Sunday, 2 August 2015

Whether husband is entitled to get divorce on ground of desertion when he has not made efforts for restitution of conjugal rights?

 From the careful reading of the written statement of respondent/wife her evidence before the Court, grounds taken in the appeal memo, before the Lower Appellate Court and further the stand taken before this Court is that the respondent/wife is ready for co-
habitation, if the appellant allows the respondent to come to the matrimonial house. Therefore, the stand of the respondent/wife throughout the proceedings is that, she is ready for co-habitation. The Trial Court has totally ignored this statement of the respondent wife.
The Trial Court did not consider at all the contention of the respondent wife that due to harassment and conduct of the appellant/husband, respondent wife was forced to leave  house. From careful perusal of the findings recorded by the Lower Appellate Court, the Lower Appellate Court made each and every efforts and endeavour to find out truth. The Lower Appellate Court has considered entire evidence in detail and held that the husband is not entitled for decree of divorce.
Bombay High Court
Shri Sunil Ramnath Argade vs Sau. Latabai Sunil Argade on 30 March, 2012
Bench: S. S. Shinde
Citation; 2012(4) MHLJ 274 Bom
1. This Second Appeal is filed challenging the judgment and order of the Additional District & Sessions Judge, Sangamner, in R.C.A. No. 71 of 2003. Since the proceedings are arising out of matrimonial dispute, this (2) sa381.06 Court by order dated 08.11.2011 appointed a Mediator under the provisions of section 89 of the C.P.C. Said Mediator upon hearing the parties and giving them opportunity, opined that the settlement between the parties does not appear to be possible.
2. Thereafter, this Court on 06.02.2012 issued notices to the parties informing them that the matter will be heard finally at the admission stage & accordingly the matter was taken up for hearing on 21.03.2012. The parties were given opportunity to file written notes of argument. Accordingly, learned Counsel for the appellant has placed on record notes of arguments accompanied with the judgment of the Supreme Court.
3. The appellant herein filed H.M.P. No. 59 of 2001 for divorce on the ground that since 1998 the respondent wife has deserted him and withdrawn from the society without any just and reasonable cause, so also she has (3) sa381.06 neglected in performing her matrimonial ties.
4. The petition was opposed by the respondent/wife by filing the written statement. It was stated in the said written statement that the respondent/wife made sincere efforts for co-habitation but the petitioner refused for the same. Besides children, the petitioner had no desire to co-habit with her. The petitioner under intoxication used to ill-treat her and was demanding money. In-spite of pacification, the petitioner did not listen and drove the respondent out of the house and since then she is staying at the mercy of her parents.
Other details were also incorporated in the written statement.
5. Upon appreciating the rival contentions, learned Civil Judge, Senior Division, Sangamner, framed as many as four issues for its determination. The first issue that - Does petitioner prove that the respondent has (4) sa381.06 deserted him without sufficient cause for a continuous period of two years, immediately preceding the presentation of the petition? has been answered in the affirmative. Other issues were also framed and ultimately by the judgment and order dated 16.08.2003, the concerned Court decreed the petition. The marriage between the parties was dissolved by decree of divorce.
The petitioner was directed to pay Rs.100/- per month as permanent maintenance to the respondent wife from the date of the order of the concerned Court till she survives or remarries.
6. Being aggrieved by the judgment and order of the Trial Court, the respondent herein preferred R.C.A. No. 71 of 2003 before the Additional District Judge, Sangamner, under section 28 of the Hindu Marriage Act, 1955. In said appeal, after hearing the parties and after taking on record the written statement of the appellant herein, the Lower Appellate Court framed as (5) sa381.06 many as four points for its determination. First point i.e. Whether the husband has proved that the wife has deserted him within the meaning of Section 13 (1) (ib) of the Hindu Marriage Act, 1955, without reasonable cause or excuse? has been answered in the negative. Point No.2 -
Whether the husband is entitled to a decree for divorce?
has also been answered in the negative. The Lower Appellate Court has reversed the findings recorded by the Trial Court. Hence, this appeal is filed by the original petitioner/husband.
7. Learned Counsel appearing for the appellant submits that the respondent/wife without any reason or cause deserted the appellant in the year 1998. She left matrimonial house in the year 1998 and she did not turn up. Therefore, the appellant was constrained to issue notice to the respondent on 29.12.1999 for dissolution of marriage. It is submitted that the marriage between the appellant and respondent was solemnized in the year 1994.
(6) sa381.06 Out of their wedlock one son was born but unfortunately disabled. In the year 1998 the respondent wife was pregnant. She left her matrimonial house and went to her parents house and started to reside there. Though attempts were made, wife never turned up and therefore being fed up with adamant behaviour of the respondent/wife the appellant was constrained to issue notice at Exh.29. It is submitted that while granting the decree, the Trial Court has considered that father of the respondent in unequivocal terms admitted in cross-
examination that after departure of company of the appellant, they never turned up to visit the appellant or disabled son. Even notice dated 29.12.1999 was not answered by the respondent. Negligence on the part of the respondent at the very relevant time led to the Court to arrive at conclusion that there is no desire to resume matrimonial house by the respondent. It is submitted that the Trial Court taking into consideration all the factors and evidence on record had correctly drawn the (7) sa381.06 decree of the dissolution of marriage. Therefore, the Lower Appellate Court was not correct in reversing those findings. It is submitted that the Trial Court has assessed the behaviour of wife whereas the Lower Appellate Court has assessed the behaviour of husband.
Both the Courts have lost sight of the fact about situation. It is admitted that the appellant and respondent are residing separately since 1998. There is 'animus deserendi', which means that intention to co-
habit has permanently come to an end.
8. It is submitted that the approach of the Lower Appellate Court was in the nature of punishing husband which is required to deprecated by applying case of reasonableness and decree of dissolution requires to be confirmed. Learned Counsel also invited my attention to the judgment of the Supreme Court in the case of Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, AIR 2002 S.C.88 and submitted that when the respondent is not (8) sa381.06 expressing desire to join her husband and when the appellant husband has proved that wife is guilty of having deserted him for continuous period of more than two years, the appellant/husband is entitled to decree of judicial separation and in the present case for divorce.
Therefore, relying upon aforesaid pronouncement of the Apex Court and also another judgment of the Supreme Court in the case of Satish Sitole Vs. Ganga, AIR 2008 S.C.
3093, learned Counsel appearing for the appellant would submit that this appeal deserves to be allowed. Learned Counsel placed heavy reliance on the findings recorded by the Trial Court.
9. On the other hand, learned Counsel appearing for the respondent/wife submitted that it is consistent stand of the respondent wife that she is ready for co-
habitation. All the time, she had shown willingness to stay with the appellant/husband. Even in the written statement, which was filed before the Trial Court and (9) sa381.06 before the Lower Appellate Court and also before this Court, it is consistent stand of respondent/wife that she is ready to co-habit and she never denied to stay with the appellant/husband. It is submitted that the contention of the appellant that the respondent deserted the husband in the year 1998 is contrary to record. It is submitted that from perusal of the cross-examination of the appellant/husband and also examination-in-chief of the respondent, it is abundantly clear that from the month of October, 1999 when the appellant had given ill-
treatment to the respondent/wife and she was driven from the house, she had no option but to leave matrimonial house. However, that is only in the month of October, 1999. Therefore, according to learned Counsel appearing for the respondent, the decree passed by the Trial Court is contrary to the provisions of Section 13 (1) (ia) (ib) of the Hindu Marriage Act. From last co-habitation till petition is presented, there should be gap of two years period. Learned Counsel further submitted that the Lower ( 10 ) sa381.06 Appellate Court has considered the evidence of the appellant/husband and other witnesses and thereafter after assessing factual aspects, arguments of the Counsels, reached to the correct conclusion. The findings recorded by the Lower Appellate Court are in consonance with the evidence brought on record. The Trial Court only considered the evidence of the appellant/husband without considering the written statement filed by the respondent/wife, where respondent/wife categorically stated that it was appellant who had given cruel treatment to her.
Ultimately the respondent was forced to leave matrimonial house. Therefore, according to learned Counsel appearing for the respondent wife, this appeal is devoid of any merits. At the cost of repetition, learned Counsel appearing for the respondent/wife would submit that even at this stage, the respondent is ready to go to the matrimonial house for co-habitation and therefore, this appeal may be dismissed.
( 11 ) sa381.06
10. It is submitted that the respondent/wife and also her father have denied any notice by the appellant/husband. It is submitted that the cross-
examination of the husband itself would make it clear that the appellant wanted to re-marry and that is the reason the appellant had harassed the respondent. It is submitted that the appellant is wealthy person. He has many properties adjoining the Sangamner town. Therefore, he can afford to pay maintenance amount as prayed by the respondent/wife. Learned Counsel invited my attention to the findings recorded by the Lower appellate Court and submitted that the Lower Appellate Court has properly appreciated the evidence brought on record. Therefore, there is no substantial question of law which falls for consideration in this Second Appeal. Therefore, this Second Appeal may be dismissed.
11. I have given due consideration to the rival ( 12 ) sa381.06 submissions. From the careful perusal of the judgment of the Civil Judge, Senior Division, Sangamner, it appears that the Court was much influenced by the fact that respondent and her father admit that since the departure of wife from matrimonial house or from the company of the appellant, they did not visit to see the petitioner or disabled son. Upon reading the judgment of the Trial Court in its entirety, it clearly appears that the Trial Court has nowhere considered the submissions of respondent/wife, which reflected either through the written statement or from her oral evidence and evidence of her father before the Court. It is the case of the respondent wife that she was driven from the matrimonial house by the appellant. From careful reading of the judgment of the Trial Court it appears that, the Trial Court has not adverted to the specific contention of the respondent/wife incorporated either in the written statement or in their oral deposition before the Court.
The approach of the Trial Court was almost one sided.
( 13 ) sa381.06 The Trial Court should have discussed oral evidence of the parties, evidence of the husband, his cross-
examination, examination-in-chief of the respondent wife, her cross-examination and also evidence of father of respondent wife. However, it appears that the Civil Judge, Senior Division, Sangamner, failed to do such complete exercise in detail. In-fact, the concerned Court was dealing with the dispute arising out of matrimonial proceedings and therefore it was incumbent upon the Court to discuss entire evidence which was available on record.
12. The Lower Appellate Court has not only considered the documentary evidence placed on record, however, in detail considered the evidence of the appellant, the evidence of respondent wife, evidence of other witnesses and held that the appellant is not entitled for decree of divorce on the ground of desertion.
( 14 ) sa381.06
13. The Lower Appellate Court upon perusal of the cross-examination of the appellant/husband and also cross-examination of respondent/wife, found that if at all there is any desertion or leaving matrimonial house by the respondent/wife, is only from October, 1999. To find out correctness of the findings recorded by the Lower Appellate Court that the respondent/wife left the matrimonial house in October, 1999, I have perused the deposition of the husband, cross-examination and also deposition of the respondent/wife before the Court, and also deposition of other witnesses, and upon such perusal this Court finds that, the findings recorded by the Lower Appellate Court that, last co-habitation or leaving matrimonial house by the respondent wife was in the month of October, 1999, is in consonance with the evidence brought on record. Therefore, to pass decree under section 13 (1) (ib) of the Hindu Marriage Act, the requirement is that respondent (wife or husband as the ( 15 ) sa381.06 case may be) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. However, in the present case, from the perusal of entire evidence on record, as held by the Lower Appellate Court, the respondent/wife left matrimonial house in the month of October, 1999. The notice was given by the appellant/husband in the month of December, 1999, and H.M.P. was filed in the year 2001. Therefore, the Lower Appellate Court in para 12 after discussing the evidence in detail, reached to the conclusion that 'it also cannot be said that wife has deserted the husband for a minimum period of two years immediately preceding the presentation of the petition as contemplated under section 13 (1) (ib) of the Hindu Marriage Act, 1955'.
(emphasis supplied).
14. It is not in dispute that the notice which was issued by the appellant/husband on 29.12.1999 at Exh.28 ( 16 ) sa381.06 was for divorce. In-fact, if it was case of the husband that he made sincere efforts and endeavour to see that the respondent wife comes to the matrimonial house for co-habitation. Therefore, the notice should have been given by the appellant for restitution of conjugal rights. However, strangely, said notice dated 29.12.1999 by the appellant is given for divorce. The findings recorded by the Lower Appellate Court that the stand taken by the respondent wife in the written statement that, the appellant started ill-treating her, since he wanted to remarry is fortified by the admission of the appellant in his cross-examination that he wishes to remarry. In cross-examination of the appellant, question was asked to him that - Have you demanded divorce to get remarry? The answer given by the appellant is "Yes, so also respondent is not willing to co-habit with him".
(emphasis added).
. This piece of evidence is considered by the Lower Appellate Court in the light of contents of the( 17 ) sa381.06 written statement filed by the respondent/wife and the Lower Appellate Court reached to the conclusion that the appellant husband wanted to remarry and that is the reason he forced the respondent/wife to leave matrimonial house.
15. From the careful reading of the written statement of respondent/wife her evidence before the Court, grounds taken in the appeal memo, before the Lower Appellate Court and further the stand taken before this Court is that the respondent/wife is ready for co-
habitation, if the appellant allows the respondent to come to the matrimonial house. Therefore, the stand of the respondent/wife throughout the proceedings is that, she is ready for co-habitation. The Trial Court has totally ignored this statement of the respondent wife.
The Trial Court did not consider at all the contention of the respondent wife that due to harassment and conduct of the appellant/husband, respondent wife was forced to ( 18 ) sa381.06 leave matrimonial house. From careful perusal of the findings recorded by the Lower Appellate Court, the Lower Appellate Court made each and every efforts and endeavour to find out truth. The Lower Appellate Court has considered entire evidence in detail and held that the husband is not entitled for decree of divorce.
16. The statement of learned Counsel appearing for the appellant that since the appellant/husband and respondent/wife are not staying together from the year 1999 till date and therefore decree of divorce should be granted is devoid of any merits and has no substance.
Reliance placed by the learned Counsel for the appellant on the judgment of the Supreme Court in the case of Adhyatma (Supra) is completely misplaced in the facts of this case. In that case, it was revealed from the evidence on record that respondent/wife had gone to her parents' house for birth of child, but after birth of her child when attempts were made by the appellant, his ( 19 ) sa381.06 parents and relations, the wife laid down condition that the appellant should leave in separate house from his parents taking plea that father-in-law had attempted to molest her, which explanation the wife failed to establish. However, in the present case from very beginning it is stand of the respondent wife that she is ready for co-habitation and it is the appellant who under the influence of intoxication used to beat the respondent wife and ultimately the appellant drove the respondent wife from the matrimonial house. Therefore, in the facts of this case, the judgment of the Supreme Court in the case of Adhyatma (Supra) is not applicable.
17. Another decision of the Supreme Court in the case of Satish (Supra) is also not helpful to the appellant. In the first instance, as already observed, in the present case there was no two years' time gap from the date of such alleged desertion by wife immediately preceding the presentation of the petition as ( 20 ) sa381.06 contemplated under section 13 (1) (ib) of the Hindu Marriage Act, 1955. In the present case, the appellant has failed to satisfy the requirement/provisions ofsection 13 (1) (ib) of the Hindu marriage Act, 1955.
Secondly, The Hon'ble Supreme Court is empowered under Article 142 of the Constitution to grant such decree of divorce with adequate provision of alimony. However, powers under Article 142 of the Constitution are not available to this Court.
18. Therefore, taking into consideration the judgment and order passed by the Courts below and other evidence and documents made available for perusal, I am of the considered opinion that the judgment and order passed by the Lower Appellate Court does not call for any interference. The Lower Appellate Court, which is last Court on fact, had made every endeavour to find out truth and the findings recorded by the Lower Appellate Court are in consonance with the evidence brought on record.
                                      ( 21 )                            sa381.06




                                                                       
    There   is   no   perversity   as   such.     Though   the   Counsel 




                                               
appearing for the appellant strenuously contended that the matrimonial ties between the parties have reached up to a level where the it can be called as "break down of marriage". However, it appears to this Court that this is stand of the appellant. From the careful perusal of the entire evidence on record, the appellant has not made sincere efforts or even had not given notice to wife for restitution of conjugal rights, as it is apparent from the cross-examination of the appellant that he had intention to re-marry, as rightly contended by wife in her written statement, which gave cause for the husband to give ill-treatment to the respondent/wife and forced her to leave matrimonial home.
19. Therefore, for the reasons aforesaid, I do not find any substance in the Second Appeal. The Second Appeal deserves to be dismissed and the same is dismissed.
( 22 ) sa381.06
20. Though this Court has dismissed the Second Appeal, that will not preclude the parties from exploring any possibility of further re-union. The record and proceedings be sent back to the concerned Court forthwith.
[S.S. SHINDE, J.] snk/2012/MAR12/sa381.06
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