Leaving husband without valid reason – Desertion

IN THE HIGH COURT OF ORISSA, CUTTACK

MATA NO. 104 Of 2011

From the judgment and order dated 23.09.2011 passed by the
learned Judge, Family Court, Puri in C.P. No.162 of 2010.

——————–
Usharani Pradhan …….. Appellant

-Versus-

Brajakishore Pradhan ………. Respondent

For Appellant: – M/s. Debi Prasad Dhal
S.K. Dash, A. Behera

For Respondent: – M/s. Dinesh Kumar Mohanty
Deepak Kumar Rath

———————
P R E S E N T:-

THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO

Date of argument- 29.10.2015 : Date of Judgment-19.11.2015
S. K. Sahoo, J.

“A home with a loving and loyal husband and wife is the supreme setting in which children can be reared in love and righteousness and in which the spiritual and physical needs of children can be met.”

– David A. Bednar This case depicts the sordid episode of the life of a woman who spoiled her homely environment and family relationships running after the politics and politicians forgetting her solemn duties and responsibilities of a matrimonial life and neglecting her husband and children. She was cautioned and reminded of her pious obligations but she was mesmerized so much by the political thoughts and quite adamant that she failed to understand the consequence of her negligent attitude. When she faced the reality and started realizing her wrongdoings, by that time it was too late and much water had flowed under the bridge.

This matrimonial appeal has been filed by Usharani Pradhan (hereafter “the appellant”) under section 28 of Hindu Marriage Act, 1955 read with section 19(1) of Family Courts Act, 1984 challenging the impugned judgment and order dated 23.09.2011 passed by the learned Judge, Family Court, Puri in Civil Proceeding No.162 of 2010 in allowing the petition filed by Brajakishore Pradhan (hereafter “the respondent”) under section 13 of Hindu Marriage Act, 1955 and dissolving the marriage between the parties with a decree of divorce subject to payment of alimony of monthly maintenance @ Rs.3,000/- by the respondent-husband to the appellant-wife.

2. It is the case of the respondent-husband that he married the appellant on 22.05.1991 in accordance with the caste, custom and rites and both of them stayed together as husband and wife and out of the wedlock, they were blessed with a daughter and a son. It is the further case that since the appellant was interested in political activities, she neglected the family and she used to return back home in the late hour of the night. Even though the respondent raised objection but the appellant did not bother about the same. She was not preparing food for her family members and behaving very badly with her husband and even gone to extent of instituting false police cases against him for which he was taken into custody. The appellant left her in-laws’ house on 07.03.2007 and started residing at another place. After desertion of the appellant for a period of more than two years, the respondent instituted a divorce proceeding on the ground of cruelty and desertion.

3. On being noticed, the appellant appeared and filed her written statement and denied the averments made in the divorce petition. She put forth a case that after her maternal aunt expired giving birth to a female child, she and her husband adopted that child as their own daughter but when both of them were blessed with a daughter and son, the respondent lost interest in the adopted child and pressed the appellant to hand over the child back to her father. As the appellant did not agree to such proposal of her husband, there was dissention between the couple and for that reason the respondent started taking liquor and assaulting the appellant mercilessly causing serious injuries for which she instituted G.R. cases. The respondent also started maintaining distance from the appellant as a result of which their relationship deteriorated. It is her further case that after being mercilessly assaulted, she was driven out of her in- laws house with her adopted daughter for which she was constrained to take shelter in her paternal place at Jatani. The appellant denied the allegations leveled against her by the respondent regarding cruelty and desertion and it is her case that such allegations have been concocted just to get a decree of divorce and prayed to dismiss the divorce petition.

4. The learned Family Judge formulated the following points for determination:-

(i) Whether the respondent was entitled to divorce the appellant on the ground that she had treated him with cruelty?
(ii) Whether the appellant had deserted the respondent for a continuous period of not less than two years immediately preceding the presentation of the petition?
5. In order to prove his case, the respondent examined himself as P.W.1 and proved certain documents. Ext.1 and Ext.3 are the certified copies of the FIR, Ext. 2 and 4 are the certified copies of the charge-sheet, Ext.5 series is the notice issued by Mahila Commissioner and Ext.6 series is the cash receipt issued by Sovaniya Sikhashram.

The appellant examined himself as R.W.1.

6. The learned Family Judge while discussing the evidence on record has been pleased to observe that the case of the appellant that the respondent had kept the seized articles in the house of a Muslim at Tiadi Sahi which was seized by police is not correct inasmuch as the articles were seized from the house of the respondent as per seizure list and was left in the Zima of the appellant.

It was further held that the allegation that the respondent had history of contact with home guard Netramani Dei has not been substantiated anywhere rather such allegation amounts to cruelty to her better half. It was further held that the claim of the appellant-wife about her separate living since 2009 or 2010 is contradicted by the recital in the FIR vide Ext.1 which indicates that they were living separately since 2007. It was further held that living in another house in the same town away from her husband is humiliating to the husband and it also amounts to cruelty.

The learned family Judge further held that the appellant had deserted her husband since the year 2007 by living separately from her husband and children which might be due to her involvement in Mahila Samiti work or any other office work at Puri beyond the normal office hour. It was further held that it is abundantly clear that the appellant had deserted her since 2007 for a period of more than two years by the time of filing of the petition in the year 2010 and she had also subjected her husband to cruelty beyond repair and toleration with unsubstantiated allegation of involvement with another woman.

READ  Divorce upheld, illicit relationship, false allegations of Section 498A

7. On 29.10.2015 both the spouses and their children were present before us in person. We had a long deliberation with each of them and when we asked the children, who are staying in the company of their father as to whether they are interested to stay with their mother, both of them bluntly denied and stated that when they were small kids, their mother had left them and their father is treating them with all care and affection and they are prosecuting their studies and the girl is staying in a hostel and her father used to visit her regularly. Though the appellant expressed her willingness to stay in the company of her husband but the manner in which she responded to our query indicated that she had also no real inclination to stay in the company of her husband. The respondent also denied to stay in the company of the wife and according to him, he and his children are living peacefully and happily and they do not want any further disturbance in their life.

8. The learned counsel for the appellant-wife while challenging the impugned judgment and order of the learned Family Judge contended that there was no proper conciliation which is mandated in the statute and the factum of desertion as alleged has not been proved with cogent evidence. It was also urged that the learned Family Judge has failed to appreciate that the respondent was torturing and humiliating the appellant and inspite of that she was living with her husband and looking after the children. It was further urged that when the appellant is still interested to live in the company of her husband and children to save her marriage, it was not proper on the part of the learned Family Judge to pass a decree of divorce in favour of the respondent and it would also not be proper for this Court to give a stamp of approval to such a decree.

The learned counsel for the respondent on the other hand while supporting the impugned judgment and order contended that the findings are based on the materials available on record and from the evidence, the respondent appears to have discharged his burden of proof regarding desertion by the appellant. It was further urged that the manner in which the appellant neglected to perform her duty as a wife, as a mother keeping high ambition of becoming a politician and also instituted false cases against the respondent after deserting him, the Family Judge was quite justifed in granting decree of divorce.

9. Adverting to the contentions raised by the learned counsels for the respective parties, perusing the materials available on record and the documents proved by the respondent, we find that the appellant had instituted two police cases i.e. one in the year 2005 and the other in the year 2007 which led to the arrest of the respondent. The case of the appellant that she was driven out of the house in the year 2009 which she had pleaded in her written statement as well as in the year 2010 which she has stated in her evidence appears to be not acceptable in view of the institution of aforesaid two police cases and the averments made in the F.I.R. The appellant alleged that the respondent had illicit relationship with a home guard namely Netramani Dei which she had mentioned in the FIR dated 19.04.2007 vide Ext.1. This allegation has not been substantiated by any evidence. The materials available on record rather indicate that the appellant was involved in Mahila Samiti activities for which she was neglecting her family. She did not even bother to take care of her small children and deserted her husband for which since last eight years, the respondent was looking after the children with all care and attention and also providing them good education. It further appears that the case of the appellant is inconsistent with her pleadings and contradicted by the two FIRs vide Exts.1 and 2.

10. Desertion of one of the spouses by the other for a continuous period of not less than two years immediately preceding the presentation of the divorce petition as well as treating the spouse with cruelty are some of the grounds of divorce.

According to the Explanation provided under Section 13 of Hindu Marriage Act, 1955, “desertion” means the desertion of the one party by the other party to the marriage without reasonable cause and without consent or against the wish of such party and includes willful neglect of the petitioner by the other party to the marriage.

In case of Adhyatma Bhattar Alwar -Vrs.- Adhyatm Bhattar Sri Devi reported in AIR 2002 SC 88, it is held as follows:-

“6. ‘Desertion’ in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are :
1. The factum of separation;

2. The intention to bring cohabitation permanently to an end- animus deserendi;

3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;

8. The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately proceeding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include ‘willful neglect’ of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence, desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation, it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned; (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.”

READ  Wife guilty of desertion & cruelty

In case of Savitri Pandey -Vrs.- Prem Chandra Pandey reported in 2002 (1) Kerala Law Journal 193, the Hon,ble Supreme Court held as follows:-

“7. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In the 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 legalizes 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 host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati ( AIR 1957 SC 176) held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will be amount to desertion. It further held:

For the office of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The Petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law, those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, 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 actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time: for example; when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by the bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refused to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce, the Plaintiff must prove the offence of desertion like other matrimonial offence beyond all reasonable doubt. Hence, though corroboration is not required is in absolute rule of law, the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.

8. Following the decision in Bipinchandra’s case (supra), this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota ( AIR 1964 SC 40) by holding that 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. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring co-habitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved, the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say 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 actual acts of separation.

READ  SC: Divorce - Mental Cruelty

9. To prove desertion in matrimonial matter, it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.”

Thus keeping in view the aforesaid settled position of law that there can be no desertion without animus deserendi and it implies not only factum of separation but also intention to separate permanently and to put an end to matrimonial relationship and cohabitation, on scanning of the materials on record, we found that the conduct of the appellant in leaving the company of her husband and their small children and living separately for so many years since 2007 for pursuing her so- called political ambition clearly indicates that she had deserted the respondent without reasonable cause and without his consent and against the wish of the respondent.

The evidence on record further indicates that the appellant treated the respondent with cruelty. She had not only neglected to perform her matrimonial duties and obligations but also instituted one after another case against her husband. The manner in which she had conducted herself for so many years and harassed and humiliated her husband has caused reasonable apprehension in the mind of the respondent that it would be harmful and injurious on his part to live in the company of the appellant and that is the probable reason why the respondent is not interested to live in the company of the appellant.

Section 13(1)(i-a) of the 1955 Act states that any marriage solemnized can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party after solemnization of marriage had treated the petitioner with cruelty.

The expression ‘cruelty’ has not been defined under Section 13 of the 1955 Act. Law is well settled that the cruelty may be physical or mental or both. The expression ‘cruelty’ has got an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. The burden of proof lies on the aggrieved party to make out a case of cruelty. The act of cruelty must be such which would cause reasonable apprehension in the mind of the aggrieved party that it would be harmful or injurious on his part to live with the other party. A particular conduct which may amount to cruelty in one case may not necessarily amount to cruelty in the other case due to change of various factors and different set of circumstances.

In case of Praveen Mehta -Vrs.- Inderjit Mehta reported in AIR 2002 SC 2582, it is held as follows:-

“21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty, the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty, it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”
The case of the appellant has not been substantiated and the contents of the FIR, the pleadings in the written statement as well as her evidence in Court contradict each other.

Accordingly, we are of the view that the learned Family Judge is quite justified in holding that the respondent has proved desertion and cruelty against the appellant.

11. In view of what we have discussed above, we are of the view that when the reconciliation between the parties is not possible and the parties are living separately since 2007 and the marriage has remained only for the name sake, the learned Family Judge was justified in allowing the divorce petition and therefore we do not find any infirmity, impropriety in the impugned judgment. The quantum of alimony which was awarded in favour of the appellant has not been challenged before us. We therefore affirm the decree of divorce and the dissolution of the marriage between the parties including the payment of monthly maintenance @ Rs.3,000/- by the respondent to the appellant from the date of the decree.

In the result, the MATA application stands dismissed. The parties are directed to bear their own costs.

(S.K. Sahoo, J)
(Vinod Prasad, J)
Orissa High Court, Cuttack
The 19th November, 2015

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