Judgment:
A.S. Naidu, J.
1. The appellant-wife filed a petition under section 9 of the Hindu Marriage Act read with section 7 of the Family Courts Act praying for restitution of conjugal rights and issuance of a direction to the husband to join her company. The said petition was registered as Civil Proceeding No. 201 of 1995 in the court of the learned Judge, Family Court, Cuttack.
2. Respondent-husband filed a petition under section 30 of the Hindu Marriage Act read with section 7 of the Family Courts Act praying for a decree of divorce against the wife in the same court and the said petition was registered as Civil Proceeding No. 217 of 1996. Both the proceedings were heard together by the learned Judge, Family Court, Cuttack and were disposed of by a common judgment.
3. The trial court decreed Civil Proceeding No. 217 of 1996 filed by the husband and directed that the marriage solemnised on 5-7-1991 between the parties is dissolved by a decree of divorce and dismissed Civil Proceeding No. 201 of 1995, filed by the wife, rejecting her prayer for restitution of conjugal rights. Against the said judgment, the wife, as appellant, has filed the aforesaid two appeals.
4. The facts being identical in both the cases, they were heard analogously and are disposed of by this common judgment.
5. For appreciating the case, without any unnecessary details, the facts in brevity are stated herein below :
Admittedly, the parties are governed by Hindu Law and their marriage was solemnised according to the Hindu rites and customs on 5-7-1991. It is averred on behalf of the appellant-wife that they led a blissful conjugal life till June, 1993 and thereafter, the husband-respondent exhibited indifferent attitude towards the wife and inspite of the fact that the wife tried to meet the respondent, he avoided on some plea or other. The appellant-wife who is serving as an instructor in Anganwadi training centre, Baripada, had to face stringent financial difficulties as the husband did not take care of her nor continued their conjugal life. When the matter stood thus, she received a notice of Civil Proceeding No. 13 of 1994 filed by the husband under section 13 of the Hindu Marriage Act for a decree of divorce. The said case was dismissed on 3-8-1991 for non-prosecution. The wife all along tried her best for reconciliation, but all her attempts ended in vain. Finding no way put, she initiated Civil Proceeding No. 301/95 under section 9 pf the Hindu Marriage Act praying for Restitution of conjugal rights and issuance of a direction to the husband to join her company.
On the other hand, the respondent-husband averred that the parties led the marital life only for a period of 7 days. Within the said period during cohabitation he detected that there was white discharge from the wife's vagina and a secretion from her breasts. He suspected that the wife was suffering from certain veneral disease and became sured that he might get infected. In spite of his best efforts, the wife refused to be treated by a Gynaec Specialist, left the company of the husband and went to her father's house. She stayed there for sometime and joined her service at Baripada It is further alleged that though the husband requested and persuaded the wife to come and stay with him, yet she became indifferent and the husband was constrained to initiate a proceeding under- section 13 of the Hindu Marriage Act (C. P. No. 217/96) praying to pass a decree of divorce against the wife.
To prove their respective cases, three witnesses were examined by the husband and two witness were examined by the wife. The husband also exhibited a letter written by his wife. In course of trial, evidence was adduced to the effect that the husband has developed illicit relationship with some other woman and in order to marry her, he neglected the appellant-wife and has filed the application for divorce. It is further alleged that the husband has substantial income and is well placed in the society being a Lecturer in an aided educational institution and draws a salary of more than Rs. 8,000/- per month.
6. The learned Judge, Family Court, rejected the petition filed by the appellant-wife under section 9 of the Hindu Marriage Act praying restitution of conjugal rights solely on the finding that the husband has proved desertion by the wife. The Apex Court in the case of Bipinckandra Jaisinghbai Shah v. Prabhavati, A. I. R. 1957 S. C. 176 has held as follows :
'What is desertion 'Rayden on Divorce' which is a standard work on the subject at p. 128 (6th Edn) has summarised the case-law on the subject in these terms :
'Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse, but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.'
In essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place of abode, but from a state of things. The intention to snap the tie of sacrosanct marriage for all times to come has to he apparent from the conduct. If a spouse abandons the other for a temporary period under certain circumstance without intending to cease the cohabitation permanently, it will not amount to desertion. For proving the offence of desertion, so far as deserting is concerned, two essential conditions must be there, namely, (i) the factum of separation and (ii) the intention to bring the cohabitation permanently to an end (animus deserendi.).
Similarly two elements are essential so far as deserted spouse is concerned : (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home.
7. The Supreme Court in the case of Lachman Utamchand Kirpalani v. Meena alias Mota, A. I. R. 1964 S. C. 40 relying upon the oft quoted decision i. e. A. I. R. 1957 S. C. 176, observed thatthe burden of proving desertion--the 'factum' as well as the 'animus deserendi'--is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the court, the desertion throughout the entire period and that such desertion was without any just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner husband has still to satisfy the court that the desertion was without just cause.
8. Scrutiny of the materials available on record, both pleadings and evidence, clearly reveal that the appellant-wife with the consent of the husband-respondent left for her father's house for her treatment. It further appears that she was a working woman and thereafter proceeded to her place of service i.e. Baripada. The husband, before marriage, very well knew that the wife is a working lady and has to stay for most of the time at her place of work i.e. Baripada. Knowing the said fact, he had married her. Thus, he is estopped from taking a plea that the wife has deserted him and staying at Baripada.
9. A perusal of the letter Ext-1 exhibited by the husband, which is written by the wife to him, clearly reveals that the wife was all along eager to resume her conjugal life. She had intimated the husband about her treatment and had also expressed concern regarding health of her husband during her absence. She had advised the husband to take care of himself. The tenure of the letter leads to an irresistible conclusion that the wife had absolutely no intention to snap the marital tie. Therefore, the finding of the learned trial court to the effect that the wife deserted her husband, is based on non-consideration of the evidence and is found to be an error apparent on the face of record. In view of what has been stated in the letter (Ext. 1) coupled with the oral evidence. We, have no hesitation to hold that the finding cannot be sustained. Accordingly, we set aside the said finding of the trial court.
10. In course of hearing the wife has stated that according to her information the husband has already clandestinely married another lady and that she has instituted a criminal caseagainst the husband which is pending. She has candidly expressed that in view of such subsequent development it is no longer possible for her to return to the husband and stay with him. The husband has denied the said allegation. Whether the husband has married for the second time or not it is now clear that the marriage has irretrievably broken down and none of the parties wants restoration of marital tie.
11. Thus, although we set aside the decree for divorce passed by the Family Court on the ground of desertion by the wife, we find that the marriage has broken down irretrievably and reunion is impossible. Accordingly, by applying the doctrine of 'irretrievable breakdown', we grant a decree of divorce upon consent of both the parties. The respondent-husband will have to pay maintenance to the appellant wife as determine in this judgment.
12. Section 25 of the Hindu Marriage Act, 1955 makes no distinction between a wife and divorced wife and both are entitled for maintenance. The trial court on the basis of a finding that the wife is working as an Anganwadi Workers and is earning a sum of Rs. 3,000/- per month, did not grant any permanent alimony. This finding is also contrary to the evidence on record inasmuch as, it appears from the salary certificate that the consolidated salary of the wife is only Rs. 1457/- per month. On the other hand, the salary of the respondent-husband is Rs. 6,998/- say Rs. 7,000/- after compulsory statutory deductions admissible under law. Law is well settled that the husband has a liability to maintain his wife in a manner so that the wife can lead a dignified life befitting his and her status.
13. In the facts and circumstances we further direct that the respondent-husband will pay a monthly maintenance of Rs. 1,000/- to the appellant-wife unless the wife gets disentitled in law to receive the same. The said monthly maintenance will be paid from the month of January, 2001. Such monthly maintenance for the months of January & February, 2001 would be paid by 10th of March, 2001 and thereafter said monthly maintenance would be paid within 10th of the succeeding month. In the alternative we direct that if the husband so desires, he may pay a consolidated alimony of Rs. 1,00,000/- (Rupees One lakh) to the wife instead of monthly maintenance. The said consolidated alimony may be paid in two instalments of Rs. 50,000/- each. The first instalment to be paid on or before March 31, 2001 and second one before 2nd of July, 2001.
14. Both the appeals are, thus, disposed of.
Pradipta Ray, J.
15. I agree.
16. Appeals disposed of.