Judgment:
Venugopala Gowda, J
Alleging desertion by the wife, the appellant-husband approached the Matrimonial Court under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 (for short ‘the Act’), praying for dissolution of his marriage with the respondent by granting a decree of divorce. By the impugned order, the Trial Court has dismissed the petition. The husband is in appeal, impugned the judgment and order passed by the Matrimonial Court.
2. The marriage between the parties took place in 1971 according to Hindu rites and customs. They have, five daughters and a son, born out of the wedlock. The husband alleged that, for more than two years, his wife has not joined him at the place of his permanent residence and/or the places of his posting. There is allegation made against the wife in respect of the property and money matters. There is also an assertion that, panchayath was held to bring back his wife, for staying with him, but she refused to do so. After serving a notice, the appellant filed petition in the Matrimonial Court for decree of divorce.
3. The respondent-wife, in the statement of objections filed to the petition, contended that, her wedlock with the appellant has lead to birth of five daughters and a son and that, the first three daughters are married. A daughter and the son are still minors. She stated that, the spouses lived together at her parents’ house and later, the appellant took a house on rent at Makanaduku village for their residence, but did not pay the rent to the owner and that the appellant, who had an assured salary income of Rs.10,000/- per month, refused to maintain her and her children, on account of which, a petition was filed for awarding of maintenance. It was further stated that, the petitioner is in bad company and that, he has undergone a second marriage on 24.12.2002, without her consent, on account of which, a criminal case under Section 494 IPC was filed. The respondent has denied the allegations made by the appellant with regard to the property and money matters. Respondent stated that, she did not desert the society of the appellant and she is ready and willing to go and stay with him.
4. The Trial Court raised the following points for its consideration:
1. Whether the petitioner proves that the respondent has deserted him for a continuous period of more than 2 years preceding the filing of present petition?
2. Whether the petitioner is entitled for a decree for divorce?
3. What order?
5. During the hearing, the petitioner examined himself as PW-1 and examined his brother as PW-2 and a villager as PW-3 and got marked Exs.P-1 to P-3 i.e., copy the legal notice, postal acknowledgement and a reply to the notice. The respondent examined herself as RW-1 and examined her father as RW-2.
6. The Trial Court after hearing the parties held that, the husband is not entitled to a decree of divorce on the ground that the wife had deserted the husband. It held that, the husband has caused cruelty to the wife by making false accusation of un-chastity. In that regard, the Trial Court made reference to the evidence of PW-2 and also the suggestions made to RWs 1 and 2.
7. Learned Counsel for the appellant contended that, the Trial Court has committed an error in the matter of appreciation of the evidence and in not granting the decree of divorce against the respondent. He submitted that, the Trial Court ought not to have held that there was mental cruelty on the part of the appellant and, in the facts and circumstances of the case, the appellant is entitled to a decree of divorce on the ground of desertion. Learned Counsel sought the re-appreciation of evidence and the over-turning of the impugned judgment and order and to allow the petition by granting a decree of divorce.
8. Learned Counsel for the respondent, on the other hand, supported the judgment and order passed by the Trial Court by urging that, the Trial Court on the basis of evidence adduced by the parties, recorded the finding of fact that the conduct and behaviour of the husband was in the nature of mental cruelty, justifying the wife staying away from the company of the husband. Learned Counsel pointed out that, there is no factual foundation laid in the pleadings with regard to the allegation of adultery on the part of the wife and in the absence of a categorical pleading, it was not open to the appellant to have placed any evidence. Learned Counsel submits that, the Matrimonial Court has considered the oral evidence and recorded findings after seeing the demeanor of the witnesses and having applied its mind and hence, no interference is called for.
9. Having heard the Learned Counsel for the parties and having perused the record, on the facts and in the circumstances of the case, in our opinion, it cannot be said that, by recording a finding as to ‘mental cruelty’ by the husband against the wife, the Trial Court has committed any illegality.
10. In view of the rival contentions and the record of the case, the point that arises for our consideration is:
Whether the appellant has established desertion as per Section 13(1)(i-b) of the Act and whether the Learned Trial Judge was justified in dismissing the petition?
11. Desertion by a spouse for a period of more than two years has been made a ground for divorce under Section 13(1)(i-b) of the Act. It will be useful to notice the relevant portion of the provision, which states as follows:
“13(1) Any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a divorce on the ground that the other party,
(ia) ……………………………..
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition………………,
Explanation: In this sub-Section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”
12. In the instant case, it is for the appellant to prove that the respondent kept away from his society without reasonable cause and without his consent or against his wish. Further, keeping in view the statements made by the respondent in her pleading, the appellant must prove prima facie that there was no willful negligence on his part. He must also show that, the desertion is for a period of more than two years preceding the presentation of the petition.
13. The appellant alleged that, the respondent deserted his company without any reasonable cause in-spite of his inviting her to his village. The respondent has asserted that, she is willing to stay with the appellant and ready to discharge her matrimonial obligations. She has further stated that, to suit the convenience of the appellant, who was a teacher and worked in the surrounding villages of Makanadaku village, a house was taken on rent at Makanadaku village, wherein herself and her children stayed. According to her, the rent of the premises was not paid and even the maintenance amount was not provided. She has stated that, she is aged about 55 years and the marriage took place in the year 1971 and the wedlock having given raise to the birth to 6 children. She has denied the allegation of desertion to be false and has stated that she is ready to join the appellant, whenever he calls her. It was alleged that, the petition has been filed with oblique motives, the appellant having undergone a second marriage on 24.12.2002, without her consent.
14. Adjudication of a dispute by a Civil Court between the parties is governed by the rules of pleadings. Undeniably, the plea of adultery was not pleaded nor any factual foundation laid in the petition filed by the appellant. Adultery is a question of fact and must be specifically pleaded and proved.
15. Though the appellant did not plead any act of un-chastity on the part of the respondent, still, through PW-2, it was sought to be made out that the respondent is an un-chaste woman. PW-2 has stated that, he saw the respondent and her father lying in a compromising position. Without any pleading and also an assertion by the appellant himself, suggestions have been made during the cross-examination of the respondent/RW-1 and her father/RW-2, that, she is living an adulterous life. The appellant, during the hearing, has a made a serious allegation of adultery and immoral life on the part of the respondent. This circumstance justifies staying away of the respondent from the appellant. Making a false accusation, that too, in a cowardly way, through PW.2 by the appellant, would be sufficient reason for the respondent to keep away from the company of her husband.
16. Prior to the filing of the petition, the appellant had got served a notice/Ex.P-1, on the respondent. The allegation of desertion made in the said notice was denied by the respondent by causing reply/Ex.P-3. The allegations made in the petition were also denied by the respondent by filing statement of objections. The petitioner did not choose to make the ground of adultery or leading of immoral life by the respondent in his pleadings for granting of divorce. He desisted from stating anything with regard to the immoral or adulterous life of the respondent during his own examination in the Court. Hence, the case of adultery on the part of the respondent sought to be made out through PW-2 and by making suggestions to RWs 1 and 2, cannot be accepted.
17. “Cruelty” includes both (i) physical cruelty; and (ii) mental cruelty. The allegation of adulterous life of the respondent with her father/RW-2, attributed by the appellant, itself can be regarded as a most cruel act.
18. In the case of A. JAYACHANDRA vs. ANEEL KAUR ((2005) 2 SCC 22), with regard to cruelty, it has been held as follows:
“10. The expression ‘cruelty’ has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of martial ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension is the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.”
(emphasis supplied)
19. IN RAVI KUMAR vs. JULMIDEVI ((2010) 4 SCC 476), with regard to cruelty in matrimonial relationship, it has been held as follows:
“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety – it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon – (1996) 2 WLR 993, held that categories of cruelty in matrimonial cases are never closed”.
20. It is well settled that, if any imputation against the character of any spouse is alleged without any foundation, such reckless and baseless allegations of illicit relationship amounts to mental cruelty and will constitute a valid and sufficient justification for the spouse to keep away from each other. The appellant by reasons of conduct on his part through PW-2 and by making suggestions to the respondent/RW-1 and her father i.e., RW-2, has made it unbearable for the respondent with reasonable self-respect to stay with him. It is the appellant, who is responsible for the respondent in not joining his company, as it was wholly improper and immoral on the part of the appellant to have suggested that, the father and daughter are leading an adulterous life. The said aspect, which is a material aspect, has rightly been noticed by the Learned Trial Judge in passing the impugned judgment and order, to dismiss the petition.
21. Out of the wedlock between the appellant and the respondent, they have 6 children. The daughter has lost her husband. Out of her wedlock, she has a child. The said daughter and her child being looked after by the respondent. The spouses have still minor children. Both the spouses are more than 55 years of age. Mere physical separation would not amount to desertion. The ‘animus deserandi’ or the intention to bring cohabitation permanently to an end should be present on the facts of the case. Both being essential conditions, should continue during the statutory period of more than 2 years, as held in the case of LACHMAN UTAMCHAND vs. MEENA (AIR 1964 SC 40). The respondent has not shown any intention of permanently putting an end to the matrimonial relationship.
22. The appellant, working as a teacher, has assured sources of income. Undeniably, the children, including the minors, are in the care and custody of the respondent. It is not the case of the appellant that, he has been maintaining the respondent and his children. The respondent has been driven to file a maintenance petition. The respondent has instituted a criminal case against the appellant, alleging bigamy. A suit for partition has been filed against the appellant, by his children.
23. The impugned judgment and order does refer to the case of the parties and the Learned Trial Judge has appreciated the material evidence placed on record, in the correct perspective. The findings and the conclusion, which has been arrived at by the Learned Trial Judge, while passing the impugned judgment and order, is well supported by the materials on record. In the circumstances of the case, the Learned Trial Judge was justified in dismissing the petition. Even on re-consideration of the matter, we do not find any justifiable ground to reverse the impugned judgment and order and to allow the petition filed by the appellant.
For the reasons aforesaid, this Court does not find any reason to interfere with the judgment and order of the Trial Court. The Appeal is dismissed. The parties to bear their own costs.