Smt. Kasibhotla Srirani Vs. Sri Kasibhotla Madhava Rao - Court Judgment

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- - that the appellant ever since the marriage was showing dislike towards him and openly declaring that the marriage was against her will and pleasure; that since the appellant did not like for the same, she was sent away accompained by her nephew; jogayya sarma, the learned counsel for the respondent, sought to sustain the judgment and decree granted by the trial court, contending that the trial court is perfectly justified in granting a decree of divorce. when both the appellant and respondent are hailing from brahmin community, it cannot be said that there is no function like sreemantham being performed at the house of one of the sisters of the husband-respondent. no wife having a child, that too living in a respectable family like the appellant and living with her parents in pamarru town, cannot be expected that she will venture to file an application for divorce. the proper persons that can be examined to show that the husband mediated for getting his wife back should be some one from the family who have got good reputation. george at dwaraka tirumala as well as in a church and he is having contacts with another woman, she is prepared to live with her husband. when nothing has been alleged about the character of the wife, except stating that she is not the consented party to the marriage and particularly when her character is said to be good and was having a son through the respondent, naturally she is expected to be with him and he is bound to take her back when she is prepared to go and stay with him. 2 and 3, we allow the appeal by holding that the husband had failed to prove that there is desertion on the part of the wife. 13. we have interviewed both husband and wife as well as the son in the open court and we put certain questions so that we may explore whether there are any chances for their reunion. when a widow's daughter, one widow sister and another sister's daughter are living with him, he can as well dispense with the service of maid-servant and instead pay that amount to his son and wife. when the services of so many people who are said to be living with him, are there, he is naturally in a better position having the services of all of them.g. radhakrishna rao, j.1. this civil miscellaneous appeal is directed against the decree and judgment passed in original. petition no. 19 of 1985 on the file of the subordinate judge's court, gudivada. by his judgment dated february 10, 1992, the learned subordinate' judge allowed the original petition filed by the respondent - husband granting a decree of divorce dissolving the marriage between the appellant-wife and the respondent - husband. aggrieved by that, the appellant-wife preferred this appeal.2. the respondent-husband in his petition filed under section 13(1) (1a) and (1b) of the hindu marriage act, alleges that the marriage between the respondent and the appellant-wife took place on april 24, 1980 at pamarru; that the appellant joined the respondent at gannavaram and she lived with him till she was taken to pamarru by her father; that the appellant ever since the marriage was showing dislike towards him and openly declaring that the marriage was against her will and pleasure; that he learnt that the appellant gave birth to a male child and in spite of efforts made by the respondent to get her back through mediators, she did not come and join him and thus deserted him; that the respondent gave a notice on december 6, 1983 demanding the appellant to come and lead a family life and that though the appellant received the same, she did not choose to give any reply and subsequently gave a reply on december 16, 1983.3. the appellant-wife denied all the allegations and contended that they lived together till 1980; that she became pregnant and her husband insisted that she should cause abortion; that since the appellant did not like for the same, she was sent away accompained by her nephew; that thereafter the appellant's brother - varaprasad, went to gannavaram and brought the appellant to pamarru to consult a doctor; that the doctor advised her against abortion; that on december 19, 1980 sreemantham function was celebrated at the house of eldest sister of the respondent at puligadda; that on march 15, 1981 a malechild was born; that on the 27th day 'namakaranam' was performed at pamarru to which function, the respondent, his father, sisters and others have attended; that on august 11, 1981, the respondent's another brother - sudhakara sarma, took the appellant and the baby to the respondent's house at gannavaram; that the respondent did not allow them to enter the house; that again on august 14, 1981, the appellant's mother took her and the baby to gannavaram and that two days after that the respondent picked up a quarrel with the appellant's mother and drove them away and thereby the appellant was forced to return to pamarru. thereafter several attempts were made by the appellant and her brothers to reconcile them, but they were made futile; that the appellant's fourth brother - prabhakara sarma, took her again along with the child to gannavaram and again on january 18, 1982, the respondent sent away the appellant. on june 1,1982 the appellant's brother - prabhakara sarma, took the appellant and her child and left them at gannavaram and they lived together for 22 days. again, the respondent sent away the appellant to pamarru along with the child. thereafter, the appellant was shifted to vijayawada from gannavarm. therefore, according to the appellant, it is the respondent who deserted her.4. in support of his case, the respondent-husband examined p.ws. 1 to 3 and marked exs. a-1 to a-4. on the other hand, the appellant-wife examined r.ws. 1 to 3 and did not mark any documents.5. sri t.s. haranath, the learned counsel for the appellant, submitted that the trial court has erred in placing the burden on the appellant-wife that she has been living separately with an intention to put an end to the marital relationship; that the inferences drawn by the trial court have no basis and prayed for setting aside the decree of divorce granted by the trial court. on the other hand, sri v. jogayya sarma, the learned counsel for the respondent, sought to sustain the judgment and decree granted by the trial court, contending that the trial court is perfectly justified in granting a decree of divorce.6. admittedly, the respondent-husband filed a petition under sections 13(1) (1a) and (1b) of the hindu marriage act, seeking to grant a decree of divorce on the ground of desertion. the petition was filed on december 15,1983, alleging cruelty on the part of the wife towards the husband and also on the ground of desertion. it is to be noted that the said petition is preceded by issuance of a notice by the husband through his advocate on december 6, 1983. in the said notice, it is mentioned that unless a reply was given within one week from the date of receipt of the said notice by the wife, the respondent-husband would be constrained to take steps for divorce. the said notice was received by the appellant-wife on december 7, 1983 under postal acknowledgement, ex.a-2. thereafter, on december 15,1983, the original petition was filed. in this case, the appellant gave her reply to the notice issued under ex. a-1 by her husband on december 16, 1983. prior to that, there was no written correspondence between the wife and the husband from the date of their separation. in the case of this nature, when both the spouses are living nearby, particularly in the light of their family status, it is very difficult to expect any correspondence. after consummation, both of them lived together at gannavaram which is 13 or 14 kilometres away from pamarru, where the parents of the appellant are living. the husband alleges that his wife had left the house in the first week of july. as against this, the wife states that they lived together till august, 1980. whatever it be, whether both of them lived together till july or august, 1980 has no material bearing. it is the case of the wife that she became pregnant by the time she left the house of the husband either in july or in august, 1980 and a male child was born on march 15, 1981. the wife also states that 'sreemantham' was performed in december, 1980 at the sister's house of her husband, as the mother of the respondent was not alive. in brahmin community there is every possibility of sreemantham function being performed. in this case, sreemantham was performed at the house of the sister of the respondent. may be for performing the said function, the appellant might have been taken to his sister's house. it is the case of the husband that sreemantham had not been performed. when both the appellant and respondent are hailing from brahmin community, it cannot be said that there is no function like sreemantham being performed at the house of one of the sisters of the husband-respondent. it is a fact that there is no material to show that sreemantham function was performed at the house of respondent's sister. since there is not much distance between the villages where the respondent's sister is living and pamarru, where the appellant is living with her parents and from which place the appellant was taken for performing sreemantham. in this case, admittedly, there is no written invitations for sreemantham function. therefore, we cannot expect any documentary evidence to be produced by the wife showing that sreemantham function has been performed at the respondent's sister's house. the plea of the respondent-husband is one of total denial. therefore, in view of what is stated above, we feel that sreemantham function was performed in the sister's house of the respondent-husband.7. in the counter filed by the appellant-wife, it has been alleged that her brother - varaparasad, went to gannavaram and brought the appellant to famarru to consult a doctor as to whether abortion as desired by the respondent-husband is possible or not. to substantiate the said plea, a retired teacher was examined as r.w.3. it is in the evidence of r.w.3 that he accompanied the appellant when she consulted a doctor with regard to undergoing abortion and that the husband of the appellant was also present then. but, when the respondent-husband was in the witness box, he was not confronted with the statement made by the retired teacher (r.w. 3) with regard to having consultation with the doctor for undergoing abortion by the wife. so, the fact whether the appellant's husband accompanied the wife to consult the doctor with regard to her abortion has not been made out. but the fact remains and it appears to our mind that there are some discrepancies with regard to continuing the pregnancy or termination of the pregnancy. as the marriage of the appellant with the respondent took place in the month of april, 1980 and as the wife conceived immediately thereafter, it is natural that the husband might not have wanted early procurement of children. whether the husband wants early procreation of children or not, are all the matters depending upon the understanding between the two spouses and it will not have any bearing on the matter in dispute at that point of time. the wife left the house of the husband in july or august, 1980. she has no animosity to break her marital tie and the pregnancy as such is known to both the spouses at the time when she left the house. the possibility of the husband taking his wife to the doctor for having consultation with regard to the termination of the pregnancy and he having taken sufficient care cannot be ruled out.8. the wife came forward with a plea that from june, 1981 onwards, she made attempts to meet her husband either through her brothers or through her father. but the possibility of making efforts to join her husband, cannot be ruled out. for that we cannot expect any other evidence. she states in her evidence that she wrote several letters and she states that she has not received any reply. when she wrote letters, as she is the wife of the respondent, it is not expected to retain any copy of the letters that have been written by her. similarly when the husband has not replied, she is not expected to produce any document and as the letters are alleged to be in the custody of the husband, he has not produced them. neither any attempt been made by the husband, nor did he give any notice, or file any application for restitution of conjugal rights. all these circumstances indicate that the husband had kept quiet and did not take any steps whatsoever which a reasonable husband is expected to take for their reunion after his wife gave birth to a male child. sending notice to the wife to come and join him and thereafter filing original petition seeking divorce within 15 days after the issuance of notice under ex.a-1 even without waiting for a reasonable reply from the wife, itself is a clear indication that the husband somehow or other wanted to get over with the wife who was living separately by that time. so, issuance of notice is a factor against the husband. moreover, he has not mentioned the names of the mediators. he only says that his wife is not affectionate towards him and she expressed that her marriage was against her will. if that is so, she would have voluntarily consented for abortion as desired by her husband at that point of time and would have also consented for divorce without waiting for such a long time. no wife having a child, that too living in a respectable family like the appellant and living with her parents in pamarru town, cannot be expected that she will venture to file an application for divorce. what is more, the husband is an employee. the wife has no independent means to eke out her livelihood. she is not even qualified to get a job at the relevant point of time. in the circumstances, we are of the view that the wife has not entertained an idea to sever her marital relationship with her husband.9. in this case the evidence that has been relied on is that of r.ws. 2 and 3 and p.ws. 2 and 3. the evidence of p.ws. 2 is not of convincing nature. the proper persons that can be examined to show that the husband mediated for getting his wife back should be some one from the family who have got good reputation. no names are mentioned even in the evidence. the husband has not mentioned that he had sent any person from his family for getting back his wife. he says that he sent one of his brothers-in-law for this purpose. when the husband is admittedly having seven sisters and when his wife's sreemantham was said to have been performed at one of his sister's house, the proper person to speak on this aspect would be to send some women-folk. if he sent one of his brothers-in-law, they may not be in a position to convince her. none of the sisters came forward to give evidence about the mediation. in the absence of such evidence, the alleged mediation said to have taken place through p.ws. 2 and 3 is only a make belief story to show that efforts have been made in this regard. on the other hand, the wife examined herself and her statement that she made some efforts appears to be reasonable. on going through the evidence let in by both the wife and the husband, we find that efforts have been made to some extent by the wife, but not the husband.10. the wife has not produced any documentary evidence. she states that she had written letters and admittedly, no written correspondence has been filed into court to show that visits were made by her and her people to the house of the husband and about the performance of sreemantham. as we have already pointed out, this correspondence is only oral, but no invitation card was published of the sreemantham. we cannot expect any written correspondence between the two spouses and we feel non-production of documents or correspondence is not a fatal circumstance to brush aside the case of the wife. we find that the case of the husband is one of total denial. in his evidence the husband denied all the aspects that have been stated in the counter filed by the wife. since the date of separation, the wife is residing with her parents and they are maintaining her and the male child. as we have already pointed out, the correspondence between the two spouses or the invitation letters for sreemantham are not expected, but the events that took place at that point of time itself are relevant. we feel that non-production of documents or correspondence is not a bald circumstance to throw away the evidence. further, whether the evidence let in by both the parties appears to be reasonable or not, it is upto the conscience of the court. as already observed, the case of the husband right from the beginning, is one of total denial. he denied the aspect of sreemantham function. in the light of what has been stated in the counter, the fact remains that both of them lived together for some time after the marriage and thereafter the wife is living at her parents house without any maintenance being provided by the husband right from the year 1981. even though the husband was away from her for more than 10 years and a male child was also born in their wedlock, the marriage is still subsisting. it is brought out in the evidence that in spite of the apprehension in the mind of the wife that her husband married the daughter of mr. george at dwaraka tirumala as well as in a church and he is having contacts with another woman, she is prepared to live with her husband. when the husband was examined as p. w. 1 he stated that at this stage he is not willing to receive her back and live with her. that means under any circumstances, he is not prepared to take back his wife.11. having regard to the facts and circumstances, we feel that the wife has never entertained an idea to have any desertion either on the date of her leaving the house or on the subsequent dates. when she never entertained the idea of separation, we cannot say that she has got animus decidendi to part with the company of her husband and it is the duty of the court to see that the marriage between the two as far as possible be united when they are not willing for divorce. when nothing has been alleged about the character of the wife, except stating that she is not the consented party to the marriage and particularly when her character is said to be good and was having a son through the respondent, naturally she is expected to be with him and he is bound to take her back when she is prepared to go and stay with him. therefore, it is also the duty of the court to see and some arrangement has to be made by providing maintenance to the wife as provided under section 25 of the hindu marriage act. thus, the desertion plea as set up by the husband seeking divorce has not been proved. the lower court has taken into consideration that the burden of proof rests on the wife. whoever approaches the court with a plea that there is desertion, it is for that party to prove that there is desertion. when the other spouse proves that there is no desertion, then the burden of proof shifts to the other party. when such is the situation with regard to the plea that has been taken by the parties in this case, the husband came forward with the plea of cruelty and desertion. so far as the cruelty plea is concerned, it does not find favour with the lower court. on a perusal of the evidence, we find that there is no material to arrive at the conclusion that there is cruelty. taking all the facts and circumstances of the case including the testimony of p.ws.2 and 3 and r.ws. 2 and 3, we allow the appeal by holding that the husband had failed to prove that there is desertion on the part of the wife. the appeal is accordingly allowed and the decree of divorce granted by the trial court is set aside. no costs.12. coming to the quantum of maintenance under section 25 of the hindu marriage act, a division bench of this court in mrs. c. meena v. c. suresh kumar,1993 (1) (h.c.) aplj 113 found that without an application by a party, a decree can be passed fixing a reasonable amount by way of maintenance. section 25 of the hindu marriage act envisages that maintenance can be granted by a court basing on the conduct of the parties and other circumstances of the case if it is just, without any application and such payment may be secured, if necessary, by a charge on the immovable property of the respondent. what is just and reasonable depends upon the facts and circumstances of the case. that is why the statute specifically provides, 'the conduct of the party and other circumstances' under section 25 of the hindu marriage act. in this case right from july or august, 1980, the husband did not provide even a single pie either to the wife or the son. it is brought out in the evidence that the son was studying 8th class.13. we have interviewed both husband and wife as well as the son in the open court and we put certain questions so that we may explore whether there are any chances for their reunion. though the wife is willing to go and join her husband, the husband disinclined to take back his wife. in the petition it has been stated that the wife is working as a typist. the place where she is working is not mentioned. unless there is substantial proof, it cannot be taken into account. in this case, no proof has been form coming to show that she is an earning member. so far as the husband is concerned, he is a government employee right from the year 1980. as it is seen either from the original petition or the counter that the income of the husband is rs. 3,600/- even assuming that the monthly income of the husband is rs. 3,100/- at that relevant point of time, after making deductions necessary from his salary, his net income would be rs. 2,200/- but we are not having any factual data. naturally in the maintenance cases, husband will come forward with a plea that he has to maintain widowed daughter, unmarried sister and maternal uncle, paternal uncle and so on and so forth, even though he is not prepared to maintain his wife. such pleas are of charitable in nature and they cannot be taken into account, particularly when he is not agreeable to provide even one meal to his son for the last several years and he has not agreed to see his son's welfare, nor did he provide anything to him. the husband says that widowed sister is with him and another sister's son and daughter are also living with him. when a widow's daughter, one widow sister and another sister's daughter are living with him, he can as well dispense with the service of maid-servant and instead pay that amount to his son and wife. when the services of so many people who are said to be living with him, are there, he is naturally in a better position having the services of all of them. when he is charitable enough in providing food and shelter to so many people, one must be charitable enough to provide something and extend the same benefit and facility to his own son and wife also. when the net income of the husband is rs. 2,200/- we feel that the minimum requirements of the son and the wife will be taken into account. therefore, taking into consideration the entire gamut, atleast rs. 1000/- should be provided for residence, clothing meals etc., therefore, each has to be provided rs. 500/- + rs. 500/- and the remaining income of rs. 1,200/-, even according to him, would meet his family necessities and requirements. therefore, we feel that an amount of rs. 500/- to the son and rs. 500/- to the wife per month would be a reasonable amount of maintenance that can be granted. this amount, under any circumstances, should not be altered and if any change of circumstances are there and the husband is earning more than what has been stated, it is for the wife and son to take appropriate steps for claiming enhanced maintenance. when an application claiming interim maintenance has been filed in the lower court, it is the duty of the trial court to dispose of the same and the lower court has not taken any steps in that regard even though it is pending since 1980. the appeal is admitted on 7-12-1992. we feel that the interim maintenance granted by us will be effective from 01-01-1993. the arrears of maintenance be paid within two months and thereafter, the monthly maintenance must be sent either by money order or by way of a demand draft. the husband may also open a bank account in the name of appellant, deposit the maintenance amount every month under intimation to her. however, it is made clear that the amount shall be sent/ deposited on or before 15th of every succeeding month. the arrears of maintenance be paid before 31-12-1993. the payment of regular maintenance commences from 1-11-1993. even though the husband is having six sisters and brothers, there is no legal obligation on the part of the husband to maintain his sister's son. there is also no moral obligation to maintain those persons. when he has taken moral ground to maintain his sisters and brothers, the same ground should also be extended to his son and wife.