Andhra Pradesh High Court - Amravati

Polisetty Sripadmavathi vs Polisetty Srinivasa Rao Balaji on 25 October, 2024

                                     1




     * THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
                           &
       *THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

                           +C.M.A.No.637 OF 2007
                              %    25.10.2024

# Polisetty Sripadmavati
                                                       ......Appellant
And:

$ Polisetty Srinivasarao @
   Balaji
                                                     ....Respondent.

!Counsel for the appellant                 : Sri G. Rama Gopal

^Counsel for the respondent                 : Sri T.V.S. Prabhakar Rao


<Gist:
>Head Note:
? Cases referred:
1
  AIR 1957 SC 176
2
  (2002) 2 SCC 73
3
  (2022) 5 SCC 459
4
  MANU/AP/0037/2024
5
  2023 SCC OnLine SC 497
6
    2023 SCC OnLine SC 1127
                                 2




           HIGH COURT OF ANDHRA PRADESH

                            ****

                   C.M.A.No.637 OF 2007



DATE OF JUDGMENT PRONOUNCED: 25.10.2024


SUBMITTED FOR APPROVAL:

       THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                                &

        THE HON'BLE SRI JUSTICE NYAPATHY VIJAY


1. Whether Reporters of Local newspapers         Yes/No
   may be allowed to see the Judgments?
2. Whether the copies of judgment may be         Yes/No
   marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the        Yes/No
   fair copy of the Judgment?


                                      ____________________
                                       RAVI NATH TILHARI, J


                                          __________________
                                           NYAPATHY VIJAY,J
                                 3




           THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
                               &
            THE HON'BLE SRI JUSTICE NYAPATHY VIJAY

                     C.M.A.No.637 OF 2007

JUDGMENT:

per the Hon‟ble Sri Justice Ravi Nath Tilhari:-

1. Heard Sri G. Ram Gopal, learned counsel for the appellant

(husband) Sri Siva Nagarjuna. Learned counsel, representing Sri

T.V.S. Prabhakara Rao, learned counsel for the respondent is

present.

2. This appeal under Section 28 of the Hindu Marriage Act,

1955 (for short, "the H.M.Act") has been filed by the wife

challenging the decree of divorce dated 18.06.2007, passed in

O.P.No.47 of 2005 on the file of Court of Senior Civil Judge,

Amalapurm, (in short, the Trial Court) filed by the husband. O.P

was filed under Section 13(1) (ib) of the H.M.Act on the ground of

desertion.

3. Henceforth, parties shall be referred as arrayed in O.P.

4. The case of the petitioner (husband) in O.P was that the

marriage with the respondent was solemnised on 16.11.1996 at

Munipalli village of Uppalaguptam Mandal as per the Hindu Rites

and customs. The marriage was consummated. Parties lived

together for about one month but thereafter they could not live

happily as the differences arose. They started living separately

since 1st Quarter of the year and as a result the wife returned to

her parents deserting the petitioner. The mediation by the elders

and well wishers failed. There was no family life between the

petitioner and the respondent. There was also no possibility of

reunion to lead marital life. The petition for divorce was filed on

such averments stating wilful desertion by the wife and also no

child born to them.

5. The wife filed counter denying the material allegations

made in the petition and submitted that there was no ground to

grant divorce. She pleaded that previously also the husband filed

a divorce petition which was dismissed. She submitted that the

same constituted res judicata. She also pleaded that the

marriage was not consummated due to impotency of the

husband. The demand of dowry by the husband was also

pleaded.

6. The learned trial court framed the following points for

consideration:

"Whether the petitioner is entitled for decree of divorce

as prayed for against the respondent?"

7. In the evidence, the petitioner examined himself as P.W.1.

The respondent examined herself as R.W.1. No documents were

marked on behalf of the parties.

8. The learned trial court recorded that the previous petition

for divorce was dismissed for default. No issues were framed. No

evidence was adduced. That did not operate as res-judicata. The

learned trial court recorded that both the parties were living

separately for the last about 10 to 11 years, as on the date of the

judgment. The trial court further recorded that even on the

evidence of the petitioner-husband, the marriage was not

consummated, for which both the parties were putting blame on

each other. No efforts were made to join. So, under the

circumstances, the trial court held that it was a fit case to grant

divorce. The divorce was granted and the marriage was dissolved

by judgment and decree dated 18.06.2007.

9. Learned counsel for the appellant submitted the only

ground that, without considering the ground of desertion as

contemplated under Section 13(1)(ib) of H.M. Act and recording a

positive finding on desertion, the divorce decree could not be

granted.

10. Learned counsel for the respondent did not advance any

argument. He submitted that the respondent took the bundle

from him long back.

11. We have considered the submissions of the learned

counsel for the appellant, the case of the respondent as raised

before the learned trial court, and perused the material on record.

12. The following points arise for our consideration and

determination:-

i) Whether the desertion was proved so as to grant the decree of divorce?

ii) Whether the judgment of the learned trial court deserves to be maintained or set aside?

13. The divorce petition was filed under Section13(1)(ib) of

H.M. Act.

14. Section 13(1)(ib) of H.M Act reads as under:

13. Divorce

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by decree of divorce on the ground that the other party-

(i)...........

(ia).............

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) to (vii)................

Explanation: in this clause- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder of any other disorder or disability of mind and includes schizophrenia.

(b) the expression "psychopathic disorder" means a persistent disorder of disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment or.;

15. In the aforesaid section the „Explanation‟ makes it very

clear that the desertion means the desertion of the petitioner by

the other party to the marriage is without reasonable cause and

without the consent or against the wish of such party. It also

includes the wilful negligence of the petitioner by the other party

to the marriage.

16. In Bipin Chander Jaisinghbhai Shah vs. Prabhawati1, in

which the expression „desertion‟ as defined under Section 2(b) of

the Bombay Hindu Divorce Act was under consideration, the

Hon‟ble Apex Court held that the quality of permanence is one of

AIR 1957 SC 176

the essential elements which differentiates desertion from wilful

separation. If a spouse abandon the other spouse in a state of

temporary passion, for example, anger or disgust, without

intending permanently to cease cohabitation, it will not amount to

desertion.' 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 (animus deserendi ). Similarly

two elements are essential so far as the deserted spouse is

concerned: (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.

17. Paragraphs 15 to 17 of Bipin Chander Jaisinghbhai Shah

(supra) reads as under:

"15. What is desertion? "Rayden on Divorce" which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:-

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to on end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".

16. The legal position has been admirably summarised in paras. 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.) Vol. 12, in the following words:-

"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. , The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".

17. Thus, the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.' 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 (animus deserendi ). Similarly two elements are essential so far as the deserted spouse is con- cerned: (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 aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.

Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce; under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or-implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three year period and the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bonafide offer of resuming the matrimonial some with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced,, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in

desertion and not the former. Hence it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce' the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson (1) may be referred to:-

"These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution..............."

18. In Savitri Pandey vs. Prem Chandra Pandey2, the

Hon‟ble Apex Court reiterated that the „desertion‟, for the purpose

of seeking divorce under the Act, means the intentional

permanent forsaking and abandonment of one spouse by the

other without that other's consent and without reasonable cause.

Paras 8 to 10 of Savitri Pandey (supra) reads as under:

"8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law

(2002) 2 SCC 73

legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion."

9. Following the decision in Bipinchandra's case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (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 aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.

10. To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by

the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case."

19. Recently, in Debananda Tamuli vs. Kakumoni Kataky3,

on the point of desertion, the Hon‟ble Apex Court held as under:

"7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani vs. Meena ((1964) 4 SCR 331) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976. The said Explanation reads thus:

"13. Divorce.-- (1) ............ 3 [Explanation.--In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the _____________ 3 Substituted by Act 68

(2022) 5 SCC 459

of 1976 (w e f 27-05-1976) marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]"

20. In G. Vamsi Mohan vs. G. Aparna4, also a Coordinate

Bench of this Court has held that desertion of one spouse by the

other is recognized as a ground for divorce under the Act. If a

spouse lives separately from his/her life partner for a period

exceeding two years, it qualifies as desertion. Para 30 of G.

Vamsi Mohan (supra) reads as under:

"30. Desertion of one spouse by the other is recognized as a ground for divorce under the Act. When a spouse lives separately from his/her life partner for a period exceeding two years, it qualifies as desertion. However, if the reason for such separation is harassment or ill-treatment, the one who is accused of such acts cannot take the plea of desertion. It is only when the husband or wife leaves the matrimonial home out of his or her own volition, intending to live separately from the other spouse, that the act of desertion can be said to have taken place. Another aspect is that the ground of desertion cannot be decided based on

MANU/AP/0037/2024

one or two assertions or denials. The circumstances that led to the parties living separately need to be taken into account in entirety."

21. From the aforesaid judgment it is well settled that the

desertion can be established even by drawing inferences based

on the facts brought on record by way of evidence. Whether a

case of desertion is established or not will depend on the peculiar

facts of each case as held in Savitri Pandey (supra), that

desertion may be constructive also which can be inferred from the

attending circumstances and that the question of desertion is a

matter of inference to be drawn from the facts and circumstances

of each case.

22. It is undisputed that at the time of filing of the divorce

petition in the year 2005, the parties were living separately.

As per the husband‟s case, they were living separately since

1997. The learned trial court recorded that the parties were

living separately for the last 10 to 11 years, in the year 2007,

which comes to the year 1997. It has not been asserted

before us that the parties were not living separately for such a

long period, or that either during pendency of O.P or even

after the decree of divorce, and during pendency of the

present appeal any efforts were made by the parties for

settlement or reunion to lead marital life. The marriage was

not consummated as per the case of the wife as also the

husband submitted during examination, which has been

referred by the trial court in its judgment in para No.10. The

parties are living separately as of now for last more than 27 -

28 years. The trial court observed that when the wife is not

willing to join the husband, and the husband is seeking

divorce, the continuance of the marital life is serving no

purpose.

23. Learned counsel for the appellant submitted that the

desertion was not established, and specific finding was not

recorded. We are not convinced. In the facts and

circumstances of the case, as discussed in detail by the

learned trial court in its judgment that after short period of

marriage, the wife was living separately and also did not wish

to join, it cannot be said that there was no desertion. Any

reasonable cause for such separate living for so many long

years, not amounting to desertion, has not been put forward.

Non-consummation of marriage due to the alleged impotency

of the husband could not be proved by any evidence in

corroboration of the evidence of the wife or from any medical

evidence. Any such reasonable cause could also not be

brought to our notice by the learned counsel for the appellant.

In the absence of any such reasonable cause, we are of the

view that long separation with clear case of wife, not willing to

join the husband, is nothing but „desertion‟ covered under

Section 13(1)(ib) of the H.M. Act. Even if a specific finding of

desertion is not recorded by the learned trial court, the entire

discussion in its judgment proves, only desertion and

considering the desertion the decree of divorce was granted. It

cannot be said that the grant of decree by the learned trial

court on the ground of desertion is unjustified.

24. We are of the considered view that the ground for

desertion was made out for the reasons recorded in the facts

and circumstances of the case.

25. Additionally, in Rakesh Raman vs. Kavita5, the married

couples were living separately for last 25 years with multiple court

cases between them, the Hon‟ble Apex Court observed that the

continuation of such a marriage would only mean giving sanction

2023 SCC OnLine SC 497

to cruelty which each is inflicting on the other. Para 21 of Rakesh

Raman (supra) reads as under:

"21. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a „marriage‟ would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock."

26. In Smt Roopa Soni vs. Kamalnarayan Soni6, the parties were

living separately for a decade and half. It was observed that the

marriage did not survive any longer, and the relationship was

2023 SCC OnLine SC 1127

terminated otherwise except by a formal decree of divorce. The status

quo continued, awaiting an approval from the court.

27. We are of the considered view that the ground of desertion

was established and the grant of decree of divorce on such ground

cannot be faulted. Both the points as framed by us stand answered

in the aforesaid terms.

28. We do not find any ground to interfere with the order of

the learned trial court. The appeal is devoid of merit.