Madras High Court
Tmt.Manju @ Sumathi vs Thiru.A.Kailasam on 14 October, 2022
C.M.S.A.No.72 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.10.2022
CORAM
THE HON'BLE Ms.JUSTICE P.T.ASHA
C.M.S.A.No.72 of 2021
and
C.M.P.No.18081 of 2021
Tmt.Manju @ Sumathi ... Appellant
Vs
Thiru.A.Kailasam ... Respondent
PRAYER : This Civil Miscellaneous Second Appeal is filed under
Section 100 of Civil Procedure Code, against the Judgment and Decree
dated 01.02.2021 made in C.M.A.No.02 of 2020 on the file of the III
Additional District and Sessions Court, Erode at Gobichettipalayam,
confirming the Judgment and Decree dated 18.12.2019 made in
H.M.O.P.No.09 of 2015 on the file of the Sub-Court, Gobichettipalayam.
For Appellant : Mr.D.Gopal
For Respondent : Mr.A.Sundaravadanan
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C.M.S.A.No.72 of 2021
JUDGMENT
The unsuccessful wife before the Courts below has filed this appeal
and the same has been admitted on the following substantial questions of
law:
''Whether the Judgment of the First Appellate Court
is vitiated by its failure to consider the entire evidence on
record and apply correct principles of law ?''
2. The facts in brief are as follows:
The respondent herein had filed H.M.O.P.No.9 of 2015 on the file
of the Subordinate Court, Gobichettipalayam seeking dissolution of
marriage between him and the appellant/wife conducted on 05.09.2010.
The divorce has been filed on the ground of desertion. It is the contention
of the respondent/husband that he and the appellant/wife has got married
on 05.09.2010 and thereafter, they had set up matrimonial home in the
respondent's parental house. The parents of the appellant/wife had taken
her back to their house for confinement in August 2011. After the birth of
his daughter, the respondent/husband was not permitted to visit the house
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of the appellant/wife and see the child. He was shouted at by the
appellant's father and sent back. Thereafter, there was an attempt to
compromise the dispute, two persons namely one Govindan and Gopal did
panchayat but the appellant refused to live with him. Thereafter,
appellant/wife had lodged a complaint before the All Woman Police
Station on 29.08.2012. Therefore, the respondent/husband issued a legal
notice to the appellant/wife on 30.11.2012 which was received by her on
01.12.2012. Despite receipt of the notice the appellant had not come
forward to live with the respondent and also not sent any reply. Therefore,
since she had deserted the respondent/husband, he has sought divorce.
3. The appellant/wife herein had filed a counter denying the
allegations contained in the petition and stating that she is always ready
and willing to resume her matrimonial life with the respondent/husband
along with the minor child Dharaniya. She would state that it was the
respondent/husband who had neglected her and failed to grant her her
conjugal rights. She has not denied each and every allegations that has
been made in the petition as it could ruin her chances for resuming her
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C.M.S.A.No.72 of 2021
matrimonial life with the respondent. The appellant/wife had in very clear
terms stated that if the respondent/husband was ready to come forward to
take her and her daughter, she was willing to go with him within a minute
of the offer being made. The appellant has stated in her counter as follows:
''kDtpw;F tpah$;$pa K:yk; ,y;iy ,e;j
vjph;kDjhuiu kDjhuh;. vjph;kDjhuhpd; bgw;nwhh;
tPl;oypUe;J clnd miHj;Jr; brd;why; ,e;j
vjph;kDjhuh; jd; FHe;ija[ld; kDjhuUld;
re;njhrkhf ,y;yu thH;f;if elj;jj; jahuhf
cs;shh;/''
4. The respondent herein had examined himself as PW1 and one
Kittan as PW2 and marked Exs.A1 to A4. On the side of the appellants,
the appellant had examined herself as RW1 and marked Exs.R1 to R6.
5. The learned Subordinate Judge, Gobichettipalayam by Judgment
dated 18.12.2019 had allowed the petition on the ground that the appellant
herein/wife had failed to respond to all the steps that has been taken by the
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C.M.S.A.No.72 of 2021
respondent/husband to re-unite with her. Aggrieved by the said judgment,
the appellant herein had filed an appeal before the III Additional District
and Sessions Judge, Erode at Gobichettipalayam in C.M.A.No.02 of 2020.
The learned Judge, by his judgment dated 01.02.2021, was pleased to
dismiss the appeal and confirmed the judgment and decree of the Sub-
Court, Gobichettipalayam. The learned Judge had observed that the
appellant herein has not denied the allegations contained in the petition
filed for divorce and therefore, it has to be presumed that the statement
made by the respondent/husband was true. Both the Courts below have
taken note of the fact that the appellant/wife and respondent/husband have
been living away from each other for over 8 years and they would find
fault with the appellant/wife for not taking steps to re-unite with the
respondent/husband and since the marriage is irretrievably broken down
the decree for divorce was granted. The Courts below have held that the
appellant/wife has been living away from the respondent/husband without
any reason and therefore, desertion has been proved. Challenging the
order, the appellant/wife is before this Court.
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6. Heard the learned counsel on either side.
7. The allegations of desertion made by the respondent/husband are
as follows:
a) In the month of August 2011, the appellant had been taken to her
parental home for confinement and thereafter, the appellant had not
contacted the respondent/husband either by phone or otherwise and the
attempts of the respondent/husband to speak to the appellant has been
rebuked.
2) The birth of the child was not informed to the
respondent/husband and when the respondent/husband had visited the
appellant/wife's home, he had been ill-treated by his in-laws and informed
that he could not come back to their house.
3) That the wife had stated that the child was not his child. On
29.08.2012, the appellant/wife had given a police complaint against the
respondent/husband before the All Women Police Station,
Gobichettipalayam.
4) After the legal notice had been issued by the respondent /
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husband, the appellant/wife had filed M.C.No.31 of 2012 and the
appellant/wife has been living away from the respondent/husband from
August 2011.
8. The counter has been filed in which, the appellant/wife has stated
that she wants to live with the respondent/husband and it is the
respondent/husband who wants to leave the matrimonial home. The
appellant has stated that the minute the respondent/husband would come
and take her from her parental home, she is ready to re-unite with the
respondent/husband.
9. The respondent herein had earlier filed H.M.O.P.No.114 of 2012
for the very same relief. Even in that application, the cause of action is that
the appellant/wife has left her matrimonial home in August 2011 and
thereafter, she has not re-joined with the respondent/husband. The birth
certificate of the daughter Dharaniya would show that the child was born
on 15.7.2011. Therefore, the contention that the appellant/wife has walked
out of her matrimonial home in the month of August 2011 appears to be a
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C.M.S.A.No.72 of 2021
total false statement. The appellant/wife even according to the respondent
had been taken her to their parental home only for confinement and
therefore, there was no question of the appellant/wife deserting the
respondent/husband. Thereafter, there is no action taken by the respondent
to bring back the child and mother to the matrimonial home after the
child's birth. In fact, after the birth of the child, the respondent / husband
had issued a legal notice under Ex.B1 dated 30.11.2012, wherein he had
made a statement that the appellant/wife was in the habit of going to her
parental home and staying there for days together and it was the
respondent/husband who had to go and bring her back. Even in the legal
notice dated 30.11.2012, the respondent/husband has stated that the
appellant/wife had left the matrimonial home in the month of August 2011.
This statement has been carried over in the earlier H.M.O.P.No.114 of
2012 as also the present petition for divorce. Therefore, the statement
cannot be considered a over sight. The cause of action itself is that the
appellant/wife had left her matrimonial home in the month of August 2011
and had not returned. The respondent/husband in his statement had stated
that there were mediation talks in the presence of panchayatdars Govindan
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and Gopal, however, these two witnesses have not been examined on the
side of the respondent/husband. The respondent/husband in his cross
examination has clearly and categorically stated as follows:
''jw;nghJk; ehd; bra;j bfhLikfis
kwe;J vd; kidtp jd; FHe;ija[ld; vd;Dld;
nru;eJ
; thH jahuh cs;shh; vd;why; rupay;y/
ehd; mth;fis miHj;Jg;nghf jahuhf ,y;iy/
kdRk.; kdRk; xj;Jtuhjjhy; vd; kidtpa[ld;
vd;dhy; nru;eJ
; thH KoahJ/''
10. Therefore, the intention of the respondent/husband is clearly
evident and coupled with the fact that he is not ready to bring back the
appellant/wife and his child, the same would clearly prove that it is the
respondent/husband who is not willing to reunite with his wife and child.
The respondent/husband who had contended that the settlement talks had
been conducted in the presence of Govindan and Gopal to request the
appellant/wife to return to her matrimonial home, had not examined these
two persons. Therefore, the statement remains only in paper which has not
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been proved. Further, the respondent/husband has not taken any steps to a
petition for filing of restitution of conjugal rights but had issued a notice
calling upon the appellant/wife to return to her matrimonial home within
seven days failing which she was threatened with further proceedings. This
threat has been followed up immediately by the respondent/husband by
filing H.M.O.P.114 of 2012 which is for a divorce on the ground of
desertion. The cause of action pleaded by the respondent/husband appears
to be false since the child was born in month of July 2011 and therefore,
there is no question of the appellant/wife deserting him in the month of
August 2011. The Courts below have erred in fastening the responsibility
on the wife to take steps to resume cohabit with her husband without
examining the conduct of the respondent/husband. Though the
respondent/husband has stated that he has taken steps, the same has not
been proved and the Court cannot rely only upon the ipsi-dixit of the
respondent to believe the said contention. The judgment relied upon by the
appellant counsel would apply to the facts of the above case in the case of
Ravi Kumar vs. Julmidevi reported in (2010) 4 SCC 476, the Hon'ble
Supreme Court has stated as follows:
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C.M.S.A.No.72 of 2021
''13.It may be noted that only after the amendment
of the said Act by the amending Act 68 of 1976, desertion
per se became a ground for divorce. On the question of
desertion, the High Court held that in order to prove a
case of desertion, the party alleging desertion must not
only prove that the other spouse was living separately but
also must prove that there is an animus deserendi on the
part of the wife and the husband must prove that he has
not conducted himself in a way which furnishes
reasonable cause for the wife to stay away from the
matrimonial home.''
11. A Division Bench of this Court in the case of V.Usha Devi vs.
G.Dayalanathan reported in 2017 SCC OnLine Mad 21257 had also held
as follows:
''24. The Honourable Apex Court and our High
Court in plethora of Judgments has held that for
establishing the claim of ''desertion'', so far as the
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deserting spouse is concerned, two essential conditions
must be there viz., (i) the factum of separation; and (ii)
the intention to bring cohabitation permanently to an
end (animus deserendi). Similarly, two elements are
essential so far as the deserted spouse is concerned: (i)
the absence of consent; and (ii) absence of conduct
giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention
aforesaid. Thus, under Section 13(1)(i-b) of the Hindu
Marriage Act, the petitioner who seeks for divorce has to
prove (i) that there was desertion for a continuous
period of two years immediately preceding the
presentation of the petition; (ii) the desertion was
without reasonable cause and without the consent or
against the wish of the petitioner. Further, heavy burden
is cast upon the petitioner who seeks relief of divorce on
the ground of desertion to prove four essential
conditions viz., (i) factum of separation; (ii) animus
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deserendi; (iii) absence of any or her consent; and (iv)
absence of his or her conduct giving reasonable cause to
desert the spouse to leave the matrimonial home. It is
necessary for the petitioner to establish that during all the
period that there has been a desertion, petitioner must
affirm that he/she was ready and willing to resume the
married life. Offence of desertion must be proved beyond
any reasonable doubt and as a rule of prudence evidence
of the petitioner is to be corroborated. In the light of the
above well settled principles, it is to be seen whether
respondent/husband has discharged his burden of proof
establishing that appellant /wife had no reasonable cause
to leave the matrimonial home.''
12. In the instant case, these contentions have not been proved and
on the contrary, animus deserendi is on the part of the husband who in his
cross examination had clearly and categorically stated that he has no desire
to continue the matrimonial life with his wife.
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13. In the result, this Civil Miscellaneous Second Appeal is allowed
and the Judgment and Decree dated 01.02.2021 made in C.M.A.No.02 of
2020 on the file of the III Additional District and Sessions Court, Erode at
Gobichettipalayam, confirming the Judgment and Decree dated 18.12.2019
made in H.M.O.P.No.09 of 2015 on the file of the Sub-Court,
Gobichettipalayam are set aside. No costs. Consequently, connected
miscellaneous petition is closed.
14.10.2022
Index:Yes / No
Speaking Order : Yes /No
ssn
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C.M.S.A.No.72 of 2021
To
1. The III Additional District and Sessions Court,
Erode at Gobichettipalayam.
2. The Sub-Court,
Gobichettipalayam.
P.T.ASHA, J.,
ssn
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C.M.S.A.No.72 of 2021
C.M.S.A.No.72 of 2021
and
C.M.P.No.18081 of 2021
14.10.2022
https://www.mhc.tn.gov.in/judis
