1. Petition for divorce on grounds of desertion following prolonged separation and failure to reconcile under the Hindu Marriage Act. (Para 1 , 2 , 3 , 4 )
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1998 Supreme(SC) 850
SUPREME COURT OF INDIA
B.N.Kirpal : V.N.Khare
Ramani
Versus
Saraswathi
Case No. : 4173 of 1994
Date of Decision : 8/25/98
Desertion is a question of fact. Concurrent findings of lower courts on desertion should not be reversed by a higher court unless perverse, especially when the spouse claiming ignorance of the other's address made no effort to ascertain it.
Headnote:(A) Hindu Marriage Act - Divorce on grounds of desertion - Concurrent findings of fact - Scope of interference by High Court - Whether lack of knowledge of spouse's address precludes a finding of desertion. (Paras 6, 7, 8)
(B) Question of desertion is essentially a question of fact - Concurrent findings of trial court and lower appellate court on the basis of evidence should not be reversed by the High Court unless there is a compelling reason - Mere ignorance of the spouse's address, without any effort to ascertain the same, does not negate the intention to desert. (Para 8)
Facts of the case:
The parties were married and subsequently separated. The husband moved abroad for employment. A petition for divorce was filed on the ground of desertion. The trial court and the first appellate court concurrently held that the wife had willfully deserted the husband for over three years. However, the High Court set aside the decree, reasoning that the wife could not have returned to the matrimonial home as she was unaware of the husband's address abroad.
Findings of Court:
The High Court failed to consider evidence showing the wife's refusal to live with the husband and the lack of effort by the wife or her parents to find the husband's address. The concurrent findings of the lower courts were based on evidence and should not have been upset.
Issues: Whether the respondent was guilty of desertion and whether the High Court was justified in reversing the concurrent findings of fact of the lower courts.
Ratio Decidendi: A finding of desertion is a question of fact. When two lower courts concurrently find that a spouse has deserted the other based on evidence, such a finding should not be reversed by a higher court unless the decision is perverse. Lack of knowledge of the spouse's address is not a valid defense against desertion if no reasonable effort was made to locate the spouse.
Result: Appeal allowed. The judgment of the High Court is set aside and that of the lower appellate court restored.
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Table of Contents
2. Whether the spouse's lack of knowledge regarding the other's foreign address negates the legal requirement of desertion for the statutory period. (Para 7 )
3. Concurrent findings of fact regarding desertion should not be reversed when evidence shows no effort was made by the spouse to locate the other. (Para 6 , 8 )
4. Desertion is essentially a question of fact; concurrent findings of lower courts on such facts should generally be upheld unless clearly perverse. (Para 8 )
5. Appeal allowed, High Court judgment set aside, and decree of divorce restored, with directions for maintenance deposits for the child and spouse. (Para 9 , 10 )
6. Does a spouse's lack of knowledge of the other's foreign address preclude a finding of desertion?
Not necessarily. Desertion is a question of fact. If there is no evidence that the spouse made efforts to find the other's address or communicate, and lower courts concurrently find a willful intent to separate, the lack of knowledge of a foreign address does not negate desertion. (Para 7 , 8 )
7. Under what circumstances should a High Court reverse concurrent findings of fact by lower courts?
A High Court should not reverse concurrent findings of fact reached by the trial court and the lower appellate court unless the evidence on record does not support those findings or material evidence has been overlooked. (Para 8 )
8. Does a provisional maintenance deposit affect a spouse's right to seek permanent alimony under the Hindu Marriage Act?
A provisional deposit does not take away a spouse's right to file an application for permanent alimony under Section 25 of the Hindu Marriage Act, although the court will take the prior provisional payment into account. (Para 9 )
B.N.KIRPAL, J.
(1) THE appellant and the respondent were married on 19-8-1979 at Chidambaram. Thereafter they lived together in Delhi for some time when on 17-4-1981 the respondent went to her parents house where she delivered a child on 22-4-1981.
(2) IT is not in dispute that the parties never lived together thereafter. The appellant continued to live in Delhi till 15-4-1982. Thereafter he went and took up employment in Kuwait. According to the appellant, between May 1982 and 1984, he made five trips to India so as to persuade the respondent to join him but he was not successful.
(3) ON 18-10-1984, the appellant filed a petition for divorce on the ground of desertion by the respondent. The trial court made an effort to bring about a compromise but did not succeed. Thereupon a decree of divorce was passed on 20-4-1987 as the trial court came to the conclusion, on the basis of the evidence on record, that the respondent had wilfully deserted the appellant and was not wanting to go back to her matrimonial home. Against the said decree an appeal was filed by the respondent before the District Judge. Fresh attempts were made to bring about a compromise but they also failed. Thereafter, the District Judge by judgment dated 12-3-1990 dismissed the appeal and confirmed the decree of divorce which had been passed by the trial court.
(4) THE appellant then got married on 28-5-1990 and is now stated to be having two children. However, a second appeal was filed by the respondent in June 1990 and the High Court by judgment dated 7-7-1992 set aside the decree of divorce after coming to the conclusion that a period of two years had not elapsed before filing of the divorce petition.
(5) WHEN the special leave petition was filed in this Court, notice was issued and the parties were directed to be personally present in court. The notices which were issued were not accepted by the respondent and on 5-5-1994 it was again directed that fresh service should be effected on her and in case she refuses to accept the same then service by substitution should also be effected. The Court also recorded the willingness of the appellant to deposit a sum of Rs. 1,50,000 for the benefit of the child which was born out of the wedlock. We have been given to understand that this amount had been deposited in a fixed deposit and along with interest the amount now comes to Rs 2,40,865. This amount has been reinvested in a fixed deposit to mature on 4-10-1999. Despite substituted service having been effected, the respondent has chosen not to put in an appearance in this Court.
(6) BOTH the trial court and the lower appellate court have found as a fact that the respondent had deserted the appellant for about three and a half years prior to the filing of the petition for divorce. In coming to this conclusion, the courts took into consideration the evidence of PW 2 who had stated that he had gone to the house of the respondent to bring about a settlement prior to the filing of the petition for divorce, but the respondent had said that "we cannot agree to live together". The trial court and the lower appellate court concluded that there was no intention on the part of the respondent to go and live with her husband.
(7) THE High Court observed that one year after the respondent had left the appellant he had gone away to Kuwait without informing the wife or her relatives about his address. This being so, the High Court observed that the respondent could not have gone to live with her husband because she was not aware of his address. The High Court, therefore, concluded that the period of two years prior to the filing of the divorce petition was not there and there was no question of desertion on the part of the respondent as she did not know the whereabouts of the husband and the husband did not care to give his address to her.
(8) THE question whether the wife was guilty of desertion or not is essent
