against the very conduct of the petitioner. Here is a husband who has been ordered to pay maintenance to his wife and child. As a result of his refusal to maintain them, appellant - wife had to file a petition seeking maintenance before the Court at Davanagere. Not only she was compelled to file petition for maintenance, but also a petition under Section 125 (3) Cr.P.C. to enforce the maintenance on several occasions. Documents have been filed to that effect. 11. In fact, Ex.R9 is the copy of the notice got issued by the Federal Bank, Chikmagalur to the petitioner stating that a sum of Rs.67,500/- had been availed by him as loan and that a sum of Rs.25,232/- was due. Having neglected to maintain his wife, he cannot turn round and say that she has been residing separately from him for more than two years from the date of presentation of the petition under Section 13(1)(1b) of Hindu Marriage Act. 12. What is deposed by him in paragraph 7 is that she left his house without informing him and that she did not adjust with him. On the other hand, he had admitted that he did not file any application seeking restitution of conjugal rights. It was his duty to have made some honest efforts to get her back along with the child. Having not made such efforts, he chose to file a petition for divorce and got it dismissed and subsequently filed one more petition seeking divorce on the ground of desertion. 13. The learned Judge is more persuaded by the factum of the appellant residing in her parents' house for more than 5 years. The said fact does not speak about her unequivocal intention to severe the marital ties. She is justified in staying in her parental house in view of the petitioner neglecting to maintain her and her child. Parties may be living separately for many years. The said fact does not speak about her unequivocal intention to severe the marital ties. She is justified in staying in her parental house in view of the petitioner neglecting to maintain her and her child. Parties may be living separately for many years. But the important aspect is whether one of the parties has withdrawn from the society of the other with an unequivocal intention of breaking the marital ties. What is observed by the Family Court is that the marriage has irretrievably broken down. We are unable to accept this observation made by the Family Court. In fact the marriage of the parties was solomonised on 23.4.2004 and she gave birth to a female child and thereafter, she was virtually thrown out of the house. As a result of the same, she had to file a petition seeking maintenance before the Court at Davanagere. Being left with no avenue she had to go back to the house of the parents and live with them. If there was no neglect on the part of the husband, maintenance under Section 125 of Cr.P.C. would not have been granted. The petitioner has admitted that she was ready and willing to join him when an earlier petition was pending. When no efforts were made to take her back to the matrimonial home he cannot allege that his wife tortured him or deserted him and therefore a decree of divorce has to be granted. 14. We are unable to accept the reasons given by the Trial Court in regard to the aspect of desertion. We accept that the Courts should be very careful while evaluating the evidence of a case of this type. As rightly pointed out by the learned counsel for the appellant, Trial Court has lost sight of the fact that the petitioner has to prove the allegation of desertion effectively. Unless the initial burden is effectively discharged, the onus does not shift and this is mandate of Sections 101 and 102 of Cr.P.C. 15. What is argued before this Court on behalf of respondent is that the parties had agreed for maintenance of Rs.1,500/- per month and that has been decided after a compromise. It does not give him any leverage to contend that she has been living separately. What is argued before this Court on behalf of respondent is that the parties had agreed for maintenance of Rs.1,500/- per month and that has been decided after a compromise. It does not give him any leverage to contend that she has been living separately. That arrangement was entered into between the parties in C.Misc.No.197/08 filed under Section 125 of Cr.P.C. in the Family Court at Davanagere. If the petitioner really wanted his wife to come back and live with him, he would not have agreed for paying the maintenance. The very fact that he has agreed to pay maintenance would go to show that he is not interested in continuing the relationship. 16. The entire focus of the evidence of petitioner is on the quantum of compensation required to be paid by him and his inability to pay the said amount as desired by her. In fact, the assertion of the appellant that she had never deserted him has virtually remained unchallenged. In fact she has admitted filing of a petition in M.C.No.62/07 against him for divorce and she claiming maintenance in the said petition. Hence, we are of the considered opinion that the Trial Court has not analyzed the oral and documentary evidence in right perspective keeping in mind the burden of proof on the person who takes up the plea of desertion. Hence we answer point No.1 in the negative. 17. In view of negative finding on Point NO.1, we are constrained to allow the appeal and set aside the final order passed in M.C.No.19/10. ORDER 18. Accordingly, the appeal is allowed. Consequently, the petition filed for divorce on the ground of desertion in M.C.No.19/10 on the file of Court of Senior Civil Judge, Chikmagalur stands dismissed. In view of the relationship of the parties we pass no order as to cost.