How to Get a Decree for Divorce on the Ground of Desertion [Case Law]

In order to get a decree for divorce on the ground of desertion, the party who approach the court alleging desertion is supposed to prove that the opposite party willfully stayed away from him/her company and abstained from cohabitation without any reason that too with the intention to put an end to the marital relationship.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. HARILAL & SHIRCY V., JJ.

Mat Appeal No. 260 of 2006

Dated this the 13th day of April, 2018

AGAINST THE ORDER IN OP 895/2003 of FAMILY COURT,ERNAKULAM DATED 26-03-2005 

APPELLANT/PETITIONER

UNNI

BY ADVS.SRI.SUBAL J.PAUL SMT.SHEEBA THOMAS 

RESPONDENT/RESPONDENT

JAYA

R, BY ADV. SRI.V.M.KRISHNAKUMAR R, BY ADV. SRI.S.SARAVANA BHAVAN 

J U D G M E N T

Shircy V., J.

Marriage is a sacrosanct relationship between a man and a woman. But unfortunately if the relationship is strained, one may some how or other find out reasons to get rid of his or her partner. This case is a classic example for the same. The husband who failed to get a decree for divorce against his wife filed this appeal challenging the order of the Family Court, Ernakulam dated 26.03.2005 in O.P.895/2003.

2. The marriage of the appellant with the respondent was solemnized as per the rites and ceremonies of Hindu Marriage Act on 12.11.1995. A child was born to them in the wedlock. But the respondent /wife had treated him with cruelty and made his life miserable. She was not behaving well with him right from the inception of the marriage. She also deserted him without any reasonable cause. There were constant fights between them and on 18.5.1998 she had broken her thali chain and thrown towards him and left his company. Therefore, he was constrained to prefer the petition for divorce on the ground of cruelty and desertion, is the case of the appellant.

3. On the other hand though the respondent had admitted her marriage with the appellant/husband had denied the alleged incident on 18.5.1998 as well the allegations that she had deserted him and treated him with cruelty. But she contended that in fact she was presented with 20 sovereigns of gold ornaments and an amount of Rs.20,000/- at the time of her marriage with the appellant. He appropriated the same and harassed her for more money. Her life with the appellant at her matrimonial home was miserable because of the habit of the appellant picking up quarrel with his brothers and so they were compelled to shift their residence to a rented building. However, he continued to ill treat her demanding an amount of Rs.50,000/-but still they were residing together. During the month of January 1998 she was taken along with the child to her paternal house to attend the marriage of her brother. But he abandoned them there and did not care to take them back to his house. He failed to provide anything for the maintenance of herself and her child. While so in the year 1998 itself he left abroad without even intimating her. Thereafter, she preferred a claim for maintenance as M.C.No. 217/2003 and a petition as O.P.No.333/2003 for recovery of money and value of her gold ornaments and she was compelled to do so as she had no source of income. Infuriated by the same imputing false allegations against her he preferred the Original Petition for divorce.

4. Before the trial court both the divorce petition and the petition for recovery of money were tried together and disposed of by a common judgment. Before the court below, the appellant was examined as PW1 and two more witnesses were examined as PWs.2 and 3 and Ext.A1 was marked on his side. The wife was examined as RW1.The learned Family Court dismissed both the O.Ps. filed by the parties. The appellant husband aggrieved by the dismissal of his petition for divorce has preferred this appeal.

5. We have heard the learned counsel for the appellant as well the learned counsel for the respondent elaborately and perused the records.

6. Admittedly the marriage of the couple was solemnized as per the custom of the Hindu Marriage Act on 12.11.1995. A child was born to them in their wedlock. The pleadings reveal that their life as husband and wife was only for a short while and from 1998 on wards they are living separately. The main contention raised by the appellant/husband against the respondent is that she had treated him with cruelty and deserted him for no reason and hence he was compelled to approach the court for divorce. As the appellant has sought for divorce on the ground of cruelty and desertion, it is apposite to quote the relevant section for easy reference, which reads as follows: 

“Section 13 (1)of the Hindu Marriage Act : 

13. Divorce- (1) Any marriage solemnized, whether before or after the 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 

(i) xx xx xx 

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or 

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

(ii) xxx 

(iii) xxx 

(iv) xxx 

(v) xxx 

(vi) xxx 

(vii) xxx 

Explanation - 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.” 

7. It is pertinent to note that the main allegation levelled against the wife is that she had deserted him for no reason, against his wish since 18.5.1998 and he waited till 2003 for her return, but she did not return to him and therefore he approached the court with the petition for divorce. He asserted that on 18.5.1998 as usual she picked up quarrel with him and broken her thali chain and thrown towards him and left him and thereafter never returned to him. But on 13.8.2003 she entered into his house and created all sorts of nuisance and troubles and left the place and she is residing away from him without any valid reason. Therefore, he is entitled for a decree of divorce on the ground of desertion under section 13(1)(ib) of the Act.

8. However, it has come out in evidence that he left abroad on 20.5.1998 and worked there for a period of two years and came back on 25.5.2000 and again returned to Gulf and continued there till 2003. But it is significant that he has no case that he had provided maintenance to the respondent and their child during the said period or even tried to contact her. As mentioned above he has no case that he had taken any steps to bring back his wife so as to continue with the marital life though he alleged that she left him without any reason. But his definite case is that the respondent has withdrawn from his company without reasonable excuses for a continuous period of about five years with the intention to bring the marital life to an end. The respondent stoutly denied the allegation and contended that though her marital life was not happy because of his illtreatment towards her she had no intention or desire to put an end to their marital life but was compelled to live at her paternal house with her minor child without any source of income for maintenance just because of his willful neglect. She pleaded her pathetic condition and it is her contention that on 16.1.1998 her husband had taken her to her residence to attend the marriage function of her brother with an understanding that they will return after three days, but he failed to take them back and his attitude had caused much pain and sufferings to her and so her relatives approached him and requested to take her back. But he did not care to do so and without giving any information he left the country and proceeded to Gulf in the month of March, 1998 and thereafter returned only in the year 2003. He did not contact her since he left her at her residence and failed to provide maintenance to her and their minor child. When she came to know about his return from Gulf from outside source she approached him and requested to take her back to his residence but he did not care to do so. In fact, he has totally neglected and deserted her and practically shut the doors of her matrimonial home and thereafter imputing false and baseless allegations preferred the petition for divorce and hence he is not entitled for a divorce, is the definite stand taken by her .

9. It is well settled that in order to get a decree for divorce on the ground of desertion, the party who approach the court alleging desertion is supposed to prove that the opposite party willfully stayed away from him/her company and abstained from cohabitation without any reason that too with the intention to put an end to the marital relationship. So the intention to put a full stop to the marital relationship without any reasonable cause for a continuous period of not less than two years since the date of petition would surely tantamount to desertion. The mere fact of staying away by one party from the company of the other without any intention to put an end to the marital relationship is not sufficient to infer that there is desertion. So also there must be evidence to show that the opposite party was having the intention or desire not to continue with the relationship and had totally neglected or discarded the party who approached the court and that the separation was without any reasonable cause and also without the consent. The word 'desertion' is explained in the Act as desertion by the other party to the marriage without reasonable cause, without the consent or against the wish of such party, which includes willful neglect of the party whom the allegation is levelled against. The mere fact of residing separately from the company of the spouse for some reason or other cannot be termed as desertion. The party alleging desertion must able to prove that against his/her consent /wish the spouse left the company that too for no reason and he/she do not wish to cohabit and reside together at any point of time in future and also totally neglected or avoided the marital relationship, for ever.

10. In our society marriage is a highly treasured and sacred relationship between a man and woman, living together sharing happiness, sorrow, love, affection, care, company, sex and everything in life. In such a relationship if one withdrew on one fine morning without any reasonable cause and continue to stay away for a continuous period of at least two years definitely the opposite party is entitled to seek for a divorce as the bond they shared was snapped for ever. But the party approaching the court is burden with the task to prove before the court that his/her spouse has completely deserted or neglected the marital relationship with the intention to put an end permanently without reasonable cause and without consent. Desertion is definitely a matter of inference to be drawn from the facts and circumstances of each case.

11. It is borne out from the factual aspects that the appellant left abroad in the month of March 1998 without informing the respondent and returned only in the year 2003. There is no evidence to show that he paid any amount as maintenance to his wife or his child during the entire period he stayed in Gulf in connection with his employment and has no case that he contacted her at any time during the period of five years. But according to the respondent when she came to know about his return from Gulf from out side source in the year 2003 she approached him with a request to take her back along with his child. But there was no positive approach from his side and he willfully neglected to provide even maintenance to them. She pleaded that when she was fully convinced that she was totally neglected by him, she filed a petition for maintenance and the original petition for return of gold ornaments and money.

12. It is pertinent to note that he has no case that he had ever tried to contact her during the period of five years and there is no evidence to show that he had provided maintenance to her and her minor child during the long period of about five years though there was a vague attempt on his side to show that he offered money through his brother while he was abroad. No such statement was pleaded in the petition filed by him though he deposed so when he was examined before the trial court. So also his brother was not examined as a witness to substantiate that part of his contention. It is pertinent to note that a careful scrutiny of the materials placed on record would reveal that the appellant had totally neglected to provide maintenance, protection, love and care expected from the side of a husband and without any valid reason he had approached the court alleging desertion against his wife. Hence, it could correctly be concluded that the court below has rightly evaluated the materials on record and found that the petitioner could not succeed in his attempt to establish that the respondent has deserted him without any reasonable cause, against his wish so as to entitle him to get a decree for divorce on the ground of desertion.

13. In short, we find that the appellant failed to prove that the respondent has deserted him without any reasonable cause with the intention to bring cohabitation permanently to an end coming within the meaning of Section 13(1) (ib) of the Act so as to get a decree of divorce in his favour. Rather, it is the appellant who has deserted her without any reasonable cause.

14. Now the question to be looked into is whether he is entitled to get a decree for divorce on the ground of mental cruelty suffered because of the behaviour pattern of the respondent towards him. On going through the relevant provisions of law, it could be seen that cruelty has not been defined in the Act. But it is well settled by judicial pronouncement that cruelty can be either mental and physical. But to prove mental cruelty the party alleging the same has to convince the court that the circumstances narrated made his life miserable, difficult, inconvenient and impossible for him to continue with the marital life. It is well settled that mental cruelty is a state of mind and that the feeling of deep anguish, disappointment, frustration, humiliating treatment, indifference, selfishness, possessiveness etc of one spouse may cause discomfort and difficulties and render the life miserable for the other spouse. However, no straight jacket formula can be adopted and no uniform standard can be laid for guidance to determine mental cruelty in matrimonial matters and it all differs from person to person, of varying degrees depending upon various reasons. It is sure that minor quarrels, arguments between spouses, difference of opinion etc are only normal wear and tear in a married life when two individuals from different families and mostly from different backgrounds are living together. But when continuous torture or harassment either physical or mental cross the limits and makes the life of the spouse miserable and horrible definitely he/she is entitled for a divorce on the ground of cruelty.

15. According to him, the respondent was in the habit of threatening him that she would commit suicide and on two occasions she had consumed poison and attempted to commit suicide and due to the timely intervention of his neighbours, her life was saved. She was also in the habit of picking up quarrel quite often with her in-laws and abuse them in filthy language and because of her peculiar character they had to shift their residence from the family house to a rented building. He has also a case that she used to pick up quarrel quite often with their neighbours also for no reason and so there were complaints which caused much mental agony and anguish to him and in fact his status was lowered before them. Though he deposed so, none of the neighbours who alleged to have made complaints against the respondent about her misbehavior or nuisance created due to her quarrelsome nature, had been examined as a witness to prove his case. So also he could not adduce convincing evidence to prove that she had attempted to commit suicide by consuming poison and somehow she was saved by the intervention of neighbors.

16. He has also asserted that she always used to keep poison with her and threaten that she would commit suicide. He has narrated an incident in which she had once attempted to commit suicide by jumping into a river nearby. PW2 was also examined by him in support of his case that she was saved by him. Of course, PW2 had deposed that one day he happened to see the respondent jumping into a nearby river and he saved her from drowning. But there is no pleading in his petition that it was PW2 who saved her from drowning. If such an incident had happened and PW2 had saved her from drowning, definitely that would find a place in the pleadings and of-course in his deposition before the Court. His mere statement without pleading that PW2 saved her, itself would show that it was a story cooked up by him to support or strengthen his case and the examination of PW2 was only an afterthought to substantiate his case that she was in the habit of threatening him that she would commit suicide and had even attempted for the same so as to make him panic causing heavy mental torture.

17. The other incident narrated by the petitioner to prove cruelty against the respondent is the allegation that one day she quarelled with him for no reason and had even thrown her thali chain towards him and left the place. He has mentioned the date as 18.5.1998 in the petition filed by him in the year 2003. As PW1 also he has mentioned the date as 18.5.1998. But the respondent has a case that she has gone to her own house along with the petitioner on 16.1.1998 in connection with the marriage of her brother and thereafter she was never taken back by the petitioner to his house and he left abroad in the month of March 1998 without informing her. Though he admitted that he left abroad in the year 1998 he has not mentioned the exact date when he proceeded for taking up an employment. Like that he had admitted that he had gone to her house to attend the marriage of his brother-in-law, which was in the month of January and later gone abroad in the month of May 1998 and returned only in the month of August 2003. The failure to mention the exact date when he left abroad itself would indicate that the story narrated by him to prove cruelty is doubtful especially when the respondent has a definite case that she was taken to her residence in the month of January 1998 in connection with the marriage of her brother. Her case that after the marriage of her brother she was not taken back to his house appears to be more probable as it was his burden to prove the alleged incident by convincing evidence but, no reliable evidence was adduced by him. All these matters as well his failure to mention the exact date of his departure to Gulf country to take up employment would throw cloud to the story narrated by the petitioner .

18. The examination of the two witnesses procured by him will not satisfy the requirements and they could not disclose anything in the nature of mental harassment or torture towards the petitioner. He is supposed to prove that she made his life miserable because of her particular behavior and conduct towards him. The allegations could only be one levelled against her to get a decree of divorce as it was admitted by him in clear terms that after he went abroad in the month of May 1998 till 2003 he had not attempted to contact her or to provide maintenance to her or to their minor child. It is pertinent to note that he has no case that he had furnished his address to her so as to have any communication with him. In fact he compelled her to remain in total darkness during the said period of five years. She is a lady having no source of income. His whereabouts were not made known to her during the five years itself is sufficient to conclude that he failed in performing his matrimonial duties and obligations. It appears that he made frivolous and false allegations against the respondent just to get rid of her from his life. The record would also indicate that the efforts made by her relatives to settle the dispute was not successful as they were also precluded from having any contact with him while he was abroad and it is clear that he left abroad without any intimation to them also. It is also important to note that the respondent has a case that when she came to know about his return from Gulf she approached him with her child with the desire to continue with the marital life. But he did not permit her to enter into the newly constructed house by him. His case that she created nuisance and trouble at his residence on 13.8.2003 also not proved by him by adducing acceptable evidence. The respondent has a case that actually he procured the property for construction of the house utilizing her money and gold ornaments. But whatever be it Ext.A1 sale deed stands in his name and it has come out in evidence that he was an employee in FACT during the period when the property was acquired in his name. So also, she could not adduce any independent evidence to substantiate her case that the property was purchased utilizing her money and ornaments. Still the building which belongs to him has to be treated as her matrimonial house and denial of entry to the house with her minor child would come within the broad parameters of mental cruelty on his side. It is clear that she has the desire to continue with the marital life and that is evident from her approach with the child after his return from abroad even after a long period of his silence with her.

19. Therefore, we find that the learned Family Court analyzed the evidence properly and arrived to the right conclusion holding that the petitioner could not succeed in his case that the respondent has willfully abstained from his company and deserted him totally making no scope for continuance of a marital life and entitling him for the relief of dissolution of marriage on the ground of desertion. So also there is no evidence to show that he was subjected to mental cruelty as alleged by him so as to grant a decree for divorce.

We find no merit to interfere. Dismissed.