Further, it can be seen that the Family Court has gone in greater detail regarding the instances of mental cruelty, by relying upon the decision of the Hon'ble Apex Court and held that if there is refusal on the part of the either spouse to have intercourse with other spouse for a considerable period without there being any physical incapacity or valid reason, it may amount to mental cruelty to the other spouse. But, in the case on hand, it is undisputed inasmuch as the appellant himself has admitted even in his cross-examination that he led marital life with the respondent wife for about one year nine months after marriage. That means, the marriage between appellant and respondent consummated and they cohabited. Simply because the respondent was unable to conceive, may not be a ground for the appellant to urge that her inability to conceive amounted to mental cruelty. Admittedly, they led marital life for about one year nine months and never complained that she was unfit for sexual intercourse. Further, there is no such allegation made either in the petition or in the affidavit. Further, the appellant also never branded the respondent wife as an impotent person nor filed any petition seeking nullity of the marriage on the ground of her impotency. Therefore, the Family Court observed that mere barrenness and sterility would not amount to impotency. Impotence means incapacity for accomplishing the act of sexual intercourse. Impotency has to be distinguished from sterility associated with it. Further, the Family Court observed that even though the respondent was not able to conceive due to dis-function of the ovaries, the appellant was capable of having sexual intercourse, though not bearing children. By the use of the word 'impotency', the legislature did not intend to bring in the idea sterility or incapacity of conception. Impotency in this connection signifies incapacity to have normal sexual intercourse. Therefore, the Family Court came to the conclusion that even though the respondent wife appears to be having some problem of nonfunctional ovaries, there was no congenital abnormality of the vagina. Therefore, it cannot be held to be ground for divorce, on the ground of cruelty, as the respondent never denied the appellant the conjugal bliss and they led marital life for about one year nine months and absolutely there was no complaint against the respondent about her incapacity to provide him marital bliss.
M.F.A. No. 1044 of 2011 (FC)
Family - Mental Cruelty -Divorce - Section 23 1(a) of Hindu Marriage Act, 1955 (Act) - Appeal was filed against order passed by Family Court, dismissing Petition filed by Appellant seeking relief of decree of divorce from Respondent/wife, on grounds of cruelty and desertion - Whether medical disorder can be a ground for divorce under section 23 1(a) -Whether medical disorder can be termed as mental cruelty - Held, medical disorder in a person could not be treated to be mental cruelty or desertion - Appellant failed to adduce any oral evidence of his family members to substantiate same nor he established same by adducing any independent witnesses - Marriage between Appellant and Respondent consummated and they cohabited for about one year nine months - Merely because Respondent had some minor medical problem and was not immediately capable to conceive, it could not be presumed that said problem was a permanent one and on that ground, Appellant could not take advantage of it and file Petition for a decree of divorce on grounds of cruelty and desertion - Family Court observed that mere barrenness and sterility would not amount to impotency - Some problem of nonfunctional ovaries, could not be held to be ground for divorce, on ground of cruelty, as Respondent never denied Appellant the conjugal bliss and they led marital life for about one year nine months and there was no complaint against Respondent about her incapacity to provide him marital bliss - Family Court observed that Appellant failed to prove factum of desertion and also animus deserendi as it was established that he himself was responsible for keeping his wife away from him and further never bothered to take her back to matrimonial home and failed to lead marital life with her - Since Appellant was trying to take advantage of his own wrong and hence he was legally not entitled to any relief as provided under Section 23 1(a) of Act - Appellant failed to make out a case for granting a decree of divorce, by setting aside impugned order and hence, there was no justification to grant relief sought in Appeal - Appeal dismissed
N.K. Patil , J.
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AIR2013Kant41, 2013(1) AKR 377, 2012(5)KarLJ567;AIR 2013 karnataka 41
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Decided On: 31.05.2012
Appellants: Sri. Uma Mahesh, S/o. Late Subbaiah
Vs.
Respondent: Smt. Nethravathi, D/o. Late Rangaswamy,
Vs.
Respondent: Smt. Nethravathi, D/o. Late Rangaswamy,
Hon'ble Judges/Coram:
Hon'ble Mr. JusticeN.K. Patil and Hon'ble Mr. Justice B.V. Pinto
Hon'ble Mr. Justice
JUDGMENT
1. This appeal arises out of the impugned judgment and order dated 18th December 2010, passed in M.C. No. 241/2008, by the learned Judge, Family Court, Mysore, dismissing the petition filed by appellant, under Section 13(1) (1-a) and (1-b) of Hindu Marriage Act, on grounds of cruelty and desertion. The brief facts of the case on hand as set out in the petition are that, the appellant and respondent are husband and wife and their marriage was solemnized on 4th May 2003 at Pandit Narayan Choultry, Mysore, as per the Hindu customs prevailing in their community. Thereafter, the respondent joined the company of the appellant and they lived together as husband and wife in the matrimonial home. The respondent lived with the appellant. till about two and a half years prior to filing of the petition.
2. Be that as it may, it is the specific case of the appellant that, when the respondent failed to beget children, she deserted him on her own will and volition and started staying in the house of her parents at Nanjangud and never bothered to return to the matrimonial home to lead marital life with him. It is the further case of the appellant that his wife is suffering from serious physical disorder pertaining to her reproductive system and in fact, she was subjected to thorough medical check-up and investigation by expert Doctors and according to the opinion of the Doctors, the respondent is unable to bear children and she is not exhibiting any signs of attaining age of puberty and not undergoing regular menstrual cycle every month. It is the allegation of the appellant that though the respondent and her parents were aware of the inherent defect suffered by the respondent, they have played fraud on him and through misrepresentation and suppression of the fact that, she had not attained puberty and not undergoing monthly menstrual cycle, performed her marriage with him, and thereby cheated him. Further, it is his case that the respondent from the day she joined him in the matrimonial home, started behaving in an indifferent manner and she used to show hostile attitude towards him and his family members and never treated him and his family members with love and affection. In fact, a panchayat was also convened in this regard and according to the appellant, the panchayatdars and other close relatives who were present in the panchayath have taken the respondent and her family members to task for having suppressed the inherent defect from which the respondent is suffering from and for performing her marriage with the appellant by suppressing the said inherent defect. The appellant's further case is that the respondent and her mother suffered humiliation in the presence of the panchayatdars and having admitted the fact that her daughter had not attained puberty and not undergoing monthly menstrual cycle, admitted that she has suppressed that fact, while performing the marriage of the respondent with the appellant. Further, the mother of the respondent took the respondent to her house on the date of the panchayat itself i.e. during December 2005 and since then, the respondent is staying with her mother in the house of her parents and there is no sort of any cohabitation between him and the respondent since then and the martial relationship between him and the respondent has been broken down. irretrievably and there is no chance and possibility of reunion or resumption of the marital relationship between them.
3. When things stood thus, it is stated that the respondent, in order to harass him and to take vengeance against the appellant, lodged a false complaint before Sadana Salaha Kendra attached to the Police Department and the appellant was summoned by the said Sadana Salaha Kendra, but they never allowed him to speak and on the other hand, threatened him that, they would prosecute him under false charges if he fails to agree to take back the respondent to his house and lead a marital life with her. Being under the apprehension of filing false prosecution against him, the appellant got issued a legal notice to the respondent and also the officials of Sadana Salaha Kendra, regarding their high handed act towards him. According to him, the respondent never bothered to send any reply to the said legal notice. Therefore, because of the threat put to him by the respondent and the officials of the Sadana Salaha kendra. he has suffered great mental tension and agony and hence according to him, by such willful act, the respondent has subjected him to mental cruelty. According to him. the respondent has left his house about 21/2 years ago from the date of the petition, and she is staying away from him thereby she is also guilty of committing the matrimonial offence of desertion and also that of cruelty. Hence, he was constrained to file a petition seeking the relief of decree of divorce from the respondent/wife, both on the ground of cruelty and desertion under Section 13 (1) (1-a) and (1-b) of the Hindu Marriage Act, in M.C. No. 241/2008.
4. Upon notice to the respondent, she contested the petition and filed her objections, opposing the prayer sought in the petition. She admitted her marriage with the appellant, but denied all other allegations made against her, more particularly the allegation that, she has not attained puberty and not undergoing periodical menstrual cycle. According to her, after the marriage she joined the appellant and started residing with him in the matrimonial home. But the appellant and his family members started demanding her for payment of additional dowry and started harassing her and ill-treating her and since she refused to comply with their illegal demand for additional dowry, the appellant and his parents have driven her out of their house by making use of the fact that, she did not conceive even after leading marital life with the appellant for about three and a half years. Further, it is her specific contention that, at the beginning, she was suffering from some minor medical problem regarding menstrual cycle and during November, 2005, the appellant himself took her to B.G.S. Appolo Hospital and subjected her to medical examination by Dr. Anish Behl, who diagnosed the problem that she is suffering from premature ovarian failure and provided her necessary medication. She has further taken up a contention that after about six months, she was again subjected to medical examination by Dr. Sudha Rao of Harsha Hospital and Dr. Sudha Rao, having thoroughly examined her, has issued a Certificate, opining that, the respondent is fully cured and she is getting her regular menstrual cycle and there are chances of good conception. It is the further contention of the respondent that. Dr. Sudha Rao gave her opinion on 24th May 2006 and during that period, she and the appellant were living together, by leading the marital life. According to her, subsequent to the opinion tendered by Dr. Sudha Rao and on coming to know that, she is not suffering from any inherent defect and she started getting her regular menstrual cycle, the appellant in order to get rid of her, started making allegations against her that she is unable to conceive and she is incapable of begetting children, since she is suffering from serious physical disorder pertaining to reproductive system. In spite of having the report given by Dr. Sudha Rao from Harsha Hospital, before whom the appellant himself has taken her for investigation and medical checkup, the appellant started making allegations that, her marriage with him was performed by suppressing this fact in order to make out a ground to obtain divorce from her. According to the respondent, she is perfectly all right and she is not suffering from any inherent defect as per the opinion tendered by Dr. Sudha Rao of Harsha Hospital and according to Dr. Sudha Rao, she is capable of begetting children. But the appellant himself since withdrawn from her society and refused to cohabit with her, she could not conceive. That itself cannot make a ground and further she has denied about holding of the alleged panchayat by the appellant and the members of the panchayat allegedly took the mother of the respondent to task and also denied the allegation that her mother took her back to her house and since then she is residing in her parents' house. By denying all these allegations, she has taken a contention that she never voluntarily left the house of the appellant, but she was driven out of the house of the appellant by the appellant husband and his family members and hence she, having left with no other alternative, started residing with her parents at Nanjangud. It is her further allegation that several attempts were made to persuade the appellant and his parents to take her back to the matrimonial home and to lead the marital life with her, but the appellant refused to take her back to the matrimonial home and hence, she was forced to continue to stay in the house of her parents. According to her, she never committed any matrimonial offence of desertion, since she never voluntarily deserted the appellant. But on the other hand, it was he, who has driven her out of his house and deserted her and started staying away from her and refused to take her back to the matrimonial home, thereby he is guilty of committing the matrimonial offence of desertion. She has also categorically denied the allegation that, she started treating her husband and other family members with cruelty and according to her, the appellant is trying to make out this ground, in order to obtain divorce from her. Therefore, she prayed for dismissal of the petition filed by the appellant before the Family Court.
5. During pendency of the matter, after going through the pleadings of both parties, the learned Judge, Family Court has referred the matter for conciliation and several sincere efforts were made by the Conciliators. As per the report of the conciliators, the conciliation failed as the husband of the respondent, i.e. the appellant has refused to take his wife back to the matrimonial home, but insisted on divorce only on the ground of her infertility problem. Though the respondent came to the family of her husband to lead the marital life, the appellant insisted for divorce from the respondent. Because of the stubborn stand taken by the appellant, the conciliation failed and the case was taken up for trial. The appellant himself got examined as PW1 and produced ten documents in support of his case and also examined his cousin, one Shri. M.P. Ashok, as witness in support of his case as PW2 and closed his evidence. The respondent wife examined herself as RW1 and got marked three documents in support of her case and the mother of the respondent was also examined in support of her defence as RW2 Both the sides closed their evidence. Thereafter, after hearing the learned counsel for the parties and on the basis of the pleadings, the Family Court framed necessary points for consideration, which are as follows:
1] Whether the petitioner/husband proves that, the respondent/wife has subjected him to cruelty by her willful conduct of harassment thereby committed the matrimonial offence of cruelty and on that ground he is entitled for a decree of divorce against her?2] Whether the petitioner/husband further proves that, the respondent/ wife has without reasonable excuse withdrawn herself from his society and having abandoned him, continued to stay in the house of her mother, thereby deserted him and hence he is entitled for a decree of divorce on the ground of desertion?3] For what order?
After careful evaluation of the oral evidence of PWs 1 and 2 and RW1 and RW2 and documentary evidence at Exs. Pl to P10 and Exs. Rl to R3, the Family Court, by assigning valid reasons and placing reliance on the judgment of the Apex Court and taking into consideration the conduct of the appellant and his family members, has answered the point Nos. 1 and 2 in the 'Negative' and point No. 3 as per the final order, and dismissed the petition filed by the appellant, for a decree of divorce. Being aggrieved by the said judgment and order passed by the Family Court, the appellant has come up in appeal before this Court, seeking to set aside the said judgment and to grant him the decree of divorce from the respondent.
6. The submission of the learned counsel appearing for the appellant, Shri. V, Rangaramu, at the outset is that, the Family Court has grossly erred in dismissing the petition filed by appellant for a decree of divorce, holding that appellant has failed to make out a case regarding the infertility in the respondent wife that she is not a position to conceive. To substantiate the said submission, he quipped to point out to the letters/opinions of Dr. Anish Behl, dated 26th November 2005 and Dr. Mala Dharmalingam dated 11th December 2004 as per Exs. P5 and P7 respectively, and submitted that the respondent has undergone detailed investigation by the Endocrinologist, to assist the fertility panel of the respondent wife. They have opined that the respondent has premature ovarian failure and the only way she can conceive is with IVF +donor eggs and therefore, it can be concluded that the ovaries of the respondent are not producing eggs, which are necessary to conceive and since she is suffering from premature ovarian failure, her ovaries are not in a position to produce eggs. This opinion expressed by the expert Doctors has not been looked into nor considered nor appreciated by the Family Court. By merely accepting the opinion of Dr. Sudha Rao, dated 24th May 2006, which discloses that she is getting regular periods and there are good chances of conception, as per Ex. R1. the Family Court has rejected the prayer of the appellant. But, it can be seen that the opinion given by Dr. Sudha Rao is only with respect to her menstrual cycle. Therefore, he submits that the said opinion itself is not sufficient to reject the prayer sought for by the appellant under Section 13 (1)(1-a) and (1-b) of the Act. Further, he submits that the appellant has sought for a decree of divorce, on the ground of mental cruelty and desertion, for the reason that the respondent wife has left the house of the appellant on her own will and volition after two and half years and started to live with her parents and therefore, the impugned judgment and order passed by the Family Court is liable to be set aside and the prayer sought in the petition for a decree of divorce may be granted.
7. As against this, Shri. P. Mahesha, learned counsel appearing for respondent/wife, inter alia, contended and substantiated the impugned judgment and order passed by Family Court, stating that the same is a well-considered, well founded, well reasoned judgment, inasmuch as the same is passed after critical evaluation of the oral and documentary evidence available on file and relying on the judgment of the Apex Court. Further, he submits that the Family Court is also highly justified in dismissing the petition filed by appellant on false and frivolous allegations and assumptions and presumptions. Therefore, interference in the same is not justifiable.
8. After careful consideration of the submission of the learned counsel appearing for the parties and after critical evaluation of the impugned judgment and order passed by the Family Court, the only point that arise for our consideration is as to:
Whether the appellant has made out a case for interference in the impugned judgment and order passed by the Family Court?
After careful perusal of the impugned judgment and order passed by the Family Court and on critical evaluation of the original records available on file, it is manifest on the face of the impugned judgment passed by the Family Court that, there is no error or material illegality as such committed by it in dismissing the petition filed by appellant for a decree of divorce. It is significant to note that the petition filed by appellant is for a decree of divorce on the ground of mental cruelty and desertion. From the pleadings and other relevant material available on file, it reveals that the appellant. after leading marital life for nearly one year and nine months, had himself taken the respondent/wife for medical check-up regarding some physical disorder pertaining to reproductive system. In this regard, the appellant has produced documentary evidence of Dr. Anish Behl, at Ex. P5 and of Dr. Mala Dharmalingam at Ex. P7. From a perusal of the said documents, it emerges that the respondent wife was being referred to Dr. Anish Behl of BGS Apollo Hospitals, Consultant Endocrinologist & Diabetologist and also Dr. Mala Dharmalingam, Professor & Endocrinologist, Endocrynology and Metabolism, M.S. Ramaiah Medical College. Dr. Mala Dharmalingam, after conducting various tests, has opined that the respondent has premature ovarian failure. She can be put on OC and then planned assisted reproduction for pregnancy. This opinion is given during December 2004. Dr. Anish Behl, after detailed medical check-up and tests, has opined that the respondent wife has premature ovarian failure. She needs to be on OCPs. The only way she can conceive is with IVF + Donor eggs. This opinion is given during November 2005. Thereafter, it can be seen that Dr. Sudha Rao. Consulting Obstetrician & Gynecologist of Harsha Hospital. who appears to have referred the case of respondent to Dr. Mala Ramalingam and Dr. Anish Behl and after giving proper treatment to the respondent, has opined on 24th May 2006 that, the respondent is getting regular periods and there are good chances of conception. The said opinion of Dr. Sudha Rao is produced by respondent at Ex. R1. Therefore, having regard to the totality of the case, it can be concluded that as per the latest opinion given by Dr. Sudha Rao, the respondent is in fact, getting her regular periods and she has good chances of conception. In fact, it can also be seen that, the appellant has made all his sincere efforts to take respondent/wife for medical check-up and tried to give proper medication, to which, after some time, the respondent has shown positive response and accordingly, the latest report of Dr. Sudha Rao states that the respondent is getting her regular periods and there are good chances of conception.
8. The allegation of the appellant against the respondent wife is that, she has serious physical disorder pertaining to reproductive system, as per the opinions/letters written by Dr. Anish Behl and Dr. Mala Dharmalingam to Dr. Sudha Rao, wherein both the said Doctors have opined that the respondent has premature ovarian failure, she can be put on OC and then planned assisted reproduction for pregnancy and that the only way she can conceive is with IVF + Donor eggs. But it can be seen that the said defect is curable by giving due medication, which is evidence as per the opinion of Dr. Sudha Rao, at Ex. Rl who states that the respondent is getting her periods regularly and she has good chances of conception. The Family Court, in our view, has rightly taken note of this crucial aspect of the matter also and dismissed the petition filed by appellant. The medical disorder in a person cannot be treated to be mental cruelty or desertion. Further, the Family Court has observed that the appellant and respondent lived together as husband and wife for about one year and nine months and there was cohabitation between them. Except making the allegation of cruelty and desertion by the respondent wife, the appellant has not adduced any oral evidence of his family members to substantiate the same nor has established the same by adducing any independent witnesses. The appellant himself has admitted in his cross-examination that, he led marital life with the respondent and they lived together as husband and wife for about one year nine months, after marriage. Therefore, we can easily come to the conclusion that the marriage was in fact, successful and consummated during the said period and there was no complaint whatsoever by the appellant about the respondent. Just because the respondent had some minor medical problem and was not immediately capable to conceive, it cannot be presumed that the said problem is a permanent one and on that ground, the appellant cannot take advantage of it and file the petition. for a decree of divorce on grounds of cruelty and desertion. Due some minor problem in the ovaries, the respondent was not able to conceive. But, as per the opinion of Dr. Sudha Rao, from 2006 onwards, the respondent is getting her regular periods and she has good chances of conception.
9. Further, it can be seen that the Family Court has gone in greater detail regarding the instances of mental cruelty, by relying upon the decision of the Hon'ble Apex Court and held that if there is refusal on the part of the either spouse to have intercourse with other spouse for a considerable period without there being any physical incapacity or valid reason, it may amount to mental cruelty to the other spouse. But, in the case on hand, it is undisputed inasmuch as the appellant himself has admitted even in his cross-examination that he led marital life with the respondent wife for about one year nine months after marriage. That means, the marriage between appellant and respondent consummated and they cohabited. Simply because the respondent was unable to conceive, may not be a ground for the appellant to urge that her inability to conceive amounted to mental cruelty. Admittedly, they led marital life for about one year nine months and never complained that she was unfit for sexual intercourse. Further, there is no such allegation made either in the petition or in the affidavit. Further, the appellant also never branded the respondent wife as an impotent person nor filed any petition seeking nullity of the marriage on the ground of her impotency. Therefore, the Family Court observed that mere barrenness and sterility would not amount to impotency. Impotence means incapacity for accomplishing the act of sexual intercourse. Impotency has to be distinguished from sterility associated with it. Further, the Family Court observed that even though the respondent was not able to conceive due to dis-function of the ovaries, the appellant was capable of having sexual intercourse, though not bearing children. By the use of the word 'impotency', the legislature did not intend to bring in the idea sterility or incapacity of conception. Impotency in this connection signifies incapacity to have normal sexual intercourse. Therefore, the Family Court came to the conclusion that even though the respondent wife appears to be having some problem of nonfunctional ovaries, there was no congenital abnormality of the vagina. Therefore, it cannot be held to be ground for divorce, on the ground of cruelty, as the respondent never denied the appellant the conjugal bliss and they led marital life for about one year nine months and absolutely there was no complaint against the respondent about her incapacity to provide him marital bliss.
10. Further, it can be seen that the allegation of the appellant is that, she was not getting her menstrual periods regularly and he took her to a gynecologist. since her menstrual cycle was not regular. But, after going through the Certificate issued by Dr. Sudha Rao, as per Ex. Rl, it can be seen that, after proper medical treatment, the respondent is getting regular periods and there are good chances of conception. Therefore, the appellant cannot have any grievance regarding her irregular menstrual cycle also.
11. Further, it is pertinent to note that the allegation of the appellant is that a panchayath was convened during December 2005 and her parents have also participated in the same and when the fact of her inability to procreate children was brought to their notice, her parents being unable to withstand the public humiliation in the panchayat, took the respondent with them and since then, she is residing in the house of her parents. The Family Court, after critical evaluation of the oral evidence of appellant coupled with the evidence of PW2. the cousin of the appellant, MP. Ashok, observed that the evidence of PW2 cannot be believed and it cannot be held that the parents of the respondent voluntarily took the respondent with them being unable to withstand the public humiliation in the panchayat, but on the other hand, accepted and believed the contention of the respondent that after consulting Dr. Anish Behl, when the appellant came to know that the respondent was suffering from some problem and hence she cannot conceive, decided to keep her away and according to the respondent the appellant brought the respondent to Nanjangud and left her in the house of her parents and never turned back. Further, it can be seen that PW2 never participated in the Panchayath. But, according to his evidence, when he visited the house of the appellant during December 2005, some panchayath was going on in the house of the appellant consisting of the parents and other family members of the respondent wife and the parents and other family members of the appellant and both of them were discussing about the marital relationship of the appellant and the respondent. But, he never stated that he participated in the said proceedings. Even the appellant never disclosed the name of PW2 and never took a contention that he was present in the said panchayath. He also never said the participation of PW2 either in his reply notice or in his affidavit tendered in lieu of his chief examination. Thus, the Family Court rightly disbelieved the evidence of PW2, Therefore, the appellant cannot take a stand that the respondent has left the marital home on her own will and volition and thus amounts to desertion.
12. Further, it is relevant to note that the respondent got issued a legal notice to the appellant as per Ex. P3, calling upon him to pay her maintenance, since he having left her in the house of her parents, during October 2005. never bothered to take her back to the matrimonial home and never bothered to take care of her welfare and failed to give her any maintenance and hence, demanded him to pay her maintenance. The said legal notice was replied by the respondent as per the reply notice at Ex. P4. Considering the fact of exchange of legal notice and the contentions of the parties, the Family Court negatived the contention of the appellant that the parents of the respondent voluntarily took her from the panchayath, but, believed and accepted the contention of the respondent that after getting medical opinion by Dr. Anish Behl, the appellant took the respondent to Nanjangud and left her in the house of her parents.
13. Thus, after critical evaluation of the oral and documentary evidence available on file, by relying upon the decision of the Hon'ble Apex Court, the Family Court came to the conclusion that the respondent never committed any matrimonial offence of desertion, since there was no evidence on record to come to the conclusion that, she having left the house of her husband has been staying in the house of her parents on her own volition and own will. Considering the fact that, the appellant never made any efforts to take the respondent back to his matrimonial home and filed the divorce petition even having no courtesy to issue a legal notice to her, about the filing of the divorce petition, clearly discloses his conduct and hence, it cannot be held that he is at fault and because of his omission in taking back his wife to his matrimonial home, it can be concluded that the appellant is guilty of committing the matrimonial offence of desertion towards the respondent.
14. Further, it is relevant to note that during the cross-examination, a suggestion was put to him stating that the respondent wife is even at that time, ready and willing to go with him and to lead martial life with him and he has categorically stated declining that offer stating that he is not willing to take her with him and lead martial life with her. In fact, the respondent while filing her objections also has taken up a similar contention about her readiness and willingness to join her husband and lead marital life with him. But, that offer has been categorically refused by the appellant husband. Therefore, having regard to all these aspects, the Family Court has observed that the appellant has failed to prove the factum of desertion and also animus deserendi as it is established that he himself was responsible for keeping his wife away from him and further never bothered to take her back to the matrimonial home and failed to lead marital life with her, he cannot take advantage of his own wrongful conduct.
15. Further, the Family Court has referred to Section 23 1(a) of the Act, wherein it is stipulated that the Court below, granting a relief in any proceeding, under the Act, has to be satisfied that a ground for granting the relief exists and the applicant/petitioner is in not any way taking advantage of his own wrong, for obtaining the relief. In the case on hand, the appellant. having left the respondent wife and keeping her away from him by leaving her in the house of her parents and never bothered to take her back to the matrimonial home and having waited for more than two years, has come up with the divorce petition against her, seeking divorce, holding her responsible for staying away from him cannot be considered, since the appellant is trying to take advantage of his own wrong and hence he is legally not entitled to any relief as provided under the aforesaid provision of the Act.
16. Thus, viewed from any angle, we are of the considered opinion that the Family Court, taking into consideration all the relevant aspects, has passed a well considered, well reasoned and well founded judgment. Hence, we are of the firm opinion that the appellant has failed to make out a case for granting a decree of divorce, by setting aside the impugned judgment and order and hence, there is no justification to grant the relief sought in the appeal, nor we find any error or illegality as such in the impugned judgment and order passed by the Family Court. In the light of the discussion made above, the appeal filed by appellant stands dismissed as devoid of merits, with costs of `5,000/-, payable to the respondent/wife, by way of Demand Draft, within two weeks from the date of receipt of a copy of this judgment, failing which, the respondent/wife is at liberty to recover the same, in accordance with law.
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