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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
D.V.S.S.Somayajulu, Duppala Venkata Ramana, JJ.
Donga Rambabu, S/o Subba Rao – Petitioner
Versus
Donga Vijaya Kumari, W/o Rambabu –Respondent
Civil Miscellaneous Appeal No. 1027 of 2016
Decided On : 09-08-2023
Desertion - Matrimonial Dispute - Debananda Tamuli v Kakumoni Kataky, AIR Online 2022 SC 163 - The court discussed the evidence of desertion and ill-treatment, and compared the facts with the case of Debananda Tamuli v Kakumoni Kataky, highlighting the importance of proving desertion with clear evidence and reasonable cause.
Fact of the Case:
The petitioner alleged desertion by the respondent and presented evidence of ill-treatment and demands made by the respondent. The respondent denied the allegations and presented evidence of ill-treatment by the petitioner.
Finding of the Court:
The court found that the petitioner failed to prove desertion by the respondent, as the evidence was not corroborated and the children's evidence supported the respondent's version of ill-treatment.
Issues: Dispute over desertion and ill-treatment in a matrimonial relationship.
Ratio Decidendi: The importance of proving desertion with clear evidence and reasonable cause, and the significance of corroborating evidence in matrimonial disputes.
Final Decision: The Civil Miscellaneous Appeal was dismissed, and the trial Court's judgment was upheld.
ORDER :
D.V.S.S.Somayajulu, J.
This appeal is filed questioning the order dated 28.10.2016 in O.P.No.138 of 2012.
2. This Court has heard Sri Chandra Sekhar Ilpakurti, learned counsel for the appellant/petitioner. Despite opportunities, none appeared for the respondents.
3. Sri Chandra Sekhar argued the matter at length. According to him, the trial Court committed a serious error in dismissing the application filed on the ground of desertion. He points out that the evidence in the case is clear and that despite the proof of desertion, the trial Court did not appreciate the evidence and dismissed the application. He points out that the marriage between the parties was performed on 13.11.1980 and the respondent deserted the petitioner in March, 1988. Thereafter, she filed series of cases including maintenance case and a case under 498-A IPC which ended in acquittal. It is therefore contended that as there is no matrimonial relationship between the petitioner and the respondent and desertion for two years prior to the filing of the original petition is proved. As per the learned counsel, the trial Court committed an error in dismissing the application. He relies upon the paper book that has been filed to argue and also a judgment in the case of Debananda Tamuli v Kakumoni Kataky, AIR Online 2022 SC 163. None appeared for the respondent despite opportunities.
4. This Court has gone through the evidence and has heard the learned counsel at length. On behalf of the petitioner, to prove his case, two witnesses were examined; the petitioner himself as P.W.1 and one P.Venkata Narayana as P.W.2. P.W.3 has filed chief affidavit, but since he did not appear, his evidence was eschewed. The petitioner’s evidence is in line with what is stated in his petition. According to the petitioner, in March, 1988 the respondent voluntarily deserted the petitioner and left the matrimonial home without any reasonable cause. This was denied by the respondent. In the course of the evidence, it is urged that the respondent ill-treated the petitioner and that she always wanted luxurious furniture and other items. It is also stated that she wanted him to leave his employment and reside with her at her parents’ house as an illatum son-in-law. It is also stated that she left the matrimonial house at least 50 times in the 8 years that they lived together and he along with his elders used to go every time and requested her to come back. The filing of the cases etc., is admitted and it is also stated that so many mediations were made to restore the conjugal life. Lot of suggestions were put in the course of the cross-examination. It is admitted that he did not issue any legal notice before filing this petition. He also admits that he has not paid the maintenance that was ordered by the Court. He also admits that he filed HMOP for restitution of conjugal rights, but the same was dismissed for default.
5. The only other witness examined is P.W.2. He states that he is a close relative of the petitioner and attended the wedding also. The cause of the desertion is again mentioned as a demand for luxury furniture, demand for the petitioner should stay at the respondent’s house as an illatum son-in-law etc. In the cross-examination, however, he states that he does not know about their children or their ages. He further states that he only knows that the petitioner and respondent are not living together; that he does not know about the affairs of the respondent and that he has no personal knowledge about the luxurious life of the respondent.
6. What is important to note at this stage is that as per the pleadings and evidence, it is stated that the respondent was in a habit of leaving the house and in fact it is stated that she left the house at least 50 times and that the petitioner and the elders used to go every time and bring her back. None of these elders were examined as witnesses. Not one of these ‘50’ incidents is borne out by the evidence. It is therefore a case of peti
The importance of clear evidence and reasonable cause in proving desertion in matrimonial disputes.
The court established that mental cruelty and desertion were proven through unrefuted evidence, justifying the dissolution of marriage under Hindu Marriage Act, 1955.
The main legal point established in the judgment is that in order to prove desertion under S.13(1)(b) of the Hindu Marriage Act, the factum of separation and the intention of bringing cohabitation pe....
Desertion under Hindu Marriage Act necessitates intentional abandonment without reasonable cause, established through a fact of separation and the intent to permanently cease cohabitation.
For desertion under the Hindu Marriage Act, both the absence of reasonable cause and the element of animus must be established; mere separation is insufficient to claim desertion.
The burden of proving desertion lies with the appellant, which was not established due to a lack of credible evidence, leading to the dismissal of the appeal.
Desertion as grounds for divorce requires proof of separation and intention to end cohabitation, which was not established in this case.
Point of Law : It is not proved that respondent-wife deserted appellant/plaintiff for a period not less than two years immediately preceding the date of presentation of the divorce petition.
The burden of proof lies heavily upon the petitioner to establish desertion without any reasons being assigned. Cogent and reliable evidence is required to prove desertion.
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