Prabhamani v. Sathyanandan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936** **Mat.Appeal.No. 872 of 2008 ( )** **------------------------------OP(HMA) 230/2006 of FAMILY COURT, NEDUMANGAD ---------** **APPELLANT/RESPONDENT :** **---------------------------------------** **PRABHAMANI, D/O. MADHAVAN, MARACKAN VILA VEEDU, CHAVADI MUKKU, KADAKKAVOOR DESOM, KADAKKAVOOR VILLAGE.** **BY ADV. SRI.J.JAYAKUMAR** **RESPONDENT/PETITIONER :** **----------------------------------------** **SATHYANANDAN, S/O. GOPALAN, AGED 74 YEARS, K.G.S.BHAVAN, POOVANTHURUTHU VEEDU, CHAVADI MUKKU, KADAKKAVOOR VILLAGE, KADAKKAVOOR DESOM.** **R1 BY SRI.N.DHARMADAN SENIOR ADVOCATE R1 BY ADVS. SMT.D.P.RENU SRI.S.SATHI KUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** **V.K.MOHANAN & ALEXANDER THOMAS, JJ. ------------------------------Mat.Appeal.No.872 of 2008 ------------------------------Dated this the 3[rd] day of July, 2014.** ## **J U D G M E N T** ## **ALEXANDER THOMAS, J.** The appellant herein is the respondent (wife) in O.P. (HMA) No.230/06 on the file of the Family court, Nedumangad. The above said original petition was instituted by the respondent herein (husband) for dissolving the marriage between the parties on the ground of desertion in terms of the provisions of the Hindu Marriage Act. The respondent herein (husband) urged before the Court below that the marriage between the parties was solemnised on 9.9.1978 in accordance with the Hindu rites and customs and that they resided together as husband and wife in the respondent's house initially and that two male children were born out of the said wedlock. It is his case that right from the beginning, the marital life was disrupted and that the appellant (wife) was arrogant and adamant and **Mat.Appeal.No.872 of 2008** 2 that it has disturbed the peaceful life in the family and that the relationship between the parties was totally strained from 1983 onwards. That the appellant wife neglected to discharge her conjugal rights and obligations to the husband and without the consent of the husband, she left his house along with her children and started living with her parents from 1986 onwards. That the respondent (husband) has taken efforts on several occasions, through mediators to persuade the wife to come and reside with him and that she has not obliged. There were litigations between the parties for maintenance before the Magistrate Court as well as before the Sub Court concerned and later there were also litigations for custody of the children. It is his specific case that the appellant (wife), after deserting him, was living in her parents' house, which was hardly 50 mtrs. away from his house and that when he became sick and bed ridden in 1986, she had not even bothered to come and visit him or to take any steps to patch-up the relationship. Again in March 2004, the respondent **Mat.Appeal.No.872 of 2008** 3 (husband) had suffered a serious heart attack and was hospitalised in the Government Medical College, Thiruvananthapuram, and had undergone treatment for a long time. That in this occasion also, the appellant (wife) did not attend to the needs of the husband and had not taken any steps for a re-union. With these averments and contentions, the respondent (husband) had instituted the original petition before the court below seeking divorce on the ground of desertion. 2. The appellant (wife) resisted the above said pleas and allegations of the respondent before the court below. Her main contention was that the husband used to manhandle her brutally after consuming liquor and that he had misappropriated 20 sovereigns of gold ornaments and cash of Rs.28,000/- and suo motu deserted the appellant (wife). That the maintenance proceedings was decreed in her favour by the Sub court concerned and that the husband has not taken any steps for reconciliation and she was willing and ready to live together with the husband and **Mat.Appeal.No.872 of 2008** 4 that it was due to the adamant stand of the husband that the re-union was hindered. She submitted that she was not willing for divorce. 3. After allowing both the parties to adduce evidence, the court below considered and appreciated the evidence in detail with respect to the issue raised as to the entitlement of the husband to seek decree of divorce on the ground of desertion. 4. The respondent herein (husband) rendered evidence as CPW1. After appreciating the evidence in detail, the court below found that the appellant (wife) had deserted the respondent (husband) and the husband is entitled for divorce, as prayed for by him. It is challenging this judgment dated 24.7.2008 of the Family Court, Nedumangad, in O.P.(HMA) No.230/06, that this appeal has been instituted by the wife. 5. We have heard the counsel on both sides in detail and we have also perused through the depositions of the witnesses and also through the documents marked in the **Mat.Appeal.No.872 of 2008** 5 trial before the court below. The appellant could not persuade us to come to any finding that the appreciation of the evidence by the court below is in any way wrong or perverse or that the finding is factually and legally incorrect. On going through the evidence, we find that in the year 1986, the respondent (husband) was hospitalised and that the wife had not bothered to take any steps either to visit or to patch up the relationship in any manner. Further, we note that the respondent (husband) was hospitalised due to serious heart attack in March 2004 and though the evidence has been rendered by the appellant (wife) stating that she had visited the premises of the hospital, we find, on appreciation of evidence tendered by both sides, that the said visit of the appellant (wife) was only ritualistic in nature or rather casual, and no action was forthcoming from her part to atleast sympathise with the husband in the great crisis faced by him as a cardiac-attack patient. If the respondent (wife) was serious, as she has now urged before this Court, that she had also tried for a **Mat.Appeal.No.872 of 2008** 6 re-union, at least in March 2004, she could have taken some steps to patch up the situation by rising to the occasion. By going through the evidence, we find that no such steps had been taken and therefore we are of the considered opinion that, this conduct of the appellant (wife) goes to falsify her case that it was the husband who had deserted her. We also noted from the evidence tendered by the respondent (husband) that he had taken some steps to visit the appellant (wife) in her residence, so as to see his two sons and that at that time due to a complaint instigated by the wife, the police had intervened in the matter and had warned the respondent not to visit the wife's residence. These aspects are not in any way seriously controverted by the appellant (wife) in the cross examination of the respondent herein (husband). So, atleast from the point of view of these three uncontroverted pieces of evidence regarding the conduct of the wife in the year 1986 and 2004, when the husband became very sick and bed ridden, and was hospitalised, and her action in preventing the **Mat.Appeal.No.872 of 2008** 7 husband from visiting his children by giving complaint to the police etc. would clearly show that the court below was justified in coming into the conclusion that the wife was mainly responsible for the present situation, whereby she had deserted the husband. We also see that the main defence plea taken up by the wife to justify her conduct in living separately from her husband is that the husband was a heavy drunkard and that he had cruelly treated her by misappropriating her gold ornaments and cash. But on going through the evidence, we find that the wife has not established even remotely any of these allegations in her evidence. No independent evidence has been adduced by the wife to make any effort in this direction. Hence, these allegations of the wife that he is a drunkard and had taken away her gold ornaments and cash etc., are clearly not proved before the court below. In the circumstances, we can only infer that the above said plea set up by the wife to defend her action in residing separately from her husband by going over and residing in her parental home, is totally **Mat.Appeal.No.872 of 2008** 8 without any bona fides. Going by the overall quality of evidence adduced in this case, we are constrained to hold that the wife has deserted the husband, without any reasonable justification. Moreover, the wife was residing separately from the husband in her parental home, which was hardly 50 metres away. If the wife was sincere about her claim that she always wished a re-union, she could have easily taken steps to patch up with the husband. 6. It may be noted that the provisions in Section 13 (1)(ib) of the Hindu Marriage Act, 1955 provide that any marriage solemnised, whether before or after commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The explanation appended under Section 13(1) of the Act reads thus: **Mat.Appeal.No.872 of 2008** 9 “In this sub-section, the expression, 'desertion' means the desertion of the petitioner by the other party to the 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.” The essence of matrimonial misconduct of 'desertion' to constitute a valid ground for dissolution of the marriage, is the forsaking and abandonment of one's spouse by the other without reasonable cause and without the consent or against the wish of the other. It is often said that 'desertion' is 'a withdrawal not from a place, but from a state of things'. It is now well established that the essential ingredients of this matrimonial offence in order to furnish a ground for dissolution of marriage are the following; viz., (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end - animus deserendi; (iii) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. **Mat.Appeal.No.872 of 2008** 10 The explanation appended under Section 13(1) of the Hindu Marriage Act gives the meaning of the expression, 'desertion'. The said explanation has widened the definition of desertion to include 'wilful neglect' of the petitioner spouse by the respondent spouse and such desertion must be without reasonable cause and without the consent or against the wish of the petitioner spouse and that wilful neglect of one spouse by the other is desertion within the meaning of this explanation. In the case **Geeta Mangtani v. Jagdish Mangtani** , reported in AIR 2005 SC 3508, the Apex Court has held that when the respondent spouse has chosen to adopt a course of conduct which proves animus deserendi amounting to willful neglect and establishes abandonment, desertion would be proved. In the case **Bipin Chander v. Prabhawati** reported in AIR 1957 SC 176, the Apex Court, after posing the issue as to, 'What is desertion?', observed that the legal position had been cogently summarised in Halsbury's Laws of England. In this regard, reference could profitably be made to the position **Mat.Appeal.No.872 of 2008** 11 of law referred to in Halsbury's Laws of England, 4[th] edition, vol.13, para 576-77, which reads as follows: “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 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 exist independently of its duration, but as a ground for ... it must exist for a period of at least ... years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge of the answer. Desertion ... differs from the statutory grounds on adultery and cruelty in that the offence **Mat.Appeal.No.872 of 2008** 12 founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.” The Supreme Court in the aforementioned **Bipin Chander's case** reported in AIR 1957 SC 176 summed up some important principles that will afford guidance in cases arising under the Act and it was pointed out that desertion is a matter of inference to be drawn from the facts and circumstances of each case and that inferences may be drawn from certain facts, which may not in another case be capable of leading to the same inference. That in other words, 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 only actual acts of separation. As the matrimonial offence of desertion commences when the factum of separation and the animus deserendi co-exist, the essential question always is once there has been a separation, whether that act could be attributable to an animus deserendi. It is not always necessary that both the elements of separation and animus **Mat.Appeal.No.872 of 2008** 13 deserendi should commence at the same time, for the factum of separation may have commenced initially without the necessary animus and the latter (viz., animus) may have arisen at a subsequent point of time or it may be that separation and animus deserendi may coincide at the same point of time. 7. Viewing the factual evidence adduced in this case in the framework of the aforementioned legal position, we are of the considered opinion that the court below was perfectly justified to hold that the elements of separation as well as animus deserendi alleged by the husband against the wife stand proved in the instant divorce proceedings adjudicated before the court below. We are of the opinion that the factum of separation and animus deserendi are well proved in this case, going by the preponderance of probabilities that were established on the basis of evidence adduced in this case. 8. Faced with this situation, the learned counsel for the appellant submits that the court below has rendered **Mat.Appeal.No.872 of 2008** 14 some findings that the marriage has irretrievably broken down and further that irretrievable break down of marriage is not a ground for divorce, recognised under Section 13 of the Hindu Marriage Act and therefore the court below went wrong in allowing the plea of divorce. In this regard, the learned counsel for the respondent relies on the decisions of the Apex Court rendered in **Vishnu Datt Sharma Vs. Manju Sharma (2009(6) SCC 379)** and also in the case of **Anil Kumar Jain Vs. Maya Jain [(2009)10 Supreme Court Cases 415]** . After considering the above said contentions of the appellant, we are afraid that, we are not prepared to accept the above submissions of the appellant (wife). The above said decisions of the Apex Court are not applicable to the facts of this case. On an over all appreciation of evidence, we are of the opinion that the respondent herein (husband) has established a case of desertion on the part of the appellant (wife). We also note that the respondent herein (husband) is now aged 81 and the appellant is about 66 years of age. The learned counsel **Mat.Appeal.No.872 of 2008** 15 for the respondent herein (husband) has submitted that he has suffered for the last more than 30 years on account of desertion of the wife and at this long distance of time, he is not interested for any re-union, as it is practically impossible to have a re-union. In the light of these aspects, we hold that no interference is called for in the impugned judgment rendered by the court below in granting the plea of divorce of the respondent. We find that the contentions of the appellant are devoid of any merit and accordingly we dismiss this Matrimonial Appeal. Sd/- ## **V.K.MOHANAN, Judge** Sd/- ## **ALEXANDER THOMAS, Judge** ami/ //True copy// ## P.A. to Judge