Back
Andhra Pradesh High Court
Judges : ELIPE DHARMA RAO, T.MEENA KUMARI
Pothapragada Sri Lakshmi Maruthi Hara Gopal - Appellant
Versus
P.Seshu Kumari - Respondent
Decided On : 02-16-04
Held : 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 misbehaviour in isolation and then pose the question whether such behaviour 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.
"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 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. 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.
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.
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 the 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 coexist. 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. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Court.
( 1 ) THIS appeal is directed against the order of the I Additional Senior Civil Judge, Ranga reddy District dated 24-9-1999 made in o. P. No. 128 of 1996 dismissing the same.
( 2 ) THE appellant is the husband. He filed the above O. P. under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 (for short, the Act) for dissolution of the marriage between him and the respondent by a decree of divorce on the grounds of cruelty and desertion.
( 3 ) THE brief averments in the O. P. are as follows: The marriage between the appellant and the respondent took place on 6-3-1965 at Gudivada as per Hindu rites and custom and after the marriage they came down to eluru to live with his aged parents. It is stated that out of the said wed lock they were blessed with a daughter and three sons. According to the appellant, after the marriage he found that the respondent was behaving in a highly violent manner and used to pick up quarrels and threaten him that she would kill herself by jumping from the terrace or by pouring kerosene on herself. It is also his case that she used to illtreat his aged parents. The appellant further stated that due to the said extraordinary violent behaviour of the respondent, he used to spend sleepless nights and he also got himself transferred from Eluru to various places. But, there was no change in the attitude of the respondent and she was mentally torturing him. It is also his case that she used to suspect his fidelity and abuse him. According to him, she used to come to his office and abuse the lady colleagues and the appellant before them. It is also his contention that she used to visit his friends house to abuse them as well as their wives. The appellant further stated in the O. P. that he tried to adjust with the nature of the respondent and finally when it became unbearable and intolerable for him to bear with the respondent as well as her cruel mentality towards him, he was constrained to file O. P. No. 381 of 1988 before the iv Additional Judge, City Civil Court, hyderabad for divorce and since 1989 they are living separately. According to him, even the reconciliation proceedings failed. The appellant further stated that during the pendency of the above O. P. an agreement was entered into between them on 6-11-1989 wherein they agreed to live separately, apart from other terms being that the respondent has no objection for the appellant to remarry in India; that the respondent will continue to be the legally wedded wife of the appellant; that the consent given in condition No. 1 will not be prejudicial to her rights conferred by law; that the appellant is at liberty to reside wherever he wishes; that the appellant will pay Rs. 15007- p. m. to the respondent towards her maintenance and the maintenance her children; that the appellant will not have any claim whatsoever on the house property standing in the name of the respondent; that the appellant undertakes not to leave to any foreign country for permanent stay and in case he wishes to do so, he must deposit a sum of Rs. 1,50,000/- with any nationalised Bank in the name of the respondent; that the appellant will withdraw O. P. No. 318 of 1988. According to the appellant the house constructed at Saroornagar was given to the respondent from the date of the agreement and from then onwards she is in possession and enjoyment of the said property and that he is also paying maintenance at the rate of Rs. 1500/- per month from the date of the agreement. It is also stated that from the date of the said agreement, they are living separately. According to the appellant, the terms of the agreement are opposed to public policy and opposed to law inasmuch as in one clause the respondent agrees that the appellant can remarry in India and in another clause she says that she will continue to be his legally wedded wife, which cannot be permitted under law. The appellant further stated that the respondent is living away from him without any rea
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
