Full Judgment
(Prayer:Civil Miscellaneous Appeal filed under Section 55 of the Indian Divorce Act, 1969 praying this Court to set aside the fair order and decreetal order made in Spl.I.D.O.P.No.04 of 2009, dated 25.7.2012 on the file I Additional District Judge, Tiruchirappalli.)
This appeal is by an husband as against his wife as his appeal to her for divorce since not appealing, the Court dismissed it. .
2. The appellant came across the respondent by quirk of events, They happen to live in opposite houses in Srirangam. He fell in love with her. And she also. For them love is blind. No caste, no religion is barrier. Though they belongs to different religion, the lovers have decided to become spouses. They have undergone a form of marriage on 10.01.2002 before the Marriage Officer, Tiruchirappalli under the Special Marriage Act, their marriage was registered and Marriage Certificate was also issued to them. According to the appellant, it is only a paper marriage,they were name-sake spouses as after marriage both have gone to their houses. Thereafter, they have no occasion to meet each other. They are unable to get along with the marriage and the marriage has failed. She continued to stay in her parents house. He pleaded that she has deserted him. In the circumstances, on the ground of desertion, he sought for divorce in Spl.I.D.O.P.No.4 of 2009 before the learned Ist Additional District Judge, Tiruchirappalli.
3. Respondent filed detailed counter denying the allegations. She had pleaded that she loved him, her parents were also agreed for their love marriage. After getting Government appointment, the petitioner has shown his true colour. The appellant examined himself as P.W.1 and the respondent as R.W.1. It is oath against oath. The Marriage Certificate has been marked as Ex.P1 and further documents were marked by both sides.
4. The crux of the plea of respondent is that intially appellant was all right. Subsequently, he on becoming a Constable in the Tamil Nadu Special Police and when on becoming an Armed Police man, he has shown his true colour, he has no inclination to live with her. He hass used her name as a spouse in the application for quarters. However, appellant denied these allegations.. The trial Court shifting the evidence of both concluded that thbe appellant had not established that the respondent has deserted him, thus dismissed his O.P for divorce.
5. The learned counsel for the appellant would contend it emanates from the records of the case that the appellant as well as the respondent have not lived as husband and wife fairly for a long time. It is a fact that the respondent continue to stay in her parents house. This factual aspect has been over-looked by the trial Court.
6. On the other hand, the very same contention which was placed before the trial Court continued to be placed before this Court also by the learned counsel for the respondent. However, on one aspect there is no quarrel between both sides that on the aspect of desertion, full opportunity has not been given by the trial Court to adduce their evidence.
7. It is pertinent to note that every departure of a spouse from the other spouse will not be desertion. Desertion pre-supposes a mental element, willful abstinence of one spouse from the company of other spouse. Mere staying away in her parents house will not amount to desertion. The Court further probe as to why such a separation between the spouses and must adjudicate whether the respondent had withdrawn her society from the appellant without any excuse or acceptable reason. If it is wilfil without any rhyme or reason and the separation by the respondent is wilful, then it may become desertion. These aspects are required to be focussed by the trial Court. Some of these aspects have been missed by the trial court. In the facts and circumstances and in view of the submission of both sides, this Court is of the view that the matter has to be further examined by the trial Court and the parties shall be permitted to adduce further evidence.
8. In the light circumstances, the impugned judgement of the First Additional District Judge, Tiruchirapppalli made in Spl.I.D.O.P.No.04 of 2009, on 25.7.2012 are set aside. The matter is remanded back to the trial Court for fresh disposal accordingly to law. The Court will give opportunity to both side to adduce their further evidence. The trial Court will dispose said Spl.I.D.O.P.04 of 2009 within two months from the date of receipt of a copy of this judgement.
9. Accordingly, the Civil Miscellaneous Appeal is disposed of. No costs.