K.M. Rajan and Others Vs. Rathikumari - Court Judgment

Excerpt:
civil procedure code – section 10(1) and 10(3) - family court act, 1984 - facts – it is a suit for permanent prohibitory injunction restraining the husband or anybody under him from trespassing into the property and committing waste as also from inducting strangers - property was scheduled as ‘a’ schedule property in the suit which was dismissed and in the latter petition it was declared that the husband has got half right in plaint ‘a’ to ‘e’ schedule properties and - preliminary decree was passed to effect division of plaint ‘a’ to ‘e’ schedule properties - as per the said common judgment, either of the parties could move for effecting partition and to pass a final decree and the cost of the parties would come out.....“c.r” ravikumar, j. 1. these matrimonial appeals between the same couple are intrinsically intertwined and hence, they were heard jointly. for the sake of convenience, the parties are hereinafter referred to in this judgment as ‘the wife’ and ‘the husband’. 2. o.p.no.1076 of 2007 is, in fact, a suit filed by the husband mainly seeking for declaration of his exclusive title over plaint ‘a’ to ‘e’ schedule properties and for a decree directing the wife, the respondent therein, to assign her share in ‘e’ schedule property in his name. o.p.no.989 of 2008 was originally filed by the wife as o.p.no.1075 of 2008 before the family court, ernakulam and was later transferred to family court, kottayam and re-numbered as such. it.....

Judgment:

“C.R”

Ravikumar, J.

1. These Matrimonial Appeals between the same couple are intrinsically intertwined and hence, they were heard jointly. For the sake of convenience, the parties are hereinafter referred to in this judgment as ‘the wife’ and ‘the husband’.

2. O.P.No.1076 of 2007 is, in fact, a suit filed by the husband mainly seeking for declaration of his exclusive title over plaint ‘A’ to ‘E’ schedule properties and for a decree directing the wife, the respondent therein, to assign her share in ‘E’ schedule property in his name. O.P.No.989 of 2008 was originally filed by the wife as O.P.No.1075 of 2008 before the Family Court, Ernakulam and was later transferred to Family Court, Kottayam and re-numbered as such. It is a suit for permanent prohibitory injunction restraining the husband or anybody under him from trespassing into the property scheduled thereunder and committing waste as also from inducting strangers thereon. The property scheduled therein is the same property that was scheduled as ‘A’ schedule property in O.P.No.1076 of 2007, O.P.Nos.989 of 2008 and 1076 of 2007 were jointly tried and disposed of by a common judgment. The former among them was dismissed and in the latter petition it was declared that the husband has got half right in plaint ‘A’ to ‘E’ schedule properties and accordingly, a preliminary decree was passed to effect division of plaint ‘A’ to ‘E’ schedule properties by metes and bounds and also to allot his half right over the said properties. As per the said common judgment, either of the parties could move for effecting partition and to pass a final decree and the cost of the parties would come out of the estate. Mat. Appeal Nos.766 of 2009 and 805 of 2009 are the appeals filed respectively by the wife and the husband against the judgment and decree in O.P.No.1076 of 2007 and Mat. Appeal No.775 of 2009 was filed by the husband for divorce under section 13 of the Hindu Marriage Act. It was dismissed on the ground that the petitioner husband could not adduce evidence to prove cruelty and willful desertion on the part of the respondent wife. Mat. Appeal No.285 of 2011 is directed against the said judgment.

3. We will first deal with the appeals pertaining to the property dispute viz., Mat, Appeal Nos. 766, 775, and 805 of 2009.

4. As already noticed, O.P.No.989 of 2008 and O.P.No.1076 of 2007, from which the aforesaid appeals arose, were jointly tried. The husband was examined as PW1 and his witnesses were examined as PWs 2 to 5. The wife was examined as RW1 and her witnesses were examined as RWs2 to 12. On the side of the husband, Exts.A1 to A27 were marked and on the side of the wife Exts.B1 to B69 were marked. X1 and X2 were marked as court exhibits.

5. Based on the rival pleadings the Family Court formulated four points for consideration as hereunder:-

“1. Whether the declaration of exclusive right over plaint A to E schedule properties prayed for by the husband in O.P.No.1076/07 is allowable?

2. Whether the permanent prohibitory injunction prayed for by the husband in O.P.1076/07 is allowable?

3. Whether the decree for partition in alternative prayed for by the husband in O.P.1076/07 is allowable?

4. Whether the permanent prohibitory injunction prayed for in O.P.989/08 by the wife is allowable?”

6. After carefully assessing the evidence adduced by the husband the Family Court arrived at the conclusion that the husband had failed to prove his exclusive right over the plaint ‘A’ to ‘E’ schedule properties. Exts.A4 to A8 are the copies of the title deeds in respect of plaint ‘A’ to ‘E’ schedule properties. The husband has also produced Ext.A9, the certificate showing the withdrawals from his GPF during the period from 1996 to 2005 and Ext.A10 which is the copy of the statement of his account with Axis Bank. Ext.A11 is the copy of his account with Chennai Central Co-operative Bank and Ext.A12 is the copy of the certificate of demand drafts issued from Axis bank-showing withdrawal of Rs.6,00,000/- and Rs.3,00,000/-, from his account for drawing Demand Drafts in favour of one Joshi who is the vendor of ‘E’ schedule property. The husband would depose that his father had also assisted him financially for purchasing the aforesaid properties. The original title deeds in respect of ‘A’ to ‘E’ schedule properties were produced by his wife. They would go to show that except ‘E’ schedule property all the other scheduled properties stand in the name of the wife. ‘E’ schedule property stands in the joint names of the husband and the wife. As noticed earlier, to substantiate his contentions, the husband had produced Exts.A1 to A27 including the documents referred above. It is his contention that O.S.No.264 of 1984 then pending before the Munsiff’s Court, Kanjirappally was carrying a dispute with respect to his status as a member of a scheduled caste. Pending enquiry by the authorities he was also under suspension from service. Exts.A13 and A14 pertain to such proceedings. The Family Court virtually believed the version of the husband that the property was purchased in the exclusive name of his wife only to avoid a possible return of certain benefits received by him based on his appointment in Governmental service under Scheduled Caste quota. Though reasons assigned for giving the transactions the colour of benami found favour with the Family Court, after assessing the evidence adduced by the husband and wife, it was found that the husband has failed to prove that the entire purchase came from him. In other words, it was found that no conclusive evidence has been produced by the husband to prove his exclusive title over ‘A’ to ‘E’ schedule properties. In that context, it is apposite to refer to the evidence adduced by the wife and the manner of appreciation made by the Family Court,. The wife was examined as RW1 and her brother, father and the adopted son were examined respectively as Rw2, Rw3 and Rw4. Relying on Ext.B59 it was contended by the wife that she paid the consideration utilizing the amount raised by her mother by selling her own property. The wife’s contention was that the entire consideration for purchasing ‘A’ schedule property viz., property scheduled in O.S.No.989 of 2008, was raised by her. The oral testimonies of RW2 to RW4 and Ext.B59 and such other documents were found too short to substantiate her case in its entirety. Upon appreciation of the evidence adduced on the side of the wife the case that the entire sale consideration received by the wife’s mother was utilized for purchasing the properties, as claimed by the wife, was not upheld. It was found that it was also used for the purpose of conducting marriage of her another daughter Ushakumari. The oral testimonies of RW3, her father, RW2, her brother and RW4, the adopted son clearly depicted the financial condition of the wife and her family during the relevant period. The father would depose that the properties were sold either for discharging the debt towards the banks or for discharging the debt incurred in connection with the marriage of the daughters. Ext.B59 and other relevant documents were also considered by the Family Court along with oral testimonies of his wife and her witnesses for coming to the conclusion that the sale consideration of ‘A’ schedule property was not exclusively raised by her. In respect of ‘B’ and ‘C’ schedule properties the wife contended that she raised the sale consideration by selling her gold ornaments, by availing a loan of Rs.1,00,000/- from one Babu after executing Ext.P10 pronote besides utilizing the money saved from her business. However, the said Babu was not examined. The contention of the wife that she had sufficient income from the textile business was also not believed by the Family Court, taking into account of her own admission during the examination that there was no sales tax registration and no licence for the said business. Admittedly, she was also not paying professional tax. It was found that she might have raised some income from small scale textile business. According to the husband, he purchased the ‘D’ schedule property while he was in service. Ext.A7 would reveal that the total consideration for the said property was Rs.1,45,000/-. The wife contended that the purchase money was paid after selling timber from ‘B’ and ‘C’ schedule properties. Though she has produced Ext.B12 sale agreement for timber, she had not cared to prove the execution of the said agreement. Its vendee was also not examined. At the same time, it is in evidence that the husband had withdrawn certain amount from his GPF account during the relevant period. The Family Court held that considering the fact that the husband was working as a Central Government employee, that too, in a good post, there is no need to entertain a doubt regarding the source of his income. ‘E’ schedule property was purchased on 21.3.2005. Ext.A8 title deed would reveal that its sale consideration was Rs.6,00,000/-. It is in evidence that the flat purchased at Chennai using the loan amount availed by both the husband and wife was sold for that purpose. As regards the wife’s contention that the sale consideration was raised by bidding a chitty for Rs.2,00,000/- any by pleading ornaments of her sister-in-law it was found that there was no such pleadings in her objection filed in O.P.No.1076 of 2007. She had also failed to adduce any convincing evidence in that regard. As already noticed, to prove their respective contentions, the wife and the husband got themselves examined besides bringing in oral testimonies of their respective witnesses including kith and kin and documentary evidence such as Exts.A1 to A27 and B1 to B69. It was with those materials on record that the Family Court proceeded to decide on the aforementioned points formulated for consideration. Evidently, both the wife and the husband adduced evidence in a bid to substantiate their rival contentions as to how they raised the purchase money in respect of the scheduled properties. It is in evidence that despite some marital discord they continued to live as man and wife till 2007. The Family Court also did not give any importance to Ext.C1 report of RW12, the Commissioner, to the effect that at the time of her visit only the wife and the adopted son were present, on the ground that no notice of her visit was given to the husband. In view of the evidence adduced by the husband and also the attending circumstances, it was found that the possession of title deeds by the wife alone could not be a reason to arrive at a conclusion that she is the absolute owner of the properties especially when she failed to adduce convincing evidence regarding raising of purchase money covering the entire transactions and when the husband adduced evidence showing raising of fund during the relevant period. Obviously, the Family Court had considered the evidence, both oral and documentary, the Family Court arrived at the conclusion that none of the parties had succeeded in proving that he/she had raised the sale consideration covering the transactions as his own or as her own. Ultimately, on assimilation of the evidence and the contentions the Family Court came to the conclusion that the sale consideration in respect of ‘A’ to ‘E’ schedule properties were raised jointly and hence the said properties jointly belong to them. Consequently, the Family Court declined to issue declaration as sought for by the husband as also by the wife. Based on the finding that ‘A’ to ‘E’ schedule properties have been acquired jointly by them, it was held that none of the parties are entitled to get a declaration as sought for by them, whilst, they are entitled to get half share each in plaint ‘A’ to ‘E’ schedule properties. The husband has also made an alternative prayer in O.P.No.1076 of 2007 to effect partition of the properties and to allot half share in plaint ‘A’ to ‘E’ schedule properties to him. Based on the said prayer a preliminary decree for partition of plaint ‘A’ to ‘E’ schedule properties by metes and bounds and to allot half right over the properties was passed by the Family Court. The relief sought for by the wife for a permanent prohibitory injunction in respect of plaint ‘A’ schedule property was rejected by the Family Court based on the evidence and conclusions referred to earlier. So also, the claim and contention of the husband that he is the exclusive title holder over the plaint ‘A’ to ‘E’ schedule property was also rejected. The Family Court found that declaration as sought for by each of them could not be issued against the other co-owner. Accordingly, O.P.No.989 of 2008 filed by the wife seeking permanent prohibitory injunction against the husband was dismissed. Based on the alternative prayer made by the husband in O.P.No.1076 of 2007 a primary decree was passed as aforesaid.

7. On behalf of the husband and wife, various contentions have been raised. The husband is aggrieved by the denial of declaration recognizing his exclusive rights over plaint ‘A’ to ‘E’ schedule properties and also by the dismissal of the petition for divorce. Wife has filed separate appeals against the common judgment in O.P.Nos.989 of 2008 and 1076 of 2007.

8. Obviously, the main prayer of the husband in O.P.No.1076 of 2007 was for a declaration of his exclusive title over plaint ‘A’ to ‘E’ schedule properties and for a decree directing the wife to assign her share in ‘E’ schedule property in his name. Evidently, the main prayers of the husband were not granted by the family court. He has sought for the following as the alternative relief in the said writ petition:-

“In case this Honourable Court finds that the petitioner is not entitled for relief ‘A’, to pass a judgment and decree partitioning the petition schedule A, B, C, D and E properties by metes and bounds into equal halves and grant to the petitioner his share of the properties”.

9. The main prayers viz., prayers (a) to (c) in O.P.No.1076 of 2007 read thus:

“(a) Pass a Judgment and decree declaring that the petitioner is the sole and absolute owner of the petition scheduled A to E properties.

(b) Pass a judgment and decree directing the respondent to assign her share in the petition schedule “E” properties to the petitioner.

(c) Pass a judgment and decree permanently prohibiting and injuncting the respondent and her men in any manner interfering with the ownership, possession and enjoyment of the petition scheduled “A to E” properties.”

With reference to prayer No.(a), relating declaration, it is contended on behalf of the wife that the said suit was framed and filed as simplicited, that is, as a suit merely for the relief of declaration sans a further relief, by virtue of section 34 of the Specific Relief Act, 1963. The expression ‘any right as to any property’ employed in section 34 of the Specific Relief Act would not always mean a vested right alone and it would include any right relating to any property. In the context of the contentions, it is relevant to note that Order VII Rule 7 of the Code of Civil Procedure confers a right upon a plaintiff to pray for one or more reliefs, categorized as main and/or alternative reliefs. No doubt, it does not say that the relief should be stated in a particular manner or in a particular part of the plaint. Sections 10(1) and 10(3) of the Family Court Act, 1984 read thus:-

“10. Procedure generally.- (1) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 19087 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings )other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2). ……………………………………………….

(3) Nothing in sub-section (1) of sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other”.

In view of the above mentioned provisions under the various enactments, we find no reason as to why an alternative relief should not be sought for, in a petition filed before a Family Court in respect of a dispute between the spouses relating to the property. Taking the suit as a whole and the above mentioned provisions, the alternative relief sought for, by the husband and also considering the fact that the court has granted only the relief claimed in the alternative, we find no force in the aforesaid contention of the wife. Where an alternative relief is granted, an appeal impugning the denial of the main relief/reliefs would not stand barred for the said reason as he would still be a person aggrieved against that part of the decree which declines the main relief/reliefs.

10. We have adverted to the evidence adduced by both the parties and also the manner in which they were appreciated by the Family Court. By the common judgment in O.P.Nos.1076 of 2007 and 989 of 2008 the Family Court declined the prayer of the husband for declaration of his exclusive title over plaint ‘A’ to ‘E’ schedule properties and also the prayer of the wife for permanent prohibitory injunction sought for in O.P.No.989 of 2008 after weighing the entire evidence adduced by the spouses. Obviously, after such careful assessment of evidence the alternative relief sought by the husband in O.P.No.1076 of 2007 was granted by declaring his half right in plaint ‘A’ to ‘E’ schedule properties and a preliminary decreed to effect partition of the plaint ‘A’ to ‘E’ properties by metes and bounds and allot his half right over the properties. The question is whether the same invites appellate interference at the instance of either the husband or the wife. The answer to the said question would invariably decide the face of Mat. Appeal Nos.766, 775 and 805 of 2009.

11. A perusal of the rival contentions would make it clear that the husband asserted before the Family Court that the transactions involved in the purchase of ‘A’ to ‘E’ schedule properties are benami transactions and the wife is only a benamidar in respect of the said properties. Per contra, the wife claimed that the purchase money in respect of the said properties came from her and, as such, she is the exclusive title holder in possession of the said properties. Essentially, the attempt on the part of the husband before the Family Court was to rebut the presumption under section 3(2)(a) of the Benami Transactions (Prohibition) Act, 1988. The essence of a benami transaction is the intention of the concerned party/parties. The onus to establish that it was a benami transaction is on the asserter. However, when both the parties adduced evidence in that regard and when it is not possible to obtain conclusive evidence establishing or, rebutting the allegations, the case must be dealt with based on reasonable probabilities and legal inferences arising from proof or admitted facts. Abstract consideration of burden of proof would be out of place in such situations and the truth or otherwise of the case have to be adjudged after weighing the evidence let in by them. A scanning of the judgment and decree under challenge would reveal that after assimilating the evidence, as referred to earlier, the court arrived at the conclusion that the husband and also the wife had failed to adduce conclusive evidence substantiating their respective claims. In a dispute over properties between a couple if evidence adduced by them carry no exclusive evidence to come to a conclusion regarding absolute and exclusive title and ownership of either of them, necessarily, the case has to be dealt with based on reasonable probabilities and legal inferences arising from proved or admitted facts.

12. While considering the correctness or otherwise of the findings of the Family Court, in view of the peculiar facts involved in these cases, it is relevant to refer to the decision of the Hon’ble Apex Court in Jaydayal Poddar v. Bibi Hazra (AIR 1974 SC 171). True that, the Benami Transaction (Prohibition) Act was enacted subsequently. However, the prohibition of benami transactions is not applicable to the purchase by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter, in view of section 3(2)(a) of the said Act. In the circumstances, it cannot be said that the relevance of the aforesaid decision has been completely effaced. We are of the view that while weighing the probabilities in such cases the courts have to be guided by the circumstances mentioned in the said decision such as; (1) the source from which the purchase money came (2) the nature and possession of the property (3) motive, if any, for giving the transaction a benami colour (4) position of the properties and the relationship, if any, between the claimant and the alleged benamidar (5) the custody of the title deeds with the property after sale. Bearing in mind the said guiding circumstances, the findings have to be scanned. Even while holding that both the husband and the wife failed to establish their respective claim for exclusive title, the Family Court took into consideration certain circumstances which are very much relevant in the light of the decision in Poddar’s case (supra). In this context, it is to be noted that the husband took the contention that O.S.No.264 of 1984 carrying a challenge against his entitlement to get the benefit of scheduled caste status was then pending before the Munsiff’s Court, kanjirappally and in connection with the enquiry by the authorities he was then under suspension. His version that the pendency of the said suit and the apprehension of coercive steps in case of an adverse order thereon constrained him to purchase the properties in the exclusive name of his wife, gaining support from the evidence of PW2 and PW3, was virtually found to have basis by the Family Court. In other words, taking into account the reasonable probabilities and legal inferences arising from the proved and admitted facts, the Family found a motive for effecting the transactions with benami colour. On total appreciation of the evidence in these cases, with respect to the source of purchase money, obviously, the Family Court came to the conclusion that none could claim that the entire purchase money came from her/him and found that the purchase money came from both. Invariably, the Family Court arrived at the conclusion that the purchase money was jointly raised by them and the properties involved in these cases were purchased for the benefit of both the parties. True that, the original title deeds viz., originals of Exts.A4 to A8 were produced by the wife. In other words, it would reveal that after the sale or, at any rate, at the relevant point of time, she was in custody of the title deeds. Between the claimant and the alleged benamidar, that is, the husband and the wife in this case, obviously, the marital relationship still subsists though from 2007 they are living separately. Virtually, all such guiding circumstances find satisfaction in the conclusions and findings of the Family Court and they are reflected in the judgment. On a careful consideration of the evidence let in by them the Family Court found that they cannot be brushed aside and at the same time, cannot be accepted in toto for the purpose of accepting or rejecting the exclusive title and ownership of either the husband or the wife. It was after weighing the evidence that the Family Court arrived at the finding that both the husband and the wife are jointly entitled to the ownership of the plaint ‘A’ to ‘E’ schedule properties and they are having equal rights that is, only joint rights over the said properties. We have noted both sides’ versions in the pleadings, the evidence adduced by them and also noted arguments advanced by them before the Family Court. After a careful consideration of the evidence and the arguments, we are inclined to concur with the finding of the Family Court that both the wife and the husband are not having exclusive title and ownership over the ‘A’ to ‘E’ schedule properties and they are having only equal rights over them. An appellate interference is called for only if the findings of the Family Court are palpably perverse or totally against the weight of evidence or unsustainable in view of the position of law. None of the parties could bring out a case warranting interference with the findings. In view of the attending circumstances, the decision of the Hon’ble Apex Court in Smt.Rebti Devi v. Ram Dutt and another (AIR 1998 SC 310) also assumes relevance. In that case, it was held by the Hon’ble Apex Court that when both sides had adduced evidence, the High Court was justified in not interfering with the findings arrived at on appreciation of evidence. In these cases, no doubt, the respective evidence adduced by the husband and the wife is not sufficient to outweigh the evidence let in by the other. In the said circumstances, we are of the considered view that the judgment and decree of the court below in O.P.No.1076 of 2007 calls for no appellate interference. As already stated, the fate of Mat. Appeal. No.989 of 2008 depends upon the sustenance or otherwise of the findings in O.P.No.1076 of 2007. Since we declined to interfere with the judgment and decree in O.P.No.1076 of 2007 Mat. Appeal No.775 of 2009 is also liable to fall. The upshot of the discussions, as made above, is that Mat. Appeal Nos.766, 775 and 805 of 2009 are devoid of any merit. Those appeals are only to be dismissed.

13. Mat. Appeal No.285 of 2011 is filed by the husband against the judgment in O.P.No.1210 of 2009 of the Family Court, Kottayam. He filed the said petition before the Family Court seeking divorce on the ground of cruelty and desertion. The marriage between them was solemnized on 9.2.1979 as per the Hindu religious rites. The husband who was working in a deep sea fishing vessel at the time of marriage changed his avocation, at times, and lastly, he took up the present employment at Cochin as Seamen’s Welfare Officer in Mercantile Marine Department under the Ministry of Shipping. No issues are born in their wedlock. They adopted a boy and he is now aged 22 years. According to him, the wife developed an illicit relationship with one Babu and then started refusing cohabitation with him. In view of the failure on the part of the husband, the petitioner, in bringing in the alleged adulterer as a co-respondent, we do not think it necessary to delve into the allegations raised by him in that regard. The allegation of cruelty and desertion could not be established by the husband, according to the Family Court, and based on such a finding the said petition was dismissed. This appeal is directed against the said judgment.

14. A scanning of the contentions and the evidence adduced by the husband would reveal that essentially it is mental cruelty that was alleged against the wife. According to him, the wife has the habit of sending baseless complaints against him with a view to belittle him before his colleagues and superiors. Exts.A7 and A13 are copies of such complaints sent by the wife to his superior officers. The wife had not disputed the making of Exts.A7 and A13 complaints to his superior officers. There can be no doubt that disclosure of discord or disharmony in the marital life by way of complaints to the superior officers with an intention to belittle the spouse before his superior officers and colleagues cannot be taken lightly especially when the concerned spouse is an officer holding a good post. The contention of the husband is that the Family Court has failed to bestow serious consideration in the matter. In the context of the contentions it is relevant to look in to the said complaints to see whether they would have created intense mental agony and anguish to the husband and satisfy the requirement of the Hindu Marriage Act, 1955, Ext.A7 is the complaint dated 4.7.2007 of the wife to the superior officer of the husband and Ext.P13 is her complaint dated 16.3.2008 addressed to several of his superior officers. Obviously, through both the letters the wife requested the husband’s superior officers to refrain from promoting and transferring him to Chennai wherein she was then residing. In Ext.A7, after referring to the purchase of the properties, she stated that the husband had not spent any amount for the purchase of properties covered by three sale deeds. It was further stated therein that he had foisted criminal cases against herself, her father and sister with a view to appropriate the said properties. She has also attributed cruelty on his part. In Ext.A13 she has reiterated all the allegations and statements made as per Ext.A7 including his attempt to appropriate her properties covered by three sale deeds. Further, in paragraph 4 thereunder it has been stated thus:

“I came to know about many of my husband’s illicit relationship with other ladies. To my horror I accidentally became a witness to his illicit relation with a lady whom I had considered as a very close family friend (this happened in 2005). It was when I confronted and questioned him on the illicit, immoral adulterous relation; the relations between me and my husband turned from bitter to worst. His visits to our home became rare and gradually stopped. The relation between our son and my husband also deteriorated.”

(emphasis supplied)

A perusal of the above extracted portion from Ext.A13 complaint/letter would reveal that she had attributed adultery against him and virtually depicted him as a womanizer. The adultery is alleged to have committed in 2005. In this context, it is to be noted that in Ext.A7 letter she had not raised any such allegations against him. In Ext.A13 letter a well, she had reiterated the request to refrain from promoting and transferring him to Chennai. The wife has filed an objection in the O.P. refuting the allegation of cruelty and desertion. It has been stated therein that their adopted son was studying in Engineering College at Madras and therefore, her presence at Chennai was inevitably necessary. That was assigned as the sole reason for her stay at Madras. According to her, she stayed at Madras with his consent. After living together as man and wife about two decades she attributed a wild allegation that he was incapable to consummate the marriage. If the only reason for her stay at Madras was attributable to the education of their adopted son and if she stayed there with the consent of the husband why she had written Exts.A7 and A13 to the superior officers of the husband, that too, depicting him as an adulterer and womanizer. Conspicuously, such allegations are absent in the objection filed in the O.P. Writing such letters as Exts.A7 and A13 should not have been lightly taken by the Family Court. The status of the parties in the social life, the nature of allegations in such letters/complaints to superior officers etc, are relevant for the purpose of deciding whether the commission of such acts by the concerned spouse amounts to cruelty. He was a Seamen’s Welfare Officer in the Mercantile Marine Department under the Ministry of Shipping. If such letters/complaints were sent sans intention to cause sufferings to the husband and also to belittle him before his colleagues and superiors what else was her motive? Absence of such allegations in the objection makes it more worse. In the totality of the circumstances and going by the contents of the aforesaid letters, as adverted to earlier, we have no hesitation to hold that they were capable of creating and must have created, intense agony and anguish to the husband. They are sufficient to satisfy the element of mental cruelty on the party of the wife. There can be no doubt that consortium and cohabitation form fundamental obligations of matrimony. Refusing to discharge the fundamental obligations of matrimony without a good cause definitely constitutes an intention to desert. Evidently, the wife was requesting his superiors to refrain from promoting and transferring him to Chennai were she was then staying. Despite such requests she stated in the objection that she stayed at Madras with his consent and assigned the reason for her stay as one attributable only to educational purpose of their adopted son. Evidently, she was staying separately more than a couple of years. When the spouses live at different places and one of them did not allow the other for a long time to join and live with him/her, the conduct as a whole of such a spouse disregarding the fundamental obligations of matrimony would certainly constitute an intention to desert. Absence of a good cause makes such intention as one to put an end to cohabitation permanently. In our considered view, the Family Court has failed to bestow serious consideration to such aspects. In the circumstances, the judgment of the Family Court cannot be sustained. In our considered view, the husband has succeeded in establishing cruelty viz., mental cruelty and desertion on the part of the wife. There is no remote chance for a reconcillation.

In the result,

i. Mat. Appeal Nos.766, 775 and 805 of 2009 are dismissed.

ii. Mat. Appeal No.285 of 2011 is allowed vacating the judgment of the Family Court in O.P.No.1210 of 2009 and a decree of divorce dissolving the marriage solemnized on 9.2.1979 between the appellant-husband and the respondent-wife is hereby granted, on and from this date.

iii. Parties will bear their respective costs.