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2018 DIGILAW 9 (KAR)

Laxman v. Suvarna

2018-01-02

JOHN MICHAEL CUNHA, S.SUJATHA

body2018
JUDGMENT : S. Sujatha, J. 1. This appeal is directed against the order of the Senior Civil Judge, Kumta (henceforth for brevity referred to as the 'Court below') in M.C. No. 25/2011 dated 8.12.2015 whereby the petition filed by the respondent under Section 9 of the Hindu Marriage Act, 1955 (henceforth for brevity referred to as 'the Act') seeking restitution of conjugal rights was allowed with costs dismissing the counter claim of divorce filed by the appellant. The marriage between the appellant and respondent was solemnized on 6.7.1997 as per the Hindu rituals. It transpires that, due to the difference of opinion between the parties, the appellant filed M.C. No. 4/2006 seeking decree of divorce to dissolve the marriage solemnized between the parties, which came to be dismissed and was confirmed by this Court in MFA No. 24963/2011(MC). Subsequently, respondent preferred a petition under Section 9 of the Act for restitution of conjugal rights. In the said proceedings, the appellant filed counter claim seeking dissolution of the marriage solemnized between the parties. The Court below after analyzing the material placed on record allowed the petition filed by the respondent under Section 9 of the Act dismissing the counter claim of the appellant. Hence, this appeal. 2. Learned Counsel Mr. Mallikarjun S. Hiremath, appearing for the appellant would contend that the Court below has failed to appreciate the contentions of the appellant that the respondent on 4.4.2000 without any reasonable cause left the house of the appellant with all her belongings without the consent of the appellant by handing over the keys to the neighbour. This act of the respondent clearly envisages that the respondent has deserted the appellant in order to bring the cohabitation permanently to an end. This vital aspect was not considered properly by the Court below in allowing the petition filed by the respondent. Filing of the petition after lapse of 10 years seeking restitution of conjugal rights does not entitle the respondent to get favourable order, but despite the same, the Court below allowed the petition of the respondent dismissing the counter claim of the appellant, albeit the proof of desertion and animus decidendi on the part of the respondent to bring the cohabitation permanently to an end being established. On the other hand, the Court below ought to have allowed the counter claim of the appellant for divorce on the ground of desertion. On the other hand, the Court below ought to have allowed the counter claim of the appellant for divorce on the ground of desertion. Merely placing reliance on the order of this Court in the earlier proceeding, the Court below dismissed the counter claim. Thus, it is submitted that the order impugned deserves to be set aside by allowing the appeal. 3. There is no representation on behalf of the respondent. 4. Having heard the learned Counsel for the appellant and on perusal of the material on record, it is discerned that the appellant had preferred M.C. No. 4/2006 seeking dissolution of the marriage solemnized between the parties, which came to be dismissed, against which MFA No. 24963/2011 was preferred and the same was dismissed with costs on 20.3.2015. It was contended by the respondent that after the dismissal of M.C. No. 4/2006 as well as MFA No. 24963/2011, she had been to the house of the appellant on 10.9.2011, but the appellant did not entertain her. She again visited the appellant's house on the next day but in vain, as the door was locked. 5. The appellant examining himself as R.W. 1 denied these aspects in his evidence as well as by filing counter claim. It is the case of the appellant that since 2000 he is staying alone in his house at Gujjar Galli, Kumta. It was contended that the respondent has no intention to continue the marital life with the appellant and has deserted him for more than 10 years to bring the cohabitation to an end. Considering the evidence let in by the parties elaborately, the Court below has arrived at the decision that, (i) the factum of separation and (ii) the intention to bring the cohabitation permanently to an end was not proved in the earlier proceedings in M.C. No. 4/2006 and this Court after reappreciating the evidence held that there was no illegality committed by the Court below. Mere physical separation would not amount to desertion, the intention to bring the cohabitation permanently to an end should exist. Negligence on the part of the husband to take care of the wife would prima facie, a factor to be considered while examining the factum of desertion. The burden lies on the husband to establish that he did not neglect his wife. Negligence on the part of the husband to take care of the wife would prima facie, a factor to be considered while examining the factum of desertion. The burden lies on the husband to establish that he did not neglect his wife. The same having not been established, this Court has upheld the dismissal of M.C. No. 4/2006 filed by the appellant. No material evidence was placed on record by the appellant to prove the allegations made against respondent as regards desertion. 6. It is not required to bring the matrimonial life to an end, if the normal wear and tear of the family life is considered. It is well settled principle that to bring the matrimonial life to an end, sufficient evidence is required. Mere staying away from each other would not constitute a relevant factor to grant the decree of divorce. These factors have been considered and the same has reached finality in the earlier proceedings. The appellant is not placed in a better position, the entire case of the appellant is built upon the alleged desertion of the respondent in the year 2000. This very aspect was considered in M.C. No. 4/2006 and was rejected and further confirmed by this Court. In such circumstances, the appellant cannot again revert back to take the same grounds urged, considered and analyzed by this Court. The Court below has analyzed the material evidence in extenso and placing reliance on the judgment of the Hon'ble Apex Court in the case of Smt. Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73 has arrived at a decision that the respondent had proved that the appellant without any reasonable excuse had withdrawn from her society and on the contrary, the appellant has failed to prove that the respondent has deserted him from 4.4.2000. In the circumstances, we do not find any infirmity or irregularity in the order impugned. Accordingly, the appeal stands dismissed.