Judgment - Desertion - Desertion by Wife

Court: Andhra Pradesh High Court

Bench: JUSTICE S.V. Maruthi & Elipe Dharma Rao

Anagalla Padmalatha Vs. A. Sudershan Rao Decided on 12 November 1999

Law Point:
Wife abandoned company of husband without reasonable cause and filed 498A and CrPC 125, Desertion Proved. Cruelty need not be proved to get decree of divorce if desertion is proved.

JUDGEMENT

1. This civil miscellaneous appeal is filed against the judgment in O.P. No. 1115 of 1995 dated 28.8.1996 on the file of the Family Court, Hyderabad.

2. The wife is the appellant. The husband filed the O.P. under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act for divorce on the grounds of cruelty and desertion.

3. The brief facts of the case are as follows :
The petitioner and the respondent were married on 7.4.1983 as per Hindu rites and customs. After the marriage, they lived together till 1985 and they were blessed with a female child. During the said period, the respondent used to quarrel with the petitioner very often and ill-treated him causing mental and physical agony to the petitioner. In 1985, she went to her parents’ house for delivery. The female child was born on 16.3.1985. The birth of the female child was not informed to the petitioner. On 5.10.1986, there was a mediation by the caste elders, pursuant to which, the respondent joined the petitioner and stayed with him for 2 or 3 months. Thereafter, she went to her parents’ house without the knowledge and consent of the petitioner. Finally, she left the petitioner once for all taking all the gold jewellery etc. She filed a criminal complaint under Sections 498-A and 420-A, I.P.C., which resulted in the acquittal of the petitioner. Thereafter, she also filed MC No. 11 of 1990 on the file of the IV Metropolitan Magistrate, Hyderabad, in which maintenance was already awarded to the respondent as well as the child. Hence the petition for divorce.

4. The respondent filed a counter-affidavit admitting the marriage etc., and the birth of the child and also the mediation by the caste elders on 5.10.1986. She stated that on 19.5.1987, the petitioner and his mother beat the respondent mercilessly and threw her out of their house. Even in the presence of the Panchayat elders, the petitioner ill-treated her. Hence, she had no other alternative except to approach the Criminal Court under Section 498-A, I.P.C. and the Magistrate’s Court claiming maintenance. She is ready and willing to join the matrimonial home and, therefore, the O.P. is liable to be dismissed.

5. The petitioner examined himself as P.W. 1 and filed Exs. A1 to A5; while the respondent examined herself as R.W. 1 and one of her relatives as R.W. 2.

6. On the basis of the evidence, the learned trial Judge found that the petitioner established the grounds of cruelty and desertion and, therefore, he is entitled for divorce. Holding as above, he granted a decree for divorce. Aggrieved by the same, the present appeal is filed by the wife.

7. The main argument of the learned Counsel for the appellant is that neither the ground of cruelty nor the ground of desertion is established by the respondent. Mere filing of a petition under Section 498-A, I.P.C. or under Section 125, Cr. P.C. claiming maintenance, does not amount to cruelty. Further, there is absolutely no evidence that the appellant deserted the respondent. The learned Counsel submitted that though in 1985 she went to her parents’ house, she lived with the respondent till 1987. It is only in 1987 when she was thrown out of the house after beating her by the respondent and his mother, the appellant had to leave the house. Therefore, there is no desertion. In support of his contention, he relied on a decision of the Supreme Court in Lachman v. Meena, AIR 1964 SC 40. The learned Counsel contended that the essence of desertion means the intentional permanent for saking 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. Therefore, the burden of proof is on the respondent to establish that the appellant has forsaken the matrimonial home permanently and abandoned the respondent without his consent and without reasonable cause. The appellant has not left the house without any reasonable cause on her own. On the other hand, she had to left the matrimonial home on account of the beating given by the respondent and his mother. Therefore, the animus to abandon the matrimonial home is absent. He also submitted that there is reasonable cause for leaving the house, as the respondent has driven her out. Therefore, the learned trial Judge is not justified in granting divorce on the grounds of desertion and cruelty.

8. There cannot be any dispute that in a case of divorce on the ground of desertion, it is necessary that the spouse has abandoned the matrimonial company of the other spouse without reasonable cause and without the consent of the other spouse. Therefore, we have to see, on the facts of the present case, whether there is any evidence to establish that the appellant abandoned the matrimonial home without any reasonable cause. In this context, it is necessary to refer to the evidence of P.W. 1 and R.W. 1. The fact that the appellant left the house in 1985 to her parents’ house at the time of delivery, is not in dispute. Thereafter, she did not return to the residence of the respondent. Therefore, at the instance of the respondent, there was a mediation. The respondent, in examination-in-chief, says that his wife deserted him about 13 years back. Since then, she failed to join him, inspite of several efforts made by him and by his well-wishers. There is no cross-examination on this aspect. In other words, the respondent was making efforts to bring her back to his residence and pursuant to the said efforts, there was also a mediation in 1986; whereas there is no evidence that the appellant made any effort to go back to the matrimonial home. In the cross-examination, the appellant admits that after her marriage, she stayed with the respondent for a period of 2 years and in the month of February, 1985, she left the house of the husband and started living with her parents. Thereafter, she did not join the company of the husband. She also admits that she did not intimate to her husband about the birth of the female child and about the cradle ceremony, though she adds that her mother informed them. She further denies that she admitted her mistakes in the Panchayat meeting held in the year 1986 and joined the respondent. She also admits that since 1987, there are no relations between her and her husband and they did not live together. From the evidence of the appellant, it is clear that she herself left the matrimonial home on her own and never made any attempt to go back to the matrimonial home. On the other hand, the husband made an attempt to get her back and succeeded for 2 or 3 months. Thereafter, she again left him and went to her parents’ house.

9. It is true that the averment in the counter is that she was thrown out from the matrimonial home after giving her beating by the respondent and his mother. But, she has not adduced any evidence in support of her plea. In the absence of evidence that she was beaten and thrown out from of the matrimonial home by the respondent and his mother, it is difficult to believe her case that she was thrown out from the matrimonial home by the respondent. Further, the marriage was per-formed in 1983 and she left him in 1987. Thereafter, they never lived together. Therefore, from the evidence, we find that the appellant abandoned the company of the respondent without his consent and without any reasonable cause. We are, therefore, of the view that the learned trial Judge is right in holding that the respondent has established that the appellant has deserted him. Further, the very fact that she filed a petition under Section 498-A, I.P.C. and also under Section 125, Cr.P.C. indicates that the appellant has decided to abandon the matrimonial home permanently.

10. Since we hold that the respondent has proved the ground of desertion, it is not necessary to go into the question as to whether the appellant has treated the respondent with cruelty.

11. It is represented by the learned Counsel for the appellant that the appellant incurred a sum of Rs. 10,000/- towards legal expenses and the respondent may be directed to pay the same to her; while the learned Counsel for the respondent submitted that M.P. No. 696 of 1997 is pending on the file of the Family Court and she can approach the Family Court claiming the expenditure incurred by her. Therefore, the appellant is directed to approach the Family Court by producing necessary evidence and claim the expenditure incurred by her.

12. The CMA is accordingly dismissed. No costs.

C.M.A. dismissed.

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