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2013 DIGILAW 1741 (MAD)

D. Gopalakrishnan v. A. Sathyabhama

2013-04-22

R.S.Ramanathan

body2013
JUDGMENT 1. The Husband is the Appellant herein. The Appellant filed H.M.O.P. No. 17 of 2004 on the file of the learned Principal Sub-Court, Villupuram for divorce on the ground of cruelty and desertion. The Trial Court allowed the Petition and the Respondent/Wife filed Appeal in C.M.A. No. 3 of 2009 on the file of the learned Principal District Judge, Villupuram and the Appeal was allowed and the Decree of Divorce granted by the trial was set aside and aggrieved by the same, this Appeal is filed. 2. The Appeal was admitted on the following substantial questions of law: (i) Whether the learned District Judge fell in error in holding that the Petitioner/Appellant was guilty of adultery in the absence of any oral or documentary evidence in support of the same? (ii) Whether the learned District Judge was right in accepting the plea of the Respondent/Wife that she was justified in living separately from the Petitioner/Husband, when admittedly the Respondent had not made out any justifiable cause of staying away from the matrimonial home? 3. The case of the Appellant was that the marriage between him and the Respondent was solemnized on 4.6.1984 and two Children were born to them and they were living happily till 1994 and thereafter, there was a change in the attitude and behaviour of the Respondent and she treated the Appellant with cruelty and without informing the Appellant and without any justifiable cause, the Respondent/Wife left the matrimonial home on 25.9.2000 and thereafter, did not come back, despite the efforts taken by the Appellant and the Respondent/Wife also made false accusations against the Appellant, as if the Appellant was having illicit intimacy with two women and therefore, her conduct would prove that she has no intention of coming and living with her Husband and therefore, the marriage has to be dissolved by Decree of Divorce. 4. The Respondent/Wife contested the Petition stating that unable to bear the torture and ill-treatment of the Appellant/Husband, she was forced to leave the matrimonial home and though, she was willing to live with the Appellant/Husband, the Appellant did not mind her wish and he was not prepared to give up his illicit relationship with two women and therefore, she was forced to leave the matrimonial home and hence, she has not committed any act of desertion and therefore, the Appellant is not entitled to the relief as prayed for. 5. The Appellant examined three witnesses, including himself to prove his case and also marked 12 Exhibits and the Respondent examined two Witnesses, including herself and also marked one Exhibit. 6. The learned Trial Judge held that without any reasonable cause, the Respondent left the matrimonial home and though, the Respondent has stated her willingness to live with the Appellant, she did not take any steps to live with her Husband and therefore, she has deserted the Husband without reasonable cause and granted the relief of divorce and the First Appellate Court reversed the finding holding that the Appellant was having illicit relationship with two women and in their presence, ill-treated the Respondent and therefore, the Respondent had no other alternative, except to leave the matrimonial home and allowed Appeal filed by the Respondent. 7. Mrs. Chitra Sampath, the learned Senior Counsel appearing for the Appellant submitted that the Respondent failed to prove that the Appellant was having illicit intimacy with two women and the Lower Appellate Court erred in holding that due to the illicit intimacy with two women and ill-treated the Respondent in their presence, the Respondent left the matrimonial home and therefore, she had reasonable excuse to live away from her Husband and the findings of the Lower Appellate Court are liable to be set aside. 8. The learned Senior Counsel elaborated her argument stating that in the Counter filed by the Respondent/Wife, a vague allegation was made that the Appellant was having illicit relationship with other women and no allegation of cruelty or ill-treatment of the Respondent by the Appellant in the presence of such women were made and in the earlier correspondence between the parties, no such allegation was made against the Appellant and the Respondent also failed to prove the same and therefore, the Respondent made allegation of illicit intimacy with another woman against her Husband for the first time during evidence and when she failed to prove the same, the Court can presume that the Wife treated the Husband with cruelty and on that ground also, divorce can be granted. 9. 9. The learned Senior Counsel further submitted that the allegation of illicit relationship with another woman cannot be presumed, merely on the basis of enquiry conducted against the Appellant by the Department and due to the Petition given by the Respondent/Wife containing false accusations the Appellant, he was transferred and even after transferred to a distant place, no efforts were taken by the Respondent/Wife to join with the Husband and that would also prove that without any reasonable cause, she was living away from her Husband and therefore, the Husband has proved the desertion. She also relied upon the judgment reported in the case of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, 2002 (1) SCC 308 ; and in the case of Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 (5) CTC 567 (SC) : 2005 (8) SCC 177 , in support of her contention. 10. On the other hand, the learned Counsel for the Respondent submitted that the conduct of the Respondent would also make it clear that the Wife was forced to leave the matrimonial home and she has not deserted her Husband. 11. The learned Counsel further submitted that admittedly, the Wife left the matrimonial home on 25.9.2000 and according to the Respondent/Wife, she was ill-treated by the Husband in the presence of two women, with whom he was having illicit intimacy and unable to bear the torture, she left the matrimonial home. Though the Wife left the matrimonial home on 25.9.2000, no steps were taken by the Husband to enquire or to convince the Wife to come back and to lead a life with him and he sent a Letter, dated 18.1.2001(Ex. P1), wherein he offered to pay maintenance to his daughter and there was offer in the said letter, asking the Wife to come and live with him and the tenor of the Letter, Ex. A1 would make it clear that the Husband/Appellant was only interested in putting an end to the marriage and he was not interested to live with the Respondent and the subsequent correspondence between the parties would also confirm the mental attitude of the Appellant/Husband and considering all these aspects, the Lower Appellate Court rightly held that the conduct of the Husband made the Wife to leave the matrimonial home and she was having justifiable cause for living separately and therefore, the Husband is not entitled to the decree of divorce. He, therefore, submitted that there is no need for any interference in the order of the Lower Appellate Court and the same has to be confirmed. Substantial Questions of Law Nos. 1 & 2: 12. The Appellant and the Respondent got married on 4.6.1984 and a male Child was born on 26.3.1985 and a female Child was born on 26.5.1991. 13. It is the case of the Appellant that they were living happily till 1994 and thereafter, there was a change in the attitude and the approach of the Respondent and she became suspicious and adamant and started behaving with most irresponsibility. 14. It is also admitted by both parties that the Respondent/Wife left the matrimonial home on 25.9.2000 and therefore, we will have to find out the reason for the Respondent to leave the matrimonial home on 25.9.2000, whether it was due to the act of the Husband, in ill-treating the Respondent/Wife in the presence of two women with whom he was having illicit relationship or the Wife without any reasonable cause left the matrimonial home. 15. Though, different versions were spoken to by both the parties for the Wife leaving the matrimonial home on 25.9.2000, considering the over-all picture, in my opinion, the Wife must have left the matrimonial home only due to the behaviour and ill-treatment of the Appellant/Husband. Though, it was alleged in the Petition by the Appellant that the relationship was smooth till 1994 and thereafter, there was a change in the attitude of the Wife and she became suspicious and she was adamant and started ill-treating the Husband, no woman would leave the matrimonial home with her daughter, if she was not ill-treated by the Husband. When the Husband pleaded that the Wife became suspicious and the Wife came out the allegation that the Husband was having illicit relationship with another woman, the Complaint of the Wife that the Husband was having illicit relationship with another woman was more probable than the allegation of the Husband that she left the matrimonial home without any reasonable cause. 16. According to the Husband/Appellant, no incident had taken place in and around 25.9.2000 for the Wife to leave the matrimonial home. 16. According to the Husband/Appellant, no incident had taken place in and around 25.9.2000 for the Wife to leave the matrimonial home. It was also stated in the Petition that on the date, when the Wife left the matrimonial home, the brother of the Appellant/Husband was present in the house and without informing the brother and without informing the Husband, the Respondent/Wife left the matrimonial home. If really the brother of the Husband/Appellant was present in the house on that date, nothing would have prevented the Appellant to examine the brother, that on 25.9.2000 no incident had taken place to provoke the Wife to take the decision of leaving the matrimonial home. But the brother of the Husband was not examined. 17. Further, in the Petition the Husband had stated that he tried to mediate through his friend one Sivagurunathan and also attempted to mediate through Venkatasubramaniam, Selvaraj & Malarvizhi, but the Respondent/Wife was adamant. The Husband instead of examining those persons to prove his case, examined one Moorthy as PW2 and Premavathi as PW3 and their role was not pleaded in the Petition and only during evidence, the names of PW2 & PW3 were spoken to by the Husband and therefore, the Lower Appellate Court rightly rejected the evidence of PW2 & PW3. 18. Further, the conduct of the Husband also will lead to a conclusion that the Wife had reasonable cause or excuse to leave with her Husband. Admittedly, after the Wife left the matrimonial home on 25.9.2000, no attempt was made by the Husband and he also did not enquire about the daughter, who was also taken by his Wife along with her and only in January 2001, under Ex. P1, he sent a Letter offering to pay maintenance of Rs. 1,500/- towards the Wife and daughter and also offered to keep the son with him and in that letter, he has also laid down the condition that both of them shall not interfere with each other as the Wife had absolutely no trust or faith in him and the tenor of the Letter, dated 18.1.2000 (Ex. A13) makes it clear that the Husband has decided to put an end to the matrimonial life. A13) makes it clear that the Husband has decided to put an end to the matrimonial life. Though, it was stated in the said Letter that despite the efforts taken by the elders and advising the Wife to come and live with him, the Wife refused to come and live with him and did not heed the advise of the elders, in the Petition filed by him, he did not mention anything about the efforts taken by the elders of the family as spoken to in Ex. P1. 19. Further, in the first Letter (Ex. P1) sent to his Wife, he addressed the Wife as ‘Madam’ and that would also speak volumes about the attitude of the Husband and also would confirm that he wanted to put an end to the matrimonial life. On the contrary, the Wife/Respondent sent a reply, dated 17.2.2009 (Ex. A2), wherein she addressed the Appellant as ‘My Dear Husband’ and has also stated that her Husband brought the concubine to the house and shared the bed in her presence and unable to tolerate the same, left the matrimonial home and also treated her with cruelty and also cut her gold chain where the Mangalyam was tied and threw it away and nevertheless made it clear that her intention was to live with him, if the Husband dropped all his illegal activities for the welfare of the family and the Children. 20. She has also made it clear in the said Letter that she was prepared to live with her Husband and lead a happy life, if the Husband changed his attitude and she was prepared to forgive everything happened in the past to lead a new life. Thereafter, she sent another Letter, dated 15.5.2001 addressing the Appellant as ‘My Dear Husband’ and informed the Husband that she was going to take the daughter to Pune for admission in the school there, where her brother was residing and also gave her address at Pune. Thus, a reading of Exs. Thereafter, she sent another Letter, dated 15.5.2001 addressing the Appellant as ‘My Dear Husband’ and informed the Husband that she was going to take the daughter to Pune for admission in the school there, where her brother was residing and also gave her address at Pune. Thus, a reading of Exs. P2 & P3 would make it clear that it was never the intention of the Wife to put an end to the matrimonial life and she expressed her willingness to live with her Husband and was prepared to forgive the past, if the Husband changed his attitude and she also informed the Husband about her stay at Pune and the admission of the daughter in the school at Pune and also gave the address at Pune. If really, the Wife had an intention to put an end to the matrimonial life, she would not have informed the Husband about her stay at Pune or her address at Pune. Therefore, in my opinion, the allegation made by the Wife that unable to bear the torture and the activities of the Husband in having illicit relationship with his concubine in the matrimonial home in her presence, she was forced to leave the matrimonial home, appears to be more probable, than the allegation of the Husband that she ill-treated him and without reasonable cause, she left the matrimonial home on 25.9.2010. 21. The subsequent correspondence and exchange of legal notices would also confirm that the Husband had no intention of taking back the Wife and as a matter of fact, the Husband also filed an Application for Divorce in O.P. No. 7 of 2003 and later, withdrew the same on the pretext of settlement and thereafter, filed the present Petition for Divorce in the year 2004, after issuing Ex. P9-Notice. 22. In Ex. P9-Notice, he mentioned that one Palanisamy @ Selvaraj tried to talk to the Wife over phone and the Wife intimidated him and also insulted him and the said Palanisamy @ Selvaraj was not examined by the Husband. 23. Though, the Wife had not proved her allegation that her Husband was having illicit intimacy with two women, by name, Sri Lakshmi & Premavathi, that cannot be a ground to disbelieve the case of the Wife that she was living away from the Husband with reasonable cause and due to the behaviour of the Husband. 24. 23. Though, the Wife had not proved her allegation that her Husband was having illicit intimacy with two women, by name, Sri Lakshmi & Premavathi, that cannot be a ground to disbelieve the case of the Wife that she was living away from the Husband with reasonable cause and due to the behaviour of the Husband. 24. Further, the Husband has also made allegation of adultery against the Wife only in the Petition and no attempt was made to substantiate the same and according to me, the allegation has been made only to create a bad impression about the Respondent. Further, it is very difficult to prove the adultery and in this case, though both the parties have alleged allegations of adultery against each other, both of them did not prove that fact. However, the Husband/Appellant herein did not make any such allegation in the earlier correspondence and only in the Petition, he made such vague allegation against the Wife. Whereas the Wife/Respondent mentioned about the illicit intimacy of the Appellant with other women and she did not mention the names and only in the Counter, she mentioned the names, but did not prove such allegations. However, having regard to the discussion and findings stated above, in my opinion, the Wife was having reasonable ground to live away from her Husband and the Husband has not proved that the Wife without any reasonable cause left the matrimonial home. 25. Further, in the judgments relied on by the learned Senior Counsel for the Appellant, the facts of that cases are entirely different. In the judgment reported in Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 (5) CTC 567 (SC) : 2005 (8) SCC 177 , the Wife left the matrimonial home for delivery and thereafter, she did not join with her Husband and she was also employed as a teacher and in the notice sent by the Husband, he has mentioned that Wife insisted the Husband to join her at her place where she was living with her parents and in that context, the Hon'ble Supreme Court held that the Wife was guilty of desertion. 26. 26. In the judgment reported in Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, 2002 (1) SCC 308 , it was held that the Petitioner, who filed the Application of Divorce on the ground of desertion has to prove that the Wife deserted the Husband and there was ‘animus deserendi’ on the part of the Wife to put an end to the matrimonial home and having regard to the facts of that case, the Hon'ble Supreme Court held that the Wife was guilty of desertion. 27. In that judgment, the Hon'ble Supreme Court narrated the essential ingredient of desertion as the ground for divorce as follows: “7. “Desertion” in the context of Matrimonial Law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this 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; The Clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the Petition. This Clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include “wilful neglect” of the Petitioning spouse by the Respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the Petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the Petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The Petition for Divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.” 28. In the judgment reported in the case of Savitri Pandey v. Prem Chandra Pandey, 2002 (2) SCC 73 , the Hon'ble Supreme Court discussed desertion as follows: “Desertion, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of Children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176 , held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: “For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The Petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The Petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a different between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the Suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last Clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. 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; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence, it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the Plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the Courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Court.” Following the decision in Bipinchandra's case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40 , by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the Company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.” Therefore, the explanation given by the Wife for leaving the matrimonial home was more probable, as no Wife would leave with her matrimonial home on the basis of the allegation as stated in the Petition. Further, the Husband sent a Notice-Ex. A1, wherein he expressed his intention very clear and only wanted to put an end to the matrimonial life and he offered to pay maintenance and the way, in which he addressed his Wife would also make it clear that he never intended to treat the Respondent as Wife and he treated her as a third person. 29. Considering all these aspects, I am of the opinion that the Wife is not guilty of desertion and the Husband by his conduct made the Wife to leave the matrimonial home and therefore, he is not entitled to the relief of divorce. 30. Hence, the Substantial Questions of Law Nos. 2 is answered against the Appellant and I hold that the Wife/Respondent is justified in living separately and the Husband is guilty of desertion. 31. 30. Hence, the Substantial Questions of Law Nos. 2 is answered against the Appellant and I hold that the Wife/Respondent is justified in living separately and the Husband is guilty of desertion. 31. The Substantial Question of Law No. 1 is answered in favour of the Husband/Appellant and I hold that the Wife has not proved that the Husband was guilty of adultery by letting in satisfactory evidence. 32. Hence, the Civil Miscellaneous Second Appeal is dismissed. No costs.