of the evidence, it is seen that the actual desertion as
stated by the husband is not pleaded with the statutory
period mentioned under Section13(1)(ib) of the Act. The
animus deserendi or intention to desert and the factum
of separation which are the two essential elements to
constitute desertion are not properly found in the alleged
desertion. Even though there was factum of separation,
their rejoining after filing the petition shows that they
have no intention to bring the cohabitation permanently
to an end. This shows that the petitioner husband failed
to prove the ground of desertion and the judgment of the
lower court on the ground of desertion is to be set aside.
No decree of divorce could be granted on the ground of
desertion in the absence of pleading and proof with
regard to mental element and physical element.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE V.K.MOHANAN
&
MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 11TH DAY OF FEBRUARY 2015
Mat.Appeal.No. 244 of 2007 ( )
C.V.USHAKUMARI,
Vs
P.SUKUMARAN,
Citation; AIR 2016(NOC)50 Kerala
This appeal is directed against the judgment in
O.P.No.32 of 2006 of the Family Court, Kasargode which
was filed under Section 13(1)(ia)(ib) of Hindu Marriage
Act for divorce by the husband against his wife. Appellant
is the wife and respondent is the husband in this appeal.
2. The case of respondent in the family court was
that he married the appellant on 12.5.1994 as per hindu
customary rites. After the marriage, both of them
resided together in the parental house for fifteen days
and thereafter both of them went to their work place. At
the time of marriage, he was a Police Constable at
Vellarikundu police station and his wife was a teacher in a
government school. In the year 1995 he got selection as
S.I of Police, there arouse the difference between them.
After training he joined at Calicut for practical training, at
that time the wife refused to join with him. Subsequently,
he was transferred to Pandalam in the year 1995 where
he worked for one year and one month, there also his
wife did not join with him. In the year 1998, he was
transferred to Manjeshwaram. Thereafter to Ferook in
the year 2000 and there was no progress in her conduct.
According to the petitioner, the wife resided with him till
27.12.1998. During the subsistence of the marriage,
wife aborted the pregnancy without his consent thereby,
petitioner's ambition for having a child was spoiled by his
wife. She usually ill treated him mentally by abusing him
over phone. She also complained to his superior officers
through telephone making baseless allegations against
him. The settlement talks were failed, in the
circumstance, the husband approached the Family Court
with the above petition.
3. The appellant filed a written objection in the family
court and contended that after the marriage she obtained
transfer and resided along with the petitioner at his work
place in Malappuram and Kozhikode Districts. While they
were residing together she became pregnant but the
pregnancy was tubal pregnancy and she underwent a
surgery with the consent of her husband. She also
resided with him from 27.5.1997 to 13.5.1998 on medical
grounds. He had developed an illicit relationship with one
Shylaja Kurup, who is a lawyer at Pandalam, while he was
working at Ferook. The lady contacted him on the
impression that petitioner was a bachelor. When
appellant became pregnant, the respondent took her to a
Gynaecologist at Edappal on 31.3.1999 and was satisfied
with himself about her health condition. While he was
working at Malappuram and Kozhikode, she stayed with
him at the official residence of the S.I at Nallalam till May
2000 and at Kelakam in Kannur District. The husband
also threatened her several times and forced her to obtain
divorce by mutual consent. There was no cruelty from
her side and she is ready and willing to reside with him.
4. Both parties adduced oral and documentary
evidence in the Family Court. The evidence consists of
oral testimony of PW1, PW2 and RW1 and documentary
evidence of Ext.A1 to A5, Ext.B1 to B4 and Ext.X1.
Family Court, after sifting and weighing the evidence on
record, allowed the application under Section 13(1)(ia)
and (ib) of the Hindu Marriage Act and the marriage was
dissolved with effect from the date of decree with cost of
the proceedings from the respondent. Aggrieved by that,
the wife approached this court with this appeal.
5. Learned counsel appearing for the appellant
contended that the alleged desertion under Section 13(1)
(ib) was not proved in this case. Appellant resided with
the respondent till May 2000 at Nallalam. Therefore, the
period of desertion for a continuous period not less than
two years immediately preceding the presentation of the
petition was not proved in this case and there was no
pleadings about the date of desertion and mental cruelty
in the petition. When there was no pleadings and
evidence in a case, the respondent is not entitled for a
decree as claimed in the petition. Learned counsel relied
on the decision of the Apex Court in Adhyatma Bhattar
Alwar V. Adhyatma Bhattar Sri Devi (2002(1) SCC
308), Savitri Pandey V. Prem Chandra Pandey (2002
(2) SCC 73) and Pradeep Kumar V. Rekha (2013(2)
KLT Short Note 121, case No.153).
6. Learned counsel appearing for the respondent
contended that there is specific pleading with regard to
desertion and cruelty. While they were residing together,
she made false complaint to the superior officers against
her husband through phone and that false allegation
amounts to cruelty. After filing the above petition, she
convened a press conference at Press Club, Kannur
raising false allegation which amounts to cruelty. Even
though the pleadings about press conference is not found,
in the petition which happened during the pendency of
this petition, he could not amend such pleadings at that
time, but she admitted that fact in her examination and
therefore making false allegation through Press
Conference amounts to cruelty. Besides that she aborted
the pregnancy without the consent of her husband and
put forged signature in the consent letter which also
amounts to cruelty.
7. Desertion is recognized as a good ground for
divorce under Section 13(1)(ib) of Hindu Marriage Act
1955. Any party after solemnization of marriage, has a
right to get the marriage 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 desertion for the purpose of seeking
divorce under the Act means an intentional permanent
abandonment of one spouse by the other without the
other's consent and without reasonable cause. In other
words, one party repudiated the other totally in their life
without fulfilling any obligations of the marriage.
Desertion is not a withdrawal from one place to another
for a particular period. According to Hindu Marriage Act,
it involves both mental element and physical element.
The factum of separation and intention to bring the
cohabitation permanently to an end or animus dessirendi
are the two main ingredients necessary to constitute
desertion.
8. The matter may be further examined on the basis
of the decision of the apex Court in Savithri Panday V.
Prem Chandra Pandey (2002(2) SCC 73) in which it was
held in paragraph 8 as follows.
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 the 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 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 a host of
authorities and the views of various authors,
this Court in Bipinchandra Jaisinghbai Shal V.
Prabhavati held that if a spouse abandons the
other in a state of temporary passion, for
example, anger or disgust without intending
permanently to cease cohabitation, it will not
amount to desertion".
9. Desertion as a ground must be for a continuous
period of two years immediately prior to the filing the
petition. In this case PW1 deposed that both parties
resided together till 8.4.2000 but the wife RW1
contended that she resided with him during onam
holidays of the year 2000. Even after filing this petition
in the year 2000, both of them resided together for 26
days. If that be the position, the animus deserendi as
stated under Section 13(1)(ib) was not established in
this case. If the above evidence of RW1 is admitted, the
factum of separation with intention to desert the wife is
not proved for actual desertion. While considering
desertion as a ground for divorce, the court has to
scrutinize the pleading and proof in support of such
desertion. When there is no pleading and proof, no
decree of divorce could be granted on the ground of
desertion. Therefore the permanent abandonment of one
spouse by the other without other's consent and without
reasonable cause for the statutory period must be
pleaded and proved. Desertion is a continuing
matrimonial offence, once desertion begins, it continues
day by day till it come to an end by the conduct of the
deserting spouse. This also clarifies that desertion is not
complete even if the statutory period expires, it may
bring to an end by the act or conduct of the deserting
spouse. Therefore we conclude that desertion is not a
single act but it is a continuous act of conduct which is to
be determined under the facts and circumstances of each
case. Therefore, the contention of the husband that the
wife resided with him till 8.4.2000 and thereafter
deserted is unbelievable.
10. A perusal of the pleading shows that the next
ground put forward by the the respondent was that the
appellant treated him with cruelty while they were
residing together. Under Section 13(1)(ia) of the Act, a
marriage can be dissolved by a decree of divorce on a
petition presented by the husband or wife on the ground
that the other party, after solemnization of the marriage,
treated the petitioner with cruelty. PW1, the husband in
his evidence deposed that there was cruelty from the
part of the wife throughout his life. In the oral evidence
he deposed that she made false allegations about him
and was not co-operating with him as a wife in his family
life. When he visited her at her residence, she was not
found in the house as she had gone to her family house
and was staying there. While he was residing at
Pandalam in his official quarters, she was reluctant to
stay there. On several occasions, he adjusted with the
appellant by taking leave and resided there and at that
time also, she was not co-operative. In Ext.A5 she
alleged that he eloped with a lady having two children
and moreover while they were residing together, she
complained to the superior officers raising false allegation
which amounts to cruelty. After filing the above petition,
she convened a press conference at Press Club, Kannur
raising false allegation which amounts to cruelty. She
admitted this fact in her cross examination. During the
pendency of divorce petition, he could not amend and
insert such pleadings in the OP, therefore he contended
that false allegation through Press Conference also
amounts to cruelty. Moreover, the respondent's ambition
to become a father was spoiled by the appellant for the
reason that she aborted her pregnancy without the
consent of the husband. Besides this, she forged the
signature of the husband in the consent letter. This
conduct of the appellant amounts to grave mental
cruelty.
11. We have considered the effect of the above
allegations. Conducting a press conference against
husband raising unfounded defamatory allegation
amounts to mental cruelty. The defamatory statements in
the pleading that petitioner was having illicit connection
with a lady lawyer, gave promise to marry her and stayed
with her in hotel amounts to another cruelty. In the press
report dated 10.8.2003 she alleged that the petitioner
eloped with a lady having two children before his
marriage. Moreover filing false complaint against
husband and his family members in the Judicial First Class
Magistrate Court, Mattannur amounts to humiliation. She
stated that she tried her level best to reside with the
husband but we are of the opinion that this is not the way
for her to go back and reside with the husband. It is well
settled that the above conduct of the wife amounts to
mental cruelty.
12. Apex Court in K.Srinivas Rao V D.A.Deepa
(2013(5)SCC 226) held in paragraphs 16, 27 and 28 as
follows.
" 16. Thus, to the instances illustrative of mental
cruelty noted in Samar Ghosh, we could add a
few more. Making unfounded indecent
defamatory allegations against the spouse or his
or her relatives in the pleadings, filing of
complaints or issuing notices or news items
which may have averse impact on the business
prospect or the job of the spouse and filing
repeated false complaints and cases in the court
against the spouse would, in the facts of case,
amount to causing mental cruelty to the other
spouse.
27. We need to now see the effect of the above
events. In our opinion, the first instance of
mental cruelty is seen in the scurrilous, vulgar
and defamatory statement made by the
respondent wife in her complaint dated
4.10.1999 addressed to the Superintendent of
Police, Women Protection Cell. The statement
that the mother of the appellant husband asked
her to sleep with his father is bound to anger
him. It is his case that this humiliation of his
parents caused great anguish to him. He and
his family were traumatised by the false and
indecent statement made in the complaint. His
grievance appears to us to be justified. The
complaint is a part of the record. It is a part of
the pleadings. That this statement is false is
evident from the evidence of the mother of the
respondent wife, which we have already quoted.
This statement cannot be explained away by
stating that it was made because the respondent
wife was anxious to go back to the appellant
husband. This is not the way to win the
husband back. It is well settled that such
statements cause mental cruelty. By sending
this complaint the respondent wife has caused
mental cruelty to the appellant husband.
28. The conduct of the respondent wife
in filing a complaint making unfounded, indecent
and defamatory allegation against her mother-
in-law, in filing revision seeking enhancement of
the sentence awarded to the appellant husband,
in filing appeal questioning the acquittal of the
appellant husband and acquittal of his parents
indicates that she made all attempts to ensure
that he and his parents are put in jail and he is
removed from his job. We have no manner of
doubt that this conduct has caused mental
cruelty to the appellant husband".
13. Apex Court in 2002(2) SCC 73 Savitri
Pandey's case (supra) held in paragraph 6 as follows.
"6. Treating the petitioner with cruelty is a
ground for divorce under Section 13(1)(ia) of the
Act. Cruelty has not been defined under the Act
but in relation to matrimonial matters, it is
contemplated as a conduct of such type which
endangers the living of the petitioner with the
respondent. Cruelty consists of acts which are
dangerous to life, limb or health. Cruelty for the
purpose of the Act means where one spouse has
so treated the other and manifested such feelings
towards her or him as to have inflicted bodily
injury, or to have caused reasonable apprehension
of bodily injury, suffering or to have injured
health. Cruelty may be physical or mental.
Mental cruelty is the conduct of other spouse
which causes mental suffering or fear to the
matrimonial life of the other. "Cruelty", therefore,
postulates a treatment of the petitioner with such
cruelty as to cause a reasonable apprehension in
his or her mind that it would be harmful or
injurious for the petitioner to live with the other
party. Cruelty, however, has to be distinguished
from the ordinary wear and tear of family life. It
cannot be decided on the basis of the sensitivity
of the petitioner and has to be adjudged on the
basis of the course of conduct which would, in
general, be dangerous for a spouse to live with
the other.
14. Considering the case in hand and on appreciation
of the evidence, it is seen that the actual desertion as
stated by the husband is not pleaded with the statutory
period mentioned under Section13(1)(ib) of the Act. The
animus deserendi or intention to desert and the factum
of separation which are the two essential elements to
constitute desertion are not properly found in the alleged
desertion. Even though there was factum of separation,
their rejoining after filing the petition shows that they
have no intention to bring the cohabitation permanently
to an end. This shows that the petitioner husband failed
to prove the ground of desertion and the judgment of the
lower court on the ground of desertion is to be set aside.
No decree of divorce could be granted on the ground of
desertion in the absence of pleading and proof with
regard to mental element and physical element.
15. From the totality of the evidence, we are of the
opinion that the divorce granted under Section 13(1)(ib)
of the Hindu Marriage Act is only to be set aside and the
divorce granted under Section 13(1)(ia) is to be
confirmed.
16. In the result, we set aside the divorce granted
under section 13(1)(ib) of the Hindu Marriage Act 1955.
In all other aspect, we confirm the finding of the Family
Court. The appeal is allowed in part. No order as to
costs.
V.K.MOHANAN, JUDGE
P.D.RAJAN, JUDGE
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