When cruelty desertion alleged by wife NOT true, wife not caring, living away, she canNOT take advantage of own wrong Wife DENIED divorce !!

This is the sad case of a 56 year old woman and 58 year old male fighting in courts. The lady is seeking divorce and alleging that her husband has been cruel and has deserted her. The lower court dismisses her case. The matter moves to HC. The HC appreciates the arguments and states 

We have given the Hon court’s reasoning with some empahsis / addendum in brackets ()

“….18. So, the evidence of R.W. 1 (husband) is that he never ill-treated the petitioner. P.W. 1 (wife) has clearly admitted that the respondent took keen interest as normal father towards his son and he only used to ask the petitioner for some money and he was in the habit of giving his salary cover to the petitioner. So, it is well-evident that the respondent never ill-treated the petitioner and he was very cordial to the petitioner and the petitioner only acted in an indifferent manner towards the respondent. R, W. 1 further says that when he met with an accident and sustained injuries, the petitioner did not attend to him, P.W. 1 has also stated that at one time, she removed the “Thirumangalyam” as she is employed. R.W. 1 has stated that the petitioner removed her “Mangalyam” and he was upset by it. No Hindu women will be so dare enough to remove the “Thirumangalyam” by herself. Her admission that she removed her “Thirumangalyam” goes to establish her indifferent attitude towards the respondent….”

“….21. On going through the evidence of P.W. 1 and R.W. 1, we are clearly of the view that cruelty as alleged by the petitioner is not true and the petitioner is not entitled to divorce on either of the grounds. The Family Court has carefully analysed the entire evidence and has dismissed the petition. We find no infirmity in the order passed by the Family Court…”

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Madras High Court

Sarada vs V. Satyamurthi on 4 December, 2000

Equivalent citations: I (2001) DMC 210, (2001) 1 MLJ 224

Author: A Subbulakshmy

Bench: P Shanmugam, A Subbulakshmy

JUDGMENT A. Subbulakshmy, J.

1. Unsuccessful petitioner, the wife who filed the petition for divorce on the ground of desertion and cruelty is the appellant herein.

2. The case of the petitioner is that she married the respondent on 26.1.1975 according to Hindu ceremonies and customs and their marriage was also registered in the Hindu Marriage Register maintained by the Marriage Registrar and they lived together at T. Nagar, Madras and then they moved to Defence Colony, Nandambakkam, Madras and a son was born to them on 20.3.1976. The petitioner contends that from 1975 to 1989 the petitioner and the respondent were living together and in the month of December/1986 the respondent deserted the petitioner without any cause and consent of the petitioner and the respondent abandoned his duties and thereafter the petitioner lived with her son in the Defence Colony, Nandambakkam and then she moved to Kasturiba Nagar, Adyar, Madras. The petitioner further contends that the conduct of the respondent is against the wish of the petitioner and there is no possibility of the respondent returning again to matrimonial home and the inhuman attitude and the oppressive conduct of the respondent, extracting heavy and unnecessary work by humiliating the petitioner amounts to cruelty and torture to the petitioner and the respondent is not evincing any interest towards the petitioner and the family. The petitioner further contends that the respondent was in the habit of taking non-vegetarian food and he forced the petitioner to cook and serve the same and thus caused great mental agony and thus the petitioner contends that she is entitled to seek for divorce on the ground of desertion and cruelty.

3. The respondent contends that he only admitted his son at Rishi Valley, Madanapalli, a residential school and he is very much interested in the welfare of his son and the family and only the petitioner who was influenced by her widowed sister Visalam and her brother Radhakrishnan, began to neglect the interest in the family and a major portion of the income of the family was spent for her sister and brother and only the petitioner, her sister and brother created a situation and made impossible for the respondent to stay there and the petitioner only never cared the respondent and forced him to stay away from the house and inspite of her attitude the respondent is keeping touch with the petitioner and he also suggested for fixing a separate house without interference of the petitioner’s sister and others and only the petitioner did not listen to that and the petitioner moved to Adyar in 1989 without informing the respondent and the respondent never deserted the petitioner and the respondent has no intention to desert the family and the cruelty alleged is also a myth.

4. The petition was tried by the Family Court Judge and it was dismissed.

5. Aggrieved against that order, the present appeal is filed by the petitioner/ appellant.

6. Point that arises for consideration in this appeal is whether the petitioner is entitled to divorce on the ground of desertion and cruelty.

7. Learned Counsel for the appellant submitted that the respondent completely deserted the family viz., the appellant and her son and there is no possibility of the appellant living with the respondent and because the respondent deserted the appellant and did not attend to the needs of her son and as the appellant was also asked to prepare non-vegetarian food and the respondent did not participate in the household activities, the appellant was subjected to cruelty by the conduct of the respondent and on these grounds, decree for divorce has to be passed.

8. The appellant is now aged about 56 years and the respondent aged about 58 years. The appellant/petitioner who has been examined as P.W. 1 has spoken in her evidence that the respondent left the matrimonial home in the’ month of December, 1986 and thereafter, he did not return at all and he also did not show any interest to return to the matrimonial home and he also did not call the petitioner to live with him and there is no possibility of joining together. So, the appellant/ petitioner contends that without any reasonable cause and without consent of the petitioner, the respondent left the matrimonial home and so, the respondent completely deserted the petitioner.

9. The respondent who has been examined as R.W. 1 has spoken in his evidence that he never deserted the petitioner and only by mutual agreement their son was sent to Rishi Valley School, Madanapalli. He further says that both the petitioner’s sister Visalam and her brother Radhakrishnan started to stay with the petitioner and the respondent during which time more money was spent for them and when he cautioned the petitioner to be careful in spending money, that resulted in the petitioner ill-treating the respondent. He further says that the petitioner stopped talking to him and she did not serve him food and she did not stay with the respondent during night and she stayed only with her brother and sister in the same house. His evidence shows that the respondent was also met with an accident in December, 1986 and he was injured and while he was at home, the petitioner never attended to him and she ignored him completely and only with the help of his brother he got admitted in the hospital and recovered. R.W. 1 further says that even the suggestion by him to move back to Mahalakshmi Street Flat and to live separately was rejected by the petitioner. The specific evidence of R.W. 1 is that he never deserted the petitioner. The evidence of R.W. 1 is that he was very cordial to his wife and only the petitioner never cared for him.

10. The petitioner as P.W. 1 has also admitted in her evidence that the respondent was always in the habit of giving his salary to her and her salary was also credited in the bank account and the salary of the respondent was utilised to run the household and even for his personal requirements, the respondent had to approach the petitioner for some money. So, even the evidence of P.W. 1 establishes that the entire money i.e. the earnings of both the petitioner and the respondent was available only with the petitioner and not with the respondent. The petitioner had also admitted in her evidence that at times both of them used to go for shopping.

11. So, the conduct of the respondent by giving his entire salary to her and then getting money from her for his personal requirements and also going to shopping together and admitting the child in the Rishi Vailley School by both of them together, all these things cumulatively establish that the respondent had no intention to desert the petitioner and the family and only the petitioner was not amenable to the respondent. Animus deserendi for desertion is completely absent in this case. The allegation of the petitioner that the respondent deserted the petitioner is wholly unsustainable on the evidence of P.W. 1 and R.W. 1 adduced in this case and also on the facts and circumstances of the case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. Counsel for the appellant relies upon a decision in Pawan Kumar v. Chanchal Kumari, 1999 CIV. CR 385, wherein the Punjab and Haryana High Court has held that when the parties lived separately for over 13 years and the husband remarried and the wife is unwilling to join her husband, the marriage is irretrievably broken and divorce can be granted. He also relies upon another decision in Bipinchandra Shah v. Prabhavati, , wherein the Apex Court held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation; and (2) the intention to bring cohabitation permanently to an end and similarly two elements are essential so far as the deserted spouse is concerned i.e., (1) the absence of consent; and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention and desertion is a matter of inference to be drawn from the facts and circumstances of each case.

13. In the decision reported in 1999 CIV. CR 385 cited supra, the facts are the husband re-married and there was, irretrievable breakdown of the marriage and hence, divorce was granted. In the case on hand, no question of re-marriage by the husband and this case is entirely on a different footing and the principles laid down in the said decision cannot be applied to the case on hand. In the case on hand, the oral evidence adduced proves that the petitioner who was living with her sister and brother never cared for the respondent and inspite of the request by the respondent to set up a separate family for themselves in a different place was turned down by the petitioner and the petitioner only did not co-operate with the respondent for running their family smoothly. The evidence proves that the conduct of the petitioner was not conducive for the respondent to live with the petitioner. The petitioner must establish that the respondent deserted her completely. In the proceedings for divorce the party who alleges desertion must prove the offence of desertion.

14. On a perusal of the evidence of P.W. 1 and R.W. 1, I find that there is no ground at all to come to the conclusion that the respondent without any reason or cause deserted the petitioner. Nothing transpires from the evidence that inference can be drawn with regard to desertion on the part of the respondent. The evidence of P.W. 1 and R.W. 1 clearly establishes that there was no intention on the part of the respondent to desert the petitioner and the family and the desertion as alleged by the petitioner is not true. The Trial Court has correctly come to the conclusion in this aspect.

15. With regard to cruelty it is the case of the petitioner that the respondent did not show any interest in the education of the child and the respondent did not participate in the household activities and the respondent extracted more work from the petitioner and he also demanded the petitioner to cook non-vegetarian food. It is the case of the respondent that he was having much interest in the family and himself and the petitioner together admitted the child in the Rishi Valley School.

16. P.W. 1 also admitted in her evidence that her child was studying in the Rishi Valley School and only afterwards the child was transferred to Madras School. P.W. 1 admitted in her evidence that herself and the respondent wanted to give best education to their son and so, they admitted the child in the Rishi Valley School and the respondent also joined with her when the child was admitted in the school. She further admits that at times the respondent used to visit the child and she also visited his son and there were occasions when both of them together visited the child. It seems that the respondent has taken keen interest towards his son’s education as normal father. So, it cannot be stated that the respondent did not evince any interest in the education of his son. The evidence of R.W. 1 is that he took all responsibilities of attending of his son’s needs such as giving him bath, taking him to school and bringing him back from school and also preparing him for music class, etc. He further says that he has also helped the petitioner in the household work and for purchase from the market.

17. The petitioner is working as computer consultant in Shaw Wallace, Madras. The evidence of R.W. 1 is that he helped her in the household work also and in purchases from the market. He would further say that when his sister-in-law and brother-in-law joined his family and stayed with the petitioner and the respondent, the respondent, only cautioned the petitioner to be careful in spending and only the petitioner began to ill-treat him and the petitioner stopped talking with the respondent she did not even call him for taking food and she did not serve him food and she also did not stay with the respondent during night and in contrary, her brother and sister stayed in the same apartment and he also did not demand for any non-vegetarian food.

18. So, the evidence of R.W. 1 is that he never ill-treated the petitioner. P.W. 1 has clearly admitted that the respondent took keen interest as normal father towards his son and he only used to ask the petitioner for some money and he was in the habit of giving his salary cover to the petitioner. So, it is well-evident that the respondent never ill-treated the petitioner and he was very cordial to the petitioner and the petitioner only acted in an indifferent manner towards the respondent. R, W. 1 further says that when he met with an accident and sustained injuries, the petitioner did not attend to him, P.W. 1 has also stated that at one time, she removed the “Thirumangalyam” as she is employed. R.W. 1 has stated that the petitioner removed her “Mangalyam” and he was upset by it. No Hindu women will be so dare enough to remove the “Thirumangalyam” by herself. Her admission that she removed her “Thirumangalyam” goes to establish her indifferent attitude towards the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. Counsel for the appellant submitted that removal of Mangalsutra by wife does not amount to cruelty and to substantiate his contention he relies on the decision in S. Hanumahtha Rao v. S. Ramani, 1999 CIV. CR 730=1 (1999) DMC 628, wherein it has been held that removal of Mangalsutra by wife on the instigation of husband does not constitute cruelty.

20. Instant case stands on a different footing. Removal of Mangalsutra by the wife, the petitioner is not at the instigation of the husband. The categorical admission of P.W. 1 in her evidence is that she removed her “Thirumangalyam” as she no longer wanted it as she is employed. She has further admitted that since October, 1986, she stopped wearing “Thirumangalyam” and she herself removed it. The conduct of the petitioner does not show her as an ideal Hindu woman. Removing Mangalyam by herself of her own accord not at the instance of her husband shows only her indifferent attitude.

21. On going through the evidence of P.W. 1 and R.W. 1, we are clearly of the view that cruelty as alleged by the petitioner is not true and the petitioner is not entitled to divorce on either of the grounds. The Family Court has carefully analysed the entire evidence and has dismissed the petition. We find no infirmity in the order passed by the Family Court.

In the result, the appeal is dismissed. The order passed by the Family Court is confirmed. No costs.

****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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