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2012 Supreme(Mad) 873
2012 (2) LW 137
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MRS. JUSTICE S. VIMALA
P. Premavathy
Versus
J. Venkatesan
Civil Miscellaneous Appeal No.1045 of 2009
Decided On : 20-02-2012
For the Appellant:S. Silambannan, Senior Counsel for Ms. C. Uma, Advocate.
For the Respondent:Ms. Usha Raman, Advocate.
The main legal point established in the judgment is the high burden of proof on the petitioner seeking divorce on the ground of desertion, emphasizing the essential conditions and the need for corroborative evidence.
Headnote:
desertion - divorce - Section 13 (1) (i-b) of Hindu Marriage Act - 13(1)(i-b)
Fact of the Case:
The case involved a divorce petition filed by the husband on the grounds of desertion and cruelty. The wife contested the petition, claiming that she had made efforts to reconcile and that the husband was responsible for the breakdown of the marriage.
Finding of the Court:
The trial court granted divorce to the husband on the ground of desertion, citing the wife's conduct and legal notices expressing her intention to divorce. The court declined divorce on the ground of cruelty.
Issues: (1) Whether the essential conditions to establish desertion were proved by the husband? (2) Whether the trial Court was right in concluding that the wife deserted the husband without reasonable cause? (3) Whether grant of divorce on the ground of desertion is sustainable?
Ratio Decidendi: The court emphasized the essential conditions for proving desertion, including the factum of separation, animus deserendi, absence of consent, and absence of conduct giving reasonable cause to desert the spouse. The court also highlighted the burden of proof on the petitioner seeking divorce on the ground of desertion.
Final Decision: The appellate court set aside the trial court's order and dismissed the husband's divorce petition, ruling that the evidence did not support the finding of desertion and that the husband's conduct contributed to the breakdown of the marriage.
R.BANUMATHI,J
1. Challenge in this appeal is the order in F.C.O.P.No.260 of 2004 dated 20.10.2008 on the file of Principal Family Court, Chennai granting divorce on the ground of desertion [Section 13 (1) (i-b) of Hindu Marriage Act]. Unsuccessful wife is the Appellant.
2. Appellant-wife is a Post Graduate with degrees M.A., M.Ed., in Tamil discipline and working as a teacher in Madras Port Trust and Dock Educational Trust Higher Secondary School, Chennai-81. Respondent-husband is working in Ashok Leyland Company. Appellant parents gave an advertisement in the Matrimonial column in the newspaper "The Hindu" dated 10.06.2001 [Ex.P13]. In response to the said advertisement, Respondent's father sent Ex.R1-bio-data of the Respondent. Marriage between the Appellant and Respondent was solemnized on 22.11.2001 at Pink Hall, Hotel Dasaprakash, Chennai according to Hindu rites and customs. At the time of marriage, Appellant was given 10 soverigns of jewels and Respondent was given one soverign and Appellant was also given house hold articles as Sridhana. There stated to be resentment by the Respondent's family regarding jewels as well as Sridhana articles even at the time of marriage and reception. Couple happily lived together only for a few weeks. In the bio-data [Ex.R1] of the Respondent, it was stated that Respondent is stated to be having qualification -Diploma in Refrigeration and Air Condition [DCE] and later which turned out to be false and thereafter differences arose making allegations and counter allegations. Respondent-husband sought for dissolution of marriage on the ground of desertion and cruelty.
3. Briefly stated case of Respondent-husband is as follows:-
After solemnization of marriage on 22.11.2001, both Appellant-wife and Respondent-husband went to the house of the Appellant's parents and stayed there for five days and on 29.11.2001, both went to the matrimonial home at Perambur. On 09.12.2001, Appellant left to her parents house on the excuse that she was unwell and returned to the matrimonial home on 12.12.2001 and on 12.12.2001 when the Appellant returned to the matrimonial home, the Respondent's maternal uncle visited their residence and invited them to dinner. The Appellant in a rude manner and with unbecoming behaviour refused the invitation and picked up quarrel with the Respondent and left again to her parental home and at the request of the Respondent, Appellant returned only on 21.12.2001. On 21.12.2001 when Appellant returned back to the matrimonial home, she demanded for separate kitchen. In compliance with her demand, the parents of Respondent constructed a separate kitchen on 24.12.2001 furnishing with all amenities. On 24.12.2001, Appellant informed the Respondent that she was going out for shopping and Respondent permitted the Appellant to go for shopping, but Appellant did not return till 26.12.2001 and did not inform over phone about her staying away and only at the request of Respondent, she returned back to the matrimonial home. It is averred that on 28.12.2001, Appellant again left the matrimonial home. Appellant while leaving the matrimonial home did not even bother to inform the Respondent over phone also. Appellant frequently picked up quarrels for no rhyme or reason, found fault with his aged parents, ridiculed and refused to follow the Hindu customs. On 26.01.2002, Appellant lodged a complaint [Ex.R17] before All Women Police Station, Thousand Lights, Chennai. Appellant also issued Ex.P9-legal notice on 27.03.2002 levelling certain allegations against the Respondent and accusing him of concealing information. On 09.06.2003, Appellant sent Ex.P11-rejoinder. On 20.11.2003, Appellant lodged another complaint before the Secretariat Colony Police Station. Alleging that the Appellant has withdrawn from the conjugal company without any reasonable cause, Respondent has filed Petition for divorce on the grounds of desertion and cruelty.
4. Resisting the Petition, Appellant-wife filed c
